B-134494, APR. 11, 1958
TO MR. SIDNEY J. WEINTRAUB:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1957, IN
EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED AUGUST 14, 1957, WHICH
DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE YOU AS
OF OCTOBER 2, 1945, THE DATE OF YOUR DISCHARGE FROM THE ARMY OF THE
UNITED STATES. ALSO THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 26,
1958, RELATIVE TO YOUR CLAIM.
YOU SAY THAT YOU DID NOT RECEIVE YOUR REGULAR PAY FOR THE MONTH OF
SEPTEMBER 1945 AND THAT YOU DID NOT RECEIVE THE FLYING PAY TO WHICH YOU
WERE ENTITLED FOR THAT MONTH. IN THIS CONNECTION, YOU SAY THAT DURING
SUCH PERIOD YOU WERE FLYING FROM FRANCE TO NEW YORK; THAT EVEN UP TO
THE DATE OF YOUR DISCHARGE YOU FLEW BACK FROM FRANCE TO THE UNITED
STATES; AND THAT YOU WERE FLYING UP UNTIL THE TIME YOU ARRIVED AT FORT
DIX FOR DISCHARGE. YOU ALSO SAY THAT YOU DID NOT RECEIVE ANY PER DIEM
ALLOWANCE DURING THE LAST TWO OR THREE MONTHS OF YOUR SERVICE AND THAT
AT THE TIME OF YOUR DISCHARGE YOU RECEIVED ONLY MUSTERING-OUT PAY AND
TRAVEL PAY.
AFTER THE RECEIPT OF YOUR LETTER YOUR CASE WAS FURTHER DEVELOPED. WE
OBTAINED THE VOUCHERS COVERING YOUR PAY FOR THE PERIOD FROM AUGUST 1 TO
OCTOBER 2, 1945, AND A TRANSCRIPT OF YOUR PAY ACCOUNT FROM NOVEMBER 12,
1942, DATE OF ENTRY ON ACTIVE DUTY, THROUGH OCTOBER 2, 1945, THE DATE OF
YOUR DISCHARGE. ALSO, WE WROTE TO THE ADJUTANT GENERAL OF THE ARMY, WHO
IS THE OFFICIAL CUSTODIAN OF THE RECORDS OF ARMY PERSONNEL, AND
REQUESTED THAT WE BE FURNISHED ANY ADDITIONAL INFORMATION AVAILABLE
CONCERNING THE VARIOUS ITEMS INCLUDED IN YOUR CLAIM. IN OUR LETTER WE
RELATED YOUR STATEMENTS REGARDING YOUR ENTITLEMENT TO FLYING PAY FOR THE
MONTH OF SEPTEMBER 1945 AND ASKED, IF YOU WERE IN RECEIPT OF FLIGHT
ORDERS FOR ANY PART OF THAT MONTH, THAT WE BE FURNISHED A REPORT AS TO
WHAT FLIGHTS, IF ANY, INCLUDING THE NUMBER AND DURATION THEREOF, WERE
PERFORMED BY YOU UNDER SUCH ORDERS DURING THAT PERIOD. WE ALSO ASKED
WHETHER YOUR ASSIGNMENTS AT FORT TOTTEN AND FORT DIX INVOLVED FLYING.
IN THE REPORT WHICH WE RECEIVED FROM THE OFFICE OF THE ADJUTANT
GENERAL OF THE ARMY IT IS STATED THAT YOU QUALIFIED FOR FLYING DUTY ON
JUNE 28, 1944, AND WERE AUTHORIZED FLYING PAY PER SQUADRON ORDERS NO.
17, HEADQUARTERS, MEDICAL AIR EVACUATION SQUADRON, DATED AUGUST 24,
1944; THAT EFFORTS TO OBTAIN A COPY OF THOSE ORDERS HAVE BEEN
UNSUCCESSFUL; AND THAT NO RECORD HAS BEEN FOUND TO INDICATE TERMINATION
OF FLYING DUTY IN YOUR CASE. SINCE THE REPORT INCLUDED NO OTHER
INFORMATION RELATIVE TO YOUR ENTITLEMENT TO FLYING PAY FOR THE MONTH OF
SEPTEMBER 1945, IT IS CONCLUDED THAT NO RECORDS WERE FOUND WHICH
CONTAINED THE INFORMATION REQUESTED BY US.
ADDITIONAL PAY FOR FLYING DUTY DURING THE PERIOD INVOLVED WAS
PROVIDED BY SECTION 18 OF THE ACT OF JUNE 16, 1942, 56 STAT. 368, WHICH
PRESCRIBED TWO REQUIREMENTS BOTH OF WHICH WERE ESSENTIAL TO THE RIGHT TO
SUCH ADDITIONAL PAY: (1) ORDERS OF COMPETENT AUTHORITY REQUIRING
REGULAR AND FREQUENT PARTICIPATION IN AERIAL FLIGHTS; AND (2)
SUFFICIENT PARTICIPATION, AS PRESCRIBED BY THE PRESIDENT, IN SUCH
FLIGHTS IN CONSEQUENCE OF SUCH ORDERS. THE RECORDS SHOW THAT YOU WERE
PAID FLYING PAY FOR THE PERIOD FROM JULY 1, 1944, THROUGH AUGUST 31,
1945. THERE IS ATTACHED TO VOUCHER NO. 624, SEPTEMBER 1945 ACCOUNTS OF
T. M. SORENSEN, WHICH COVERS YOUR PAY FOR AUGUST 1945,
A CERTIFICATE AS FOLLOWS:
"I HEREBY CERTIFY THAT I HAVE EXAMINED THE CLAIM OF EACH ENL PERSON
CLAIMING AVIATION PAY ON THIS PAYROLL; THAT, DURING THE PERIOD FOR
WHICH AVIATION PAY IS CLAIMED, EACH WAS, BY ORDERS OF COMPETENT AUTH,
REQUIRED TO PARTICIPATE REGULARLY AND FREQUENT IN AERIAL FLTS; AND, IN
CONSEQUENCE
OF SUCH ORDERS, EACH DID PARTICIPATE IN REGULAR AND FREQUENT FLTS
WHILE ON DUTY STATUS, SUFFICIENT TO MEET THE REQUIREMENTS OF EX ORDER
NO. 9195, 7 JUL 42 (AR 35-1480).'
SINCE WE WERE NOT ABLE TO OBTAIN FROM THE OFFICE OF THE ADJUTANT
GENERAL ANY RECORDS TO SUBSTANTIATE THE CREDIT OF FLYING PAY FOR THE
PERIOD FROM SEPTEMBER 1 TO OCTOBER 2, 1945, THE DATE OF YOUR DISCHARGE,
ON THE PRESENT RECORD NO PAYMENT MAY BE MADE ON THAT ACCOUNT. IF YOU
ARE ABLE TO FURNISH ANY OFFICIAL RECORD SUBSTANTIATING YOUR CLAIM FOR
SUCH PAY, HOWEVER, IT WILL BE CONSIDERED FURTHER ON ITS MERITS.
A STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD FROM SEPTEMBER 1 TO
OCTOBER 2, 1945, BASED ON THE INFORMATION SHOWN ON VOUCHER NO. 530,
OCTOBER 1945 ACCOUNTS OF J. HARRIS, IS AS FOLLOWS:
CHART
CREDITS BASE AND FOREIGN SERVICE PAY AS A TECHNICIAN, THI
WITH UNDER 3 YEARS OF SERVICE, SEPTEMBER 1 TO 25, 1945, AT $115.20
PAY AS A TECHNICIAN, THIRD GRADE, WITH UNDER 3 YEARS OF SERVICE,
SEPTEMBER 26 TO OCTOBER 2, 1945,
AT $96 A MONTH 22.40 $118.40
----------
CHARGES CLASS N ALLOTMENT FOR SEPTEMBER 1945
7.00 CLASS E ALLOTMENT FOR SEPTEMBER 1945
DEDUCTIONS FOR SEPTEMBER AND OCTOBER 1945 44.00
------------- ---------- BALANCE DUE YOU
$47.40
YOU WERE PAID, ON VOUCHER NO. 530, A TOTAL OF $168.25--- $118.25 BY
CHECK AND $50 IN CASH. THE AMOUNT SO PAID INCLUDED THE BALANCE OF
$47.40 SHOWN ABOVE, TRAVEL PAY IN THE AMOUNT OF $2085 AND $1100 AS THE
FIRST INSTALLMENT OF MUSTERING-OUT PAY.
YOU WERE PAID A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS
AT THE RATE OF $1.25 A DAY FROM OCTOBER 15, 1943, TO MAY 31, 1944.
SINCE THE RECORDS SHOW THAT FROM DECEMBER 15, 1943, TO MAY 31, 1944, YOU
WERE STATIONED IN GREAT BRITAIN WHERE THE APPLICABLE RATE WAS $2 A DAY,
THERE RESULTED AN UNDERPAYMENT OF $126.75 (169 DAYS AT $0.75 A DAY).
YOU WERE NOT ENTITLED TO AND
WERE NOT PAID A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENT
FOR ANY PERIOD AFTER MAY 31, 1944, IT APPEARING THAT, BEGINNING WITH THE
MONTH OF JUNE 1944, YOU ELECTED, UNDER THE PROVISIONS OF SECTION 108 OF
THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED BY SECTION
8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, NOT TO RECEIVE SUCH
MONETARY ALLOWANCE AND TO HAVE YOUR DEPENDENTS BECOME ENTITLED TO
RECEIVE FAMILY ALLOWANCE.
IT APPEARS THAT YOU SHOULD HAVE BEEN, BUT WERE NOT, PAID FURLOUGH
RATIONS FOR THE PERIOD FROM FEBRUARY 17 TO 27, 1943, IN THE AMOUNT OF
$6.16 (11 DAYS AT $0.56 A DAY) AND FOR THE PERIOD FROM AUGUST 29 TO
SEPTEMBER 7, 1943, IN THE AMOUNT OF $6.10 (10 DAYS AT $0.61 A DAY),
RESULTING IN AN UNDERPAYMENT OF $12.26. IT ALSO APPEARS, HOWEVER, THAT
YOU WERE PAID FURLOUGH RATIONS FOR THE PERIOD FROM JUNE 1 TO 9, 1945, IN
THE AMOUNT OF $5.85 (9 DAYS AT $0.65 A DAY) ON VOUCHER NO. 142, JULY
1945 ACCOUNTS OF E. HALL, JR., AND AGAIN ON VOUCHER NO. 443, AUGUST 1945
ACCOUNTS OF T. M. SORENSEN, RESULTING IN AN OVERPAYMENT OF $5.85.
THUS, THERE RESULTED A NET UNDERPAYMENT OF $6.41 FOR FURLOUGH RATIONS.
A SETTLEMENT FOR $133.16 ($126.75 PLUS $6.41) WILL ISSUE IN YOUR
FAVOR IN DUE COURSE.
B-134567, APR. 11, 1958
TO THE ILLINOIS CENTRAL RAILROAD:
REFERENCE IS MADE TO YOUR LETTERS WRITTEN UNDER FILE 22882-5 IN WHICH
YOU REQUEST CANCELLATION OF THE DEBT ASSESSED AGAINST YOU BY THE UNITED
STATES IN THE AMOUNT OF $6,517.39, REPRESENTING THE
AMOUNT ADMINISTRATIVELY DETERMINED AS THE VALUE OF DAMAGE TO
GOVERNMENT PROPERTY TRANSPORTED UNDER BILL OF LADING NO. WW-5,609,916,
DATED AUGUST 13, 1951. THIS BILL OF LADING COVERED CARS CONTAINING
CRANES AND PARTS SHIPPED BY THE GRANITE CITY ENGINEER DEPOT, GRANITE
CITY, ILLINOIS, CONSIGNED TO THE NEW ORLEANS PORT OF EMBARKATION, NEW
ORLEANS, LOUISIANA.
THE RECORD AVAILABLE HERE SHOWS THAT THE SHIPMENT INVOLVED CONSISTED
OF SIX CRANES WHICH WERE LOADED IN SIX FLAT CARS BY EMPLOYEES AT THE
GRANITE CITY ARMY ENGINEER'S DEPOT; THAT THE TERMINAL RAILROAD
ASSOCIATION OF ST. LOUIS TRANSPORTED THE CARS FROM GRANITE CITY,
ILLINOIS, TO EAST ST. LOUIS, ILLINOIS, WHERE THEY WERE DELIVERED TO THE
ILLINOIS CENTRAL RAILROAD COMPANY; AND THAT THE DAMAGE TO THE
GOVERNMENT PROPERTY OCCURRED IN A COLLISION AT OR NEAR CLINTON,
KENTUCKY, ON AUGUST 16, 1951, WHILE ON THE RAILS OF THE ILLINOIS CENTRAL
RAILROAD. THIS COLLISION RESULTED IN THE DEATH OF THE ENGINEER AND
INJURY TO THE FIREMAN ON ONE OF THE ENGINES INVOLVED IN THE ACCIDENT
AND, BY REASON OF SUCH DEATH AND PERSONAL INJURY, TWO SUITS WERE FILED
UNDER THE PROVISIONS OF THE FEDERAL TORT CLAIMS ACT, 28 U.S.C. 1346 (B),
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY. THE TWO SUITS WERE CONSOLIDATED AND JUDGMENTS WERE AWARDED
THE PLAINTIFFS IN ANDERSON V. UNITED STATES (ILLINOIS CENTRAL RAILROAD
COMPANY, THIRD-PARTY DEFENDANT) AND MARSHALL V. UNITED STATES (ILLINOIS
CENTRAL RAILROAD COMPANY, THIRD-PARTY DEFENDANT), 118 F.SUPP. 498. IN
AWARDING THE JUDGMENTS THE COURT CONCLUDED (AT PAGE 504) THAT---
"THE NEGLIGENCE OF THE EMPLOYEES OF THE UNITED STATES AT THE ARMY
DEPOT AT GRANITE CITY, ILLINOIS, * * * AND THE NEGLIGENCE OF THE
ILLINOIS CENTRAL RAILROAD COMPANY IN RECEIVING FOR TRANSPORTATION AND IN
TRANSPORTING SAID CAR WITHOUT HAVING FIRST ASCERTAINED THAT THE ROTATING
CAB HAD BEEN SECURELY LOCKED CONCURRED TO BRING ABOUT AND CONSTITUTE THE
DIRECT AND PROXIMATE CAUSE OF THE COLLISION * * *.'
YOU TAKE THE POSITION THAT ANY CONTRIBUTORY NEGLIGENCE OF EMPLOYEES
OF THE UNITED STATES IN LOADING THE PROPERTY INVOLVED WOULD BE A
COMPLETE BAR TO RECOVERY FOR DAMAGE TO THE SHIPMENT, AND YOU CITE A
NUMBER OF PERSONAL INJURY CASES AS AUTHORITY FOR YOUR POSITION.
HOWEVER, IT HAS BEEN HELD THAT COMMON CARRIERS OWE A CONTRACTUAL DUTY TO
THE SHIPPER TO CARRY GOODS SAFELY AND ARE NOT RELIEVED FROM SUCH DUTY BY
NEGLIGENT LOADING OF THE SHIPPER. UNITED STATES V. SAVAGE TRUCK LINE,
INC., 209 F.2D 442, 447, CERTIORARI DENIED, 74 S.CT. 677.
THE PROPERTY WHICH WAS DAMAGED IN THIS INSTANCE WAS LOADED ON A FLAT
CAR AND WAS PASSED FOR INSPECTION BY YOUR AGENTS WITHOUT ASCERTAINING
WHETHER THE PROPERTY HAD BEEN LOADED IN ACCORDANCE WITH THE RULES OF THE
ASSOCIATION OF AMERICAN RAILROADS. THE DEPARTMENT OF THE ARMY HAS
REPEATEDLY REQUESTED THAT YOU SUBMIT YOUR RECORDS PERTAINING TO THE
INVESTIGATION CONDUCTED ON THIS COLLISION IN ORDER THAT THEY MAY
UNDERSTAND THE REASON YOU CONTEND THAT YOU SHOULD NOT BE HELD LIABLE FOR
THE DAMAGE. IN VIEW OF YOUR REFUSAL TO SUBMIT SUCH RECORDS, AND THE
FINDING OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
KENTUCKY (118 F.SUPP. 498) THAT YOU WERE GUILTY OF CONTRIBUTORY
NEGLIGENCE IN THE MATTER, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE
ADMINISTRATIVE DETERMINATION THAT YOU ARE LEGALLY LIABLE FOR DAMAGE TO
THE GOVERNMENT PROPERTY INVOLVED IN THE AMOUNT OF $6,517.39.
IN REGARD TO YOUR STATEMENT THAT THE GOVERNMENT UNDULY DELAYED
NOTIFYING YOU OF THE DAMAGE TO THE SHIPMENT, THAT FACT OBVIOUSLY COULD
HAVE NO EFFECT ON YOUR OBLIGATION TO THE GOVERNMENT AND COULD AFFORD NO
LEGAL BASIS FOR RELIEVING YOU OF YOUR LIABILITY FOR THE AMOUNT OF THE
DAMAGE, PARTICULARLY SINCE THE COLLISION WHICH CAUSED THE DAMAGE
OCCURRED ON YOUR RAILS AND YOU CONDUCTED YOUR OWN INVESTIGATION
REGARDING THE DAMAGE. THE RULE IS WELL ESTABLISHED THAT NEITHER LACHES
NOR PERIODS OF LIMITATION APPLY AGAINST THE GOVERNMENT IN THE ABSENCE OF
A CLEAR EXPRESSION OF CONGRESSIONAL INTENT TO THE CONTRARY. SEE UNITED
STATES V. WHITED AND WHELESS, 246 U.S. 552, STANLEY V. SCHWALBY, 147
U.S. 508, 514 ET SEQ., MISSOURI-KANSAS-TEXAS RAILROAD CO. OF TEXAS V.
UNITED STATES, 62 C.CLS. 373.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE ACTION OF THE
DEPARTMENT OF THE ARMY IN DETERMINING THAT YOU ARE INDEBTED TO THE
UNITED STATES IN THE AMOUNT OF $6,517.39, AND ITS ACTION IN COLLECTING
THE SAME BY SETOFF, ARE SUSTAINED.
B-134740, APR. 11, 1958
TO THE TEXAS AND NEW ORLEANS RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1957, FILE
WW-7013-8-RG, CONCERNING THE DISALLOWANCE OF YOUR SUPPLEMENTAL BILL FOR
$185.14 ADDITIONAL TO THE CHARGES PREVIOUSLY PAID FOR THE TRANSPORTATION
OF A SHIPMENT OF EIGHT METAL CASES OF INTERNAL COMBUSTION ENGINES,
WEIGHING 29,080 POUNDS, FROM STAPLETON, STATEN ISLAND, NEW YORK
LIGHTERAGE, NEW YORK, TO BROOKLEY, ALABAMA, THERE STORED IN TRANSIT AND
LATER FORWARDED TO SAN ANTONIO, TEXAS, IN 1954.
THE RECORD SHOWS THAT THESE ENGINES WERE UNLOADED AT SHIPSIDE IN NEW
YORK HARBOR AND THERE WERE LOADED BY THE ERIE RAILROAD COMPANY, THE
ORIGIN CARRIER, INTO CAP ERIE 11008, A 50-FOOT, 6-INCH FLAT CAR, FOR
FORWARDING TO BROOKLEY, ALABAMA, ON BILL OF LADING NO. WY-2978911;
APRIL 27, 1954. THIS BILL OF LADING SHOWS ON ITS FACE THE NOTATION
"HANDLING, LOADING, BLOCKING AND BRACING BY ERIE RR CO.' THE BILL OF
LADING SHOWS ALSO THAT THE SHIPMENT WAS "RECORDED FOR TRANSIT" AT
BROOKLEY, ALABAMA. FOR THIS TRANSPORTATION THE LOUISVILLE AND NASHVILLE
RAILROAD COMPANY CLAIMED AND WAS PAID $835.51 ON ITS BILL 4358-89,
COMPUTED ON THE BASIS OF A CLASS-45 RATE OF $1.76 PER 100 POUNDS,
CARLOAD MINIMUM WEIGHT 41,280 POUNDS, PLUS 15 PERCENT. THEREAFTER, ON
JULY 29, 1954, THE ENGINES, WEIGHING 29,420 POUNDS, WERE FORWARDED FROM
BROOKLEY, ALABAMA, ON TRANSIT BILL OF LADING NO. AF-T-53117 TO SAN
ANTONIO, TEXAS, IN CAR M AND STL 56104, A CAR 40 FEET LONG. THIS BILL
OF LADING CONTAINS REFERENCE TO BILL OF LADING NO. WY-2978911 AS
COVERING THE INBOUND SHIPMENT. FOR THE THROUGH TRANSPORTATION YOU
CLAIMED AND WERE PAID $364.82 ON YOUR BILL 7013-8. THE TARIFF AUTHORITY
FOR THE CHARGE IS NOT SHOWN ON THE BILL OF LADING. YOU THEN CLAIMED,
PER SUPPLEMENTAL BILL NO. WW-7013-8-B, $185.14 ADDITIONAL FOR THIS
TRANSPORTATION. THE CHARGES ARE SHOWN IN THE SUPPLEMENTAL BILL AS BEING
COMPUTED ON THE BASIS OF A THROUGH CLASS-55 RATE OF $2.86 PER 100
POUNDS, CARLOAD MINIMUM WEIGHT 41,280 POUNDS, PLUS THE TRANSIT CHARGE,
BOTH PLUS 15 PERCENT, PLUS THE LOCAL RATE FROM BROOKLEY ON THE
NON-TRANSIT TONNAGE. THE MINIMUM WEIGHT OF 41,280 POUNDS IS THAT
PROVIDED IN RULE 34 OF THE CLASSIFICATION FOR THE USE OF A 50-FOOT,
6-INCH FLAT CAR FOR THE TRANSPORTATION OF A SHIPMENT OF INTERNAL
COMBUSTION ENGINES. THIS CLAIM WAS DISALLOWED AND YOU WERE REQUESTED TO
REFUND $216.12, THIS AMOUNT REPRESENTING THE CHARGES ON THE SHIPMENT
COMPUTED ON THE BASIS OF THE RATES USED BY YOU, EXCEPT FOR THE USE OF
THE MINIMUM WEIGHT PROVIDED FOR A STANDARD CAR.
IN THIS INSTANCE, THE INBOUND SHIPMENT WAS LOADED BY THE CARRIER'S
EMPLOYEES AT A POINT ON THE CARRIER'S PROPERTY, AND ON A CAR OF THE
CARRIER'S CHOICE OVER WHICH THE SHIPPER APPARENTLY EXERCISED NO CONTROL.
INFORMATION ON THE FACE OF THE BILL OF LADING WY-2978911 INDICATES THAT
THE PROPERTY CONSISTED OF IMPORT FREIGHT WHICH WAS LOADED FROM SHIPSIDE
IN THE NEW YORK LIGHTERAGE AREA, AND WAS THEREBY SUBJECT TO THE
PROVISIONS OF TRUNK LINE TARIFF NO. 116-F, BOIN'S I.C.C. NO. A-978,
ENTITLED "LIGHTERAGE AND TERMINAL REGULATION IN NEW YORK HARBOR AND
VICINITY.' RULE M-10, AS PUBLISHED IN ITEMS 7010, 7015, AND 7020 OF THIS
TARIFF, PROVIDES IN PART THAT:
"/A) THE PROVISIONS OF PARAGRAPH (D) WILL APPLY UPON FREIGHT IN
CARLOADS RECEIVED FROM ALL ORIGINS NOT LOCATED IN THE CONTINENTAL UNITED
STATES OF AMERICA (INCLUDING ALASKA), DOMINION OF CANADA, * * * AND
FORWARDED FROM SHIP'S SIDE OR DOCK OF THE VESSEL BRINGING SUCH FREIGHT
WITHIN THE FREE LIGHTERAGE OR EXTRA TOWING LIMITS * * * WHEN SUCH
FREIGHT IS LOADED INTO CARS BY THE INITIAL CARRIER EMPLOYEES * * * IN
ACCORDANCE WITH TARIFFS LAWFULLY ON FILE WITH THE INTERSTATE COMMERCE
COMMISSION.'
PARAGRAPH (D) ENTITLED "RULE TO APPLY," READS AS FOLLOWS:
"ON ONE CONSIGNMENT SHIPPED AT ONE TIME BY ONE CONSIGNOR TO ONE
CONSIGNEE AND ONE DESTINATION WHICH EQUALS OR EXCEEDS THE MINIMUM
CARLOAD WEIGHT PROVIDED IN THE GOVERNING CLASSIFICATION OR TARIFFS
GOVERNING THE TRAFFIC RULES NOS. 14, 24, AND 34 OF THE GOVERNING
CLASSIFICATION WILL NOT APPLY, BUT THE CARLOAD RATE WILL BE CHARGED ON
THE ACTUAL WEIGHT OF THE ENTIRE CONSIGNMENT WHEN SUCH WEIGHT IS EQUAL TO
OR IN EXCESS OF THE CARLOAD MINIMUM WEIGHT PROVIDED THEREIN, REGARDLESS
OF THE NUMBER OF CARS WHICH MAY BE USED TO LOAD SUCH CONSIGNMENT.'
THEREFORE, RULE M-10 REMOVES THE APPLICATION OF RULE 34 OF THE
CLASSIFICATION IN ITS ENTIRETY FROM CONSIDERATION IN COMPUTING THE
CHARGES ON SHIPMENTS SUCH AS THE ONE UNDER CONSIDERATION.
ACCORDINGLY, IT APPEARS THAT YOUR CLAIM WAS PROPERLY DISALLOWED. THE
OVERPAYMENT OF $216.12 SHOULD BE PROMPTLY REFUNDED; OTHERWISE, THIS
AMOUNT WILL BE FOR ADJUSTMENT IN MAKING PAYMENT OF OTHER AMOUNTS DUE
YOU.
B-135343, APR. 11, 1958
TO MRS. ANNA MISHANI:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1957,
SUGGESTING THAT A COLLECTION OF $150 HAD BEEN MADE FROM YOU AS INDICATED
BY A COPY OF AFC FORM 5-445 DATED DECEMBER 12, 1947, WHICH YOU
TRANSMITTED HERE, AND THAT YOU BELIEVE A DUPLICATE COLLECTION THEREOF
WAS MADE ON OUR SETTLEMENT NO. 1796865 DATED DECEMBER 6, 1949, WHICH
ALLOWED THE ARREARS OF PAY DUE IN THE CASE OF
YOUR FORMER HUSBAND TO YOUR DAUGHTER, MRS. EVA MISHANI PETRY (NOW
MRS. CARL J. CRAMER). ALSO, THERE HAS BEEN RECEIVED A LETTER DATED
NOVEMBER 21, 1957, WRITTEN BY MRS. CRAMER IN YOUR BEHALF IN RESPONSE TO
A LETTER DATED NOVEMBER 7, 1957, TO YOU BY THE SETTLEMENTS DIVISION,
FINANCE CENTER, DEPARTMENT OF THE ARMY, INDIANAPOLIS 49, INDIANA.
A REPORT TO US FROM SETTLEMENTS OPERATIONS, FINANCE CENTER, U.S.
ARMY, DATED FEBRUARY 10, 1958, TO WHICH WE HAD REFERRED A COPY OF THE
FORM 5-445 YOU SENT TO US, STATES:
"COMPLETE EXAMINATION OF THE FILE PERTAINING TO JOSEPH H. MISHANI
FAILED TO DISCLOSE COLLECTION IN EXCESS OF $150 FOR THE OVERPAYMENT OF
FAMILY ALLOWANCE. THE COLLECTION ACCOUNT WAS CLOSED ON THE BASIS OF
YOUR LETTER DATED AUGUST 22, 1950 ARMY-Z 163735-PMR.
"A DUPLICATE COPY OF THE FORM AFC 5-445 DOES NOT SHOW THE REMARK
"THIS ACCOUNT IS NOW PAID IN FULL.' "
FAMILY ALLOWANCE RECORDS AVAILABLE TO US INDICATE THAT THE FORM 5-445
UPON WHICH YOU BASE YOUR SURMISE THAT YOU REPAID THE OVERPAYMENT OF
FAMILY ALLOWANCE WAS PREPARED DECEMBER 12, 1947, AS A CANCELLATION OF
DUPLICATE COLLECTION ACCOUNT. ALSO, THOSE RECORDS CONTAIN A LETTER FROM
YOU UNDER DATE OF FEBRUARY 22, 1949, IN WHICH YOU STATE THAT YOU "WILL
SEND THE CHECK AS SOON AS I GET THE MONEY TOGETHER.'
IN LETTER OF NOVEMBER 7, 1957, FROM SETTLEMENTS DIVISION TO YOU
REQUESTED THAT YOU INFORM THEM OF THE MANNER IN WHICH THE OVERPAYMENT OF
$150 WAS LIQUIDATED AS OF DECEMBER 1947, THAT IS, WHETHER PAID BY
MONTHLY PAYMENTS, LUMP SUM PAYMENT, CASH, MONEY ORDER OR CHECK, AND DATE
OF PAYMENT OR PAYMENTS. REPLY WAS MADE BY YOUR DAUGHTER, MRS. CRAMER,
UNDER DATE OF NOVEMBER 21, 1957, WHICH IS SO VAGUE AND INDEFINITE AS TO
BE, AT LEAST, UNCONVINCING THAT ANY PAYMENTS WHATEVER
WERE MADE--- PARTICULARLY IN THE FACE OF THE REPORT OF FEBRUARY 10,
1958, FROM SETTLEMENTS OPERATIONS THAT THE RECORDS OF THE FINANCE
CENTER, U.S. ARMY, FAIL TO SHOW ANY COLLECTIONS FROM YOU AND YOUR LETTER
OF FEBRUARY 22, 1949, STATING THAT YOU WOULD SEND A CHECK IN PAYMENT OF
THIS INDEBTEDNESS. THEREFORE, SINCE IT IS THE UNBROKEN RULE OF THE
ACCOUNTING OFFICERS OF THE GOVERNMENT, IN CASES INVOLVING DISPUTED
QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF
THE GOVERNMENT, TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE
ADMINISTRATIVE OFFICERS IN THE ABSENCE OF EVIDENCE SUFFICIENT TO
OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE RECORDS OF THE
GOVERNMENT (SEE 16 COMP. GEN. 325), WE FIND NO BASIS FOR CONCLUDING THAT
YOU HAVE REFUNDED THE SUM OF $150 OR THAT COLLECTION OF THAT AMOUNT HAS
BEEN MADE BY ANY OTHER MEANS THAN BY SET-OFF IN THE SETTLEMENT DATED
DECEMBER 6, 1949, REFERRED TO ABOVE.
ON THE BASIS OF THE PRESENT RECORD IT HAS NOT BEEN ESTABLISHED THAT
DUPLICATE COLLECTION OF $150 HAS BEEN EFFECTED. ACCORDINGLY, YOUR CLAIM
FOR REFUND MAY NOT BE ALLOWED.
B-135657, APR. 11, 1958
TO HONORABLE LEONARD CARMICHAEL, SECRETARY, SMITHSONIAN INSTITUTION:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1958, REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED
BY CLIFTON D. MAYHEW, INC., 4017 25TH PLACE NORTH, ARLINGTON, VIRGINIA,
TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR
BIDS NO. 58-SI-632 ISSUED MARCH 10, 1958, BY THE SUPPLY DIVISION,
SMITHSONIAN INSTITUTION, FOR SCRAPING, WIRE BRUSHING AND SANDING ROOF
AND SIDE SHEETS OF 15 METAL BUILDINGS AND PAINTING ALL EXTERIOR SURFACES
AT THE NATIONAL AIR MUSEUM STORAGE AREA, 3910 SILVER HILL ROAD, SILVER
HILL, MARYLAND.
IN RESPONSE TO THE INVITATION, CLIFTON D. MAYHEW, INC., SUBMITTED ITS
BID IN THE AMOUNT OF $5,840, THAT BEING THE ONLY BID RECEIVED AT THE
SUPPLY DIVISION BEFORE 11 A.M. MARCH 19, 1958. SUBSEQUENTLY IT WAS
LEARNED THAT A BID FROM WILLIAM DUNBAR COMPANY IN THE AMOUNT OF $17,257
HAD BEEN RECEIVED BY MAIL AT THE SMITHSONIAN INSTITUTION IN SUFFICIENT
TIME TO HAVE BEEN DELIVERED TO THE SUPPLY DIVISION BEFORE 11 A.M. BUT
HAD BEEN DELIVERED TO THE OFFICE OF THE REGISTRAR INSTEAD OF TO THE
SUPPLY DIVISION AS ADDRESSED. THEREFORE, THE DUNBAR COMPANY BID WAS
INCLUDED FOR CONSIDERATION.
BECAUSE OF THE DISPARITY BETWEEN THE LOW BID AND THE OTHER BID
RECEIVED AND THE SMITHSONIAN INSTITUTION'S ESTIMATE (THE AMOUNT OF WHICH
ESTIMATE IS NOT SHOWN IN THE FILE), CLIFTON D. MAYHEW, INC. WAS
REQUESTED TO VERIFY ITS BID. BY ITS LETTER DATED MARCH 20, 1958, IT
ALLEGED ERROR IN ITS BID IN THAT THE BID WAS COMPUTED ON THE BASIS OF 3
CENTS PER SQUARE FOOT, WHICH COVERED ONLY CLEANING, SPOT PRIMING AND THE
FIRST COAT OF ALUMINUM, AND THAT IT FAILED TO INCLUDE IN THE BID THE
PRICE FOR THE SECOND FINISH COAT AT 2 CENTS PER SQUARE FOOT OR A TOTAL
OMISSION OF $3,800. WITH THE LETTER WAS INCLUDED THE BIDDER'S ESTIMATE
SHEET SUBSTANTIATING THE ALLEGATION OF ERROR TO THE EXTENT THAT IT SHOWS
3 CENTS AS THE TOTAL UNIT PRICE USED IN THE COMPUTATION.
IN VIEW OF THE FACTS AS REPORTED AND SHOWN BY THE FLE, IT MAY BE
REGARDED AS SATISFACTORILY ESTABLISHED THAT CLIFTON D. MAYHEW, INC.
MADE A BONA FIDE ERROR IN ITS BID AS ALLEGED AND EXPLAINED BY IT AND
THAT THE INTENDED AMOUNT OF THE BID WAS $9,640. ACCORDINGLY, THE BID
MAY BE CORRECTED AND CONSIDERED IN MAKING AWARD.
B-135728, APR. 11, 1958
TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 3, 1958, REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR KNUTH BROTHERS
ALLEGE THEY MADE IN THEIR BID DATED MARCH 25, 1958.
IT APPEARS THAT ON MARCH 13, 1958, YOUR OFFICE ADVERTISED FOR PRICES
ON THE PRODUCTION OF 21,000 (PLUS OR MINUS TEN PERCENT) SETS OF 7-PART,
SINGLE STUB CARBON INTERLEAVED SNAPOUT STYLE SET, 8 BY 10 1/2 INCHES, TO
BE SHIPPED ON OR BEFORE MAY 2, 1958. IN RESPONSE THERETO KNUTH BROTHERS
SUBMITTED A BID OF $299.67. NINE OTHER BIDS RECEIVED RANGED IN PRICE
FROM $505.05 TO $914.97.
SINCE THE CONTRACTING OFFICER NOTED THAT THE BID OF $299.67 FROM
KNUTH BROTHERS WAS PROBABLY IN ERROR BECAUSE THE BID WAS SO MUCH LOWER
THAN THE NEXT LOW BID OF $505.05, A TELEGRAM WAS FORWARDED TO THEM
REQUESTING THAT THEY REVIEW THE SPECIFICATIONS AND CONFIRM THEIR BID
PRICE ON THIS JOB. ON MARCH 31, 1958, MR. KNUTH TELEPHONED THE
CONTRACTING OFFICER AND ADVISED THAT AN ERROR HAD BEEN MADE IN THEIR BID
TO THE EXTENT THAT HE HAD FAILED TO EXTEND THE PRESS TIME WHICH RESULTED
IN AN INCORRECT PRICE PER THOUSAND SETS. IN A LETTER OF THE SAME DATE
KNUTH BROTHERS CONFIRMED THEIR ERROR AND FORWARDED THEIR ESTIMATE SHEET
WHICH SHOWS THAT THE PRESS CHARGE WAS NOT EXTENDED TO THE TOTAL COLUMN
AND THEREFORE WAS NOT INCLUDED IN THE PRICE PER THOUSAND SETS.
THE CONTRACTING OFFICER HAS REPORTED THAT HE BELIEVES THE PRICE OF
$299.67 AS QUOTED BY THE BIDDER TO BE IN ERROR BECAUSE THE AMOUNT IS NOT
A FAIR AND REASONABLE PRICE TO PAY FOR THE WORK AS DESCRIBED IN THE
SPECIFICATIONS.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
ROOM FOR DOUBT THAT THE BIDDER MADE AN ERROR IN ITS BID. IN VIEW OF THE
FACT THAT THE ERROR IN BID WAS NOTED BY THE CONTRACTING OFFICER UPON
EXAMINATION OF THE BIDS AND THE BIDDER HAS CONFIRMED AND EXPLAINED THE
ERROR TO THE SATISFACTION OF THE CONTRACTING OFFICER, THE BID OF KNUTH
BROTHERS MAY BE DISREGARDED.
THE PAPERS, WITH THE EXCEPTION OF THE LETTER FROM THE BIDDER DATED
MARCH 31, 1958, ARE RETURNED AS REQUESTED.
B-134307, APR. 10, 1958
TO QUERRY, HARROW, GULANICK AND KENNEDY:
WE HAVE YOUR LETTER OF MARCH 27, 1958, RELATIVE TO THE SUBJECT CLAIM,
WITH WHICH YOU ENCLOSED A COPY OF A LETTER FROM YOUR ACCOUNTANT.
THE RECORD TRANSMITTED TO US BY THE ATOMIC ENERGY COMMISSION
INDICATES THAT, DURING THE COURSE OF NEGOTIATIONS ON THIS CLAIM, YOU
HAVE BEEN SUPPLIED WITH COPIES OF THE ORIGINAL CONTRACT, OF MODIFICATION
NO. 6, WHICH COVERED THE 10 REPLACEMENT PANELS, AND OF ALL OTHER
RELEVANT MATERIAL. THE RECORD ALSO SHOWS THAT THE MANAGER OF THE
PORTSMOUTH AREA PROJECT ADVISED YOU, BY LETTERS OF JANUARY 25, 1956, AND
JULY 13, 1956, THAT THE REPLACEMENT COST OF THE DESTROYED PANELS DID NOT
INCLUDE EXPEDITING COSTS OR SPECIAL DAMAGES. ACCORDING TO AN
EXPLANATION FURNISHED TO PETER KIEWIT SONS' COMPANY BY THE MONITOR
CONTROLLER COMPANY, THE PRICE QUOTED FOR REPLACEMENT OF THE 10 PANELS,
$35,288, WAS BASED UPON KNOWN, NOT ESTIMATED, COSTS. THE INCREASE CAME
ABOUT BECAUSE THERE HAD BEEN SEVERAL SUBSTANTIAL INCREASES IN THE COST
OF THE RAW MATERIAL SINCE MANUFACTURE OF THE 190 PANELS CALLED FOR IN
THE SUBCONTRACT, LABOR COSTS WERE HIGHER DUE TO CONCESSIONS MADE UPON
RENEWAL OF THE LABOR CONTRACT, AND APPORTIONMENT OF THE PUNCH, DIE, AND
BRAKE SET-UP TIME AMOUNT 10, RATHER THAN 190, PANELS INCREASED THE UNIT
COST OF SHOP FABRICATION. THE COST SUMMARY PER UNIT WAS GIVEN AS
FOLLOWS:
CHART
MATERIALS $2,040.34
DIRECT LABOR 304.46
OVERHEAD 426.24
---------
TOTAL $2,779.04
GAA COMMISSION AND PROFIT 25 PERCENT 749.76
---------
TOTAL $3,528.79 (SIC)
ACCORDINGLY, AS WE ADVISED YOU IN OUR LETTER OF FEBRUARY 14, 1958,
THE RECORD AND THE LAW GOVERNING THE CASE REQUIRE THAT WE CONTINUE TO
ASSERT LIABILITY IN THE AMOUNT OF THE REPLACEMENT COST TO THE
GOVERNMENT. UNLESS THAT AMOUNT, $35,288, IS RECEIVED HERE PRIOR TO MAY
1, 1958, THE MATTER WILL BE REFERRED TO THE ATTORNEY GENERAL OF THE
UNITED STATES FOR APPROPRIATE ACTION.
B-134884, APR. 10, 1958
TO MR. ALFRED C. BOWEN:
REFERENCE IS MADE TO THE CLAIM OF THE UNITED STATES AGAINST YOU IN
THE AMOUNT OF $518.40 ON ACCOUNT OF SUBSISTENCE PAYMENTS THAT YOU
RECEIVED WHILE TRAINING UNDER CONTRACT IN THE RESERVE OFFICERS' TRAINING
CORPS AT TULANE UNIVERSITY, NEW ORLEANS, LOUISIANA, THE MATTER HAVING
BEEN REPORTED TO US BY THE DEPARTMENT OF THE ARMY FOR APPROPRIATE
ACTION.
UNDER DATE OF FEBRUARY 6, 1958, A REPORT CONCERNING THE CLAIM AGAINST
YOU WAS FURNISHED THE HONORABLE CHARLES E. BENNETT, HOUSE OF
REPRESENTATIVES, IN WHICH WE CONCLUDED, ON THE BASIS OF THE RECORD THEN
BEFORE US, THAT WE HAD NO ALTERNATIVE BUT TO CONTINUE COLLECTION
PROCEEDINGS. MR. BENNETT HAS REQUESTED THAT THE MATTER BE RECONSIDERED
IN VIEW OF ALLEGATIONS AND INFORMATION SET FORTH IN LETTERS TO HIM FROM
YOUR FATHER, MR. J. D. BOWEN.
THE RECORD FURNISHED US BY THE DEPARTMENT OF THE ARMY SHOWED THAT,
HAVING COMPLETED TWO ACADEMIC YEARS AS A MEMBER OF THE ROTC AND HAVING
BEEN SELECTED FOR ADVANCED TRAINING, YOU WERE ADMITTED TO THE ADVANCED
COURSE OF THE SENIOR DIVISION AT TULANE UNIVERSITY IN SEPTEMBER 1953.
FOR THE PERIOD FROM SEPTEMBER 17, 1953, TO MAY 31, 1955, YOU RECEIVED
SUBSISTENCE ALLOWANCE PAYMENTS TOTALING $518.40.
A COPY OF THE CONTRACT WHICH YOU SIGNED UPON ENTERING THE ADVANCED
COURSE WAS NOT FURNISHED BUT THE FILE DISCLOSED THAT BY LETTER DATED
AUGUST 24, 1956, TO THE PROFESSOR OF MILITARY SCIENCE AND TACTICS AT
TULANE UNIVERSITY YOU REQUESTED TO BE RELEASED FROM YOUR OBLIGATION TO
ACCEPT A COMMISSION AS A SECOND LIEUTENANT IN THE TRANSPORTATION CORPS
OF THE ARMY RESERVE INCIDENT TO YOUR PARTICIPATION IN THE ROTC PROGRAM
AT THAT UNIVERSITY. AMONG THE REASONS GIVEN FOR SUCH REQUEST WERE THAT
YOU WERE ENTERING MIAMI UNIVERSITY IN SEPTEMBER 1956, AND THAT YOU DID
NOT RECEIVE A DEGREE AT TULANE NOR ACCUMULATE THE 120 CREDITS REQUIRED
FOR A COMMISSION IN THE ARMY RESERVE AS A SECOND LIEUTENANT. IN REPLY,
YOU WERE NOTIFIED THAT UNDER APPLICABLE ARMY REGULATIONS YOU WOULD BE
REQUIRED TO REIMBURSE THE GOVERNMENT THE SUM OF $518.40 PAID TO YOU AS
COMMUTATION OF SUBSISTENCE BEFORE YOU COULD BE RELEASED FROM YOUR
CONTRACT. AFTER FURTHER CONSIDERING YOU REQUEST IT WAS DETERMINED BY
THE DEPARTMENT OF THE ARMY THAT YOU WOULD BE REQUIRED TO FULFILL THE
PROVISION OF YOUR CONTRACT OR SUBMIT A REQUEST FOR DISCHARGE THEREFROM
FOR YOUR OWN CONVENIENCE AND REFUND THE AMOUNT RECEIVED AS COMMUTATION
OF SUBSISTENCE. IT APPEARS THAT SUBSEQUENTLY YOU WERE DISCHARGED FOR
YOUR OWN CONVENIENCE.
WHILE REPRESENTATION WERE MADE THAT YOU SHOULD NOT BE REQUIRED TO
REFUND THE AMOUNT INVOLVED IN VIEW OF A CHANGE DATED OCTOBER 1, 1957, IN
AR 145-350 TO THE EFFECT THAT REFUND OF SUBSISTENCE ALLOWANCE PAID TO
THE STUDENT WHILE UNDER CONTRACT WILL NO LONGER BE REQUIRED IF HE IS
DISCHARGED FROM THE CONTRACT, WE CONCLUDED THAT THE REGULATION MAY NOT
BE GIVEN A RETROACTIVE EFFECT.
IT MAY BE STATED THAT AFTER OBTAINING A REPORT DATED MARCH 26, 1958,
FROM TULANE UNIVERSITY REGARDING THE DISPOSITION OF YOUR ROTC CONTRACT
THE CONTRACT NOW HAS BEEN OBTAINED FOR EXAMINATION. IT PROVIDES, IN
PERTINENT PART, AS FOLLOWS:
"IN CONSIDERATION OF COMMUTATION OF SUBSISTENCE TO BE FURNISHED IN
ACCORDANCE WITH LAW, WE HEREBY AGREE TO COMPLETE ADVANCED COURSE
TRANSPORTATION CORPS IN THE RESERVE OFFICERS' TRAINING CORPS IN THIS
INSTITUTION, TO DEVOTE 5 HOURS PER WEEK DURING SUCH PERIOD TO THE
MILITARY TRAINING PRESCRIBED, AND TO PURSUE THE COURSES OF CAMP TRAINING
DURING SUCH PERIOD AS PRESCRIBED BY THE SECRETARY OF THE ARMY OR
SECRETARY OF THE AIR FORCE.'
THE FOREGOING PROVISIONS ARE AS PRESCRIBED IN PARAGRAPH 23, AR
145-350, DATED OCTOBER 31, 1952, IN EFFECT WHEN YOU SIGNED THE CONTRACT.
THE ROTC ADVANCED COURSE WHICH YOU AGREED TO COMPLETE COVERED TWO
ACADEMIC YEARS AND INCLUDED ONE PERIOD OF SUMMER CAMP TRAINING. IT
APPEARS THAT WHILE ATTENDING TULANE UNIVERSITY, YOU COMPLETED SUCH
COURSE.
ON NOVEMBER 15, 1954, THE PERTINENT ARMY REGULATIONS WERE CHANGED TO
PRESCRIBE A NEW FORM OF ADVANCED COURSE CONTRACT FOR STUDENTS ENTERING
SUCH COURSE ON AND AFTER THAT DATE. IN ADDITION TO
THE OBLIGATIONS IMPOSED IN YOUR CONTRACT AS CONSIDERATION FOR THE
SUBSISTENCE PAYMENTS, THE NEW CONTRACT OBLIGATED THE STUDENT TO ACCEPT
AN APPOINTMENT AS A RESERVE OR REGULAR OFFICER OF THE ARMY, IF SUCH
APPOINTMENT WAS TENDERED, AND TO SERVE ON ACTIVE DUTY FOR A PERIOD OF
NOT LESS THAN TWO YEARS IF COMMISSIONED UNLESS SOONER RELEASED. IT DOES
NOT APPEAR, HOWEVER, THAT YOU WERE REQUIRED TO EXECUTE SUCH A
REGULATION, BY ITS OWN TERMS, WAS NOT APPLICABLE TO YOU AS A MEMBER OF
THE ROTC UNDERGOING TRAINING IN THE ADVANCED COURSE. HENCE, ON THE
BASIS OF THE RECORD NOW BEFORE US, IT IS CONCLUDED THAT YOU ARE NOT
OBLIGATED TO REFUND THE SUBSISTENCE PAYMENTS THAT YOU RECEIVED.
ACCORDINGLY, THE DEBT CHARGE AGAINST YOU FOR SUCH PAYMENTS WILL BE
CANCELED.
B-135062, APR. 10, 1958
TO MR. MICHAEL J. SENDLBECK:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1958, FURTHER
CONCERNING YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE THE
ESTATE OF YOUR LATE SON, RICHARD M. SENDLBECK, WHO DIED APRIL 24, 1944,
WHILE SERVING AS AN ENLISTED MAN IN THE ARMY.
YOU WERE ALLOWED ONE-HALF OF THE ARREARS OF PAY BY SETTLEMENT DATED
OCTOBER 7, 1944, OF OUR CLAIMS DIVISION, AND THE BALANCE (APPROXIMATELY
$55.38) WAS RESERVED FOR THE DECEDENT'S MOTHER AS EXPLAINED TO YOU IN
THE SETTLEMENT AND IN OUR DECISION OF MARCH 19, 1958, B-135062, TO YOU.
YOU WERE ALSO ADVISED IN THAT DECISION WHY THE AMOUNT RESERVED FOR THE
MOTHER COULD NOT BE ALLOWED TO THE DECEDENT'S GRANDMOTHER AND FURTHER,
THAT SINCE THE MOTHER HAD NOT FILED CLAIM, ANY CLAIM BY HER COULD NOT BE
ALLOWED IN VIEW OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54
STAT. 1061, BARRING ANY CLAIM AGAINST THE UNITED STATES NOT RECEIVED IN
OUR OFFICE WITHIN 10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED. IN YOUR
LETTER OF MARCH 26, 1958, YOU URGE, IN EFFECT, THAT THE AMOUNT RESERVED
BE PAID TO YOU, SAYING THAT THE DECEDENT'S MOTHER, HAVING BEEN ABSENT
FOR 18 YEARS, SHOULD BE CONSIDERED DEAD.
WITH RESPECT TO A PRESUMPTION THAT THE MOTHER IS DEAD, IT IS HELD,
GENERALLY, THAT WHEN A PERSON APPEARS TO HAVE BEEN LIVING AT A CERTAIN
TIME, THERE IS A PRESUMPTION, IN THE ABSENCE OF PROOF TO THE CONTRARY,
THAT SUCH PERSON IS STILL ALIVE UNTIL THE PRESUMPTION IS OVERCOME BY THE
MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V. WILDCAT, 244 U.S.
111; WHITE V. METROPOLITAN LIFE INS. CO., 100 P.2D 691. ALSO, A MORE
UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH, BUTLER V.
MUTUAL LIFE INS. CO. OF NEW YORK, 225 N.Y. 197, 121 N.E. 758; AND THE
EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO COMMUNICATE
USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM ARISING. RE
TALBOT, 250 MASS. 517, 146 N.E. 1; AND NOTE, 64 A.L.R. 1288.
CONSEQUENTLY, IN CASES OF THIS NATURE ARISING UNDER THE FEDERAL
STATUTES, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES
THAT WE PROCEED ON THE BASIS THAT THE MOTHER IS OR MAY BE ALIVE.
ACCORDINGLY, WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, WE
TRUST THAT YOU WILL UNDERSTAND THAT THERE IS NO LEGAL BASIS UPON WHICH
THE BALANCE DUE THE ESTATE OF YOUR LATE SON MAY BE ALLOWED TO YOU.
B-135379, APR. 10, 1958
TO THE CINCINNATI GALVANIZING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, WITH
ENCLOSURE, PROTESTING THE PROCUREMENT BY THE FEDERAL SUPPLY SERVICE,
GENERAL SERVICES ADMINISTRATION, OF A QUANTITY OF SQUARE METAL WASTE
BASKETS.
IN REGISTERING YOUR PROTEST YOU STATE THAT THE FORT WORTH REGIONAL
OFFICE, FEDERAL SUPPLY SERVICE, PLACED A CONTRACT FOR 3,480 SQUARE METAL
BASKETS, AFTER TELEGRAPHIC REQUESTS FOR BIDS IN RESPONSE TO WHICH YOU
SUBMITTED SAMPLES AND PRICES ON ROUND METAL BASKETS WHICH WERE $2,296.80
LESS THAN THE PRICE AT WHICH THE SQUARE BASKETS WERE PURCHASED; AND
THAT YOU HAVE BEEN FURNISHING ROUND METAL BASKETS TO THE FEDERAL SUPPLY
SERVICE WHICH YOU FEEL MEET THE NEEDS OF THE SERVICE. YOU STATE FURTHER
THAT YOU ARE IN RECEIPT OF A TELEGRAM FROM THE SAN FRANCISCO REGIONAL
OFFICE, FEDERAL SUPPLY SERVICE, REQUESTING BIDS ON A QUANTITY OF SQUARE
METAL WASTE BASKETS. BASICALLY, YOUR PROTEST IS DIRECTED TO THE FORT
WORTH PROCUREMENT WHICH YOU CONTEND COULD HAVE BEEN MADE AT A SAVING OF
$2,296.80 HAD ROUND BASKETS BEEN PURCHASED.
IN A REPORT FURNISHED US BY THE COMMISSIONER, FEDERAL SUPPLY SERVICE,
IT IS STATED THAT BOTH SQUARE AND ROUND METAL WASTE BASKETS ARE CARRIED
IN FEDERAL SUPPLY SERVICE STORES STOCK, THE CATALOG PRICES BEING $2.06
AND ?92 EACH, RESPECTIVELY. THE SQUARE BASKETS ARE PURCHASED FROM THE
FEDERAL PRISON INDUSTRIES, INCORPORATED (FPI), AND THE ROUND BASKETS IN
THE OPEN MARKET.
IT IS REPORTED THAT WHEN FPI RECENTLY BECAME UNABLE TO MEET THE NEEDS
OF THE FEDERAL SUPPLY SERVICE FOR SQUARE BASKETS IT GRANTED A CLEARANCE
WHICH HAS BEEN USED BY SEVERAL REGIONAL OFFICES INCLUDING THE FORT WORTH
REGIONAL OFFICE IN MAKING OPEN MARKET PROCUREMENTS. YOUR BID ON THE
FORT WORTH PROCUREMENT WAS REJECTED AS BEING NONRESPONSIVE BECAUSE YOU
FURNISHED A SAMPLE OF AND QUOTED A PRICE ON A ROUND BASKET. IN THE
CIRCUMSTANCES, WE FEEL THAT THE REJECTION OF YOUR BID WAS CORRECT AND
PROPER.
THE NEEDS OF THE GOVERNMENT AND THE DRAFTING OF SPECIFICATIONS
SETTING FORTH THOSE NEEDS ARE NECESSARILY FOR DETERMINATION IN THE FIRST
INSTANCE BY THE ADMINISTRATIVE PURCHASING AGENCIES. IT IS NOT WITHIN
THE PROVINCE OF OUR OFFICE TO DECIDE WHAT THE NEEDS OF A PARTICULAR
AGENCY MAY BE OR TO DRAFT THE APPLICABLE SPECIFICATIONS FOR THOSE NEEDS.
THE FEDERAL SUPPLY SERVICE IS CHARGED BY LAW WITH THE DETERMINATION
OF SUPPLY REQUIREMENTS; THE DEVELOPMENT FOR THE FEDERAL SERVICE OF
STANDARD PURCHASE SPECIFICATIONS FOR ITEMS OF COMMON USE; THE
STANDARDIZATION OF COMMODITIES PURCHASED; AND THE CATALOGING OF ITEMS
OF SUPPLY PROCURED BY THE GENERAL SERVICES ADMINISTRATION FOR THE USE OF
THE EXECUTIVE AGENCIES GENERALLY. PURSUANT TO SUCH AUTHORITY, IT HAS
ISSUED FEDERAL STANDARD NO. 32B, DATED FEBRUARY 10, 1958, WHICH LIMITS
GOVERNMENT PROCUREMENT OF WASTE BASKETS TO THE ITEMS LISTED THEREIN.
BOTH ROUND AND SQUARE BASKETS ARE LISTED FOR OFFICE USE, AND WE ARE
ADVISED THAT, AS BETWEEN THE TWO, THE SQUARE BASKETS ARE OF A HEAVIER,
MORE SOLID CONSTRUCTION AND ARE PREFERRED BY MANY GOVERNMENT AGENCIES
BECAUSE OF THEIR DURABLE QUALITIES. IN THIS REGARD, WE HAVE HELD THAT
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.
36 COMP. GEN. 251, 252.
THERE IS NOTHING IN THE RECORD TO INDICATE ANY ABUSE OF DISCRETION ON
THE PART OF THE FEDERAL SUPPLY SERVICE IN THE PRESENT MATTER OR THAT
THEY WERE MOTIVATED BY ANY DESIRE OTHER THAN TO OBTAIN FOR THE
GOVERNMENT SUPPLIES WHICH WILL BEST SUIT ITS NEEDS, ALL FACTS
CONSIDERED. WHETHER THE SELECTION OF ONE TYPE OF BASKET OVER ANOTHER
WILL BEST SERVE THE GOVERNMENT'S INTEREST IS NOT A MATTER FOR OUR
DETERMINATION, BUT WITH RESPECT TO THE LEGALITY OF SUCH ACTION THERE CAN
BE NO DOUBT. IN THIS CONNECTION, THE COMMISSIONER, FEDERAL SUPPLY
SERVICE, STATES THAT THE FEDERAL STANDARD IS BEING RECONSIDERED AND
THEIR STORES STOCK ITEMS ON WASTE BASKETS WILL BE REVISED TO REFLECT ANY
CHANGE WHICH MAY BE MADE. IT IS EMPHASIZED, HOWEVER, THAT DELETION OF
THE SQUARE BASKET FROM THE STANDARD WOULD MAKE OBSOLETE THE
MANUFACTURING EQUIPMENT OF FPI AND NECESSITATE PROCUREMENT OF NEW
EQUIPMENT TO MANUFACTURE THE ROUND BASKETS HERETOFORE NOT MANUFACTURED
BY THAT AGENCY.
WE ARE NOT ADVISED AS TO WHETHER THE AGENCIES WHOSE ORDERS FOR THE
SQUARE BASKETS BROUGHT ABOUT THE EMERGENCY PROCUREMENT IN QUESTION WERE
ADVISED OF THE EXHAUSTION OF THE STORE STOCK, OR WHETHER ANY SUGGESTION
WAS MADE TO THEM BY THE REGIONAL SUPPLY OFFICES THAT THEY CONSIDER THE
USE OF THE ROUND BASKETS. IT IS REPORTED, HOWEVER, THAT THE PROCUREMENT
INITIATED BY THE SAN FRANCISCO OFFICE HAS BEEN CANCELED.
IN THE LIGHT OF THE FOREGOING, IT MUST BE CONCLUDED THAT YOUR PROTEST
FURNISHES NO PROPER BASIS
B-135463, APR. 10, 1958
TO LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING
ADMINISTRATION:
YOUR LETTER OF MARCH 7, 1958, WITH ENCLOSURES, REQUESTS OUR DECISION
WHETHER YOU MAY CERTIFY FOR PAYMENT, AFTER ADJUSTMENT OF THE AMOUNT, THE
VOUCHER FOR $1,555.60, WHICH ACCOMPANIED YOUR LETTER, IN FAVOR OF LEE O.
ROSTENBERG, P.O. BOX 1182, HOT SPRINGS, ARKANSAS. THE VOUCHER WAS
PREPARED IN CONNECTION WITH A CLAIM FILED BY MR. ROSTENBERG FOR THE
COST OF NEW GAS RANGES, SHADES, AND BLINDS, PLUS FREIGHT, HANDLING, AND
INSTALLATION CHARGES, INCURRED BY THE CLAIMANT IN THE REPLACEMENT OF
THOSE EQUIPMENT ITEMS MISSING FROM THE PROPERTIES IDENTIFIED AS EUGENIA
AND COOSA GARDENS APARTMENTS, LOCATED IN SYLACAUGA, ALABAMA, WHICH WERE
ACQUIRED BY PURCHASE FROM YOUR
ADMINISTRATION UNDER BILL OF SALE DATED APRIL 11, 1957.
THE RECORD DISCLOSES THAT AN INVITATION FOR BIDS WAS CIRCULATED,
SEEKING OFFERS TO PURCHASE THE PROPERTIES UNDER THE TERMS AND CONDITIONS
THEREIN STIPULATED. THE INVITATION PROVIDED, SO FAR AS IS PERTINENT TO
THE INSTANT CLAIM, THAT THE CONVEYANCE OF THE PROPERTY WILL INCLUDE ALL
OF THE PERSONAL PROPERTY AND SUPPLIES OWNED BY THE SELLER AND LOCATED ON
THE PREMISES, AND THAT "THE PURCHASER WILL BE EXPECTED TO ACCEPT THE
PROPERTY IN ITS PRESENT CONDITION WITHOUT WARRANTY BY FHA AS TO PHYSICAL
CONDITION.'
THE CONTRACT OF SALE AND PURCHASE DATED NOVEMBER 17, 1956, PROVIDED
THAT--- "UNDER THE TERMS AND CONDITIONS HEREINAFTER SET OUT, THE SELLER
AGREES TO SELL AND THE PURCHASER AGREES TO URCHASE" THE TWO PROJECTS
APPROPRIATELY DESCRIBED,"TOGETHER WITH THE APPURTENANCES, INCLUDING ALL
ARTICLES OF PERSONAL PROPERTY AND SUPPLIES OWNED BY THE COMMISSIONER AND
USED IN CONNECTION WITH THE OPERATION OF THE PROPERTY WHICH SHALL BE
LOCATED ON THE PREMISES AT THE TIME OF CLOSING.' THAT INSTRUMENT ALSO
STIPULATED THAT--- "NO REPRESENTATIONS ARE MADE BY THE SELLER AS TO THE
PHYSICAL CONDITION OF THE PROPERTY TO BE CONVEYED AND THE PURCHASER
AGREES TO ACCEPT THE SAME IN ITS PRESENT CONDITION * * *.'
THEREAFTER, A BILL OF SALE WAS EXECUTED UNDER DATE OF APRIL 11, 1957,
IN FAVOR OF THE CLAIMANT'S CONCERN, SYLACAUGA PROPERTIES, INCORPORATED,
CONCERNING THE SALE AND TRANSFER OF TITLE OF "THE GOODS AND CHATTELS
DESCRIBED IN SCHEDULE "A" ATTACHED AND MADE A PART HEREOF LOCATED UPON
THE PROPERTY DESCRIBED IN A CERTAIN DEED OF CONVEYANCE OF EVEN DATE
HEREWITH FROM GRANTOR HEREIN TO GRANTEE HEREIN.' THE REFERRED-TO EXHIBIT
A IS A DESCRIPTIVE INVENTORY OF THE VARIOUS ITEMS OF EQUIPMENT CONTAINED
IN, OR MISSING FROM, EACH OF THE UNITS IN THE APARTMENTS, AND DISCLOSES
THAT ON DATE OF ITS PREPARATION 12 STOVES, 1 VENETIAN BLIND, AND 13
WINDOW SHADES HAD BEEN REMOVED FROM THE PREMISES.
CLAIM IS MADE IN PART FOR THE COST OF 14 STOVES, 2 VENETIAN BLINDS,
AND 18 WINDOW SHADES, WHICH INCLUDE THE ABOVE ITEMS PREVIOUSLY LISTED AS
MISSING IN THE INVENTORY MADE A PART OF THE BILL OF SALE. IT IS THE
CLAIMANT'S CONTENTION THAT IT HAD THE RIGHT TO RELY ON THE DESCRIPTION
OF THE PROPERTIES AS SET FORTH IN THE INVITATION WHICH INDICATED THAT
THE APARTMENT UNITS WERE EQUIPPED WITH, AMONG OTHER ITEMS, A RANGE AND
VENETIAN BLINDS OR WINDOW SHADES, AND THAT A COPY OF THE ABOVE INVENTORY
WAS NOT MADE AVAILABLE TO IT UNTIL AFTER THE SALE WAS MADE.
BY THE SUBSEQUENT EXECUTION OF THE BILL OF SALE DATED APRIL 11, 1957,
THE GOVERNMENT EXPRESSLY AGREED TO CONVEY TO THE PURCHASER THE GOODS AND
CHATTELS ITEMIZED IN THE INVENTORY LIST MADE A PART OF THE INSTRUMENT,
AND APPEARS THEREBY TO HAVE ASSUMED RESPONSIBILITY FOR ANY EQUIPMENT
LISTED THEREIN WHICH WAS DETERMINED TO BE MISSING ON THE DATE TITLE
PASSED. WE CONCUR WITH THE INITIAL OPINION REPORTED TO HAVE BEEN
EXPRESSED BY YOUR LEGAL DIVISION THAT THE CLAIMANT SHOULD BE REIMBURSED
FOR THE FAIR AND REASONABLE VALUE OF 2 STOVES, 1 VENETIAN BLIND, AND 5
WINDOW SHADES, TOGETHER WITH ANY NECESSARY AND DIRECT COSTS INCURRED IN
REPLACING THE MISSING EQUIPMENT.
ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED WITH THE ACCOMPANYING
ATTACHMENTS, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT, IN AN
AMOUNT ADMINISTRATIVELY DETERMINED TO BE REASONABLE AND CONSISTENT WITH
THE GOVERNMENT'S LIMITED LIABILITY AS ABOVE SET FORTH.
B-135482, APR. 10, 1958
TO THE NATIONAL THEATRE SUPPLY COMPANY:
THERE HAS BEEN FORWARDED TO OUR OFFICE FOR APPROPRIATE ACTION YOUR
LETTER DATED FEBRUARY 20, 1958, TO THE FINANCE AND ACCOUNTING OFFICER,
DEPARTMENT OF THE ARMY, WHEREIN YOU REQUEST RECONSIDERATION OF OUR
SETTLEMENT DATED JANUARY 14, 1958, WHICH DISALLOWED $130 OF YOUR TOTAL
CLAIM FOR $150.24 UNDER DEPARTMENT OF THE ARMY PURCHASE ORDER NO.
10437-PHILA-54-43/31), DATED JUNE 29, 1954.
IT APPEARS THAT IN ACCORDANCE WITH THE REQUIREMENTS OF THE ABOVE
PURCHASE ORDER YOU DELIVERED, ON OCTOBER 7, 1954, TO THE NEW SIGNAL
LABORATORIES, FORT MONMOUTH, NEW JERSEY, CERTAIN MOTION PICTURE
PROJECTION EQUIPMENT, INCLUDING A SPECIFIC TYPE OF 3 3/4 INCH LENS.
UPON INSTALLATION IT WAS FOUND THAT THE LENS WAS NOT SATISFACTORY AND
THAT IT WOULD BE NECESSARY TO EXCHANGE IT FOR A 4 1/4 INCH SIZE. IT IS
REPORTED THAT SOME TIME LATER THE 3 3/4 INCH LENS WAS REMOVED FROM THE
PROJECTION EQUIPMENT AND A NEW 4 1/4 INCH LENS INSTALLED. THE 3 3/4
INCH LENS WAS TO BE RETURNED TO YOU AND CREDITED AGAINST THE MORE
EXPENSIVE 4 1/4 INCH LENS. IT APPEARS THAT YOUR CLAIM RESULTED BY
REASON OF THE FACT THAT IN MAKING SETTLEMENT FOR THE SUBSTITUTED 4 1/4
INCH LENS THE DEPARTMENT OF THE ARMY HAS TAKEN CREDIT FOR THE 3 3/4 INCH
LENS, WHICH YOU ALLEGE WAS NEVER RETURNED TO YOU.
IT SEEMS FROM YOUR LETTER OF FEBRUARY 20, 1958, THAT WHILE YOU TAKE
EXCEPTION TO CERTAIN FACTS--- NONE OF WHICH APPEAR TO BE PARTICULARLY
PERTINENT--- THAT WERE SET FORTH IN OUR SETTLEMENT OF JANUARY 14, 1958,
AS NOT REFLECTING ACCURATE STATEMENTS OF THE CIRCUMSTANCES THAT ATTENDED
THIS MATTER, YET YOUR REQUEST FOR RECONSIDERATION IS BASED PRIMARILY ON
YOUR CONTENTION THAT SINCE THE DEPARTMENT OF THE ARMY HAS FAILED
COMPLETELY TO SUPPORT ITS ACTION WITH FACTS AND SINCE EVERY STATEMENT
MADE BY YOU IS SUBSTANTIATED BY FACTUAL RECORDS, OUR OFFICE SHOULD NOT
IMPROPERLY AND ARBITRARILY CLOSE THE RECORDS ON THIS CLAIM.
INSOFAR AS DEFINITE PROOF OF THE POSITIONS TAKEN IN THIS MATTER BY
BOTH YOU AND THE DEPARTMENT OF THE ARMY IS CONCERNED, THE RECORD BEFORE
OUR OFFICE FAILS TO DISCLOSE, IN ANY FORM, EVIDENCE IN SUPPORT OF THE
STATEMENTS MADE IN THE CASE. THE RECORD CONTAINS NOTHING BUT MERE
UNSUPPORTED STATEMENTS THROUGHOUT, WHEREIN IT IS YOUR CONTENTION THAT
THE 3 3/4 INCH LENS WAS NEVER RETURNED TO YOU BY THE DEPARTMENT OF THE
ARMY AND THAT DEPARTMENT COUNTERING WITH THE STATEMENT THAT WHILE A
SEARCH OF ITS FILES HAS FAILED TO PRODUCE, AT THIS LATE DATE, A RECEIPT
FOR THE 3 3/4 INCH LENS WHICH WAS RETURNED, TWO EMPLOYEES OF THE
DEPARTMENT OF THE ARMY CAN ATTEST NOT ONLY TO THE FACT THAT THE LENS WAS
DELIVERED, EITHER TO A MR. W. H. COMPTON, WHO YOU STATE WAS YOUR
SUBCONTRACTOR'S ENGINEER ON THE SOUND EQUIPMENT, OR TO YOUR OWN
ENGINEER, A MR. W. G. NAFASH, BUT THEY ALSO CAN ATTEST THAT A RECEIPT
FOR THE RETURNED 3 3/4 INCH LENS WAS IN FACT GIVEN TO AN EMPLOYEE OF THE
DEPARTMENT OF THE ARMY, HENCE, THERE CLEARLY IS A DIRECT CONFLICT ON
WHAT APPEARS TO BE THE SOLE ISSUE IN THE CASE AND WHEN THERE IS A
COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE STATED BY A CLAIMANT THERE CAN ONLY BE REITERATED HERE THE
PRINCIPLE, AS SET FORTH IN OUR SETTLEMENT ON JANUARY 14, 1958, THAT THE
FACTS AS ADMINISTRATIVELY REPORTED MUST, UNDER SUCH CIRCUMSTANCES, BUT
ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN
THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE CORRECTNESS OF SUCH
REPORTED FACTS.
THEREFORE, IT IS CLEAR THAT THIS MATTER RESOLVES ITSELF INTO A
QUESTION OF A VERY DOUBTFUL NATURE. THIS BEING THE CASE, THERE APPEARS
FOR APPLICATION THE PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED
STATES, 17 C.CLS. 288, 291 AND CHARLES V. UNITED STATES, 19 C.CLS. 316,
319, TO THE EFFECT THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE
VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, IT HAS BEEN THE ESTABLISHED
RULE THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT
CERTIFY SUCH A CLAIM FOR PAYMENT.
B-135698, APR. 10, 1958
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1958, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
THE U.S. TAG AND TICKET COMPANY ALLEGES IT MADE IN ITS BID DATED MARCH
11, 1958.
IT APPEARS THAT ON MARCH 10, 1958, YOUR OFFICE ADVERTISED FOR PRICES
ON THE PRODUCTION OF 122,000 TAGS, DESCRIBED AS TYPE A, NO. 6, WHITE NO.
2 CLOTH TAG, REINFORCED HOLE WITH METAL EYELET, CLIPPED CORNERS WITH NO
STRINGS, SIZE, 5 1/4 BY 2 5/8 INCHES, FOR SHIPMENT ON OR BEFORE MAY 9,
1958. IN RESPONSE THERETO THE U.S. TAG AND TICKET COMPANY SUBMITTED A
BID OF $658.80. TEN OTHER BIDS RECEIVED RANGED IN PRICE FROM $1,163.88
TO $1,695.80.
YOU STATE THAT WHEN THE BIDS WERE EXAMINED BY THE CONTRACTING
OFFICER, HE NOTED THAT THE BID OF $658.80 FROM THE COMPANY WAS PROBABLY
AN ERROR BECAUSE THE BID WAS SO MUCH LOWER THAN THE NEXT LOW BID OF
$1,163.88.
YOU FURTHER STATE THAT ON MARCH 26, 1958, A TELEGRAM WAS FORWARDED TO
THE COMPANY REQUESTING THEM TO REVIEW THE SPECIFICATION AND TO CONFIRM
THEIR BID PRICE ON THIS JOB; THAT THE COMPANY REPLIED BY TELEPHONE ON
THE SAME DAY AND REPORTED THAT THEIR QUOTATION SHOULD HAVE BEEN $12.40
PER THOUSAND INSTEAD OF $5.40 PER THOUSAND; AND THAT THE COMPANY
EXPLAINED THE ONLY REASON THEY COULD GIVE FOR THE ERROR IS THAT, WHEN
TYPING THE QUOTATION FORM THE BARE STOCK COST OF $5.40 PER THOUSAND WAS
PICKED UP INSTEAD OF THE TOTAL COST OF $12.40 PER THOUSAND. IN A LETTER
DATED MARCH 26, 1958, THE COMPANY CONFIRMED THE ERROR IN ITS BID AND
FORWARDED THEIR ESTIMATE SHEETS WHICH SHOW THAT THE QUOTED RATE OF $5.40
APPLIES ONLY TO THE COST OF THE STOCK AND THAT THE TOTAL COST OF THE
TAGS INCLUDING THE STOCK SHOULD BE $12.40 PER THOUSAND.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
ROOM FOR DOUBT THAT THE COMPANY MADE AN ERROR IN ITS BID. IN VIEW OF
THE FACT THAT THE ERROR IN BID WAS NOTED BY THE CONTRACTING OFFICER UPON
EXAMINATION OF THE BIDS AND THE COMPANY HAS CONFIRMED AND EXPLAINED THE
ERROR TO THE SATISFACTION OF THE CONTRACTING OFFICER, THE BID OF THE
U.S. TAG AND TICKET COMPANY MAY BE DISREGARDED.
THE PAPERS, WITH THE EXCEPTION OF THE LETTER FROM THE COMPANY DATED
MARCH 26, 1958, ARE RETURNED AS REQUESTED.
A-7621, A-8258, APR. 9, 1958
TO THE SECRETARY OF DEFENSE:
THERE HAS BEEN RECEIVED MEMORANDUM DATED DECEMBER 11, 1957, FROM THE
DEPUTY COMPTROLLER FOR ACCOUNTING, FINANCE AND AUDIT POLICY, REQUESTING
WHETHER OUR OFFICE WOULD BE REQUIRED TO OBJECT TO THE CURRENT AIR
NATIONAL GUARD CHECK DELIVERY PROCEDURES.
IT IS STATED IN THE MEMORANDUM AND ATTACHMENTS THAT SINCE JUNE 1956,
THE AIR NATIONAL GUARD HAS BEEN DELIVERING CHECKS TO THEIR MEMBERS
THROUGH UNIT COMMANDERS WHO HAVE BEEN OFFICIALLY DESIGNATED AS CLASS A
AGENT FINANCE OFFICERS TO CONTINENTAL AIR COMMAND AREA FINANCE OFFICES.
IT IS FURTHER STATED THAT UNDER THE NEW SYSTEM FOR PAYMENT OF CIVILIAN
COMPONENTS OF THE AIR FORCE, APPROVED BY THIS OFFICE ON SEPTEMBER 10,
1954, B-61938, AIR NATIONAL GUARD ATTENDANCE IS VERIFIED AND CERTIFIED
ON THE FACE OF THE PAYROLL BY THE AIR ADVISOR, AN OFFICER OF THE REGULAR
ESTABLISHMENT ASSIGNED TO THE CONTINENTAL AIR COMMAND NUMBERED AIR FORCE
WHOSE DUTY STATION IS AT THE SAME LOCATION AS THE AIR NATIONAL GUARD
UNIT FOR WHICH HE IS AN ADVISOR. THE OPINION IS EXPRESSED THAT THE
INDEPENDENT VERIFICATION AND CERTIFICATION OF THE PAYROLLS BY THE AIR
ADVISOR PROVIDES A MEANS OF INTERNAL CONTROL OVER THE DISBURSEMENTS
WHICH AFFORDS AMPLE PROTECTION AGAINST THE WEAKNESSES IN THE OLD PAY
SYSTEM WHICH LED TO THE SUGGESTION IN OFFICE LETTER OF APRIL 20, 1948,
A-7621, A-8258, THAT THE PAY CHECKS BE MAILED BY THE FINANCE OFFICERS
DIRECT TO THE HOME ADDRESSES OF THE PAYEES. IN ADDITION, IT IS REPORTED
THAT THE DELIVERY OF CHECKS THROUGH UNIT COMMANDERS HAS SAVED 4,700
MAN-HOURS PER YEAR WITHIN THE CONTINENTAL AIR COMMAND, AN ESTIMATED SAME
NUMBER OF MAN-HOURS WITHIN THE UNITS, AND A MONETARY SAVINGS OF
APPROXIMATELY SEVEN CENTS PER CHECK.
WE WILL INTERPOSE NO OBJECTION AT THIS TIME TO THE PRESENT CHECK
DELIVERY PROCEDURES IN VIEW OF THE NEW PROCEDURES FOR MAKING PAYMENTS TO
AIR NATIONAL GUARD MEMBERS AND THE ECONOMIES TO BE EFFECTED BY DELIVERY
OF THE CHECKS THROUGH UNIT COMMANDER. HOWEVER, IN ORDER TO ASSURE THAT
ADEQUATE MEASURES ARE TAKEN TO PREVENT IMPROPER AND FRAUDULENT
NEGOTIATIONS OF THE CHECKS, WE SUGGEST THAT THE EFFECTIVENESS OF THE
PROCEDURES AND CONTROLS BE REVIEWED PERIODICALLY BY THE AUDITOR GENERAL
OF THE DEPARTMENT OF THE AIR FORCE. WE, OF COURSE, WILL ALSO REVIEW AND
EVALUATE THE ADEQUACY OF THE PROCEDURES AND CONTROLS IN THE COURSE OF
OUR AUDIT OF AIR NATIONAL GUARD ACTIVITIES.
B-134382, APR. 9, 1958
TO LUMBER DEALERS, INC. :
REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1958, WITH ENCLOSURE,
REQUESTING RECONSIDERATION OF OUR DECISION DATED DECEMBER 2, 1957, WHICH
SUSTAINED OFFICE SETTLEMENT OF OCTOBER 21, 1957, DISALLOWING YOUR CLAIM
FOR $55.20 ALLEGED TO BE DUE BY REASON OF AN ERROR SAID TO HAVE BEEN
MADE IN YOUR BID UPON WHICH PURCHASE ORDER NO. 57D-9910-2 WAS BASED.
THE CIRCUMSTANCES UNDER WHICH YOU FURNISHED OUTSIDE MICROMETER
CALIPERS TO THE GOVERNMENT UNDER THE CITED PURCHASE ORDER WERE FULLY
DISCUSSED IN OUR DECISION OF DECEMBER 2, 1957, AND NEED NOT BE REPEATED
HERE.
YOU REQUEST CLARIFICATION OF ARTICLE 2/A) (2) OF THE SUPPLEMENTAL
PROVISIONS, GSA FORM 1424, REGARDING "GOVERNMENT-SPECIFIED BRAND NAMES.'
HOWEVER, THAT PARTICULAR PROVISION HAS NO APPLICATION IN YOUR CASE SINCE
THE GOVERNMENT DID NOT SPECIFY BRAND NAMES OR EQUAL IN THE INVITATION
FOR BIDS, BUT REQUESTED BIDS FOR THE FURNISHING OF CALIPERS IN
ACCORDANCE WITH FEDERAL SPECIFICATION GGG-C-105. RATHER THERE ARE FOR
APPLICATION THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 4 OF THE
"ADDITIONAL PROVISIONS" OF THE INVITATION, SINCE, AS PART OF YOUR BID,
YOU INSERTED THE NAME OF YOUR SUPPLIER AND THE NUMBER OF THE CALIPER YOU
PROPOSED TO FURNISH. THAT BEING THE CASE, UNDER ARTICLE 4, PARAGRAPH 2
(WHICH IS SUBSTANTIALLY EQUIVALENT TO ARTICLE 2/B) OF GSA FORM 1424),
THE INSERTION WAS UNDERSTOOD TO MEAN THAT THE CALIPERS OFFERED WOULD
FULLY COMPLY WITH THE SPECIFICATION REQUIREMENTS. HENCE, THE FACT THAT
YOU DID NOT SPECIFICALLY OFFER CALIPERS WITH WOODEN CASES IS NOT
PERSUASIVE SINCE UNDER THE EXPRESS TERMS OF THE INVITATION YOUR OFFER
WAS A DEFINITE UNDERTAKING TO FURNISH ARTICLES IN STRICT COMPLIANCE WITH
THE SPECIFICATIONS.
THE APPLICABLE SPECIFICATION, WHICH WAS AVAILABLE TO YOU WITHOUT
CHARGE AT THE DENVER GSA BUSINESS CENTER, REQUIRED IN PARAGRAPH 3.8 THAT
WOODEN CASES SHALL BE FURNISHED,"UNLESS OTHERWISE SPECIFIED IN THE
CONTRACT OR ORDER.' PARAGRAPH 3.8.2 OF THE SPECIFICATION FURTHER
PROVIDED THAT IF INSTRUMENTS WITHOUT CASES ARE DESIRED, OR IF COMMERCIAL
WOOD OR CARDBOARD BOXES WILL SUFFICE, PURCHASE DOCUMENTS WILL SO
SPECIFY. THEREFORE, WE CONCLUDE THAT THE INVITATION AND PURCHASE ORDER,
AS WRITTEN, REQUIRED THE FURNISHING OF THE CALIPERS IN WOODEN BOXES AS
SET FORTH IN THE SPECIFICATION.
WHILE THE INVITATION PROVIDED THAT CALIPERS WERE REQUIRED TO BE
FURNISHED WITH LOCK NUT AND RATCHET STOP BUT DID NOT MENTION WOODEN
BOXES, THE DESCRIPTION IN THE INVITATION COULD NOT POSSIBLY REFER TO ALL
REQUIREMENTS OF THE SPECIFICATION WHICH IS 18 PAGES IN LENGTH. THE
INVITATION DESCRIPTION APPEARS MORE THAN SUFFICIENT TO PLACE A BIDDER ON
NOTICE THAT REFERENCE TO THE SPECIFICATION WAS ESSENTIAL IN ORDER TO
DETERMINE WHETHER THE OFFERED PRODUCT COMPLIED FULLY WITH THE
REQUIREMENTS.
IN YOUR FOOTNOTE YOU REFER TO TWO FEDERAL SPECIFICATIONS APPLYING TO
CALIPERS. HOWEVER, SPECIFICATION GGG-C-106 WAS SUPERSEDED BY FEDERAL
SPECIFICATION GGG-C-105 DATED AUGUST 15, 1955, WHICH WAS APPLICABLE TO
THE SUBJECT PURCHASE ORDER.
B-135533, APR. 9, 1958
TO CAPTAIN F. C. DUSENBERRY, FINANCE OFFICER, DEPARTMENT OF THE AIR
FORCE:
YOUR LETTER OF OCTOBER 15, 1957, REQUESTS AN ADVANCE DECISION AS TO
WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH IN
FAVOR OF ROYAL MCBEE CORPORATION. YOUR LETTER WAS FORWARDED TO US BY
THE DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE.
THE VOUCHER IN THE AMOUNT OF $1.59 REPRESENTS THE SOUTH CAROLINA 3
PERCENT SALES TAX ON THE FEDERAL EXCISE TAX PORTION ($52.95) INVOLVED IN
THE PURCHASE OF EITHER ADDING MACHINES OR TYPEWRITERS BY DONALDSON AIR
FORCE BASE, SOUTH CAROLINA. THE INVOICE LISTS AS SEPARATE ITEMS THE
MANUFACTURER'S PRICE, THE FEDERAL EXCISE TAX AND THE SOUTH CAROLINA
SALES TAX. THE LATTER TAX OF 3 PERCENT IS COMPUTED UPON THE TOTAL
SELLING PRICE WHICH INCLUDES AS A PART THEREOF THE FEDERAL EXCISE TAX.
YOUR REQUEST FOR ADVANCE DECISION QUESTIONS THE PROPRIETY OF PAYING THAT
PORTION OF THE SOUTH CAROLINA SALES TAX COMPUTED ON THE FEDERAL EXCISE
TAX.
CONCERNING THE PAYMENT OF STATE TAXES GENERALLY, OUR OFFICE HAS HELD
THAT THE QUESTION OF WHETHER THE UNITED STATES IS REQUIRED TO PAY FOR
SUPPLIES PROCURED IN A STATE AT A PRICE INCLUSIVE OF THE SALES TAX
IMPOSED BY THAT STATE RESTS UPON A DETERMINATION OF WHETHER THE
INCIDENCE OF THE TAX IS ON THE VENDOR OR ON THE VENDEE. WHERE THE
INCIDENCE OF THE TAX IS ON THE VENDOR, THE UNITED STATES HAS NO RIGHT---
APART FROM STATE STATUTES OR REGULATIONS PROMULGATED THEREUNDER BY STATE
AUTHORITIES--- TO PURCHASE SUPPLIES WITHIN THE TERRITORIAL JURISDICTION
OF THE STATE ON A TAX FREE BASIS. SEE ALABAMA V. KING AND BOOZER, 314
U.S. 1. ON THE OTHER HAND, WHERE THE INCIDENCE OF THE TAX IS ON THE
VENDEE, THE UNITED STATES IN PURCHASING SUPPLIES FOR OFFICIAL USE IS
ENTITLED UNDER ITS CONSTITUTIONAL PREROGATIVES TO MAKE PURCHASES FREE
FROM STATE TAXES AND TO RECOVER ANY AMOUNT OF SUCH TAXES WHICH MAY HAVE
BEEN PAID BY IT. SEE 33 COMP. GEN. 453. IN THIS REGARD SECTION 65-1407
OF THE CODE OF LAWS OF SOUTH CAROLINA WAS AMENDED IN 1954 TO MAKE THE
ADDITION OF THE SALES TAX TO THE SALES PRICE PERMISSIVE, RATHER THAN
MANDATORY AS HAD FORMERLY BEEN THE CASE. THEREFORE, THE LEGAL INCIDENCE
OF THE TAX IS IMPOSED ON THE VENDOR RATHER THAN THE VENDEE AND,
CONSEQUENTLY, THE CONSTITUTIONAL PRINCIPLE UNDER WHICH THE FEDERAL
GOVERNMENT IS IMMUNE TO STATE TAXATION IS NOT APPLICABLE HERE. SEE ESSO
STANDARD OIL CO. V. EVANS, 345 U.S. 95; B-120992, NOVEMBER 5, 1954;
B-128720, AUGUST 7, 1956.
THE SOUTH CAROLINA SALES TAX LAW APPEARS IN SECTIONS 65-1401 TO
65-1411 OF THE 1952 CODE OF THAT STATE, AS AMENDED. SECTION 65-1401
IMPOSES "* * * UPON EVERY PERSON ENGAGED OR CONTINUING WITHIN THIS STATE
IN THE BUSINESS OF SELLING AT RETAIL ANY TANGIBLE PERSONAL PROPERTY
WHATSOEVER, * * * AN AMOUNT EQUAL TO THREE PERCENT OF THE GROSS PROCEEDS
OF SALES OF THE BUSINESS; * * *.' THE LAST PARAGRAPH OF SECTION 65-1353
WHICH DEFINES THE TERM "GROSS PROCEEDS OF SALES" PROVIDES THAT "THE TERM
SHALL NOT INCLUDE THE AMOUNT OF ANY TAX IMPOSED BY THE UNITED STATES
UPON OR WITH RESPECT TO RETAIL SALES WHETHER IMPOSED UPON THE RETAILER
OR CONSUMER EXCEPT THAT ANY MANUFACTURER'S OR IMPORTER'S EXCISE TAX
SHALL BE INCLUDED IN THE TERM.'
THE MANUFACTURER'S EXCISE TAX OF 10 PERCENT IMPOSED ON BUSINESS
MACHINES BY 26 U.S.C. 4191 IS A TAX "IMPOSED UPON THE SALE BY THE
MANUFACTURER, PRODUCER, OR IMPORTER" AND THEREFORE THE AMOUNT OF SUCH
EXCISE TAX IS TO BE INCLUDED IN COMPUTING THE SOUTH CAROLINA SALES TAX
UNDER SECTIONS 65-1401 AND 65-1353 OF THE SOUTH CAROLINA CODE.
ACCORDINGLY, CERTIFICATION OF THE VOUCHER FOR PAYMENT IS AUTHORIZED,
IF OTHERWISE PROPER.
B-135633, APR. 9, 1958
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTERS OF MARCH 25 AND MARCH 31, 1958,
WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR THE U.S. TAG AND TICKET COMPANY ALLEGES IT MADE IN
ITS BID DATED MARCH 5, 1958.
THE GOVERNMENT PRINTING OFFICER UNDER JACKET NO. 456280 REQUESTED
BIDS FOR FURNISHING THE PRODUCTION OF 500,000 SHIPPING TAGS, SIZE 6 1/4
BY 3 1/8 INCHES, DRILLED WITH ONE 3/8 INCH HOLE TO BE REINFORCED WITH A
FIBER PATCH AND A METAL EYELET. IN RESPONSE THERETO THE U.S. TAG AND
TICKET COMPANY SUBMITTED A BID DATED MARCH 5, 1958, OF $1,785. EIGHT
OTHER BIDS RECEIVED RANGED IN PRICE FROM $1,845 TO $2,310.
YOU STATE IN YOUR LETTER OF MARCH 25, 1958, THAT AWARD WAS MADE TO
THE COMPANY AS THE LOW BIDDER AND A NOTICE OF AWARD WAS MAILED TO THE
COMPANY ON MARCH 17, 1958; THAT ON MARCH 18, 1958, BEFORE THE COMPANY
RECEIVED YOUR PURCHASE ORDER, A REPRESENTATIVE OF THE COMPANY TELEPHONED
THE CONTRACTING OFFICER AND STATED HE COULD NOT PRODUCE THIS WORK
BECAUSE OF THE REQUIREMENT FOR A 3/8-INCH METAL EYELET; THAT THE
COMPANY'S EQUIPMENT FOR INSERTING A 3/8-INCH METAL EYELET HAD NOT BEEN
OPERATIVE FOR SOME TIME AND THAT ITS ESTIMATOR HAD OVERLOOKED THIS
REQUIREMENT AT THE TIME THE BID WAS PREPARED.
IN YOUR REPLY TO AN INFORMAL REQUEST FOR ADVICE AS TO WHETHER THE
COMPANY NOTIFIED YOUR OFFICE OF THE ERROR IN BID BEFORE OR AFTER RECEIPT
OF THE NOTICE OF AWARD, YOU STATE IN THE LETTER OF MARCH 31, 1958, THAT
THE COMPANY RECEIVED THE NOTICE OF AWARD PRIOR TO ITS NOTICE TO YOU THAT
IT HAD OVERLOOKED THE REQUIREMENT FOR A 3/8-INCH METAL EYELET.
THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER A MATHEMATICAL OR
OTHER ERROR WAS MADE IN THE COMPANY'S BID BUT WHETHER A VALID AND
BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THERE
WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO
ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. THE RESPONSIBILITY FOR
PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE
COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100
C.CLS. 163. IF AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH
ERROR WAS DUE SOLELY TO THE COMPANY'S OWN NEGLIGENCE OR OVERSIGHT AND
WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR
AS MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE
AFFORDS NO BASIS FOR GRANTING RELIEF TO THE COMPANY. SEE SALIGMAN, ET
AL. V. UNITED STATES, 56 F.SUPP. 505, AND OGDEN AND DOUGHERTY V. UNITED
STATES, 102 C.CLS. 249, 259. SEE ALSO UNITED STATES V. SABIN METAL
CORPORATION 151 F.SUPP. 683.
IN VIEW OF THE FOREGOING, PARTICULARLY SINCE THE AWARD WAS MADE
BEFORE A MISTAKE IN BID WAS ALLEGED, THERE APPEARS NO LEGAL BASIS TO
AUTHORIZE YOU TO CANCEL PURCHASE ORDER NO. 12582 OR THE AWARD. THE
PAPERS, EXCEPT THE TWO LETTERS DATED MARCH 25 AND MARCH 31, 1958, ARE
RETURNED AS REQUESTED.
B-134557, APR. 8, 1958
TO MR. FRANKLIN O. ROSE, HYDRAULIC AND SANITARY LABORATORY,
UNIVERSITY OF WISCONSIN:
THIS REFERS TO YOUR LETTERS OF NOVEMBER 12, 1957, AND FEBRUARY 27,
1958, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF NOVEMBER 4,
1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $93 PAID TO THE
DEPARTMENT OF THE NAVY INCIDENT TO THE SHIPMENT OF HOUSEHOLD GOODS AND
PERSONAL EFFECTS FROM SAN JUAN, PUERTO RICO, TO PROVIDENCE, RHODE
ISLAND.
YOU CONTEND THAT THE $93 SHOULD BE REFUNDED BECAUSE IT REPRESENTS
CHARGES BY THE PAUL ARPIN VAN LINES, INC. FOR UNPACKING YOUR EFFECTS
WHEN IN FACT, THE ACTUAL UNPACKING WAS DONE BY YOUR SON. WITH REGARD TO
THE $93 INVOLVED, THIS AMOUNT INCLUDED DRAYAGE AS WELL AS THE UNPACKING
AND UNCRATING OF THE 14,950 POUNDS.
THE FOLLOWING INFORMATION FROM THE NAVAL AIR STATION AT QUONSET POINT
WAS SUPPLIED OUR OFFICE IN THE ADMINISTRATIVE REPORT.
"THIS ACTIVITY IS UNABLE TO DETERMINE AT THIS TIME THE EXACT WEIGHT
OF THE GOODS UNPACKED AS SOME ITEMS NOT INTENDED FOR CURRENT USE WERE
PLACED IN A GARAGE AT THE RESIDENCE AND THE CONTRACTOR BILLED FOR
DELIVERY AND UNPACKING OF THE COMPLETE SHIPMENT OF 14,950 POUNDS.
"EVIDENCE OF UNPACKING OF CONTAINERS IS INDICATED BY REMARKS ON
INVENTORY RELATIVE TO DAMAGED GOODS INSIDE CONTAINERS.'
WHILE IT MAY BE THAT THE VAN COMPANY DID NOT UNPACK ALL OF YOUR
GOODS, THE EVIDENCE TENDS TO SUPPORT THE CONCLUSION THAT SOME PORTION OF
YOUR GOODS WERE UNPACKED OR PLACED UNDER YOUR SON'S DIRECTION. SINCE IT
CANNOT NOW BE DETERMINED WHAT PART OF YOUR GOODS WERE NOT UNPACKED NOR
WHAT PART, IF ANY, OF THE CHARGE OF $93 SHOULD BE APPORTIONED TO
UNPACKING, WE CANNOT ON THE PRESENT RECORD DETERMINE WHETHER YOU ARE
ENTITLED TO ANY PART OF THE AMOUNT CLAIMED.
GENERALLY, WHERE THE FACTS AS ADMINISTRATIVELY REPORTED DIFFER FROM
THE FACTS REPORTED BY A CLAIMANT THE GENERAL ACCOUNTING OFFICE ACCEPTS
THOSE ESTABLISHED BY THE OFFICIAL RECORD, IN ABSENCE OF EVIDENCE
SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.
ACCORDINGLY, OUR PREVIOUS DISALLOWANCE OF YOUR CLAIM MUST BE
SUSTAINED.
B-135078, APR. 8, 1958
TO MR. HENRY S. MAUK, PRESIDENT, PLANT ENGINEERING, INCORPORATED:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JANUARY 30,
1958, PROTESTING THE AWARD OF A NEGOTIATED CONTRACT FOR THE OPERATION
AND MAINTENANCE OF A POWER PLANT AT THE SAGE FACILITY AT GUNTER AIR
FORCE BASE TO THE M AND T COMPANY, PHILADELPHIA, PENNSYLVANIA.
YOUR PROTEST IS BASED ON THE CONTENTIONS THAT THE PROCUREMENT SHOULD
HAVE BEEN ADVERTISED RATHER THAN NEGOTIATED; THAT A
COST-PLUS-A-FIXED-FEE CONTRACT WAS INAPPROPRIATE IN THIS CASE; AND THAT
THE AIR FORCE COMMITTED AN ERROR WHICH OPERATED TO THE PREJUDICE OF
BIDDERS WHEN IT REQUESTED THAT THE SUCCESSFUL CONTRACTOR PROVIDE A
SUPERVISORY UTILITIES ENGINEER. IN ADDITION, YOU CONTEND THAT THE
DOLLAR AMOUNT OF THIS PROCUREMENT IS NOT SUBSTANTIAL ENOUGH TO WARRANT
THE ADMINISTRATIVE COSTS OF A CPFF TYPE OF CONTRACT.
THE CONTRACT IS REPORTED TO HAVE BEEN NEGOTIATED PURSUANT TO SECTION
2304/A) (10) OF TITLE 10, U.S. CODE, WHICH AUTHORIZES THE AGENCY HEAD TO
NEGOTIATE WITHOUT FORMAL ADVERTISING A PURCHASE OR A CONTRACT IF THE
PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES FOR WHICH IT IS
IMPRACTICABLE TO OBTAIN COMPETITION. REQUESTS FOR PROPOSALS WERE ISSUED
TO 26 POTENTIAL CONTRACTORS AND OFFERS WERE RECEIVED FROM 13 COMPANIES
WHOSE TOTAL ESTIMATED COSTS RANGED FROM $31,347 TO $196,127.
IN RESPONSE TO OUR INQUIRY CONCERNING THE MATTER, THE SECRETARY OF
THE AIR FORCE REPORTS THAT, WHILE 13 FIRMS SUBMITTED OFFERS, THIS FACT
ALONE WOULD NOT PRECLUDE A NEGOTIATION OF THE CONTRACT IF OTHER FACTORS
SUCH AS THE TYPE OF CONTRACT CONTEMPLATED, THE NATURE OF THE SERVICES TO
BE PROCURED, THE TIME REQUIREMENTS INVOLVED, AND THE INVOCATION OF
APPROPRIATE STATUTORY AND IMPLEMENTING AUTHORITY WERE PRESENT WHICH
INDICATED THAT THE CHOICE TO PROCEED BY NEGOTIATION WAS A REASONABLE
ONE. WE ARE IN AGREEMENT WITH THIS VIEW.
IT IS REPORTED THAT THE NATURE OF THE WORK, WHICH IS DESCRIBED IN
PARAGRAPH 16 OF THE REQUEST FOR PROPOSALS, WAS FIRST CONSIDERED BY THE
CONTRACTING OFFICER. IN THIS REGARD, THE ADMINISTRATIVE REPORT STATES:
"* * * BECAUSE OF THE NECESSITY FOR CONTROLLING THE OUTPUT LEVELS OF
THE POWER PRODUCTION AND AIR CONDITIONING SYSTEMS WITHIN VERY NARROW
TOLERANCES, THE SERVICES OF HIGHLY SKILLED ENGINEERS, TECHNICIANS AND
SUPERVISORY PERSONNEL ARE REQUIRED IN THE OPERATION OF MAINTENANCE OF
THIS SAGE POWER PLANT. FURTHERMORE, THE CONTRACTOR IS REQUIRED TO
PROVIDE THE NECESSARY INSTRUCTION AND INDOCTRINATION TO SELECTED
GOVERNMENT EMPLOYEES IN ORDER TO QUALIFY THEM TO TAKE OVER THE
MANAGEMENT OF THE FACILITY AT A FUTURE DATE. I CALL YOUR ATTENTION TO
PARAGRAPH VI B 1. A, B, AND C OF THE REQUEST FOR PROPOSALS, EXHIBIT "H,"
WHICH REQUESTS VERY DETAILED INFORMATION ON THE EXPERIENCE AND TRAINING
OF THE CONTRACTOR'S ENGINEERING STAFF.'
CONCERNING YOUR CONTENTION THAT THE MACHINERY AT THE INSTALLATION IS
NEITHER "HIGHLY TECHNICAL" OR "SPECIALIZED," WITHIN THE PURVIEW OF ASPR
3-210.2 (VII) UPON WHICH THE CONTRACTING OFFICER BASED HIS AUTHORITY TO
NEGOTIATE THE CONTRACT, IT IS REPORTED THAT THE EQUIPMENT IS INTEGRATED
INTO A HIGHLY COMPLEX AND TECHNICAL SYSTEM WHICH IS DESIGNED TO SUPPORT
ALL OF THE ACTIVITIES WITHIN THE DIRECTION CENTER AND, IN PARTICULAR,
THE ELECTRONIC COMPUTERS LOCATED THEREIN, AS A RESULT OF WHICH THE
EQUIPMENT IS DEEMED TO BE "SPECIALIZED" IN ITS APPLICATION TO THE ENTIRE
SYSTEM. IF THIS WERE NOT SO, IT IS OBSERVED, THE STRINGENT REQUIREMENTS
FOR THE SELECTION OF ENGINEERING PERSONNEL WOULD NOT HAVE BEEN
NECESSARY.
REGARDING THE TIME FACTOR AS CONSIDERED BY THE CONTRACTING OFFICER IN
THE SELECTION OF THE NEGOTIATED TYPE CONTRACT, IT IS REPORTED THAT THE
REQUIREMENT FOR THE OPERATION AND MAINTENANCE OF THE SAGE POWER PLANT
WAS RECEIVED BY THE CONTRACTING AGENCY AT THE END OF NOVEMBER 1957, AND
THAT CONTRACTOR PERSONNEL WERE SCHEDULED TO BE PHASED INTO THE PROJECT
NO LATER THAN FEBRUARY 1, 1958, TO WITNESS MECHANICAL-ELECTRICAL TEST
RUNS AND TO BECOME FAMILIAR WITH THE UTILITIES SYSTEM.
IT IS REPORTED FURTHER THAT ADVERTISING AND PROCUREMENT WOULD HAVE
PRECLUDED THE USE OF A CPFF ARRANGEMENT WHICH THE CONTRACTING OFFICER
DEEMED NECESSARY BECAUSE THE EXACT NATURE AND EXTENT OF THE WORK COVERED
BY THE CONTRACT AND THE PRECISE METHOD OF ACCOMPLISHING THE WORK COULD
NOT HAVE BEEN ESTABLISHED IN ADVANCE, THE PROJECT BEING SUBJECT TO
IMPROVISATION AND CHANGE AS IT PROGRESSED. SEE, FOR EXAMPLE, PARAGRAPH
14 OF THE SPECIAL PROVISIONS OF THE REQUEST FOR PROPOSALS. IN THE
CIRCUMSTANCES, AND IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT
REGULATION 3-404/C) PERTAINING TO THE SELECTION OF THE
COST-REIMBURSEMENT TYPE OF CONTRACT, THE CONTRACTING OFFICER PREPARED A
DETERMINATION AND FINDING SETTING FORTH HIS DECISION TO USE A
COST-PLUS-A-FIXED-FEE CONTRACT, STATING THAT IT WAS IMPRACTICAL TO
SECURE SERVICES OF THE KIND OR QUALITY DESIRED WITHOUT THE USE OF SUCH A
CONTRACT.
AS TO THE DOLLAR AMOUNT OF THE PROCUREMENT, THE SECRETARY OF THE AIR
FORCE STATES THAT, WHILE THE TOTAL CONTRACT PRICE WAS BELOW $100,000,
THE VARIOUS FACTORS REFERRED TO ABOVE MADE IT IMPERATIVE TO DEPART FROM
A FIXED-PRICE TYPE OF CONTRACT. IN ADDITION, HE DIRECTS ATTENTION TO
ASPR 3-404/B) WHICH PROVIDES AS FOLLOWS:
"WHILE COST-REIMBURSEMENT CONTRACTS ARE PARTICULARLY USEFUL FOR
PROCUREMENT INVOLVING SUBSTANTIAL AMOUNTS, I.E., ESTIMATED COSTS OF
$25,000 OR MORE, THE CONTRACTING OFFICER MAY DETERMINE IN A GIVEN CASE
TO UTILIZE THIS TYPE OF CONTRACT TO COVER TRANSACTIONS IN WHICH THE
ESTIMATED COSTS ARE LESS THAN $25,000.'
REGARDING YOUR ALLEGATION THAT PARAGRAPH 20 OF THE SPECIAL PROVISIONS
OF THE RFP IS IN ERROR, IT IS STATED IN THE REPORT THAT---
"PARAGRAPH 20, THE "SUPERVISION" CLAUSE OF EXHIBIT "H," REQUIRES THE
CONTRACTOR TO PROVIDE THE SERVICES OF A SUPERVISING UTILITIES ENGINEER
WITH PROFESSIONAL ENGINEERING QUALIFICATIONS FOR THE DURATION OF THE
CONTRACT. HIS FUNCTION IS TO DIRECT AND SUPERVISE ALL THE UTILITIES
OPERATING ON A UNIFORM BASIS FOR 1-6 SAGE DIRECTION CENTER AND COMBAT
CENTER UNITS. THIS PROVISION OF THE REQUEST FOR PROPOSALS IS NOT IN
ERROR AS THE PROTESTOR CONTENDS. THE POSITION OF A SUPERVISING
UTILITIES ENGINEER WITH A SPAN OF CONTROL OF 1-6 DIRECTION CENTER OR
COMBAT CENTER UNITS WAS ESTABLISHED AS A FIRM REQUIREMENT FOR THIS
CONTRACT BY RESPONSIBLE AIR FORCE OFFICIALS. FURTHER, THE CONTENTION
THAT THIS SITUATION GIVES A COMPETITIVE ADVANTAGE TO BIDDERS ALREADY
HAVING ONE OR MORE SAGE UNITS IS UNTENABLE IN VIEW OF THE
COST-PLUS-A-FIXED-FEE ARRANGEMENT IN THIS CASE. WE CALL YOUR ATTENTION
TO THE FACT, IN THIS CONNECTION, THAT THE CONTRACTOR, M AND T COMPANY,
DOES NOT PRESENTLY HAVE AN OPERATING AND MAINTENANCE CONTRACT FOR ANY
OTHER SAGE FACILITY, BUT IS NEVERTHELESS SUPPLYING A SUPERVISING
UTILITIES ENGINEER, IN ACCORDANCE WITH THE SPECIFICATION.'
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 DEPARTMENT OF THE AIR FORCE. 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 AND THE RULES AND PROCEDURES
APPLICABLE TO PROCUREMENT BY FORMAL ADVERTISING DO NOT APPLY.
WHILE THE BASIS FOR NEGOTIATING THE INSTANT PROCUREMENT--- THAT IS,
THE IMPRACTICABILITY OF OBTAINING COMPETITION--- MIGHT SEEM QUESTIONABLE
IN VIEW OF THE FACT THAT THIRTEEN APPARENTLY RESPONSIVE COMPETITIVE
PROPOSALS WERE OBTAINED, WE FEEL THAT, BASED UPON ALL OF THE ATTENDANT
FACTORS MENTIONED ABOVE, THE DETERMINATION OF THE CONTRACTING OFFICER TO
NEGOTIATE THE CONTRACT WAS A REASONABLE ONE AND WE PRECEIVE NO LEGAL
BASIS FOR QUESTIONING THE AWARD AS MADE.
B-135267, APR. 8, 1958
TO MR. JACOB F. FRENCH:
REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1957, REFERRED
HERE BY THE CHIEF, CLAIMS DIVISION, SETTLEMENTS OPERATIONS, FINANCE
CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, CONCERNING YOUR CLAIM FOR
FINAL PAY BELIEVED TO BE DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED
MAN, U.S. ARMY, AND FOR THE AMOUNT OF AN ALLOTMENT ALLEGED BY YOU TO
HAVE BEEN MADE ON OR ABOUT SEPTEMBER 1, 1950, TO A BANK IN CHARLES TOWN,
WEST VIRGINIA. YOUR CLAIM FOR PAY WAS DISALLOWED BY SETTLEMENT DATED
MAY 27, 1953, OF OUR CLAIMS DIVISION.
IT APPEARS THAT PURSUANT TO PARAGRAPH 7, SPECIAL ORDERS NO. 81,
HEADQUARTERS, KOBE BASE, APO 317, DATED APRIL 5, 1951, AS AMENDED BY
PARAGRAPH 8, SPECIAL ORDERS NO. 87, THE SAME STATION, DATED APRIL 12,
1951, YOU WERE TRIED BY A SPECIAL COURT MARTIAL, FOUND GUILTY AND
SENTENCED TO BE REDUCED TO THE LOWEST ENLISTED GRADE, TO BE DISCHARGED
FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE, TO BE CONFINED AT HARD
LABOR FOR SIX MONTHS, AND TO FORFEIT $15 A MONTH OF YOUR PAY FOR SIX
MONTHS. THE SENTENCE WAS ADJUDGED APRIL 23, 1951. BY SPECIAL COURT
MARTIAL ORDERS NO. 50, HEADQUARTERS, SOUTHWESTERN COMMAND, APO 15, DATED
MAY 28, 1951, THE SENTENCE WAS APPROVED AND ORDERED EXECUTED. YOU WERE
DISCHARGED ON MAY 28, 1951, WITH A BAD CONDUCT DISCHARGE. YOU WERE
RELEASED FROM CONFINEMENT AT CAMP STONEMAN, CALIFORNIA, ON SEPTEMBER 22,
1951.
AN EXAMINATION OF THE PHOTOSTATIC COPY OF YOUR PAY RECORD FOR THE
PERIOD JANUARY 1 TO MAY 28, 1951, DISCLOSES THAT THERE WAS CARRIED
FORWARD TO YOUR PAY ACCOUNT FOR THE PERIOD BEGINNING JANUARY 1, 1951, AN
UNPAID BALANCE DUE YOU OF $38.77. YOU WERE NOT ENTITLED TO FOREIGN DUTY
PAY AFTER APRIL 23, 1951, THE DATE THE COURT MARTIAL SENTENCE WAS
ADJUDGED SINCE YOU WERE IN CONFINEMENT, AT LEAST, AFTER THAT DATE. SEE
23 COMP. GEN. 978. NOR WERE YOU ENTITLED TO BASIC PAY AFTER MAY 28,
1951, THE DATE YOU WERE DISCHARGED. SEE 30 COMP. GEN. 449; 33 ID.
281.
A STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD JANUARY 1 THROUGH MAY
28, 1951, SHOWING ALL CREDITS TO WHICH YOU WERE ENTITLED, LESS ALL
PROPER DEDUCTIONS, IS AS FOLLOWS:
CHART
CREDITS
AMOUNT UNPAID BROUGHT FORWARD 1/1/51 $38.77
PAY AS A CORPORAL WITH OVER 2 YEARS
SERVICE 1/1 TO 5/26/51, 4 MONTHS
27 DAYS AT $124.95 PER MONTH 612.26
FOREIGN DUTY PAY 1/1 TO 4/23/51,
3 MONTHS 23 DAYS AT $13 PER MONTH 48.97
PAY AS RECRUIT WITH OVER 2 YEARS
SERVICE FOR 5/28/51, AT $87.50
PER MONTH 2.92
-------
TOTAL $702.92
------
DEBITS
CLASS "E" ALLOTMENT TO GOVERNMENT
PERSONNEL LIFE INSURANCE COMPANY
FOR JANUARY THRU MAY 1951, 5 MONTHS
AT $10.38 PER MONTH $ 51.90
CLASS "E" ALLOTMENT TO RICHARD S.
FRENCH FOR JANUARY AND FEBRUARY 1951,
2 MONTHS AT $20 A MONTH 40.00
CLASS "E" ALLOTMENT TO ROSIE V.
JOHNSON FOR JANUARY THRU MAY 1951,
5 MONTHS AT $50 PER MONTH 250.00
CLASS "N" GOVERNMENT INSURANCE
ALLOTMENT FOR JANUARY THRU MAY 1951,
5 MONTHS AT $6.60 PER MONTH 33.00
GOVERNMENT PROPERTY LOST OR DAMAGED 87.31
LAUNDRY AND DRY CLEANING 3.52
SOLDIERS' HOME CONTRIBUTION
JANUARY THRU MAY 1951, 5 MONTHS
AT 10 CENTS PER MONTH .50
CASH AND CHECK PAYMENTS $38.00
20.00
50.00
50.00
21.00
10.00 189.00
WITHHOLDING TAX 59.20
TOTAL $714.43
OVERPAYMENT $ 11.51
SINCE YOU WERE OVERPAID FOR THE PERIOD JANUARY 1 THROUGH MAY 28,
1951, IN THE AMOUNT OF $11.51, NO BALANCE OF PAY IS DUE YOU FROM THE
UNITED STATES. IT WILL BE NOTED THAT THE COURT MARTIAL FINE OF $15 A
MONTH FOR SIX MONTHS WAS NOT CHARGED AGAINST YOUR PAY.
RESPECTING YOUR CONTENTION THAT YOU MADE AN ALLOTMENT TO A BANK IN
CHARLES TOWN, WEST VIRGINIA, AN EXAMINATION OF YOUR PAY RECORD FOR THE
PERIOD JULY 1, 1950, THROUGH MAY 28, 1951, DOES NOT SHOW ANY DEDUCTIONS
FROM YOUR PAY FOR SUCH ALLOTMENT. ACCORDINGLY, NO FURTHER ACTION MAY BE
TAKEN WITH RESPECT TO SUCH CLAIM.
B-135596, APR. 8, 1958
TO MR. REX L. RAY, AUTHORIZED CERTIFYING OFFICER, UNITED STATES
ATOMIC ENERGY COMMISSION:
BY LETTER DATED MARCH 21, 1958, THE GENERAL MANAGER, ATOMIC ENERGY
COMMISSION, FORWARDED HERE YOUR LETTER OF DECEMBER 12, 1957 (FP: RIR),
REQUESTING A DECISION AS TO THE PROPER DISPOSITION OF $608.69 HELD IN
SUSPENSE ACCOUNT. THE ITEM INVOLVED REPRESENTS THE AMOUNT PAID TO THE
COMMISSION BY LLOYD G. COOK AS FORMER LESSEE OF CERTAIN LAND TO COVER
UNPAID CHARGES FOR UTILITIES AND OTHER SERVICES FURNISHED HIS
SUBTENANTS.
BY LEASE NO. 55-20, DATED APRIL 11, 1955, AS AMENDED, THE ABOVE LAND
LEASED TO MR. COOK BY THE GENERAL ELECTRIC COMPANY AS AGENT FOR THE
COMMISSION FOR A TERM OF 55 YEARS BEGINNING MARCH 11, 1955. THE LAND
WAS LEASED FOR THE PURPOSE OF PERMITTING THE LESSEE TO CONSTRUCT A
COMMERCIAL BUILDING THEREON AND SUBLETTING SPACE THEREIN TO SUBTENANTS
FOR CONDUCTING CERTAIN SPECIFIED TYPES OF BUSINESSES.
ARTICLE VII OF THE LEASE SETS FORTH IN DETAIL THE TERMS AND
CONDITIONS FOR OPERATION OF THE FACILITY BY THE LESSEE AND HIS
SUBTENANTS. SECTION 7 OF THIS ARTICLE PROVIDES, AS FOLLOWS:
"THE LESSEE SHALL PAY ALL CHARGES ASSESSED FOR THE INSTALLATION OF
TELEPHONES AND THE USE OF THE TELEPHONE SYSTEM, AND FOR ELECTRICITY,
WATER AND SEWERAGE, AND REFUSE-REMOVAL SERVICE.'
SECTION 2 OF ARTICLE XVIII PROVIDES, AS FOLLOWS:
"FAILURE OF THE LESSOR TO TAKE ANY ACTION WITH RESPECT TO ANY DEFAULT
BY THE LESSEE HEREUNDER SHALL NOT CONSTITUTE A WAIVER OF ANY OF THE
LESSOR'S RIGHTS UNDER THIS LEASE; AND NO EXPRESS WAIVER SHALL AFFECT
ANY DEFAULT OTHER THAN THE DEFAULT SPECIFIED IN THE EXPRESS WAIVER AND
THAT ONLY FOR THE TIME AND TO THE EXTENT THEREIN STATED.'
ARTICLE XX PROVIDES THAT THE LESSEE SHALL PAY UPON DEMAND ALL THE
LESSOR'S COSTS, CHARGES AND EXPENSES, INCLUDING FEES OF COUNSEL, AGENTS
AND OTHERS RETAINED BY THE LESSOR, INCURRED IN ENFORCING THE LESSEE'S
OBLIGATIONS UNDER THE LEASE, OR INCURRED BY THE LESSOR IN ANY
LITIGATION, NEGOTIATION OR TRANSACTION IN WHICH LESSEE CAUSES LESSOR,
WITHOUT THE LATTER'S FAULT, TO BECOME INVOLVED OR CONCERNED. THREE
SUBLEASES FOR PARTS OF THE BUILDING FOR TERMS LESS THAN THE TERM OF THE
ORIGINAL LEASE WERE EXECUTED BY THE LESSEE AS FOLLOWS:
DATE SUBLESSEE
AUGUST 25, 1955 DONALD PAUL AND MARY
LOUISE ABBOTT, DOING
BUSINESS AS BY-LO FOODS
JANUARY 9, 1956 JIM CLARK
JANUARY 9, 1956 CARL GEER
EACH SUBLEASE WAS APPROVED BY GENERAL ELECTRIC AND THE COMMISSION AND
EACH REQUIRED THE SUBLESSEE OR SUBLESSEES TO PAY FOR ALL UTILITIES
INCLUDING HEAT, ELECTRICITY, WATER, TELEPHONE, AIR CONDITIONING, AND
GARBAGE DISPOSAL. EACH SUBLEASE STIPULATES THAT IT IS SUBJECT TO THE
ORIGINAL LEASE AND THAT THE SUBLESSEE KNOWS THE CONTENTS THEREOF AND
AGREES TO ABIDE BY THE PROVISIONS THEREOF, THE CLARK AND THE GEER
SUBLEASES REFERRING SPECIFICALLY TO ARTICLE VII AND CERTAIN OTHER
ARTICLES OF THE ORIGINAL LEASE.
IT IS STATED THAT THE ABOVE SUBLESSEES MADE DIRECT INFORMAL
ARRANGEMENTS FOR UTILITY SERVICES TO BE FURNISHED BY GENERAL ELECTRIC AS
AGENT FOR THE COMMISSION; THAT THEY WERE BILLED DIRECTLY FOR SUCH
SERVICES AND MADE PAYMENTS DIRECTLY TO GENERAL ELECTRIC COMPANY. THAT
THE GEER SUBLEASE WAS CANCELLED ON SEPTEMBER 1, 1956, THE CLARK SUBLEASE
ON AUGUST 1, 1956, AND THE BY-LO FOODS SUBLEASE ON OCTOBER 1, 1956;
THAT IN EACH CASE THE SUBLESSEE OR ITS SUCCESSOR IN INTEREST HELD OVER
AND OCCUPIED THE PREMISES FOR A PERIOD NOT MORE THAN A MONTH BEYOND THE
EFFECTIVE CANCELLATION DATE; AND THAT DURING THE HOLDOVER PERIODS
GENERAL ELECTRIC CONTINUED TO FURNISH SERVICES TO THE SUBLEASED
PREMISES.
IT IS STATED FURTHER THAT AT THE TIME THE SUBLEASED PREMISES WERE
VACATED THE SUBTENANTS WERE INDEBTED FOR UTILITY SERVICES AS FOLLOWS:
BY-LO FOODS $504.24
JIM CLARK
(ELECTRICITY AND TELEPHONE SERVICE) $ 76.05
CARL GEER
(ELECTRICITY AND TELEPHONE SERVICE) $ 28.40
-------
$608.69
IT IS STATED THAT MANY DEMANDS FOR PAYMENT WERE MADE UPON THE
SUBLESSEES BY GENERAL ELECTRIC; THAT IT DID NOT NOTIFY MR. COOK, THE
LESSEE, UNTIL NOVEMBER 1957, AND THAT OTHER THAN THE ABOVE DEMAND
LETTERS, NEITHER GENERAL ELECTRIC NOR THE COMMISSION HAS TAKEN ANY
COLLECTION ACTION AGAINST THE SUBLESSEES.
IT IS RELATED THAT ON OCTOBER 29, 1957, PURSUANT TO ARTICLE V OF THE
ORIGINAL LEASE, MR. COOK REQUESTED PERMISSION FROM GENERAL ELECTRIC TO
ASSIGN HIS LEASE AND SELL HIS BUILDING TO L. A. AND JEANETTE SEBBER AND
THAT THIS REQUEST WAS APPROVED BY THE COMMISSION UPON CONDITION THAT MR.
COOK PAY ALL OBLIGATIONS DUE AND OWING THE LESSOR UNDER THE ORIGINAL
LEASE. IT IS STATED THAT AT THE TIME OF THIS REQUEST MR. COOK WAS
INDEBTED TO GENERAL ELECTRIC FOR RENTAL PAYMENTS AND MUNICIPAL-TYPE
SERVICES; THAT HE WAS NOTIFIED THAT HE WOULD BE REQUIRED TO PAY $608.69
REPRESENTING THE ABOVE UNPAID UTILITY AND SERVICE BILLS; AND THAT HE
PAID THE AMOUNTS OWING FOR RENT AND MUNICIPAL-TYPE SERVICES BUT THAT HE
TOOK ISSUE WITH THE CLAIM FOR $608.69.
IT IS REPORTED THAT FOR THE PURPOSE OF PERMITTING MR. COOK TO
CONCLUDE THE ASSIGNMENT OF THE ORIGINAL LEASE AS AMENDED AND THE SALE OF
HIS BUILDING TO THE WEBBERS HE AGREED TO PAY THE DISPUTED CLAIM IN THE
AMOUNT OF $608.69 TO THE COMMISSION IN ACCORDANCE WITH THE PAYMENT
AGREEMENT. THIS AGREEMENT STIPULATES THAT THE PAYMENT OF $608.69 BY THE
LESSEE WAS MADE SOLELY FOR THE PURPOSE OF SECURING THE COMMISSION'S
APPROVAL OF THE ABOVE PROPOSED ASSIGNMENT AND SALE; THAT THE COMMISSION
WILL HOLD THE AMOUNT SO PAID IN A SUSPENSE ACCOUNT FOR WHOEVER SHALL BE
BENEFICIALLY ENTITLED TO THE AMOUNT; THAT THE QUESTION OF THE LESSEE'S
LIABILITY FOR THE UTILITIES AND SERVICES FURNISHED THE SUBTENANTS WOULD
BE SUBMITTED HERE FOR DECISION AND THAT THE ABOVE AMOUNT WOULD BE
DISPOSED OF IN ACCORDANCE WITH OUR DECISION.
IT IS THE COMMISSION'S VIEW THAT UNDER THE PROVISIONS OF ARTICLE VII
OF THE ORIGINAL LEASE MR. COOK IS LIABLE FOR THE $608.69 ITEM. IN
SUPPORT OF SUCH VIEW THE COMMISSION CONTENDS THAT THE LANGUAGE OF THIS
SECTION IS CLEAR AND UNAMBIGUOUS; THAT THE SECTION GOES TO THE WHOLE OF
THE DEMISED PREMISES AS DO ALL OTHER PROVISIONS OF THE ORIGINAL LEASE
AND NOT JUST TO THE PORTION OF THE PREMISES USED PERSONALLY MR. MR.
COOK; THAT PURSUANT TO ARTICLE VII MR. COOK INSERTED THE ABOVE-QUOTED
PROVISIONS IN HIS SUBLEASES; AND THAT ANY ACTIONS TAKEN BY GENERAL
ELECTRIC INCIDENT TO THE LESSEE'S ACCOUNTS DO NOT CONSTITUTE A WAIVER OF
THE COMMISSION'S RIGHT TO HOLD MR. COOK RESPONSIBLE FOR PAYMENT OF THE
ABOVE ITEM OF $608.69.
MR. COOK CONTENDS THAT HAD THE PARTIES TO THE ORIGINAL LEASE INTENDED
THAT THE LESSEE WOULD BE LIABLE FOR CHARGES FOR SERVICES FURNISHED THE
SUBTENANTS IT WOULD HAVE BEEN A SIMPLE MATTER TO HAVE INCLUDED A
PROVISION TO THAT EFFECT; THAT SINCE THE LANGUAGE OF ARTICLE VII IS NOT
CLEAR IT SHOULD BE CONSTRUED MOST STRONGLY AGAINST THE COMMISSION; AND
THAT EVEN IF THE LEASE SHOULD BE CONSTRUED AS A GUARANTEE ON HIS PART
FOR THE OBLIGATIONS OF THE SUBTENANTS, NO LIABILITY ATTACHES TO HIM IN
THIS INSTANCE BECAUSE OF THE UNTIMELY NOTICE AND SINCE THE SUBLESSEES
SUBSEQUENTLY BECAME INSOLVENT AND "MADE AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS.'
GENERALLY, A SUBLETTING DOES NOT IN ANY MANNER AFFECT THE LIABILITY
OF THE LESSEE TO HIS LESSOR FOR THE PAYMENT OF RENT OR THE PERFORMANCE
OF THE COVENANTS OF THE LEASE AND THE MERE RECEIPT OF RENTS BY THE
LESSOR FROM THE SUBTENANTS AND THE CREDITING OF SAME TO THE ACCOUNT OF
THE LESSEE DO NOT OPERATE TO RELIEVE THE LESSEE FROM CONTINUED LIABILITY
TO THE LESSOR. 32 AM.JUR. LANDLORD AND TENANT SEC. 413; 42 A.L.R.
1173; 36 ID. 319; 51 C.J.S. LANDLORD AND TENANT SEC. 47. ALSO, IT HAS
BEEN HELD THAT IN ORDER TO RELIEVE THE LESSEE FROM LIABILITY THERE MUST
BE AN EXPRESS OR IMPLIED AGREEMENT ON THE PART OF THE LESSOR TO ACCEPT
THE SUBTENANT IN LIEU OF THE LESSEE. PRESSLER V. BARREDA, 157 S.W.
435; AGEN V. NELSON, (WASH) 98 P. 1115; SINBERG V. DAVIS, 132 A. 287.
UNDER THE EXPRESS TERMS OF SECTION 7 OF ARTICLE VII OF THE ORIGINAL
LEASE, QUOTED ABOVE, THE LESSEE IS OBLIGATED TO PAY FOR THE USE OF THE
TELEPHONE SYSTEM AND FOR ELECTRICITY, WATER, SEWERAGE AND REFUSE
REMOVAL, AND AS INDICATED ABOVE IT HAS BEEN HELD THAT THIS MAY NOT BE
DISCHARGED OR THE ORIGINAL TENANT RELEASED FROM HIS OBLIGATION MAY NOT
BE DISCHARGED OR THE ORIGINAL TENANT RELEASED FROM HIS OBLIGATIONS BY
SUBLETTING THE PREMISES TO ANOTHER IN THE ABSENCE
OF AN EXPRESS OR AN IMPLIED AGREEMENT WHICH HAS NOT BEEN ESTABLISHED
IN THIS INSTANCE. SINCE THE LANGUAGE OF THE CITED PROVISION IS CLEAR
AND UNAMBIGUOUS, THERE IS NO REQUIREMENT FOR CONSTRUCTION AND,
THEREFORE, THE ORIGINAL LEASE MUST BE ENFORCED AS WRITTEN. 17 C.J.S.
CONTRACTS, SEC. 294. PENN BRIDGE CO. V. UNITED STATES, 59 C.CLS. 892,
896. WHILE IT APPEARS THAT MR. COOK WAS NOT NOTIFIED OF THE DEFAULT OF
HIS SUBTENANTS FOR THE INVOLVED BILLS FOR OVER A YEAR AFTER
CANCELLATION, THE RECORD INDICATES THAT DURING THIS INTERVAL GENERAL
ELECTRIC ATTEMPTED TO EFFECT COLLECTION FROM THE SUBLESSEES AND THAT
MANY DEMANDS WERE MADE UPON THEM. IN THE CIRCUMSTANCES, AND SINCE
SECTION 2 OF ARTICLE XVIII OF THE ORIGINAL LEASE EXPRESSLY PROVIDES THAT
FAILURE OF THE LESSOR TO TAKE ANY ACTION WITH RESPECT TO ANY DEFAULT BY
THE LESSEE SHALL NOT CONSTITUTE A WAIVER OF ANY OF THE LESSOR'S RIGHTS,
THE LESSEE MAY NOT BE RELIEVED OF HIS EXPRESS OBLIGATION AS STIPULATED
IN SECTION 7 OF ARTICLE VII TO PAY ALL CHARGES FOR THE USE OF UTILITIES
AND SPECIAL SERVICES THEREIN SPECIFIED EVEN THOUGH THE SUBLEASES
OBLIGATED THE SUBLESSEES THEREFOR.
ACCORDINGLY, IT MUST BE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR
REIMBURSING MR. COOK THE AMOUNT OF $608.69 COLLECTED FROM HIM PURSUANT
TO THE ABOVE PAYMENT AGREEMENT.
B-126462, APR. 7, 1958
TO THE SECRETARY OF THE INTERIOR:
ON MARCH 12, 1958, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED
RECONSIDERATION OF OUR DECISION OF FEBRUARY 14, 1958, TO YOU, WHICH HELD
THAT THE GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS MAY NOT BE PAID A
COST-OF-LIVING ALLOWANCE OUT OF THE APPROPRIATIONS OF YOUR DEPARTMENT.
WE HAVE CAREFULLY CONSIDERED ALL THE POINTS RAISED IN THE
ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER BUT WE FIND NO BASIS FOR
DISTURBING OUR PREVIOUS CONCLUSION. FOR YOUR INFORMATION, WE HAVE
EXPLORED AVENUES OTHER THAN THOSE SET OUT IN YOUR LETTER IN AN
ATTEMPT TO FIND SOME AUTHORITY FOR AUTHORIZING THE COST-OF-LIVING
ALLOWANCE TO THE GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS, BUT OUR
EFFORTS WERE UNSUCCESSFUL. THE ONLY REMEDY WE CAN SEE IS RECOURSE TO
LEGISLATION.
THE ADMINISTRATIVE ASSISTANT SECRETARY SUGGESTS THAT THE ACTION OF
THE CONGRESS IN ESTABLISHING A CEILING OF $12,500 FOR THE GOVERNMENT
COMPTROLLER OF THE VIRGIN ISLANDS MIGHT BE REGARDED AS A SALARY "FIXED
BY STATUTE" TO THE SAME EXTENT AS CERTAIN SALARIES UNDER THE
CLASSIFICATION ACT OF 1949, AS AMENDED, WHICH ESTABLISHES A RANGE OF
SALARIES AND LEAVES IN MANY AREAS CONSIDERABLE ADMINISTRATIVE DISCRETION
AS TO THE SALARIES WHICH EMPLOYEES OF GIVEN GRADES WILL RECEIVE.
CONCERNING THAT SUGGESTION WE SHOULD LIKE TO POINT OUT THAT THE
CLASSIFICATION ACT DIFFERS FROM THE STATUTE APPLICABLE TO THE
COMPTROLLER, THE VARIOUS STEPS WITHIN THE GRADES TO WHICH EMPLOYEES MAY
BE APPOINTED UNDER CERTAIN CIRCUMSTANCES, WHEREAS, THE LATTER MERELY
IMPOSES A MAXIMUM SALARY RATE.
B-134164, APR. 7, 1958
TO MR. ARTHUR J. MORRIS:
YOUR LETTER OF FEBRUARY 26, 1958, REQUESTS RECONSIDERATION OF OUR
DECISION OF JANUARY 9, 1958, B-134164, WHICH SUSTAINED THE ACTION
PREVIOUSLY TAKEN BY OUR CLAIMS DIVISION ADVISING THAT YOUR CLAIM FOR PAY
BELIEVED TO BE DUE YOUR LATE FATHER, ARTHUR MORRIS, INCIDENT TO HIS
ALLEGED SERVICE IN THE UNITED STATES ARMY DURING THE CIVIL WAR, IS NOW
BARRED.
IN OUR PRIOR DECISION WE QUOTED THE PERTINENT PROVISIONS OF THE ACT
OF DECEMBER 22, 1911, WHICH PROVIDED THAT NO CLAIMS FOR PAY AND
ALLOWANCES GROWING OUT OF THE SERVICE OF VOLUNTEERS WHO SERVED IN THE
ARMY OF THE UNITED STATES DURING THE CIVIL WAR SHALL BE CONSIDERED BY US
UNLESS FILED IN THE OFFICE OF THE AUDITOR FOR THE WAR DEPARTMENT ON OR
BEFORE DECEMBER 31, 1912. WHILE THE QUOTED PROVISIONS OF THE 1911
STATUTE WERE REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A
STAT. 641, SUCH REPEAL DOES NOT EFFECT THE STATUS OF CLAIMS WHICH
ALREADY WERE BARRED BY THE ACT.
IN ADDITION TO YOUR CLAIM BEING BARRED BY THE 1911 ACT, IT ALSO IS
BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH, WITH CERTAIN
EXCEPTIONS NOT APPLICABLE IN YOUR CASE, BARS CONSIDERATION BY US OF ANY
CLAIM NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS
AFTER THE CLAIM FIRST ACCRUED. A COPY OF THAT LAW IS ENCLOSED. YOUR
CLAIM WAS NOT FILED HERE UNTIL OCTOBER 23, 1957, WHICH, OF COURSE, WAS
NOT WITHIN THE 10-YEAR PERIOD SPECIFIED. WE REGRET ANY MISINFORMATION
WHICH YOU MAY HAVE RECEIVED FROM OTHER SOURCES CONCERNING THE PROPER
TIME FOR FILING YOUR CLAIM, BUT THE LAW CLEARLY PROHIBITS US FROM
CONSIDERING YOUR CLAIM NOW. FURTHER
B-134486, APR. 7, 1958
TO THE SECRETARY OF THE TREASURY:
REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 21, 1957, AND JANUARY
17, 1958, CONCERNING THE DEFICIENCIES OF $514,681.11 AND NEW TAIWAN
$23,304,342.82 IN THE ACCOUNTS OF PAUL D. BANNING, FORMER CHIEF
DISBURSING OFFICER BY HOWARD T. SMITH, ASSISTANT DISBURSING OFFICER,
TAIPEI, TAIWAN FOR THE PERIOD SEPTEMBER 26 TO NOVEMBER 18, 1950,
REPORTED IN CERTIFICATE OF SETTLEMENT DATED OCTOBER 2, 1957.
THE ADDITIONAL EVIDENCE TRANSMITTED WITH YOUR LETTER OF JANUARY 17,
REASONABLY SHOWS THAT THE FUNDS INVOLVED BELONGED TO THE CHINESE
GOVERNMENT, THAT THEY SHOULD NOT HAVE BEEN REFLECTED IN THE SAID
DISBURSING OFFICER'S ACCOUNTS AND THAT THE FUNDS WERE OTHERWISE
ACCOUNTED FOR PURSUANT TO PROCEDURES ARRANGED WITH THE CHINESE
GOVERNMENT. ON THE BASIS OF THE PRESENT RECORD, OUR CIVIL ACCOUNTING
AND AUDITING DIVISION THEREFORE HAS TODAY BEEN DIRECTED TO ISSUE A
SUPPLEMENTAL SETTLEMENT OF THE INVOLVED ACCOUNTS REMOVING THE CHARGES.
SUCH ACTION WILL OBVIATE THE NEED FOR THE RELIEF REQUESTED FOR MR.
BANNING, AND WE HAVE TODAY NOTIFIED THE ATTORNEY GENERAL OF THE ACTION
TAKEN SO THAT ANY COLLECTION ACTION WHICH MAY HAVE BEEN TAKEN AGAINST
THE DISBURSING OFFICER OR HIS SURETY WILL BE DISCONTINUED.
B-135141, APR. 7, 1958
TO MRS. E. ELIZABETH STAHL:
WE HAVE RECEIVED A LETTER DATED MARCH 7, 1958, FROM YOUR ATTORNEY,
WITH FURTHER REFERENCE TO GENERAL ACCOUNTING OFFICE SETTLEMENT OF
JANUARY 18, 1957, WHICH DISALLOWED YOUR CLAIM AS EXECUTRIX OF THE WILL
OF THE LATE EDWARD L. STAHL FOR COMPENSATION DUE THE DECEDENT AS AN
EMPLOYEE OF THE SAMPSON AIR FORCE BASE, GENEVA, NEW YORK, AT THE TIME OF
DEATH.
IN OFFICE LETTER DATED FEBRUARY 24, 1958, WE ADVISED YOU OF THE ORDER
OF PRECEDENCE ESTABLISHED BY THE ACT OF AUGUST 3, 1950, 64 STAT. 395, 5
U.S.C. 61F, AND THAT THEREUNDER, IN THE ABSENCE OF EVIDENCE ESTABLISHING
THAT THE DECEDENT'S SECOND WIFE, GERTRUDE, AND HIS THREE CHILDREN (AND
THE DESCENDANTS OF SUCH CHILDREN, IF ANY) PREDECEASED HIM, THE UNPAID
COMPENSATION DUE THE DECEDENT MAY NOT BE PAID TO YOU AS EXECUTRIX OF HIS
WILL. YOUR ATTORNEY EXPRESSES THE VIEW THAT THE FAILURE TO LOCATE ANY
OF THE PARTIES ENTITLED TO MAKE A CLAIM WOULD ESTABLISH THE PRESUMPTION
THAT THEY DO NOT EXIST--- THE FACT THAT MEMBERS OF THE STAHL FAMILY HAD
NOT HEARD FROM ANY PURPORTED WIFE OR CHILDREN, OR THEIR DESCENDANTS, FOR
MORE THAN 7 YEARS WOULD CREATE A PRESUMPTION OF PRIOR DEATH.
IT IS GENERALLY HELD BY THE COURTS THAT, WHEN A PERSON APPEARS TO
HAVE BEEN LIVING AT A CERTAIN TIME, THE PRESUMPTION, IN THE ABSENCE OF
PROOF TO THE CONTRARY, IS THAT HE IS STILL ALIVE UNTIL SUCH PRESUMPTION
IS OVERCOME BY THE MORE POTENT PRESUMPTION OF DEATH. UNITED STATES V.
WILDCAT, 255 U.S. 111; WHITE V. METROPOLITAN LIFE INS. CO., 100 F.2D
691; 16 AM.JUR., DEATH, SEC. 13. ALSO, WHILE THE LAW GENERALLY
PRESUMES "THAT A PERSON WHO HAS BEEN CONTINUALLY ABSENT FROM HIS HOME OR
PLACE OF RESIDENCE, AND UNHEARD FROM OR BY THOSE WHO, IF HE HAD BEEN
ALIVE, WOULD NATURALLY HAVE HEARD OF HIM, THROUGH THE PERIOD OF SEVEN
YEARS, IS DEAD," THE PRESUMPTION DOES NOT ARISE WHEN THE CIRCUMSTANCES
WHICH REASONABLY ACCOUNT FOR HIS ABSENCE AND ABSTENTION FROM
COMMUNICATION ARE REASONABLY EXPLAINED WITHOUT ASSUMING HIS DEATH, OR
WHERE DILIGENT INQUIRY AS TO WHETHER HE IS ALIVE OR DEAD HAS NOT BEEN
MADE. BUTLER V. NATURAL LIFE INS. CO. OF NEW YORK, 121 N.E. 758, 760.
THE EXISTENCE OF ANY MOTIVE FOR THE DISAPPEARANCE AND FAILURE TO
COMMUNICATE USUALLY IS SUFFICIENT TO PREVENT THE PRESUMPTION FROM
ARISING. RE TALBOT, 146 N.E. 1, AND NOTE 64 A.L.R. 1288.
SINCE THE EVIDENCE SHOWS THAT THE DECEDENT HAD THREE CHILDREN AND A
WIFE, GERTRUDE, AND NO EVIDENCE HAS BEEN PRESENTED AS TO WHERE THEY
RESIDED OR THAT THEY HAVE ABSENTED THEMSELVES FROM THEIR HOMES AND HAVE
NOT BEEN HEARD FROM FOR MORE THAN 7 YEARS BY THOSE, WHO IF THEY WERE
ALIVE, WOULD NORMALLY HAVE HEARD FROM OR OF THEM, WE ARE UNABLE TO
CONCLUDE THAT THEY ARE DEAD, THAT THEY PREDECEASED THE EMPLOYEE, EDWARD
L. STAHL AND THAT, IF THE CHILDREN ARE DEAD, THEY LEFT NO DESCENDENTS
SURVIVING THEM.
THE SITUATION SEEMS SOMEWHAT ANALOGOUS TO THAT CONSIDERED IN RE
POPPITZ- WILL, 101 N.Y.S.2D 119, CONCERNING A WILL BEQUEATHING CERTAIN
AMOUNTS OF MONEY TO TESTATRIX- FOUR NAMED COUSINS AND PROVIDING THAT
LEGACY WOULD BECOME PART OF RESIDUARY ESTATE IF NONE OF THE COUSINS OF
THEIR ISSUE SHOULD SURVIVE TESTATRIX. DILIGENT EFFORT BY THE EXECUTORS
THROUGH THE YEARS IN EVERY AVENUE OF SEARCH KNOWN TO EXPERIENCED
INVESTIGATORS, AS WELL AS INDEPENDENT INVESTIGATIONS BY SPECIAL
GUARDIANS, HAD PRODUCED NOTHING BUT NEGATIVE EVIDENCE WITH RESPECT TO
THE FOUR COUSINS. IT WAS NOT KNOWN WHERE THE COUSINS WERE BORN, THEIR
DATES OF BIRTH, THEIR RESIDENCES AT ANY POINT OF TIME, THEIR MARITAL
STATUS, OR WHETHER OR NOT THEY HAD DIED; AND THE TOTAL ABSENCE OF ANY
CONCRETE DATA REGARDING THEM IMPELLED A RESIDUARY LEGATEE TO SUGGEST
THAT "THEY MAY PERHAPS HAVE BEEN ONLY A FIGMENT OF TESTATRIX-
IMAGINATION AND PERHAPS NEVER EVEN IN EXISTENCE.' NOTWITHSTANDING, THE
COURT STATED THAT THE RESIDUARY LEGATEES HAD NOT SUSTAINED THEIR BURDEN
OF PROVING THAT THE FOUR COUSINS PREDECEASED THE TESTATRIX, LEAVING NO
ISSUE SURVIVING THE TESTATRIX, AND HELD THAT THE LEGACIES HAD NOT
LAPSED.
ON THE PRESENT RECORD THE PROTECTING OF THE INTEREST OF THE UNITED
STATES APPEARS TO REQUIRE THAT WE PROCEED ON THE BASIS THAT THE WIFE,
GERTRUDE, AND THE CHILDREN (OR THEIR DESCENDANTS, IF ANY/--- OR SOME ONE
OF SUCH PERSONS HAVING A PRIOR RIGHT TO THE COMPENSATION UNDER THE ACT
OF AUGUST 3, 1950--- IS OR MAY BE ALIVE UNTIL THE FACT OF THEIR DEATHS
PRIOR TO THAT OF THE DECEASED EMPLOYEE IS ESTABLISHED OR JUDICIALLY
DETERMINED BY A COURT OF COMPETENT JURISDICTION. THEREFORE, AND IN THE
ABSENCE OF EVIDENCE ESTABLISHING SUCH DEATHS OR AN AUTHENTIC COPY OF A
DECREE OF COURT ESTABLISHING THE DEATH OF SUCH PERSONS PRIOR TO THAT OF
THE DECEASED EMPLOYEE, THE UNPAID COMPENSATION DUE MAY NOT BE PAID TO
YOU AS EXECUTRIX OF HIS WILL AND THE ACTION TAKEN IN DISALLOWING YOUR
CLAIM MUST BE SUSTAINED.
B-135492, APR. 7, 1958
TO PIONEER WAGON WORKS:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, PROTESTING OUR
SETTLEMENT OF FEBRUARY 10, 1958, DISALLOWING YOUR CLAIM FOR REFUND OF
$169 COLLECTED FROM YOU ON ACCOUNT OF EXCESS COST INCURRED BY THE
GOVERNMENT UPON YOUR FAILURE TO FURNISH SWING SEATS UNDER CONTRACT NO.
14-10-028-1122 DATED NOVEMBER 6, 1956.
THE SWING SEATS WHICH YOU WERE OBLIGATED TO DELIVER UNDER YOUR
CONTRACT WERE DESCRIBED AS FOLLOWS:
"RUBBER SWING SEAT, WITHOUT CHAIN, APPROX. 1 1/2 INCHES THICK, 6 1/2
INCHES WIDE AND 19 1/2 INCHES LONG. SIMILAR OR EQUAL TO AMERICAN
PLAYGROUND DEVICE COMPANY NO. RSS.'
YOU DID NOT PROCEED WITH DELIVERY OF THE SEATS UPON THE AWARD OF THE
CONTRACT BUT SUBMITTED FOR APPROVAL A SAMPLE SEAT DESCRIBED BY YOU AS A
STEEL BOARD SWING WITH NEOPRENE COVERING. YOU WERE ADVISED THAT THE
SAMPLE SEAT WAS NOT IN ACCORDANCE WITH THE SPECIFICATIONS AND WERE
ADVISED TO FURNISH SWING SEATS IN STRICT ACCORDANCE WITH THE
SPECIFICATIONS WHICH YOU FAILED TO DO.
YOU MAINTAIN THAT THE SAMPLE SWING SEAT SUPPLIED BY YOU WAS
RESPONSIVE TO THE SPECIFICATIONS ALTHOUGH IT WAS A STEEL FRAME WITH
PLASTIC COVERING IN CONTRADISTINCTION TO THE RUBBER-COVERED WOODEN TYPE
FRAME UTILIZED IN AMERICAN PLAYGROUND RSS CONSTRUCTION. THE BELT SEAT
SAMPLE PROFFERED BY YOU, AS AN ALTERNATIVE, LIKEWISE WAS REJECTED AS NOT
BEING IN ACCORDANCE WITH THE SPECIFICATIONS.
THERE IS NOTHING IN THE RECORD TO SUGGEST ARBITRARY ACTION ON THE
PART OF THE GOVERNMENT PROCUREMENT OFFICERS RELATIVE TO REJECTING THE
SAMPLES SUBMITTED BY YOU. IT APPEARS FROM YOUR LETTER OF JANUARY 25,
1957, THAT YOU HAD BEEN PRODUCING A WOOD BOARD SWING SEAT, PRESUMABLY
MEETING SPECIFICATIONS, BUT THAT YOU OFFERED YOUR STEEL BOARD SEAT WITH
NEOPRENE COVERING BECAUSE YOU BELIEVED IT TO BE A BETTER PRODUCT. IN
CONNECTION WITH THE RELATIVE MERITS OF TWO PRODUCTS, THE SELECTION OF
ONE TO THE EXCLUSION OF ANOTHER, IN THE ABSENCE OF FRAUD OR FAVORITISM
AMOUNTING THE FRAUD, IS A MATTER OUTSIDE THE AMBIT OF OUR CONSIDERATION.
IT IS THE FUNCTION OF THE PROCURING AGENCIES TO DETERMINE WHAT TYPE OF
SUPPLIES WILL BEST MEET THEIR NEEDS, AND IT IS NOT FOR OUR OFFICE TO
DETERMINE THE NEEDS OF THE GOVERNMENT OR TO COMPEL GOVERNMENT
PROCUREMENT OFFICERS TO SPECIFY ONE PRODUCT OVER ANOTHER. SEE 36 COMP.
GEN. 251. MOREOVER YOUR INFERENCE THAT THE SAMPLES OFFERED BY YOU DID
NOT CONFORM TO THE PERSONAL NOTIONS OF THE PARK MAINTENANCE
SUPERINTENDENT MAY NOT BE ACCEPTED AS RELIEVING YOU OF THE EXCESS COSTS
SINCE THE PRIMARY QUESTION IS WHETHER THE SWING SEATS MET THE
SPECIFICATIONS. AS INDICATED ABOVE, THE PRESENT RECORD SUPPORTS THE
ADMINISTRATIVE DETERMINATION THAT THE SAMPLE SWING SEAT OFFERED BY YOU
FAILED TO MEET THE CONTRACT SPECIFICATIONS.
B-135645, APR. 7, 1958
TO MR. WHILHO KALLIO, CONTRACTING OFFICER, POST OFFICE DEPARTMENT:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1958, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
WHICH THE AMERICAN STEEL AND WIRE DIVISION OF THE UNITED STATES STEEL
CORPORATION ALLEGES IT MADE IN ITS BID OPENED ON MARCH 11, 1958.
BY INVITATION NO. 2706, BIDS WERE REQUESTED FOR FURNISHING 80,000
POUNDS OF COLD ROLLED STEEL STRIP IN COILS IN ACCORDANCE WITH THE
GOVERNMENT'S SPECIFICATIONS. THE BID OF AMERICAN STEEL AND WIRE WAS NOT
FORWARDED HERE BUT IT APPERS FROM THE ABSTRACT OF BIDS THAT THE COMPANY
OFFERED TO FURNISH THE STEEL STRIP AT A PRICE OF $0.108883 PER POUND
SUBJECT TO A MAXIMUM 10 PERCENT PRICE ESCALATION. THE ABSTRACT OF BIDS
ALSO SHOWS THAT THE THREE OTHER BIDS WERE $0.1295 PER POUND, $0.1427 PER
POUND AND $0.142753 PER POUND (PLUS 10 PERCENT ESCALATOR CLAUSE).
BY LETTER DATED MARCH 21, 1958, AMERICAN STEEL AND WIRE ADVISED YOU
AS FOLLOWS:
"INVITATION NO. 2706
BIDS OPENED MARCH 11, 1958
GALVANIZED STRIP
"PLEASE REFER TO OUR BID SUBMITTED ON THE SUBJECT INVITATION AND, IN
PARTICULAR TO THE UNIT PRICE OF ?108883 PER POUND INDICATED THEREIN.
"WE REGRET TO ADVISE THAT, IN DEVELOPING A PRICE FOR THIS MATERIAL,
WE OMITTED OUR PUBLISHED EXTRA FOR ELECTRO-GALVANIZED FINISH OF $2.65
PER CWT. OR ?0265 PER POUND.
"FOR YOUR INFORMATION WE ARE INDICATING BELOW THE COMPLETE PRICE
BREAKDOWN OF THE SUBJECT MATERIAL:
CHART
$7.15 BASE
2.30 SIZE
2.65 GALVANIZING
.6625 GALVANIZING
.25 SKIDS
.5253 FREIGHT
-------------
$13.5378 TOTAL PRICE PER CWT.
(?135378 PER POUND)
"AS A MATTER OF ADDITIONAL INFORMATION, THIS PRODUCT REQUIRES EXTRA
HEAVY ZINC COATING AND, THEREFORE, TAKES OUR REGULAR $2.65 GALVANIZING
EXTRA PLUS AN ADDITIONAL EXTRA OF 25 PERCENT OR .6625 PER CWT. IT WAS
IN ASSESSING THESE TWO GALVANIZING EXTRAS THAT WE MADE THIS CLERICAL
ERROR.
"WE RESPECTFULLY REQUEST THE ABOVE MODIFICATION IN OUR PRICE BE
INCORPORATED IN OUR BID AND THAT THIS OMISSION BE CONSIDERED ON THE
GROUNDS OF AN OBVIOUS ERROR. YOUR COOPERATION IN THIS MATTER WILL BE
GREATLY APPRECIATED.'
IN RESPONSE TO OUR ORAL REQUEST, THE COMPANY HAS SUBMITTED
PHOTOSTATIC COPIES OF ITS WORKSHEET AND PRINTED PRICE LISTS. THE
WORKSHEET SHOWS THAT ONLY ONE GALVANIZING CHARGE OF $0.663 WAS INCLUDED
IN THE COMPANY'S BID PRICE OF $10.883 PER CWT. THE PRINTED PRICE LIST
ALSO APPEARS TO CONFIRM THE COMPANY'S CLAIM OF ERROR.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE IS NO ROOM
FOR DOUBT THAT THE COMPANY MADE AN ERROR IN ITS BID, AS ALLEGED.
ACCORDINGLY, THE BID OF AMERICAN STEEL AND WIRE MAY BE DISREGARDED IN
MAKING THE AWARD.
B-135646, APR. 7, 1958
TO CAPTAIN J. J. CLUBA, JR., DISBURSING OFFICER, DEPARTMENT OF THE
ARMY:
BY SECOND INDORSEMENT DATED MARCH 25, 1958 (D.O. NUMBER 327), THE
CHIEF OF FINANCE FORWARDED YOUR LETTER DATED FEBRUARY 13, 1958,
SUBMITTING FOR DECISION A MILITARY PAY ORDER (DD FORM 114), DATED
FEBRUARY 10, 1958, STATED IN FAVOR OF CAPTAIN OLA W. DOYLE, N 702 268,
ARMY NURSE CORPS, FOR INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN
OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD BEGINNING JANUARY 1,
1958.
IN THE OFFICER'S APPLICATION FOR SUCH ALLOWANCE (DD FORM 137) DATED
DECEMBER 16, 1957, SHE CERTIFIES THAT THE ACTUAL LIVING EXPENSES OF HER
HUSBAND, 53 YEARS OF AGE, AVERAGE $200 A MONTH, WHICH AMOUNT IS
CONTRIBUTED BY HER, AND THAT HE HAS NO INCOME FROM OTHER SOURCES. IN A
STATEMENT DATED FEBRUARY 4, 1958, SHE SAYS HER HUSBAND HAS A COMPOUND
FRACTURE OF THE LEFT FEMUR WITH NON-UNION; THAT HE HAS HAD MAJOR
SURGERY SEVERAL TIMES DURING THE PAST FIVE YEARS WHICH INCLUDED BONE
PLATES, PINS, GRAFTS AND AN INTRAMEDULLARY ROD; THAT IF AND WHEN THERE
IS SUFFICIENT BLOOD SUPPLY TO THE AFFECTED AREA THE DOCTOR PLANS TO DO
ANOTHER BONE GRAFT; AND THAT WHILE HER HUSBAND IS AMBULATORY WITH THE
AID OF CRUTCHES, HE IS UNABLE TO WORK. IN A STATEMENT DATED FEBRUARY 3,
1958, DR. H. E. MARTIN, VETERANS ADMINISTRATION HOSPITAL, FAYETTEVILLE,
ARKANSAS, SAYS THAT WHILE THE HUSBAND IS AMBULATORY AND GETTING AROUND,
THE FRACTURE OF THE LEFT FEMUR HAS NOT PERFECTLY HEALED BUT IS IN GOOD
APPOSITION WITH AN INTRAMEDULLARY ROD BEING IN PLACE.
SECTION 102/G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804,
PROVIDES THAT THE TERM ,DEPENDENT" SHALL INCLUDE IN THE CASE OF FEMALE
MEMBERS OF THE UNIFORMED SERVICES, A HUSBAND, BUT ONLY WHEN THE HUSBAND
IS IN FACT DEPENDENT UPON THE FEMALE MEMBER FOR OVER HALF OF HIS
SUPPORT. TO BE REGARDED AS IN FACT DEPENDENT UPON HIS WIFE IN THE
MILITARY SERVICE, A HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT ON ACCOUNT
OF PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON. 32 COMP. GEN.
364.
SINCE IT APPEARS FROM THE EVIDENCE SUBMITTED THAT THE HUSBAND HAS
BEEN UNABLE TO SUPPORT HIMSELF DUE TO HIS DISABILITY, AT LEAST DURING
THE PERIOD JANUARY 1 THROUGH FEBRUARY 3, 1958, THE OFFICER WILL BE
CONSIDERED AS HAVING A DEPENDENT HUSBAND WITHIN THE MEANING OF THE
APPLICABLE STATUTE AND PAYMENT OF INCREASED BASIC ALLOWANCE FOR QUARTERS
AS FOR AN OFFICER WITH A DEPENDENT HUSBAND MAY BE MADE TO CAPTAIN DOYLE
ON THE VOUCHER SUBMITTED FOR THAT PERIOD. ALSO, PAYMENT MAY BE
CONTINUED FOR SUBSEQUENT PERIODS SO LONG AS IT IS SHOWN BY COMPETENT
MEDICAL EVIDENCE THAT THE HUSBAND IS UNABLE TO RESUME GAINFUL EMPLOYMENT
DUE TO HIS DISABILITY.
THE MILITARY PAY RECORD AND THE OTHER PAPERS SUBMITTED WITH YOUR
LETTER ARE ENCLOSED. THIS DECISION, OR A COPY, SHOULD BE INCLUDED IN
THE ACCOUNT WHEREIN CREDIT FOR PAYMENT UNDER THE DECISION IS FIRST
CLAIMED.
B-135137, APR. 4, 1958
TO MR. JESSE C. DUKE, JR. :
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17, 1958, CONCERNING
YOUR INDEBTEDNESS TO THE UNITED STATES, IN THE AMOUNT OF $116.17,
REPRESENTING AN ERRONEOUS PAYMENT OF MILEAGE AND PER DIEM MADE INCIDENT
TO YOUR SERVICE AS FIRST LIEUTENANT, UNITED STATES AIR FORCE, SERIAL NO.
AO 87 1882.
THE RECORD SHOWS THAT YOU WERE RELEASED FROM ASSIGNMENT AT CAMP
KILMER, NEW JERSEY, AND TRANSFERRED TO SAINT JOHNES, NEWFOUNDLAND, BY
ORDERS DATED AUGUST 6, 1951. PURSUANT THERETO, YOU WERE PAID MILEAGE
AND PER DIEM FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE IN THE AMOUNT
OF $117.97. HOWEVER, UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS AN
EXCEPTION WAS TAKEN TO THIS PAYMENT, IN THE AMOUNT OF $116.17, FOR THE
REASON THAT THE AIR FORCE REGULATIONS IN EFFECT AT THE TIME REQUIRED THE
USE OF GOVERNMENT TRANSPORTATION. SEE AIR FORCE REGULATIONS 75-12,
PARAGRAPHS 1-3, DATED JANUARY 23, 1951.
SPECIFICALLY, PARAGRAPH 2 (C) OF THE AIR FORCE REGULATIONS PROVIDED
THAT ALL PERSONNEL WOULD BE "REQUIRED TO UTILIZE NSTS FACILITIES" FOR
SUCH TRAVEL INCIDENT TO A CHANGE OF OFFICIAL STATION WHEN THAT WAS THE
ONLY GOVERNMENT TRANSPORTATION AVAILABLE, EXCEPT THAT ITS USE WOULD NOT
BE REQUIRED IF NOT ACCEPTABLE FOR CERTAIN SPECIFIED REASONS. PARAGRAPH
3 PROVIDED FOR AN ADMINISTRATIVE DETERMINATION OF NONAVAILABILITY OF
GOVERNMENT TRANSPORTATION, IF, IN FACT, GOVERNMENT TRANSPORTATION FOR
CONSIDERATION WAS NOT ACCEPTABLE FOR THE REASONS STATED IN THE
REGULATIONS.
UNDER THE ABOVE-CITED REGULATIONS, THE USE OF PRIVATELY OWNED
CONVEYANCE ON A REIMBURSABLE BASIS WAS AUTHORIZED ONLY WHEN IT WAS
DETERMINED BY APPROPRIATE AUTHORITY OF THE SERVICE THAT ADEQUATE
GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE OR THAT THE USE THEREOF
WOULD INVOLVE DELAY OF MORE THAN 30 DAYS. IF THESE CONDITIONS WERE
FOUND TO EXIST, THE REGULATIONS FURTHER PROVIDED (PARAGRAPH 3 (A) ( THAT
IT SHOULD BE SO INDICATED IN THE TRAVEL ORDERS. YOUR ORDERS CONTAINED
ONLY THE INITIALS "TPA" (TRAVEL BY PRIVATELY OWNED CONVEYANCE
AUTHORIZED) AND, HENCE, DO NOT EVIDENCE AN ADMINISTRATIVE DETERMINATION
OF NONAVAILABILITY OF GOVERNMENT TRANSPORTATION AS REQUIRED BY THE AIR
FORCE REGULATIONS. WHILE YOU SAY THAT WHEN YOU WERE TRANSFERRED TO
NEWFOUNDLAND YOU AND OTHER MEMBERS BEING SO TRANSFERRED WERE URGED TO
DRIVE BECAUSE SUFFICIENT ACCOMMODATIONS ABOARD SHIP WERE NOT AVAILABLE,
NO EVIDENCE IN SUPPORT OF SUCH STATEMENT HAS BEEN FURNISHED.
ACCORDINGLY, UPON THE BASIS OF THE RECORD BEFORE US, THE PAYMENT WAS NOT
AUTHORIZED.
CONCERNING THE ADMINISTRATIVE PAYMENT, IT CONSISTENTLY HAS BEEN HELD
THAT THE UNITED STATES IS NOT BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT
MADE THROUGH ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT
OR MISTAKE OF LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO
RIGHT TO THEM BUT ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND
THEM. SEE, IN THIS CONNECTION, 29 COMP. GEN. 520, 523, AND THE COURT
CASES CITED IN THAT DECISION.
B-135510, APR. 4, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 13, 1958, FROM THE
ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO
THE ACTION TO BE TAKEN CONCERNING AN ERROR GEORGE T. GERHARDT COMPANY,
INC., ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO.
DA-33-031-QM-20469, DATED NOVEMBER 22, 1957, IS BASED.
BY INVITATION NO. QM-33-031-58-126 THE QUARTERMASTER PURCHASING
AGENCY, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, REQUESTED BIDS ON
VARIOUS QUANTITIES OF CUPS, SOUP PLATES, DINNER PLATES, SUGAR BOWLS, AND
SALT SHAKERS, ALL IN ACCORDANCE WITH THE NAMED SPECIFICATION, WITH
CERTAIN EXCEPTIONS.
THE FOLLOWING BIDS SUBMITTED BY GEORGE T. GERHARDT COMPANY, INC.,
WERE THE LOWEST RECEIVED ON ITEMS 1 THROUGH 4:
CHART
ITEM 1 $0.55
ITEM 2 0.275
ITEM 3 0.275
ITEM 4 0.97
OTHER BIDS ON THOSE ITEMS RANGED AS FOLLOWS:
CHART
ITEM 1 $0.69 TO $1.58
ITEM 2 0.544 TO 1.28
ITEM 3 0.565 TO 1.28
ITEM 4 1.20 TO 1.77
BECAUSE OF THE WIDE DISCREPANCY IN THE BIDS, THE COMPANY WAS ASKED TO
VERIFY ITS BID PRICES. THE COMPANY CONFIRMED THE PRICES ON ITEMS 1, 2,
AND 3, STATING THAT IT HAD MADE THESE ITEMS BEFORE, BUT REQUESTED THAT
THE BID ON ITEM 4 BE DISREGARDED SINCE IT HAD FAILED TO INCLUDE THE DIE
COST. WORKSHEETS AND OTHER DATA ON ITEM 4 WERE SUBMITTED IN SUPPORT OF
THE ERROR ALLEGED AND THE COMPANY WAS PERMITTED TO WITHDRAW ITS BID ON
THIS ITEM. AWARD WAS MADE ON NOVEMBER 22, 1957, FOR ITEMS 1, 2, AND 3
AT THE BID PRICES. BY SUPPLEMENTAL AGREEMENT, DATED DECEMBER 12, 1957,
ITEM 1 WAS CANCELED AT NO COST TO THE GOVERNMENT, AS THE ITEM WAS NO
LONGER NEEDED.
BY LETTER OF DECEMBER 24, 1957, THE CONTRACTOR ALLEGED IT HAD MADE AN
ERROR IN ITS BID ON ITEMS 2 AND 3 IN THAT IN ESTIMATING THE AMOUNT OF
ALUMINUM REQUIRED FOR EACH ITEM IT HAD USED A FIGURE OF 25 PERCENT OF A
POUND, WHEREAS IT SHOULD HAVE USED 65 PERCENT OF A POUND, AND THAT THE
COST OF THE ALUMINUM ALONE WOULD EXCEED THE CONTRACT PRICE. A WORKSHEET
SUBMITTED WITH THIS LETTER INDICATED THAT THE CONTRACTOR HAD USED THE
SAME COSTS FOR BOTH THE SOUP PLATES AND DINNER PLATES RESULTING IN A
COST OF $0.275 EACH, THE AMOUNT BID. THE CONTRACTOR REQUESTED AN
INCREASE IN ITEMS 2 AND 3 TO $0.47635 EACH. THE COST AND PRICE ANALYSIS
BRANCH OF THE DEPOT QUESTIONED THE 65 PERCENT OF A POUND FIGURE AND
FURTHER INQUIRY WAS MADE OF THE CONTRACTOR AS TO HOW HE HAD ARRIVED AT
SUCH FIGURE. THE CONTRACTOR FURNISHED CERTAIN INFORMATION SHOWING HOW
HE ARRIVED AT THE PRICE INCREASE. THE REPORT OF THE SUCCESSOR
CONTRACTING OFFICER STATES THAT THE CONTRACTOR'S FIGURES WERE NOT
CORRECTLY COMPUTED ON THE CORRECT WEIGHT OF ALUMINUM REQUIRED, BUT THAT,
IF FIGURED AT THE CORRECT WEIGHT, THE REVISED PRICE SHOULD AMOUNT TO
$0.45719 PER UNIT OR A TOTAL INCREASE IN THE CONTRACT PRICE OF
$4,197.66.
THE BASIC QUESTION INVOLVED IS NOT WHETHER THE BIDDER MADE AN ERROR
IN ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY
THE ACCEPTANCE OF THE COMPANY'S BID. WHILE IT IS TRUE THAT THE
CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE BY REASON OF COMPARATIVE
PRICES THAT AN ERROR MAY HAVE BEEN MADE IN THE LOW BID ON ITEMS 2 AND 3,
THE RECORD DOES NOT INDICATE THAT THE PRICE DIFFERENCES WERE SO GREAT
THAT THE LOW BID PRICE NECESSARILY MUST HAVE BEEN ERRONEOUS. UNDER THE
CIRCUMSTANCES, THE ONLY DUTY IMPOSED ON THE CONTRACTING OFFICER PRIOR TO
AWARD WAS TO VERIFY THAT THE BIDDER INTENDED TO SUBMIT A BID OF $0.275
EACH ON THE ITEMS AND INTENDED TO BE BOUND BY THE CONTRACTING OFFICER'S
ACCEPTANCE THEREOF. SUCH DUTY WAS COMPLETELY DISCHARGED WHEN THE
CONTRACTING OFFICER REQUESTED VERIFICATION OF THE PRICES BID. THE
COMPANY REPLIED THAT THE PRICES BID ON ITEMS 2 AND 3 WERE "PERFECTLY
SATISFACTORY" AS IT HAD MADE THESE ITEMS BEFORE.
THE GENERAL RULE IS THAT WHERE A BIDDER IS AFFORDED A PROPER
OPPORTUNITY TO VERIFY HIS BID PRICE PRIOR TO AWARD, THE CONTRACTING
OFFICER IS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE
CORRECTNESS OF THE BID. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 97A.
774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942.
ON THE BASIS OF THE PRESENT RECORD IT MUST THEREFORE BE CONCLUDED
THAT ANY ERROR WHICH WAS DISCOVERED IN THE BID PRICE AFTER VERIFICATION
WAS UNILATERAL--- NOT MUTUAL--- SALIGMAN ET AL. V. UNITED STATES, 56
F.SUPP. 505, 507; OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS.
249, 259, AND THAT ACCEPTANCE OF THE VERIFIED BID CONSUMMATED A VALID
AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE
PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249
U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259
U.S. 75.
UNDER THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS ON WHICH PAYMENTS IN
EXCESS OF THE CONTRACT PRICE MAY BE MADE TO THE CONTRACTOR.
THE PAPERS, WITH THE EXCEPTION OF A COPY OF THE SUCCESSOR CONTRACTING
OFFICER'S REPORT AND RECOMMENDATION, WITH ATTACHMENTS, ARE RETURNED
HEREWITH.
B-135531, APR. 4, 1958
TO DISBURSING OFFICER, CORPS OF ENGINEERS:
BY 2ND INDORSEMENT DATED MARCH 10, 1958, FILE ENGCR 167 (27 FEB 58)
DA 01-076-ENG-3029, THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF
THE ARMY, WASHINGTON, D.C., FORWARDED TO OUR OFFICE YOUR COMMUNICATION
OF FEBRUARY 27, 1958, FILE SALVF/SEC, WHEREIN YOU REQUEST A DECISION AS
TO THE PROPRIETY OF PAYING A VOUCHER FOR $16,168.88 TO THE WESTINGHOUSE
ELECTRIC CORPORATION UNDER CONTRACT NO. DA-01-076-ENG-3029.
UNDER THE CONTRACT THE WESTINGHOUSE ELECTRIC CORPORATION AGREED TO
FURNISH TO THE MOBILE DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE
ARMY, ALL LABOR, MATERIALS, PLANT AND EQUIPMENT AND PERFORM, IN STRICT
ACCORDANCE WITH APPLICABLE SPECIFICATIONS, DRAWINGS, ETC., ALL WORK
NECESSARY TO DESIGN, MANUFACTURE, AND DELIVER TWO POWER TRANSFORMERS, AS
SPECIFIED, TOGETHER WITH CERTAIN ACCESSORIES, SPARE PARTS AND, AT THE
OPTION OF THE GOVERNMENT, THE SERVICES OF AN ERECTING ENGINEER, FOR THE
TOTAL SUM OF $253,367. IT APPEARS THAT ALL MATERIALS AND EQUIPMENT WERE
SCHEDULED FOR DELIVERY NOT LATER THAN AUGUST 1, 1956, BUT THE CONTRACT
CONTAINED NO PROVISION FOR LIQUIDATED DAMAGES. YOU REPORT THAT DELIVERY
OF PARTS AND EQUIPMENT WAS MADE ON VARIOUS DATES, THE LATEST OF WHICH
WAS DECEMBER 26, 1956. ALSO, YOU REPORT THAT THE SERVICE OF THE
ERECTION ENGINEER WAS INVOKED IN MAY 1957 AND THE TOTAL CONTRACT
COMPLETED ON MAY 19, 1957. CONTRACT NO. DA-01-076-ENG-3029 CONTAINED,
UNDER PART III, SPECIAL CONDITIONS, PARAGRAPH SC-14, PROVISIONS FOR THE
ADJUSTMENT OF PRICES FOR THE LABOR AND MATERIAL WHICH SET FORTH CERTAIN
METHODS AND FORMULAS FOR COMPUTING ESCALATED PRICES BASED UPON, AMONG
OTHERS, WORK PERFORMED IN ANY ONE MONTH WITHOUT LIMITATION AS TO THE
CONTRACT COMPLETION DATE. THE WESTINGHOUSE ELECTRIC CORPORATION HAS
SUBMITTED TO YOU FOR PAYMENT UNDER THE CONTRACT A VOUCHER FOR
$16,168.88, WHICH IS BASED UPON ESCALATION PRICES FOR THE MONTH OF
AUGUST 1956. SINCE YOU HAD DOUBT AS TO THE PROPRIETY OF PAYMENT DUE TO
THE METHOD OF COMPUTING THE ESCALATED PRICES INCLUDED IN THE VOUCHER,
YOU HAVE SUBMITTED THE MATTER TO US FOR A DECISION.
SUB-PARAGRAPH (C) OF PARAGRAPH SC-14, OF PART III OF THE SPECIAL
CONDITIONS OF CONTRACT NO. DA-01-076-ENG-3029 PROVIDES, IN PERTINENT
PART, THAT:
"THE ESTIMATES OF WORK SUBMITTED BY THE CONTRACTOR AND APPROVED, AND
UPON WHICH PAYMENT IS MADE BY THE CONTRACTING OFFICER, SHALL BE USED AS
THE BASIS FOR ADJUSTMENTS IN PAYMENTS. THE TOTAL AMOUNT FOR WORK
PERFORMED IN ANY ONE MONTH SHALL BE THE BASIC UNIT UPON WHICH
ADJUSTMENTS IN PAYMENTS ARE TO BE MADE.'
IN THE DECISION CITED IN YOUR LETTER, 34 COMP. GEN. 565, WE HELD THAT
ACCEPTANCE OF LATE DELIVERY UNDER A CONTRACT CONTAINING AN ESCALATOR
CLAUSE DOES NOT REQUIRE THE GOVERNMENT TO ASSUME ADDITIONAL COSTS AS A
RESULT OF INCREASES IN PRICES OCCURRING AFTER DATE DELIVERY SHOULD HAVE
BEEN MADE. AND, WE AGREE THAT IT IS NOT LIKELY, OR EVEN TO BE
REASONABLY EXPECTED, THAT THE WESTINGHOUSE ELECTRIC CORPORATION WOULD
ACTUALLY HAVE PERFORMED SOME WORK ON AUGUST 1, 1956, AND STILL MAKE
DELIVERY OF THE EQUIPMENT ON THE SAME DATE. MOREOVER, OF MORE
IMPORTANCE IS THE FACT THAT THERE WOULD BE ONLY ONE DAY, AUGUST 1, 1956,
UPON WHICH THE "ESTIMATES" AND "TOTAL AMOUNT OF WORK PERFORMED IN ANY
ONE MONTH," REFERRED TO IN SUB-PARAGRAPH (A), COULD BE BASED FOR THE
PURPOSE OF AN ADJUSTMENT IN PAYMENTS. IN OUR VIEW THE ESTIMATES OF THE
WORK SUBMITTED OR PERFORMED BY THE CONTRACTOR FOR ONLY ONE DAY OUT OF A
MONTH CANNOT BE SAID TO REPRESENT A PROPER BASIS FOR APPLYING THAT PART
OF THE PRICE ESCALATION CLAUSE, AND THERE IS NOTHING TO INDICATE THAT
SUCH A RESULT WAS INTENDED BY THE CONTRACTING PARTIES. LIKEWISE, AS
SUGGESTED IN YOUR SUBMISSION, THE PRICE ADJUSTMENT PROVISIONS OF THE
CONTRACT MAY NOT BE CONSTRUED TO APPLY TO THE OPTIONAL ITEM FOR THE
ERECTION ENGINEER'S SERVICES.
ACCORDINGLY, WE FIND NO LEGAL BASIS FOR THE PAYMENT OF ANY AMOUNT
WHICH WOULD REPRESENT A PAYMENT IN EXCESS OF THE JULY 1956 ESCALATION
RATES.
THE PAPERS, WITH THE EXCEPTION OF YOUR COMMUNICATION OF FEBRUARY 27,
1958, ARE RETURNED HEREWITH.
B-135631, APR. 4, 1958
TO HONORABLE RAYMOND BLATTENBERGER, GOVERNMENT PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1958, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
THE CHICAGO DECALCEMANIA CO. ALLEGES IT MADE IN ITS BID DATED MARCH 8,
1958.
YOU STATE THAT ON MARCH 6, 1958, YOUR OFFICE ADVERTISED FOR PRICES ON
THE PRODUCTION OF 9,000 WATER-APPLIED DECALCOMANIAS, INVOLVING FIVE
DIFFERENT ITEMS, THE IMAGE SIZE 8 BY 2 1/2 INCHES, PRODUCED IN TWO
COLORS, FOR COMPLETE SHIPMENT ON OR BEFORE MAY 7, 1958. IN RESPONSE
THERETO THE CHICAGO DECALCOMANIA CO. SUBMITTED A BID OF $13.40 PER
THOUSAND, DATED MARCH 3, 1958. SEVEN OTHER BIDS RECEIVED RANGED IN
PRICE FROM $216 TO $560.
YOU STATE THAT WHEN THE BIDS WERE EXAMINED BY THE CONTRACTING
OFFICER, HE NOTED THAT THE BID FROM CHICAGO DECALCOMANIA CO. WAS
PROBABLY IN ERROR BECAUSE IT WAS OUT OF LINE WITH THE OTHER BIDS
RECEIVED AND WITH THE GOVERNMENT PRINTING OFFICE ESTIMATE OF $250.
YOU FURTHER STATE THAT ON MARCH 19, 1958, A TELEGRAM WAS FORWARDED TO
THE COMPANY REQUESTING THEM TO REVIEW THE SPECIFICATIONS AND TO CONFIRM
THEIR BID PRICE ON THIS JOB; AND THAT THE BIDDER REPLIED BY TELEGRAM ON
THE SAME DAY AND REQUESTED THAT THEIR BID BE CHANGED TO READ $23.40 PER
THOUSAND. THE ERROR IN BID WAS CONFIRMED BY THE COMPANY IN A LETTER
DATED MARCH 19, 1958, AND EXPLAINED THAT IT WAS THEIR INTENTION TO QUOTE
$23.40 PER THOUSAND BUT THAT IN TRANSFERRING THESE FIGURES TO YOUR
QUOTATION FORMS, A SIMPLE TYPOGRAPHICAL ERROR WAS MADE ENTERING $23.40
PER THOUSAND AS $13.40 PER THOUSAND AND THAT IT SUBMITTED ITS SHEET
WHICH SHOWS THAT THE INTENDED BID PRICE WAS $23.40 PER THOUSAND.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
ROOM FOR DOUBT THAT THE BIDDER MADE AN ERROR IN ITS BID. IN VIEW OF THE
FACT THAT THE ERROR IN BID WAS NOTED BY THE CONTRACTING OFFICER
IMMEDIATELY UPON EXAMINATION OF THE BIDS AND THE BIDDER HAS CONFIRMED
AND EXPLAINED THE ERROR TO THE SATISFACTION OF THE CONTRACTING OFFICER
THE BID OF DECALCOMANIA CO. MAY BE DISREGARDED.
THE PAPERS, WITH THE EXCEPTION OF THE LETTER FROM THE BIDDER DATED
MARCH 19, 1958, ARE RETURNED AS REQUESTED.
B-70840, APR. 4, 1958
TO MAJOR R. M. BURRILL, DISBURSING OFFICER:
BY FIRST ENDORSEMENT DATED MARCH 10, 1958 (REFERENCE DO NO. 323), THE
COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF MARCH 4, 1958,
REQUESTING A DECISION ON THE FOLLOWING QUESTION:
"IS GENERAL (ALEXANDER A.) VANDERGRIFT ENTITLED TO RECEIVE THE
ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH AS
AUTHORIZED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, WHILE ON
THE RETIRED LIST? "
THE ADDITIONAL INCREMENT OF BASIC PAY PAYABLE TO OFFICERS SERVING ON
ACTIVE DUTY IN THE GRADE OF GENERAL OR ADMIRAL IS AUTHORIZED BY
SUBSECTION (F) OF SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, AS
ADDED BY SECTION 2 OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH
31, 1955, 69 STAT. 19, EFFECTIVE APRIL 1, 1955. THAT SUBSECTION IS, IN
PERTINENT PART, AS FOLLOWS:
"* * * ANY OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL OR
ADMIRAL SHALL, IN ADDITION TO THE PAY AND ALLOWANCES TO WHICH HE IS
ENTITLED BY THE PROVISIONS OF THIS ACT, BE ENTITLED TO AN ADDITIONAL
INCREMENT OF BASIC PAY IN AN AMOUNT OF $200 PER MONTH. THE ADDITIONAL
INCREMENTS PROVIDED BY THIS SUBSECTION SHALL NOT BE CONSIDERED A PART OF
THE ACTIVE DUTY PAY OR OF THE MONTHLY BASIC PAY OF THESE GRADES FOR THE
PURPOSE OF THE COMPUTATION OF RETIRED PAY.'
YOU SAY THAT EFFECTIVE APRIL 1, 1955, THE DISBURSING OFFICER SETTLING
THE RETIRED PAY ACCOUNTS AT THAT TIME CREDITED GENERAL VANDERGRIFT'S
ACCOUNT WITH THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200
PER MONTH. YOU FURTHER STATE, HOWEVER, THAT AFTER A REVIEW AND STUDY OF
THE CASE, DOUBT AROSE AS TO GENERAL VANDERGRIFT'S ENTITLEMENT TO SUCH
ADDITIONAL INCREMENT OF BASIC PAY AND, THEREFORE, YOU DISCONTINUED
PAYMENT OF SUCH INCREMENT EFFECTIVE FEBRUARY 1, 1958.
IT APPEARS THAT GENERAL VANDERGRIFT WAS PLACED ON THE RETIRED LIST OF
THE MARINE CORPS EFFECTIVE APRIL 1, 1949, WITH THE RANK OF GENERAL AND
PAY AND ALLOWANCES AS PROVIDED BY THE ACT OF MARCH 23, 1946, 60 STAT.
59. SECTION 2 OF THAT ACT PROVIDES AS FOLLOWS:
"THE PRESIDENT IS HEREBY AUTHORIZED, BY AND WITH THE ADVICE AND
CONSENT OF THE SENATE, TO APPOINT TO THE PERMANENT GRADE OF GENERAL IN
THE MARINE CORPS ANY INDIVIDUAL WHO SHALL HAVE SERVED AS COMMANDANT OF
THE MARINE CORPS, WITH THE GRADE AND RANK OF GENERAL, AFTER MARCH 21,
1945, AND BEFORE AUGUST 14, 1945. ANY OFFICER APPOINTED UNDER THE
PROVISIONS OF THIS SECTION SHALL RECEIVE THE PAY AND ALLOWANCES
PRESCRIBED BY SECTION 3 OF THE ACT OF MARCH 21, 1945 (PUBLIC LAW 19,
SEVENTY-NINTH CONGRESS (59 STAT. 36) ); AND ANY SUCH OFFICER WHO HAS
BEEN OR MAY HEREAFTER BE RETIRED OR RELIEVED FROM ACTIVE DUTY SHALL BE
ENTITLED TO HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST
GRADE OR RANK HELD BY HIM ON THE ACTIVE LIST OR WHILE ON ACTIVE DUTY,
AND SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON
THE RETIRED LIST AS OFFICERS APPOINTED UNDER THIS SECTION ARE ENTITLED
TO RECEIVE WHILE ON ACTIVE DUTY.'
UPON APPOINTMENT TO THE PERMANENT GRADE OF GENERAL IN THE MARINE
CORPS ON APRIL 4, 1946, GENERAL VANDERGRIFT BECAME ENTITLED, UNDER THE
EXPRESS PROVISIONS OF THE 1946 ACT, TO RECEIVE BOTH BEFORE AND AFTER
RETIREMENT THE PAY AND ALLOWANCES PRESCRIBED BY SECTION 3 OF THE ACT OF
MARCH 21,
1945, 59 STAT. 36, THAT IS,"THE SAME PAY AND ALLOWANCE AS A REAR
ADMIRAL OF THE UPPER HALF, PLUS A PERSONAL MONEY ALLOWANCE OF $2,200 PER
ANNUM," IRRESPECTIVE OF WHETHER HE WAS THEN SERVING, OR CONTINUED TO
SERVE AS COMMANDANT OF THE MARINE CORPS. SEE 27 COMP. GEN. 296. WHILE
SECTION 2 OF THE 1946 ACT, BY REFERENCE TO SECTION 3 OF THE 1945 ACT,
FIXED THE ACTIVE-DUTY MAY AND ALLOWANCES OF AN OFFICER APPOINTED TO THE
PERMANENT GRADE OF GENERAL IN THE MARINE CORPS, THE 1945 ACT WAS
TEMPORARY LEGISLATION, EFFECTIVE ONLY FOR THE DURATION OF THE WAR AND
SIX MONTHS THEREAFTER. A NOTE APPEARING UNDER 50 U.S.C. APP. 1711-1715
(THE SECTIONS OF THE CODE WHICH HAD BEEN USED FOR THE ACT OF MARCH 21,
1945, 59 STAT. 36) IS AS FOLLOWS:
"SECTION 2 OF ACT MAR. 23, 1946, CH. 112, 60 STAT. 60, PROVIDES FOR
THE PERMANENT APPOINTMENT IN THE GRADE OF GENERAL IN THE REGULAR MARINE
CORPS OF GENERAL ALEXANDER A. VANDERGRIFT, SECTION ALSO PROVIDED FOR
FULL PAY UPON RETIREMENT.'
IT SEEMS REASONABLY EVIDENT THAT, IN REFERRING TO SECTION 3 OF THE
ACT OF MARCH 21, 1945, FOR A DESCRIPTION OF THE ACTIVE-DUTY PAY AND
ALLOWANCES OF GENERAL VANDERGRIFT, THE CONGRESS DID NOT INTEND THAT THE
FULL ACTIVE-DUTY PAY AND ALLOWANCES AUTHORIZED FOR HIM WHILE ON THE
RETIRED LIST WOULD THEREAFTER BE LIMITED TO THE PAY AND ALLOWANCES OF A
REAR ADMIRAL OF THE UPPER HALF PLUS $2,200 PER ANNUM, AS THEN PRESCRIBED
IN THE 1945 ACT, PARTICULARLY SINCE THAT ACT WAS NOT PERMANENT
LEGISLATION. IN THAT CONNECTION, PAGE 2 OF SENATE REPORT NO. 1764, JUNE
17, 1948, TO ACCOMPANY H.R. 6039, WHICH BECAME THE ACT OF JUNE 26,
1948--- AUTHORIZING THE OFFICERS APPOINTED UNDER THAT ACT TO RECEIVE
"THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS AUTHORIZED BY
LAW FOR OFFICERS ON THE ACTIVE LIST SERVING IN THE GRADE OF GENERAL"---
IT WAS STATED THAT:
"IF H.R. 6039 IN THE AMENDED FORM IS APPROVED BY THE SENATE, THE
PRESENT STATUS OF OFFICERS RETIRED WITH FULL PAY AND ALLOWANCES WILL BE
THAT, IN ADDITION TO THE EIGHT FAMOUS FIVE-STAR OFFICERS, THERE WILL BE
ON THE RETIRED LIST IN FOUR-STAR RANK WITH FULL PAY AND ALLOWANCES, ONE
FROM THE ARMY, GENERAL BRADLEY; ONE FROM THE AIR FORCE, GENERAL SPEATZ;
ONE FROM THE NAVY, ADMIRAL SPRUANCE; ONE FROM THE MARINE CORPS,
GENERAL VANDERGRIFT; AND ONE FROM THE COAST GUARD, ADMIRAL WAESCHE.'
IN A DECISION DATED JULY 27, 1955, B-123689, 35 COMP. GEN. 48, WE
HELD THAT ADMIRAL SPRUANCE, WHILE ON THE RETIRED LIST, IS ENTITLED TO
THE ADDITIONAL INCREMENT OF BASIC PAY IN THE AMOUNT OF $200 A MONTH
AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON
ACTIVE DUTY.
IN THE LIGHT OF THE FOREGOING AND THE LEGISLATIVE HISTORY OF THE ACT
OF MARCH 23, 1946, IT SEEMS REASONABLY CLEAR THAT THE PURPOSE OF THAT
ACT WAS TO MAKE PERMANENT THE GRADES HELD BY THE OFFICERS THERE
DESCRIBED INCLUDING GENERAL ALEXANDER A. VANDERGRIFT, AND TO PERMIT
THOSE OFFICERS TO CONTINUE TO RECEIVE THE ACTIVE-DUTY PAY AND ALLOWANCE
OF THEIR PERMANENT GRADES WHILE ON THE RETIRED LIST. SEE, PARTICULARLY,
HOUSE OF REPRESENTATIVES CONFERENCE REPORT NO. 1754, MARCH 18, 1946, AND
PAGES 2422 AND 2423 OF THE CONGRESSIONAL RECORD FOR MARCH 18, 1946.
ALTHOUGH GENERAL VANDERGRIFT IS ON THE RETIRED LIST, IT IS OUR VIEW
THAT IT IS THE INTENT OF THE APPLICABLE STATUTE THAT HE RECEIVE,
CURRENTLY, THE FULL ACTIVE-DUTY PAY AND ALLOWANCES AUTHORIZED FOR AN
OFFICER HOLDING THE PERMANENT GRADE OF GENERAL IN THE MARINE CORPS ON
ACTIVE DUTY. CONSEQUENTLY, THE PROVISION IN THE CAREER INCENTIVE ACT OF
1955 THAT THE ADDITIONAL $200 INCREMENT OF MONTHLY BASIC PAY AUTHORIZED
FOR AN OFFICER SERVING ON ACTIVE DUTY IN THE GRADE OF GENERAL SHALL NOT
BE CONSIDERED A PART OF THE ACTIVE-DUTY PAY OR THE MONTHLY BASIC PAY OF
SUCH GRADE "FOR THE PURPOSE OF THE COMPUTATION OF RETIRED PAY" WOULD NOT
BE FOR APPLICATION IN THIS CASE. IN OTHER WORDS, UNDER THE 1946 ACT,
HIS PAY IS ACTIVE-DUTY PAY AND, THEREFORE, IN PAYING HIM, THERE DOES NOT
APPEAR TO BE INVOLVED ANY "COMPUTATION OF RETIRED PAY WITHIN THE MEANING
OF THE GENERAL PROVISIONS OF THE 1955 ACT. SEE 35 COMP. GEN. 46, CITED
ABOVE.
ACCORDINGLY, YOU ARE AUTHORIZED TO CREDIT GENERAL VANDERGRIFT'S PAY
ACCOUNT ON THE BASIS THAT HE IS ENTITLED TO THE ADDITIONAL INCREMENT OF
BASIC PAY IN THE AMOUNT OF $200 A MONTH AUTHORIZED BY THE CAREER
INCENTIVE ACT OF 1955 FOR A GENERAL SERVING ON ACTIVE DUTY.
B-119991, APR. 3, 1958
TO STATES STEAMSHIP COMPANY:
FURTHER REFERENCE IS MADE TO YOUR ATTORNEY'S BRIEF AND REQUEST FOR
RECONSIDERATION CONCERNING CERTAIN DISALLOWANCES BY OUR CLAIMS DIVISION
OF REFUND OF ALLEGED EXCESS CHARGES FOR STEVEDORING PERFORMED BY THE
ARMY IN JAPANESE AND KOREAN PORTS WITH RESPECT TO SHIPMENTS CARRIED BY
THE STATES STEAMSHIP COMPANY AND ITS SUBSIDIARY, PACIFIC-ATLANTIC
STEAMSHIP COMPANY, UNDER SPACE-CHARTER AGREEMENTS. SUCH REQUEST FOR
RECONSIDERATION ARISES FROM THE FACT THAT ON JANUARY 14, 1957, THE
CLAIMS DIVISION OF THIS OFFICE ALLOWED TO EACH OF THE ABOVE CLAIMANTS
REFUNDS REPRESENTING THE DIFFERENCE BETWEEN $1.06 AND $0.35 STEVEDORING
CHARGE PER TON FOR DISCHARGE OF BERTH-TERM SHIPMENTS IN JAPAN AND KOREA
SUBSEQUENT TO AUGUST 1, 1947, BUT DISALLOWED REFUNDS FOR SUCH
DIFFERENCES ON DISCHARGE OF SPACE-CHARTER SHIPMENTS IN THOSE PORTS FOR
THE ENTIRE PERIOD, AND ON ALL BERTH-TERM SHIPMENTS DISCHARGED PRIOR TO
AUGUST 1, 1947. CLAIMS FOR REFUNDS ON BERTH-TERM CARGOES DISCHARGED
PRIOR TO AUGUST 1, 1947, WERE DISALLOWED FOR THE REASON THAT SINCE THE
DISCHARGE RATE ON SUCH SHIPMENTS WAS NOT REDUCED FROM $1.06 TO $0.35 PER
TON UNTIL AUGUST 1, 1947, THERE WAS NO AUTHORITY FOR REFUND ON ANY PART
OF THE COLLECTIONS EFFECTED ON SHIPMENTS DISCHARGED PRIOR TO THAT DATE.
LIKEWISE, CLAIMS FOR REFUNDS ON SHIPMENTS DISCHARGED UNDER SPACE-CHARTER
CONTRACTS WERE DISALLOWED FOR THE REASON THAT SINCE THE CLAIMANTS FAILED
TO MAKE OBJECTIONS TO THE
COLLECTIONS EFFECTED BY THE DEPARTMENT OF THE ARMY AT THE PRICE PER
TON THEN IN EXISTENCE, AND DID NOT PURSUE THEIR REMEDY AS PROVIDED IN
ARTICLES 8 (B) AND 28 OF THE SPACE-CHARTER CONTRACTS WITHIN THE LIMIT OF
TIME SET FORTH THEREIN, THERE WAS NO AUTHORITY FOR REFUNDS NOW CLAIMED.
YOU NOW LIMIT YOUR REQUEST FOR RECONSIDERATION TO THAT PORTION OF OUR
CLAIMS DIVISION ACTION IN DENYING REFUND OF THE DIFFERENCE BETWEEN THE
COLLECTIONS OF $1.06 AND 30.35 PER TON ON DISCHARGES OF SPACE-CHARTER
SHIPMENTS IN JAPAN AND KOREA ON AND AFTER AUGUST 1, 1947.
ON MARCH 22, 1950, THE SECRETARY OF THE ARMY REQUESTED AN OPINION
FROM THIS OFFICE CONCERNING THE CREDITS WHICH THE DEPARTMENT OF THE ARMY
SHOULD TAKE FOR DISCHARGING BERTH-TERM SHIPMENTS IN JAPAN FOR THE
BENEFIT OF COMMERCIAL VESSEL OPERATORS DURING THE PERIOD AUGUST 1, 1947,
TO DECEMBER
31, 1948. IN RESPONSE TO THIS INQUIRY, AFTER CONSIDERING ALL OF THE
BACKGROUND MATERIAL FURNISHED, WE INFORMED THE SECRETARY ON MAY 4, 1950,
THAT, IN OUR OPINION, THERE WAS NO SHOWING THAT THE AMOUNT OF $1.06 PER
TON WAS UNREASONABLE OR EXCESSIVE AND, IN FACT, IT WAS IN LINE WITH THE
ANTICIPATED COSTS FOR DISCHARGING CARGOES REFLECTED IN THE VOYAGE
ACCOUNTS FILED BY SOME OF THE SHIP OPERATORS WITH THE MARITIME
COMMISSION. ACCORDINGLY, WE STATED THAT THIS OFFICE WOULD NOT BE
REQUIRED TO OBJECT TO AN ADMINISTRATIVE DETERMINATION FOR SETTLEMENT AT
THE RATE OF $1.06. HOWEVER, WE ADDED THAT IF SUCH RATE SHOULD BE
DISPUTED BY THE SHIP OPERATORS ON THE GROUNDS THAT IT WAS IN EXCESS OF
THE AMOUNT ESTIMATED AND INCLUDED IN THEIR CONTRACTS AS COSTS OF
UNLOADING, AN ADJUSTMENT TO THE ACTUAL RATE USED WOULD BE PROPER UPON
ESTABLISHMENT THEREOF BY COMPETENT EVIDENCE.
IN OUR LETTER DATED FEBRUARY 27, 1953, TO THE ATTORNEY GENERAL OF THE
UNITED STATES, CONCERNING A COMPROMISE OFFER BY THE WATERMAN STEAMSHIP
CORPORATION, IN SETTLEMENT OF THE GOVERNMENT'S CLAIM COVERING UNLOADING
SERVICES FURNISHED THE DEBTOR IN CONNECTION WITH BERTH-TERM CARGOES AT
FAR EAST COMMERCIAL PORTS DURING THE YEARS 1946 TO 1948, WE STATED AS
FOLLOWS:
"THE OFFER IN COMPROMISE ACCEPTS THE $1.06 PER TON RATE SO
ESTABLISHED FOR ALL CARGO THROUGH JULY 31, 1947; AND THE GENERAL CARGO
RATE OF 35 CENTS PER TON FOR THE BALANCE OF THE PERIOD. IT CONTENDS,
HOWEVER THAT AMMONIUM NITRATE SHOULD BE CONSIDERED AS GENERAL CARGO
TAKING PER TON RATES OF $1.06 FROM AUGUST 1, 1947 TO SEPTEMBER 30, 1948,
AND 68 CENTS FROM OCTOBER 1, 1948 TO DECEMBER 31, 1948.
"THE RECORDS OF THIS OFFICE DO NOT ESTABLISH WHETHER THE SHIPMENTS OF
AMMONIUM NITRATE WERE HANDLED IN THE MANNER DESCRIBED BY WATERMAN
STEAMSHIP CORPORATION, THAT IS, AT THE RATES SPECIFIED FOR AMMONIUM
NITRATE FERTILIZER RATHER THAN FOR HAZARDOUS CARGO. IF THAT STATEMENT
IS FOUND TO BE CORRECT, IT WOULD, IN MY OPINION OFFER SUFFICIENT
JUSTIFICATION FOR APPLYING THE DISCHARGE RATE OF 35 CENTS PER TON TO
SHIPMENTS OF AMMONIUM NITRATE FROM AUGUST 1, 1947, TO THE END OF THE
PERIOD INVOLVED.'
A SUBSTANTIALLY SIMILAR SITUATION AROSE IN CONNECTION WITH THE LYKES
BROTHERS STEAMSHIP COMPANY, WHEREIN WE RECOMMENDED TO THE ATTORNEY
GENERAL ON JULY 22, 1955, THAT A LIKE OFFER IN COMPROMISE BE ACCEPTED.
OUR CLAIMS DIVISION SETTLEMENT CONCERNING THAT PORTION OF YOUR CLAIM
PERTAINING TO BERTH-TERM CARGOES DISCHARGED DURING THE PERIOD AUGUST 1,
1947 TO DECEMBER 28, 1948, WAS PREMISED UPON THE THEORY THAT
NOTWITHSTANDING THE FACT THAT RECORDS PERTAINING TO YOUR ACTUAL CARGO
DISCHARGES WERE DESTROYED ON FEBRUARY 17, 1953, SETTLEMENT OF SUCH
BERTH-TERM CLAIMS SHOULD BE ON THE BASIS CONCLUDED IN THE WATERMAN CASE,
SINCE IT WAS BELIEVED EQUITABLE TO TREAT ALL BERTH-TERM BILL-OF-LADING
CARRIERS EQUALLY. HOWEVER, WITH RESPECT TO YOUR CLAIM IN CONNECTION
WITH SHIPMENTS MOVING AS SPACE-CHARTER CARGOES, SUCH CONCLUSIONS COULD
NOT BE APPLIED. IN REGARD TO THOSE CLAIMS EACH OF THE CONTRACTS
PROVIDES AS FOLLOWS:
"THE CHARTERER MAY ELECT TO HANDLE ITS OWN STEVEDORING IN CONNECTION
WITH LOADING OR DISCHARGING OF CARGO AT ANY PORT. IN CASES WHERE THE
CHARTERER ELECTS TO DO ITS OWN STEVEDORING, THE CHARTER SHALL BE
ENTITLED TO A CREDIT BASED ON A SCHEDULE OF ALLOWANCES IN ACCORDANCE
WITH COMMERCIAL COSTS TO BE AGREED UPON FOR LOADING AND DISCHARGING AT
THE PORTS OF CALL COVERED BY THE VOYAGES HEREUNDER, SUCH ALLOWANCES TO
BE DEDUCTED FROM THE COMPENSATION DUE TO THE OWNER HEREUNDER. FAILURE
TO AGREE UPON SUCH SCHEDULE OF COMPENSATION SHALL BE DEEMED TO BE A
DISAGREEMENT AS TO A QUESTION OF FACT WHICH SHALL BE DISPOSED OF IN
ACCORDANCE WITH ARTICLE 28 (DISPUTES).'
AS YOU KNOW, THE ARMY EXERCISED THIS OPTION AND PERFORMED THE
STEVEDORING ON BEHALF OF THE CARRIERS IN BOTH JAPAN AND KOREA FOR BOTH
BERTH-TERM AND SPACE-CHARTER CARGOES ALIKE, CHARGING THE CARRIERS'
ACCOUNTS AT THE RATE OF $1.06 PER TON, WHICH RATE, AS STATED ABOVE, WAS
CONCEDED TO BE NOT UNREASONABLE AND WHICH, UNTIL A FEW YEARS LATER, WAS
NEVER CONTESTED BY THE ABOVE CARRIERS AS BEING EXCESSIVE. IN FACT,
THROUGHOUT THE CONTRACT PERIOD THE INVOICES SUBMITTED BY THE STATES
STEAMSHIP COMPANY CONSISTENTLY CERTIFIED AS TO THE CORRECTNESS OF THE
$1.06 STEVEDORING CHARGE TO BE DEDUCTED FROM ITS TRANSPORTATION BILL.
FURTHERMORE, IT IS OBSERVED THAT ON OCTOBER 18, 1948, STATES STEAMSHIP
COMPANY ADDRESSED A COMMUNICATION TO THE FINANCE OFFICER, TRANSPORTATION
DIVISION, U.S. ARMY, COMPLAINING OVER AN ERRONEOUS DEDUCTION OF $3.69
PER TON FOR STEVEDORING CHARGES, IN THE FOLLOWING LANGUAGE:
"KINDLY LET US HAVE YOUR CHECK IN THE AMOUNT OF $9,327.11 COVERING
THE DIFFERENCE BETWEEN THE AMOUNT DEDUCTED AND THE CORRECT RATE OF $1.06
PER TON.'
THUS, THERE WOULD APPEAR TO HAVE BEEN NO QUESTION AS TO THE
CORRECTNESS OR FAIRNESS OF THE RATE SO EMPLOYED, AND THE RECORD CLEARLY
INDICATES THAT THE CARRIERS ACQUIESCED IN SUCH RATE.
IN VIEW OF THIS SITUATION, WE ARE CONSTRAINED TO THE VIEW THAT SINCE
THERE WAS NO OBJECTION TO THE DEDUCTIONS MADE BY THE ARMY IN THE AMOUNT
OF $1.06 PER TON FROM THE INVOICES FOR FREIGHT AS THEY WERE PRESENTED,
AND DUE TO THE FURTHER FACT THAT THE CLAIMANTS MADE NO DEFINITE DEMAND
FOR AN ADJUSTMENT OF THE SPACE-CHARTER RATE, OUR CLAIMS DIVISION WAS
CORRECT IN ITS CONCLUSION THAT A FAILURE TO RESORT TO THE "DISPUTES"
CLAUSE IN THE CONTRACT PRECLUDES SUCH AN ADJUSTMENT AT THIS LATE DATE.
THE PERTINENT CONTRACT PROVISION IS CLEAR AND UNAMBIGUOUS. IT IS
BINDING ON THE PARTIES TO THE CONTRACTS, AND NO OFFICER OR AGENT OF THE
GOVERNMENT WOULD BE JUSTIFIED IN DISREGARDING IT. SOLELY ON THE BASIS
OF THE PROCEDURE SPECIFIED IN THOSE CONTRACTS COULD THE STEVEDORING
CHARGE HAVE BEEN REDETERMINED, AND BY FAILURE OF THE CONTRACTORS TO
PURSUE THE REMEDIES AS PROVIDED BY THE AGREEMENTS THEY FORFEITED THEIR
LEGAL RIGHT TO THE ADJUSTED RATES NOW CLAIMED.
IT IS A WELL ESTABLISHED RULE THAT WHERE A CONTRACT PROVIDES A
SPECIFIC PROCEDURE FOR ADJUSTMENT OF THE CONTRACT PRICE, BUT THE
CONTRACTOR FAILS TO PURSUE AND EXHAUST THE PROCEDURE SO PROVIDED, SUCH
FAILURE OPERATES AS AN ESTOPPEL AGAINST THE CONTRACTOR WITH RESPECT TO
ANY CLAIMS FOR AN AMOUNT IN ADDITION TO THE FIXED CONTRACT PRICE WHICH
MIGHT HAVE BEEN MADE AND ADJUDICATED UNDER THE TERMS OF THE CONTRACT.
SEE UNITED STATES V. JOSEPH A. HOLPUCH CO., 328 U.S. 234, WHERE THE
CONTRACTOR HAD CLAIMED PAYMENT OF CERTAIN INCREASED COSTS, BUT WAS
DENIED RELIEF FOR HAVING FAILED TO PURSUE THE PROCEDURES PRESCRIBED FOR
RELIEF AS AGREED UPON AND EXPRESSLY SET FORTH IN THE CONTRACT THERE
UNDER CONSIDERATION. ALSO SEE UNITED STATES V. CALLAHAN-WALKER
CONSTRUCTION COMPANY, 317 U.S. 56; UNITED STATES V. GLEASON, 175 U.S.
588, AND UNITED STATES V. CUNNINGHAM, 125 F.2D 28.
IN THE LIGHT OF THE FOREGOING, AND SINCE THE RECORD ESTABLISHES THAT
THE CONTRACTORS FAILED TO FOLLOW THE PROCEDURES OUTLINED IN THE
CONTRACT, IT MUST BE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR PAYMENT
OF THE AMOUNT NOW CLAIMED.
B-134615, APR. 3, 1958
TO MAJOR H. M. JENNINGS:
BY SECOND INDORSEMENT OF DECEMBER 9, 1957, THE CHIEF OF FINANCE,
DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF NOVEMBER 21, 1957,
SUBMITTING FOR ADVANCE DECISION VOUCHERS STATED IN FAVOR OF CAPTAIN
DELBERT F. LEFFEL, O-2028378, FOR REIMBURSEMENT FOR THE TRAVEL OF HIS
DEPENDENTS AND FOR PAYMENT OF DISLOCATION ALLOWANCES, IN THE
CIRCUMSTANCES SHOWN.
THE RECORD SHOWS THAT BY ORDERS OF MARCH 4, 1957, ISSUED BY THE
ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., THE SUBJECT
OFFICER WAS DETACHED FROM THE UNITED STATES ARMY GARRISON, FORT
LEAVENWORTH, KANSAS, AND ASSIGNED TO THE OVERSEAS REPLACEMENT STATION AT
FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO THE UNITED STATES ARMY,
EUROPE. TEMPORARY DUTY EN ROUTE WAS DIRECTED FOR APPROXIMATELY 18 WEEKS
AT THE INFANTRY SCHOOL, FORT BENNING, GEORGIA, WITH A REPORTING DATE OF
NOT EARLIER THAN MARCH 25 AND NOT LATER THAN MARCH 26, 1957, FOR THE
PURPOSE OF ATTENDING ASSOCIATE INFANTRY OFFICERS' ADVANCE COURSE. UPON
COMPLETION OF SUCH TEMPORARY DUTY HE WAS TO REPORT TO FORT DIX NOT LATER
THAN SEPTEMBER 6, 1957, SUCH ASSIGNMENT BEING CLASSIFIED AS A PERMANENT
CHANGE OF STATION. THESE ORDERS FURTHER AUTHORIZED 30 DAYS' LEAVE UPON
COMPLETION OF THE DIRECTED TEMPORARY DUTY AT FORT BENNING, WITH THE
PROVISO THAT IF THE OFFICER TOOK ONLY PART OR NONE OF THE AUTHORIZED
LEAVE, HE WAS TO NOTIFY THE OVERSEAS REPLACEMENT STATION IMMEDIATELY OF
HIS EARLIER ARRIVAL DATE. THE ORDERS ALSO PROVIDED FOR TRAVEL COSTS TO
AND PER DIEM AT THE TEMPORARY DUTY STATION FOR THE OFFICER. FOLLOWING
COMPLETION OF HIS TEMPORARY DUTY AT FORT BENNING, ORDERS DATED AUGUST
27, 1957, ISSUED BY THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY,
ADDRESSED TO CAPTAIN LEFFEL AT HIS LEAVE ADDRESS IN MEDFORD, WISCONSIN,
REVOKED THE UNEXECUTED PORTION OF THE ORDERS OF MARCH 4, 1957, AND
DIRECTED A PERMANENT CHANGE OF STATION TO FORT LEAVENWORTH, KANSAS, THE
OFFICER'S ORIGINAL PERMANENT STATION. THE OFFICER HAS CERTIFIED THAT
HIS DEPENDENTS TRAVELED AT PERSONAL EXPENSE FROM FORT LEAVENWORTH,
KANSAS, TO COLUMBUS (FORT BENNING), GEORGIA, BETWEEN MARCH 19, 1957, AND
MARCH 25, 1957, AND ALSO FROM MEDFORD, WISCONSIN, TO FORT LEAVENWORTH,
KANSAS, BETWEEN AUGUST 26, 1957, AND AUGUST 28, 1957. HE CLAIMS
REIMBURSEMENT FOR THE TRAVEL OF HIS DEPENDENTS AND ALSO DISLOCATION
ALLOWANCES INCIDENT TO TWO PERMANENT CHANGES OF STATION FROM FORT
LEAVENWORTH TO FORT DIX AND FROM FORT DIX BACK TO FORT LEAVENWORTH. YOU
REQUEST A DECISION AS TO WHETHER THE OFFICER IS ENTITLED TO THE
REIMBURSEMENT CLAIMED BECAUSE OF YOUR DOUBT AS TO THE EFFECTIVE DATE,
FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS, OF PERMANENT CHANGE OF
STATION ORDERS WHERE THE ORDERS ARE TO AN OVERSEAS STATION AND INVOLVE A
PERIOD OF TEMPORARY DUTY EN ROUTE.
THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 813, 814, PROVIDE IN
PARAGRAPH 7000 THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON "A PERMANENT
CHANGE OF STATION" FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW
STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED, SUBJECT TO CERTAIN
EXCEPTIONS WHICH INCLUDE THE CASE OF AN OFFICER ASSIGNED TO A SCHOOL OR
INSTALLATION AS A STUDENT FOR A COURSE OF INSTRUCTION OF LESS THAN 20
WEEKS' DURATION. SUCH PROVISION OF THE REGULATIONS, IN THE LIGHT OF
THEIR GENERAL PURPOSE IN AUTHORIZING TRANSPORTATION OF DEPENDENTS ONLY
UPON ORDERS TO MAKE A PERMANENT CHANGE OF STATION TO THE EXCLUSION OF
THE ORDERED TEMPORARY CHANGES OF STATION, HAS BEEN CONSTRUED AS
CONTEMPLATING THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IN CONNECTION WITH AN
ASSIGNMENT TO A SCHOOL OR INSTALLATION AS A STUDENT ONLY IF THE COURSE
OF INSTRUCTION IS TO BE 20 WEEKS OR MORE IN DURATION AT ANY ONE PLACE.
SEE 32 COMP. GEN. 569 AND 34 COMP. GEN. 260. SINCE CAPTAIN LEFFEL WAS,
BY ORDERS OF MARCH 4, 1957, ASSIGNED TO FORT BENNING, GEORGIA, FOR A
COURSE OF INSTRUCTION OF LESS THAN 20 WEEKS' DURATION, THE REGULATIONS
CLEARLY BAR PAYMENT IN ANY AMOUNT FOR TRAVEL OF HIS DEPENDENTS INCIDENT
TO SUCH ASSIGNMENT. THEREFORE, PAYMENT IS NOT AUTHORIZED ON THE
VOUCHERS SUBMITTED FOR HIS DEPENDENTS' TRAVEL FROM LEAVENWORTH, KANSAS,
TO FORT BENNING, GEORGIA. CONCERNING CAPTAIN LEFFEL'S CLAIM FOR TWO
DISLOCATION ALLOWANCES AND HIS CLAIM FOR DEPENDENTS' TRAVEL FROM HIS
LEAVE ADDRESS TO A NEW PERMANENT STATION, PARAGRAPH 3003-1 (B) OF THE
JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN LEAVE OR DELAY PRIOR TO
REPORTING TO THE NEW STATION IS AUTHORIZED IN THE ORDERS, THE AMOUNT OF
SUCH LEAVE AND DELAY WILL BE ADDED TO THE DATE OF DETACHMENT FROM THE
OLD STATION TO DETERMINE THE EFFECTIVE DATE OF THE ORDERS. WHERE AN
OFFICER IS GRANTED LEAVE IN CONNECTION WITH TRAVEL IT IS CONSIDERED THAT
NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL THE
EXPIRATION OF THE AUTHORIZED LEAVE, AND IF THE ORDERS ARE CANCELED PRIOR
THERETO, ANY TRAVEL WHICH MAY HAVE BEEN PERFORMED IS REGARDED AS
INCIDENT TO THE LEAVE AND THE EXPENSES MUST BE BORNE BY THE TRAVELER
CONCERNED. 33 COMP. GEN. 289. UNDER THE PROVISIONS OF PARAGRAPH
7008-2, JOINT TRAVEL REGULATIONS, THIS RULE IS EQUALLY APPLICABLE TO
TRANSPORTATION OF DEPENDENTS WHERE THE OVERSEAS ASSIGNMENT IS TO A
STATION TO WHICH CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED. SUCH
TRANSPORTATION OF DEPENDENTS WAS AUTHORIZED INCIDENT TO ORDERS TO
USAREUR BY ARMY REGULATIONS NO. 55-46, OCTOBER 25, 1956, SUBJECT TO THE
PROVISIONS OF THOSE REGULATIONS. HENCE, NO RIGHT ACCRUED TO CAPTAIN
LEFFEL FOR TRANSPORTATION OF HIS DEPENDENTS FROM BEDFORD TO FORT
LEAVENWORTH. B-129292, OCTOBER 11, 1956. MOREOVER, SINCE NO TRAVEL WAS
REQUIRED BY ANY PERMANENT CHANGE OF STATION ORDERS WHICH HAD BECOME
EFFECTIVE, NO RIGHT TO DISLOCATION ALLOWANCE ACCRUED TO CAPTAIN LEFFEL.
SEE PARAGRAPH 9006, JOINT TRAVEL REGULATIONS.
ACCORDINGLY, YOU ARE NOT AUTHORIZED TO PAY THE CLAIM OF CAPTAIN
LEFFEL FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL AND DISLOCATION
ALLOWANCES. THE VOUCHERS AND SUPPORTING PAPERS WILL BE RETAINED HERE.
B-135182, APR. 3, 1958
TO MR. VICTOR V. MENDOZA:
IN YOUR LETTER OF JANUARY 23, 1958, YOU PRESENT "CLAIM" FOR
ADDITIONAL COMPENSATION ALLEGEDLY DUE YOU FOR CERTAIN DUTIES YOU
PERFORMED AS A SECURITY GUARD UNDER THE PROVOST MARSHAL'S OFFICE, U.S.
ARMY, CAMP CAVITE, IN THE PHILIPPINES, DURING THE PERIOD JUNE 9, 1947,
TO JANUARY 18, 1954.
YOUR LETTER CONCERNS A CASE WHICH WAS SETTLED BY OUR OFFICE OCTOBER
2, 1957. HOWEVER, AS YOUR PRESENT LETTER DOES NOT MENTION THAT
SETTLEMENT, A COPY THEREOF IS ENCLOSED SINCE IT MAY BE THAT YOU DID NOT
RECEIVE THE ORIGINAL--- WHICH WAS ADDRESSED TO YOU AT THE MANILA AIR
STATION, OFFICE OF PROVOST MARSHAL.
IN REGARD TO YOUR CLAIM YOU ARE ADVISED THAT IT IS IDENTICAL TO THE
CLAIMS OF MANY OF YOUR COWORKERS, THAT IS, CIVILIAN GUARDS UNDER THE
SUPERVISION OF THE OFFICE OF PROVOST MARSHAL. THEIR CLAIMS WERE
DISALLOWED UPON THE SAME GROUNDS AS YOURS, WHICH ARE SET FORTH IN THE
ENCLOSED SETTLEMENT LETTER TO YOU OF OCTOBER 2, 1957. RECENTLY, WE HAVE
REVIEWED THE ENTIRE SITUATION BOTH FROM A FACTUAL ASPECT AND FROM THE
STANDPOINT OF THE APPLICABLE LAW AND REGULATIONS.
THE SETTLEMENT REFERS TO THE "PREVAILING PRACTICE" IN THE AREA---
WHICH, THE RECORD SHOWS, WAS OBSERVED BY THE VARIOUS GOVERNMENTAL
AGENCIES AND IN THE MAJORITY OF THE LOCAL BUSINESS ESTABLISHMENTS---
WHEREBY GUARD-EMPLOYEES REPORTED FOR INSTRUCTIONS AND CERTAIN
PRELIMINARY DUTIES PRIOR TO THE SPECIFIC HOUR BEGINNING THEIR SCHEDULED
TOUR OF DUTY. THE AIR FORCE REGULATION, AFM 40-1, AFH2, SECTION 2,
PARAGRAPH 7, TO WHICH YOU REFER, PROVIDES THAT WHEN IT IS NECESSARY FOR
CIVILIAN GUARDS TO REPORT TO A CENTRAL LOCATION TO CHECK IN, TO RECEIVE
INSTRUCTIONS, TO UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR
RESPECTIVE POSTS, AND TO PERFORM INCIDENTAL DUTIES WHICH CANNOT BE MADE
A PART OF THE REGULAR EIGHT HOUR TOUR OF DUTY, THEY WILL BE CONSIDERED
IN A PAY STATUS UNTIL THEY CHECK OUT AT THE END OF THE SHIFT. HOWEVER,
THE SAME REGULATION, AFM 40-1, AFH 2.1, PARAGRAPH 1A, PROVIDES THAT---
"EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES WHO
ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE RECORD CLEARLY SHOWS CIVILIAN GUARDS OF THE
PROVOST MARSHAL, MANILA AIR STATION, HAD TOURS OF DUTY CORRESPONDING TO
THE LOCAL CUSTOM IN THE AREA AND WERE PAID AT NATIVE WAGE RATES, THE
PROVISIONS OF AFM 40-1, AFH 2, SEC. 2, PAR. 7, CONCERNING PAY STATUS DO
NOT APPEAR APPLICABLE TO THE INCIDENTAL 30-MINUTE PERIODS ON WHICH YOU
BASE YOUR CLAIM.
THEREFORE, UPON THE RECORD IN YOUR CASE AND THE FACTS DEVELOPED IN
CLAIMS IDENTICAL TO YOURS, WE MUST CONCLUDE THAT YOUR CLAIM PROPERLY WAS
DISALLOWED.
B-135447, APR. 3, 1958
TO PAUL P. PRISTAVEC, 245 56 94, YNC, USN:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1958, REQUESTING
REVIEW OF SETTLEMENT DATED JANUARY 27, 1958, WHICH DISALLOWED YOUR CLAIM
FOR PER DIEM FOR THE PERIOD JUNE 27 TO JULY 6, 1957.
BY STANDARD TRANSFER ORDER NO. 73-57, PREPARED ON MAY 2, 1957, YOU
WERE DIRECTED TO PROCEED FROM THE U.S. NAVAL BASE, NEWPORT, RHODE
ISLAND, TO SAN FRANCISCO, CALIFORNIA, AND REPORT NOT LATER THAN JUNE 20,
1957, FOR FURTHER TRANSFER TO YOUR NEW STATION AT SANGLEY POINT, LUZON,
PHILIPPINE ISLANDS, 4 DAYS' PROCEED TIME, 14 DAYS' TRAVEL TIME, AND 30
DAYS' DELAY EN ROUTE BEING AUTHORIZED. CONCURRENT TRAVEL OF YOUR
DEPENDENTS TO YOUR OVERSEAS STATION WAS AUTHORIZED. IT APPEARS THAT YOU
AND YOUR DEPENDENTS LEFT THE UNITED STATES BY GOVERNMENT AIRCRAFT ON
JUNE 26, 1957, AND ARRIVED AT HICKAM AIR FORCE BASE, TERRITORY OF
HAWAII, ON THE SAME DAY; THAT YOU AND YOUR DEPENDENTS WERE DELAYED
THERE AWAITING TRANSPORTATION UNTIL JULY 6, 1957; AND THAT YOU LEFT
HICKAM AIR FORCE BASE ON JULY 7, 1957 AND ARRIVED AT SANGLEY POINT,
PHILIPPINE ISLANDS, ON JULY 9, 1957. YOUR CLAIM IS FOR PER DIEM
COVERING THE PERIOD YOU AND YOUR DEPENDENTS WERE AWAITING TRANSPORTATION
AT HICKAM AIR FORCE BASE FROM JUNE 27 TO JULY 6, 1957.
IN SUPPORT OF YOUR CLAIM YOU SAY THAT GOVERNMENT MESSING FACILITIES
WERE NOT AVAILABLE TO YOU AND YOUR DEPENDENTS FOR THAT PERIOD. YOU
ADMIT THAT GOVERNMENT MESSING FACILITIES WERE AVAILABLE TO YOU BUT SAY
THAT SUCH FACILITIES WERE NOT AVAILABLE TO YOUR DEPENDENTS. YOU ALSO
SAY THAT YOU AND YOUR DEPENDENTS SECURED MEALS AT A RESTAURANT DURING
THE PERIOD INVOLVED. ON SUCH BASIS YOU URGE THAT YOUR CLAIM FOR PER
DIEM (SUBSISTENCE) SHOULD BE ALLOWED.
PARAGRAPH 4451-1 (3), CHANGE 58, DATED MAY 1, 1957, JOINT TRAVEL
REGULATIONS, PROVIDES THAT IT IS THE POLICY OF THE UNIFORMED SERVICES
THAT AVAILABLE GOVERNMENT QUARTERS AND MESS BE UTILIZED BY MEMBERS IN A
TRAVEL STATUS TO THE MAXIMUM EXTENT PRACTICABLE. HOWEVER, IT IS ALSO
PROVIDED THAT THE FAMILY UNIT SHOULD BE KEPT TOGETHER TO THE MAXIMUM
EXTENT POSSIBLE WHEN, IN CONNECTION WITH A PERMANENT CHANGE OF STATION
TO, FROM, OR BETWEEN STATIONS OUTSIDE THE UNITED STATES, THE MEMBER IS
ACCOMPANIED BY HIS DEPENDENTS WHO HAVE BEEN AUTHORIZED TO TRAVEL WIT
HIM. IT IS FURTHER PROVIDED THAT:
"* * * AT PORTS OF EMBARKATION AND DEBARKATION (OR PROCESSING CENTERS
OPERATING IN CONJUNCTION THEREWITH) AT WHICH GOVERNMENT QUARTERS (AS
DEFINED IN PAR. 1150-5) OR GOVERNMENT MESS (AS DEFINED IN PAR. 1150-4),
OR BOTH, ARE NOT AVAILABLE TO BOTH THE MEMBER AND HIS DEPENDENTS,
COMMANDING OFFICERS, OR THEIR DESIGNATED REPRESENTATIVES, WILL FURNISH
THE MEMBER A CERTIFICATE THAT SUCH FACILITIES WERE NOT AVAILABLE.'
THE RECORD SHOWS THAT ON JULY 12, 1957, YOU REQUESTED THE OFFICER IN
CHARGE, PASSENGER SERVICE, MILITARY AIR TRANSPORTATION SERVICE, HICKAM
AIR FORCE BASE, HONOLULU, T.H., TO ISSUE A CERTIFICATE TO THE EFFECT
THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE TO
YOU DURING THE PERIOD JUNE 26 TO JULY 6, 1957. IN ANSWER TO YOUR
REQUEST SUCH OFFICER STATED, IN SECOND INDORSEMENT DATED AUGUST 22,
1957, THAT "GOVERNMENT QUARTERS AND MESSING FACILITIES WERE CONSIDERED
AS BEING AVAILABLE, AS THE HICKAM BILLETING OFFICE HAS NO RECORD OF
CERTIFICATES OF NON-AVAILABILITY BEING ISSUED BETWEEN THE PERIOD OF 26
JUNE 1957 AND 6 JULY 1957.'
SINCE A CLAIM FOR PER DIEM, SUCH AS YOURS, IS NOT PAYABLE UNDER THE
REGULATIONS UNLESS IT IS SUPPORTED BY A CERTIFICATE TO THE EFFECT THAT
GOVERNMENT MESSING FACILITIES WERE NOT AVAILABLE DURING THE PERIOD
INVOLVED, AND SINCE YOUR CLAIM IS NOT SUPPORTED BY SUCH CERTIFICATE,
THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.
ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM BY
SETTLEMENT DATED JANUARY 27, 1958, IS SUSTAINED.
B-135588, APR. 3, 1958
TO MR. ADAM E. SHUMAN:
YOUR LETTER OF MARCH 20, 1958, REQUESTS A DECISION AS TO WHETHER THE
BID OF GREENWALD SURGICAL COMPANY, INC., EAST GARY, INDIANA, UNDER
INVITATION NO. M1-197, ISSUED FEBRUARY 17, 1958, MAY BE AMENDED TO COVER
ITEMS NOS. 11, 12 AND 13, INSTEAD OF ITEMS NOS. 9 AND 10, AS ERRONEOUSLY
QUOTED UPON.
THE SAID INVITATION SOLICITED PROPOSALS ON CERTAIN ITEMS OF SURGICAL
EQUIPMENT, INCLUDING ITEMS NOS. 9 THROUGH 13. ITEMS NOS. 9 AND 10
COVERED, RESPECTIVELY, 72 AND 96 UNITS OF AN INSTRUMENT DESCRIBED AS
"STOCK NO. 3406700 - HAMMER, REFLEX TESTING, TAYLOR," ON WHICH THE
GREENWALD SURGICAL COMPANY, INC., QUOTED A UNIT PRICE OF $3.20 EACH.
THE AMOUNTS OF THE OTHER BIDS ON THESE TWO ITEMS RANGED FROM ?93 TO ?99
EACH. ON MARCH 6, 1958, OR THREE DAYS AFTER OPENING ON MARCH 3,
GREENWALD SURGICAL COMPANY, INC., WAS REQUESTED TO CONFIRM ITS QUOTE
BID PRICE ON ITEMS NOS. 9 AND 10. IN ITS CONFIRMING LETTER OF MARCH 7,
1958, THE COMPANY ALLEGED THAT, THROUGH INEXPERIENCE UPON THE PART OF
NEW OFFICE PERSONNEL UNACQUAINTED WITH THE DEPOT'S SYSTEM OF "SHOWING
THE STOCK NUMBER PRECEDING DELIVERY DESTINATION," THEY INADVERTEDLY HAD
QUOTED ON ITEMS NOS. 9 AND 10, INSTEAD OF ITEMS NOS. 11 THROUGH 13,
COVERING EQUIPMENT DESCRIBED AS "STOCK NO. 3598020 - ELECTRODE, CUTTING
LOOP, RESECTOSCOPE, 28 FR; SCHEDULED FOR DELIVERY TO THE THREE
DESTINATION POINTS LISTED. IN VIEW THEREOF, THE COMPANY REQUESTED THAT
ITS QUOTED BID PRICE OF $3.20 EACH ON ITEMS NOS. 9 AND 10, BE CONSIDERED
AS APPLYING TO ITEMS NOS. 11, 12 AND 13 OF INVITATION NO. M1-197, ON
WHICH IT HAD NOT SUBMITTED ANY BID.
ONE OTHER BIDDER UNDER THE INVITATION QUOTED $3.25 EACH ON ITEMS NOS.
11 THROUGH 13.
CONCERNING THE COMPANY'S REQUEST THAT ITS BID ON ITEMS NOS. 9 AND 10
BE CONSIDERED AS APPLYING TO ITEMS NOS. 11 THROUGH 13 OF THE INVITATION,
IT CONSISTENTLY HAS BEEN HELD BOTH BY THIS OFFICE AND THE COURTS THAT
EXCEPT IN EXTREMELY MERITORIOUS CASES, INVOLVING OBVIOUS ERROR AND WHERE
THE INTENDED BID IS CONCLUSIVELY ESTABLISHED, BIDDERS UNDER GOVERNMENT
INVITATIONS WILL NOT BE PERMITTED TO REVISE OR VARY THEIR PROPOSALS
AFTER THE BIDS HAVE BEEN OPENED AND THEIR CONTENTS MADE PUBLIC, IT BEING
CONSIDERED THAT THE PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM IS
INFINITELY MORE IN THE PUBLIC INTEREST THAN THE OBTAINING OF A POSSIBLE
PECUNIARY ADVANTAGE IN A PARTICULAR CASE. SEE NORTHEASTERN CONSTRUCTION
COMPANY V. CITY OF WINSTON-SALEM, 83 F.2D 57; STEBEL V. UNITED STATES,
69 F.SUPP. 221; SCOTT V. UNITED STATES, 44 C.CLS. 524, 527, 19 COMP.
GEN. 761; 17 ID. 554, 558.
APPLYING THE AFORESAID RULE TO THE FACTS REPORTED IN THE INSTANT
MATTER, YOU ARE ADVISED THAT THERE IS NO PROPER OR LEGAL BASIS UPON
WHICH THE ERRONEOUS PROPOSAL OF GREENWALD SURGICAL COMPANY, INC., MAY BE
MODIFIED, AND ACCORDINGLY, THE SAID BID SHOULD BE DISREGARDED FOR AWARD
PURPOSES.
B-135594, APR. 3, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 20, 1958, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR CARPENTER
STEEL COMPANY ALLEGED IT MADE ON ITEM 10 OF ITS BID ON WHICH PURCHASE
ORDER NO.
8-405-55-72-D, DATED NOVEMBER 25, 1957, IS BASED.
BY INVITATION NO. CML-18-108-58-32-D, DATED OCTOBER 23, 1957, THE
U.S. ARMY CHEMICAL CENTER PROCUREMENT AGENCY, ARMY CHEMICAL CENTER,
MARYLAND, REQUESTED BIDS--- TO BE OPENED NOVEMBER 12, 1957--- FOR
FURNISHING PLUMBING SUPPLIES. CARPENTER STEEL COMPANY SUBMITTED A BID
OFFERING TO FURNISH ITEM 10, 100 FEET OF STANDARD WEIGHT PIPE, FOR
$1,192. AWARD WAS MADE TO THE COMPANY ON NOVEMBER 25, 1957, FOR THE
FURNISHING OF THAT ITEM. BY LETTER OF JANUARY 8, 1958, THE CONTRACTOR
NOTIFIED THE PURCHASING AGENCY THAT IT HAD MADE AN ERROR IN ITS BID AND
LATER FURNISHED ITS PRICE LIST INDICATING THAT A MISTAKE WAS MADE
WHEREBY A PRICE OF SCHEDULE 5 PIPE AS $1,192 AND THE PRICE OF THE
REQUIRED PIPE AS AS REQUIRED BY THE INVITATION. THE CONTRACTOR'S PRICE
LIST SHOWS THE PRICE OF SCHEDULE 5 PIPE AS $1,192 AD THE PRICE OF THE
REQUIRED PIPE AS $2,258.50. THE OTHER BIDS ON ITEM 10 WERE $2,258,
$2,371.40, $2,929 AND $2,929.20. SINCE THE ITEM WAS URGENTLY NEEDED THE
CONTRACTOR WAS REQUESTED TO MAKE DELIVERY.
THE CONTRACTING OFFICER IN HIS STATEMENT OF FEBRUARY 4, 1958, STATED
THAT THERE HAD BEEN NO PREVIOUS PURCHASING EXPERIENCE OF THIS ITEM.
ALSO, HE STATED THAT THE REQUISITION ESTIMATE FOR THIS ITEM WAS $1,800
AND THAT THERE WAS NO PRICE CATALOG AVAILABLE.
THE EVIDENCE OF RECORD INDICATES THAT AN ERROR, IN FACT, WAS MADE,
AND SINCE THE VERY WIDE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE
OTHER BIDS ON ITEM 10 APPEARS SUFFICIENT TO HAVE INDICATED THE
PROBABILITY OF AN ERROR IN THE BID, IT SHOULD NOT HAVE BEEN ACCEPTED
WITHOUT REQUESTING VERIFICATION.
ACCORDINGLY, AND SINCE APPARENTLY THE PIPE HAS BEEN DELIVERED, THE
CONTRACTOR MAY BE PAID AN AMOUNT UP TO THE NEXT LOW BID, WITH AN
ADJUSTMENT FOR THE COST OF TRANSPORTATION, AS RECOMMENDED BY THE
CONTRACTING OFFICER.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
OF FEBRUARY 4, 1958, ARE RETURNED.
A-49009, APR. 2, 1958
TO MR. D. F. COOKE, VICE PRESIDENT AND TREASURER, STANDARD OIL
COMPANY:
YOUR LETTER OF FEBRUARY 20, 1958, INDICATES THAT CERTAIN AGENCIES OF
THE DEPARTMENTS OF THE NAVY AND AGRICULTURE ARE STILL REQUIRING
CERTIFICATION OF INVOICES COVERING SALES MADE UNDER CONTRACT,
NOTWITHSTANDING THE PROVISIONS OF OUR GENERAL REGULATIONS NO. 134, DATED
MARCH 11, 1957, RESCINDING OUR REQUIREMENT FOR SUCH CERTIFICATION.
SECTION 5020.10 OF TITLE 7, GENERAL ACCOUNTING OFFICE POLICY AND
PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (FORMERLY CONTAINED
IN GENERAL REGULATIONS NO. 134, DATED MARCH 11, 1957) PROVIDES AS
FOLLOWS:
"5020.10 CONTRACTORS' AND VENDORS' CERTIFICATES. THE GENERAL
ACCOUNTING OFFICE NO LONGER REQUIRES THAT A CERTIFICATE AS TO
CORRECTNESS AND NONPAYMENT BE EXECUTED ON THE BILLS AND INVOICES
OF CONTRACTORS AND VENDORS, WITH THE EXCEPTION THAT CARRIERS, OR
OTHER CORPORATIONS, AGENCIES, OR PERSONS FURNISHING TRANSPORTATION AND
ACCESSORIAL SERVICES TO THE GOVERNMENT MUST CONTINUE TO EXECUTE THE
CERTIFICATES AS PROVIDED IN 5 GAO 2060.60 AND 5 GAO 3060.25 OF THIS
MANUAL. PENDING THE EVENTUAL ELIMINATION OF THE CONTRACTORS' AND
VENDORS' CERTIFICATES FROM ALL OTHER STANDARD VOUCHER FORMS, THE
CERTIFICATES ON SUCH OTHER FORMS NEED NO LONGER BE EXECUTED. HOWEVER,
THE ELIMINATION OF THIS REQUIREMENT DOES NOT DISPENSE WITH THE NECESSITY
FOR THE SPECIFIC CERTIFICATION OF FACTS REQUIRED BY CERTAIN CONTRACTS.
"THE OMISSION OF THE CERTIFICATE FROM BILLS OR INVOICES SUBMITTED FOR
PAYMENT TO GOVERNMENT AGENCIES DOES NOT IN ANY MANNER LESSEN THE
RESPONSIBILITY OF CONTRACTORS AND VENDORS IN COMPLYING WITH ALL
STATUTORY REQUIREMENTS APPLICABLE TO TRANSACTIONS WITH THE GOVERNMENT,
NOR WILL IT BE CONSTRUED AS MITIGATING THEIR LIABILITY FOR ASSORTING
FALSE, FICTITIOUS, OR FRAUDULENT CLAIMS AGAINST THE UNITED STATES,
PENALTIES FOR WHICH ARE SET FORTH IN 18 U.S.C. 287.'
IT WILL BE NOTED THAT THIS SECTION DISCONTINUES ONLY THE REQUIREMENT
OF THE GENERAL ACCOUNTING OFFICE FOR THE CERTIFICATION INDICATED AND
SPECIFICALLY PROVIDES THAT THE ELIMINATION THEREOF DOES NOT DISPENSE
WITH THE REQUIREMENT FOR SPECIFIC CERTIFICATION OF FACTS REQUIRED BY
CERTAIN CONTRACTS. WHILE WE NO LONGER REQUIRE THIS CERTIFICATION FOR
OUR AUDIT PURPOSES IT STILL COULD BE REQUIRED BY CONTRACT PROVISION OR
ADMINISTRATIVE REGULATION. HOWEVER, COPIES OF YOUR LETTER HAVE BEEN
FORWARDED TO THE SECRETARIES OF THE NAVY AND AGRICULTURE WITH THE
REQUEST THAT THE ATTENTION OF THE VARIOUS AGENCIES OF THEIR DEPARTMENTS
BE INVITED TO THE PROVISIONS OF SECTION 5020.10. WE HOPE THAT THIS
ACTION WILL ELIMINATE THE DIFFICULTIES ENCOUNTERED IN YOUR DEALINGS WITH
THE AGENCIES MENTIONED.
A-49009, APR. 2, 1958
TO THE SECRETARY OF THE NAVY:
THERE IS ATTACHED A COPY OF A LETTER DATED FEBRUARY 20, 1958, FROM
THE STANDARD OIL COMPANY, LOUISVILLE 2, KENTUCKY, INDICATING THAT THE
UNITED STATES MARINE RECRUITING OFFICE IS STILL REQUIRING CERTIFICATION
OF INVOICES COVERING SALES MADE UNDER CONTRACT.
SECTION 5020.10 OF TITLE 7, GENERAL ACCOUNTING OFFICE POLICY AND
PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (FORMERLY CONTAINED
IN GENERAL REGULATIONS NO. 134, DATED MARCH 11, 1957) PROVIDES AS
FOLLOWS:
"5020.10 CONTRACTORS' AND VENDORS' CERTIFICATES. THE GENERAL
ACCOUNTING OFFICE NO LONGER REQUIRES THAT A CERTIFICATE AS TO
CORRECTNESS AND NONPAYMENT BE EXECUTED ON THE BILLS AND INVOICES OF
CONTRACTORS AND VENDORS, WITH THE EXCEPTION THAT CARRIERS, OR OTHER
CORPORATIONS, AGENCIES, OR PERSONS FURNISHING TRANSPORTATION AND
ACCESSORIAL SERVICES TO THE GOVERNMENT MUST CONTINUE TO EXECUTE THE
CERTIFICATES AS PROVIDED IN 5 GAO 2060.60 AND 5 GAO 3060.25 OF THIS
MANUAL. PENDING THE EVENTUAL ELIMINATION OF THE CONTRACTORS' AND
VENDORS' CERTIFICATES FROM ALL OTHER STANDARD VOUCHER FORMS, THE
CERTIFICATES ON OTHER FORMS NEED NO LONGER BE EXECUTED. HOWEVER, THE
ELIMINATION OF THIS REQUIREMENT DOES NOT DISPENSE WITH THE NECESSITY FOR
THE SPECIFIC CERTIFICATION OF FACTS REQUIRED BY CERTAIN CONTRACTS.
"THE OMISSION OF THE CERTIFICATE FROM BILLS OR INVOICES SUBMITTED FOR
PAYMENT TO GOVERNMENT AGENCIES DOES NOT IN ANY MANNER LESSEN THE
RESPONSIBILITY OF CONTRACTORS AND VENDORS IN COMPLYING WITH ALL
STATUTORY REQUIREMENTS APPLICABLE TO TRANSACTIONS WITH THE GOVERNMENT,
NOR WILL IT BE CONSTRUED AS MITIGATING THEIR LIABILITY FOR ASSERTING
FALSE, FICTITIOUS, OR FRAUDULENT CLAIMS AGAINST THE UNITED STATES,
PENALTIES FOR WHICH ARE SET FORTH IN 18 U.S.C. 287.'
FOR THE SAKE OF UNIFORMITY IN DEALING WITH VENDORS, IT IS SUGGESTED
THAT THE ATTENTION OF THE RECRUITING OFFICE BE INVITED TO THE PROVISIONS
OF SECTION 5020.10.
A-49009, APR. 2, 1958
TO THE SECRETARY OF AGRICULTURE:
THERE IS ATTACHED A COPY OF A LETTER DATED FEBRUARY 20, 1958, FROM
THE STANDARD OIL COMPANY, LOUISVILLE 2, KENTUCKY, INDICATING THAT
SEVERAL UNSPECIFIED DIVISIONS OF YOUR DEPARTMENT ARE STILL REQUIRING
CERTIFICATION OF INVOICES COVERING SALES MADE UNDER CONTRACT.
SECTION 5020.10 OF TITLE 7, GENERAL ACCOUNTING OFFICE POLICY AND
PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES (FORMERLY CONTAINED
IN GENERAL REGULATIONS NO. 134, DATED MARCH 11, 1957) PROVIDES AS
FOLLOWS:
"5020.10 CONTRACTORS' AND VENDORS' CERTIFICATES. THE GENERAL
ACCOUNTING OFFICE NO LONGER REQUIRES THAT A CERTIFICATE AS TO
CORRECTNESS AND NONPAYMENT BE EXECUTED ON THE BILLS AND INVOICES OF
CONTRACTORS AND VENDORS, WITH THE EXCEPTION THAT CARRIERS, OR OTHER
CORPORATIONS, AGENCIES, OR PERSONS FURNISHING TRANSPORTATION AND
ACCESSORIAL SERVICES TO THE GOVERNMENT MUST CONTINUE TO EXECUTE THE
CERTIFICATES AS PROVIDED IN 5 GAO 2060.60 AND 5 GAO 3060.25 OF THIS
MANUAL. PENDING THE EVENTUAL ELIMINATION OF THE CONTRACTORS' AND
VENDORS' CERTIFICATES FROM ALL OTHER STANDARD VOUCHER FORMS, THE
CERTIFICATES ON SUCH OTHER FORMS NEED NO LONGER BE EXECUTED. HOWEVER,
THE ELIMINATION OF THIS REQUIREMENT DOES NOT DISPENSE WITH THE NECESSITY
FOR THE SPECIFIC CERTIFICATION OF FACTS REQUIRED BY CERTAIN CONTRACTS.
"THE OMISSION OF THE CERTIFICATE FROM BILLS OR INVOICES SUBMITTED FOR
PAYMENT TO GOVERNMENT AGENCIES DOES NOT IN ANY MANNER LESSEN THE
RESPONSIBILITY OF CONTRACTORS AND VENDORS IN COMPLYING WITH ALL
STATUTORY REQUIREMENTS APPLICABLE TO TRANSACTIONS WITH THE GOVERNMENT,
NOR WILL IT BE CONSTRUED AS MITIGATING THEIR LIABILITY FOR ASSERTING
FALSE, FICTITIOUS, OR FRAUDULENT CLAIMS AGAINST THE UNITED STATES,
PENALTIES FOR WHICH ARE SET FORTH IN 18 U.S.C. 287.'
FOR THE SAKE OF UNIFORMITY IN DEALING WITH VENDORS, IT IS SUGGESTED
THAT THE ATTENTION OF THE VARIOUS DIVISIONS AND AGENCIES OF YOUR
DEPARTMENT BE INVITED TO THE PROVISIONS OF SECTION 5020.10.
B-134501, APR. 2, 1958
TO MR. FEDERICO J. DAGDAG:
YOUR LETTER OF NOVEMBER 11, 1957, REQUESTS RECONSIDERATION OF YOUR
CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES
RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE
PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE
SETTLEMENT OF OCTOBER 3, 1957.
ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S
AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY,
THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS
CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE
EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU
ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF
COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO
SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY
ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.
IN OUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE
ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE
IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE
SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.
ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR
FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT.
THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT
RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY
GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO,
THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ,
DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR
REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR
HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER
THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH
YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION
DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT
COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED
JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER,
COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY
OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION
HAD EVER BEEN TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT
EARLY. IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON
THE BASIS MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST
MARSHAL OF THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND
BOTH REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR
STATION THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY
SECURITY GUARD FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS
OFFICIAL SHIFT.
ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT AFM 40-1, AFH 2 SEC.
2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO
REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTION, AND
UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND
SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF
DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT
THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT
AFM 40-1, AFH 2.1, PAR. 1A, THAT:
"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES
WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF
DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE
RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE
INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.
THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT
EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE
SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE
OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND
THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.
WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND
THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT
TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE
CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE
ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT
STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN.
288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE
REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY
THE AIR FORCE AS CONTROLLING.
B-134595, APR. 2, 1958
TO MR. JOAQUIN T. GARCES:
YOUR LETTER OF NOVEMBER 18, 1957, REQUESTS RECONSIDERATION OF YOUR
CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES
RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE
PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE
SETTLEMENT OF OCTOBER 2, 1957.
ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S
AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY,
THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS
CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE
EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU
ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF
COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO
SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY
ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.
IN OUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE
ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE
IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE
SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.
ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR
FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT.
THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT
RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY
GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO,
THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ,
DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR
REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR
HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER
THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH
YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION
DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT
COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED
JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER,
COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY
OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION
HAD EVER BEEN TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT
EARLY. IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON
THE
BASIS MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST
MARSHAL OF THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND
BOTH REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR
STATION THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY
SECURITY GUARD FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS
OFFICIAL SHIFT.
ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT AFM 40-1, AFH 2 SEC.
2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO
REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTION, AND
UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND
SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF
DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT
THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT
AFM 40-1, AFH 2.1, PAR. 1A, THAT:
"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES
WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF
DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE
RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE
INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.
THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT
EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE
SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE
OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND
THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.
WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND
THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT
TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE
CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE
ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT
STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN.
288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE
REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY
THE AIR FORCE AS CONTROLLING.
B-134596, APR. 2, 1958
TO MR. BONIFACIO A. TINIO:
YOUR LETTER OF NOVEMBER 15, 1957, REQUESTS RECONSIDERATION OF YOUR
CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES
RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE
PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE
SETTLEMENT OF OCTOBER 2, 1957.
ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S
AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY,
THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS
CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE
EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU
ENCLOSED WITH YOUR REQUEST FOR REVIEW OF PHOTOSTATIC COPIES OF
COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO
SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY
ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.
IN OUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE
ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE
IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE
SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.
ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR
FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT.
THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT
RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY
GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO,
THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ,
DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR
REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR
HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER
THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH
YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION
DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT
COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED
JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER,
COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY
OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION
HAD EVER TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT EARLY.
IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON THE BASIS
MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST MARSHAL OF
THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND BOTH
REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR STATION
THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY SECURITY GUARD
FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS OFFICIAL SHIFT.
ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT AFM 40-1, AFH 2, SEC.
2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO
REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTION, AND
UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND
SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF
DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT
THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT
AFM 40-1, AFH 2.1, PAR. 1A, THAT:
"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES
WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF
DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE
RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE
INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.
THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT
EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE
SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE
OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND
THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.
WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND
THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT
TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE
CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE
ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT
STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN.
288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE
REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY
THE AIR FORCE AS CONTROLLING.
B-134784, APR. 2, 1958
TO HERSHEY MANUFACTURING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 3, 1958,
PROTESTING THE REJECTION BY THE CIVIL AERONAUTICS ADMINISTRATION OF YOUR
BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 8-3165B1.
THE INVITATION REQUESTED BIDS TO BE OPENED ON DECEMBER 23, 1957, FOR
FURNISHING CONDENSER DISCHARGE RUNWAY IDENTIFIER SETS. PARAGRAPH 1 OF
THE "TERMS AND CONDITIONS PERTINENT TO THIS INVITATION" PROVIDED THAT
EACH BIDDER MUST "FURNISH THE DESCRIPTIVE DATA AS REQUIRED BY PARAGRAPH
XVIII HEREOF, FOR HIS BID TO BE CONSIDERED RESPONSIVE TO THE
INVITATION.' PARAGRAPH XVIII PROVIDED:
"DESCRIPTIVE DATA: EACH BIDDER SHALL FURNISH WITH HIS BID A COMPLETE
AND DETAILED DESCRIPTION OF THE MAJOR ASSEMBLIES AND COMPONENTS HE
PROPOSES TO FURNISH HEREUNDER, INCLUDING PHOTOGRAPHS OR CUTS, DRAWINGS,
SCHEMATIC DIAGRAMS AND OTHER DATA NECESSARY FOR A COMPREHENSIVE
DESCRIPTION. A MERE REPETITION OF THE SPECIFICATIONS IS NEITHER
DESIRABLE NOR SATISFACTORY. IF CATALOG OR OTHER NUMBER IS GIVEN TO
DESCRIBE PROPOSED UNITS, A PAGE OF THE CATALOG OR OTHER DESCRIPTION WILL
BE NECESSARY. THE ACCEPTANCE OF A BID WHICH SPECIFIES A PARTICULAR
ASSEMBLY OR COMPONENT SHALL NOT BE CONSTRUED TO MEAN THAT THE ITEM WILL
MEET THE INVITATION REQUIREMENTS. SUCH DETERMINATION WILL BE MADE AT
THE TIME OF INSPECTION. IN THE EVENT OF A VARIANCE BETWEEN THE MODEL
OFFERED AND THE REQUIREMENTS OF THE INVITATION THE LATTER SHALL BE
CONTROLLING.'
YOUR BID SUBMITTED IN RESPONSE TO THE INVITATION WAS NOT ACCOMPANIED
BY THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XVIII AND WAS, THEREFORE,
REJECTED BY THE CIVIL AERONAUTICS ADMINISTRATION AS NOT BEING RESPONSIVE
TO THE INVITATION.
IN YOUR TELEGRAM OF PROTEST TO THIS OFFICE DATED JANUARY 3, 1958, IT
WAS STATED THAT YOU HAD INADVERTENTLY FAILED TO SUBMIT THE DESCRIPTIVE
DATA WITH YOUR BID, THAT THERE WAS NO QUESTION AS TO YOUR TECHNICAL
ABILITY TO PERFORM THE REQUIRED WORK AND THAT, THEREFORE, TO REJECT THE
BID ON THE BASIS OF A MINOR TECHNICALITY WOULD BE A GRAVE INJUSTICE TO
YOU AND THE GOVERNMENT.
IT IS REPORTED THAT THE CONDENSER DISCHARGE RUNWAY IDENTIFIER SETS
COVERED BY THE INVITATION HAVE NEVER BEEN MADE BEFORE; THAT THE SETS,
PARTICULARLY THE TRANSFORMERS AND CONTROL COMPONENTS, ARE HIGHLY COMPLEX
AND THAT THE SUCCESSFUL BIDDER WILL BE CALLED UPON TO DO A CONSIDERABLE
AMOUNT OF DESIGN WORK UNDER WHAT IS ESSENTIALLY A PERFORMANCE
SPECIFICATION. FOR THESE REASONS THERE WAS INCLUDED IN THE INVITATION
THE REQUIREMENT THAT EACH BIDDER SUBMIT DESCRIPTIVE DATA DESCRIBING IN
DETAIL WHAT HE PROPOSED TO FURNISH. THIS WAS REQUIRED AS A BASIS FOR
THE FINDING BY THE CONTRACTING OFFICER UNDER PARAGRAPH 1 OF THE "SPECIAL
INVITATION CONDITIONS" THAT THE BIDDER HAD THE "TECHNICAL ABILITY * * *
AS MAY BE REQUIRED FOR A PROMPT AND SATISFACTORY COMPLETION OF THE
CONTRACT IN STRICT ACCORDANCE WITH ITS TERMS.'
IT IS FURTHER REPORTED THAT THE GOVERNMENT'S NEED FOR THIS EQUIPMENT
WAS URGENT. IT IS ONE OF THE ESSENTIAL ELEMENTS OF THE AIR NAVIGATION
FACILITIES MODERNIZATION PROGRAM WHICH THE CONGRESS HAS DIRECTED THE
CIVIL AERONAUTICS ADMINISTRATION TO ACCELERATE. THE AIRPORTS AT WHICH
THESE RUNWAY IDENTIFIER SETS ARE SCHEDULED FOR INSTALLATION DO NOT NOW
HAVE ANY APPROACH LIGHTING SYSTEMS AND THE INSTALLATION OF THE SYSTEMS
WILL SUBSTANTIALLY IMPROVE THE SAFETY AND UTILITY OF THESE AIRPORTS.
CONSEQUENTLY, THIS INVITATION WAS WRITTEN TO PROVIDE THE GREATEST
POSSIBLE PROTECTION AGAINST DELAY. IN ADDITION TO LIQUIDATED DAMAGES
FOR DELAYED PERFORMANCE, THE INVITATION REQUIRED THAT EACH BIDDER SUBMIT
WITH HIS BID THE DESCRIPTIVE DATA REQUIRED BY PARAGRAPH XVIII. THIS WAS
DONE TO AVOID THE DELAY THAT WOULD INEVITABLY FOLLOW IN MAKING AWARD IF
BIDDERS WERE ALLOWED TO AMPLIFY THEIR BIDS AFTER THE OPENING.
IT IS THE PROPER FUNCTION OF ADMINISTRATIVE OFFICERS TO PREPARE
SPECIFICATIONS IN ACCORDANCE WITH THE NEEDS OF THE GOVERNMENT AND TO
PROVIDE SPECIAL PROVISIONS IN INVITATIONS DUE TO THE COMPLEXITY OF THE
EQUIPMENT BEING PURCHASED OR FOR SOME OTHER PARTICULAR REASON.
IN THIS CASE IT DOES NOT APPEAR THAT THE REQUIREMENTS OF PARAGRAPH
XVIII WERE UNREASONABLE OR ARBITRARY. SINCE YOU DID NOT SUBMIT WITH
YOUR BID THE DATA REQUIRED BY THE INVITATION YOUR BID WAS NOT RESPONSIVE
AS SPECIFICALLY PROVIDED IN THE INVITATION. THE SUBMISSION OF DATA
HAVING BEEN MADE MANDATORY THERE WOULD BE NO AUTHORITY FOR THE
CONTRACTING OFFICER TO SUBSEQUENTLY WAIVE IT. SEE 36 COMP. GEN. 376.
ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH
WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE SYSTEM TAKEN IN
THE MATTER.
B-134812, APR. 2, 1958
TO MR. PEDRO PASCUA:
YOUR LETTER OF DECEMBER 2, 1957, REQUESTS RECONSIDERATION OF YOUR
CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES
RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE
PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE
SETTLEMENT OF OCTOBER 2, 1957.
ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S
AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY,
THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS
CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE
EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU
ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF
COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO
SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY
ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.
IN OUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE
ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE
IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE
SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.
ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR
FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT.
THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT
RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY
GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO,
THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ,
DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR
REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR
HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER
THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH
YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION
DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT
COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED
JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER,
COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY
OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION
HAD EVER BEEN TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT
EARLY. IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON
THE BASIS MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST
MARSHAL OF THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND
BOTH REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR
STATION THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY
SECURITY GUARD FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS
OFFICIAL SHIFT.
ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT AFM 40-1, AFH 2 SEC.
2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO
REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTIONS, AND
UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND
SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF
DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT
THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT
AFM 40-1, AFH 2.1, PAR. 1A, THAT:
"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES
WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF
DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE
RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE
INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.
THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT
EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE
SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE
OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND
THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.
WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND
THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT
TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE
CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE
ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT
STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN.
288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE
REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY
THE AIR FORCE AS CONTROLLING.
B-134990, APR. 2, 1958
TO MR. LAWRENCE F. PETKOVSEK:
IN YOUR LETTER OF MARCH 4, 1958, YOU REQUEST FURTHER CONSIDERATION OF
YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED IN
GREENLAND AS A MEMBER OF THE 1ST ENGINEER ARCTIC TASK FORCE UNDER ORDERS
DATED JANUARY 30, 1956.
IN DECISION OF FEBRUARY 28, 1958, B-134990, YOU WERE ADVISED THAT THE
DISALLOWANCE OF YOUR CLAIM BY OUR SETTLEMENT OF APRIL 18, 1956, WAS
PROPER, AND REQUIRED, SINCE THE ORDERS DIRECTING THE TEMPORARY DUTY IN
QUESTION CONTAINED A STATEMENT OF ADMINISTRATIVE DETERMINATION THAT IT
WAS FIELD DUTY OF THE TYPE CONTEMPLATED BY THE JOINT TRAVEL REGULATIONS
WHICH COULD NOT BE CONSIDERED AS OVERCOME BY A SUBSEQUENTLY ISSUED
AMENDMENT TO THE ORDERS PURPORTING TO AUTHORIZE PER DIEM WITHOUT
PROVIDING EVIDENCE THAT THE ORIGINAL ADMINISTRATIVE DETERMINATION OF THE
EXISTENCE OF A FIELD DUTY SITUATION WAS IN ERROR. YOU SUGGEST, HOWEVER,
THAT SUCH DETERMINATION WAS ERRONEOUS BECAUSE YOUR MISSION WAS TO
SUPPORT AND ASSIST CIVILIAN SCIENTISTS IN RESEARCH ACTIVITIES AND SO
,WAS NOT OF THE FRIVOLOUS NATURE AS THOSE CONTAINED IN PARAGRAPH 4250-3
OF THE JOINT TRAVEL REGULATIONS," AND THAT IT WAS PERFORMED UNDER
CIRCUMSTANCES WHERE THE QUARTERS AND RATIONS PROVIDED WERE INADEQUATE
AND UNSATISFACTORY. YOU DO NOT CONTEND THAT YOU WERE PUT TO UNDUE
ADDITIONAL PERSONAL EXPENSE.
THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES
TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE UNITED STATES IS
AUTHORIZED FOR THE PURPOSE OF PROVIDING A MEANS OF REIMBURSING THEM FOR
THE ADDITIONAL QUARTERS AND SUBSISTENCE EXPENSES AND OTHER NECESSARY
INCIDENTAL EXPENSES INCURRED WHILE AWAY FROM THEIR PERMANENT STATIONS.
SEE SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
814. THERE IS NO AUTHORITY FOR THE PAYMENT OF THE ALLOWANCE ON THE
BASIS THAT THE TEMPORARY DUTY PERFORMED INVOLVED HAZARD OR HARDSHIP. 37
COMP. GEN. 126. THE PROVISIONS OF PARAGRAPH 4250-3 OF THE JOINT TRAVEL
REGULATIONS DID NOT DESIGNATE CERTAIN SITUATIONS AS "FIELD
DUTY" BECAUSE OF THEIR "FRIVOLOUS NATURE," AS YOU APPARENTLY BELIEVE,
BUT CONTEMPLATED THE INCLUSION OF THOSE TYPES OF DUTY ASSIGNMENTS WHERE
EXTRAORDINARY SUBSISTENCE EXPENSES WOULD NOT BE
INCURRED BY THE PARTICIPANTS. THERE ARE NO LEGAL GROUNDS THEREFORE
TO CONCLUDE THAT THE DUTY IN QUESTION WAS NOT FIELD DUTY WITHIN THE
CONTEMPLATION OF THE JOINT TRAVEL REGULATIONS ON THE BASIS OF YOUR
CONTENTIONS AS TO THE PURPOSE OF THE DUTY AND THE PHYSICAL HARDSHIP OF
ITS PERFORMANCE. ACCORDINGLY, YOU ARE AGAIN ADVISED THAT THERE EXISTS
NO PROPER BASIS FOR THE PAYMENT OF YOUR CLAIM.
WITH REFERENCE TO YOUR STATEMENT THAT OTHER MEMBERS OF THE 1ST
ENGINEER ARCTIC TASK FORCE HAVE RECEIVED PER DIEM ALLOWANCES UNDER
CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, YOU ARE ADVISED
THAT MANY CLAIMS ADVANCED UNDER CIRCUMSTANCES SIMILAR TO YOURS---
INCLUDING NUMBER WHERE THE MEMBERS PERFORMED TRAVEL AND TEMPORARY DUTY
UNDER THE SAME ORDERS THAT DIRECTED YOUR TRAVEL--- HAVE BEEN DISALLOWED.
IF, AS YOU SUGGEST, THERE HAVE BEEN INSTANCES WHERE PER DIEM HAS BEEN
PAID UNDER SIMILAR CIRCUMSTANCES, SUCH PAYMENTS WERE ERRONEOUS AND MAY
NOT SERVE AS A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.
THE CORRESPONDENCE AND OTHER EVIDENCE SUBMITTED IN CONNECTION WITH
YOUR CLAIM HAVE BECOME A PART OF THE PERMANENT RECORDS OF THE GENERAL
ACCOUNTING OFFICE AND MAY NOT BE RETURNED TO YOU AS REQUESTED.
B-135230, APR. 2, 1958
TO MRS. GRACE FETTINGER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1958,
CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $225
REPRESENTING ERRONEOUS PAYMENTS OF CLASS E ALLOTMENTS MADE TO YOU AS THE
WIFE OF HAROLD G. BOUND, WHILE HE WAS SERVING IN THE ARMY OF THE UNITED
STATES.
OUR RECORDS SHOW THAT MR. BOUND AUTHORIZED A VOLUNTARY (CLASS E)
ALLOTMENT AT $25 A MONTH TO YOU COMMENCING JULY 1, 1942. ON JULY 22,
1942, HE EXECUTED "NOTIFICATION OF DISCONTINUANCE OF ALLOTMENT" (W.D.,
A.G.O. FORM NO. 30), PROVIDING FOR THE DISCONTINUANCE OF THAT ALLOTMENT
TO YOU, EFFECTIVE JULY 1, 1942, BECAUSE OF APPLICATION FOR SERVICEMEN'S
DEPENDENT ALLOWANCE BENEFITS. THAT FORM CONTAINED A NOTATION AS
FOLLOWS:
"PAYMENT TO CONTINUE THROUGH SEPT/42 UNDER THIS ALLOTMENT AND THE
TOTAL SO PAID FROM DATE OF CANCELLATION THROUGH SEPT/42 IS TO BE
DEDUCTED FROM THE FIRST PAYMENT UNDER THE SERVICEMENS DEPENDENTS
ALLOWANCE ACT.'
SUCH PROCEDURE WAS IN CONFORMANCE WITH THE ESTABLISHED POLICY OF THE
DEPARTMENT OF THE ARMY AT THAT TIME, PERMITTING AN ENLISTED MAN TO
AUTHORIZE A CLASS E ALLOTMENT TO HIS DEPENDENT FOR THE PERIOD FROM JUNE
1, 1942, THROUGH SEPTEMBER 30, 1942, WITHOUT A CORRESPONDING DEDUCTION
FROM HIS PAY. THIS PROCEDURE APPARENTLY WAS ADOPTED IN ORDER TO
ALLEVIATE HARDSHIP ON THE PART OF THE ENLISTED MAN'S DEPENDENT WHILE THE
AGENCY WHICH ADMINISTERED THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE
ACT, 56 STAT. 382, WAS BEING ESTABLISHED. IN OTHER WORDS, THE PURPOSE
OF SUCH PROCEDURE WAS TO CONTINUE THE ALLOTMENTS UNTIL ALL ARRANGEMENTS
HAD BEEN MADE FOR THE PAYMENT OF FAMILY ALLOWANCE AND UNTIL SUCH
PAYMENTS ACTUALLY COMMENCED. THE RECORDS SHOW THAT CLASS E ALLOTMENT AT
THE RATE OF $25 A MONTH WAS PAID TO YOU FOR THE MONTHS OF JULY, AUGUST
AND SEPTEMBER 1942. NO CORRESPONDING DEDUCTIONS WERE MADE FROM MR.
BOUND'S PAY FOR THOSE MONTHS AS REQUIRED NOR WAS DEDUCTION MADE FROM THE
FIRST PAYMENT TO YOU OF FAMILY ALLOWANCE. UNDER THE CIRCUMSTANCES, WE
HELD THAT MR. BOUND WAS LEGALLY OBLIGATED TO REPAY THE GOVERNMENT FOR
THE PAYMENTS MADE TO YOU FOR THE PERIOD ON AND BEFORE SEPTEMBER 30,
1942. MR. BOUND HAS MADE PAYMENTS ON ACCOUNT TOTALING $55.
YOUR SHARE OF THE INDEBTEDNESS REPRESENTS CLASS E ALLOTMENT PAYMENTS
AT $25 A MONTH MADE TO YOU FOR THE MONTHS OF OCTOBER 1942 THROUGH JUNE
1943, OR FOR 9 MONTHS, TOTALING $225. THIS AMOUNT ERRONEOUSLY WAS
STATED TO BE $200 IN LETTER OF JUNE 7, 1957, TO HONORABLE A. B.
RAUMHART, JR., M.C. THIS PORTION HERETOFORE WAS CONSIDERED AS BEING
CHARGEABLE SOLELY AGAINST YOU BECAUSE THESE PAYMENTS WERE MADE FOR
PERIODS SUBSEQUENT TO SEPTEMBER 30, 1942, THE DATE MR. BOUND REQUESTED
DISCONTINUANCE OF THE ALLOTMENT. HOWEVER, WHEN YOUR PRIOR LETTERS ARE
READ IN THE LIGHT OF THE CLARIFYING STATEMENTS MADE IN YOUR LETTER OF
JANUARY 9, 1958, IT IS APPARENT THAT YOUR FORMER HUSBAND SHOULD BE HELD
JOINTLY AND SEVERALLY LIABLE WITH YOU FOR THE ERRONEOUS PAYMENTS
TOTALING $225 MADE AFTER HE REQUESTED THAT THE CLASS E ALLOTMENT BE
DISCONTINUED, IT BEING EVIDENT THAT HE KNEW THAT YOU HAD RECEIVED THE
PAYMENTS INVOLVED AND THAT HE ACTUALLY SHARED IN THEIR USE. SEE 33
COMP. GEN. 309. THIS ACTION, OF COURSE, IS NOT TO BE CONSIDERED AS
RELIEVING YOU OF YOUR OBLIGATION TO RETURN TO THE GOVERNMENT THE MONEY
PAID TO YOU ERRONEOUSLY. YOUR CONTENTION THAT YOUR FORMER HUSBAND ALONE
SHOULD REPAY THIS MONEY BECAUSE "MR. BOUND WAS THE ONE THAT SPENT IT,"
IS NOT UNDERSTOOD, SINCE YOUR STATEMENT THAT YOU SUPPORTED YOURSELF AND
PUT HIS ALLOTMENTS IN THE BANK APPLIES TO "THE LAST YEAR IN THE WAR," A
PERIOD PRIOR TO THE ONE HERE INVOLVED. PRESUMABLY, YOU SPENT A LARGE
PORTION OF THE $225. WHILE YOU MAY HAVE SPENT SUCH MONEY FOR FAMILY
PURPOSES, IT WAS MONEY WHICH BELONGED TO THE GOVERNMENT, NOT TO YOUR
HUSBAND.
IT IS WELL ESTABLISHED THAT PERSONS WHO RECEIVE MONEY ERRONEOUSLY
PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY
AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN
EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. ACCORDINGLY, ALTHOUGH
MR. BOUND IS BEING HELD JOINTLY LIABLE WITH YOU FOR REFUND OF THIS ITEM
OF $225, THE FACT THAT YOU INNOCENTLY MAY HAVE RECEIVED THE CLASS E
ALLOTMENT PAYMENTS DOES NOT RELIEVE YOU OF YOUR LIABILITY TO RETURN
THOSE PAYMENTS. SEE BARNES, ET AL., V. DISTRICT OF COLUMBIA, 22 C.CLS.
366; UNITED STATES V. BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL R.R.
CO., V. UNITED STATES 164 U.S. 190; AND THE CASES COLLECTED AND
DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; AND
IN 63 A.L.R. 1346. THOSE PAYMENTS CONSTITUTE A DEBT DUE TO THE UNITED
STATES FROM YOU AND MR. BOUND. WHILE WE SYMPATHIZE WITH YOU IN YOUR
SITUATION BROUGHT ABOUT BY CIRCUMSTANCES OF WHICH YOU PROBABLY HAD NO
KNOWLEDGE, WE HAVE NO AUTHORITY TO WAIVE YOUR INDEBTEDNESS AND CANNOT
LEGALLY CANCEL IT.
YOUR INDEBTEDNESS MAY BE LIQUIDATED BY REGULAR MONTHLY PAYMENTS AND
YOU SHOULD BEGIN SUCH PAYMENTS WITHIN 30 DAYS FROM THE DATE OF THIS
LETTER SUBMITTING WITH THE FIRST PAYMENT A STATEMENT OF YOUR PLAN FOR
COMPLETING THE PAYMENTS WITHIN A REASONABLE TIME.
PAYMENTS SHOULD BE MADE BY BANK DRAFT, CHECK, OR MONEY ORDER PAYABLE
TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, AND FORWARDED TO THE
CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE
BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO. 791484, AND FILE
B-135230.
B-135230, APR. 2, 1958
TO MR. HAROLD G. BOUND:
WE HAVE FOR CONSIDERATION THE MATTER OF YOUR INDEBTEDNESS TO THE
UNITED STATES REPORTED IN LETTER OF JULY 10, 1957, AS AMOUNTING TO A
BALANCE OF $45.
IT APPEARS THAT THIS BALANCE OF $45 WAS COMPUTED ON THE BASIS OF
NON-DEDUCTION FROM YOUR PAY OF CLASS E ALLOTMENT AT $25 A MONTH FOR
JUNE, JULY, AUGUST, AND SEPTEMBER 1942, A TOTAL OF $100, REDUCED TO $45
BY REMITTANCES RECEIVED FROM YOU AMOUNTING TO $55. ACTUALLY NO CLASS E
ALLOTMENT WAS PAID FOR JUNE 1942.
THE RECORDS SHOW THAT YOU AUTHORIZED A VOLUNTARY (CLASS E) ALLOTMENT
AT $25 A MONTH TO BE PAID TO YOUR FORMER WIFE, MRS. GRACE E. BOUND, NOW
MRS. GRACE FETTINGER, COMMENCING JULY 1, 1942. ON JULY 22, 1942, YOU
EXECUTED "NOTIFICATION OF DISCONTINUANCE OF ALLOTMENT" (W.D., A.G.O.
FORM NO. 30), PROVIDING FOR THE DISCONTINUANCE OF THAT ALLOTMENT BY
YOU, EFFECTIVE JULY 1, 1942, BECAUSE OF
APPLICATION FOR SERVICEMEN'S DEPENDENTS BENEFITS. THAT FORM
CONTAINED A NOTATION AS FOLLOWS:
"PAYMENT TO CONTINUE THROUGH SEPT/42 UNDER THIS ALLOTMENT AND THE
TOTAL SO PAID FROM DATE OF CANCELLATION THROUGH SEPT/42 IS TO BE
DEDUCTED FROM THE FIRST PAYMENT UNDER THE SERVICEMEN'S DEPENDENTS
ALLOWANCE ACT.'
SUCH PROCEDURE WAS IN CONFORMANCE WITH THE ESTABLISHED POLICY OF THE
DEPARTMENT OF THE ARMY AT THAT TIME, PERMITTING AN ENLISTED MAN TO
AUTHORIZE A CLASS E ALLOTMENT TO HIS DEPENDENT FOR THE PERIOD FROM JUNE
1, 1942, THROUGH SEPTEMBER 30, 1942, WITHOUT A CORRESPONDING DEDUCTION
FROM HIS PAY. THIS PROCEDURE APPARENTLY WAS ADOPTED IN ORDER TO
ALLEVIATE HARDSHIP ON THE PART OF THE ENLISTED MAN'S DEPENDENT WHILE THE
AGENCY WHICH ADMINISTERED THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE
ACT, 56 STAT. 382, WAS BEING ESTABLISHED. IN OTHER WORDS, THE PURPOSE
OF SUCH PROCEDURE WAS TO CONTINUE THE ALLOTMENTS UNTIL ALL ARRANGEMENTS
HAD BEEN MADE FOR THE PAYMENT OF FAMILY ALLOWANCE AND UNTIL SUCH
PAYMENTS ACTUALLY COMMENCED. THE RECORDS SHOW THAT CLASS E ALLOTMENT AT
THE RATE OF $25 A MONTH WAS PAID TO YOUR ALLOTTEE FOR THE MONTHS OF
JULY, AUGUST, AND SEPTEMBER 1942. NO CORRESPONDING DEDUCTIONS WERE MADE
FROM YOUR PAY FOR THOSE MONTHS AS REQUIRED NOR WAS DEDUCTION MADE FROM
THE FIRST PAYMENT TO YOUR WIFE AS HER FAMILY ALLOWANCES. SINCE NO
DEDUCTIONS WERE MADE FROM YOUR PAY FOR THOSE MONTHS YOU ARE LEGALLY
OBLIGATED TO REIMBURSE THE UNITED STATES FOR THE TOTAL OF $75 PAID
PURSUANT TO YOUR AUTHORIZATION. YOUR SUBSEQUENT PAYMENTS AMOUNTING TO
$55 ON ACCOUNT HAVE REDUCED THAT DEBT TO $20.
IN ADDITION TO THE FOREGOING, THE RECORD SHOWS THAT CLASS E ALLOTMENT
PAYMENTS CONTINUED TO BE MADE TO YOUR ALLOTTEE IN THE AMOUNT OF $25
MONTHLY FOR THE MONTHS OF OCTOBER 1942 THROUGH JUNE 1943 OR FOR 9
MONTHS, TOTALING $225. THIS PORTION WAS ORIGINALLY CONSIDERED AS BEING
SOLELY CHARGEABLE AGAINST YOUR ALLOTTEE BECAUSE THE PAYMENTS WERE MADE
FOR PERIODS SUBSEQUENT TO SEPTEMBER 30, 1942, THE DATE YOU REQUESTED
THAT THE ALLOTMENT BE DISCONTINUED. HOWEVER, YOUR FORMER WIFE HAS
INFORMED US THAT YOU KNEW THAT SHE WAS RECEIVING THESE OVERPAYMENTS AND
THAT YOU ACTUALLY PARTICIPATED IN THE USE OF THE FUNDS SO RECEIVED BY
HER, WHILE YOU WERE HOME ON LEAVE IN JANUARY AND APRIL 1943 AND WHILE
SHE LIVED WITH YOU IN CALIFORNIA BETWEEN SUCH LEAVE PERIODS. SHE STATES
ALSO THAT SHE SENT SOME OF THIS MONEY TO YOU WHILE YOU WERE AT THE
OFFICERS' TRAINING SCHOOL AND AGAIN SHORTLY BEFORE YOU LEFT FOR OVERSEAS
IN MAY 1943. ACCORDINGLY, IT MUST BE HELD THAT YOU ARE JOINTLY AND
SEVERALLY LIABLE WITH HER FOR REFUND OF THE ERRONEOUS PAYMENTS. SEE 33
COMP. GEN. 309.
IT HAS BEEN NOTED FROM OUR RECORDS THAT YOU OFFERED TO REPAY YOUR
DEBT AT THE RATE OF $5 MONTHLY; THAT YOU HAVE MADE SEVERAL SUCH
PAYMENTS; THAT THE PAYMENTS HAVE NOT BEEN MADE EACH ONTH; AND THAT,
WITH THE ADDITIONAL $225 REFERRED TO ABOVE, THE BALANCE DUE IS $245.
SUCH PAYMENTS--- INCREASED IN AMOUNT, IF POSSIBLE--- SHOULD BE RESUMED
WITHIN 30 DAYS FROM THE DATE OF THIS LETTER AND SHOULD BE MADE REGULARLY
THEREAFTER BY BANK DRAFT, CHECK, OR MONEY ORDER PAYABLE TO THE UNITED
STATES GENERAL ACCOUNTING OFFICE. YOU SHOULD FORWARD THEM TO THE CLAIMS
DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610,
WASHINGTON 13, D.C., REFERRING TO CLAIM NO. Z-791484, AND FILE
B-135230.
B-135286, APR. 2, 1958
TO TECHNICAL SERGEANT GLEN Y. MURPHY, USAF 1542 4306:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 5, 1958, REQUESTING
RECONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR SUBSISTENCE FOR
THE PERIOD NOVEMBER 26, 1956, TO AUGUST 31, 1957, WHICH WAS DISALLOWED
BY OUR SETTLEMENT DATED JANUARY 31, 1958.
YOU STATE THAT APPLICATION FOR RATIONS FILED BY YOU ON NOVEMBER 30,
1956, WAS LOST DUE TO NO FAULT OF YOUR OWN AND THAT THE CERTIFICATES, DS
FORM 114, DATED OCTOBER 4, 1957, FILED IN SUPPORT OF YOUR CLAIM, WHILE
THEY MAY BE IN ERROR AS TO DATE, VERIFY THAT YOU HAD NOT RATIONED AT
GOVERNMENT EXPENSE DURING THE PERIOD CLAIMED. YOU ALSO STATE THAT A
CHECK OF YOUR MILITARY PAY RECORD WILL ALSO VERIFY THE FACT THAT YOU
HAVE NOT RECEIVED A RATION ALLOWANCE DURING THE PERIOD CLAIMED. A COPY
OF BASE REGULATIONS NO. 173-2 DATED MARCH 24, 1954, WHICH SETS FORTH THE
POLICY AND PROCEDURE FOR AUTHORIZATION OF SEPARATE RATIONS WAS SUBMITTED
BY YOU, APPARENTLY IN SUBSTANTIATION OF A CONTENTION THAT ADMINISTRATIVE
FAILURE OR OVERSIGHT IN ISSUING APPROPRIATE AUTHORIZATION FOLLOWING YOUR
APPLICATION THEREFORE SHOULD NOT OPERATE TO DEPRIVE YOU OF PAYMENT FOR
THE THEREFORE SHOULD NOT OPERATE TO DEPRIVE YOU OF PAYMENT FOR THE
SUBSISTENCE ALLOWANCE CLAIMED.
SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37
U.S.C. 251 (A), AUTHORIZES THE PAYMENT OF A BASIC ALLOWANCE FOR
SUBSISTENCE OF ONE OF THREE TYPES, TYPE 2 OF WHICH IS "WHEN PERMISSION
TO MESS SEPARATELY IS GRANTED.' EXECUTIVE ORDER NO. 10119, DATED MARCH
27, 1950, (37 U.S.C. 251; AF BUL. 8, 1950) ISSUED UNDER AUTHORITY OF
SECTION 301 STATED THAT SUCH PROVISION SHOULD BE CONSIDERED APPLICABLE
IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATION OR WHILE SICK IN
HOSPITALS WHERE A MESS FOR SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND
WHEN SUCH MEMBERS ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY.
PARAGRAPH 20104-B, AFM 173-20 PROVIDES THAT:
"/1) AIRMEN ARE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR SUBSISTENCE
ON A DAILY BASIS AT THE RATES PRESCRIBED IN PARAGRAPH 20101D UNDER
CIRCUMSTANCES DESCRIBED BELOW:
"* * * (B) WHEN AUTHORIZED BY THE INSTALLATION COMMANDER TO SUBSIST
THEMSELVES INDEPENDENTLY, NOTWITHSTANDING THE AVAILABILITY OF A
GOVERNMENT MESS.'
PARAGRAPH 20108, AFM 173-20 PROVIDES THAT PAYMENT WILL BE AUTHORIZED
FOR---
"B. AIRMEN. AFTER DETERMINATION IS MADE * * *; OR AUTHORIZATION IS
GRANTED TO RATION SEPARATELY REGARDLESS OF THE AVAILABILITY OF A
GOVERNMENT MESS * * *. THE DETERMINATION OR AUTHORIZATION OF THE
INSTALLATION COMMANDER IS CONCLUSIVE OF THE RIGHTS OF THE AIRMAN * * *.
THUS IT WILL READILY BE SEEN THAT THE ALLOWANCE IS NOT PAYABLE IN THE
ABSENCE OF A SHOWING THAT THE ENLISTED PERSON WAS AUTHORIZED BY PROPER
AUTHORITY PRIOR TO THE PERIOD INVOLVED TO MESS SEPARATELY.
YOUR CLAIM IS SUPPORTED BY CERTIFICATION THAT STATE SEPARATE RATIONS
WILL START ON NOVEMBER 29, 1958, AND JANUARY 26, 1957, BUT BOTH
CERTIFICATES ARE DATED OCTOBER 4, 1957, AFTER THE DUTY HAS BEEN
PERFORMED. SUCH CERTIFICATES MAY NOT BE ACCEPTED AS CONTEMPORANEOUS
ORDERS OR AUTHORIZATION TO MESS SEPARATELY. THE LETTER OF OCTOBER 8,
1957, FROM FORBES AIR FORCE BASE, WHICH IS PART OF THE FILE SUBMITTED
WITH YOUR CLAIM THROUGH CHANNELS, STATES THAT NO ORGANIZATION FILE COPY
OF THE SEPARATE RATIONS REQUEST IS AVAILABLE TO SUPPORT THE CLAIM AND
THAT NOTHING, OTHER THAN THE STATEMENTS AVAILABLE, SEEMS TO SUBSTANTIATE
WHAT YOU WERE REQUIRED TO TURN IN YOUR MESS PASS AT THE TIME, OR THAT
YOUR "LIBERTY PASS" WAS PROPERLY MARKED INDICATING SEPARATE RATIONS.
THERE IS NO SHOWING THAT YOU WERE GRANTED AUTHORITY PRIOR TO ANY PORTION
OF THE PERIOD OF YOUR CLAIM TO MESS SEPARATELY AND, HENCE, YOU HAVE NOT
MET THE CONDITIONS OF THE REGULATIONS.
RESPECTING YOUR IMPLIED CONTENTION THAT YOUR REQUEST WAS NOT APPROVED
DUE TO ADMINISTRATIVE ERROR--- NEGLIGENCE OF YOUR COMMANDING OFFICER---
IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY
PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF
ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE
PERFORMANCE OF THEIR OFFICIAL DUTIES.
19 COMP. GEN. 503; 14 ID. 221, 473, 855, 54 AM.JUR. 606; BIGBY V.
UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES 148 U.S. 573;
HART V. UNITED STATES, 95 U.S. 316; COOKE V. UNITED STATES, 91 U.S.
389, 398.
ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1956, DISALLOWING YOUR
CLAIM, WAS CORRECT AND IS SUSTAINED.
B-135442, APR. 2, 1958
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 26, 1958, WITH
ENCLOSURES, FROM MR. JOHN N. MARKOVITZ, CHIEF, FISCAL DIVISION,
VETERANS ADMINISTRATION, SUPPLY DEPOT, SOMMERVILLE, NEW JERSEY,
TRANSMITTING THE CASE OF THE EALING CORPORATION, A DEFAULTING CONTRACTOR
UNDER CONTRACT NO. V1005 P-5435, DATED DECEMBER 26, 1956, AND REQUESTING
A DECISION AS TO WHETHER THE EXCESS COSTS TO THE GOVERNMENT, WHICH AROSE
FROM THE PARTIAL DEFAULT TERMINATION OF THE CONTRACT WERE PROPERLY
COMPUTED BY THAT DEPOT AS STATED IN ITS COLLECTION VOUCHER DATED
NOVEMBER 13, 1957.
SINCE THE OFFICIAL OF YOUR AGENCY REQUESTING THE DECISION IS NOT
ENTITLED TO A DECISION AND SINCE IT APPEARS THAT AN ANSWER IS REQUIRED,
THE DECISION IS BEING ADDRESSED TO YOU. SEE 26 COMP. GEN. 993.
BY INVITATION NO. A-198-57, DATED NOVEMBER 29, 1956, THE VETERANS
ADMINISTRATION, PROCUREMENT DIVISION, WASHINGTON, D.C., REQUESTED BIDS
FOR QUALITATIVE AND QUANTITATIVE PAPER FILTERS FOR DELIVERY TO VARIOUS
DESTINATIONS. PARAGRAPH 7 OF THE SUPPLEMENTARY GENERAL PROVISIONS, MADE
A PART OF THE INVITATION, PROVIDED, PURSUANT TO THE ACT OF MARCH 3,
1933, 47 STAT. 1520, AS AMENDED, 41 U.S.C. 110A-D, OTHERWISE KNOWN AS
THE BUY-AMERICAN ACT, THAT "WHEN BIDS ARE RECEIVED COVERING MATERIALS OF
FOREIGN ORIGIN AT PRICES LOWER THAN BIDS OFFERING MATERIALS OF DOMESTIC
ORIGIN, 6 PERCENT WILL BE ADDED TO THE BID PRICE OF FOREIGN MATERIAL FOR
COMPARISON PURPOSES WHEN MAKING AN AWARD.' IN RESPONSE, THE EALING
CORPORATION AGREED TO DELIVER THE MATERIAL FROM FOREIGN ORIGIN TO THE
VARIOUS DESTINATIONS AT CERTAIN UNITS PRICES. THE CONTRACT WAS AWARDED
THE COMPANY ON DECEMBER 27, 1956.
THE RECORD SHOWS THAT A PORTION OF THE CONTRACT QUANTITIES WAS
TERMINATED DUE TO THE CONTRACTOR'S DEFAULT. AFTER DEFAULT THE
GOVERNMENT REPURCHASED THE TERMINATED PORTION OF THE CONTRACT FROM A
DOMESTIC SOURCE AND DIRECTED THE EALING CORPORATION TO PAY THE EXCESS
COSTS IN THE
AMOUNT OF $250.56 INCURRED BY THE GOVERNMENT. SUCH EXCESS COSTS WER
COMPUTED BY THE GOVERNMENT ON THE BASIS OF THE DIFFERENCE BETWEEN THE
PRICES STATED IN THE CONTRACT ON THE DEFAULTED ITEMS AND THE PRICE PAID
BY THE GOVERNMENT ON THE REPURCHASE CONTRACT.
THE CONTRACTOR CONTENDS THAT THE EXCESS COSTS SHOULD HAVE BEEN
COMPUTED UPON THE DIFFERENCE BETWEEN THE BID PRICES AND THE PRICES PAID
BY THE GOVERNMENT ON THE REPURCHASE CONTRACT LESS SIX PERCENT. A
DECISION IS REQUESTED AS TO THE PROPER AMOUNT OF THE EXCESS COSTS
CHARGEABLE TO THE DEFAULTING CONTRACTOR.
AS STATED IN PARAGRAPH 7 OF THE INVITATION, THE AMOUNT OF SIX PERCENT
ADDED TO THE BID PRICE OF FOREIGN MATERIAL WAS FOR COMPARISON PURPOSES
IN DETERMINING A BASIS FOR AWARD AS REQUIRED AND EXPLAINED IN EXECUTIVE
ORDER NO. 10582, 40 U.S.C. 10D. IN NO WAY DOES THE SIX PERCENT
VARIATION EFFECT THE DAMAGES CAUSED THE GOVERNMENT DUE TO THE DEFAULT.
IT IS WELL SETTLED THAT ONE WHO FAILS TO PERFORM HIS CONTRACT IS JUSTLY
BOUND TO MAKE GOOD ALL DAMAGES THAT ACCRUE NATURALLY FROM THE BREACH AND
THE OTHER PARTY IS ENTITLED TO BE PUT IN AS GOOD POSITION PECUNIARILY AS
HE WOULD HAVE BEEN BY PERFORMANCE OF THE CONTRACT. MILLER V. ROBERTSON,
266 U.S. 243. THUS, SINCE THE GOVERNMENT IS ENTITLED TO BE PUT IN AS
GOOD POSITION PECUNIARILY AS IT WOULD HAVE BEEN BY PERFORMANCE OF THE
CONTRACT, IT APPEARS THAT THE EXCESS COSTS SHOULD BE COMPUTED BY THE
GOVERNMENT AS STATED IN THE COLLECTION VOUCHER DATED NOVEMBER 13, 1957,
ON THE BASIS OF THE DIFFERENCE BETWEEN THE PRICES STATED IN CONTRACT NO.
V1005 P-5435 AND THE PRICE PAID BY THE GOVERNMENT ON THE REPURCHASE
CONTRACT.
B-135452, APR. 2, 1958
TO MR. ALFREDO C. ROSAL:
YOUR LETTER OF FEBRUARY 14, 1958, REQUESTS RECONSIDERATION OF YOUR
CLAIM FOR COMPENSATION BELIEVED TO BE DUE YOU FOR OVERTIME SERVICES
RENDERED AS A CIVILIAN GUARD, CIVILIAN GUARD SECTION, OFFICE OF THE
PROVOST MARSHAL, MANILA AIR STATION, WHICH WAS DISALLOWED IN OUR OFFICE
SETTLEMENT OF OCTOBER 2, 1957.
ASIDE FROM THE GENERAL ALLEGATION THAT THERE WAS NO "GENTLEMEN'S
AGREEMENT" THAT THE GUARDS WOULD REPORT FOR WORK THIRTY MINUTES EARLY,
THAT THE PREVAILING PRACTICE REGARDING THE TYPE WORK YOU ARE DOING IS
CONTRARY TO THAT REPORTED, AND THAT FAILURE TO MAKE RECOMPENSE FOR THE
EXTRA THIRTY MINUTES IS IN VIOLATION OF EXISTING REGULATIONS, YOU
ENCLOSED WITH YOUR REQUEST FOR REVIEW PHOTOSTATIC COPIES OF
COMMUNICATIONS FROM OFFICIALS AT THE MANILA AIR STATION WHICH TEND TO
SUPPORT YOUR CONTENTION THAT IN FACT GUARDS WERE SUBJECT TO DISCIPLINARY
ACTION IF THEY FAILED TO REPORT THIRTY MINUTES EARLY.
IN YOUR REQUEST FOR A REPORT FROM THE DEPARTMENT OF THE AIR FORCE, WE
ENCLOSED COPIES OF THE AFOREMENTIONED COMMUNICATIONS THAT APPEARED TO BE
IN CONFLICT WITH THE AIR FORCE'S PREVIOUS REPORT AND REQUESTED THAT THE
SEEMING DISCREPANCIES BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND
THOSE WHICH APPEARED IN THE ENCLOSED COMMUNICATIONS BE EXPLAINED.
ON MARCH 10, 1958, THE CHIEF OF THE SETTLEMENTS DIVISION OF THE AIR
FORCE ACCOUNTING AND FINANCE CENTER FURNISHED THE REQUESTED REPORT.
THAT REPORT AFFIRMED THE PREVIOUS REPORT THAT LOCAL CUSTOM DOES NOT
RECOGNIZE THE "INCIDENTAL" WAITING PERIOD REQUIREMENT FOR SECURITY
GUARDS AS PART OF THE ESTABLISHED TOUR OF DUTY FOR PAY PURPOSES. ALSO,
THAT REPORT STATED THAT THE LETTER ADDRESSED TO MR. GREGONIO A. GOMEZ,
DATED JANUARY 25, 1957, WHICH WAS SUBMITTED WITH YOUR REQUEST FOR
REVIEW, DOES NOT INDICATE THAT DISCIPLINARY ACTION WAS BEING TAKEN FOR
HIS FAILURE TO REPORT EARLY BUT RATHER BECAUSE OF HIS REPORTING UNDER
THE INFLUENCE OF ALCOHOL. REGARDING THE COMMUNICATION ENCLOSED WITH
YOUR REQUEST FOR REVIEW FROM THE PROVOST MARSHAL, MANILA AIR STATION
DATED JUNE 7, 1957, THE ADMINISTRATIVE REPORT STATED THAT THAT
COMMUNICATION WAS WITHDRAWN AND SUPERSEDED BY SECOND ENDORSEMENT DATED
JULY 1, 1957, TO LETTER FROM THE AIR FORCE FINANCE CENTER, DENVER,
COLORADO, OF MAY 28, 1957. THAT WITHDRAWAL WAS BASED ON THE INABILITY
OF THE PROVOST MARSHAL TO PROVIDE ANY EVIDENCE THAT DISCIPLINARY ACTION
HAD EVER BEEN TAKEN AGAINST ANY GUARD WHO MAY HAVE FAILED TO REPORT
EARLY. IT WOULD SEEM THAT THE WITHDRAWAL WAS CORRECTLY PREDICATED ON
THE BASIS MENTIONED. MOREOVER, AN INTERVIEW WAS HELD WITH THE PROVOST
MARSHAL OF THE MANILA AIR STATION AND HIS SECURITY GUARD SUPERVISOR AND
BOTH REITERATED THAT DURING THEIR TOURS OF DUTY IN THE MANILA AIR
STATION THEY HAD NEVER TAKEN ANY DISCIPLINARY ACTION AGAINST ANY
SECURITY GUARD FOR FAILING TO REPORT PRIOR TO THE BEGINNING OF HIS
OFFICIAL SHIFT.
ADMITTEDLY, THE AIR FORCE REGULATIONS FOUND AT APM 40-1, AFH 2, SEC.
2, PAR. 7, PROVIDES THAT WHEN IT IS NECESSARY FOR CIVILIAN GUARDS TO
REPORT TO A CENTRAL LOCATION TO CHECK IN, RECEIVE INSTRUCTION, AND
UNDERGO INSPECTION PRIOR TO PROCEEDING TO THEIR RESPECTIVE POSTS, AND
SUCH INCIDENTAL DUTIES CANNOT BE MADE A PART OF THE EIGHT HOUR TOUR OF
DUTY, THEY WILL BE CONSIDERED IN A PAY STATUS UNTIL THEY CHECK OUT AT
THE EXPIRATION OF THE SHIFT. HOWEVER, THE SAME REGULATION PROVIDES AT
AFH 40-1, AFH 2.1, PAR. 1A, THAT:
"* * * EMPLOYEES AT AIR FORCE INSTALLATIONS OUTSIDE THE UNITED STATES
WHO ARE PAID AT NATIVE WAGE RATES AND WHOSE HOURS OF WORK CORRESPOND TO
LOCAL CUSTOM OR LOCAL LAW ARE EXCLUDED FROM THE PROVISIONS OF THIS
CHAPTER.'
CONSEQUENTLY, AS THE ADMINISTRATIVE REPORT STATES THAT YOUR TOUR OF
DUTY CORRESPONDS WITH LOCAL CUSTOM, AND THAT YOU ARE PAID AT NATIVE WAGE
RATES, THE CITED PROVISION PROVIDING FOR "PAY STATUS" DURING THE
INCIDENTAL PERIODS IS NOT APPLICABLE IN YOUR CASE.
THEREFORE, IN VIEW OF THE FACT THAT THE SEEMINGLY INCONSISTENT
EVIDENCE SUBMITTED BY YOU HAS BEEN SATISFACTORILY EXPLAINED AND THE
SUBSEQUENT REPORT AGAIN RECOMMENDS AGAINST PAYMENT OF YOUR CLAIM BECAUSE
OF THE RELEVANT PREVAILING PRACTICES IN THE PHILIPPINE ISLANDS, WE FIND
THAT OUR PREVIOUS DISALLOWANCE WAS CORRECT AND IS SUSTAINED.
WE RECOGNIZE THAT THERE IS A DIFFERENCE OF OPINION BETWEEN YOU AND
THE DEPARTMENT OF THE AIR FORCE CONCERNING MANY FACTUAL MATTERS RELEVANT
TO YOUR CLAIM. HOWEVER, ON DISPUTED QUESTIONS OF FACT BETWEEN THE
CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE
ESTABLISHED RULE OF THE GENERAL ACCOUNTING OFFICE IS TO ACCEPT
STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS OF THE FACTS AS ADMINISTRATIVELY REPORTED. 31 COMP. GEN.
288. AS THE EVIDENCE SUBMITTED BY YOU IN REBUTTAL TO THE ADMINISTRATIVE
REPORT HAS BEEN EXPLAINED, OUR OFFICE MUST ACCEPT THE FACTS REPORTED BY
THE AIR FORCE AS CONTROLLING.
B-119947, APR. 1, 1958
TO PAUL VARKELL COMPANY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 10, 1958, WITH
ENCLOSURE, FROM YOUR ATTORNEY, REQUESTING FURTHER CONSIDERATION OF OUR
DECISION DATED NOVEMBER 1, 1955, WHICH EXCEPT FOR THE ALLOWANCE OF
$305.34, SUSTAINED THE PREVIOUS ACTION DISALLOWING YOUR CLAIM FOR $7,640
UNDER SALES CONTRACT NO. N146S-2237, DATED OCTOBER 2, 1953.
IT IS CONTENDED THAT THE FACTS IN YOUR CASE "ARE APPLICABLE IN EVERY
DETAIL" TO THOSE CONSIDERED IN OUR DECISION OF FEBRUARY 4, 1957,
B-130448 TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS HELD THAT THE
CONTRACT THERE INVOLVED COULD BE CANCELED. THAT CONCLUSION WAS BASED
UPON THE FACT THAT, WHILE THE PROPERTY WAS OFFERED FOR SALE ON AN "AS
IS," "WHERE IS" BASIS, WITH AN EXPRESS DISCLAIMER OF WARRANTY AS TO THE
"DESCRIPTION" OF THE GOODS, THE LAW NEVERTHELESS RECOGNIZES THAT THE
SELLING OF A PARTICULAR QUANTITY OF ARTICLES TO BE TAKEN FROM A LARGER
MASS, SO THAT THE PARTICULAR PIECES TO BE DELIVERED CANNOT BE
SPECIFICALLY IDENTIFIED AT THE TIME THE SALE IS MADE, MAY IMPOSE UPON
THE SELLER AN OBLIGATION TO DELIVER ARTICLES WHICH CONFORM TO THE
PROVISIONS OF THE CONTRACT IDENTIFYING THE SUBJECT MATTER.
THE INVITATION HERE INVOLVED REQUESTED BIDS ON AVIATOR'S WINTER
FLYING BOOTS IN SMALL, MEDIUM, LARGE AND EXTRA LARGE SIZES. THE BOOTS
WERE OFFERED FOR INSPECTION AND WERE SPECIFIC ARTICLES IDENTIFIED
BEFORE-HAND BY THE SELLER TO THE PURCHASER. IT WAS NOT A TYPICAL SALE
BY DESCRIPTION OF UNASCERTAINED GOODS. THUS, THE FACTS IN YOUR CASE ARE
NOT SIMILAR TO THOSE UPON WHICH THE DECISION OF FEBRUARY 4, 1957, WERE
BASED. CF. UNITED STATES V. KOPLIN, 24 F.2D 840.
WHILE YOU REFER TO THE CASE OF AMERICAN ELASTICS, INC., V. UNITED
STATES, 187 F.2D 109, CITED IN OUR DECISION OF NOVEMBER 1, 1955, AND
INDICATE THAT YOU WERE ENTITLED TO RESCISSION BECAUSE OF MISDESCRIPTION,
THE FACTS IN THE INSTANT CASE SHOW THAT THERE WAS NO ENTIRELY FOREIGN
MATTER INCLUDED IN THE LOT OF BOOTS OFFERED FOR SALE, A FACT WHICH THE
COURT STRESSED WITH REGARD TO THE ,TROY CONTRACT" IN THE AMERICAN
ELASTICS CASE. HENCE, YOU WERE NOT ENTITLED TO RESCIND BECAUSE OF THE
FACT THAT THE BOOTS IN THE LOT OFFERED FOR SALE WERE MERELY IN A
DIFFERENT CONDITION THAN THAT STATED IN THE INVITATION. SEE IN THIS
REGARD TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, WHERE UNDER
SIMILAR CONDITIONS 1,582 UNUSED SADDLES WERE OFFERED FOR SALE AND 1,300
OF THE SADDLES DELIVERED TO THE PURCHASER WERE USED AND RECONDITIONED.
IT WAS HELD IN THAT CASE THAT THE PURCHASER WAS NOT ENTITLED TO RECOVER
THE DIFFERENCE IN THE VALUE OF THE SADDLES. LIKEWISE, IN THE CASE OF
SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412, 417, THE COURT HELD
THAT THE PURCHASER OF SURPLUS BLANKETS COULD NOT RECOVER BECAUSE OF BAD
CONDITION OF SUCH BLANKETS EVEN THOUGH IT HAD BEEN INDICATED THAT MANY
"WERE TORN, HAD HOLES IN THEM, OR WERE UNFIT FOR USE AS BLANKETS.'
FURTHERMORE, AS INDICATED IN OUR DECISION OF OCTOBER 18, 1954, THE
ACTION OF THE CONTRACTING OFFICER IN SCREENING THE BOOTS AND NOT
REQUIRING YOU TO ACCEPT 93 PAIRS OF BOOTS BECAUSE THEY WERE NOT IN "VERY
GOOD CONDITION" IS HIGHLY QUESTIONABLE.
B-129258, APR. 1, 1958
TO NORTH AMERICAN VAN LINES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1957, AND ENCLOSURE,
REQUESTING RECONSIDERATION OF CERTAIN OVERCHARGE CLAIMS STATED AGAINST
YOUR COMPANY ARISING OUT OF THE TRANSPORTATION OF HOUSEHOLD GOODS AND
OFFICE FURNITURE FROM CAMP COOKE, CALIFORNIA, TO FORT LEWIS, WASHINGTON,
DURING THE PERIOD NOVEMBER 24 TO DECEMBER 9, 1952. YOU SHOW IN YOUR
ENCLOSURE THAT WE HAVE DEDUCTED $1,786.25 FROM AMOUNTS OTHERWISE DUE
YOU, AND THAT GOVERNMENT CLAIMS FOR $3,922.11 STILL REMAIN OUTSTANDING
ON SIMILAR TRAFFIC.
OUR OVERCHARGE CLAIMS ARE BASED ON THE APPLICATION OF YOUR SECTION 22
TENDER NO. 1 WHICH WAS ISSUED TO COVER THE INVOLVED MOVEMENT AND
SPECIFIED A POINT-TO-POINT RATE OF $6.25 PER 100 POUNDS, WITH
ACCESSORIAL CHARGES TO BE COMPUTED ON THE BASIS OF RATES NAMED IN
WESTERN STATES MOVERS' CONFERENCE TARIFF NO. 1. YOU BILLED AND WERE
PAID ON THE BASIS OF A $7 POINT-TO-POINT RATE NAMED IN SUPPLEMENT 1 OF
YOUR SECTION 22 TENDER NO. 1, WHICH WAS ISSUED DECEMBER 10, 1952, AND
MADE RETROEFFECTIVE TO NOVEMBER 24, 1952. ALTHOUGH SUPPLEMENT 1 TO YOUR
TENDER NO. 1 PROVIDED FOR ACCESSORIAL CHARGES TO BE COMPUTED ON THE
BASIS OF RATES NAMED IN WESTERN STATES MOVERS' CONFERENCE TARIFF NO.
1--- AS DID YOUR ORIGINAL TENDER NO. 1--- YOU BILLED AND WERE PAID FOR
THE ACCESSORIAL CHARGES ON THE BASIS OF WESTERN STATES MOVERS'
CONFERENCE TARIFF NO. 1-A.
YOU CONTEND THAT YOUR COMPANY NEGOTIATED WITH THE DEPARTMENT OF THE
ARMY FOR A $7 RATE WHICH CONCLUDED IN A MEETING OF THE MINDS AS TO THE
APPLICABLE RATE, BUT BECAUSE OF A CLERICAL ERROR WHICH OCCURRED DURING
THE PROCESS OF REDUCING THE NEGOTIATED AGREEMENT TO WRITING, A $6.25
RATE WAS SPECIFIED IN THE WRITTEN TENDER. ACCORDINGLY, YOU ARGUE---
CITING IN SUPPORT OF YOUR CONTENTION CERTAIN DECISIONS OF THE
COMPTROLLER GENERAL--- THAT THE CONTRACTING OFFICER KNEW THE PRICE
AGREED UPON; THAT THIS KNOWLEDGE PLACED UPON HIM THE DUTY TO CALL TO
YOUR ATTENTION THE CLERICAL ERROR IN YOUR RATE TENDER; AND THAT YOU HAD
THE RIGHT TO CORRECT YOUR RATE TENDER UPON PRESENTATION OF CONCLUSIVE
PROOF AS TO THE AMOUNT OF THE INTENDED RATE TENDER.
THE GENERAL ACCOUNTING OFFICE, IN THE DISCHARGE OF THE DUTY IMPOSED
UPON IT BY THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, IS
REQUIRED TO QUESTION OR DISAPPROVE THAT PART OF A PAYMENT
TO A CARRIER WHICH IS FOUND TO BE IN EXCESS OF THAT PROPERLY DUE ON
THE BASIS OF THE APPLICABLE TARIFFS OR SPECIAL QUOTATIONS AND WHICH IS
NOT SUPPORTED BY ESSENTIAL DOCUMENTARY EVIDENCE ESTABLISHING A PROPER
OBLIGATION OF THE UNITED STATES. SEE LONGWILL AND JOHNSON'S CASES, 17
C.CLS. 288, 291; AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319.
YOUR TRANSPORTATION BILLS FOR THE SERVICES INVOLVED WERE PAID UPON
PRESENTATION, BUT THE RIGHT WAS RESERVED TO THE GOVERNMENT TO DEDUCT THE
AMOUNT OF ANY OVERPAYMENT FROM ANY AMOUNT SUBSEQUENTLY FOUND TO BE DUE
YOU, UNDER AUTHORITY OF SECTION 322 OF THE TRANSPORTATION ACT OF 1940,
49 U.S.C. 66. THE UNITED STATES SUPREME COURT HAS RECENTLY HELD THAT
THE BURDEN OF PROOF CONTINUES TO REMAIN WITH THE CARRIER TO ESTABLISH
THE LAWFULNESS OF ITS CHARGES AFTER DEDUCTION HAS BEEN MADE UNDER
SECTION 322. NEW YORK, N.H. AND H.R. CO. V. UNITED STATES, 355 U.S.
253. THEREFORE, IN THIS CASE, OUR DUTY IS TO DECIDE WHETHER
APPROPRIATED FUNDS ARE PROPERLY AVAILABLE FOR PAYMENT OF THE CLAIMED
CHARGES ON THE
BASIS OF THE EVIDENCE WHICH YOU HAVE PRESENTED.
WE HAVE RECEIVED FROM THE MILITARY TRAFFIC MANAGEMENT AGENCY,
WASHINGTON, D.C., A COPY OF AN OFFICE MEMORANDUM DATED DECEMBER 10,
1952, CONCERNING THE SUBJECT MOVEMENT, AND SIGNED BY R. C. HUMPHREYS,
CHIEF, WESTERN SECTION. IT READS AS FOLLOWS:
"1. UNDER DATE OF 24 NOVEMBER 1952 MR. J. W. REA, DISTRICT MANAGER,
NORTH AMERICAN VAN LINES INC., VISITED THE OFFICE AND TALKED WITH THE
UNDERSIGNED REGARDING MOVEMENT OF HOUSEHOLD GOODS AND OFFICE FURNITURE
FROM CAMP COOKE, CALIFORNIA TO FT. LEWIS, WASHINGTON.
"2. AT THAT TIME STUDY WAS IN PROCESS AND MR. REA WAS ADVISED THAT
HE WOULD BE INFORMED JUST AS SOON AS A REASONABLE RATE WAS DEVELOPED.
MR. REA STATED THAT HE WOULD LIKE TO PROVIDE A RATE OF 625 CENTS PER 100
POUNDS, VOLUME MINIMUM WEIGHT 8,000 POUNDS.
"3. UPON COMPLETION OF STUDY IT WAS FOUND THAT RATE OF 700 CENTS PER
100 POUNDS, VOLUME MINIMUM WEIGHT 8,000 POUNDS WOULD BE REASONABLE. MR.
REA WAS ADVISED THAT HIS OFFER WOULD BE ACCEPTED.
"4. TODAY, 10 DECEMBER 1952, MR. J. W. REA VISITED THE OFFICE AND
ADVISED THAT HE HAD MADE A VERY GRAVE ERROR IN ASCERTAINING THE
APPLICABLE RATE IN WESTERN STATES MOVERS CONFERENCE TARIFF MF ICC 18.
IT WAS HIS INTENTION TO PROVIDE THE SAME RATE AS NAMED IN THE ABOVE
TARIFF I.E., 750 CENTS PER 100 POUNDS. DUE TO THE FACT THAT THE
PROVIDED RATE AFFORDS REVENUE TO A CONSIDERABLE EXTENT BELOW OPERATING
EXPENSES MR. REA REQUESTED AN ADJUSTMENT IN THE RATE.
"5. INASMUCH AS THIS OFFICE CONSIDERED RATE OF 700 CENTS 100 POUNDS,
MINIMUM 8,000 POUNDS AS REASONABLE I RECOMMENDED TO LT. COL. VALIANTE
THAT CARRIER TO PERMITTED TO ADJUST PROVIDED RATE OF 625 CENTS PER 100
POUNDS TO 700 CENTS PER 100 POUNDS, VOLUME MINIMUM 8,000 POUNDS. LT.
COL. VALIANTE CONCURRED AND INSTRUCTED THAT I EFFECT PROPER SETTLEMENT.
"6. MR. REA WAS ADVISED THAT AN AMENDMENT TO QUOTATION WOULD BE
ACCEPTED PROVIDING RATE OF 700 CENTS PER 100 POUNDS, VOLUME MINIMUM
8,000 POUNDS. HE READILY AGREED TO PROVIDE THE NECESSARY AMENDMENT.'
THIS MEMORANDUM IS AT VARIANCE WITH YOUR CONTENTION THAT A $7 RATE
WAS ORIGINALLY NEGOTIATED WITH THE DEPARTMENT OF THE ARMY AND LATER
ERRONEOUSLY TRANSCRIBED AS $6.25 IN THE WRITTEN TENDER. WHERE THERE IS
A CONFLICT BETWEEN THE REPORT OF THE ADMINISTRATIVE OFFICE AND THE
CONTENTION OF THE CLAIMANT, AS THERE IS HERE, THE NECESSARY RULE OF THE
ACCOUNTING OFFICERS IS TO ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT IN
THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY.
UNDER THE CIRCUMSTANCES, WE DO NOT FEEL THAT YOU HAVE SUSTAINED YOUR
BURDEN OF PROVING THE LAWFULNESS OF THE CHARGES ORIGINALLY PAID ON THE
BASIS OF YOUR SUPPLEMENTAL TENDER. CONSEQUENTLY, YOUR CLAIM FOR REFUND
OF AMOUNTS ALREADY DEDUCTED MUST BE DISALLOWED. REFUND SHOULD BE MADE
PROMPTLY OF THE OTHER OVERPAYMENTS REPORTED TO YOU TO AVOID RECOVERY BY
OTHER MEANS.
B-132732, APR. 1, 1958
TO MR. WILLIAM B. KIMBALL, JR. :
WE REFER TO YOUR LETTERS OF JANUARY 31, 1958, AND FEBRUARY 24, 1958,
CONCERNING THE CLAIM OF THE UNITED STATES AGAINST YOU FOR THE EXCESS
COST OF TRANSPORTING YOUR HOUSEHOLD GOODS AND EFFECTS BETWEEN SEATTLE,
WASHINGTON, AND JUNEAU, ALASKA.
THE EXCESS TRANSPORTATION CHARGES WERE INCURRED INCIDENT TO YOUR
EMPLOYMENT FOR DUTY IN ALASKA, WITH THE DEPARTMENT OF THE INTERIOR,
ALASKA NATIVE SERVICE, AND YOUR RETURN TO THE UNITED STATES AT THE TIME
OF SEPARATION FROM THE SERVICE IN 1954. THE CASE WAS FORWARDED TO OUR
OFFICE FOR COLLECTION OF THE EXCESS COSTS BY LETTER OF FEBRUARY 8, 1957,
FROM THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS.
CONCERNING THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS AND EFFECTS IN
1951 FROM MERCER ISLAND, WASHINGTON, TO JUNEAU, ALASKA, THE RECORD SHOWS
THAT THE CITY TRANSFER AND STORAGE CO. OF SEATTLE WAS PAID $510.30,
COVERING PACKING, CRATING AND DRAYAGE OF 10,997 POUNDS OF YOUR GOODS AND
EFFECTS FROM MERCER ISLAND, WASHINGTON, TO THE ALASKA STEAMSHIP
COMPANY'S DOCKS IN SEATTLE. MARINE SHIPMENT OF THESE GOODS TO JUNEAU
WAS MADE IN TWO LOTS. ONE WAS SHIPPED IN JUNE 1951 ON GOVERNMENT BILL
OF LADING TPS-1398448, COVERING FIVE CRATES WEIGHING 702 POUNDS AND
MEASURING 43-4 CUBIC FEET. THE MARINE CARRIER'S CHARGE FOR THIS
TRANSPORTATION WAS $19.26. TO REFRESH YOUR RECOLLECTION, THE SHIPMENT
CONSISTED OF ONE CHEST OF HOUSEHOLD GOODS AND FOUR TRUNKS. THE WEIGHT
OF THIS LOT, 702 POUNDS, REPRESENTS THE DIFFERENCE BETWEEN THE TOTAL
WEIGHT OF 10,997 POUNDS HANDLED BY THE CITY TRANSFER AND STORAGE CO. AND
10,295 POUNDS, THE WEIGHT OF THE SECOND LOT.
THE SECOND LOT WAS TRANSPORTED UNDER GOVERNMENT BILL OF LADING
TPS-1398552, DATED JULY 13, 1951, AND COVERED 45 CRATES, WEIGHING 10,295
POUNDS AND MEASURING 988-2 CUBIC FEET. UPON ARRIVAL OF THE SECOND LOT
AT THE DOCK IN JUNEAU AND BEFORE THE GOODS WERE MOVED THE CUBIC FOOT
MEASUREMENT AS STATED ON THE BILL WAS QUESTIONED BY THE JUNEAU OFFICE OF
THE ALASKA STEAMSHIP COMPANY AND THE ALASKA TRANSFER, AND THE GOODS WERE
REMEASURED. AS A CONSEQUENCE THE ORIGINAL BILL FOR THIS LOT WAS
CORRECTED TO SHOW 1,250-1 CUBIC FEET INSTEAD OF 988-2 CUBIC FEET AND THE
GOVERNMENT WAS BILLED AND PAID FOR THE MARINE TRANSPORTATION OF 1,250-1
CUBIC FEET IN THE AMOUNT OF $568.79. THE WEIGHT OF THIS LOT REMAINED
10,295 POUNDS. THE AGGREGATE CHARGE TO THE GOVERNMENT FOR THE MARINE
TRANSPORTATION OF THE TWO LOTS BASED ON THE REVISED MEASUREMENT OF THE
SECOND LOT WAS $588.05.
SECTION 1, PUBLIC LAW 600, 60 STAT. 806, AND EXECUTIVE ORDER 9805, AS
AMENDED, PROMULGATED THEREUNDER, GOVERN THE ALLOWANCE AND PAYMENT FROM
GOVERNMENT FUNDS FOR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS AND
PERSONAL EFFECTS OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT
WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY
OR WHEN ASSIGNED TO POSTS OVERSEAS. BOTH THE STATUTE AND THE EXECUTIVE
ORDER (SECTION 6) LIMIT THE WEIGHT OF THE GOODS AND EFFECTS WHICH MAY BE
TRANSPORTED AT GOVERNMENT EXPENSE TO 7,000 POUNDS NET OR 8,750 POUNDS
GROSS. THE EQUIVALENT THEREOF IS ALLOWED WHEN THE TRANSPORTATION
CHARGES ARE BASED ON CUBIC MEASUREMENT. THE PERTINENT PORTIONS OF TITLE
III OF THE EXECUTIVE ORDER, AS AMENDED BY THE EXECUTIVE ORDER NO.
10196, GOVERNING THE TRANSPORTATION OF GOODS AND EFFECTS TO OR FROM
POINTS OUTSIDE THE CONTINENTAL UNITED STATES, ARE AS FOLLOWS:
"SEC. 17. MAXIMUM ALLOWANCE FOR TRANSPORTATION. (A) WEIGHT. THE
ACTUAL COSTS OF TRANSPORTATION OF THE HOUSEHOLD GOODS AND PERSONAL
EFFECTS OF THE EMPLOYEE, NOT IN EXCESS OF 7,000 POUNDS NET, AND OF THE
PACKING CRATES, BOXES, LIFT VANS, OR OTHER TEMPORARY CONTAINERS REQUIRED
FOR THE SHIPMENT, SHALL BE ALLOWED IN THE CASE OF TRANSFERS TO OR FROM
POINTS OUTSIDE THE CONTINENTAL UNITED STATES: * * * THUS,
TRANSPORTATION SHALL BE ALLOWED AT GOVERNMENT EXPENSE FOR PROPERTY WHEN
PACKED, CRATED, BOXED, OR PLACED IN LIFT VANS FOR SHIPMENT, WITHIN THE
FOLLOWING MAXIMUM WEIGHTS:
TABLE
POUNDS
"EMPLOYEES HAVING IMMEDIATE FAMILY:
SHIPMENT INVOLVING TRANSPORTATION BY
VESSEL OVER ALL OR PART OF ROUTE 8,750
* * * * * * *
"/B) VOLUME. WHERE CHARGES FOR TRANSPORTATION ARE COMPUTED ON A
BASIS OF MEASUREMENT RATHER THAN WEIGHT CHARGES WILL BE ALLOWED
REGARDLESS OF WEIGHT FOR NOT TO EXCEED 25 MEASUREMENT TONS OF FORTY
CUBIC FEET EACH INCLUSIVE OF PACKING, CRATING, AND LIFT VANS * * *.
"/C) WEIGHT AND VOLUME ON SAME SHIPMENT. WHEN SHIPMENT MUST BE MADE
OVER SUCH A ROUTE THAT THE TRANSPORTATION NECESSARILY INVOLVES CHARGES
BASED UPON WEIGHT OVER PART OF THE DISTANCE AND UPON MEASUREMENT OVER
ANOTHER PART OF THE DISTANCE, THE FOLLOWING CONDITIONS SHALL APPLY: (1)
IF THE WEIGHT DOES NOT EXCEED THE LIMITATIONS PRESCRIBED IN SUBSECTION
(A) PAYMENT SHALL BE ALLOWED FOR ACTUAL CHARGES OVER THE ENTIRE DISTANCE
REGARDLESS OF WHETHER THE MEASUREMENT IS IN EXCESS OF THE LIMITATIONS
IMPOSED BY SUBSECTION (B); (2) IF BOTH WEIGHT AND MEASUREMENT ARE IN
EXCESS OF THE PRESCRIBED LIMITATIONS PAYMENT SHALL NOT BE ALLOWED FOR
THE EXCESS BY WEIGHT OVER THAT PART OF THE DISTANCE WHERE CHARGES ARE
BASED ON WEIGHT, OR FOR THE EXCESS BY MEASUREMENT OVER THAT PART OF THE
DISTANCE WHERE CHARGES ARE BASED ON MEASUREMENT.'
IN THE SHIPMENT OF YOUR GOODS AND EFFECTS TO ALASKA PAYMENT FOR
MARINE TRANSPORTATION UNDER GOVERNMENT BILLS OF LADING TPS-1398448 AND
TPS-1398552 WAS ON A CUBIC FOOT BASIS WHILE CHARGES FOR THE PACKING,
CRATING, DRAYAGE, ETC., AT SEATTLE AND IN ALASKA WERE ON A TIME AND
MATERIAL BASIS. SINCE THE WEIGHT OF THE SHIPMENTS IS NOT IN DISPUTE, WE
SHALL, FOR THE PURPOSE OF DETERMINING EXCESS COSTS, CONSIDER THE
TRANSFER AND RELATED CHARGES TO BE ON A WEIGHT BASIS. IT IS APPARENT
FROM THE WORDING OF SECTION 17/C) OF THE EXECUTIVE ORDER, QUOTED ABOVE,
THAT WHERE BOTH WEIGHT AND MEASUREMENT ARE IN EXCESS OF THE PRESCRIBED
LIMITATION PAYMENT MAY NOT BE ALLOWED THE EMPLOYEE FOR THE EXCESS WEIGHT
OR EXCESS CUBIC FOOTAGE. SINCE THE WEIGHT OF THE SHIPMENT AT SEATTLE
HANDLED BY THE CITY TRANSFER AND STORAGE CO. WAS 10,997 POUNDS, WHICH
WAS 2,247 POUNDS IN EXCESS OF THE ALLOWABLE MAXIMUM OF 8,750 POUNDS, AND
THE CHARGE FOR PACKING, CRATING AND DRAYAGE WAS $510.30, THE EXCESS COST
ASSESSABLE AGAINST YOU FOR THAT PORTION OF THE CHARGE IS 2,247/10,997 OF
$510.30, OR $104.27. NO CHARGE APPEARS OF RECORD REGARDING THE DRAYAGE
IN ALASKA OF THE FIRST LOT OF 702 POUNDS AND ACCORDINGLY NO AMOUNT
THEREFOR IS TAKEN INTO CONSIDERATION IN COMPUTING EXCESS COSTS.
HOWEVER, THE ALASKA TRANSFER DID CHARGE $325 FOR DRAYAGE, UNCRATING,
UNPACKING AND PLACING
ITEMS OF GOODS INCLUDED IN THE SECOND LOT OF 10,295 POUNDS. SINCE
THE WEIGHT OF THE SHIPMENT WAS 10,295 POUNDS, WHICH WAS 1,545 POUNDS IN
EXCESS OF THE MAXIMUM OF 8,750 POUNDS, AND THE CHARGE WAS $325, THE
EXCESS COST ASSESSABLE AGAINST YOU FOR THAT PORTION OF THE TOTAL IS
1,545/10,295 OF $325, WHICH AMOUNTS TO $48.77. REGARDING THESE CHARGES
AND THOSE LATER INCURRED UPON YOUR RETURN TO THE UNITED STATES, YOU
PROTEST THE PRORATING OF ANY PART OF SUCH COSTS AS EXCESS CHARGES
AGAINST YOU. THE CONTROLLING EXECUTIVE ORDER PROVIDES IN SECTIONS 18
AND 19 THAT THE ACTUAL COSTS OF PACKING, CRATING, UNPACKING, UNCRATING
AND DRAYAGE TO AND FROM THE COMMON CARRIER NOT TO EXCEED THE AUTHORIZED
WEIGHT, WHICH IN YOUR CASE IS 8,750 POUNDS GROSS, SHALL BE ALLOWED. IT
IS CLEAR FROM THE PROVISIONS OF THE EXECUTIVE ORDER THAT WE MAY NOT
DISREGARD THE AMOUNT INCLUDED IN THE CHARGES BECAUSE OF THE EXCESS
WEIGHT OR VOLUME SHIPPED.
REGARDING THE MARINE TRANSPORTATION TO ALASKA THE MEASUREMENT OF THE
TWO LOTS CANNOT BE DETERMINED IN VIEW OF THE UNRESOLVED QUESTION
CONCERNING THE CORRECT MEASUREMENT OF THE SECOND LOT OF GOODS. WE
SHALL, THEREFORE, ASSUME, FOR PURPOSES OF MARINE TRANSPORTATION, THAT
THE SECOND LOT MEASURED 988-2 CUBIC FEET AS DETERMINED IN SEATTLE.
THIS, COMBINED WITH THE FIRST LOT MEASURING 43-4 CUBIC FEET, EQUALS
1,013-6 CUBIC FEET. THE COST OF TRANSPORTING 1,031-6 CUBIC FEET OF
GOODS ON AN ALASKA STEAMSHIP CO. VESSEL--- BASED ON RATES IN EFFECT AT
THE TIME--- WOULD BE $468.87. SINCE THE COMBINED SHIPMENTS EXCEEDED
YOUR ALLOWANCE OF 1,000 CUBIC FEET BY 31-6 CUBIC FEET, YOUR SHARE OF THE
COST WOULD BE 31-6/1,031-6 OF $468.87, OR $14.36. THE AGGREGATE EXCESS
COST FOR THE TRANSPORTATION OF YOUR GOODS TO YOUR RESIDENCE IN ALASKA IS
$167.40, FOR WHICH YOU MUST BE HELD LIABLE.
WE UNDERSTAND FROM YOUR LETTER OF JANUARY 31, 1958, THAT YOU BELIEVE
THE EXCESS WEIGHT OR VOLUME OF GOODS SHIPPED IN YOUR CASE RESULTED FROM
THE NEGLIGENCE OF GOVERNMENT REPRESENTATIVES AND THAT YOU DISCLAIM
LIABILITY FOR THE EXCESS COST FOR THAT REASON. AS A MATTER OF LAW THE
MOVEMENT OF AN EMPLOYEE'S HOUSEHOLD GOODS AND EFFECTS IS NOT A
GOVERNMENTAL FUNCTION AND WHEN THE GOVERNMENT THROUGH ITS
REPRESENTATIVES ENTERS INTO SUCH TRANSACTIONS ON BEHALF OF AN EMPLOYEE
IT DOES SO ONLY AS AN AGENT OF THE EMPLOYEE. WE BELIEVE YOU WILL AGREE
THAT ONLY THE EMPLOYEE CAN DETERMINE WHAT ARTICLES OF HOUSEHOLD GOODS
AND EFFECTS HE DESIRES TO BE TRANSPORTED. THIS RESPONSIBILITY CANNOT BE
PASSED ON TO THE CARRIER OR TO THE GOVERNMENT. GENERALLY, UNDER LAW
COMMON CARRIERS MUST ACCEPT AND DELIVER THE HOUSEHOLD GOODS AND EFFECTS
DESIGNATED BY THE EMPLOYEE WITHOUT REGARD TO THEIR WEIGHT OR VOLUME.
WHEN SUCH GOODS ARE SHIPPED ON A GOVERNMENT BILL OF LADING, THE CONTRACT
OF THE BILL REQUIRES THE GOVERNMENT TO PAY THE FULL AMOUNT OF THE LEGAL
CHARGES INCLUDING THE COSTS FOR EXCESS WEIGHT OR CUBIC MEASUREMENT. IF
THE USUAL TERMS OF A BILL ARE SOUGHT TO BE VARIED BY SUPPLEMENTAL
NOTATIONS, SUCH NOTATIONS MUST BE SO CLEAR AND UNEQUIVOCAL
AS TO ADMIT OF ONLY ONE MEANING. WE DO NOT BELIEVE THAT THE NOTATIO
"NOT TO EXCEED 8,750 LBS" IS SO CLEAR AS TO PUT A CARRIER ON NOTICE OF A
LIMITATION OF THE GOVERNMENT'S LIABILITY TO IT, WHEN A GREATER WEIGHT OR
ITS EQUIVALENT IN VOLUME IS DELIVERED TO THE CARRIER BY THE EMPLOYEE FOR
SHIPMENT ON THE BILL. IN ANY EVENT THE LIABILITY OF AN EMPLOYEE TO THE
GOVERNMENT FOR EXCESS COSTS OF TRANSPORTATION RESTS UPON PUBLIC LAW 600
AND SECTION 22 OF EXECUTIVE ORDER NO. 9805 WHICH PROVIDES IN PART AS
FOLLOWS:
"* * * IF PROPERTY IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THESE
REGULATIONS IS SHIPPED ON A GOVERNMENT BILL OF LADING OR PURCHASE ORDER,
THE EMPLOYEE SHALL IMMEDIATELY UPON COMPLETION OF THE SHIPMENT PAY TO
THE PROPER OFFICER OF THE DEPARTMENT OR ESTABLISHMENT AN AMOUNT EQUAL TO
THE CHARGE FOR THE TRANSPORTATION OF SUCH EXCESS COMPUTED FROM THE TOTAL
CHARGES ACCORDING TO THE RATIO OF EXCESS WEIGHT TO THE TOTAL WEIGHT OF
THE SHIPMENT.'
IN REGARD TO THE RETURN OF YOUR GOODS AND EFFECTS TO THE UNITED
STATES, THREE ITEMS OF COST WERE INCURRED, ALL OF WHICH WERE BASED UPON
A MOVEMENT OF 1,244-11 CUBIC FEET OF GOODS. THERE IS NO EVIDENCE THAT
THE WEIGHT OF THIS SHIPMENT EVER WAS DETERMINED. THE MEASUREMENT
APPARENTLY WAS MADE BY THE ALASKA TRANSFER. ITS CHARGE FOR PACKING,
CRATING AND DRAYAGE OF 1,244-11 CUBIC FEET OF GOODS AT $0.70 PER CUBIC
FOOT WAS $871.44. THE ALASKA STEAMSHIP COMPANY'S CHARGE ON THE SAME
CUBIC MEASUREMENT WAS $715.36, AND THE CITY TRANSFER AND STORAGE CO. IN
SEATTLE CHARGED $90. THE TOTAL COST OF MOVING THE 1,244-11 CUBIC FEET
OF GOODS WAS $1,676.80. SINCE THE VOLUME OF THE SHIPMENT EXCEEDED THE
MAXIMUM ALLOWABLE OF 1,000 CUBIC FEET BY 244-11 CUBIC FEET, THE EXCESS
COST CHARGEABLE TO YOU IS 244-11/1,244-11 OF $1,676.80 OR $329.
UPON REVIEW OF THE RECORD THE TOTAL EXCESS COST FOR ROUND-TRIP
TRANSPORTATION OF YOUR GOODS IS FOUND TO BE $496.40, OR $114.32 LESS
THAN THE AMOUNT YOU WERE ORIGINALLY BILLED. WHILE WE REGRET THE
APPARENTLY UNANTICIPATED BURDEN PLACED UPON YOU, WE BELIEVE, IN VIEW OF
THE FOREGOING EXPLANATION, THAT YOU WILL UNDERSTAND WHY WE ARE WITHOUT
AUTHORITY TO RELIEVE YOU OF ALL CHARGES FOR EXCESS COSTS.
PAYMENT OF $496.40 SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO
THE "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THAT OFFICE AT BOX
2610, WASHINGTON 13, D.C.
B-135022, APR. 1, 1958
TO THE SECRETARY OF COMMERCE:
REFERENCE IS MADE TO LETTER OF JANUARY 21, 1958, FROM THE ASSISTANT
SECRETARY OF COMMERCE FOR ADMINISTRATION, REQUESTING OUR OPINION
WHETHER, UNDER THE CIRCUMSTANCES DESCRIBED HEREINAFTER, FUNDS
APPROPRIATED FOR THE MARITIME ADMINISTRATION MAY BE USED TO PAY THE
EXPENSES OF SELECTED EMPLOYEES IN ATTENDING ADVANCED COURSES OF TRAINING
AT LOCAL UNIVERSITIES UNDER THE MARINE ENGINEER AND NAVAL ARCHITECT
TRAINEE PROGRAM.
IT IS STATED THAT THE MARITIME ADMINISTRATION HAS A 30 MONTHS'
TRAINING PROGRAM FOR SELECTED MARINE ENGINEERS AND NAVAL ARCHITECTS
IMMEDIATELY FOLLOWING THEIR EMPLOYMENT FOR THE PURPOSE OF TRAINING AND
DEVELOPING SUCH PERSONNEL FOR MORE RESPONSIBLE WORK WITH THE AGENCY.
THE TRAINING PROGRAM INCLUDES PROVISION FOR SELECTED TRAINEES TO ENROLL
FOR 1 SCHOOL YEAR (9 MONTHS) AT AN APPROVED UNIVERSITY FOR ADVANCED
STUDY OF HIGHLY TECHNICAL AND SCIENTIFIC SUBJECTS AND SUCH TRAINEES ARE
EXPECTED TO OBTAIN A MASTER'S DEGREE IN THE APPROPRIATE ENGINEERING
FIELD AT THE END OF THIS PERIOD. AUTHORITY FOR THIS PHASE OF THE
TRAINING PROGRAM IS CONTAINED IN SECTION 201 (E) OF THE MERCHANT MARINE
ACT, 1936, 49 STAT. 1936, 46 U.S.C. 1111 (1), IN PERTINENT PART, AS
OLLOWS:
"THE BOARD AND SECRETARY, UNDER SUCH RULES AND REGULATIONS AS THEY
MAY PRESCRIBE, MAY DETAIL ANNUALLY NOT TO EXCEED FIVE MEMBERS OF THE
PERSONNEL OF THE BOARD AND SECRETARY FOR ENGINEERING, TECHNICAL, OR
OTHER SCIENTIFIC EDUCATION AND TRAINING AT GOVERNMENT EXPENSE AT
INSTITUTIONS FOR SCIENTIFIC EDUCATION AND RESEARCH, TO ENABLE SUCH
PERSONS TO ACQUIRE ADVANCES AND SPECIALIZED KNOWLEDGE OR TRAINING OF
PARTICULAR ADVANTAGE TO THE BOARD AND SECRETARY IN CARRYING OUT ITS
FUNCTIONS UNDER THIS CHAPTER.'
THE PROPOSED TRAINING COVERS ADVANCED COURSES OF STUDY IN THE FIELD
OF ENGINEERING THAT ARE TO BE TAKEN AFTER OFFICE HOURS EITHER AT GEORGE
WASHINGTON UNIVERSITY OR MARYLAND UNIVERSITY. THE COURSES EXTEND OVER A
PERIOD OF TWO SEMESTERS OR 9 MONTHS; AND THE EXPENSE TO THE GOVERNMENT
ENTAILS THE PAYMENT OF TUITION, FEES, AND BOOKS, ESTIMATED ON THE BASIS
OF 3 SEMESTER HOURS' CREDIT, TO COST APPROXIMATELY $100 FOR EACH TRAINEE
PER SEMESTER. THE PURPOSE AND NEED FOR THIS TRAINING, THE COST OF WHICH
IT IS SUGGESTED IS PROPERLY CHARGEABLE TO MARITIME ADMINISTRATION
APPROPRIATIONS UNDER OUR DECISIONS RELATIVE TO TRAINING WITHOUT REGARD
TO THE SPECIFIC STATUTORY EDUCATION AND TRAINING AUTHORITY QUOTED ABOVE,
ARE EXPLAINED AS FOLLOWS:
"THE REQUIREMENT OF OUR TRAINING PROGRAM THAT THE TRAINEE COMPLETE
THE NECESSARY ADVANCED AND SPECIALIZED SUBJECTS FOR A MASTER'S DEGREE
AFTER TWO SEMESTERS OF ADVANCED WORK HAS BEEN VERY DIFFICULT FOR THE
TRAINEES, AS THE TIME ALLOWED IS AT LEAST ONE SEMESTER SHORTER THAN
ORDINARILY REQUIRED BY THE SELECTED SCHOOLS FOR CANDIDATES ENTERING WITH
A BACHELOR'S DEGREE IN ENGINEERING. IT IS OUR UNDERSTANDING THAT
REQUIREMENTS FOR UNDERGRADUATE WORK LEADING TO A BACHELOR'S DEGREE IN
THE MAJORITY OF OUR SCHOOLS OF ENGINEERING ARE NOT EXTENSIVE ENOUGH TO
GIVE THE UNDERGRADUATES SUFFICIENT TRAINING IN MATHEMATICS AND/OR SOME
BASIC SCIENCES, WHICH IS INDISPENSABLE FOR THE SUCCESSFUL COMPLETION OF
THE POST-GRADUATE WORK. AS A RESULT OF THIS, STUDENTS ENROLLING IN
POST-GRADUATE WORK SCHOOLS FOR ADVANCED DEGREES IN ENGINEERING ARE
REQUIRED TO TAKE COURSES IN ADVANCED MATHEMATICS AND/OR BASIC SCIENCES
IN ADDITION TO THE SPECIALIZED COURSES NECESSARY FOR THE PARTICULAR
DEGREE FOR WHICH THEY ARE WORKING. SUCH COURSES ARE NECESSARY TO OBTAIN
THE BACKGROUND FOR STUDYING SUCH OTHER COURSES AS ADVANCED THEORY OF
SHIPS' STRUCTURES, HYDRODYNAMICS, SHIP MOTION, ETC. IT HAS BEEN
DETERMINED THAT THIS SITUATION IN GENERAL CAN BE EXPECTED TO APPLY TO
ALL OF OUR TRAINEES WHO ENROLL FOR POST-GRADUATE WORK. IT IS THE
FEELING OF FACULTY MEMBERS WITH WHOM THIS PROBLEM HAS BEEN DISCUSSED
THAT IT WOULD BE HIGHLY ADVANTAGEOUS IF OUR TRAINEES COULD ACQUIRE
CREDITS FOR ADVANCED MATHEMATICS AND/OR BASIC SCIENCES PRIOR TO
ENROLLING IN THE POST-GRADUATE SCHOOL FOR SUCH ADVANCED TRAINING AND
DEGREE. * * *"
AS INDICATED BY THE ASSISTANT SECRETARY, WE HAVE HELD IN A NUMBER OF
DECISIONS THAT WITHOUT EXPRESS STATUTORY AUTHORITY DEPARTMENTS AND
AGENCIES MAY AUTHORIZE OR ASSIGN EMPLOYEES TO ATTEND COURSES OF
INSTRUCTION OR TRAINING IN NONFEDERAL FACILITIES AND PAY THEIR SALARIES
AND EXPENSES INCIDENT TO SUCH ATTENDANCE ONLY WHEN IT CAN BE SHOWN THAT
THE PARTICULAR TRAINING INVOLVED (1) IS SPECIAL IN NATURE AND IS FOR A
PERIOD OF LIMITED DURATION, (2) IS ESSENTIAL TO CARRY OUT THE PURPOSES
FOR WHICH THE APPROPRIATION WAS MADE, AND (3) IS NOT OF A TYPE WHICH THE
EMPLOYEE NORMALLY WOULD BE EXPECTED TO FURNISH AT HIS OWN EXPENSE.
THE CONGRESS HAVING SPECIFICALLY LEGISLATED WITH REFERENCE TO
TRAINING EMPLOYEES OF THE MARITIME ADMINISTRATION AT GOVERNMENT EXPENSE
IN PRIVATE INSTITUTIONS, ANSWER TO YOUR QUESTION NECESSARILY INVOLVES
CONSIDERATION AS TO WHETHER THE PROPOSED TRAINING IS OF THE CLASS OF
TRAINING
AUTHORIZED AND COMTEMPLATED BY THE LEGISLATION. FOR, IF IT BE
CONCLUDED THAT THE PROPOSED TRAINING COMES WITHIN THE SCOPE OF TRAINING
PROVIDED FOR BY THE STATUTE, THERE WOULD BE NO SOUND BASIS FOR
CONSIDERING OR APPLYING THE CRITERIA ESTABLISHED BY OUR DECISIONS AS
AUTHORITY THEREFOR.
THE PROVISIONS OF SECTION 201/E) OF THE MERCHANT MARINE ACT, 1936,
QUOTED ABOVE, PLAINLY INDICATE THAT THE CONGRESS RECOGNIZED THE
ADVANTAGE AND NEED IN THE MARITIME ADMINISTRATION FOR ADVANCED AND
SPECIALIZED TECHNICAL KNOWLEDGE OR TRAINING OF ITS PERSONNEL. AUTHORITY
WAS THEREIN PROVIDED TO DETAIL ANNUALLY AT GOVERNMENT EXPENSE NOT TO
EXCEED FIVE PERSONS FOR ADVANCED TECHNICAL TRAINING AT INSTITUTIONS FOR
SCIENTIFIC EDUCATION AND RESEARCH. IN AMENDING THE PROVISIONS OF SAID
SECTION 201/E) TO AUTHORIZE SUCH TRAINING IT WAS STATED AT PAGE 4 OF
SENATE REPORT NO. 724, 76TH CONGRESS, 1ST SESSION, ON S. 1960, WHICH WAS
REPLACED BY H.R. 6746 AND ENACTED AS THE ACT OF AUGUST 4, 1939, 53 STAT.
1182, IN PERTINENT PART, AS FOLLOWS:
"THE PROPOSED AUTHORITY WOULD BE OF DEFINITE ASSISTANCE IN MEETING
ONE OF THE COMMISSION'S PRESSING NEEDS, THAT IS, TRAINED AND SKILLED
MARINE ARCHITECTS AND MARINE ENGINEERS. BECAUSE OF THE PRESENT DEMAND
IN PRIVATE INDUSTRY, AND THE DEARTH OF MEN SO QUALIFIED, IT IS VERY
DIFFICULT TO INDUCE ENOUGH EXPERIENCED MEN TO ACCEPT EMPLOYMENT WITH THE
GOVERNMENT. UNDER THIS SECTION, IF ENACTED, THE COMMISSION COULD SELECT
PROMISING YOUNG MEN ON ITS STAFF AND ARRANGE FOR THEM TO OBTAIN SUCH
ADVANCED TECHNICAL TRAINING AS THE COMMISSION NEEDS IN CARRYING OUT ITS
DUTIES. * * "
THE PROPOSED COURSES OF STUDY ARE IN THE FIELD OF ADVANCED
MATHEMATICS AND THE BASIC SCIENCES AND ARE TO BE UNDERTAKEN BY EMPLOYEES
WITH A BACHELOR'S DEGREE IN ENGINEERING AS A PART OF A PROGRAM DESIGNED
TO TRAIN AND DEVELOP SUCH PERSONNEL FOR MORE RESPONSIBLE WORK WITH THE
ADMINISTRATION. WE HAVE SERIOUS DOUBT THAT THESE COURSES OF
INSTRUCTIONS ARE NOT WITHIN THE CLASS OF "ENGINEERING, TECHNICAL, OR
OTHER SCIENTIFIC EDUCATION AND TRAINING" PROVIDED FOR IN THE LAW; AND
IT IS IMMATERIAL THAT ATTENDANCE THEREAT IS TO BE AFTER OFFICE HOURS OR
THAT THE PERSONNEL CONCERNED WILL THEREBY BE ENABLED TO OBTAIN A
MASTER'S DEGREE IN ENGINEERING IN LESS THAN THE PERIOD OF TIME NORMALLY
REQUIRED THEREFOR. CONSEQUENTLY, AND HAVING REGARD FOR THE FACT THAT
THE CONGRESS LIMITED THE NUMBER OF PERSONNEL AUTHORIZED TO UNDERTAKE
ADVANCED TECHNICAL TRAINING WITH THE APPARENT VIEW OF CONTROLLING THE
COST THEREOF TO THE GOVERNMENT, WE CONCLUDE THAT THE PROPOSED TRAINING
COMES WITHIN THE CLASS OF TRAINING AUTHORIZED BY THE STATUTE AND,
THEREFORE, IT IS UNNECESSARY FOR US TO COMMENT UPON THE VIEWS ADVANCED
BY THE ASSISTANT SECRETARY TO BRING THE PROPOSED TRAINING UNDER THE
CRITERIA ESTABLISHED BY OUR DECISIONS ON TRAINING, WHICH VIEWS, IT MAY
BE STATED, ARE NOT ENTIRELY FREE FROM DOUBT. SEE 36 COMP. GEN. 621
AND THE DECISIONS CITED THEREIN, PARTICULARLY, 35 ID. 375, TO YOU.
IN THIS CONNECTION, IT APPEARS THAT THE DIFFICULTY ENCOUNTERED UNDER
THAT PART OF THE TRAINING PROGRAM INVOLVING COURSES OF STUDY AT
GOVERNMENT EXPENSE IN PRIVATE INSTITUTIONS STEMS NOT FROM THE LACK OF
STATUTORY AUTHORITY FOR SUCH TRAINING, BUT FROM THE FACT THAT THE
CONGRESS RESTRICTED THE NUMBER OF PERSONS AUTHORIZED TO SO PARTICIPATE
THEREIN. AT THE TIME THE SENATE SOUGHT TO AMEND THE CITED SECTION 201
(E) TO PROVIDE FOR ADVANCED TECHNICAL TRAINING AT PRIVATE INSTITUTIONS,
IT WAS PROPOSED TO LIMIT SUCH TRAINING TO TEN PERSONS. WHILE THE
AMENDMENT AS PASSED REDUCED THE NUMBER TO FIVE, IT IS CLEAR THAT IF NO
LIMITATION HAS BEEN IMPOSED, OR IF THE LIMITATION WERE SUFFICIENTLY
HIGH, THE QUESTION PRESENTED WOULD NEVER HAVE BEEN RAISED. THUS, THE
REFERRED-TO DIFFICULTY PROPERLY SHOULD BE RESOLVED BY OBTAINING
LEGISLATIVE AUTHORITY TO INCREASE THE LIMITATION ON THE NUMBER OF
PERSONS AUTHORIZED TO UNDERTAKE TRAINING IN PRIVATE INSTITUTIONS.
ACCORDINGLY, IN ANSWER TO THE QUESTION PRESENTED, YOU ARE ADVISED
THAT THE PROPOSED TRAINING MAY NOT BE UNDERTAKEN AT GOVERNMENT EXPENSE
WITHOUT REGARD TO THE AUTHORITY CONTAINED IN SECTION 201/E) OF THE
MERCHANT MARINE ACT, 1936, AS AMENDED.
B-135161, APR. 1, 1958
TO MR. W. WILSON MOUL:
YOUR LETTER OF DECEMBER 18, 1957, REQUESTS RECONSIDERATION OF OUR
LETTER OF NOVEMBER 22, 1957, REFERENCE DW-Z-1554532-ECF-14, AND PRIOR
CORRESPONDENCE IN WHICH YOU WERE HELD TO BE INDEBTED TO THE UNITED
STATES AS SOLE DISTRIBUTEE OF THE ESTATE OF YOUR DECEASED FATHER, ERNEST
E. MOUL, IN THE SUM OF $6,580.81, REPRESENTING AN ERRONEOUS PAYMENT OF
RAILROAD RETIRMENT ANNUITY TO YOUR FATHER.
YOU REITERATE YOUR PRIOR ALLEGATION THAT YOUR FATHER HAD RESIGNED HIS
EMPLOYMENT WITH THE GOODWILL BENEFICIAL ASSOCIATION SHORTLY PRIOR TO THE
DATE HIS ANNUITY BEGAN TO ACCRUE AND RESUMED SUCH EMPLOYMENT SHORTLY
THEREAFTER. THIS BRIEF BREAK IN SERVICE YOU CONTEND RENDERS SECTION
2/D) OF THE RAILROAD RETIREMENT ACT INAPPLICABLE IN YOUR FATHER'S CASE
AND HENCE THERE WAS NO OVERPAYMENT OF ANNUITY TO HIM.
AS YOU WERE ADVISED BY OUR LETTER OF NOVEMBER 22, YOUR CONTENTION HAS
PREVIOUSLY BEEN CONSIDERED BY THE RAILROAD RETIREMENT BOARD AND REJECTED
AS HAVING NO BEARING IN THIS TYPE OF CASE. IN THIS CONNECTION,
ATTENTION IS INVITED TO 45 U.S.C. 288J (B) 1, WHICH PROVIDES IN
PERTINENT PART, AS FOLLOWS:
"* * * DECISIONS BY THE BOARD UPON ISSUES OF LAW AND FACT RELATING TO
PENSIONS, ANNUITIES OR DEATH BENEFITS SHALL NOT BE SUBJECT TO REVIEW BY
ANY OTHER ADMINISTRATIVE OR ACCOUNTING OFFICER, AGENT, OR EMPLOYEE OF
THE UNITED STATES.'
WE ARE CLEARLY PRECLUDED BY THIS SECTION FROM QUESTIONING THE BOARD'S
DETERMINATION IN THIS CASE. HENCE, HE HAVE NO ALTERNATIVE BUT TO
PROCEED WITH THE COLLECTION ACTION.
ACCORDINGLY, YOU SHOULD IMMEDIATELY MAKE FULL PAYMENT OF THE BALANCE
DUE ON THE OVERPAYMENT OR SUBMIT A DEFINITE PLAN FOR SETTLEMENT THEREOF
IN INSTALLMENTS ACCOMPANIED BY AN INITIAL PAYMENT. OTHERWISE, WE HAVE
NO ALTERNATIVE BUT TO REFER THE CASE TO THE DEPARTMENT OF JUSTICE FOR
INSTITUTION OF LEGAL PROCEEDINGS.
B-135263, APR. 1, 1958
TO THE HONORABLE FRANKLIN FLOETE, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION:
YOUR LETTER OF FEBRUARY 7, 1958, REQUESTS OUR VIEWS ON A PROPOSED
REGULATION FOR A UNIFORM ITEM IDENTIFICATION AND STOCK NUMBERING SYSTEM,
KNOWN AS THE FEDERAL CATALOG SYSTEM, FOR USE IN THE SUPPLY OPERATIONS OF
ALL FEDERAL AGENCIES.
PUBLIC LAW 436, APPROVED JULY 1, 1952, 66 STAT. 318, ESTABLISHED
WITHIN THE DEPARTMENT OF DEFENSE THE DEFENSE SUPPLY MANAGEMENT AGENCY,
AND GAVE IT SPECIFIC DUTIES AND AUTHORITY IN THE SUPPLY CATALOGING AREA.
SEE SECTIONS 4 AND 5. SECTION 11 ALSO DIRECTS THE ADMINISTRATOR OF
GENERAL SERVICES AND THE SECRETARY OF DEFENSE TO COORDINATE THE
CATALOGING AND STANDARDIZATION ACTIVITIES OF THE GENERAL SERVICES
ADMINISTRATION AND THE DEPARTMENT OF DEFENSE SO AS TO AVOID UNNECESSARY
DUPLICATION.
THE PROPOSED GENERAL SERVICES ADMINISTRATION REGULATION 1-V1-303-04,
SUBMISSION OF AGENCY LISTINGS, REQUIRES IN PART THAT EACH CIVIL AGENCY
SHALL SUBMIT FOR CATALOGING LISTINGS OF ITS ITEMS OF SUPPLY, TOGETHER
WITH THE TECHNICAL INFORMATION NECESSARY TO IDENTIFY THE ITEM UNDER THE
FEDERAL SUPPLY CATALOG SYSTEM, TO GENERAL SERVICES ADMINISTRATION,
FEDERAL SUPPLY SERVICE. IT IS OUR UNDERSTANDING THAT THE GENERAL
SERVICES ADMINISTRATION WOULD SCREEN THE ITEMS LISTED AND FORWARD THE
LISTS TO THE DEPARTMENT OF DEFENSE, WHERE THE ACTUAL ITEM IDENTIFICATION
AND ASSIGNMENT OF IDENTIFICATION NUMBERS WILL BE DONE. THE LISTS WOULD
THEN BE RETURNED TO THE GENERAL SERVICES ADMINISTRATION FOR DISTRIBUTION
BACK TO THE SUBMITTING AGENCY.
FOR THIS "SCREENING OPERATION" WE UNDERSTAND THAT THE GENERAL
SERVICES ADMINISTRATION HAS ESTIMATED ITS COST WILL BE $8.28 PER ITEM
EXCLUSIVE OF THE SUBMITTING AGENCY'S COST. IN THE DEPARTMENT OF DEFENSE
THE COST OF DOING THE ENTIRE JOB FROM ORIGINAL LISTING TO FINAL
IDENTIFICATION NUMBER IS $8.32 PER ITEM, BASED ON ACTUAL FIGURES FOR
FISCAL YEAR 1957. THE SUBMITTING MILITARY AGENCY'S COST INCLUDED IN
THIS TOTAL COST FIGURE IS $7.12. IF THIS IS AN INDICATION OF WHAT CIVIL
AGENCY COSTS WILL BE, THIS MEANS THAT TOTAL PROCESSING COSTS FOR EACH
ITEM UNDER THE GENERAL SERVICES ADMINISTRATION WILL APPROXIMATE $15, AS
COMPARED TO PRESENT DEPARTMENT OF DEFENSE COSTS OF APPROXIMATELY $8 PER
ITEM.
WE BELIEVE THAT THE REQUIRED SUBMISSION OF AGENCY LISTINGS TO THE
GENERAL SERVICES ADMINISTRATION AND SCREENING BY THAT AGENCY, WITH
FURTHER SCREENING BY THE DEPARTMENT OF DEFENSE, MAY RESULT IN A
DUPLICATION OF EFFORT WHICH COULD BE ELIMINATED WITH RESULTING SAVINGS
OF COST IN THE OVERALL FEDERAL SUPPLY CATALOG PROGRAM. IN ADDITION TO A
LOWER PROCESSING COST, WE UNDERSTAND THAT THE DEPARTMENT OF DEFENSE IS
WELL EQUIPPED TO PROCESS EXPEDITIOUSLY LISTS OF ITEMS FOR CATALOGING
COMING FROM DIFFERENT SOURCES, WHETHER MILITARY OR CIVIL.
IN VIEW OF THE ALREADY WELL ESTABLISHED AND LOWER COST CATALOGING
SYSTEM AVAILABLE IN THE DEPARTMENT OF DEFENSE, WE RECOMMEND THE USE OF
THE DEPARTMENT OF DEFENSE FACILITIES IN ESTABLISHING THE FEDERAL SUPPLY
CATALOG SYSTEM TO THE FULLEST EXTENT PRACTICABLE.
B-135296, APR. 1, 1958
TO THE WOODHOUSE STATIONERY COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1958,
PROTESTING THE ACTION OF THE POST OFFICE DEPARTMENT IN REJECTING YOUR
BID WHICH WAS SUBMITTED PURSUANT TO INVITATION NO. 441, ISSUED JANUARY
22, 1958.
BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED--- TO BE OPENED AT
2 P.M., FEBRUARY 11, 1958--- FOR FURNISHING 3,700 LOOSE LEAF BINDERS.
THE INVITATION PROVIDED THAT BIDDERS WOULD BE REQUIRED TO SUBMIT A
SAMPLE OF THE BINDER PROPOSED TO BE FURNISHED AND THAT "SUFFICIENT TIME
IS BEING ALLOWED FOR THE SUBMISSION OF THE REQUIRED SAMPLE, AND NO BID
WILL BE CONSIDERED UNLESS THE SAMPLE IS RECEIVED NOT LATER THAN THE
SCHEDULED TIME OF OPENING OF BIDS. * * *"
IN REGISTERING YOUR PROTEST YOU STATE THAT, FOLLOWING THE OPENING OF
BIDS, YOU WERE REQUESTED TO FURNISH A SAMPLE OF THE BINDER YOU PROPOSED
TO FURNISH BUT WERE NOT AFFORDED A REASONABLE TIME TO PRODUCE THE
SAMPLE, AS A RESULT OF WHICH YOUR BID WAS DISQUALIFIED. YOU CONTEND
THAT A BIDDER MAY NOT BE DISQUALIFIED FOR NOT SUBMITTING A SAMPLE AND
THAT BIDDERS MUST BE GIVEN A REASONABLE TIME TO SUBMIT SUCH SAMPLES
AFTER THE OPENING DATE.
IN A REPORT FURNISHED US BY THE POSTMASTER GENERAL IT IS STATED THAT
YOU WERE REQUESTED TO FURNISH A SAMPLE UNDER THE INITIAL BELIEF THAT
NONE OF THE SAMPLES FURNISHED BY THE THREE LOWER BIDDERS MET THE
SPECIFICATIONS. IT WAS DETERMINED SUBSEQUENTLY, HOWEVER, THAT THE
SAMPLES SUBMITTED BY STAR LOOSE LEAF COMPANY, INC., AND THE ELBE FILE
AND BINDER COMPANY DID MEET THE SPECIFICATIONS, IN VIEW OF WHICH THE
CHIEF OF PROCUREMENT PROPOSES TO AWARD THE CONTRACT TO STAR LOOSE LEAF
COMPANY, THE LOWEST RESPONSIBLE BIDDER. IN THE CIRCUMSTANCES,
THEREFORE, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER
BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE
ACTION PROPOSED TO BE TAKEN IN THIS CASE.
B-135571, APR. 1, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 19, 1958, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR FREDERICK P.
WEINER ALLEGES HE MADE ON ITEMS 3 OF HIS BID ON WHICH CONTRACT NO. O.I.
2491-58Q, DATED NOVEMBER 8, 1957, IS BASED.
BY INVITATION NO. QM 33-031-58-206, DATED SEPTEMBER 23, 1957, THE
QUARTERMASTER PURCHASING AGENCY, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO,
REQUESTED BIDS--- TO BE OPENED OCTOBER 14, 1957--- FOR THE FURNISHING OF
THREE ITEMS OF FIBERBOARD BOXES, EACH ITEM FOR DELIVERY TO VARIOUS
DESTINATIONS. MR. WEINER'S BID ON ITEMS 1, 2, AND 3 WAS ACCEPTED ON
NOVEMBER 8, 1957. THE RECORD SHOWS THAT DELIVERIES OF ITEMS 1 AND 2
HAVE BEEN COMPLETED.
ON DECEMBER 22, 1957, THE CONTRACTOR ADVISED THE CONTRACTING OFFICER
THAT A MISTAKE HAD BEEN MADE IN HIS BID ON ITEM 3. THEREAFTER HE
SUBMITTED AN EXPLANATION OF THE MANNER IN WHICH THE MISTAKE HAD
OCCURRED, TOGETHER WITH DOCUMENTS IN SUPPORT OF THE ERROR AND THE
ALLEGED INTENDED PRICES. THE CONTRACTOR STATED THAT HIS OFFICE MANAGER
ON SEPTEMBER 26, 1957, HAD REQUESTED A QUOTATION ON ITEM 3 FROM HIS
SUPPLIER, CARNELL PAPERBOARD PRODUCT COMPANY, BUT HAD ERRONEOUSLY
DESIGNATED THE ITEM AS A REGULAR SLOTTED CONTAINER. LATER THE OFFICE
MANAGER DISCOVERED THE ERROR AND REQUESTED A QUOTATION ON THE CORRECT
FULL OVERLAP ITEM. QUOTATION ON THE FIRST REQUEST WAS FURNISHED OCTOBER
3 AND ON OCTOBER 9 THE SUPPLIER THROUGH ERROR WAS ADVISED TO DISREGARD
THE SECOND REQUEST. THE CONTRACTOR ALLEGED THAT HIS BID HAD BEEN
COMPUTED ON THE BASIS OF THE PRICES FURNISHED IN RESPONSE TO THE FIRST
REQUEST AND THAT THE ERROR WAS NOT DISCOVERED UNTIL AFTER AWARD. ALSO,
HE STATED THAT HE DID NOT IMMEDIATELY ADVISE THE CONTRACTING OFFICER OF
THE ERROR SINCE HE WAS ATTEMPTING TO NEGOTIATE WITH HIS SUPPLIER IN
ORDER TO OBTAIN A LOWER PRICE ON THE CORRECT ITEM AND THAT HE HAD BEEN
ADVISED THAT PRICES WOULD BE ABOUT 40 PERCENT HIGHER ON THE CORRECT
ITEM.
THE CONTRACTING OFFICER STATED THAT THE ONLY PAST COST EXPERIENCE
AVAILABLE FOR THIS ITEM WAS A PURCHASE OF 425 BOXES IN 1955 AT A PRICE
OF $0.375 EACH. THIS PRICE WAS COMPARED WITH THE AVERAGE PRICE BID BY
THE CONTRACTOR OF $0.31 EACH FOR 7,878 UNITS OF ITEM 3 TO TEST THE
REASONABLENESS OF THE PROPOSED AWARD.
THE FOLLOWING ARE THE BID PRICES WHICH THE CONTRACTOR ALLEGES SHOULD
HAVE BEEN BID, THE BID PRICE BID, AND THE NEXT LOW BID FOR THE ITEM.
CHART ITEM 3A 3B 3C 3D 3E
?285 ?273 ?303 ?295 ?288 ?361 INTENDED BID
.406 .394 .502 NEXT LOW .55555 .37 .372
.3798 ITEM 3G 3H PRICE BID ?365 ?36
.512 NEXT LOW .3798 .4183
THE CONTRACTING OFFICER STATES THAT IT WAS HIS OPINION THAT THE
POSSIBILITY OF AN ERROR IN BID SHOULD HAVE BEEN SUSPECTED BY THE
PURCHASING AGENCY PRIOR TO MAKING AN AWARD.
THE EVIDENCE OF RECORD INDICATES THAT AN ERROR, IN FACT, WAS MADE,
AND SINCE THE VERY WIDE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE
OTHER BIDS RECEIVED ON MANY OF THE ITEMS APPEARS SUFFICIENT TO HAVE
INDICATED THE PROBABILITY OF AN ERROR IN THE BID, IT SHOULD NOT HAVE
BEEN ACCEPTED WITHOUT REQUESTING VERIFICATION.
ACCORDINGLY, THE CONTRACT PRICES SHOULD BE INCREASED UP TO THE NEXT
LOW BID OR TO THE INTENDED BID PRICE, WHICHEVER IS LOWER, AS RECOMMENDED
BY THE CONTRACTING OFFICER.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT INVOLVED.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S REPORT
AND RECOMMENDATION OF FEBRUARY 28, 1958, ARE RETURNED.
B-134787, APR. 8 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTERS DATED JANUARY 2 AND MARCH 3, 1958, WITH
ENCLOSURE, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES
AND ACCOUNTS, REQUESTING A DECISION RELATIVE TO AN ERROR HANDY AND
HARMAN, OF NEW YORK, NEW YORK, ALLEGE THEY MADE IN THEIR BID ON WHICH
SALES CONTRACT NO. N298S-7805 WAS BASED.
BY SALES INVITATION NO. B-12-58-298, ISSUED OCTOBER 30, 1957, THE
U.S. NAVAL SUPPLY DEPOT, NEWPORT, RHODE ISLAND, REQUESTED BIDS FOR THE
PURCHASE FROM THE GOVERNMENT OF THREE ITEMS OF SCRAP SILVER CELL
BATTERIES. UNDER DATE OF NOVEMBER 19, 1957, IN RESPONSE TO THE
INVITATION, HANDY AND HARMAN SUBMITTED A BID IN A TOTAL AMOUNT OF
$38,356.44 ON THE THREE ITEMS, AND FORWARDED A BID DEPOSIT OF $7,671.29.
THE BIDDER QUOTED A UNIT PRICE OF "$77.27 EACH" FOR ITEM NO. 1, "$1.23
PER POUND" FOR ITEM NO. 2, AND "$4.16 PER POUND" FOR ITEM NO. 3. ONLY
ITEMS NOS. 2 AND 3 ARE IN ISSUE HERE. THE SCRAP MATERIAL LISTED UNDER
THESE ITEMS WAS DESCRIBED IN THE INVITATION, AS FOLLOWS:
ITEM NO. DESCRIPTION QUANTITY UNIT OF
(NUMBER OF UNITS) MEASURE
2. BATTERIES, SCRAP SILVER CELL; 5742 LBS
ENCLOSED IN PLASTIC CASES,
AVERAGE SIZE 15 INCHES BY 13
INCHES BY 6 INCHES. WEIGHT
INCLUDING CASES APPROXIMATELY
71 LBS. EA.
3. BATTERIES, SCRAP SILVER CELL; 3399 LBS
PLATES CONTAINED IN PLASTIC CELLS
OF VARIOUS SIZES. WEIGHT INCLUDES
PLASTIC CELLS AND ELECTROLYTE"
SIX OTHER BIDS WERE RECEIVED ON ITEM NO. 2, WITH UNIT PRICE
QUOTATIONS RANGING FROM $0.30 TO $4.28 PER POUND; AND EIGHT OTHER BIDS
WERE RECEIVED ON ITEM NO. 3 AT UNIT PRICES RANGING FROM $0.30 TO $2.21
PER POUND.
THE BID OF HANDY AND HARMAN OF $4.16 PER POUND ON ITEM NO. 3, BEING
THE HIGHEST RECEIVED FOR THAT ITEM, WAS ACCEPTED ON NOVEMBER 22, 1957,
AND SALES CONTRACT NO. N298S-7805 WAS AWARDED IN A TOTAL AMOUNT OF
$14,139.84. THEIR TOTAL BID DEPOSIT OF $7,671.29 WAS APPLIED AGAINST
THE SALE PRICE OF THAT ITEM, LEAVING A BALANCE DUE THE GOVERNMENT OF
$6,468.55. THIS AMOUNT WAS RECEIVED BY THE NAVAL SUPPLY DEPOT ON
NOVEMBER 27, 1957.
THE RECORD SHOWS THAT ON THAT DATE MR. HARMAN ADVISED THE DISPOSAL
DEPOT, BY TELEPHONE, THAT AN ERROR HAS BEEN MADE IN HIS FIRM'S BID ON
ITEMS NOS. 2 AND 3, ALLEGING THAT THEIR BID PRICES ON THESE ITEMS WERE
NOT AS INTENDED, BUT WERE REVERSED. IN LETTER DATED DECEMBER 5, 1957,
TO THE SALES AND DISPOSAL OFFICER OF THE DISPOSAL DEPOT, THE FIRM'S
ALLEGATION OF ERROR WAS CONFIRMED, AND HANDY AND HARMAN REQUESTED THAT
THEY BE PERMITTED TO WITHDRAW THEIR BID AS TO ITEM NO. 3, OR BE
PERMITTED TO CORRECT THE BID BY REVERSING THEIR QUOTATIONS ON ITEMS NOS.
2 AND 3, THAT IS, $4.16 PER POUND ON ITEM NO. 2 AND $1.23 PER POUND ON
ITEM NO. 3. IN THAT LETTER IT WAS ALSO STATED THAT ON NOVEMBER 22, THE
DATE THEY WERE NOTIFIED THAT THEY WERE THE SUCCESSFUL BIDDER ON ITEM NO.
3, THEY LEARNED OF THEIR MISTAKE THROUGH INFORMATION VOLUNTEERED TO THEM
BY ONE OF THE OTHER BIDDERS (SABIN METAL CORP., BROOKLYN, NEW YORK).
HANDY AND HARMAN CONTEND THAT THE ERROR MADE BECAUSE, ON NOVEMBER 12
WHEN THE MATERIALS WERE INSPECTED BY THEIR REPRESENTATIVES AT THE
NEWPORT DEPOT STORAGE AREA PRIOR TO SUBMITTING THEIR BID, AND BINS
CONTAINING THE MATERIALS WERE NOT IDENTIFIED BY MARKINGS AS TO
INVITATION ITEM NUMBER; THAT MR. E. J. GIACOBBE, THE REPRESENTATIVE OF
THE NAVAL BASE WHO ACCOMPANIED THEIR REPRESENTATIVES ON THE INSPECTION,
IDENTIFIED THE 222 COMPLETE BATTERIES AS BID ITEM NO. 1, CONTAINED IN
BIN NO. 1, AND THAT THEIR REPRESENTATIVES HAD THE UNDERSTANDING THAT THE
FOLLOWING BINS, NO. 2 AND NO. 3, CONTAINED BIN NO. 2 CONSISTED OF
MISCELLANEOUS SIZED CELLS REMOVED FROM BATTERIES AS WELL AS COMPLETE
BATTERIES BROKEN AND WITHOUT THE OUTER CASES; AND THAT THE MATERIAL IN
BIN NO. 3 CONSISTED OF SILVER CHLORIDE MAGNESIUM SHEETS, PLATES, ETC.,
WHICH WERE BROKEN UP.
IT IS ALLEGED THAT THE DESCRIPTIONS AS GIVEN IN THE BID INVITATION
ARE OF A GENERAL NATURE AND NOT "PRECISELY DEFINITE.' IT IS STATED THAT
HANDY AND HARMAN, HOWEVER, HAD NO REASON TO BELIEVE THAT THE MATERIALS
WHICH THEIR INSPECTORS SAW AND SAMPLED AND UNDERSTOOD TO BE ITEMS NO. 2
AND NO. 3 WERE NOT PROPERLY FITTED TO THE BID DESCRIPTIONS; ON THE
CONTRARY, THEIR UNDERSTANDING SEEMED TO BE FURTHER SUBSTANTIATED AS
CORRECT. IT IS FURTHER CONTENDED THAT THE BINS CONTAINING THE MATERIAL
WERE IN REVERSE ORDER, A FACT THAT THE FIRM'S REPRESENTATIVES DID NOT
NOTICE AT THE TIME OF INSPECTION; AND THAT THEIR BID PRICE OF $1.23 PER
POUND FOR ITEM NO. 2 WAS BASED ON AN ANALYSIS OF THE SAMPLE OF MATERIAL
TAKEN FROM THE BIN IN THE NO. 2 POSITION AND THEIR PRICE OF $4.16 FOR
ITEM NO. 3 WAS BASED ON AN ANALYSIS OF THE SAMPLE TAKEN FROM THE BIN IN
THE NO. 3 POSITION.
IN SUPPORT OF THEIR CLAIM, THE PURCHASER TRANSMITTED "TRUE COPIES" OF
THE WORKSHEETS USED IN THE PREPARATION OF THEIR BID, SHOWING THEIR
ANALYSES AS TO THE SILVER CONTENT OF THE SAMPLES OF MATERIAL TAKEN FROM
THE THREE BINS BY THEIR INSPECTORS AT THE TIME OF INSPECTION. THE
WORKSHEETS CONTAIN IDENTIFICATION NOTATIONS, AS FOLLOWS:
CHART
"A TRIAL SAMPLE OF PLASTIC BATTERY CELL (STEEL, BOLTS, WATER)
SAMPLE NO. 1 - BIN NO. 1"
"A TRIAL SAMPLE OF PLASTIC BATTERY CELL (STEEL, BOLTS, WATER)
SAMPLE NO. 2 - BIN NO. 2"
"A TRIAL SAMPLE OF 1 AG CHLORIDE MAGNESIUM SHEET SAMPLE NO. 3 - BIN
NO. 3"
AT A CONFERENCE IN OUR OFFICE ON JANUARY 20, 1958, AND IN A LETTER
DATED JANUARY 27, MR. RAYMOND HAPPEL, THE PURCHASER'S MANAGER OF SALES
SERVICE, STATES THAT HE AND THE TWO INSPECTORS UPON VISITING THE
DISPOSAL DEPOT ON JANUARY 14, AFTER AWARD OF THE CONTRACT, FOR THE
PURPOSE OF RE-EXAMINING ITEM NO. 3 AND ITS CONTAINER--- THE WOODEN CRATE
AND THE PALLET WHICH COMPRISED THE ,BIN"--- FOUND NOT ONLY "TWO VERY
CLEAR APPARENTLY NEW IDENTIFICATION LABELS ON OPPOSITE SIDES OF THE BIN
OR BOX, BUT ALSO CLEAR AND PRECISE INFORMATION WRITTEN IN LARGE CRAYON
LETTERING ON ONE SIDE, TIEING IN THIS MATERIAL WITH THE PROPER ITEM
NUMBER ON THE INVITATION.'
MR. HAPPEL ALSO STATES THAT THEY HAVE AN UNSWORN STATEMENT FROM MR.
SABIN, OF SABIN METAL ORP., ONE OF THE BIDDERS ON ALL THREE ITEMS, THAT
ON NOVEMBER 18, 1957, WHEN HE INSPECTED THE MATERIALS OFFERED FOR SALE
IN INVITATION NO. B-12-58-298, HE "SAW NO MARKS, SIGNS OR LABELS
WHATSOEVER TO SERVE AS IDENTIFICATION OF THESE BINS WITH THE NUMBERED
ITEMS ON THE INVITATION; " AND A STATEMENT FROM MR. JACK KAPLAN, OF
SPIRAL METAL CO., HOPELAWN, NEW JERSEY, ANOTHER BIDDER ON THESE ITEMS,
THAT HIS RECOLLECTION IS SUBSTANTIALLY THE SAME AND THAT THERE WAS
REASON FOR CONFUSION WITH REFERENCE TO THE ITEMS.
MR. HAPPEL STATES FURTHER THAT HIS FIRM'S CLAIM IS THAT THERE IS A
DEFINITE RESPONSIBILITY ON THE PART OF THE NAVAL SUPPLY DEPOT WHICH
CONTRIBUTED TOWARD THE ERROR RESULTING IN THEIR REVERSAL OF BIDS ON
ITEMS NOS. 2 AND 3. HE INVITES ATTENTION TO PARAGRAPH 23 OF THE
ADDITIONAL PROVISIONS, PAGE 4 OF THE BID INVITATION, WHICH PROVIDES THAT
ANY DISPUTE ON A QUESTION OF FACT ARISING UNDER THE CONTRACT AND NOT
DISPOSED OF BY AGREEMENT SHALL BE DECIDED BY THE CONTRACTING OFFICER.
IN VIEW OF THIS PROVISION AND SINCE THE CONTRACTING OFFICER HAS
RECOMMENDED THAT THEIR APPEAL BE GRANTED AS REQUESTED, AND FURTHER SINCE
THE MATERIAL IN QUESTION IS STILL AT THE NAVAL SUPPLY DEPOT, MR. HAPPEL
REQUESTS A FAVORABLE DECISION IN THE MATTER.
THE RECORD SHOWS THAT, AS OF JANUARY 21, 1958, A REFUND OF $11,311,87
HAD BEEN MADE TO HANDY AND HARMAN AND, PENDING DECISION ON THEIR CLAIM,
THE NAVAL SUPPLY DEPOT IS HOLDING $2,827.97--- 20
PERCENT OF THE TOTAL PURCHASE PRICE OF $14,139.84--- THE AMOUNT THE
GOVERNMENT MAY RETAIN AS LIQUIDATED DAMAGES IN THE EVENT OF DEFAULT
UNDER THE CONTRACT. THE PROPERTY IN QUESTION IS STILL AT THE NAVAL
SUPPLY DEPOT, NEVER HAVING BEEN REMOVED BY THE PURCHASER.
THE CONTRACTING OFFICER IN HER STATEMENT OF FACTS IN THE MATTER
REPORTS THAT EACH OF THE THREE LOTS OF SCRAP SILVER CELL BATTERIES WAS
CLEARLY LABELED AND MARKED ACCORDING TO THE SALES INVITATION ITEM
NUMBER, BUT THAT THE LOTS WERE NOT IN CONSECUTIVE ORDER BUT WERE PLACED
IN THE SEQUENCE, ITEM NO. 1, ITEM NO. 3, ITEM NO. 2. THESE FACTS ARE
CONFIRMED IN STATEMENTS BY THE ASSISTANT DEPOT CONTRACTING OFFICER WHO
HAD INSPECTED THE ITEMS PRIOR TO ADVERTISEMENT AND HAD IDENTIFIED THE
LABELS AND MARKINGS ON EACH LOT ACCORDING TO THE ADVERTISEMENT; AND BY
THREE EMPLOYEES OF THE U.S. NAVAL UNDERWATER ORDNANCE STATION---
INCLUDING MR. GIACOBBE WHO ACCOMPANIED HANDY AND HARMAN'S
REPRESENTATIVES ON THEIR FIRST INSPECTION TRIP PRIOR TO THE SUBMISSION
OF THEIR BID--- WHO ALSO STATE THAT AT NO TIME SUBSEQUENT TO OCTOBER 30,
1957, WERE THESE LABELS OR MARKINGS TAMPERED WITH OR WERE ANY ADDITIONAL
MARKINGS OR LABELS ADDED OR AFFIXED, AND FURTHER THAT A REPRESENTATIVE
OF THE STATION ESCORTED EACH BIDDER IN THE INSPECTION AREA AND POINTED
OUT EACH LOT. IN RECOMMENDING RELIEF FOR THE PURCHASER, THE CONTRACTING
OFFICER STATES THAT IS IS HER OPINION THAT AN ERROR MAY HAVE BEEN MADE
BY HANDY AND HARMAN IN THEIR BID, PROBABLY BECAUSE OF THE PHYSICAL
ARRANGEMENT OF THE ITEMS BUT NOT BECAUSE THE BINS LACKED MARKINGS AS TO
ITEM NUMBERS.
AS TO WHETHER THE THREE BINS CONTAINING THE MATERIAL ADVERTISED FOR
SALE WERE MARKED AND LABELED AS TO THE BID INVITATION ITEM NUMBERS AT
THE TIME THE PURCHASER'S REPRESENTATIVES INSPECTED THE MATERIAL ON
NOVEMBER 12, 1957, PRIOR TO SUBMISSION OF BIDS, THERE IS A DIRECT
CONFLICT BETWEEN THE STATEMENTS OF THE PURCHASER AND OTHER BIDDERS AND
THOSE OF EMPLOYEES OF THE DISPOSAL AGENCY AND THE CONTRACTING OFFICER.
THE ABSTRACT OF BIDS SHOWS THE FOLLOWING BIDS WERE RECEIVED ON ITEMS
NOS. 2 AND 3 IN RESPONSE TO THE INVITATION:
TABLE
ITEM NO. 2 ITEM NO. 3
BIDDER LB. LB. U.S. DENTAL S
$0.30 $0.30 D. AND H. RECLAIMING CO.
0.825 EMPIRE SMELTING AND REF. CO. 0.51
---- 1.51 SPIRAL METAL CO., INC. --
1.6123 SABIN METAL CORP. 4.28
REF. CO. 4.092 2.182 PEASE AND CURRAN,
2.21 HANDY AND HARMAN 1.23 4
THE STATEMENTS OF MR. SABIN, OF SABIN METAL CORP., AND OF MR.
KAPLAN, OF SPIRAL METAL CO., THAT THE BINS WERE NOT MARKED OR LABELED AS
TO ITEM NUMBER AT THE TIME OF THEIR INSPECTION OF THE MATERIAL PRIOR TO
BIDDING ARE NOT SUPPORTED BY THE ABSTRACT OF BIDS, SINCE UPON A
COMPARISON OF THE BIDS IT IS APPARENT THAT MR. SABIN WAS ABLE TO
IDENTIFY ITEMS NOS. 2 AND 3, AND ALTHOUGH SPIRAL METAL CO. DID NOT BID
ON ITEM NO. 2 THEIR BID ON ITEM NO. 3 WAS NOT OUT OF LINE WITH OTHER
BIDS.
WHEN THERE IS A COMPLETE DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS
ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT, IT IS THE
ESTABLISHED RULE OF OUR OFFICE 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; 31 ID. 288; 34
ID. 565, 568. CONSEQUENTLY, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE
CONTRACTING OFFICER'S FINDINGS OF FACT THAT THE BINS WERE APPROPRIATELY
MARKED AS TO ITEM NUMBERS AT THE TIME HANDY AND HARMAN'S REPRESENTATIVES
INSPECTED THE MATERIAL PRIOR TO SUBMISSION OF THEIR BID.
THE RESPONSIBILITY FOR PREPARATION OF A BID IS UPON THE BIDDER. SEE
FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120,
163. ANY ERROR THAT HANDY AND HARMAN MAY HAVE MADE IN THEIR BID AS TO
ITEMS NOS. 2 AND 3 MAY BE ATTRIBUTED SOLELY TO THEIR NEGLIGENCE AND
OVERSIGHT IN NOT OBSERVING THE MARKINGS ON THE BINS IDENTIFYING THE
MATERIAL THEREIN BY ITEM NUMBER, AND NOT TO THE PHYSICAL ARRANGEMENT OF
THE BINS. SUCH AN ERROR WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT
ENTITLE THE PURCHASER 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 MATERIALS ADVERTISED FOR SALE WERE PROPERLY DESCRIBED IN THE
INVITATION. HANDY AND HARMAN'S BID PRICE OF $4.16 PER POUND, WHEN
COMPARED WITH THE NEXT HIGH BID OF $2.21 PER POUND AND THE OTHER BIDS ON
ITEM NO. 3, COULD NOT BE CONSIDERED SO HIGH OR OUT OF LINE AS TO BE AN
UNCONSCIONABLE PRICE FOR THE MATERIAL, CONSIDERING THE FACT THAT THE
MATERIAL WAS SURPLUS SCRAP. BIDDERS GENERALLY CAN BE EXPECTED TO PLACE
DIFFERENT VALUES ON SUCH PROPERTY DEPENDING ON THEIR INDIVIDUAL NEEDS OR
THEIR CHANCES FOR RESALE. SEE 28 COMP. GEN. 550, 551. THERE WAS
NOTHING ON THE FACE OF THE BID TO INDICATE THAT HANDY AND HARMAN'S
QUOTATIONS AS TO ITEMS NOS. 2 AND 3 WERE NOT AS INTENDED, PARTICULARLY
IN VIEW OF THE FACT THAT THE CONTRACTING OFFICER, PRIOR TO AWARD OF THE
CONTRACT, ESTABLISHED THAT TWO REPRESENTATIVES OF THE BIDDER HAD SPENT
CONSIDERABLE TIME INSPECTING THE MATERIALS OFFERED FOR SALE AND HAD
TAKEN SAMPLES FROM EACH OF THE THREE LOTS FOR ANALYSIS OF SILVER
CONTENT. IN VIEW OF THE FOREGOING AND SINCE THE MISTAKE WAS NOT ALLEGED
UNTIL AFTER AWARD OF THE CONTRACT, IT MUST BE CONCLUDED THAT THE BID OF
HANDY AND HARMAN WAS ACCEPTED IN GOOD FAITH, WITHOUT KNOWLEDGE OF ERROR
THEREIN. THE ACCEPTANCE OF THE BID AS SUBMITTED CONSUMMATED A VALID AND
BINDING CONTRACT AND FIXED THE RIGHTS AND LIABILITIES 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.
ACCORDINGLY, ON THE RECORD BEFORE US, WE FIND NO LEGAL BASIS FOR
GRANTING THE RELIEF REQUESTED.
CONSEQUENTLY, AND SINCE HANDY AND HARMAN HAVE NOT REMOVED THE
PROPERTY FROM THE GOVERNMENT SITE AND HAVE ELECTED TO DEFAULT ON THEIR
CONTRACT, THE ACTION OF THE DISPOSAL AGENCY, IN ACCORDANCE WITH THE
TERMS OF THE CONTRACT, IN EXERCISING THE GOVERNMENT'S RIGHT TO RETAIN
LIQUIDATED DAMAGES--- 20 PERCENT OF THE PURCHASE PRICE--- WAS PROPER.
INASMUCH AS HANDY AND HARMAN HAVE BEEN IN CONFERENCE AND HAVE
CORRESPONDED WITH OUR OFFICE REGARDING THEIR CLAIM, A COPY OF THIS
DECISION IS BEING FORWARDED TO THEM.
B-135636, APR. 30" 1958
TO MR. ALBERT N. THOMPSON:
YOUR LETTER OF MARCH 14, 1958, REQUESTS RECONSIDERATION OF OUR OFFICE
SETTLEMENT DATED JANUARY 16, 1958, WHICH DISALLOWED YOUR CLAIM FOR
ADDITIONAL COMPENSATION ALLEGED TO BE DUE ON THE BASIS THAT YOU WERE
INCORRECTLY PAID FOR SERVICES RENDERED SUBSEQUENT TO SEPTEMBER 24, 1955,
AS A MEAT INSPECTOR WITH THE DEPARTMENT OF AGRICULTURE, AGRICULTURAL
RESEARCH SERVICE, MEMPHIS, TENNESSEE.
WHILE WORKING AS A NURSING ASSISTANT GS-2, AT $3,300 PER ANNUM WITH
THE VETERANS ADMINISTRATION IN MEMPHIS, TENNESSEE, YOUR NAME WAS
SELECTED FROM THE CIVIL SERVICE REGISTER FOR A POSITION WITH THE
DEPARTMENT OF AGRICULTURE AS A MEAT INSPECTOR. YOU WERE APPOINTED AS A
MEAT INSPECTOR ON SEPTEMBER 25, 1955, AND YOUR APPOINTMENT WAS EFFECTED
WITHOUT A BREAK IN SERVICE FROM YOUR PRIOR POSITION; HOWEVER, IT WAS
NOT PROCESSED AS A TRANSFER FROM THE VETERANS ADMINISTRATION AS YOUR
APPOINTMENT WAS MADE DIRECTLY FROM THE CIVIL SERVICE REGISTER. YOUR
INITIAL SALARY RATE WAS SHOWN AT $3,430 PER ANNUM.
SECTION 25.103 (B) (1) OF THE FEDERAL EMPLOYEES PAY REGULATION,
21-318 OF THE FEDERAL PERSONNEL MANUAL PROVIDES IN PART, AS FOLLOWS:
"/B) (1) SUBJECT TO THE MANDATORY REQUIREMENTS OF PARAGRAPH (D) OF
THIS SECTION AND SECTION 25.104, AN EMPLOYEE WHO IS REEMPLOYED,
TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED, OR DEMOTED MAY BE PAID AT
ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S
HIGHEST PREVIOUS RATE. IF THE EMPLOYEE'S HIGHEST PREVIOUS RATE FALLS
BETWEEN THE SCHEDULED RATES OF THE NEW GRADE, HE MAY BE GIVEN THE HIGHER
RATE. IF THE EMPLOYEE'S EXISTING RATE OF BASIC COMPENSATION IS LESS
THAN THE MINIMUM SCHEDULED RATE OF THE NEW GRADE, HIS COMPENSATION SHALL
BE INCREASED TO THE MINIMUM RATE. * * *"
IT WILL BE NOTED THAT THE APPOINTMENT AT A RATE IN EXCESS OF THE
MINIMUM BASED ON PREVIOUS SERVICE IS NOT A VESTED RIGHT OF AN EMPLOYEE
BUT IS DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE. IF THE
ADMINISTRATIVE OFFICE INTENTIONALLY APPOINTS AN EMPLOYEE AT THE MINIMUM
SALARY OF THE GRADE SUCH RATE MAY NOT BE INCREASED EXCEPT UPON
COMPLETION OF THE PERIODS OF SATISFACTORY SERVICE REQUIRED BY THE
CLASSIFICATION ACT FOR WITHIN-GRADE SALARY INCREASES.
IN CONSONANCE WITH THE DISCRETION VESTED BY SECTION 25.103 (B) (1),
IT IS AND WAS THE PRACTICE OF THE MEAT INSPECTION SERVICE TO HIRE ALL
LAY MEAT INSPECTORS AS TRAINEES AT THE MINIMUM OF GRADE GS-3. THE ONLY
EXCEPTION TO THIS IS AN OCCASIONAL REINSTATEMENT OF FORMER MEAT
INSPECTORS.
THUS THE INITIAL FIXING OF YOUR SALARY AT THE RATE OF $3,430 PER
ANNUM INSTEAD OF $3,175 PER ANNUM, WAS CONTRARY TO THE ESTABLISHED
PRACTICE AND TO THE INTENT OF THE RESPONSIBLE OFFICERS. ACCORDINGLY,
THE PROMPT CORRECTIVE ACTION REDUCING YOUR RATE TO $3,175 PER ANNUM WAS
PROPER.
THE DISALLOWANCE OF YOUR CLAIM THEREFORE WAS PROPER AND IS SUSTAINED.
IN RESPONSE TO YOUR QUESTION AS TO WHERE YOU MAY HAVE YOUR CASE
REVIEWED YOU ARE ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND
CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS NO
PROCEDURE PRESCRIBED FOR APPEALING FROM SUCH DECISIONS. HOWEVER, YOUR
ATTENTION IS CALLED TO THE PROVISIONS OF 28 U.S.C. 1436; ID. 1491,
CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED
STATES AND IN THE UNITED STATES COURT OF CLAIMS.
B-135399, MAR. 35, 1958
TO MR. F. N. HEARN, AUTHORIZED CERTIFYING OFFICER, PUBLIC HEALTH
SERVICE:
YOUR LETTER OF FEBRUARY 27, 1958, REFERENCE FIN:FO, WITH ENCLOSURES,
REQUESTS AN ADVANCE DECISION ON THE PROPRIETY OF CERTIFYING FOR PAYMENT
A SUPPLEMENTAL BILLING IN THE TOTAL AMOUNT OF $1,397.50, SUBMITTED BY
THE AMERICAN HOSPITAL ASSOCIATION, 18 EAST DIVISION STREET, CHICAGO 10,
ILLINOIS, COVERING TEMPORARY INCREASE IN DUES IN CONNECTION WITH
MEMBERSHIP CONTRACT SAPH-67052 FOR VARIOUS PUBLIC HEALTH SERVICE
HOSPITALS. THE SUPPLEMENTAL BILLING IS FOR AN INCREASE IN DUES COVERING
THE PERIOD JANUARY 1, 1957 TO JUNE 30, 1957.
THE CONTRACT COVERS GROUP MEMBERSHIP OF THE PUBLIC HEALTH SERVICE
HOSPITALS IN THE AMERICAN HOSPITAL ASSOCIATION FOR THE PERIOD JULY 1,
1956 THROUGH JUNE 30, 1957. PARAGRAPH 2 OF THE CONTRACT PRESCRIBES THE
RATE OF DUES TO BE CHARGED AS FOLLOWS:
"2. DUES - A. DUES FOR THE LARGER HOSPITAL SHOWN ON THE ATTACHED
LIST MARKED "EXHIBIT A" RECEIVING ACTIVE INSTITUTIONAL MEMBERSHIP UNDER
THIS AGREEMENT, SHALL BE AT THE RATE OF $1200. PER ANNUM FOR THIS
RENEWAL MEMBERSHIP PERIOD BEGINNING JULY 1, SUBJECT TO THE RIGHT OF THE
ASSOCIATION TO REVISE ITS BY-LAWS.
"B. DUES FOR EACH OF THE OTHER HOSPITALS OF THE U.S. PUBLIC HEALTH
SERVICE LISTED IN "EXHIBIT A" AND "EXHIBIT B" FOR SUCH SERVICE
INSTITUTIONAL MEMBERSHIP SHALL BE AT THE RATE OF 90.00 PER ANNUM FOR
THIS RENEWAL MEMBERSHIP PERIOD.
"C. ACTIVE INSTITUTIONAL MEMBERSHIP SHALL BE AVAILABLE TO ANY
EXISTING HOSPITAL OF THE U.S. PUBLIC HEALTH SERVICE NOT LISTED IN
"EXHIBIT A" OR "EXHIBIT B" OR TO ANY ADDITIONAL HOSPITAL WHICH MAY
HEREAFTER BE OPENED OR ACQUIRED BY THE U.S. PUBLIC HEALTH SERVICE UPON
PAYMENT OF DUES AT THE RATE OF 100.00 PER ANNUM FOR THE FIRST MEMBERSHIP
PERIOD AND AT THE RATE OF 90.00 PER ANNUM FOR EACH SUCCEEDING MEMBERSHIP
PERIOD.'
IN LETTER DATED JUNE 28, 1957, THE AMERICAN HOSPITAL ASSOCIATION
ADVISED THE PUBLIC HEALTH SERVICE THAT FOLLOWING A RECOMMENDATION OF
JANUARY 7, 1957, OF THE COMMITTEE ON FUND RAISING FOR THE ASSOCIATION,
ACTION WAS TAKEN TO INCREASE THE DUES. ON MAY 18, 1957, THE BY-LAWS
WERE AMENDED, EFFECTIVE FOR THE CALENDAR YEARS 1957, 1958, 1959, AND
1960, INCREASING THE MEMBERSHIP DUES BY 50 PERCENT. THE LETTER INCLUDES
THE FOLLOWING STATEMENT IN REGARD TO REVISED RATES COVERING THE LAST SIX
MONTHS OF THE CONTRACT:
"UNDER PARAGRAPH 2 OF YOUR CONTRACT SAPH67052 THE ASSOCIATION
INDICATED THE AMOUNT OF DUES TO BE CHARGED PUBLIC HEALTH SERVICE
HOSPITALS, SUBJECT TO THE RIGHT OF THE ASSOCIATION TO REVISE ITS
BY-LAWS.'
THE PROPRIETY OF PAYMENT OF DUES FOR SUCH MEMBERSHIPS, IF
ADMINISTRATIVELY DETERMINED NECESSARY FOR ACCOMPLISHING THE PURPOSES FOR
WHICH AN APPROPRIATION WAS MADE, WAS THE SUBJECT OF 24 COMP. GEN. 814
AND B-71670, DECEMBER 31, 1947. YOU REQUEST OUR DECISION AS TO THE
PROPRIETY OF CERTIFYING THE SUPPLEMENTAL BILLING FOR PAYMENT IN VIEW OF
THE REVISION IN THE BY-LAWS AND THE SUPPLEMENTAL BILLING ON A
RETROACTIVE BASIS.
SINCE THE DUES AT THE RATE OF $1,200 PER ANNUM SPECIFIED IN PART A OF
PARAGRAPH 2 OF THE CONTRACT ARE SPECIFICALLY MADE SUBJECT TO THE RIGHT
OF THE ASSOCIATION TO REVISE ITS BY-LAWS, AND INASMUCH AS THE RECORD
SHOWS THAT THE BY-LAWS WERE DULY AMENDED DURING THE CONTRACT PERIOD
WHEREBY AN INCREASE OF DUES WAS EFFECTED, THE INCREASED DUES IN THE
AMOUNT OF $300, FOR THE HOSPITAL COVERED BY PART A, PARAGRAPH 2 OF THE
CONTRACT, AS SET FORTH IN THE SUPPLEMENTAL BILLING, CONSTITUTES A VALID
OBLIGATION AGAINST THE APPROPRIATION FOR THE FISCAL YEAR COVERED BY THE
CONTRACT AND MAY BE CERTIFIED FOR PAYMENT. HOWEVER, INASMUCH AS THE
CONTRACT PROVISIONS RELATING TO THE HOSPITALS INCLUDED UNDER PARTS B AND
C OF PARAGRAPH 2, DO NOT PROVIDE FOR AN ADJUSTMENT OF DUES, SUCH AS
PROVIDED UNDER PART A, THERE APPEARS TO BE NO AUTHORITY OF LAW TO CHARGE
THE APPROPRIATIONS WITH ANY SUMS REPRESENTING INCREASED DUES OVER THOSE
STIPULATED IN PARTS B AND C OF PARAGRAPH 2 OF THE CONTRACT. THE
ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS
STIPULATION AS TO THE AMOUNT OF COMPENSATION OR PRICE TO BE PAID, SUCH
STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF
RECOVERY FOR PERFORMANCE. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168,
AND SIMPSON V. UNITED STATES, 172 U.S. 372.
IN ACCORDANCE WITH THE FOREGOING, CERTIFICATION OF THE SUPPLEMENTAL
BILLING FOR PAYMENT IS AUTHORIZED ONLY TO THE EXTENT OF THE INCREASE IN
DUES ($300) OVER THOSE PROVIDED FOR IN PART A, PARAGRAPH 2 OF THE
CONTRACT. THE SUPPLEMENTAL BILLING AND SUPPORTING PAPERS ARE ATTACHED.
B-134517, MAR. 31, 1958
TO M. AND M. REALTY TRUST:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1957,
CONTENDING THAT YOU WERE ENTITLED TO RECEIVE THE SECOND AWARD TO BE MADE
UNDER INVITATION FOR BIDS NO. B/-DMS-19, ISSUED AUGUST 2, 1957, BY THE
BOSTON REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION, SINCE YOU
SUBMITTED THE SECOND LOWEST BID FOR STORAGE IN FIRE-RESISTIVE BUILDINGS
AND THE INVITATION PROVIDED THAT SUCH OFFERS WOULD BE GIVEN PRIORITY IF
THE RATES QUOTED WERE COMPETITIVE.
WE WERE ADVISED IN A RECENT REPORT RECEIVED FROM THE GENERAL SERVICES
ADMINISTRATION THAT THE ESSEX WAREHOUSE AND FINANCE CORPORATION
SUBMITTED THE LOWEST BID FOR SPACE IN A FIRE-RESISTIVE BUILDING; THAT A
CONTRACT WAS AWARDED TO THAT COMPANY; AND THAT, WHILE CONSIDERATION WAS
GIVEN TO THE MAKING OF AN AWARD TO A FIRM WHICH OFFERED
NON-FIRE-RESISTIVE SPACE, THE BOSTON REGIONAL OFFICE WAS INSTRUCTED TO
MAKE NO FURTHER AWARDS UNDER THE INVITATION. WE WERE ALSO ADVISED THAT
THE AGENCY INTENDS, IN THE FUTURE PROCUREMENT OF SPACE IN THIS AND
SIMILAR CASES, TO NEGOTIATE CONTRACTS IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 302 (C) (11) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE
SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (11).
IN THE CIRCUMSTANCES, NO FURTHER ACTION ON YOUR PROTEST BY OUR OFFICE
APPEARS TO BE REQUIRED AND THE MATTER IS CONSIDERED CLOSED.
B-134609, MAR. 31, 1958
TO MR. ROBERT N. ROMINE:
YOUR LETTER OF DECEMBER 2, 1957, REQUESTS REVIEW OF THE SETTLEMENT OF
NOVEMBER 14, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM AND MONETARY
ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE PERIOD MAY 31, 1955, THROUGH
OCTOBER 17, 1956, INCIDENT TO THE PERFORMANCE OF DUTY ASSIGNED TO YOU
DURING THAT TIME AS AN ENLISTED MEMBER OF THE U.S. ARMY.
UNDER SPECIAL ORDERS NO. 102, HEADQUARTERS, THE ENGINEER CENTER, U.S.
ARMY, FORT BELVOIR, VIRGINIA, DATED MAY 25, 1955, YOU WERE PLACED ON
TEMPORARY DUTY FOR APPROXIMATELY 8 WEEKS AT THE 9814TH TECHNICAL UNIT,
CORPS OF ENGINEERS, ARMY MAP SERVICE, 6500 BROOKS LANE, WASHINGTON,
D.C., FOR TRAINING IN A MILITARY OCCUPATIONAL SPECIALTY. YOU WERE
DIRECTED TO PROCEED ON OR ABOUT MAY 31, 1955, AND YOU WERE ATTACHED TO
FORT MYER, VIRGINIA, FOR ADMINISTRATION, RATIONS AND QUARTERS. IT
APPEARS THAT BECAUSE OF YOUR DUTIES AT THE ARMY MAP SERVICE THE MESS AT
FORT MYER WAS NOT REGARDED AS BEING AVAILABLE FOR THE NOON MEAL ON THE
DAYS YOU PERFORMED TEMPORARY DUTY AT THE ARMY MAP SERVICE. SPECIAL
ORDERS NO. 171, DATED SEPTEMBER 1, 1955, EXTENDED YOUR TEMPORARY DUTY
STATUS "FOR APRX SIXTY (60) DAYS" FOR THE PURPOSE OF COMPLETING
NECESSARY STATUS AT FORT BELVOIR FROM STUDENT TO THAT OF PERMANENT
PARTY. THE QUOTED PHRASE AMENDED TO READ "FOR APRX ONE HUNDRED-FIFTY
(150) DAYS" BY SPECIAL ORDERS NO. 189, DATED SEPTEMBER 28, 1955, AND
SPECIAL ORDERS NO. 21 OF JANUARY 31, 1956, AGAIN AMENDED THAT PHRASE TO
READ "FOR APRX TWO HUNDRED FORTY (240) DAYS.' SPECIAL ORDERS NO. 203,
OF OCTOBER 16, 1956, REASSIGNED YOU TO THE ARMY MAP SERVICE, APPARENTLY
ON A PERMANENT CHANGE OF STATION, EFFECTIVE OCTOBER 18, 1956.
INFORMATION IN THE FILE INDICATES A BELIEF ON YOUR PART THAT THE
FRACTIONAL PER DIEM PROVISIONS OF PARAGRAPH 4205-2, JOINT TRAVEL
REGULATIONS, ARE APPLICABLE IN YOUR CASE, SINCE YOU STATE THAT AFTER
DUTY AT THE ARMY MAP SERVICE YOU RETURNED EACH NIGHT TO THE RESIDENCE
YOU HAD ESTABLISHED NEAR FORT BELVOIR, DURING CERTAIN PERIODS OF YOUR
CLAIM, AND THAT YOUR DUTIES AT THE ARMY MAP SERVICE REQUIRED YOU TO BE
ABSENT FROM FORT BELVOIR FOR MORE THAN 10 HOURS ON EACH OF SUCH DAYS.
THE ORDERS ASSIGNING YOU TO FORT BELVOIR HAVE NOT BEEN FURNISHED.
HOWEVER, SINCE ALL ENTRY ON YOUR PAY RECORD FOR THE PERIOD MARCH 1 TO
JUNE 30, 1950, SHOWS THAT YOU FIRST REPORTED AT THAT PLACE ON THE DAY
BEFORE THE ORDERS OF MAY 24 WERE ISSUED AND IT APPEARS THAT YOUR DUTY
ASSIGNMENT AT THAT PLACE WAS FOR DUTY (PRESUMABLY TEMPORARY) AS A
STUDENT, IT IS CONCLUDED THAT FORT BELVOIR WAS NOT YOUR PERMANENT
STATION AT THE TIME SUCH ORDERS WERE ISSUED AND THAT YOU WERE IN A
TRAVEL STATUS UNDER COMPETENT ORDERS AT THE ARMY MAP SERVICE FOR THE
PERIOD PER DIEM IS PAYABLE, AS SHOWN BELOW.
HENCE, PER DIEM FOR FRACTIONAL DAYS IS NOT HERE INVOLVED.
WHILE THE JOINT TRAVEL REGULATIONS CONTAIN NO LIMITATION ON THE
PERIOD OF TIME PER DIEM MAY BE PAID FOR TEMPORARY DUTY PERFORMED AT ANY
ONE PLACE, THE WORD "TEMPORARY," BY ITS VERY NATURE, IMPLIES A PERIOD OF
RELATIVELY SHORT DURATION. THUS, IT HAS BEEN HELD THAT A TEMPORARY DUTY
ASSIGNMENT MAY NOT EXCEED REASONABLE TEMPORARY LIMITATIONS OF 5 OR 6
MONTHS. THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THE ORDERS
OF MAY 25, 1955, SEPTEMBER 1 AND 28, 1955, AND JANUARY 31, 1956,
CONTEMPLATED AS ASSIGNMENT IN EXCESS OF THAT LIMITATION AND ON THAT
BASIS IT IS CONCLUDED THAT THE ARMY MAP SERVICE DID NOT BECOME YOUR NEW
PERMANENT STATION PRIOR TO THE ISSUANCE OF THE ORDERS OF OCTOBER 16,
1956.
PARAGRAPH 3000-1, JOINT TRAVEL REGULATIONS, PROVIDES THAT NO
REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT
AUTHORITY HAVE BEEN ISSUED THEREFOR. THE 60-DAY PERIOD OF TEMPORARY
DUTY DIRECTED IN THE ORDERS OF SEPTEMBER 1, 1955, WAS EXTENDED ONLY TO A
PERIOD OF APPROXIMATELY 240 DAYS OR ABOUT 8 MONTHS. SUCH ORDERS FURNISH
NO BASIS FOR THE PAYMENT OF PER DIEM FOR A PERIOD OF OVER 13 MONTHS FROM
SEPTEMBER 1955 TO OCTOBER 1956. IN THE ABSENCE OF ORDERS ISSUED
CONTEMPORANEOUSLY FURTHER EXTENDING THE PERIOD OF TEMPORARY DUTY AT THE
ARMY MAP SERVICE, IT MUST BE CONCLUDED THAT YOUR RIGHT TO PER DIEM
TERMINATED ON APRIL 30, 1956.
FOR THE PERIOD MAY 31, 1955, TO APRIL 30, 1956--- NOT INCLUDING
NOVEMBER 23 TO 26, 1955, WHEN YOU WERE ON LEAVE--- YOU ARE ENTITLED TO
PER DIEM AT THE RATES PRESCRIBED IN THE REGULATIONS IN EFFECT AT THAT
TIME FOR TRAVEL ON MAY 31, 1955, AND FOR TEMPORARY DUTY AT A STATION
WHERE GOVERNMENT QUARTERS WERE AVAILABLE, WITH PROPER DEDUCTIONS ALSO
FOR THE NUMBER OF MEALS WHICH WERE AVAILABLE AT FORT MYER, AND FOR THE
AMOUNTS PAID YOU FOR OTHER NOON MEALS AT THE RATE OF 65 CENTS PER MEAL
DURING THE ABOVE PERIOD. SINCE THAT 65-CENT RATE PLUS ONE-THIRD OF THE
SEPARATE RATION ALLOWANCE AMOUNTS TO THE FURNISHING OF SUBSISTENCE AT
GOVERNMENT EXPENSE FOR THE NOON MEALS INVOLVED, ONE-THIRD OF THE
SEPARATE RATION ALLOWANCE ALSO MUST BE DEDUCTED. A MILEAGE ALLOWANCE
MAY BE PAID ONLY FOR THE DISTANCE FROM FORT BELVOIR TO THE ARMY MAP
SERVICE SINCE THAT IS THE ONLY TRAVEL WHICH WAS NECESSARY TO COMPLY WITH
THE TRAVEL ORDERS. YOUR RETURN TO YOUR PLACE OF RESIDENCE AT NIGHT WAS
FOR PERSONAL REASONS.
A SETTLEMENT ALLOWING THE AMOUNT FOUND DUE ON THE BASIS INDICATED
ABOVE WILL ISSUE IN DUE
B-134618, MAR. 31, 1958
TO LIEUTENANT COLONEL N. P. HANNA, FC:
YOUR LETTER OF NOVEMBER 14, 1957, WITH ENCLOSURES, FILE NO. FINCS-B
201 SAPIA-BOSCH, TIMOTEO A. 0 9 805, FORWARDED TO OUR OFFICE ON
DECEMBER 6, 1957, BY THE CHIEF OF FINANCE, FILE FINEM 201, REQUESTS AN
ADVANCE DECISION UPON THE QUESTION WHETHER THE RETIRED PAY OF COLONEL
TIMOTEO A. SAPIA-BOSCH AND THE REMUNERATION HE RECEIVES FOR SERVICES AS
AN ESCORT INTERPRETER UNDER A CONTRACT WITH THE DEPARTMENT OF STATE ARE
SUBJECT TO THE LIMITATIONS OF SECTION 212 OF THE ECONOMY
ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.
SECTION 212 OF THE 1932 ACT, AS AMENDED, PROVIDES:
"/A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR
POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR
THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY
CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED
STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO
RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A
COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A
RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF
COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE
FROM BOTH SOURCES MORE THAN $10,000; AND WHEN THE RETIRED PAY AMOUNTS
TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM SUCH PERSON SHALL BE
ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED
PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION THE TERM "RETIRED
PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY
MAY ENTER INTO THE COMPUTATION THEREOF.
"/B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY,
PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: PROVIDED, THAT THIS
SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER
RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE
UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED
IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN
VETERANS REGULATION NUMBERED 1 (A), PART I PARAGRAPH I. * * *"
ARTICLE I OF THE CONTRACT PROVIDES THAT "THE CONTRACTOR, IF
AVAILABLE, AGREES TO RENDER SERVICES FOR WHICH HE IS QUALIFIED, WHEN AND
AS REQUIRED BY THE DEPARTMENT, AND SHALL BE PAID BY THE DEPARTMENT FOR
THE RENDERING OF SATISFACTORY SERVICES IN ACCORDANCE WITH THE SCHEDULE
OF RATE ATTACHED HERETO.' THE SCHEDULE RATE FOR ESCOURT-INTERPRETER
SERVICE IS SHOWN AS $20 PER DAY. ALSO, WHILE THE CONTRACT PROVIDES FOR
DETAILED INSTRUCTIONS REGARDING THE WORK TO BE PERFORMED AND FOR
APPROPRIATE INSPECTION OF THE SERVICES RENDERED, THERE IS NOT THE DEGREE
OF SUPERVISION THAT OTHERWISE WOULD BE INVOLVED IN THE NORMAL
EMPLOYER-EMPLOYEE RELATIONSHIP, SINCE THE ESCORT-INTERPRETER SERVICES
ARE RENDERED TO GROUPS OF FOREIGN GRANTEES WHO ARE ON TOURS IN THIS
COUNTRY. RELATIVE THERETO THE DEPARTMENT OF STATE IN ITS REPORT TO US
DATED MARCH 20, 1958, SAYS AS FOLLOWS:
"THE NATURE OF THE ASSIGNMENTS IS SUCH THAT VERY LITTLE DIRECT
SUPERVISION OF THE CONTRACTOR IS POSSIBLE. HE IS BRIEFED PRIOR TO THE
BEGINNING OF HIS ASSIGNMENT AND RENDERS A REPORT AT THE END.
IF SPECIAL PROBLEMS ARISE DURING THE COURSE OF HIS ASSIGNMENT, THE
CONTRACTOR MAY CALL OR WRITE FOR INSTRUCTIONS ALTHOUGH THIS HAPPENS
INFREQUENTLY. ALL EQUIPMENT, SUPPLIES AND WORKING SPACE ARE THE
RESPONSIBILITY OF THE CONTRACTOR ALTHOUGH THE NATURE OF THE WORK ACTS TO
MINIMIZE THE IMPORTANCE OF THIS FACTOR OF THE CONTRACTUAL RELATIONSHIP.
THE SERVICES OBTAINED UNDER THE CONTRACTS ARE DEFINITELY INTERMITTENT IN
CHARACTER. THE REMUNERATION INVOLVED IS BASED ON THE TOTAL SERVICE TO
BE PERFORMED, I.E., RENDERING ESCORT-INTERPRETER SERVICES TO A
PARTICULAR INDIVIDUAL OR GROUP OF INDIVIDUALS FOR A SPECIFIC PERIOD.
HOWEVER, SINCE THE PERIODS INVOLVED IN INDIVIDUAL CASES VARY
CONSIDERABLY, THE ONLY PRACTICABLE METHOD FOR THE DETERMINATION OF
REMUNERATION IS ON A DAILY RATE BASIS. SUCH A BASIS IS PROVIDED IN THE
CONTRACTS.
"IT IS OUR CONTENTION THAT THE CONTRACTUAL SERVICES ARE NON-PERSONAL
IN NATURE AND THE CONTRACTOR OWES NO DUTY TO THE GOVERNMENT OTHER THAN
SPECIFIC PERFORMANCE UNDER THE CONTRACT, THE TRANSACTION BEING CLEARLY
ANALOGOUS TO THE PROCURING AND DELIVERY OF TANGIBLE ARTICLES PURSUANT TO
A CONTRACT OF SALE. * * *
"SINCE THE SERVICES OBTAINED UNDER CONTRACTS ARE ON AN INTERMITTENT
AND TEMPORARY BASIS, PRACTICALLY ALL OF THE CONTRACTORS HAVE OTHER
SOURCES OF INCOME. IT WOULD NOT BE FEASIBLE UNDER THESE CIRCUMSTANCES
TO REQUIRE THE CONTRACTOR TO HOLD HIMSELF IN READINESS TO PROVIDE
SERVICES WHEN DEMANDED, PARTICULARLY SINCE SOME ARE USED SO
INFREQUENTLY. FOR THIS REASON THE PHRASE "IF AVAILABLE" WAS INSERTED IN
ARTICLE I OF THE CONTRACTS. IN PRACTICE, NO FORMAL DEMANDS ARE MADE ON
THE CONTRACTORS TO PROVIDE SERVICES. WHEN SERVICES ARE REQUIRED,
INFORMAL INQUIRIES ARE MADE UNTIL A CONTRACTOR IS FOUND THAT IS
AVAILABLE TO THIS EXTENT, IT COULD BE SAID THAT THE CONTRACTOR HAS THE
RIGHT TO REFUSE TO PERFORM.'
THE DEPARTMENT ALSO POINTS OUT THE WORKLOAD OF ESCORT-INTERPRETER
WORK IS SEASONAL AND NOT SUSCEPTIBLE OF EXACT PLANNING; THAT MANY OF
THESE CONTRACTORS ARE FOR "STANDBY PURPOSES; " AND THAT SOME HAVE NEVER
ACTUALLY BEEN USED AND OTHERS ARE USED INFREQUENTLY. ADDITIONALLY, THE
ADMINISTRATIVE OFFICE SAYS THAT PAYMENTS UNDER THE CONTRACTS ARE MADE
AGAINST INDIVIDUAL VOUCHERS SUBMITTED BY THE CONTRACTOR; THAT NEITHER
INCOME NOR F.I.C.A. TAXES ARE WITHHELD; AND THAT NO OATH OF OFFICE IS
TAKEN.
IN THESE CIRCUMSTANCES MR. SAPIA-BOSCH IS TO BE CONSIDERED AS AN
INDEPENDENT CONTRACTOR NOT SUBJECT TO THE LIMITATIONS OF SECTION 212 OF
THE 1932 ACT, AS AMENDED.
THEREFORE, THE VOUCHER REPRESENTING THE RETIRED PAY OF MR.
SAPIA-BOSCH FOR NOVEMBER 1957, WHICH IS RETURNED HEREWITH, MAY BE PAID
IF OTHERWISE CORRECT.
B-134962, MAR. 31, 1958
TO THE SECRETARY OF THE NAVY:
FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 16, 1958, FROM THE
ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES),
REQUESTING A DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE
AMENDED TO AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS
OF MEMBERS OF THE UNIFORMED SERVICES UPON A PERMANENT CHANGE OF STATION,
IN THE CIRCUMSTANCES DESCRIBED.
THE REQUEST FOR DECISION WAS NOT ACCOMPANIED BY A COPY OF THE
PROPOSED CHANGE IN THE REGULATIONS AND IT IS UNDERSTOOD THAT NO DEFINITE
PROPOSAL HAS BEEN AGREED UPON BY THE ADMINISTRATIVE OFFICIALS HAVING
AUTHORITY TO PRESCRIBE REGULATIONS UNDER SECTION 303 OF THE CAREER
COMPENSATION ACT OF 1949, 37 U.S.C. 253. UNDER SUCH CIRCUMSTANCES AND
SINCE THE PROPOSED AMENDMENT IS DESCRIBED IN VAGUE AND INDEFINITE TERMS,
AN AUTHORITATIVE DECISION WOULD NOT BE APPROPRIATE AT THIS TIME. YOU
ARE ASSURED, HOWEVER, THAT WE WILL BE GLAD TO CONSIDER THE MATTER UPON
THE SUBMISSION OF SPECIFIC CHANGES PROPOSED TO BE MADE IN THE JOINT
TRAVEL REGULATIONS BY THE SECRETARIES CONCERNED.
B-135550, B-127532, MAR. 31, 1958
TO COATES LEAR, ESQUIRE:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 12, 1958, CONCERNING THE
ABOVE CARRIER. WE NOTE THAT WORLD AIRWAYS, INC., NOW PROPOSES TO
DISCONTINUE ITS AGREED PAYMENTS OF $500 PER MONTH TO BE APPLIED IN THE
LIQUIDATION OF OVERPAYMENTS OF TRANSPORTATION CHARGES FOR SERVICES
RENDERED TO THE MILITARY AGENCIES IN CONNECTION WITH COMMERCIAL AIR
MOVEMENTS (CAMS).
WE ARE INFORMED THAT THIS INSTALLMENT ARRANGEMENT FOR PARTIAL
LIQUIDATION OF SUCH INDEBTEDNESS HAS BEEN IN EFFECT SINCE SEPTEMBER 1,
1954, AT WHICH TIME THE INDEBTEDNESS OF WORLD AIRWAYS, INC., TO THE
UNITED STATES FOR OVERPAYMENTS IN TRANSPORTATION CHARGES AGGREGATED SOME
$42,000. ADDITIONAL OVERPAYMENTS HAVE BEEN FOUND IN THE COURSE OF OUR
AUDIT SINCE THAT TIME, SO THAT DESPITE THE REPAYMENT OF APPROXIMATELY
$21,000 BETWEEN SEPTEMBER 1954, AND FEBRUARY 1958, THE CURRENT
INDEBTEDNESS OF THE CARRIER TO THE UNITED STATES STANDS AT ALMOST
$32,000.
DURING THE PAST FOUR YEARS, A NUMBER OF SUPPLEMENTAL BILLS FOR
ADDITIONAL CHARGES FOR TRANSPORTATION SERVICES HAVE BEEN PRESENTED BY
WORLD AIRWAYS, INC., AND SETTLED HERE PROMPTLY CONSISTENT WITH THE
CIRCUMSTANCES PREVAILING, WITHOUT SETOFF FOR LIQUIDATION OF EXISTING
OVERPAYMENTS. SIX SUCH CLAIMS FOR MORE THAN $1,600 REPORTEDLY ARE NOW
PENDING FOR SETTLEMENT IN OUR TRANSPORTATION DIVISION.
A REVIEW OF THIS RECORD INDICATES THAT WORLD AIRWAYS, INC., HAS BEEN
ACCORDED CONSIDERATE TREATMENT IN THE ADJUSTMENT OF ITS OBLIGATION TO
THE UNITED STATES FOR OVERPAYMENTS WHICH IT IS OUR DUTY TO RECOVER
PURSUANT TO THE PROVISIONS OF SECTION 322 OF THE TRANSPORTATION ACT OF
1940, 54 STAT. 955, 49 U.S.C. 66, DIRECTING THE PAYMENT OF BILLS FOR
TRANSPORTATION CHARGES UPON PRESENTATION PRIOR TO AUDIT OR SETTLEMENT BY
THE GENERAL ACCOUNTING OFFICE, BUT RESERVING TO THE UNITED STATES THE
RIGHT TO RECOVER ANY OVERPAYMENTS SO MADE FROM ANY AMOUNTS SUBSEQUENTLY
FOUND TO BE DUE SUCH CARRIER.
WITH RESPECT TO THE CASE OF ASSOCIATED AIR TRANSPORT, INC. V. UNITED
STATES, NO. 6817-M, NOW PENDING IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION, IT IS TRUE THAT YOUR
CLIENT, WORLD AIRWAYS, INC., HAS BEEN PERMITTED TO INTERVENE THEREIN,
AND TO FILE A SEPARATE COMPLAINT FOR THE ADDITIONAL CHARGES NOW CLAIMED
DUE FOR CHARTER AIR SERVICES PERFORMED BY THE CARRIER FOR THE MILITARY
DEPARTMENTS AND AGENCIES. IT HAS BEEN INFORMALLY AGREED
BETWEEN COUNSEL IN THE SAID CAUSE THAT NO ACTION WILL BE TAKEN AS TO
THE CLAIMS OF THE SEVERAL INTERVENERS (INCLUDING THE CLAIMS OF YOUR
CLIENT) UNTIL SUCH TIME AS THE CLAIMS BY AND AGAINST ASSOCIATED AIR
TRANSPORT, INC., ARE ADJUDICATED. IT REASONABLY MAY BE ASSUMED THAT IT
WILL BE QUITE A WHILE BEFORE THE MERITS OF SUCH CLAIMS ARE DETERMINED.
WE ARE CONFIDENT THAT THE RESTRAINING ORDER ISSUED DECEMBER 11, 1957,
AS SUBSEQUENTLY AMENDED ON DECEMBER 19, 1957, EVENTUALLY WILL BE
ANNULLED, AND APPROPRIATE STEPS HAVE BEEN TAKEN TO SECURE A TEMPORARY
STAY OF THAT ORDER PENDING THE HEARING OF AN APPEAL ON ITS MERITS. WE
EXPECT A DETERMINATION OF THIS ISSUE WITHIN THE NEAR FUTURE, BUT FOR THE
TIME BEING WE DO NOT INTEND TO DISTURB THE PRESENT SITUATION WITH
RESPECT TO THE RECOVERY OF OVERPAYMENTS FROM THE CARRIERS COVERED BY THE
SAID ORDER.
CONTRARY TO YOUR UNDERSTANDING, WE HAVE MADE NO "ARRANGEMENT" WITH
THE INDEPENDENT AIRLINES ASSOCIATION, OR ANY OTHER REPRESENTATIVE OF ANY
OF THE MEMBER CARRIERS, TO THE EFFECT THAT NONE OF THE CARRIERS INVOLVED
IN THE ASSOCIATED AIR TRANSPORT CASE WILL MAKE FURTHER PAYMENTS TO OUR
OFFICE SO LONG AS THE INJUNCTION ORDER WAS IN FORCE. IT IS NOT OUR
PURPOSE TO ENCOURAGE THE CARRIERS TO DISCONTINUE MAKING REFUNDS TO OUR
OFFICE IN LIQUIDATION OF OVERPAYMENTS ON PRIOR BILLS, IN ACCORDANCE WITH
PRIOR ARRANGEMENTS MADE IN GOOD FAITH. WE UNDERSTAND THAT COUNSEL FOR
THE CARRIERS WHO WERE INSTRUMENTAL IN SECURING THE RESTRAINING ORDER
HAVE SUGGESTED TO THEIR CLIENTS HAVING EXISTING AGREEMENTS WITH THE
GENERAL ACCOUNTING OFFICE FOR MONTHLY PAYMENTS THAT THEY SHOULD CONTINUE
TO MAKE SUCH PAYMENTS, IF AT ALL POSSIBLE. THIS WAS OUR POSITION IN A
RECENT DISCUSSION WITH COUNSEL FOR THE INDEPENDENT AIRLINES ASSOCIATION,
WHO WAS INFORMED THAT, IN THE EVENT ANY OF THE SAID CARRIERS FAILED TO
LIVE UP TO THEIR COMMITMENTS TO MAKE REGULAR PARTIAL REFUNDS, WE WOULD
NOT AT THIS TIME ATTEMPT COLLECTION BY SETOFF. HE WAS FURTHER ADVISED
THAT WE HAD RECOMMENDED TO THE ATTORNEY GENERAL THAT PROCEEDINGS FOR
REVIEW OF THE SAID ORDER BE PROSECUTED AS PROMPTLY AS CIRCUMSTANCES
WOULD PERMIT.
IN VIEW OF WHAT HAS BEEN SAID ABOVE AS TO THE RESTRAINING ORDER AND
OUR PAST RELATIONSHIP WITH WORLD AIRWAYS, INC., WE ASSUME THAT YOUR
CLIENT MIGHT WISH TO RECONSIDER ITS POSITION, WITH THE VIEW TO A
CONTINUANCE OF THE REMITTANCE OF $500 MONTHLY.
B-135551, MAR. 31, 1958
TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1958, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
THE ARLINGTON SALES AGENCY, INC., ALLEGES IT MADE IN ITS BID DATED MARCH
5, 1958.
THE GOVERNMENT PRINTING OFFICE UNDER INQUIRY NO. 46550 REQUESTED BIDS
FOR FURNISHING 3,000 ROLLS (PLUS OR MINUS 10 PERCENT) OF KRAFT PAPER
TAPE, GUMMED INSIDE, WITH GOOD GRADE OF GLUE, IN ROLLS 3 INCHES WIDE BY
375 FEET LONG, WITH OR WITHOUT CORES. IN RESPONSE THERETO THE ARLINGTON
SALES AGENCY, INC., SUBMITTED A BID OF $0.203 PER ROLL, DATED MARCH 5,
1958. TEN OTHER BIDS RECEIVED RANGED IN PRICE FROM $0.578 TO $0.64 PER
ROLL, RESPECTIVELY.
YOU STATE THAT WHEN THE BIDS WERE EXAMINED BY THE CONTRACTING OFFICER
HE NOTED THAT THE BID OF $0.203 PER ROLL FROM THIS BIDDER WAS OBVIOUSLY
IN ERROR BECAUSE HE HAD PURCHASED 3,000 ROLLS FROM THIS BIDDER IN
SEPTEMBER 1957 AT A COST OF $0.57 PER ROLL; ALSO HE NOTICED THAT THE
BID WAS OUT OF LINE WITH THE OTHER BIDS RECEIVED.
YOU FURTHER STATE THAT ON MARCH 10, 1958, A LETTER WAS SENT TO THIS
BIDDER REQUESTING A REVIEW AND CONFIRMATION OF THE PRICE QUOTED FOR THE
3,000 ROLLS OF KRAFT PAPER TAPE COVERED BY INQUIRY NO. 46550. BY LETTER
OF MARCH 12, 1958, THE BIDDER STATED THAT IT QUOTED A PRICE PER INCH
RATHER THAN A PRICE PER ROLL AND THAT ITS QUOTATION SHOULD HAVE READ
$0.609 PER ROLL BUT THAT IT FORGOT TO COMPLETE ITS CALCULATION.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
ROOM FOR DOUBT THAT THE BIDDER MADE AN ERROR IN ITS BID. IN VIEW OF THE
FACT THAT THE ERROR IN BID WAS NOTED BY THE CONTRACTING OFFICER SHORTLY
AFTER THE BIDS WERE OPENED AND BECAUSE THE BIDDER HAS CONFIRMED AND
EXPLAINED THE ERROR TO THE SATISFACTION OF THE CONTRACTING OFFICER THE
BID OF THE ARLINGTON SALES AGENCY, INC., MAY BE DISREGARDED.
THE PAPERS, WITH THE EXCEPTION OF THE LETTER FROM THE BIDDER DATED
MARCH 12, 1958, ARE RETURNED AS REQUESTED.
B-135584, MAR. 31, 1958
TO MR. WM. H. TULLER:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1958, REQUESTING A
DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR
ALLEGED BY WARDLE BROTHERS EXCAVATING COMPANY TO HAVE BEEN MADE IN ITS
BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 100C-326.
THE INVITATION REQUESTED BIDS TO BE OPENED ON MARCH 11, 1958, FOR
FURNISHING LABOR AND MATERIALS, AND PERFORMING NECESSARY WORK IN
CONNECTION WITH THE CONSTRUCTION OF DRAINS IN UNIT B OF THE NORTH SIDE
PUMPING DIVISION, MINIDOKA PROJECT, IDAHO. THE WORK TO BE PERFORMED WAS
SET FORTH UNDER 22 ITEMS FOR BIDDING AND PAYMENT PURPOSES. BIDDERS WERE
REQUIRED TO QUOTE UNIT PRICES BASED UPON THE ESTIMATED QUANTITIES SET
FORTH FOR THE VARIOUS ITEMS. THE AWARD IS TO BE MADE TO THE LOW
AGGREGATE BIDDER ON ALL ITEMS. ITEM 2 COVERS AN ESTIMATED 95,000 CUBIC
YARDS OF COMMON EXCAVATION.
IN RESPONSE TO THE INVITATION WARDLE BROTHERS EXCAVATING COMPANY
SUBMITTED A BID DATED MARCH 8, 1958, OFFERING TO PERFORM THE WORK FOR
THE TOTAL AMOUNT OF $52,129.50. THE PRICE QUOTED FOR ITEM 2 WAS $0.26
PER CUBIC YARD. NINE OTHER BIDS WERE RECEIVED. THE FIVE NEXT LOWEST
BIDS WERE IN THE AMOUNTS OF $61,615, $62,493.10, $65,007.20, $66,150,
AND $67,631. THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK WAS
$77,303.
IT IS REPORTED THAT ON MARCH 12 WARDLE BROTHERS ADVISED THE
CONSTRUCTION ENGINEER, BY TELEPHONE, THAT AN ERROR HAD BEEN MADE IN ITS
BID. THE ALLEGATION OF ERROR WAS CONFIRMED BY LETTER OF THE SAME DATE
AND THE BIDDER SUBMITTED IN SUPPORT THEREOF CERTAIN WORK SHEETS. IT IS
ALLEGED THAT THE PRICE FOR ITEM 2 SHOULD HAVE BEEN $0.32 PER CUBIC YARD
RATHER THAN $0.26 AS SHOWN IN THE BID. IT IS STATED THAT THE ERROR
AROSE FROM THE FACT THAT IT WAS BELIEVED THAT THE TWO PERSONS WHO HAD
PREPARED THE BID HAD EACH ADDED IN THE ESTIMATE $0.06 PER CUBIC YARD FOR
DRAGLINE EXCAVATION ON ITEM 2 AND THAT, THEREFORE, WHEN THE FINAL
COMPUTATION WAS PREPARED THERE WAS DEDUCTED FROM THE FINAL FIGURE $0.06
PER CUBIC YARD TO ELIMINATE THE DUPLICATE CHARGE. HOWEVER, IT WAS
DISCOVERED THAT ONE OF THE PERSONS HAD NOT INCLUDED THE $0.06 SINCE HE
REALIZED THAT THE OTHER HAD ALREADY INCLUDED THE COST. THEREFORE, THE
PRICE QUOTED FOR ITEM 2 WAS ACTUALLY $0.06 PER CUBIC YARD LESS THAN
INTENDED. THE BIDDER REQUESTED THAT HIS BID ON ITEM 2 BE INCREASED TO
COMPENSATE FOR THE ERROR OR THAT THE BID BE DISREGARDED.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD AND CONSIDERING THE
DIFFERENCE BETWEEN THE BID OF WARDLE BROTHERS AND THE OTHER BIDS, THERE
APPEARS TO BE LITTLE, IF ANY, DOUBT THAT AN ERROR WAS MADE IN THE BID.
HOWEVER, THE CIRCUMSTANCES ARE NOT SUCH AS WOULD WARRANT A DEPARTURE
FROM THE GENERAL RULE THAT BIDS MAY NOT BE CHANGED AFTER THE OPENING OF
BIDS. SEE 17 COMP. GEN. 575. ACCORDINGLY, THE BID OF WARDLE BROTHERS
EXCAVATING COMPANY SHOULD BE DISREGARDED.
B-132005, MAR. 28, 1958
TO COLONEL CLARENCE M. OLSEN, RETIRED:
YOUR LETTER OF FEBRUARY 18, 1958, SUBMITS FOR RECONSIDERATION YOUR
CLAIM FOR ADDITIONAL RETIRED PAY REPRESENTING THE DIFFERENCE BETWEEN
RETIRED PAY COMPUTED ON THE BASIS OF THE BASIC PAY OF A COLONEL AND THE
AMOUNT OF RETIRED PAY WHICH YOU STATE HAS BEEN RECEIVED BY YOU COMPUTED
ON THE BASIS OF BASIC PAY OF A LIEUTENANT COLONEL FOR THE PERIOD FROM
NOVEMBER 1, 1950, TO DATE. YOUR CLAIM, WHICH WAS BASED ON THE HOLDING
IN THE CASE OF LOUIS STANDISH TRACY V. UNITED STATES, 136 C.CLS. 211,
WAS FIRST SUBMITTED HERE ON FEBRUARY 12, 1957, AND WAS DISALLOWED BY OUR
OFFICE SETTLEMENT DATED MARCH 11, 1957, WHICH DISALLOWANCE WAS SUSTAINED
ON REVIEW HERE ON JULY 25, 1957.
YOU WERE ADVISED AT THAT TIME OF THE BASIS FOR OUR VIEW THAT THE
TRACY CASE FURNISHED NO SUFFICIENT LEGAL BASIS TO EXTEND THE RULE
THEREOF TO OTHER OFFICERS OF THE ARMED FORCES. YOU NOW STATE IN EFFECT
THAT DECISIONS OF THE COURT OF CLAIMS IN TWO SIMILAR CASES--- CLARENCE
TIMOTHY LOWELL V. UNITED STATES, C.CLS. NO. 261-56, CHARLES C. BUDD V.
UNITED STATES, C.CLS. NO. 467-56, BOTH DECIDED JANUARY 15, 1958 PROVIDES
SUFFICIENT PRECEDENT FOR ADMINISTRATIVE ALLOWANCE OF SIMILAR CLAIMS,
WITHOUT THE NECESSITY FOR INDIVIDUAL RESORT TO THE COURT OF CLAIMS IN
IDENTICAL CASES.
YOUR CLAIM HAS BEEN RETURNED TO THE CLAIMS DIVISION OF THIS OFFICE
FOR FURTHER CONSIDERATION IN ACCORDANCE WITH THE RULE ESTABLISHED BY THE
TRACY, LOWELL, AND BUDD CASES, WITH INSTRUCTIONS TO ALLOW THE CLAIM, IF
OTHERWISE PROPER, ON THE BASIS THEREOF.
B-134986, MAR. 28, 1958
TO MAJOR WILLIAM F. SAMPLE:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 25 AND OCTOBER 9,
1957, CONCERNING YOUR CLAIM FOR A RETROACTIVE ADJUSTMENT OF RETIRED PAY
FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, INCIDENT TO YOUR
SERVICE AS A CAPTAIN, UNITED STATES MARINE CORPS RESERVE. ALSO, THERE
HAS BEEN RECEIVED YOUR CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD
OCTOBER 1, 1949, TO MARCH 1, 1950, AND FEBRUARY 1 TO AUGUST 4, 1955,
SUBMITTED ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, B-123382.
BY SETTLEMENT DATED MARCH 4, 1957, OUR CLAIMS DIVISION DENIED YOUR
CLAIM FOR RETROACTIVE RETIRED PAY FOR THE PERIOD JULY 29, 1946, TO
OCTOBER 1, 1949, FOR THE REASON THAT, SINCE THE ANNUAL RATE OF YOUR
CIVILIAN COMPENSATION (AS AN EMPLOYEE WITH THE MARINE CORPS EXCHANGE)
EXCEEDED $3,000 PER YEAR, YOU WERE SUBJECT TO THE DUAL COMPENSATION
PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C.
59A, AND HENCE PRECLUDED FROM RECEIVING SUCH RETIRED PAY.
THE RECORD DISCLOSES THAT FOLLOWING ACTIVE AND INACTIVE DUTY AS AN
ENLISTED MAN IN THE UNITED STATES MARINE CORPS AND THE UNITED STATES
MARINE CORPS RESERVE, YOU WERE APPOINTED A FIRST LIEUTENANT IN THE
UNITED STATES MARINE CORPS RESERVE ON NOVEMBER 14, 1942, AND ASSIGNED TO
ACTIVE DUTY THE SAME DAY. YOU WERE RELEASED FROM ACTIVE DUTY ON JULY
29, 1946. THE RECORD ALSO DISCLOSES THAT ON SEPTEMBER 20, 1949, THE
PRESIDENT OF THE UNITED STATES APPROVED THE FINDINGS OF THE NAVAL
RETIRING REVIEW BOARD--- WHICH CONVENED AT WASHINGTON, D.C., ON MAY 9,
1949--- THAT YOU WERE PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE, SUCH
INCAPACITY BEING THE RESULT OF AN INCIDENT OF THE SERVICE INCURRED IN
LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON EXTENDED ACTIVE
NAVAL SERVICE IN EXCESS OF 30 DAYS AND WHILE SERVING UNDER A TEMPORARY
APPOINTMENT IN THE RANK OF CAPTAIN. ON THAT BASIS YOU WERE TRANSFERRED
TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY EFFECTIVE OCTOBER
1, 1949, WITH THE RANK OF CAPTAIN, PURSUANT TO THE PROVISIONS OF SECTION
1453, REVISED STATUTES, 34 U.S.C. 417, AND SECTION 4 OF THE ACT OF
AUGUST 27, 1940, 54 STAT. 864, 34 U.S.C. (1946 EDITION) 855C-1.
SECTION 212 OF THE ECONOMY ACT OF 1932 PROVIDED, WITH CERTAIN
EXCEPTIONS NOT HERE MATERIAL, THAT AFTER JUNE 30, 1932, NO PERSON
HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION SHALL BE ENTITLED TO
RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AT
A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE
OF COMPENSATION FROM HIS CIVILIAN OFFICE OR POSITION MAKES THE TOTAL
RATE FROM BOTH SOURCES MORE THAN $3,000. THE $3,000 LIMITATION FIXED IN
THAT ACT WAS INCREASED TO $10,000 BY THE ACT OF AUGUST 4, 1955, 69 STAT.
498, 5 U.S.C. (1952 ED., SUPP. III) 59A, EFFECTIVE AUGUST 4, 1955.
CONCERNING YOUR CLAIM FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1,
1949, THE MARINE CORPS EXCHANGE, PARRIS ISLAND, SOUTH CAROLINA, REPORTED
TO OUR OFFICE THAT DURING THE PERIOD MAY 1, 1946, THROUGH SEPTEMBER 30,
1948, YOU HELD A CIVILIAN POSITION WITH THAT EXCHANGE AND RECEIVED
COMPENSATION AT AN ANNUAL RATE OF MORE THAN $3,000. WHILE THE EXCHANGE
REPORTED THAT THE RECORDS FOR THE BALANCE OF 1948 AND 1949 WERE NOT
AVAILABLE, PRESUMABLY YOU CONTINUED TO RECEIVE COMPENSATION AT A RATE IN
EXCESS OF $3,000 THROUGH SEPTEMBER 30, 1949, SINCE THE ADMINISTRATIVE
OFFICE (RETIRED PAY SECTION, ALLOTMENT BRANCH, UNITED STATES MARINE
CORPS) IN REPORTING ON YOUR CLAIM FOR THE PERIOD COMMENCING OCTOBER 1,
1949, STATED THAT YOUR CIVILIAN SALARY ON THAT DATE WAS IN EXCESS OF
$3,000 A YEAR.
THE UNITED STATES COURT OF CLAIMS HELD IN THE CASE OF TANNER V.
UNITED STATES, 129 C.CLS. 792, THAT THE PROVISIONS OF SECTION 1 (B) OF
THE ACT OF JULY 1, 1947, 61 STAT. 238, RELATING TO "ANY MEMBER OF THE
OFFICERS' RESERVE CORPS," EXEMPTED THE PLAINTIFF FROM THE DUAL
COMPENSATION RESTRICTIONS OF THE 1932 ECONOMY ACT. IN OUR DECISION OF
MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, WE SAID THAT WE WOULD
FOLLOW THE COURT'S DECISION IN THE TANNER CASE IN THOSE CASES WHERE THE
CLAIMANT, BEING OTHERWISE ENTITLED, HAS BEEN, OR MAY BE, GRANTED RETIRED
PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND HAS BEEN DURING THE
PERIOD COVERED BY THE PAYMENT A DE JURE MEMBER OF A RESERVE COMPONENT OF
THE ARMED FORCES, PROVIDED THAT FOR ANY PERIOD PRIOR TO JANUARY 1, 1953,
PAYMENT WOULD BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER
OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD
INVOLVED, SINCE MEMBERS OF OTHER RESERVE COMPONENTS WERE NOT BROUGHT
WITHIN THE PROVISIONS OF THE 1947 ACT UNTIL THAT DATE. SINCE YOU WERE
RETIRED UNDER PROVISIONS OF LAW OTHER THAN THOSE OF TITLE III, PUBLIC
LAW 810, ACT OF JUNE 29, 1948, WHICH WERE INVOLVED IN THE TANNER CASE,
YOUR CLAIM FOR THE PERIOD JULY 29, 1946, TO OCTOBER 1, 1949, WAS
DISALLOWED IN ACCORDANCE WITH OUR DECISION OF MARCH 2, 1956, 35 COMP
GEN. 497.
YOU NOW REQUEST RECONSIDERATION OF YOUR CLAIM FOR THE PERIOD JULY 29,
1946, TO OCTOBER 1, 1949, ON THE BASIS OF OUR DECISION OF JUNE 11, 1957,
B-123382, 36 COMP. GEN. 808. IN THAT DECISION WE MERELY EXTENDED THE
RULE BASED ON THE TANNER DECISION TO THOSE INDIVIDUALS WHOSE RETIRED
STATUS AS MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD
DURING THE PERIOD FROM JULY 1, 1947, TO DECEMBER 30, 1952, INCLUSIVE, OR
WHOSE RETIRED STATUS AS MEMBERS OF ANY OF THE RESERVE COMPONENTS
COMMENCING JANUARY 1, 1953, ENTITLED THEM TO RECEIVE RETIREMENT PAY
UNDER OTHER PROVISIONS OF LAW. MEMBERS OF THE NAVAL RESERVE AND THE
MARINE CORPS RESERVE--- EXCEPT AS TO PAY AND ALLOWANCES RECEIVED UNDER
THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938--- WERE NOT RELIEVED
FROM THE RESTRICTIVE PROVISIONS OF THE ECONOMY ACT OF 1932 PRIOR TO
THE AMENDMENT MADE TO SECTION 1 (B), ACT OF JULY 1, 1947, 61 STAT. 239,
BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT.
506, WHICH BECAME EFFECTIVE JANUARY 1, 1953. SEE B-134258, DECEMBER 30,
1957. SINCE YOU WERE RETIRED AS A MEMBER OF THE UNITED STATES MARINE
CORPS RESERVE UNDER THE PROVISIONS OF THE ABOVE ACT OF AUGUST 27, 1940,
34 U.S.C. 855 (C/-1, YOU WERE SUBJECT TO THE DUAL COMPENSATION
PROVISIONS OF SECTION 212 OF THE ECONOMY ACT FOR THE PERIOD OF YOUR
CLAIM PRIOR TO JANUARY 1, 1953. HENCE, FOR THE PERIOD JULY 29, 1946 TO
SEPTEMBER 30, 1949, AND FROM OCTOBER 1, 1949, TO FEBRUARY 28, 1950, WHEN
YOUR CIVILIAN SALARY WAS AT A RATE IN EXCESS OF $3,000 PER ANNUM, YOU
WERE NOT ENTITLED TO RETIREMENT PAY.
CONCERNING YOUR CLAIM FOR THE PERIOD FEBRUARY 1 TO AUGUST 4, 1955
(WHICH PERIOD IS SUBSEQUENT TO JANUARY 1, 1953), THE RECORD SHOWS, AND
YOU SO ADMIT, THAT THE ADMINISTRATIVE OFFICE PAID THAT PART OF YOUR
CLAIM ON THE BASIS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808.
FOR THE REASONS STATED THERE IS NO FURTHER AMOUNT DUE YOU FOR
RETROACTIVE RETIRED PAY AND THE SETTLEMENT OF MARCH 4, 1957, IS
SUSTAINED.
B-135297, MAR. 28, 1958
TO MR. LOUIS E. STARR:
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20, 1958, CONCERNING
THE GOVERNMENT'S CLAIM AGAINST YOUR CLIENT, EMIL E. LONG IN THE AMOUNT
OF $242, REPRESENTING DAMAGES TO A GOVERNMENT-OWNED VEHICLE RESULTING
FROM AN ACCIDENT WHICH OCCURRED WHILE HE WAS OPERATING THE VEHICLE ON
SEPTEMBER 10, 1955, DURING HIS SERVICE AS A MEMBER OF THE UNITED STATES
AIR FORCE.
THE INDEBTEDNESS WAS CERTIFIED TO THIS OFFICE BY LETTER OF MAY 9,
1957, FROM THE OFFICE OF THE CHIEF, COLLECTION BRANCH, SETTLEMENTS
DIVISION, AIR FORCE FINANCE CENTER, AS HAVING BEEN BASED UPON A
DETERMINATION BY THE SECRETARY OF THE AIR FORCE THAT MR. LONG WAS
INDEBTED TO THE UNITED STATES IN THE AMOUNT STATED AS A RESULT OF A
REPORT OF SURVEY DATED OCTOBER 5, 1955.
THE ACT OF OCTOBER 11, 1951, 65 STAT. 387, REPEALED BY SECTION 53B OF
THE ACT OF AUGUST 10, 1956, 70A STAT. 651, 682 (NOW CODIFIED IN 10
U.S.C. 9835), PROVIDED:
"THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR
FORCE, DESIGNATED OFFICERS MAY TAKE ACTION UPON REPORTS OF SURVEY AND
ALL OTHER VOUCHERS PERTAINING TO THE LOSS, DAMAGE, SPOILAGE,
UNSERVICEABILITY, UNSUITABILITY, OR DESTRUCTION OF PROPERTY OF THE
UNITED STATES UNDER THE CONTROL OF THE DEPARTMENT OF THE AIR FORCE, AND
THE ACTION TAKEN BY ANY SUCH OFFICER ON THOSE SURVEYS OR VOUCHERS SHALL
BE FINAL: PROVIDED, THAT IN ANY SUCH CASE WHERE A PERSON OR CONCERN IS
HELD PECUNIARILY LIABLE, THE FINDINGS SHALL NOT BE FINAL UNTIL APPROVED
BY THE SECRETARY OF THE AIR FORCE OR BY SUCH OFFICERS AS THE SECRETARY
MAY DESIGNATE.'
THE REPORT OF SURVEY OF OCTOBER 5, 1955, HELD MR. LONG PECUNIARILY
LIABLE FOR THE DAMAGE SUSTAINED TO THE GOVERNMENT-OWNED VEHICLE ON THE
GROUND THAT HIS NEGLIGENCE IN DRIVING THE VEHICLE WAS THE PROXIMATE
CAUSE OF THE ACCIDENT. SUCH ACTION WAS APPROVED BY AUTHORITY OF THE
SECRETARY OF THE AIR FORCE ON JUNE 4, 1956. SUCH FINDINGS OF NEGLIGENCE
AND LIABILITY FOR THE RESULTING DAMAGE ARE NOT SUBJECT TO REVIEW BY THIS
OFFICE.
THE INDEBTEDNESS WAS CERTIFIED TO US UNDER AUTHORITY OF SECTIONS 1
AND 2 OF THE ACT OF MARCH 29, 1894, 28 STAT. 47 AS AMENDED, 31 U.S.C.
89, 90. UNDER THE PROVISIONS OF THAT ACT, WE MAY NOT QUESTION THE
PROPRIETY OF ANY CHARGE AGAINST ANY OFFICER OR OTHER AGENT INTRUSTED
WITH PUBLIC PROPERTY ARISING FROM LOSS ACCRUING BY HIS FAULT, WHICH IS
REPORTED HERE FOR DEBITING AGAINST HIS ACCOUNT.
CONCERNING YOUR STATEMENT THAT THE STATUTE AND DECISIONS IN EFFECT
DURING THE PERIOD HERE INVOLVED PROVIDED THAT BEFORE A MAN IS CHARGEABLE
WITH DAMAGE TO PROPERTY, THERE MUST BE A SHOWING OF GROSS NEGLIGENCE, IT
IS NOT KNOWN TO WHAT DECISIONS YOU REFER. THE STATUTE IN EFFECT AT THAT
TIME WAS SECTION 1303 OF THE REVISED STATUTES, 10 U.S.C. 871 (1952 ED.),
WHICH PROVIDED FOR THE PAYMENT OF DAMAGES "OCCASIONED BY ABUSE OR
NEGLIGENCE OF SAID OFFICER OR SOLDIER.' NO SHOWING OF GROSS NEGLIGENCE
IS REQUIRED UNDER SUCH PROVISIONS OF LAW. WHILE IT APPEARS THAT CERTAIN
ADMINISTRATIVE REGULATIONS THEN IN EFFECT PURPORTED TO LIMIT LIABILITY
FOR DAMAGES TO GOVERNMENT AUTOMOTIVE VEHICLES TO SITUATIONS INVOLVING
WILLFUL MISCONDUCT OR OTHER ACTS AMOUNTING TO CONSCIOUS RECKLESSNESS OR
INDIFFERENCE TO CONSEQUENCES (GROSS NEGLIGENCE), SUCH REGULATION COULD
NOT PROPERLY BE GIVEN AN EFFECT INCONSISTENT WITH THE CITED STATUTORY
PROVISIONS. THIS LATER WAS RECOGNIZED AND THE REGULATIONS WERE AMENDED
TO REFLECT THE STATUTORY DEGREE OF NEGLIGENCE. HOWEVER, SINCE MR.
LONG'S LIABILITY WAS FIXED BY LAW RATHER THAN BY REGULATIONS, ANY
REGULATIONS--- THEN IN FORCE OR AS AMENDED--- PURPORTING TO PRESCRIBE
THE DEGREE OF NEGLIGENCE NECESSARY TO SUSTAIN A CONCLUSION OF LIABILITY,
ARE NOT CONTROLLING IN DETERMINING HIS LIABILITY FOR THE DAMAGES
INVOLVED.
WHILE WE MAY NOT REVIEW THE FINDINGS OF THE SURVEY APPROVED BY PROPER
OFFICERS OF THE AIR FORCE, THE REGULATIONS PROVIDE FOR A RIGHT OF APPEAL
OF ALL FINDINGS OF REPORTS OF SURVEY OF THIS NATURE TO THE SECRETARY OF
THE AIR FORCE. IN THE ABSENCE OF SUCH AN APPEAL, AND A REVIEW PURSUANT
THERETO, WE HAVE NO ALTERNATIVE BUT TO REQUEST PAYMENT OF THE
INDEBTEDNESS WHICH HAS BEEN CERTIFIED HERE FOR COLLECTION. THE
REMITTANCE SHOULD BE IN THE FORM OF A BANK DRAFT, CHECK OR POSTAL MONEY
ORDER MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO
THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST
OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO.
Z-1-834-086.
B-135393, MAR. 28, 1958
TO HERRICK L. JOHNSTON, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17 AND YOUR
TELEGRAM OF FEBRUARY 28, 1958, ACKNOWLEDGED MARCH 5, PROTESTING THE
ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING TO THE CAMBRIDGE
CORPORATION, LOWELL, MASSACHUSETTS, A CONTRACT FOR FURNISHING A QUANTITY
OF TYPE MD-1 SEMI-TRAILER TANKS TO BE USED FOR THE TRANSPORTATION AND
STORAGE OF THE LIQUID OXYGEN OR NITROGEN, WHICH WAS AWARDED UNDER
INVITATION FOR BIDS NO. IFB-33-600-58-124, ISSUED DECEMBER 23, 1957, BY
THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO. YOU QUESTION THE PROPRIETY
OF THE AWARD FOR THE REASON THAT THE CAMBRIDGE CORPORATION HAD
ORIGINALLY QUALIFIED ITS BID BY THE INCLUSION OF A CLAUSE TO THE EFFECT
THAT ITS QUOTATION ON ITEM 1 WAS TO BE ADJUSTED UPWARD OR DOWNWARD BY
NEGOTIATION OF THE COST OF THE PREPRODUCTION TESTING OF THE FIRST
ARTICLE (ITEM 1) AND YOU CONTEND THAT SINCE THE INVITATION REQUIRED
BIDDERS TO SUBMIT FIRM PRICES, THE CORPORATION SHOULD NOT HAVE BEEN
PERMITTED, AFTER THE BID OPENING, TO WITHDRAW SUCH QUALIFICATION FROM
ITS BID, WHICH YOU ALLEGE WAS NONRESPONSIVE TO THE INVITATION.
IN RESPONSE TO A REQUEST BY THIS OFFICE, THE DEPARTMENT OF THE AIR
FORCE HAS FURNISHED A REPORT SETTING OUT THE FACTS AND ITS VIEWS IN THE
MATTER. THE REPORT SHOWS THAT TEN BIDS WERE RECEIVED AND THAT THE THREE
LOWEST BIDS RECEIVED WERE AS FOLLOWS:
TABLE
A. CAMBRIDGE CORPORATION $404,194.87
B. BEECHCRAFT RESEARCH AND
DEVELOPMENT, INC. 448.813.72
C. HERRICK L. JOHNSTON, INC. 478,041.60*
* AFTER 1/2 OF 1 PERCENT CASH DISCOUNT HAD BEEN DEDUCTED.
THE RECORD INDICATES THAT THE BID OF THE SECOND LOW BIDDER,
BEECHCRAFT RESEARCH AND DEVELOPMENT, INC., WAS REJECTED AS BEING
NONRESPONSIVE BECAUSE IT WAS CONDITIONED UPON RENT-FREE USE OF
GOVERNMENT-OWNED FACILITIES AND FURTHER QUALIFIED BY THE STATEMENT THAT
IT INCLUDED FEDERAL EXCISE TAX ONLY ON THE RUNNING GEAR ASSEMBLY OF THE
TRAILER. ON FEBRUARY 10, 1958, CONTRACT NO. AF 33/600/-36585,
CONTAINING A FIRM PRICE OF $406,226, WAS AWARDED TO THE CAMBRIDGE
CORPORATION.
WITH RESPECT TO THE BID OF THE CAMBRIDGE CORPORATION, THE FOLLOWING
STATEMENTS ARE MADE IN THE ADMINISTRATIVE REPORT:
"THE BID SUBMITTED BY CAMBRIDGE CORPORATION FOR THE FIRST ARTICLE,
WHICH INCLUDED FIRST ARTICLE TESTING BY THE CONTRACTOR, WAS STATED AS
$54,846 FOLLOWED BY THE HANDWRITTEN NOTATION:
"PLUS ABERDEEN QUOTATION PER ORDBG-DP-TU 15,680.00 TO BE ADJUSTED UP
OR DOWN BASED ON FINAL INVOICE FROM ABERDEEN. SEE LETTER ATTACHED.'
THE ATTACHED LETTER REFERRED TO, A COPY OF WHICH IS INCLOSED AS TAB
D, WAS A LETTER TO CAMBRIDGE CORPORATION FROM THE ABERDEEN PROVING
GROUND STATING THAT THE ESTIMATED COST OF PERFORMING THE REQUIRED ROAD
ENDURANCE TEST WAS $15,680 BUT THAT THIS FIGURE SHOULD NOT BE CONSTRUED
AS A FIRM BID FOR PERFORMING THE WORK FOR CAMBRIDGE CORPORATION. AT THE
BID OPENING, THE CONTRACTING OFFICER REMARKED THAT THE HANDWRITTEN
NOTATION APPEARING ON CAMBRIDGE CORPORATION'S BID COULD RESULT IN THE
BID BEING CONSIDERED NONRESPONSIVE SINCE THE PRICE QUOTED FOR THE FIRST
ARTICLE APPEARED TO BE OTHER THAN A FIXED PRICE. THE REPRESENTATIVE OF
CAMBRIDGE CORPORATION AT THE BID OPENING IMMEDIATELY CHALLENGED THIS
INTERPRETATION BY THE CONTRACTING OFFICER; AND SEVERAL HOURS AFTER THE
BID OPENING, THE CONTRACTING OFFICER RECEIVED A LETTER FROM CAMBRIDGE
CORPORATION, DATED 9 JANUARY 1958, A COPY OF WHICH IS INCLOSED AS TAB 3,
STATING THAT CAMBRIDGE CORPORATION'S BID FOR THE FIRST ARTICLE WAS
INTENDED TO BE A FIRM FIXED PRICE OF $70,526, THE TOTAL OF $54,846 PLUS
THE $15,680 QUOTED BY ABERDEEN, AND THAT THE COMMENTS ADJACENT TO THE
QUOTATION FOR THE ABERDEEN PROVING GROUND TEST WERE MADE ONLY TO POINT
OUT THAT THE ABERDEEN PROVING GROUND WOULD QUOTE ONLY A
COST-REIMBURSEMENT BASIS WHEREAS CAMBRIDGE CORPORATION WAS ASKED TO BID
A FIXED PRICE.
"PRIOR TO MAKING AN AWARD, THE PROCURING ACTIVITY FULLY CONSIDERED
THE EFFECT OF THE NOTATION CONTAINED IN CAMBRIDGE CORPORATION'S BID. IT
WAS DETERMINED THAT EVEN THOUGH PRIOR TO RECEIPT OF CAMBRIDGE
CORPORATION'S LETTER OF CLARIFICATION ON 9 JANUARY 1958 THIS NOTATION
WAS CAPABLE OF THE CONSTRUCTION THAT CAMBRIDGE CORPORATION'S BID FOR THE
FIRST ARTICLE WOULD BE SUBJECT TO REVISION UPWARD OR DOWNWARD BASED UPON
THE INVOICE OF THE ABERDEEN PROVING GROUND FOR THE ROAD-ENDURANCE TEST,
THE BID OF CAMBRIDGE CORPORATION COULD NEVERTHELESS BE ACCEPTED WITHOUT
PREJUDICE TO ANY OF THE OTHER BIDDERS SINCE THE POSSIBILITY THAT THE
ABERDEEN PROVING GROUND INVOICE WOULD VARY FROM ITS ESTIMATE TO SUCH AN
EXTENT THAT THE CAMBRIDGE CORPORATION'S BID WOULD BECOME HIGHER THAN
THAT OF THE NEXT LOW BIDDER WAS CONSIDERED SO REMOTE AS TO BE
NEGLIGIBLE. CAMBRIDGE CORPORATION'S BID, ON THE BASIS OF $15,680 FOR
THE ROAD TEST, WAS $44,618.85 LOWER THAN THAT OF THE SECOND LOW BIDDER
AND $73,846.73 LOWER THAN THAT OF THE THIRD LOW BIDDER. THE ABERDEEN
PROVING GROUND INVOICE WOULD, THUS, HAVE TO BE ALMOST FOUR TIMES ITS
ESTIMATE, AN INCREASE OF ALMOST 300 PERCENT, TO BRING CAMBRIDGE
CORPORATION'S BID UP TO THAT OF THE SECOND LOWEST BIDDER AND WOULD HAVE
TO BE ALMOST SIX TIMES ITS ESTIMATE, AN INCREASE OF 500 PERCENT, IN
ORDER TO BRING CAMBRIDGE CORPORATION'S BID UP TO THAT OF THE THIRD LOW
BIDDER.'
IN REGARD TO THE STATEMENT MADE IN YOUR LETTER OF FEBRUARY 17, 1958,
TO THE EFFECT THAT THE GREATER PART OF THE TESTING COSTS INVOLVED IN THE
PRODUCTION OF THE FIRST ARTICLE (ITEM 1) WERE LEFT FOR NEGOTIATION BY
THE BID OF THE CAMBRIDGE CORPORATION, IT DOES NOT APPEAR THAT SUCH
STATEMENT IS CORRECT BECAUSE THE QUALIFYING NOTATION MADE BY THE
CORPORATION OPPOSITE ITEM 1 WAS CLEARLY APPLICABLE ONLY TO THE COST OF
THE ROAD ENDURANCE TEST TO BE PERFORMED BY THE ABERDEEN PROVING GROUND
AND NOT TO THE COST OF ANY OF THE OTHER TESTS THAT WERE TO BE PERFORMED
BY THE CONTRACTOR AT HIS OWN EXPENSE.
IN VIEW OF THE SUBSTANTIAL DIFFERENCE OF $73,846.73 BETWEEN YOUR BID
AND THE BID OF THE CAMBRIDGE CORPORATION AND THE FACT THAT EVEN HAD THE
BID BY THE CAMBRIDGE CORPORATION FOR THE FIRST ARTICLE (ITEM 1) IN FACT
BEEN SUBJECT TO REVISION IN LIGHT OF THE ABERDEEN PROVING GROUND FINAL
INVOICE FOR THE ROAD ENDURANCE TEST, THE POSSIBILITY OF SUCH REVISION
RESULTING IN A PRICE HIGHER THAN THAT OFFERED BY YOU IS SO REMOTE AS TO
BE NEGLIGIBLE. WE HAVE HELD THAT A BID CONTAINING AN ESCALATION
PROVISION, UNDER WHICH NO MAXIMUM CEILING COULD BE DETERMINED MAY
PROPERLY BE CONSIDERED AND EVALUATED WHERE THE LIKELIHOOD THAT THE
ULTIMATE COST TO THE GOVERNMENT UNDER THAT BID WOULD EXCEED THE AMOUNT
OF THE NEXT ACCEPTABLE BID WAS SO REMOTE AS TO BE NEGLIGIBLE. SEE 35
COMP. GEN. 684 AND 36 ID. 259. WE BELIEVE THAT ON THE SAME PRINCIPLE
THE BID OF THE CAMBRIDGE CORPORATION COULD NOT HAVE BEEN REJECTED EXCEPT
UPON AN ADMINISTRATIVE DETERMINATION THAT THERE WAS A REAL AND NOT
MERELY AN ABSTRACT THEORETICAL POSSIBILITY THAT THE FINAL COST OF THE
ROAD ENDURANCE TEST TO BE PERFORMED BY THE ABERDEEN PROVING GROUND COULD
HAVE MADE THE PRICE PAYABLE UNDER THE CAMBRIDGE CORPORATION'S BID HIGHER
THAN THAT PAYABLE UNDER THE NEXT ACCEPTABLE BID.
ACCORDINGLY, THE ACTION TAKEN BY THE WRIGHT-PATTERSON CONTRACTING
OFFICER IN THE INSTANT MATTER APPEARS TO HAVE BEEN PROPER AND IN ACCORD
WITH THE DECISIONS CITED ABOVE.
B-135488, MAR. 28, 1958
TO MR. WILLIAM L. SIMS:
YOUR LETTER OF FEBRUARY 26, 1958, REQUESTS OUR RECONSIDERATION OF
YOUR CLAIM FOR $297.22 REPRESENTING TRAVELING EXPENSES AND
TRANSPORTATION COSTS INCURRED BY YOU IN THE PERIOD AUGUST 28 TO
SEPTEMBER 6, 1945. BY OUR SETTLEMENT OF NOVEMBER 27, 1956, AFFIRMED
JUNE 3, 1957, YOUR CLAIM WAS DISALLOWED BY REASON OF THE TEN-YEAR
STATUTE OF LIMITATIONS CONTAINED IN THE ACT OF OCTOBER 9, 1940, 54 STAT.
1061 (31 U.S.C. 237). YOUR LETTER OF FEBRUARY 26, 1958, ALSO CONTAINS A
CLAIM FOR REIMBURSEMENT FOR 192 HOURS OF ANNUAL LEAVE WHICH YOU SAY
SHOULD HAVE BEEN PAID TO YOU INCIDENT TO YOUR INTRA-DEPARTMENTAL
TRANSFER FROM THE UNITED STATES DISPATCH AGENCY TO THE AMERICAN FOREIGN
SERVICE ON MARCH 15, 1945.
YOUR CLAIM FOR THE TRAVEL AND TRANSPORTATION EXPENSES WAS ORIGINALLY
FILED WITH THE DEPARTMENT OF STATE IN A LETTER WHICH YOU SAY WAS SENT ON
MAY 16, 1956. YOUR CLAIM FOR 192 HOURS OF ACCRUED ANNUAL LEAVE
APPARENTLY WAS FILED WITH THE STATE DEPARTMENT FOR THE FIRST TIME IN A
LETTER DATED MAY 11, 1957, ADDRESSED TO MR. WILLIAM H. HENDERSON OF THAT
DEPARTMENT. NO CLAIM FOR EITHER ITEM WAS RECEIVED IN THE GENERAL
ACCOUNTING OFFICE UNTIL OCTOBER 23, 1956.
THE LATEST DATE UPON WHICH THIS OFFICE COULD HAVE CONSIDERED THE
MERITS OF EITHER OF YOUR CLAIMS WAS SEPTEMBER 5, 1955. THIS IS THE
EFFECT OF THE ACT OF OCTOBER 9, 1940, WHICH PROVIDES IN PERTINENT PART
AS FOLLOWS:
"THAT EVERY CLAIM OR DEMAND * * * 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
CLAIMS, 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 * * *.'
THUS IT MAY BE SEEN THAT YOUR CLAIMS WERE BARRED BY OPERATION OF LAW
BEFORE THEY WERE FILED EITHER WITH THE GENERAL ACCOUNTING OFFICE OR THE
DEPARTMENT OF STATE; AND, THEREFORE, NO AMOUNT OF DILIGENCE ON THE PART
OF THE EMPLOYEES OF THE DEPARTMENT OF STATE AFTER RECEIPT OF YOUR CLAIMS
COULD HAVE PROTECTED THEM. ACCORDINGLY, THE ACTION IN OUR LETTERS OF
NOVEMBER 27, 1956, AND JUNE 3, 1957, IS SUSTAINED.
B-130749, MAR. 27, 1958
TO MR. WALTER J. MATTISON, CITY ATTORNEY, MILWAUKEE 2, WISCONSIN:
REFERENCE IS MADE TO A CONFERENCE HELD WITH REPRESENTATIVES OF THE
CITY OF MILWAUKEE ON JANUARY 22, 1958, AND TO A LETTER DATED FEBRUARY
11, 1958, FROM MR. EWALD L. MOERKE, JR., AN ASSISTANT CITY ATTORNEY,
BOTH IN CONNECTION WITH THE CITY'S REQUEST FOR RECONSIDERATION OF THE
CONCLUSIONS REACHED IN OUR LETTER OF JUNE 25, 1957, B-130749, TO YOU.
IN THAT LETTER WE HELD, AS FAR AS PERTINENT HERE, THAT REAL PROPERTY
TAXES DUE THE CITY OF MILWAUKEE IN JANUARY OF EACH YEAR ARE TAXES "FOR"
THE PRECEDING YEAR, THAT IS, THE "TAX LEVY YEAR.' MORE SPECIFICALLY, WE
HELD THAT TAXES DUE THE CITY IN 1955 WERE TAXES "FOR" THE YEAR 1954 AND,
THEREFORE, WE CONCLUDED THAT THE CITY WAS NOT ENTITLED TO A PAYMENT IN
LIEU OF TAXES IN JANUARY 1955 UNDER PUBLIC LAW 388, 69 STAT. 721, 40
U.S.C. 521, 524.
SECTION 703 OF PUBLIC LAW 388 PROVIDES, IN PERTINENT PART, THAT:
"* * * ON EACH DATE OCCURRING ON OR AFTER JANUARY 1, 1955, AND PRIOR
TO JANUARY 1, 1959, ON WHICH REAL PROPERTY TAXES LEVIED BY ANY STATE OR
LOCAL TAXING AUTHORITY WITH RESPECT TO ANY PERIOD BECOME DUE, THE
GOVERNMENT DEPARTMENT WHICH HAS CUSTODY AND CONTROL OF SUCH REAL
PROPERTY SHALL PAY TO THE APPROPRIATE STATE AND LOCAL TAXING AUTHORITIES
AN AMOUNT EQUAL TO THE AMOUNT OF REAL PROPERTY TAX WHICH WOULD BE
PAYABLE TO EACH SUCH STATE OR LOCAL TAXING AUTHORITY ON SUCH DATE IF
LEGAL TITLE TO SUCH REAL PROPERTY HAD BEEN HELD BY A PRIVATE CITIZEN ON
SUCH DATE AND DURING ALL PERIODS TO WHICH SUCH DATE RELATES.'
SECTION 704 (C) OF PUBLIC LAW 388, IN EFFECT, PROHIBITS PAYMENTS IN
LIEU OF TAXES "WITH RESPECT TO ANY REAL PROPERTY FOR ANY PERIOD BEFORE
JANUARY 1, 1955, OR AFTER DECEMBER 31, 1958.'
THE CITY (THROUGH ITS REPRESENTATIVES) SAYS THE TAXES COLLECTED IN
JANUARY 1955 ARE FOR 1955 EXPENDITURES AND INVOLVE ANTICIPATED REVENUES
FOR 1955. THE POINT IS MADE THAT THE PROCESSES THAT TOOK PLACE IN 1954,
THAT IS, THE ASSESSMENT OF PROPERTY AND THE LEVYING OF THE TAXES, WERE
ESSENTIALLY ADMINISTRATIVE STEPS NECESSARY TO THE LEVYING OF THE TAXES.
THE CITY CONTENDS THAT ,TAXES, EVEN THOUGH ASSESSED IN 1954, ARE TAXES
FOR 1955 BECAUSE THE BUDGETARY AND OTHER PROVISIONS OF THE STATUTES OF
THE STATE OF WISCONSIN AND THE MILWAUKEE CITY CHARTER PROVIDE FOR THE
PAYMENT AND COLLECTION OF TAXES IN ADVANCE OF DISBURSEMENTS, BASED ON
SUCH BUDGET AND THAT, THEREFORE, THE TAXES FOR THE YEAR 1954 EVEN THOUGH
DENOMINATED AS SUCH, ARE REALLY TAXES FOR 1955 PURPOSES.' OUR ATTENTION
IS DIRECTED TO NUMEROUS BUDGETARY STATUTES WHICH THE CITY SAYS
SUBSTANTIATE ITS CONTENTION THAT TAXES DUE IN JANUARY ARE TAXES FOR THE
YEAR IN WHICH DUE.
ALSO, THE CITY INFORMED US THAT, IN CONNECTION WITH ITS REQUEST FOR
RECONSIDERATION, IT CONDUCTED A SURVEY OF SOME OF THE COMMUNITIES
ENTITLED TO RECEIVE PAYMENTS IN LIEU OF TAXES UNDER PUBLIC LAW 388, (AND
FURNISHED US THE REPLIES FROM THE COMMUNITIES SURVEYED). WE ARE ADVISED
THAT THE SURVEY DISCLOSES THAT IN ALMOST ALL CASES PROPERTY TAXES ARE
LEVIED IN ADVANCE FOR USE BY THE COMMUNITY INVOLVED DURING THE YEAR IN
WHICH THE TAXES ARE COLLECTED, WHICH THE CITY SAYS IS THE PRACTICE
FOLLOWED BY MILWAUKEE. WE ARE FURTHER ADVISED THAT IN THE STATE OF NEW
YORK, THE DATE OF PROPERTY ASSESSMENT, LEVY, AND THE DUE DATES FOR
COLLECTION OF PROPERTY TAXES FOR MUNICIPAL PURPOSES ARE VERY SIMILAR TO
THOSE IN MILWAUKEE.
WHILE, UNDER THE BUDGET LAWS PERTAINING TO THE CITY OF MILWAUKEE, THE
REAL PROPERTY TAX LEVY OF ONE YEAR IS RELATED TO THE BUDGET FOR THE
FOLLOWING YEAR, THERE APPEARS TO BE NOTHING IN ANY OF THE SPECIFIC
STATUTES CITED IN MR. MOERKE'S LETTER TO SUBSTANTIATE THE CITY'S
CONTENTION THAT REAL PROPERTY TAXES DUE THE CITY IN JANUARY OF EACH YEAR
ARE TAXES "FOR" THE YEAR IN WHICH DUE. THE MOST PERTINENT STATUTE MR.
MOERKE CITES APPEARS TO BE IN SECTION 65.05 (8), WISCONSIN STATUTES,
WHICH PROVIDES:
"/8) THE ADOPTION OF THE BUDGET SHALL DETERMINE THE AMOUNT OF MONEY
TO BE LEVIED UPON ALL TAXABLE PROPERTY IN THE CITY FOR THE ENSUING YEAR.
THE TAX LEVY SHALL BE COMPUTED BY DEDUCTING THE SURPLUS AND
MISCELLANEOUS REVENUES AVAILABLE THEREFOR FROM THE APPROPRIATIONS FOR
EXPENDITURES FOR THE ENSUING YEAR. THE CITY COMPTROLLER SHALL THEN
CERTIFY THE NECESSARY TAXES TO BE LEVIED TO THE TAX COMMISSIONER WHO
SHALL CALCULATE THE TAX RATE. SUCH TAX RATE SHALL BE THE RATE OF THE
ENSUING TAX LEVY.'
UNDER WISCONSIN LAW, MILWAUKEE'S BUDGET MUST BE ADOPTED BY THE COMMON
COUNCIL ON OR BEFORE NOVEMBER 20 OF EACH YEAR AND REAL PROPERTY TAXES
LEVIED IN DECEMBER OF EACH YEAR, THAT IS, SUBSEQUENT TO THE ADOPTION OF
THE BUDGET. IT APPEARS THAT ALL SECTION 65.05 (8) DOES IS REQUIRE THAT
TAXES LEVIED IN DECEMBER OF EACH YEAR BE IN THE AMOUNT SUFFICIENT, AFTER
CERTAIN ADJUSTMENTS ARE MADE, TO MEET EXPENDITURES CONTEMPLATED TO BE
MADE IN THE ENSUING YEAR AS REFLECTED BY THE BUDGET ADOPTED FOR THAT
YEAR. TAXES, TAX RATES AND BUDGETS OF A MUNICIPALITY MUST, OF
NECESSITY, BE RELATED TO EACH OTHER IN SOME MANNER. THIS RELATIONSHIP,
HOWEVER, IS NOT NECESSARILY DETERMINATIVE OF WHAT YEAR OR PERIOD TAXES
LEVIED OR DUE ARE "FOR.' NOR DOES THE FACT THAT TAXES
COLLECTED IN ADVANCE OF DISBURSEMENT (MONEY CANNOT BE DISBURSED
BEFORE IT IS RECEIVED), THAT THE AMOUNT OF TAXES TO BE LEVIED AND
COLLECTED (OR THE TAX RATE) IS DETERMINED BY THE BUDGET FOR THE YEAR IN
WHICH THE TAXES ARE PAYABLE, AND THAT THE TAXES DUE AND COLLECTIBLE IN
JANUARY ARE TO BE USED FOR EXPENDITURES FOR THAT YEAR (THE YEAR IN WHICH
DUE), NECESSARILY REQUIRE THE CONCLUSION THAT SUCH TAXES ARE "FOR" THE
YEAR IN WHICH DUE AND PAYABLE. IN THIS CONNECTION WE NOTE THAT A REPORT
PREPARED BY THE CITY COMPTROLLER OF MILWAUKEE ENTITLED "YOUR 1958 TAX
DOLLAR" (APPARENTLY INTENDED FOR THE TAXPAYERS OF MILWAUKEE), CONTAINS
THE FOLLOWING STATEMENT ON THE COVER:
"WHEN YOU PAY YOUR 1957 PROPERTY TAX, YOU PAY A SHARE OF THE 1958
COST OF SIX SEPARATE GOVERNMENTS, * * *"
THIS REPORT IS APPARENTLY ISSUED IN CONNECTION WITH THE TAXES DUE THE
CITY IN JANUARY 1958. IT IS OBVIOUS FROM THE QUOTED STATEMENT THAT
TAXES "FOR" THE YEAR 1957 ARE USED TO MEET EXPENSES INCURRED UNDER THE
BUDGET ADOPTED FOR 1958, AND IS A FURTHER INDICATION THAT THE CITY
CONSIDERS REAL PROPERTY TAXES DUE AND PAYABLE IN JANUARY OF EACH YEAR TO
BE TAXES "FOR" THE PRECEDING YEAR, THAT IS, THE "TAX LEVY YEAR.'
IN DETERMINING WHAT PERIOD OR YEAR REAL ESTATE TAXES BILLED BY A
COMMUNITY ARE "FOR," THERE MUST BE CONSIDERED ALL PERTINENT TAX STATUTES
TOGETHER WITH THE CUSTOM AND PRACTICE OF THE COMMUNITY IN CHARACTERIZING
ITS TAXES AS REFLECTED BY ITS TAX BILLINGS AND OTHER FORMS USED IN
CONNECTION WITH TAXES.
IN OUR LETTER OF JUNE 25, 1957, TO YOU, WE STATED THAT THE PERIOD OR
YEAR TO WHICH A CITY OR STATE RELATES ITS TAXES IS GENERALLY REFLECTED
PROMINENTLY ON THE PRINTED STATEMENT OR TAX BILL FORM USED BY IT. WE
NOTED THAT THE ONLY PERIOD FOR TAXES WHICH APPEARS TO RECEIVE STATUTORY
RECOGNITION IN WISCONSIN IS THE "TAX LEVY YEAR," AND THAT THE TAX BILL
RENDERED FOR TAXES DUE MILWAUKEE IN JANUARY 1955 APPARENTLY CONTAINED
THE FOLLOWING ON ITS FACE IN LARGE LETTERS AND NUMBERS: "TAX 1954
LEVY.'
THE CITY CONCEDES THAT IN WISCONSIN REAL PROPERTY TAXES DUE AND
PAYABLE IN JANUARY ARE CHARACTERIZED OR DENOMINATED AS "TAXES" FOR THE
PREVIOUS YEAR, THAT IS, TAXES FOR THE YEAR IN WHICH LEVIED OR THE "TAX
LEVY YEAR," BUT, AS INDICATED ABOVE, CONTENDS THAT ACTUALLY SUCH TAXES
ARE TAXES FOR THE YEAR IN WHICH DUE. HOWEVER, IT APPEARS THAT THE
WISCONSIN STATUTES REQUIRE, IN EFFECT, THAT TAXES DUE AND PAYABLE IN
JANUARY BE DENOMINATED TAXES FOR THE PRECEDING YEAR, THAT IS, THE "TAX
LEVY YEAR," AND THAT IS THE REASON THAT SUCH TAXES ARE SO CHARACTERIZED
OR DENOMINATED BY THE CITY.
WISCONSIN LAW (SEE SECTIONS 74.46 (1) (A) AND 74.46 (1A) WISCONSIN
STATUTES), REQUIRES THAT TAX CERTIFICATES ISSUED BY THE CITY OF
MILWAUKEE INCIDENT TO THE SALE OF LAND FOR TAXES BE SUBSTANTIALLY IN THE
FORM PRESCRIBED BY STATUTE. A COPY OF AN ACTUAL TAX SALE CERTIFICATE
ISSUED INCIDENT TO THE SALE OF PROPERTY TO THE CITY OF MILWAUKEE FOR
UNPAID TAXES DUE IN JANUARY 1955, CLEARLY INDICATES THAT TAXES PAYABLE
IN JANUARY 1955 ARE TAXES FOR THE YEAR 1954. THE CERTIFICATE IN
QUESTION IS DATED "FEBRUARY 1, A.D. 1955.' AND, UNDER YOUR CITY CHARTER
(SECTION 24.20, AS AMENDED), IF REAL PROPERTY TAXES DUE IN JANUARY ARE
NOT PAID BY THE LAST DAY OF THAT MONTH, THE PROPERTY IS SOLD FOR TAXES
ON THE FIRST DAY OF FEBRUARY FOLLOWING. THE YEAR "1954" APPEARS IN
LARGE FIGURES IN THE UPPER LEFT-HAND CORNER OF THE TAX CERTIFICATE
(INDICATING THAT 1954 TAXES ARE INVOLVED), AND THE BODY OF THE FORM
CONTAINS THE FOLLOWING PERTINENT LANGUAGE:
"I. J. J. KRUEGER, CITY TREASURER OF THE CITY OF MILWAUKEE * * * DO
HEREBY CERTIFY THAT I DID, AT PUBLIC AUCTION, PURSUANT TO NOTICE GIVEN
AS BY LAW REQUIRED, ON THIS 1ST DAY OF FEBRUARY, A.D. 1955 SELL TO THE
CITY OF MILWAUKEE THE LANDS HEREIN DESCRIBED FOR THE SUM OF SEVENTEEN- -
- - DOLLARS AND EIGHTEEN CENTS, SAID SUM BEING THE AMOUNT DUE AND UNPAID
FOR CITY TAXES * * * ON SAID LAND FOR THE YEAR OF OUR LORD ONE THOUSAND
NINE HUNDRED AND FIFTY FOUR; THAT SAID CITY * * * WILL, THEREFORE, BE
ENTITLED TO A DEED OF CONVEYANCE OF SAID LANDS IN THREE YEARS FROM THIS
DATE, UNLESS SOONER REDEEMED FROM SUCH SALE * * * AND THE RATE OF
INTEREST IN CASE OF SUCH REDEMPTION SHALL BE EIGHT-TENTHS OF ONE PERCENT
PER MONTH OR FRACTION OF A MONTH FROM DATE JANUARY 1, 1955 * * *.'
IT IS OBVIOUS FROM THE FOREGOING THAT THE PROPERTY HERE INVOLVED WAS
SOLD FOR TAXES DUE AND UNPAID FOR THE YEAR "1954" RATHER THAN THE YEAR
1955, ALTHOUGH THE TAXES WERE DUE IN JANUARY 1955.
SECTION 75.20 (6), WISCONSIN STATUTES, CONTAINS THE FOLLOWING
LANGUAGE:
"* * * TAX CERTIFICATES DATED IN 1945 OR PRIOR THERETO, REPRESENTING
DELINQUENT TAXES OF A TAX LEVY YEAR IN WHICH * * *"
IF THE CITY'S CONTENTION, THAT TAXES DUE AND PAYABLE IN JANUARY 1955
ARE TAXES "FOR" 1955, IS ACCEPTED, SUCH TAXES, IF NOT PAID, WOULD
APPARENTLY BE DELINQUENT TAXES "FOR" THE YEAR 1955. HOWEVER, THIS WOULD
BE INCONSISTENT WITH THE ABOVE SECTION, SINCE TAXES DUE IN JANUARY 1955
ARE, AS INDICATED ABOVE BILLED AS THE "TAX 1954 LEVY," THAT IS, AS TAXES
FOR THE "TAX LEVY YEAR" 1954, AND UNDER THE QUOTED STATUTORY LANGUAGE,
IF NOT PAID, WOULD BE DELINQUENT TAXES OF THE "TAX LEVY YEAR" 1954. SEE
ALSO, IN CONNECTION WITH THE "TAX LEVY YEAR," SECTIONS 74.03 (10) (D)
AND 74.33 (3) (B), WISCONSIN STATUTES. THIS LATTER SECTION PRESCRIBES
THE FORM AND LANGUAGE TO BE USED IN A NOTICE OF TAX SALE AND THE FORM
CONTAINS--- AS FAR AS PERTINENT HERE--- THE FOLLOWING LANGUAGE:
"* * * THIS SALE WILL INCLUDE ALL REAL ESTATE LISTED IN THE COUNTY
TREASURER'S OFFICIAL ROLL OF DELINQUENT TAXES FOR THE TAX LEVY YEAR
...., EXCEPT PUBLIC LANDS HELD ON CONTRACT AND LANDS MORTGAGED TO THE
STATE. * * *"
THE ABOVE LANGUAGE IS FURTHER PROOF THAT REAL PROPERTY TAXES DUE THE
CITY IN JANUARY OF EACH YEAR ARE TAXES "FOR" THE YEAR IN WHICH LEVIED OR
THE "TAX LEVY YEAR," THAT IS, TAXES FOR THE PRECEDING YEAR. HENCE, IT
IS OBVIOUS FROM THIS SECTION THAT IF TAXES LEVIED IN 1954 AND DUE IN
JANUARY 1955 ARE NOT PAID, SUCH TAXES WOULD BE DELINQUENT FOR THE "TAX
LEVY YEAR" 1954. AGAIN, THE CITY'S CONTENTION THAT TAXES LEVIED IN 1954
AND DUE IN JANUARY, 1955 ARE TAXES FOR THE YEAR 1955, IS INCONSISTENT
WITH THE LAST QUOTED LANGUAGE. MOREOVER, THE CITY COULD HARDLY SELL A
MAN'S PROPERTY FOR DELINQUENT TAXES FOR THE "TAX LEVY YEAR" 1954 IF HE
FAILED TO PAY TAXES LEVIED IN 1954 BUT DUE IN JANUARY 1955, IF SUCH
TAXES WERE TAXES "FOR" THE YEAR 1955 AS CONTENDED BY THE
CITY. YET, IF THE CITY'S CONTENTION WERE ACCEPTED, THE CONCLUSION
WOULD FOLLOW THAT THIS WAS DONE IN CONNECTION WITH THE PROPERTY SOLD TO
THE CITY UNDER THE TAX CERTIFICATE REFERRED TO ABOVE.
IN YOUR LETTER YOU SAY THAT UNDER SECTION 24.21 OF THE MILWAUKEE CITY
CHARTER A TAXPAYER MAY PAY HIS TAXES IN ADVANCE AND EVEN RECEIVE
INTEREST THEREON UP TO 3 PERCENT PER ANNUM. SECTION 24.21 OF THE
MILWAUKEE CITY CHARTER (1934 COMPILATION) PROVIDES:
"THE CITY TREASURERS OF ALL CITIES OF THE FIRST CLASS IN THIS STATE,
ARE HEREBY AUTHORIZED TO RECEIVE FROM ANY TAXPAYER OR TAXPAYERS OF SUCH
CITY SUCH SUMS OF MONEY IN ADVANCE OF THE TIME FOR PAYMENT OF TAXES FOR
THE CURRENT YEAR AS MAY BE TENDERED FOR THAT PURPOSE, NOT, HOWEVER,
EXCEEDING IN AMOUNT THE SUM WHICH IT IS ANTICIPATED SHALL BE DUE OR
PAYABLE BY SUCH TAXPAYER, OR TAXPAYERS, FOR TAXES FOR SUCH CURRENT YEAR,
AND TO ISSUE AND TO DELIVER TO SUCH TAXPAYER OR TAXPAYERS A NEGOTIABLE
CERTIFICATE IN WRITING, SIGNED BY SUCH TREASURER, AND COUNTERSIGNED BY
THE CITY COMPTROLLER OR AUDITING OFFICER OF SUCH CITY, STATING THEREIN
THE AMOUNT OF SUCH ADVANCE PAYMENT, AND THAT SUCH CITY WILL PAY TO SUCH
TAXPAYER OR TAXPAYERS, OR HIS OR THEIR ORDER, THE SUM OF MONEY THEREIN
STATED, ON JANUARY 15TH OF THE YEAR FOLLOWING THE DATE OF SUCH
CERTIFICATE, TOGETHER WITH INTEREST THEREON AT SUCH RATE PER ANNUM AS
SUCH CITY SHALL THEN BE RECEIVING UPON ITS DAILY BALANCES FROM THE BANK
OR BANKS IN WHICH THE MONEY OF SAID CITY BELONGING TO ITS GENERAL OR
TRUST FUNDS MAY BE DEPOSITED, NOT, HOWEVER, EXCEEDING THE RATE OF THREE
PERCENTUM PER ANNUM.'
THIS ORDINANCE WOULD SERVE NO PURPOSE IF TAXES DUE THE CITY IN
JANUARY ARE TAXES FOR THE YEAR IN WHICH DUE. UNDER THE ORDINANCE A
TAXPAYER MAY ONLY MAKE ADVANCE PAYMENTS IN CONNECTION WITH TAXES DUE FOR
THE CURRENT YEAR AND SUCH PAYMENTS ARE REQUIRED TO BE REFUNDED TO THE
TAXPAYER ON JANUARY 15TH OF THE YEAR FOLLOWING THE DATE THE ADVANCE
PAYMENT WAS MADE. THUS, FOR EXAMPLE, A TAXPAYER MAY NOT MAKE ADVANCE
PAYMENTS IN 1954 ON HIS 1955 TAXES SINCE HE WOULD NOT BE MAKING PAYMENTS
ON HIS TAXES FOR THE CURRENT YEAR, AND THESE ARE THE ONLY PAYMENTS
AUTHORIZED BY THE ORDINANCE. ALSO, IF, AS CONTENDED BY THE CITY, TAXES
DUE IN JANUARY 1955 WERE TAXES FOR 1955, THE
TAXPAYER COULD NOT MAKE ADVANCE PAYMENTS ON SUCH TAXES IN 1955 SINCE
UNDER THE ORDINANCE, SUCH PAYMENTS MAY BE MADE ONLY IN ADVANCE OF THE
TIME FOR PAYMENT OF TAXES FOR THE CURRENT YEAR AND TAXES ARE DUE IN
MILWAUKEE BETWEEN THE FIRST AND LAST DAY OF JANUARY OF THAT YEAR. WE
FEEL THAT THE CITY'S POSITION AS TO THE YEAR TAXES ARE "FOR" IS
INCONSISTENT WITH THIS ORDINANCE.
CONCERNING THE SURVEY MADE BY THE CITY, AS INDICATED ABOVE, OUR
PREVIOUS HOLDING THAT MILWAUKEE REAL PROPERTY TAXES PAYABLE IN JANUARY
OF EACH YEAR ARE TAXES FOR THE PRECEDING YEAR, THAT IS, THE "TAX LEVY
YEAR," RATHER THAN THE YEAR IN WHICH THE TAXES ARE DUE, IS NOT BASED ON
THE FACT THAT THE PROPERTY IS ASSESSED AND THE TAXES LEVIED IN SUCH
PRECEDING YEAR, BUT RATHER UPON THE FACT THAT UNDER WISCONSIN LAW THE
TAXES DUE IN JANUARY ARE TAXES "FOR" THE PRECEDING YEAR, THAT IS, THE
YEAR IN WHICH LEVIED. MOREOVER THE SURVEY CONDUCTED BY THE CITY DOES
NOT DISCLOSE THAT ANY OF THE COMMUNITIES SURVEYED RECEIVED PAYMENTS IN
LIEU OF TAXES FOR ANY PERIOD FOR WHICH SUCH PAYMENTS ARE PROHIBITED BY
SECTION 704 (C) OF PUBLIC LAW 388. IT MAY BE THAT IN ALMOST ALL OF THE
COMMUNITIES SURVEYED, TAXES ARE LEVIED IN ADVANCE FOR USE BY THE
COMMUNITY DURING THE YEAR IN WHICH DUE AND PAYABLE AND THAT IN NEW YORK
STATE THE DATES OF PROPERTY ASSESSMENT, LEVY, AND DUE DATES FOR
COLLECTION ARE VERY SIMILAR TO THOSE IN WISCONSIN. HOWEVER, THESE
FACTORS ARE NOT NECESSARILY DETERMINATIVE OF THE QUESTION OF WHETHER
TAXES DUE AND PAYABLE IN A PARTICULAR YEAR ARE TAXES "FOR" THAT YEAR OR
"FOR" THE PRECEDING YEAR. UNDER THE PERTINENT LAWS PERTAINING TO THE
COMMUNITIES INVOLVED IN THE SURVEY, IT MAY BE THAT TAXES DUE AND
COLLECTED IN A PARTICULAR YEAR ARE TAXES FOR THAT YEAR (THE YEAR IN
WHICH DUE), AND ARE SO CHARACTERIZED ON THE TAX BILL FORM ON WHICH THE
TAXES ARE BILLED. WHAT PERIOD REAL PROPERTY TAXES COVER IN A PARTICULAR
STATE OR COMMUNITY MUST BE DETERMINED IN THE LIGHT OF APPLICABLE STATE
AND LOCAL LAWS TAKING INTO CONSIDERATION THE CUSTOM AND PRACTICE OF THE
COMMUNITY IN CHARACTERIZING ITS TAXES AS REFLECTED ON ITS TAX BILLING
FORMS AND OTHER FORMS USED INCIDENT TO TAX COLLECTION OR TAX SALES.
IN VIEW OF THE FOREGOING COMMENTS, IT IS STILL OUR VIEW THAT TAXES
DUE THE CITY OF MILWAUKEE IN JANUARY OF EACH YEAR ARE TAXES "FOR" THE
PRECEDING YEAR THAT IS, THE "TAX LEVY YEAR.' HENCE, THE REAL PROPERTY
TAXES DUE THE CITY IN JANUARY 1955 ARE TAXES "FOR" THE YEAR 1954 AND,
THEREFORE, THE CITY WAS NOT ENTITLED TO A PAYMENT IN LIEU OF TAXES IN
JANUARY 1955, UNDER PUBLIC LAW 388.
AS YOU ARE AWARE, THERE HAS BEEN INTRODUCED IN THE HOUSE OF
REPRESENTATIVES LEGISLATION (H.R. 10066) CONTAINING A PROVISION WHICH
WOULD, IF ENACTED, HAVE THE EFFECT OF PERMITTING MILWAUKEE TO RECEIVE
FOUR PAYMENTS IN LIEU OF TAXES FOR THE YEARS 1955 THROUGH 1958.
THERE ARE ENCLOSED HEREWITH THE SURVEY REPORTS FURNISHED US BY MR.
S. A. MAGIDSON, ADMINISTRATIVE ASSISTANT TO THE CITY COMPTROLLER, WHICH
HE REQUESTED BE RETURNED TO HIM.
B-131299, MAR. 27, 1958
TO THE HONORABLE WARREN OLNEY, III, DIRECTOR, ADMINISTRATIVE OFFICE
OF THE UNITED STATES COURTS:
THE LETTER OF FEBRUARY 3, 1958, WITH ENCLOSURES, FROM THE ASSISTANT
DIRECTOR, PRESENTED FOR OUR CONSIDERATION SEVERAL QUESTIONS ARISING FROM
A SHORTAGE IN THE ACCOUNTS OF MR. WILLIAM ROBINETT, JR., FORMERLY CLERK
OF COURT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF OHIO.
THE RECORD BEFORE US INDICATES THAT MR. ROBINETT IS RESPONSIBLE FOR A
SHORTAGE TOTALING $3,968.38 DUE TO EMBEZZLEMENT BY HIM OF FUNDS RECEIVED
IN HIS OFFICIAL CAPACITY. THIS SUM HAS BEEN REDUCED TO $3,308.38 BY
APPLICATION OF SUMS PAID BY TWO SURETIES ON THEIR BONDS. DEMAND FOR
$3,308.38 HAS BEEN MADE UPON THE RESPONSIBLE SURETY, BUCKEYE UNION
CASUALTY COMPANY OF COLUMBUS, OHIO. ON OCTOBER 24, 1957, MR. ROBINETT
WAS FOUND GUILTY OF A VIOLATION OF 18 U.S.C. 646, AND ON DECEMBER 16,
1957, HE WAS PLACED ON PROBATION FOR A PERIOD OF FIVE YEARS. IT IS ALSO
REPORTED THAT A CIVIL SUIT TO RECOVER THE BALANCE OF $3,308.38 RESULTED
IN A DEFAULT JUDGMENT BEING TAKEN AGAINST HIM ON NOVEMBER 29, 1957. THE
LETTER OF FEBRUARY 3, 1958, STATES THAT CERTAIN SUMS BUT FOR HIS
INDEBTEDNESS ARE DUE MR. ROBINETT AND OUR INSTRUCTIONS AS TO THEIR
PROPER DISPOSITION ARE REQUESTED.
IT MAY BE STATED GENERALLY, THAT ALL ASSETS OF A DEFAULTING OFFICER
OR EMPLOYEE OF THE UNITED STATES IN THE POSSESSION OF THE UNITED STATES
AND AVAILABLE FOR SETOFF SHOULD BE APPLIED TOWARDS LIQUIDATION OF HIS
INDEBTEDNESS BEFORE RESORTING TO THE SURETY UNDER HIS BOND. WE STATED
IN 27 COMP. GEN. 703 THAT:
"IT IS WELL SETTLED THAT "IT IS LEGAL AND PROPER FOR THE GOVERNMENT,
THROUGH ADMINISTRATIVE OFFICES, TO FIRST APPLY ALL AVAILABLE ASSETS IN
ITS POSSESSION, INCLUDING BOTH UNPAID SALARY AND AMOUNT IN THE
RETIREMENT FUND, BELONGING TO A DEFAULTING OFFICER OR EMPLOYEE, TOWARD
LIQUIDATION OF THE INDEBTEDNESS, BEFORE RESORTING TO ITS REMEDY UNDER
THE BOND OF THE OFFICER OR EMPLOYEE"--- QUOTING FROM THE SYLLABUS OF 7
COMP. GEN. 305. SEE, ALSO, UNITED STATES V. UNITED STATES FIDELITY AND
GUARANTY CO., 35 F.SUPP. 959.
"ACCORDINGLY, IN ORDER THAT THE INTERESTS OF THE UNITED STATES MAY BE
FULLY PROTECTED, AN INDEBTEDNESS DUE THE GOVERNMENT ARISING FROM A LOSS
COVERED BY THE EMPLOYEES' BOND SHOULD BE REPORTED TO THE CIVIL SERVICE
COMMISSION FOR SET-OFF AGAINST THE RETIREMENT AND DISABILITY FUND
WITHOUT AWAITING FINAL ADJUDICATION OF THE GOVERNMENT'S CLAIM AGAINST
THE SURETY. THUS, IF THE AMOUNT TO THE EMPLOYEE'S CREDIT IN THE
RETIREMENT FUND IS IMMEDIATELY AVAILABLE FOR SET-OFF, AND IF SET-OFF
ACTUALLY IS ACCOMPLISHED BY THE CIVIL SERVICE COMMISSION, SUBSEQUENT
COLLECTION FROM THE SURETY UNDER THE BOND PROPERLY WOULD BE REDUCIBLE IN
THE AMOUNT SO RECOVERED. IN OTHER WORDS, THE TWO REMEDIES AVAILABLE TO
THE GOVERNMENT IN SUCH CASES SHOULD BE EXERCISED CONCURRENTLY AND THE
LIABILITY OF THE SURETY IN ANY EVENT IS THE UNRECOVERED PORTION OF THE
GOVERNMENT'S LOSS AT THE TIME OF FINAL SETTLEMENT UNDER THE BOND.'
THE LETTER OF FEBRUARY 3, 1958, INDICATES THAT MR. ROBINETT IS
ENTITLED TO FINAL SALARY FOR THE PERIOD APRIL 22, 1956, THROUGH MAY 2,
1956, AS FOLLOWS:
TABLE
GROSS $283.52 (GS-13 $9,205.00 P.A. - 64 HOURS)
RETIREMENT 17.01 (6 PERCENT RETIREMENT)
FEDERAL TAX 14.40
LIFE INSURANCE 2.50
NET 249.61
THE AVAILABILITY OF AN EMPLOYEE'S FINAL SALARY PAYMENT FOR SETOFF
AGAINST HIS INDEBTEDNESS TO THE UNITED STATES IS SO WELL ESTABLISHED AS
TO RENDER DISCUSSION HERE UNNECESSARY. HOWEVER, WE HAVE HELD THAT ITEMS
WHICH ARE REQUIRED BY LAW TO BE WITHHELD OR DEDUCTED FROM AN EMPLOYEE'S
SALARY--- SUCH AS FEDERAL INCOME TAX WITHHOLDING AND CIVIL SERVICE
RETIREMENT DEDUCTIONS--- SHOULD BE SO WITHHELD OR DEDUCTED FROM HIS
FINAL SALARY PAYMENT PRIOR TO CONSIDERATION OF HIS OTHER INDEBTEDNESS TO
THE GOVERNMENT. SEE 24 COMP. GEN. 334. THE PROVISIONS OF 5 U.S.C. 2094
(A) REQUIRE THE WITHHOLDING OF THE PREMIUM FOR THE FEDERAL EMPLOYEES'
GROUP LIFE INSURANCE FROM AN EMPLOYEE'S SALARY DURING ANY PERIOD IN
WHICH THE EMPLOYEE (IF UNDER AGE 65) IS INSURED THEREUNDER. IT APPEARS
MR. ROBINETT WAS SO INSURED DURING THE PERIOD FOR WHICH FINAL SALARY IS
DUE AND THERE IS NO SHOWING THAT HE WAS 65 YEARS OR OVER AT THAT TIME,
HIS LIFE INSURANCE PREMIUM DEDUCTION LIKEWISE FALLS IN THAT CATEGORY.
HENCE, HIS FINAL SALARY PAYMENT MUST BE APPLIED AS FOLLOWS: (1)
RETIREMENT DEDUCTION; (2) FEDERAL WITHHOLDING TAX; (3) LIFE INSURANCE
PREMIUM; AND (4) THE BALANCE OF $249.61 TO BE SET OFF AGAINST HIS
INDEBTEDNESS TO THE UNITED STATES.
IT IS FURTHER STATED IN THE LETTER OF FEBRUARY 3 THAT MR. ROBINETT
HAS TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT FUND APPROXIMATELY
$3,514.06, PLUS INTEREST (INCLUDING THE $17.01 TO BE DEPOSITED FROM HIS
FINAL SALARY PAYMENT AS INDICATED ABOVE). THE LETTER INDICATES THAT MR.
ROBINETT HAS NOT FILED A CLAIM FOR REFUND OR FOR RETIREMENT BENEFITS
WITH THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, ALTHOUGH HE
HAS INQUIRED THROUGH HIS ATTORNEY AS TO THE PROCEDURE INVOLVED.
ORDINARILY, WHEN A FEDERAL EMPLOYEE SUBJECT TO THE CIVIL SERVICE
RETIREMENT ACT, WHO HAS COMPLETED AT LEAST FIVE YEARS OF SERVICE LEAVES
THE FEDERAL SERVICE PRIOR TO RETIREMENT AGE, HE HAS A VESTED RIGHT TO A
FUTURE ANNUITY, 5 U.S.C. 2258, WITH AN OPTION OF CLAIMING AND DRAWING
OUT THE AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND, 5 U.S.C. 2261.
THUS, THE AMOUNT TO HIS CREDIT IS REQUIRED BY LAW TO REMAIN IN THE FUND
WHEN HE LEAVES THE FEDERAL SERVICE AND IS NOT DUE HIM UNLESS AND UNTIL
HE EXERCISES HIS OPTION. UNDER SUCH CONDITIONS, THE AMOUNT TO HIS
CREDIT IS NOT AVAILABLE FOR SET OFF AGAINST ANY INDEBTEDNESS TO THE
GOVERNMENT IN THE ABSENCE OF A CLAIM FOR SUCH AMOUNT FROM THE FORMER
EMPLOYEE, WHICH RENDERS THE SUM DUE AND HENCE SUSCEPTIBLE TO SETOFF. OF
COURSE, IF AND WHEN HIS ANNUITY PAYMENTS START, SUCH PAYMENTS MAY BE
APPLIED AGAINST HIS INDEBTEDNESS AS THEY BECOME DUE. SEE 21 COMP. GEN.
100. HOWEVER, IN THE PRESENT CASE, MR. ROBINETT HAS BEEN CONVICTED OF
EMBEZZLING FUNDS RECEIVED AS AN OFFICER OF A COURT OF THE UNITED STATES
UNDER 18 U.S.C. 646, WHICH PROVIDES FOR A FINE OF NOT MORE THAN THE
AMOUNT EMBEZZLED OR IMPRISONMENT FOR NOT MORE THAN 10 YEARS, OR BOTH.
SECTION 1 (1) OF TITLE 18 OF THE UNITED STATES CODE PROVIDES THAT ANY
OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM EXCEEDING ONE
YEAR IS A FELONY.
SECTION 740C OF TITLE 5, UNITED STATES CODE, PROVIDES IN PERTINENT
PART AS FOLLOWS:
"THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR
AFTER SEPTEMBER 1, 1954, OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN
THIS SECTION, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON SO
CONVICTED, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR
SEPTEMBER 1, 1954, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE
BASIS OF THE SERVICE OF SUCH PERSON AS AN OFFICER OR EMPLOYEE OF THE
GOVERNMENT:
"/2) ANY OFFENSE (NOT INCLUDING ANY OFFENSE WITHIN THE PURVIEW OF
SECTION 13 OF TITLE 18) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED
STATES OR OF THE DISTRICT OF COLUMBIA (A) COMMITTED IN THE EXERCISE OF
HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE
OF THE GOVERNMENT, * * *.'
ALSO, 5 U.S.C. 740E PROVIDES THAT:
"ANY AMOUNTS CONTRIBUTED BY ANY SUCH PERSON TOWARD THE ANNUITY THE
BENEFITS OF WHICH ARE DENIED UNDER SECTIONS 740B--- 740I OF THIS TITLE
AND SECTION 3282 OF TITLE 18, LESS ANY SUMS PREVIOUSLY REFUNDED OR PAID
AS ANNUITY BENEFITS, SHALL BE RETURNED TO SUCH PERSON, UPON APPROPRIATE
APPLICATION THEREFOR, WITH INTEREST TO THE DATE OF HIS CONVICTION OF ANY
OFFENSE DESCRIBED IN SECTION 740C OF THIS TITLE * * *.'
SINCE MR. ROBINETT WAS CONVICTED OF A "FELONY UNDER THE LAWS OF THE
UNITED STATES * * * COMMITTED IN THE EXERCISE OF HIS AUTHORITY,
INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE
GOVERNMENT" AS CONTEMPLATED BY THE QUOTED PORTION OF 740C, IT APPEARS HE
HAS LOST HIS RIGHTS TO AN ANNUITY AND THE AMOUNT TO HIS CREDIT IN THE
RETIREMENT FUND (BUT FOR HIS INDEBTEDNESS) IS PRESENTLY RETURNABLE TO
HIM UPON APPLICATION THEREFOR. THUS, THE AMOUNT TO MR. ROBINETT'S
CREDIT IN THE FUND IS NOT REQUIRED TO REMAIN THEREIN PENDING HIS
REACHING RETIREMENT AGE OR EXERCISING AN OPTION TO DRAW OUT, BUT IS
LEGALLY NOW DUE HIM. WE HELD IN 16 COMP. GEN. 962, QUOTING FROM THE
SYLLABUS, THAT:
"THE EXERCISING OF THE COMMON-LAW RIGHT OF THE GOVERNMENT TO APPLY
MONEYS DUE A DEBTOR FROM THE GOVERNMENT IN LIQUIDATION OF A GOVERNMENT
INDEBTEDNESS IS NOT DEPENDENT UPON THE DEBTOR FILING A CLAIM FOR THE
MONEYS OTHERWISE DUE, AND, SHOULD THE DEBTOR'S FINAL SALARY AS A FORMER
GOVERNMENT EMPLOYEE NOT BE SUFFICIENT TO COMPLETE LIQUIDATION, REQUEST
SHOULD BE MADE UPON THE CIVIL SERVICE COMMISSION FOR APPLICATION OF THE
AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND, IN WHOLE OR IN PART AS THE
CASE MIGHT BE, IN FURTHER LIQUIDATION OF THE INDEBTEDNESS.'
HENCE, IT IS OUR VIEW THAT THE AMOUNT TO MR. ROBINETT'S CREDIT IN THE
RETIREMENT FUND IS PRESENTLY AVAILABLE FOR SETOFF AGAINST HIS
INDEBTEDNESS TO THE UNITED STATES REGARDLESS OF WHETHER OR NOT HE HAS
APPLIED FOR REFUND THEREOF. SEE 35 COMP. GEN. 126. YOUR OFFICE SHOULD
THEREFORE IMMEDIATELY FILE WITH THE CIVIL SERVICE COMMISSION A CLAIM OR
REQUEST FOR APPLICATION OF SO MUCH OF THE AMOUNT DUE MR. ROBINETT AS IS
REQUIRED TO LIQUIDATE THE BALANCE OF HIS INDEBTEDNESS (THE AMOUNT OF THE
DEFAULT JUDGMENT PLUS ANY INTEREST PROVIDED FOR THEREIN) REMAINING
UNSATISFIED AFTER APPLICATION OF HIS FINAL SALARY PAYMENT AS INDICATED.
ON THE BASIS OF THE INFORMATION FURNISHED BY THE LETTER OF FEBRUARY
3, 1958, AND THE SUBSEQUENT LETTER OF MARCH 11 FROM MR. V. A. CLEMENTS,
CHIEF AUDITOR, NO PAYMENT FOR ACCUMULATED ANNUAL LEAVE
WOULD APPEAR TO BE WARRANTED SINCE THERE IS NO EVIDENCE PRESENTED
FROM WHICH A DETERMINATION
B-132195, MAR. 27, 1958
TO THE SECRETARY OF THE NAVY:
BY LETTER DATED DECEMBER 26, 1957, THE ASSISTANT SECRETARY OF THE
NAVY (PERSONNEL AND RESERVE FORCES) REQUESTED THAT WE RECONSIDER OUR
DECISION OF JULY 24, 1957, B-132195, 37 COMP. GEN. 53, TO
LIEUTENANT COLONEL W. O. ADAMS, DISBURSING OFFICER, UNITED STATES
MARINE CORPS, UPON HIS REQUEST FOR AN ADVANCE DECISION ON A VOUCHER
COVERING A CLAIM BY TECHNICAL SERGEANT HAROLD E. WILLIAMS, SAN DIEGO,
CALIFORNIA, FOR A DISLOCATION ALLOWANCE WHICH, HE PREVIOUSLY HAD AGREED
TO FOREGO IN CONSIDERATION OF AN ASSIGNMENT TO DUTY AT THE MARINE CORPS
RECRUIT DEPOT, SAN DIEGO, PAYMENT OF THE CLAIMED DISLOCATION ALLOWANCES
WAS DENIED SERGEANT HAROLD E. WILLIAMS ON TWO GROUNDS: FIRST, HE HAD
WAIVED THE ALLOWANCE, AND SECOND, THE ORDERS, COUPLED WITH PRIOR
CORRESPONDENCE CONSTITUTED A MERE PERMISSION TO CHANGE STATIONS. IN HIS
LETTER, THE ASSISTANT SECRETARY STATES AMONG OTHER THINGS, THAT:
"A. IT IS NOW AND HAS BEEN A CONTINUING POLICY OF THE MARINE CORPS
NOT TO EFFECT CHANGES OF STATION OF ITS PERSONNEL MERELY AS A RESULT OF
PERSONAL PREFERENCE OR DESIRES. THE POLICY HAS BEEN, AND CONTINUES TO
BE, THAT ANY PERMANENT CHANGE OF STATION MUST SATISFY THE PRIMARY
REQUISITE OF BEING NECESSARY IN THE PUBLIC INTEREST.
"B. IN ACCORDANCE WITH ESTABLISHED POLICY OF THE U.S. MARINE CORPS,
THE TRANSFER OF TECHNICAL SERGEANT WILLIAMS TO THE MARINE CORPS RECRUIT
DEPOT, SAN DIEGO WAS TO FILL A VALID MILITARY REQUIREMENT FOR A MARINE
OF HIS RANK, EXPERIENCE AND QUALIFICATIONS AT THAT PARTICULAR STATION.
HIS TRANSFER WAS THEREFORE DEEMED TO BE IN THE PUBLIC INTEREST. THE
FACT THAT TECHNICAL SERGEANT WILLIAMS HAD EXPRESSED A MARKED PREFERENCE
FOR SAN DIEGO, CALIFORNIA AS HIS HOME UPON RETIREMENT WAS RELATED TO THE
ORDERS ISSUED HIM ONLY INSOFAR AS IT THERE-UPON BECAME POSSIBLE TO
SATISFY A REQUIREMENT OF THE MARINE CORPS AND AT THE SAME TIME TO GRANT
A DESIRED TRANSFER AT NO ADDITIONAL EXPENSE TO THE GOVERNMENT. THE
PRIMARY MOTIVATION IN THE INTEREST OF THE GOVERNMENT WAS IN NO WAY
VITIATED BY THIS ACTION, IN-AS-MUCH AS A MARINE OF TECHNICAL SERGEANT
WILLIAMS' QUALIFICATIONS WOULD HAVE BEEN ORDERED IN ANY EVENT TO THE
BILLET VACANCY WHICH EXISTED.
"D. THE WAIVER OF DISLOCATION ALLOWANCE WAS REQUESTED IN VIEW OF
PARAGRAPH 9003.4 JOINT TRAVEL REGULATIONS WHICH STATES THAT A MEMBER IS
NOT ENTITLED TO THE ALLOWANCE UPON RELEASE FROM ACTIVE DUTY AND IN VIEW
OF THE INTENT OF TECHNICAL SERGEANT WILLIAMS THAT THE SAN DIEGO AREA
WAS, IN FACT, HIS POINT OF SELECTION UPON TRANSFER TO THE FLEET MARINE
CORPS RESERVE, AS EVIDENCED BY HIS ORIGINAL REQUEST FOR TRANSFER.
PARAGRAPH 4158, JOINT TRAVEL REGULATIONS STATES THAT A MEMBER WHO IS
TRANSFERRED TO THE FLEET MARINE CORPS RESERVE, MAY SELECT HIS HOME AND
RECEIVE TRAVEL ALLOWANCE THERETO FROM HIS LAST DUTY STATION PROVIDED
TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER
TERMINATION OF ACTIVE DUTY. OBTAINING THE WAIVER OF TRANSPORTATION OF
DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS UPON TRANSFER TO THE FLEET
RESERVE WAS CONSIDERED NECESSARY IN ORDER TO PREVENT THE POSSIBILITY OF
UNNECESSARY EXPENDITURE OF PUBLIC FUNDS IN THE EVENT OF A LATER CHANGE
OF SELECTION OF A HOME, UPON THE MARINE'S TRANSFER TO THE FLEET MARINE
CORPS RESERVE.
"3. IN VIEW OF THE STATEMENTS OF FACT AND POLICY LISTED ABOVE, IT IS
THE CONVICTION OF THE UNDERSIGNED THAT THE TRANSFER OF TECHNICAL
SERGEANT WILLIAMS WAS * * * IN COMPLETE CONSONANCE WITH ACCEPTED
POLICIES OF MILITARY REQUIREMENTS, ECONOMY, AND COMPLIANCE WITH THE
SPIRIT OF EXISTING REGULATIONS.'
THE MATTER PRESENTED HERE FOR DECISION DID NOT CONCERN THE VALIDITY
OF THE MILITARY REQUIREMENT INVOLVED IN SERGEANT WILLIAMS' ASSIGNMENT TO
DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, THE QUESTION BEING
WHETHER HE WAS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES,
SPECIFICALLY A DISLOCATION ALLOWANCE, INCIDENT TO SUCH ASSIGNMENT IN THE
CIRCUMSTANCES IN WHICH IT WAS MADE. THE STATUTORY AUTHORITY FOR THE
PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES IS CONTAINED IN SECTION
303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253,
WHICH PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO
RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED ,UNDER
COMPETENT ORDERS.' A MILITARY ORDER HAS BEEN CONSIDERED TO BE AN ORDER
WHICH IS REQUIRED TO BE OBEYED STRICTLY AND EXECUTED PROMPTLY. SEE 2
COMP. GEN. 625, 626; 8 ID. 327, 330. IT IS AN ORDER SUCH AS THIS THAT
IS CONTEMPLATED IN THE REQUIREMENT IN THE CAREER COMPENSATION ACT OF
1949 THAT THE TRAVEL FOR WHICH ALLOWANCES ARE PAYABLE MUST BE PERFORMED
UNDER "COMPETENT ORDERS.'
A COMPETENT TRAVEL ORDER IS DEFINED IN PARAGRAPH 3001, JOINT TRAVEL
REGULATIONS, AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY
DIRECTING AN INDIVIDUAL OR GROUP OF INDIVIDUALS TO TRAVEL BETWEEN
DESIGNATED POINTS. AS TO THE TRAVEL ALLOWANCES AUTHORIZED UNDER SUCH
ORDERS, IT HAS BEEN SAID THAT "MILEAGE IS A FORM OF REIMBURSEMENT FOR
MONEY EXPENDED BY AN OFFICER IN THE GOVERNMENT'S
SERVICE, AND PUBLIC BUSINESS IS THE FOUNDATION ON WHICH MILEAGE
RESTS.' PERRIMOND V. UNITED STATES, 19 C.CLS. 509. THUS TRAVEL DIRECTED
BY COMPETENT AUTHORITY PERFORMED IN THE GOVERNMENT SERVICE IS TRAVEL ON
PUBLIC BUSINESS FOR WHICH REIMBURSEMENT IS AUTHORIZED, AND THIS IS TRUE
EVEN THOUGH IT IS KNOWN TO THE ORDER ISSUING AUTHORITY THAT THE TRAVEL
DIRECTED INVOLVES AN ASSIGNMENT WHICH IS PREFERRED BY THE MEMBER OR
MEMBERS TO WHOM THE ORDERS ARE ADDRESSED. THE SITUATION, HOWEVER, IS
DIFFERENT WHERE THE CHOICE OF COMPLYING WITH THE ORDERS AND PERFORMING
THE ATTENDANT TRAVEL LIES WITH THE ADDRESSEE. IT WAS IN SUCH A CASE,
PARMELEE V. UNITED STATES, 56 C.CLS. 125, THAT THE COURT DENIED PAYMENT
OF MILEAGE TO A NAVAL OFFICER WHO HAD BEEN GIVEN AN ORDER CONTAINING AN
OPTION TO PROCEED AT HIS OWN EXPENSE TO A DESIGNATED PLACE OR TO
CONSIDER THE ORDER REVOKED. SEE, ALSO, 3 COMP. GEN. 358. FURTHER, IT
DOES NOT APPEAR THAT THE PERMISSIVE CHARACTER OF AN ORDER UNDER WHICH
TRAVEL ALLOWANCES ARE NOT PAYABLE NEED TO BE ASCERTAINABLE ON ITS FACT.
IN THE CASE OF MCCAULY V. UNITED STATES, 50 C.CLS. 105, 113, THE COURT
SAID,"THE RULE IS WELL SETTLED THAT THE TERMS OF AN ORDER GIVEN FOR
TRAVEL, OR FOR THAT MATTER FOR ANY PURPOSE, CAN NOT DETERMINE THE
CHARACTER OF THE TRAVEL OR THE SERVICE PERFORMED, BUT THAT QUESTION MUST
BE DETERMINED BY THE COURT FROM THE PARTICULAR FACTS IN EACH CASE.' ON
THIS BASIS ORDERS HAVE BEEN HELD TO BE PERMISSIVE IN CHARACTER EVEN
THOUGH THE OPTION GRANTED THE RECIPIENT WAS NOT APPARENT ON THE FACE OF
THE ORDER. 3 COMP. GEN. 25; 7 ID. 20.
IN THE INSTANT CASE, SERGEANT WILLIAMS, APPARENTLY WITH PRIOR
KNOWLEDGE THAT THERE WAS, OR SOON WOULD BE, A BILLET VACANCY AT THE
MARINE CORPS RECRUIT DEPOT, SAN DIEGO, ADDRESSED A LETTER UNDER DATE OF
DECEMBER 12, 1956, TO THE COMMANDANT OF THE MARINE CORPS IN WHICH HE
REQUESTED THAT HE BE TRANSFERRED FROM CAMP LEJEUNE, NORTH CAROLINA, TO
THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, ON OR ABOUT FEBRUARY 1, 1957,
AND FURTHER INDICATED THAT HE UNDERSTOOD THAT FAVORABLE CONSIDERATION OF
THIS REQUEST WOULD REQUIRE THAT HE WAIVE ANY CLAIM TO TRANSPORTATION FOR
HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD EFFECTS UPON A SUBSEQUENT
TRANSFER TO THE FLEET MARINE CORPS RESERVE, AND TO A DISLOCATION
ALLOWANCE IN CONNECTION WITH HIS REQUESTED TRANSFER TO SAN DIEGO. BY
LETTER OF JANUARY 22, 1957, TO THE COMMANDING GENERAL, CAMP LEJEUNE, THE
COMMANDANT OF THE MARINE CORPS AUTHORIZED SERGEANT WILLIAMS' TRANSFER TO
SAN DIEGO, PROVIDED HE EXECUTED THE WAIVERS PROFFERED IN HIS REQUEST FOR
TRANSFER, WITH THE FURTHER EXPRESS CONDITION "SHOULD TECHNICAL SERGEANT
WILLIAMS DECLINE TO EXECUTE SUCH WAIVER, AUTHORITY FOR TRANSFER
CONTAINED IN PARAGRAPH 2 ABOVE IS CANCELLED.' SERGEANT WILLIAMS MET THE
REQUIRED CONDITIONS AND ON FEBRUARY 1, 1957, ORDERS, INCORPORATING BY
REFERENCE THE COMMANDANT'S LETTER OF JANUARY 22, 1957, WERE ISSUED
TRANSFERRING SERGEANT WILLIAMS TO SAN DIEGO. HE REPORTED AT SAN DIEGO
ON MARCH 18, 1957, AND THEREUPON REPUDIATED HIS WAIVER BY CLAIMING
PAYMENT OF A DISLOCATION ALLOWANCE UPON ADVICE FROM AN UNDISCLOSED
QUARTER.
FROM THE FACTS RECITED IT IS EVIDENT THAT THE ORDERS OF FEBRUARY 1,
1957, WERE NOT ORDERS WHICH SERGEANT WILLIAMS WAS REQUIRED TO OBEY, BUT
RATHER THAT, AT LEAST UNTIL THE TIME OF HIS DEPARTURE FROM CAMP LEJEUNE,
THEY WERE ORDERS SUCH AS COULD HAVE BEEN REJECTED BY HIM WITH IMPUNITY.
IN THESE CIRCUMSTANCES THE CONCLUSION IS REQUIRED THAT THE ORDERS OF
FEBRUARY 1, 1957, WERE EFFECTIVE ONLY AS AN ASSIGNMENT TO DUTY AT THE
MARINE CORPS RECRUIT DEPOT, SAN DIEGO, AND WERE NOT COMPETENT TRAVEL
ORDERS WITHIN THE MEANING OF THE CAREER COMPENSATION ACT OF 1949,
ENTITLING SERGEANT WILLIAMS TO PAYMENT OF TRAVEL AND TRANSPORTATION
ALLOWANCES. THIS CONCLUSION FINDS SUPPORT IN SUBPARAGRAPH D OF THE
ASSISTANT SECRETARY'S LETTER QUOTED ABOVE WHICH APPEARS CLEARLY TO
REFLECT THAT IT WAS NOT THE ADMINISTRATIVE INTENT TO PAY SERGEANT
WILLIAMS TRAVEL AND TRANSPORTATION ALLOWANCES ON THE BASIS OF AN ORDERED
PERMANENT CHANGE OF STATION TO THE MARINE CORPS RECRUIT DEPOT, BUT TO
PAY HIM, SOME TWO YEARS IN ADVANCE, THE ALLOWANCES WHICH WOULD ACCRUE TO
HIM SHOULD HE BE TRANSFERRED AT CAMP LEJEUNE SOME TWO YEARS HENCE TO THE
FLEET MARINE CORPS RESERVE AND THEREAFTER TRAVEL TO SAN DIEGO AS HIS
SELECTED HOME. NO STATUTORY AUTHORITY FOR THE DISBURSEMENT OF PUBLIC
FUNDS IN THIS MANNER HAS BEEN FOUND.
B-134259, MAR. 27, 1958
TO THE CENTRAL OF GEORGIA RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23 AND 25, 1957, FILE
NOS. N-39706-G-A AND N-28774-G-A, REQUESTING REVIEW OF THE AUDIT ACTION
TAKEN ON YOUR BILL NO. 39706-A AND BILLS NOS. 28774-A AND 28774-B,
RESPECTIVELY.
ON YOUR SUPPLEMENTAL BILL NO. 39706-A YOU CLAIMED $22.07 ADDITIONAL
FREIGHT CHARGES FOR TRANSPORTING A SHIPMENT OF CLOTHING FROM LOUISVILLE,
KENTUCKY, TO SAVANNAH, GEORGIA, UNDER GOVERNMENT BILL OF LADING NO.
DA-TPS-1027370. THE CLOTHING WAS LEND-LEASE PROPERTY PROCURED UNDER
LEND-LEASE REQUISITION NO. CF-711. YOUR CLAIM WAS DISALLOWED ON THE
BASIS THAT THE PROPERTY WAS MOVING FOR 100 PERCENT MILITARY USE.
HOWEVER, THE RECORD NOW ESTABLISHES THAT CLOTHING INVOLVED WAS PROPERTY
MOVING ONLY FOR CIVIL USE AND, CONSISTENT WITH THAT VIEW, SETTLEMENT
WILL BE MADE IN YOUR FAVOR ON SUPPLEMENTAL BILL NO. 39706-A.
THE PROPERTY INVOLVED IN THE SHIPMENTS COVERED BY YOUR SUPPLEMENTAL
BILLS NOS. 288774-A, AND 28774-A, WAS LEND-LEASE PROPERTY PROCURED UNDER
LEND-LEASE REQUISITION NO. UK-19000. YOUR CLAIMS WERE SETTLED ON THE
BASIS THAT THE PROPERTY WAS MOVING FOR 93 PERCENT MILITARY USE AND 7
PERCENT CIVIL USE. YOU CONTEND THAT AN ADDITIONAL 28 PERCENT ALLOCATED
FOR "SHIPYARD PLANT AND CONSTRUCTION" SHOULD ALSO BE CONSIDERED AS
MOVING FOR CIVIL USE. IN SUPPORT OF YOUR POSITION YOU RELY UPON OUR
SETTLEMENT OF YOUR SUPPLEMENTAL BILL NO. 23080-A-G-R-1245-9, WHICH YOU
CONTEND INVOLVED AN IDENTICAL CLAIM. WE GAVE EFFECT TO A DETERMINATION
THAT THE PROPERTY THERE INVOLVED, WHICH WAS PROCURED UNDER REQUISITION
NO. UK-14924, WAS MOVING FOR 100 PERCENT CIVIL USE.
THE RECORD SHOWS THAT THE INTENDED USE OF SUPPLIES PROCURED UNDER
REQUISITION NO. UK-14924 WAS ,FOR THE CONSTRUCTION OF TOOL HANDLES,"
WITHOUT ANY INDICATION OF ANY DIRECT MILITARY OR NAVAL USE. IN THE
CIRCUMSTANCES IT WAS ADMINISTRATIVELY DETERMINED THAT LAND-GRANT
DEDUCTIONS WERE NOT JUSTIFIED ON SHIPMENTS INVOLVING PROPERTY FURNISHED
UNDER REQUISITION NO. UK-14924, AND OUR SETTLEMENT OF YOUR SUPPLEMENTAL
BILL NO. 23080-A-G-R-1245-9 WAS CONSISTENT WITH SUCH DETERMINATION. THE
SUPPLIES PROCURED UNDER REQUISITION NO. UK-19000, ON THE OTHER HAND,
WERE INTENDED FOR USE BY "ARMY, NAVY, AIR, (AND) OTHER," AND THE END
USES ARE SHOWN AS 55 PERCENT FOR ,AMMUNITIION BOXES," 10 PERCENT FOR
"BARRACK EQUIPMENT AND STORES," 28 PERCENT FOR "SHIPYARD PLANT
AND CONSTRUCTION," AND 7 PERCENT FOR "ESSENTIAL HOME INDUSTRIES.'
SINCE THE RECORD INDICATED THAT ONLY 7 PERCENT OF THE PROPERTY PROCURED
UNDER REQUISITION NO. UK-19000 WAS INTENDED FOR CIVIL USE AND THAT THE
BALANCE WAS INTENDED TO MEET THE NEEDS OF THE ARMED FORCES, IT WAS
ADMINISTRATIVELY DETERMINED THAT 93 PERCENT OF THE MATERIAL INVOLVED
UNDER THIS REQUISITION WAS MILITARY OR NAVAL PROPERTY MOVING FOR
MILITARY OR NAVAL USE. SUCH A DETERMINATION WAS CONSISTENT WITH THE
CLASSIFICATION APPORTIONMENT AGREED UPON BY THE PARTIES FOR THIS
PARTICULAR REQUISITION IN THE STIPULATION FILED IN THE CASE OF ATLANTIC
COAST LINE RAILROAD COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 48900.
FOR THE REASONS GIVEN ABOVE, THE SETTLEMENT OF YOUR SUPPLEMENTAL
BILLS NOS. 28774-A AND 28774-A WAS PROPER AND, ACCORDINGLY, IS
SUSTAINED.
B-135349, MAR. 27, 1958
TO SERGEANT FIRST CLASS TOLBERT L. STALLINGS:
REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1957, AND
ENCLOSURES, FORWARDED HERE BY THE FINANCE CENTER, INDIANAPOLIS, INDIANA,
IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 1, 1951, WHICH
DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD
NOVEMBER 1, 1949, TO FEBRUARY 28, 1951, WHILE SERVING IN THE FREE
TERRITORY OF TRIESTE.
IN SUPPORT OF YOUR CLAIM YOU CERTIFIED UNDER DATE OF APRIL 12, 1951,
THAT DURING THE PERIOD INVOLVED GOVERNMENT QUARTERS AND MESS WERE NOT
AVAILABLE, THAT NO AUTHORIZED TRAVEL PER DIEM WAS PAID FOR THE PERIOD,
AND THAT NO MONETARY ALLOWANCE OF ANY NATURE HAS BEEN DRAWN FROM THE
UNITED NATIONS IN CONNECTION WITH ANY DUTY SUBSEQUENT TO MAY 31, 1948.
YOU FURTHER CERTIFIED THAT YOUR DEPENDENTS RESIDED IN TRIESTE FROM
NOVEMBER 1, 1949, TO THE DATE OF YOUR CLAIM, APRIL 12, 1951.
WAR DEPARTMENT CIRCULAR 196, EFFECTIVE JULY 25, 1947, PRESCRIBED THE
REGULATIONS WHICH WOULD GOVERN THE REIMBURSEMENT TO ALL MILITARY
PERSONNEL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES FOR TRAVEL
OR STATION ALLOWANCES. PARAGRAPH 7A OF THAT CIRCULAR PROVIDED THAT
STATION ALLOWANCES WOULD BE PAID ONLY WHERE GOVERNMENT QUARTERS AND
GOVERNMENT MESSES WERE NOT AVAILABLE. THIS REGULATION WAS SUPERSEDED BY
PARAGRAPH 4A, SPECIAL REGULATION 35-3080-1, DATED MAY 23, 1949, WHEREIN
IT WAS STATED THAT MILITARY PERSONNEL IN A PAY STATUS PERMANENTLY
STATIONED IN A CLASSIFIED COUNTRY OR AREA FOR WHICH STATION PER DIEM
ALLOWANCE RATES HAVE BEEN ESTABLISHED--- OF WHICH THE FREE TERRITORY OF
TRIESTE WAS ONE--- ARE ENTITLED TO THE PRESCRIBED STATION PER DIEM
ALLOWANCE WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT
AVAILABLE. "GOVERNMENT MESS" IS DEFINED IN SECTION IV, SUBSECTION 2F
(1) OF ARMY CIRCULAR NO. 80, DECEMBER 30, 1947, WHICH RESCINDED
PARAGRAPH 2F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS
FOLLOWS:
"FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY
MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. ANY
ORGANIZATIONAL MESS OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL WILL BE
CONSTRUED AS A "GOVERNMENT MESS, FOR THE PURPOSE OF THIS CIRCULAR.
RESTAURANTS AND CAFETERIAS OPERATED BY ARMY EXCHANGES OR OFFICERS' CLUBS
ARE NOT CONSIDERED TO BE ,GOVERNMENT MESS.' "
SPECIAL REGULATION 35-3080-1 AT PARAGRAPH 2F (1) DEFINES "GOVERNMENT
MESS, IN SIMILAR LANGUAGE, THE ONLY DIFFERENCE BEING THAT THE
DEFINITIONS THEREIN GIVEN INCLUDES ORGANIZATIONAL MESSES OPERATED FOR
AIR FORCE ENLISTED PERSONNEL AND EXCLUDES, AS IN THE CASE OF THE ARMY, A
RESTAURANT OR CAFETERIA OPERATED BY THE AIR FORCE FROM CONSIDERATION AS
A "GOVERNMENT MESS.'
THE REGULATIONS QUOTED ABOVE DO NOT CONTEMPLATE THE PAYMENT OF A
STATION SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN
OVERSEAS INSTALLATION IF EITHER AN OFFICERS' MESS, OR ORGANIZATIONAL
MESS FOR ENLISTED MEN, WAS IN OPERATION. THE INFORMATION FURNISHED OUR
OFFICE FROM OFFICIAL SOURCES AS TO THE MESSING FACILITIES AVAILABLE AT
TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE, CONSEQUENTLY,
AN INVESTIGATION WAS MADE BY OUR REPRESENTATIVES IN AN EFFORT TO LEARN
THE ACTUAL FACTS RELATIVE TO THIS MATTER. SUCH INVESTIGATION INCLUDED A
REPORT AS TO THE EXISTENCE OF OFFICERS' MESSES, AND WHILE IT IS
INDICATED THAT SOME OFFICERS' MESSES WERE IN OPERATION AT ONE TIME, IT
IS NOT NOW POSSIBLE TO DETERMINE WITH ANY DEGREE OF ACCURACY WHEN AND
FOR WHAT OFFICERS THEY WERE AVAILABLE. HOWEVER, IT IS CLEAR THAT
ORGANIZATIONAL MESSES FOR ENLISTED MEN WERE IN OPERATION AT TRIESTE
DURING THE ENTIRE PERIOD OF YOUR CLAIM. CONSEQUENTLY, IT WOULD APPEAR
THAT A "GOVERNMENT MESS," AS DEFINED IN THE PERTINENT REGULATIONS, WAS
AVAILABLE TO YOU AS AN OFFICER DURING THE PERIOD OF YOUR CLAIM, AND
THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE.
THEREFORE, AS TO STATION SUBSISTENCE PER DIEM, OUR SETTLEMENT OF AUGUST
1, 1951, IS SUSTAINED.
PRIOR TO THE ENACTMENT OF SECTION 303 (B) OF THE CAREER COMPENSATION
ACT OF 1949, 63 STAT. 814, THE GOVERNING REGULATIONS, FOUND AT
PARAGRAPHS 2E AND 7A OF WAR DEPARTMENT CIRCULAR NO. 196, AND PARAGRAPHS
2E AND 4A, SPECIAL REGULATIONS 35-3080-1, PROVIDED THAT THE RIGHT OF
MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE STATION PER DIEM
ALLOWANCE FOR OVERSEAS DUTY WAS GOVERNED BY THE NONAVAILABILITY OF
GOVERNMENT QUARTERS TO THEM INDIVIDUALLY AND DEPENDENTS WERE NOT
CONSIDERED. HOWEVER, WITH THE ENACTMENT OF THE CAREER COMPENSATION ACT
OF 1949, THE SECRETARIES OF THE UNIFORMED SERVICES WERE GIVEN AUTHORITY
TO CONSIDER ALL THE ELEMENTS OF THE COST OF LIVING TO MEMBERS "AND THEIR
DEPENDENTS" IN FIXING THE RATES OF PER DIEM PAYABLE FOR DUTY IN FOREIGN
COUNTRIES. IT WAS NOT UNTIL JUNE 30, 1950, THAT THE REGULATIONS
REQUIRED BY THIS ACT WERE ISSUED. THESE REGULATIONS AMENDED PARAGRAPH
2E, SPECIAL REGULATIONS 35-3080-1, AND PROVIDE IN PERTINENT PART AS
FOLLOWS:
"* * * FOR PERSONNEL IN A NON-TRAVEL STATUS WHERE DEPENDENTS ARE
RESIDING IN THE VICINITY OF THEIR PERMANENT STATION,"GOVERNMENT
QUARTERS" SHALL INCLUDE ANY GOVERNMENT QUARTERS ADEQUATE FOR
ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS OR
GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT OCCUPIED BY THE
MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS.'
ALSO AMENDED WAS PARAGRAPH 4A, SPECIAL REGULATIONS 35-3080-1, TO
PROVIDE THAT OFFICERS WHO WERE RECEIVING AN ALLOWANCE FOR QUARTERS UNDER
SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, SHOULD BE ENTITLED,
IN ADDITION TO THE RIGHTS VESTED BY THAT ACT, TO THE QUARTERS PORTION OF
THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS WHICH WOULD BE IN
LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS. THIS AMENDMENT
FURTHER PROVIDED IN PERTINENT PART:
"* * * THIS ALLOWANCE SHALL NOT BE CREDITED TO MEMBERS WITH
DEPENDENTS WHEN THEIR DEPENDENTS ARE NOT RESIDING IN THE VICINITY OF
THEIR PERMANENT STATION UNLESS GOVERNMENT QUARTERS ARE NOT AVAILABLE TO
THEM AT THEIR PERMANENT STATION AS MEMBERS WITHOUT DEPENDENTS.'
SECTION II, SPECIAL REGULATIONS 35-3080-1, PRESCRIBED A STATION
QUARTERS ALLOWANCE OF $1 A DAY FOR OFFICER PERSONNEL ON DUTY IN TRIESTE.
AS THERE IS INFORMATION AVAILABLE TO US THAT BACHELOR QUARTERS WERE
AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM, THERE
IS NO PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM FROM NOVEMBER 1,
1949, TO JUNE 29, 1950. YOUR CLAIM FOR STATION QUARTERS ALLOWANCE FOR
THE PERIOD JUNE 30, 1950, TO FEBRUARY 28, 1951, IS GOVERNED BY THE
REGULATIONS REFERRED TO ABOVE, ISSUED JUNE 30, 1950, WHICH AMENDED
PARAGRAPH 2E SPECIAL REGULATIONS 35-3080-1. THIS PORTION OF YOUR CLAIM
HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER CONSIDERATION
AND YOU WILL BE ADVISED OF THE ACTION TAKEN.
B-135430, MAR. 27, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 5, 1958, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO
THE ACTION TO BE TAKEN RELATIVE TO THE REQUEST OF MIYAZAKI KINZOKU
COMPANY, LTD., KAWASAKI, JAPAN, THAT CONTRACT NO. DA/S/92-557-FEC-15867
BE CANCELED ON THE GROUND THAT SUCH CONTRACT DOES NOT COVER THE MATERIAL
INSPECTED BY THE COMPANY PRIOR TO AWARD.
THE U.S. ARMY QUARTERMASTER CENTER, TOKYO, JAPAN, BY INVITATION NO.
92-557-S-57-919, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF
MISCELLANEOUS MATERIALS DESCRIBED UNDER ITEMS 1 TO 11, INCLUSIVE. ITEM
1 COVERED ONE LOT OF UNUSED MISCELLANEOUS SPARE PARTS FOR VARIOUS TYPES
OF CONSTRUCTION EQUIPMENT (LOT NO.SP. LOT NO. 5). IN RESPONSE MIYAZAKI
KINZOKU COMPANY, LTD., SUBMITTED A BID WHEREIN IT OFFERED TO PURCHASE
THE SPARE PARTS OFFERED UNDER ITEM 1 FOR A LOT PRICE OF 13,700,000 YEN.
THE BID OF THE COMPANY, WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE
AMOUNT OF 3,000,000 YEN, WAS ACCEPTED AS TO ITEM 1 ON JUNE 21, 1957.
BY LETTER DATED JUNE 26, 1957, MIYAZAKI KINZOKU COMPANY, LTD.,
REQUESTED CANCELLATION OF THE CONTRACT ON THE GROUND THAT THE "LOT"
AWARDED TO IT WAS NOT THE SAME LOT WHICH WAS INSPECTED BY ITS
REPRESENTATIVES PRIOR TO THE SUBMISSION OF ITS BID AND ON WHICH THE
COMPANY'S BID PRICE WAS BASED. THE COMPANY STATED THAT PERHAPS ITS
REPRESENTATIVES MAY HAVE MIXED UP THE LOTS IN PREPARING THEIR BID PRICE
SHEET.
IN A LETTER DATED AUGUST 14, 1957, THE COMPANY REITERATED ITS REQUEST
THAT THE CONTRACT BE CANCELED AND REQUESTED THAT ITS BID PRICE BE
REFUNDED FOR THE REASON THAT ITS REPRESENTATIVES HAD BEEN MISINFORMED BY
GOVERNMENT PERSONNEL AT THE TIME THEY HAD INSPECTED THE SURPLUS MATERIAL
COVERED BY ITEM 1. THE COMPANY STATED THAT UPON RECEIPT OF THE
INVITATION, REPRESENTATIVES OF THE COMPANY VISITED THE ENGINEER SUPPLY
CENTER FOR THE PURPOSE OF INSPECTING THE SURPLUS MATERIAL COVERED BY
ITEM 1; AND THAT A GOVERNMENT CHECKER SHOWED THE REPRESENTATIVES A
MULTITUDE OF BOXES AND CRATES IN ONE AREA AND THAT THE CHECKER STATED
THAT ALL THE BOXES AND CRATES WERE A PART OF LOT NO.SP. LOT NO. 5 (ITEM
1). ALSO, THE COMPANY STATED THAT AFTER THE BID OPENING, WHEN ITS
REPRESENTATIVES LEARNED THAT IT HAD SUBMITTED THE HIGHEST BID ON ITEM 1,
THEY AGAIN VISITED THE SITE WHERE THE SURPLUS PROPERTY COVERED BY THAT
ITEM WAS STORED AND THAT THEY WERE VERY SURPRISED WHEN THEY WERE SHOWN A
LOT OF ONLY ABOUT ONE-THIRD THE ORIGINAL AMOUNT PREVIOUSLY INSPECTED,
AND WHEN THEY WERE INFORMED THAT SUCH MATERIAL REPRESENTED THE ENTIRE
LOT. THE COMPANY CONTENDED THAT A LARGER LOT OF MATERIAL WAS ALSO SHOWN
TO THE NEXT HIGHEST BIDDER ON ITEM 1 AND IN SUPPORT OF SUCH CONTENTION,
THE COMPANY SUBMITTED A COPY OF A LETTER DATED AUGUST 9, 1957, FROM THE
NEXT HIGHEST BIDDER, SANSEI SHOKAI COMPANY. IN ITS LETTER, WHICH WAS
ADDRESSED TO THE CONTRACTING OFFICER, THE NEXT HIGHEST BIDDER STATED
THAT PRIOR TO SUBMISSION OF ITS BID, ITS REPRESENTATIVES ACCOMPANIED
REPRESENTATIVES OF THE MIYAZAKI KINZOKU COMPANY, LTD., IN THE INSPECTION
OF THE PROPERTY COVERED BY ITEM 1; THAT SEVERAL DAYS AFTER THE BID
OPENING MIYAZAKI KINZOKU COMPANY, TD., CONTACTED THEM AND INQUIRED
WHETHER THEY WERE CERTAIN OF THE LOT THEY HAD INSPECTED AS MIYAZAKI
KINZOKU COMPANY, LTC., HAD BEEN INFORMED THAT THE ITEM THEY HAD
INSPECTED AND BID UPON WAS NOT THE SAME AS THE ITEM AWARDED TO IT; AND
THAT REPRESENTATIVES OF THE SANSEI SHOKAI COMPANY CHECKED THE LOT OF
MATERIAL AWARDED TO MIYAZAKI KINZOKU COMPANY, LTD., AND DISCOVERED THAT
IT WAS ONLY ONE-FOURTH THE SIZE OF THE LOT OF MATERIAL IT HAD INSPECTED
PRIOR TO THE SUBMISSION OF ITS BID OF 11,200,000 YEN. THE NEXT HIGHEST
BIDDER ON ITEM 1 ALSO STATED THAT HAD IT BEEN AWARDED THAT ITEM, IT
WOULD HAVE STOOD TO LOSE APPROXIMATELY 5,000,000 YEN ON THE TRANSACTION.
THE ABSTRACT OF BIDS SHOWS THAT FIVE BIDS WERE RECEIVED ON ITEM 1 AND
THAT THE BIDS FALL INTO TWO PRICE-RANGE GROUPS. THE LOW PRICE-RANGE
GROUP CONSISTS OF THREE BIDS IN THE AMOUNTS OF 4,811,250 YEN, 4,365,000
YEN, AND 2,050,000 YEN; AND THAT THE HIGHER-PRICE RANGE GROUP CONSISTS
OF
THE BIDS OF MIYAZAKI KINZOKU COMPANY, LTD., AND SANSEI SHOKAI
COMPANY, WHICH ARE IN THE AMOUNTS OF 13,700,000 YEN AND 11,200,000 YEN,
RESPECTIVELY. IT IS REPORTED THAT THE ESTIMATED ACQUISITION
COST OF THE PROPERTY COVERED BY ITEM 1 IS $100,000. BOTH OF THE
BIDDERS IN HIGHER-PRICE RANGE GROUPS CONTEND THAT THE LOT OF MATERIAL
INSPECTED BY THEM PRIOR TO THE SUBMISSION OF THEIR BIDS WAS THREE OR
FOUR TIMES LARGER THAN THE LOT OF MATERIAL AWARDED TO MIYAZAKI KINZOKU
COMPANY, LTD. WHILE THE CHIEF, PROPERTY DISPOSAL DIVISION, DOES STATE
IN HIS MEMORANDUM OF AUGUST 22, 1957, THAT "TO THE BEST OF MY KNOWLEDGE
AND BELIEF, ITEM 1, I/B 919, MISCELLANEOUS SPARE PARTS LOT, HAS REMAINED
INTACT SINCE ORIGINALLY PREPARED FOR SALE; " SUCH STATEMENT DOES NOT
AMOUNT TO A DENIAL THAT PRIOR TO THE SUBMISSION OF THEIR BIDS ON ITEM 1,
REPRESENTATIVES OF MIYAZAKI KINZOKU COMPANY, LTD., AND SANSEI SHOKAI
COMPANY WERE SHOWN THE WRONG LOT OF MATERIAL OR A LARGER LOT OF MATERIAL
BY THE CHECKERS AT THE ENGINEER SUPPLY CENTER. ALSO, THE FACT THAT THE
PRICES QUOTED BY MIYAZAKI KINZOKU COMPANY, LTD., AND SANSEI SHOKAI
COMPANY FOR ITEM 1 ARE ALMOST THREE TIMES MORE THAN THE PRICES QUOTED BY
THE NEXT HIGHEST BIDDERS ON THAT ITEM TENDS TO CONFIRM THE CORRECTNESS
OF THEIR STATEMENT THAT THEY WERE SHOWN, AT THE TIME OF THE PRELIMINARY
INSPECTION, A LOT OF MATERIAL THREE TIMES LARGER THAN THE LOT OF
MATERIAL AWARDED TO MIYAZAKI KINZOKU COMPANY, LTD. THERE IS ALSO TO BE
CONSIDERED THE FACT THAT THE PRICE QUOTED BY MIYAZAKI KINZOKU COMPANY,
LTD., FOR ITEM 1
REPRESENTS A 38.1 PERCENT RETURN ON A TYPE OF ITEM WHICH, THE COMPAN
STATES IN ITS LETTER OF AUGUST 14, 1957, HAS BROUGHT IN PREVIOUS SALES A
RETURN OF ONLY 6 TO 11 PERCENT.
THUS, THE RECORD INDICATES THAT THERE IS A SUBSTANTIAL BASIS TO
CONCLUDE THAT THE PROPERTY OFFERED FOR DELIVERY UNDER THE CONTRACT WAS
NOT THAT WHICH REPRESENTATIVES OF MIYAZAKI KINZOKU COMPANY, LTD., AND
SANSEI SHOKAI COMPANY INSPECTED PRIOR TO THE SUBMISSION OF THEIR BIDS
AND UPON WHICH THEIR BID PRICES WERE BASED. IN THE CIRCUMSTANCES, IT
WOULD BE INEQUITABLE TO REQUIRE MIYAZAKI KINZOKU COMPANY, LTD., TO
ACCEPT THE MATERIAL COVERED BY ITEM 1 AT ITS BID PRICE. ACCORDINGLY,
SINCE IT APPEARS THAT THE COMPANY HAS NOT TAKEN ANY FURTHER STEPS
TOWARDS COMPLETION OF THE CONTRACT, CONTRACT NO. DA/S/92-557-FEC-15867
MAY BE CANCELED WITHOUT LIABILITY TO THE COMPANY AND REFUND OF THE BID
DEPOSIT MAY BE MADE TO THE COMPANY.
B-135440, MAR. 27, 1958
TO MR. HAROLD LERMAN:
YOUR LETTER OF FEBRUARY 18, 1958, REQUESTS REVIEW OF SETTLEMENT DATED
FEBRUARY 13, 1958, WHICH DISALLOWED YOUR CLAIM FOR $3.89 PLUS $1.06, OR
A TOTAL OF $4.95, AS REFUND OF PROMPT PAYMENT DISCOUNT DEDUCTED IN
EFFECTING PAYMENT FOR CERTAIN PROFESSIONAL BOOKS FURNISHED THE
DEPARTMENT OF THE ARMY, VALLEY FORGE ARMY HOSPITAL, PHOENIXVILLE,
PENNSYLVANIA, PURSUANT TO CONTRACT NO. MPA-30-287-MD-28700, DATED JULY
10, 1956.
YOU STATE THAT YOU HAVE BEEN RECEIVING PARTIAL PAYMENT FROM 99
PERCENT OF THE INSTALLATIONS WHICH USE A SIMILAR CONTRACT FORM, THAT
PROMPT PAYMENT DISCOUNT IS ALWAYS JUDGED FROM THE RECEIPT OF THE
MERCHANDISE OR THE INVOICE, WHICHEVER IS LATER, AND THAT AT NO TIME HAVE
YOU HAD TO ALLOW A PROMPT PAYMENT DISCOUNT UNTIL THE ORDER WAS
COMPLETED.
THE RECORD SHOWS THAT UNDER PARAGRAPH T ON CONTINUATION SHEET NO. 6
THE DISCOUNT TERMS ARE STATED AS FOLLOWS:
"TERMS: 3 PERCENT - 20 DAYS ON ALL OF THE ABOVE PUBLISHERS WITH THE
EXCEPTION OF NO. 2, BLAKISTON, NO/3-DAVIS, NO. 6-LEA AND FEBIGER AND NO.
10-SAUNDERS.'
THE RECORD HERE FURTHER SHOWS THAT IN REPLY TO THE REQUEST OF OUR
OFFICE TO THE DEPARTMENT OF THE ARMY FOR A STATEMENT OF THE FACTS IN
THIS MATTER THE AGENCY REPORTED, THAT ITS RECORD INDICATES THERE WAS NO
SPECIFIC STIPULATION IN THE FISCAL YEAR 1957 CONTRACT REGARDING PARTIAL
PAYMENTS AND PARTIAL RECEIVING REPORTS AND THEREFORE, THE DEPARTMENT
FELT JUSTIFIED IN DEDUCTING PROMPT PAYMENT DISCOUNT BASED UPON COMPLETED
RECEIVING REPORT IN COMPLIANCE WITH ARMY REGULATIONS.
THE EXTRACT QUOTED IN YOUR LETTER OF OCTOBER 21, 1957, WITH REGARD T
PARTIAL DELIVERY UNDER AN ORDER APPEARS TO BE FROM THE FISCAL YEAR 1958
CONTRACT BUT DOES NOT APPEAR TO HAVE BEEN INCLUDED IN THE FISCAL YEAR
1957 CONTRACT HERE INVOLVED. THE FACT THAT YOU WERE PAID THE GROSS
AMOUNT ON YOUR INVOICES IN OTHER CASES IS NOT DETERMINATIVE OF THE
MATTER HERE INVOLVED.
ACCORDINGLY, THE DISCOUNT APPEARS TO HAVE BEEN PROPERLY TAKEN AND THE
SETTLEMENT OF FEBRUARY 13, 1958, IS SUSTAINED.
B-135453, MAR. 27, 1958
TO HONORABLE LEWIS L. STRAUSS, CHAIRMAN, UNITED STATES ATOMIC ENERGY
COMMISSION:
REFERENCE IS MADE TO A LETTER DATED MARCH 7, 1958, WITH ENCLOSURES,
FROM THE DEPUTY GENERAL MANAGER, REQUESTING A DECISION RELATIVE TO AN
ERROR THE STUBBS ELECTRIC COMPANY, PORTLAND, OREGON, ALLEGES IT MADE IN
ITS BID ON WHICH PURCHASE ORDER HA-57-1531 IS BASED.
THE U.S. ATOMIC ENERGY COMMISSION, HANFORD OPERATIONS OFFICE,
RICHLAND, WASHINGTON, BY INVITATION NO. 451-57-169, DATED NOVEMBER 26,
1956, REQUESTED BIDS FOR FURNISHING, AMONG OTHER ITEMS, 100 SOLDERLESS
LUGS, AS SPECIFIED. THE STUBBS ELECTRIC COMPANY SUBMITTED A BID
OFFERING TO FURNISH, AMONG OTHERS, THE LUGS UNDER ITEM 3 AT A PRICE OF
$23. THE BID OF THE COMPANY WAS ACCEPTED AND A PURCHASE ORDER DATED
DECEMBER 11, 1956, WAS ISSUED.
IT APPEARS THAT THE SUPPLIES WERE PARTIALLY DELIVERED ON DECEMBER 28,
1956, AND FINAL DELIVERY WAS MADE MARCH 11, 1958. IT ALSO APPEARS THAT
THE COMPANY'S INVOICES FOR THESE DELIVERIES DATED FEBRUARY 19 AND MARCH
14, 1957, WERE PAID ON APRIL 4, 1957, AND THAT THE COMPANY'S REQUEST FOR
RELIEF WAS DATED JUNE 19, 1957. IN REPLY TO THE COMMISSION'S INQUIRY AS
TO THE REASON FOR THE DELAY IN ALLEGING ERROR, THE COMPANY CLAIMS THAT
IT FIRST NOTIFIED THE HANFORD OFFICE OF ITS ERROR ON JANUARY 9, 1957.
YOU STATE YOU HAVE NO RECORD OF SUCH A LETTER AND THAT PRESUMABLY THE
LETTER WAS LOST IN THE MAILS.
THE COMPANY CONTENDS THAT IN OFFERING TO FURNISH 100 LUGS FOR $23 A
MISTAKE OCCURRED IN THE PLACING OF THE DECIMAL POINT AND THAT ITS BID
PRICE SHOULD HAVE BEEN $230. THE ABSTRACT OF BIDS INDICATES THAT TWO
OTHER BIDDERS QUOTED PRICES OF $238 AND $243, RESPECTIVELY. IT SEEMS
APPARENT THAT THE COMPANY MADE AN ERROR IN ITS BID ON ITEM 3 AND, IN THE
CIRCUMSTANCES, THAT THE BID AS TO ITEM 3 SHOULD NOT HAVE BEEN ACCEPTED
WITHOUT REQUESTING THE COMPANY TO VERIFY ITS BID.
ACCORDINGLY, AND SINCE THE LUGS HAVE BEEN DELIVERED, AN ADDITIONAL
PAYMENT OF $196 IS AUTHORIZED TO BE MADE TO THE STUBBS ELECTRIC COMPANY,
FOR THE QUANTITY OF LUGS UNDER ITEM 3 OF PURCHASE ORDER NO. HA-57-1531,
AS RECOMMENDED BY THE DEPUTY GENERAL MANAGER. A REFERENCE TO THIS
DECISION SHOULD BE MADE ON THE VOUCHER COVERING THE ADDITIONAL PAYMENT.
THE PAPERS, WITH THE EXCEPTION OF YOUR LETTER OF MARCH 7, 1958, ARE
RETURNED AS REQUESTED.
B-135522, MAR. 27, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 14, 1958, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS, REQUESTING A
DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF SOUGHT BY THE
MARATHON RUBBER PRODUCTS COMPANY UNDER CONTRACT NO.
DA-36-243-QN/CTM/-358, DATED JUNE 14, 1957.
IN RESPONSE TO INVITATION NO. QM/CTM/36-243-57-102, ISSUED ON MAY 27,
1957, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA
QUARTERMASTER DEPOT, THE MARATHON RUBBER PRODUCTS COMPANY OFFERED TO
FURNISH, ON AN F.O.B. DESTINATION BASIS, ITEM NO. 1, COVERING 7,987
RAINCOATS, MAN-S, SYNTHETIC RUBBER COATED, ETC., AT $5.49 EACH, OR FOR A
TOTAL PRICE OF $43,848.63. THE BID OF THE MARATHON RUBBER PRODUCTS
COMPANY WAS THE LOWEST BID RECEIVED FOR ITEM NO. 1 AND, THEREFORE, IT
WAS ACCEPTED BY THE PHILADELPHIA QUARTERMASTER DEPOT ON JUNE 14, 1957,
THEREBY CONSUMMATING CONTRACT NO. DA-36-243-QM/CTM/-358. BY LETTER
DATED OCTOBER 16, 1957, THE MARATHON RUBBER PRODUCTS COMPANY ADVISED THE
QUARTERMASTER DEPOT THAT AN ERROR HAD BEEN MADE IN ITS BID, IN THAT
ADDENDUM NO. 1 TO THE INVITATION, WHICH CHANGED THE SHIPPING
REQUIREMENTS FROM AN F.O.B. ORIGIN TO F.O.B. DESTINATION BASIS WAS
EXECUTED AND RETURNED WITHOUT INCREASING THE BID PRICE TO COVER THE COST
OF THE ADDITIONAL TRANSPORTATION EXPENSES TO THE CONTRACTOR. IN VIEW OF
THE ALLEGED ERROR THE COMPANY REQUESTS REIMBURSEMENT FOR THE
TRANSPORTATION COSTS IN THE TOTAL AMOUNT OF $1,632.39. IT IS REPORTED
THAT COMPLETE PERFORMANCE UNDER THE CONTRACT WAS EFFECTED ON DECEMBER
19, 1957, AND PAYMENT MADE IN THE FULL AMOUNT UNDER THE CONTRACT.
ADDENDUM NO. 1 PROVIDED, AMONG OTHERS, THAT THE BID QUOTATIONS MUST
INCLUDE ALL COSTS OF DELIVERY TO EITHER ONE OR MORE OF THE DEPARTMENT OF
THE ARMY TERMINALS LOCATED AT BROOKLYN, NEW YORK; NORFOLK, VIRGINIA;
NEW ORLEANS, LOUISIANA; OAKLAND, CALIFORNIA; AND SEATTLE, WASHINGTON.
A TOTAL OF FOUR BIDS WERE RECEIVED IN RESPONSE TO INVITATION NO.
QM/CTM/36-243-57-102, TWO OF WHICH QUOTED PRICES OF $5.92 AND $6.40
EACH, F.O.B. TO THE BROOKLYN ARMY TERMINAL. ONE OTHER BIDDER, LOCATED
AT HUDSON, MASSACHUSETTS, QUOTED RESPECTIVE F.O.B. DESTINATION PRICE OF
$7.69, $7.72, $7.78, $7.90 AND $7.95 EACH TO ALL FIVE OF THE ARMY
TERMINALS AND THE BID OF THE MARATHON RUBBER PRODUCTS COMPANY WAS FOR
$5.49 EACH, F.O.B. DESTINATION TO EACH OF THE FIVE TERMINALS. WHILE
ADMITTEDLY THE BID OF THE NEXT LOW BIDDER OF $5.92 EACH WAS FOR DELIVERY
ONLY TO THE BROOKLYN ARMY TERMINAL, YET FOR BID COMPARISON PURPOSES TO
THIS PARTICULAR DESTINATION, THE BID OF THE MARATHON RUBBER PRODUCTS
COMPANY WAS ONLY $0.43 A UNIT LOWER. WHEN THIS IS CONSIDERED, TOGETHER
WITH THE FACT THAT THERE ALSO EXISTED A VARIATION OF ONLY FROM $0.03 TO
$0.26 EACH IN THE F.O.B. DESTINATION PRICES OF THE BIDDER WHO QUOTED
DIFFERENT PRICES ON EACH OF THE FIVE DEPARTMENT OF THE
ARMY TERMINALS, NOTWITHSTANDING THE CROSS-COUNTRY DISTANCES
NECESSARILY INVOLVED IN SEVERAL OF THE DESTINATIONS, IT IS NOT BELIEVED
THAT FROM AN OVER-ALL BID COMPARISON BASIS IT MAY BE CONCLUDED THAT THE
BID OF THE MARATHON RUBBER PRODUCTS COMPANY WAS OUT OF LINE WITH THE
OTHER BIDS
RECEIVED. MOREOVER, THE FACT THAT THE MARATHON RUBBER PRODUCTS
COMPANY SUBMITTED THE SAME BID PRICE TO ALL FIVE DESTINATIONS WHEN ONE
OF THE BIDDERS QUOTED DIFFERENT PRICES FOR EACH TERMINAL MAY NOT, IN
ITSELF, BE CONSIDERED AS BEING INDICATIVE OF A PROBABLE ERROR IN THE BID
SINCE, AS STATED IN THE REPORT AND RECOMMENDATIONS FURNISHED BY THE
DEPARTMENT OF THE ARMY IN THE CASE, IT IS NOT NECESSARILY UNUSUAL FOR A
BIDDER TO SUBMIT A BLANKET BID IN RESPONSE TO INVITATIONS SPECIFYING
F.O.B. DELIVERIES AT SEVERAL DIFFERENT DESTINATIONS. ALSO, SUCH A
BLANKET BID WOULD NOT BE REGARDED AS UNUSUAL IN THIS CASE AS THE
CONTRACTOR'S SHIPPING POINT IS MORE OR LESS CENTRALLY LOCATED WITH
REGARD TO THE VARIOUS TERMINALS MENTIONED IN THE INVITATION.
IN VIEW OF THE FOREGOING, AND SINCE NO INDICATION OF AN ERROR
APPEARED ON THE FACE OF THE BID ITSELF OR IN ANY OF THE OTHER ATTENDANT
CIRCUMSTANCES THERETO, IT MAY NOT BE CONCLUDED THAT THE CONTRACTING
OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF AN ERROR IN THE
LOW BID. THE ACCEPTANCE OF THE BID OF THE MARATHON RUBBER PRODUCTS
COMPANY UNDER THE CIRCUMSTANCES REPORTED WAS MADE IN GOOD FAITH. SUCH
ACCEPTANCE CONSUMMATED A VALID CONTRACT WHICH FIXED THE RIGHTS AND
LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE
GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN
THE GOVERNMENT UNDER SUCH CONTRACTS.
ACCORDINGLY, OUR OFFICE FINDS NO LEGAL BASIS UPON WHICH ANY PART OF
THE $1,632.39 CLAIMED MAY BE ALLOWED.
THE PAPERS, WITH THE EXCEPTION OF THE REPORT AND RECOMMENDATION OF
THE SUCCESSOR CONTRACTING OFFICER DATED JANUARY 28, 1958, AND THE
MEMORANDUM OF THE CONTRACT ADJUSTMENT BRANCH, OFFICE OF THE GENERAL
COUNSEL, DATED MARCH 3, 1958, ARE RETURNED HEREWITH.
B-135562, MAR. 27, 1958
TO MR. ADAM E. SHUMAN, CHIEF, MARKETING DIVISION, VETERANS
ADMINISTRATION SUPPLY DEPOT:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 17, 1958, WITH
ENCLOSURES, REQUESTING A DECISION WHETHER EAST RUTHERFORD SYRINGES,
INCORPORATED, EAST RUTHERFORD, NEW JERSEY, SHOULD BE PERMITTED TO
WITHDRAW ITS BID BECAUSE OF AN ERROR IT ALLEGED UPON REQUEST FOR
VERIFICATION.
IN RESPONSE TO INVITATION NO. M1-195, EAST RUTHERFORD SYRINGES,
INCORPORATED, BID $2.25 EACH TO FURNISH 10CC GLASS SYRINGES REQUIRED
UNDER ITEMS 38 THROUGH 40. THE BID WAS BELIEVED TO BE ERRONEOUS BECAUSE
IT WAS OUT OF LINE WITH THE OTHER BID RECEIVED IN THE AMOUNT OF $4.54
AND WITH THE PREVIOUS PRICE PAID FOR THESE SYRINGES. IN RESPONSE TO A
REQUEST TO VERIFY THE BID PRICE, THE BIDDER REPLIED THAT IN PREPARING
ITS BID IT OVERLOOKED THE SPECIFICATION REQUIREMENT THAT THE SYRINGES BE
EQUIPPED WITH A CRH PLUNGER, WHICH IT DOES NOT MANUFACTURE.
SINCE, UPON REQUEST FOR VERIFICATION, THE BELIEF THAT THE BID WAS
ERRONEOUS WAS CONFIRMED, THE BID SHOULD BE DISREGARDED.
B-135576, MAR. 27, 1958
TO MR. E. T. SHANKS, CONTRACTING OFFICER:
YOUR LETTER OF MARCH 18, 1958, 5156/134, REQUESTS A DECISION AS TO
THE CORRECT AWARD PROCEDURE TO BE FOLLOWED IN CONNECTION WITH INVITATION
NO. 58-35, ISSUED FEBRUARY 26, 1958.
THE SAID INVITATION SOLICITED PROPOSALS ON 17 SEPARATE ITEMS OF
PLUMBING SUPPLIES AS LISTED IN THE BIDDING SCHEDULE. UPON OPENING OF
THE PROPOSALS AT 2:30 P.M., MARCH 13, 1958, IT WAS NOTED THAT THE BID OF
MID-TENN. SUPPLY COMPANY, NASHVILLE, TENNESSEE, WAS EXTREMELY LOW ON
ITEMS NOS. 1 THROUGH 9, CONSISTING OF DIFFERENT SIZES AND LENGTHS OF
BLACK WROUGHT IRON PIPE. UPON CONTACTING THE FIRM BY TELEPHONE FOR
CONFIRMATION OF ITS QUOTED BID PRICES THEY ALLEGED THAT, THROUGH ERROR,
THEY HAD QUOTED ON BLACK STEEL, IN LIEU OF THE SPECIFIED WROUGHT IRON,
PIPING.
IN FURTHER ANALYZING THE BIDS IT WAS DISCOVERED THAT TWO OF THE OTHER
BIDDERS UNDER THIS INVITATION, THE CLARK HARDWARE COMPANY AND MID-STATE
STEEL, INC., HAD ALSO QUOTED IN THE SAME PRICE RANGE AS THE MID-TENN.
SUPPLY COMPANY WHICH RESULTED IN THEIR BIDS BEING APPROXIMATELY 50
PERCENT LOWER ON THOSE ITEMS THAN THE BID PRICES QUOTED THEREON BY THE
OTHER BIDDERS. UPON CONTACTING THESE FIRMS, THEY ALSO CLAIMED ERROR IN
HAVING QUOTED ON STEEL, INSTEAD OF WROUGHT IRON PIPE.
EACH OF THESE THREE BIDDERS HAS FORWARDED A LETTER TO THE CONTRACTING
OFFICER, CONFIRMING ITS ALLEGATION OF ERROR, AND EXPLAINING HOW THE
ALLEGED MISTAKE OCCURRED. ALSO, EACH OF THE THREE LOWEST BIDDERS ON
ITEMS NOS. 1 THROUGH 9 REQUESTS THE WITHDRAWAL OF ITS BID.
IN THE CIRCUMSTANCES, YOU REQUEST AN ADVANCE DECISION (1) AS TO
WHETHER THE THREE BIDDERS MENTIONED MAY BE ALLOWED TO WITHDRAW THEIR
BIDS AND (2) WHETHER THE AWARD PROPERLY MAY BE MADE IN FAVOR OF THE
NOLAND COMPANY, AS THE NEXT LOWEST BIDDER.
THE ANSWER TO BOTH OF THESE QUESTIONS IS IN THE AFFIRMATIVE. SEE 34
COMP. GEN. 633; 35 ID. 83; CF. 36 ID. 441.
B-87468, MAR. 27, 1958
TO MRS. VIOLET R. ALLEN, AUTHORIZED CERTIFYING OFFICER, OFFICE OF
FINANCE, DEPARTMENT OF STATE:
YOUR LETTER OF DECEMBER 19, 1957, REQUESTS OUR DECISION CONCERNING
THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER, TRANSMITTED
THEREWITH, IN FAVOR OF PAUL S. GUINN, FOR $6,814.63, REPRESENTING THE
UNREFUNDED CREDIT (CONTRIBUTIONS PLUS INTEREST) OF MR. GUINN IN THE
FOREIGN SERVICE RETIREMENT AND DISABILITY FUND.
THE PERTINENT FACTS DISCLOSED BY YOUR LETTER ARE AS FOLLOWS: MR.
GUINN, AFTER HAVING SERVED IN SEVERAL POSITIONS SUBJECT TO THE CIVIL
SERVICE RETIREMENT ACT WAS TRANSFERRED ON JULY 1, 1939, TO A POSITION
UNDER THE FOREIGN SERVICE. AT THE TIME OF SUCH TRANSFER THE AMOUNT TO
HIS CREDIT IN THE CIVIL SERVICE RETIREMENT FUND WAS REFUNDED TO HIM AND,
SUBSEQUENTLY, HE PURCHASED CREDIT FOR FOREIGN SERVICE RETIREMENT
PURPOSES, FOR THE PERIOD JULY 1, 1924 (THE DATE DEDUCTIONS WERE FIRST
REQUIRED TO BE MADE TO THE FOREIGN SERVICE RETIREMENT AND DISABILITY
FUND), TO JUNE 30, 1939. MR. GUINN REMAINED IN THE FOREIGN SERVICE
UNTIL SEPTEMBER 30, 1948, WHEN HE VOLUNTARILY RETIRED UNDER SECTION 636
OF THE FOREIGN SERVICE ACT, 60 STAT. 1016, 22 U.S.C. 1006.
EFFECTIVE FEBRUARY 3, 1949, HIS FOREIGN SERVICE RETIREMENT ANNUITY
WAS SUSPENDED BECAUSE HE ACCEPTED A POSITION WITH THE ECONOMIC
COOPERATION ADMINISTRATION ON FEBRUARY 4 OF THAT YEAR. THEREAFTER, HE
CONTINUED TO BE EMPLOYED IN POSITIONS SUBJECT TO THE CIVIL SERVICE
RETIREMENT ACT THROUGH FEBRUARY 28, 1957. ON FEBRUARY 28, 1956, MR.
GUINN DEPOSITED $7,553 TO THE CIVIL SERVICE RETIREMENT AND DISABILITY
FUND TO PURCHASE CREDIT FOR SERVICE FROM AUGUST 1, 1920, TO SEPTEMBER
30, 1948, AND, BY LETTER OF OCTOBER 17, 1955, TO THE SECRETARY OF STATE,
HE EXECUTED A WAIVER OF ALL BENEFITS UNDER THE FOREIGN SERVICE
RETIREMENT SYSTEM CONDITIONED UPON THE CIVIL SERVICE COMMISSION'S
ACCEPTANCE OF HIS APPLICATION FOR RETIREMENT UNDER THE CIVIL SERVICE
RETIREMENT SYSTEM. THE CIVIL SERVICE COMMISSION ACCEPTED HIS
APPLICATION AND HE WAS RETIRED ON MARCH 1, 1957, AND PRESENTLY IS AN
ANNUITANT UNDER THE CIVIL SERVICE RETIREMENT SYSTEM.
MR. GUINN'S CONTRIBUTIONS TO THE FOREIGN SERVICE RETIREMENT AND
DISABILITY FUND PLUS INTEREST THROUGH SEPTEMBER 30, 1948, THE DATE OF
HIS RETIREMENT FROM THE FOREIGN SERVICE, REPORTEDLY TOTALED $7,681.16.
HE RECEIVED ANNUITIES FROM SUCH FUND PRIOR TO HIS EMPLOYMENT WITH THE
ECONOMIC COOPERATION ADMINISTRATION TOTALING $866.53. THE DIFFERENCE,
$6,814.63, IS THE AMOUNT CLAIMED ON THE VOUCHER IN QUESTION.
WHILE THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, AS AMENDED,
CONTAINS NO EXPRESS PROVISION FOR REFUND OF CONTRIBUTIONS PLUS INTEREST
WHEN A RETIRED FOREIGN SERVICE OFFICER WAIVES HIS RIGHT TO A FOREIGN
SERVICE RETIREMENT ANNUITY FOR THE PURPOSE OF OBTAINING CREDIT UNDER
ANOTHER RETIREMENT SYSTEM FOR THE PERIOD OF TIME UPON WHICH SUCH FOREIGN
SERVICE RETIREMENT ANNUITY WAS BASED, WE ARE OF THE OPINION THAT A
REFUND IN SUCH A CASE WOULD BE IN ACCORDANCE WITH THE SPIRIT, IF NOT THE
LETTER, OF THE FOREIGN SERVICE ACT. AS YOU INDICATE IN YOUR LETTER,
SECTIONS 634 (A) (2), 832, AND 841 OF THE FOREIGN SERVICE ACT OF 1946,
22 U.S.C. 1004; ID. 1082; ID. 1086, RESPECTIVELY, STRONGLY INDICATE A
CONGRESSIONAL INTENT THAT A FOREIGN SERVICE OFFICER SHOULD RECEIVE FROM
THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND AN AMOUNT AT LEAST
EQUAL TO HIS CONTRIBUTIONS TO THAT FUND PLUS INTEREST EXCEPT WHEN HE IS
SEPARATED FOR UNSATISFACTORY PERFORMANCE UNDER SECTION 637 OF THE ACT
(22 U.S.C. 1007) OR FOR MISCONDUCT OR MALFEASANCE UNDER SECTION 638 OF
THE ACT (22 U.S.C. 1008), IN WHICH EVENT HE COULD RECEIVE A REFUND OF
CONTRIBUTIONS
WITHOUT INTEREST. CF. THE CONCLUSION REACHED IN OUR DECISION OF
NOVEMBER 5, 1953, B-117039, 33 COMP. GEN. 205, CITED IN YOUR LETTER.
THEREFORE, WE CONCLUDE THAT A REFUND TO MR. GUINN UNDER THE
CIRCUMSTANCES RELATED WOULD BE CONSISTENT WITH THE PROVISIONS OF THE
FOREIGN SERVICE ACT OF 1946.
THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT
IF OTHERWISE CORRECT.
B-132790, MAR. 26, 1958
TO MR. KEITH RADLEY, PRESIDENT, THIRTEENTH DIVISION, N.P.T.A. :
YOUR LETTER OF NOVEMBER 14, 1957, REQUESTS OUR RECONSIDERATION OF THE
CLAIMS OF SEVERAL POSTAL TRANSPORTATION EMPLOYEES WHO WERE FORMERLY
ASSIGNED TO THE BILLINGS AND SWEETGRASS RAILWAY POST OFFICE. ON JULY
27, 1957, YOU FORWARDED TO US THE SEVERAL EMPLOYEES' CLAIMS FOR A
RECOMPUTATION OF, AND AN ADJUSTMENT IN, THEIR TIME CREDITS FOR ALL
LAYOVER PERIODS WHICH OCCURRED BETWEEN APPROXIMATELY FEBRUARY 25, 1952,
AND SEPTEMBER 25, 1955, BECAUSE OF A CHANGE IN THE OPERATING SCHEDULES
OF CERTAIN TRAINS OF THE GREAT NORTHERN RAILWAY. EACH OF THE CLAIMS
WERE DISALLOWED OCTOBER 31, 1957, ESSENTIALLY UPON THE GROUND THAT
EMPLOYEES HAD NO STATUTORY RIGHT TO COMPENSATION FOR THE UNPRODUCTIVE
TIME IN QUESTION; MOREOVER, THE EMPLOYEES ON FEBRUARY 8, 1952, HAD
SIGNED A WAIVER OF TIME CREDIT FOR THE LAY-OVER PERIODS WHICH WERE
NECESSITATED BY THE CHANGES IN TRAIN SCHEDULES FROM BILLINGS VIA GREAT
FALLS TO SWEETGRASS EFFECTIVE FEBRUARY 26, 1952.
AS INDICATED IN THE SETTLEMENT OF OCTOBER 31, 1957, THE
ADMINISTRATIVE REGULATIONS CITED BY THE CLAIMANTS AS SUPPORTING THEIR
CLAIMS DID NOT PRECLUDE A WAIVER OF BENEFITS WHICH MIGHT ARISE
THEREUNDER. AS A MATTER OF FACT, BY VIRTUE OF THE WAIVER OF FEBRUARY 8,
1952, THE CLAIMS WERE PERMITTED TO RETAIN THEIR PRIOR CLASSIFICATION,
SALARY RATES, AND PLACES OF RESIDENCE, NOTWITHSTANDING THAT UNDER THE
PROVISIONS OF LAW THEN IN EFFECT, NAMELY, SECTION 16 (P) OF THE 1945
POSTAL PAY ACT, 39 U.S.C. 866, CLERKS ON ROAD DUTY IN CLASS A RAILWAY
POST OFFICES NORMALLY WOULD RECEIVE LESS COMPENSATION THAN THOSE ON
CLASS B RUNS. HOWEVER, YOUR LETTER OF NOVEMBER 14 IN BEHALF OF THE
CLAIMANTS QUESTIONS SOME INCIDENTAL POINTS OF FACT OF THE MATTER;
PRIMARILY WHETHER YOU OR THE EMPLOYEES WERE ADEQUATELY INFORMED OR
PROPERLY REPRESENTED IN THE ADMINISTRATIVE DISCUSSIONS OF THE
REORGANIZATION CHANGES, AND WHETHER THE PRIOR REPORT OF THE POST
OFFICE DEPARTMENT RELATED THE EXACT CHRONOLOGY AND PROCEDURES WHICH
LEAD UP TO THE SCHEDULE REVISION OF FEBRUARY 26, 1952. IN VIEW OF SUCH
CONTENTIONS, WE REQUESTED THE POSTMASTER GENERAL TO REVIEW THE FACTS.
HIS REPORT IS SUMMARIZED BELOW.
IT APPEARS THAT ON OR PRIOR TO FEBRUARY 8, 1952, THE GENERAL
SUPERINTENDENT, THIRTEENTH DIVISION, PTS, AND OTHER OFFICIALS AT AN
INFORMAL MEETING IN BILLINGS DISCUSSED THE IMPENDING CHANGES OF TRAIN
SCHEDULES WITH THE SEVERAL EMPLOYEES ASSIGNED TO THE BILLINGS AND
SWEETGRASS RAILWAY POST OFFICE. HOWEVER, REGARDING THE LATER MEETING IN
WILLISTON, NORTH DAKOTA, WHICH WAS UNDER THE JURISDICTION OF THE TENTH
DIVISION, PTS, YOUR INVITATION TO THAT MEETING--- WHICH MEETING YOU
ATTENDED--- PROPERLY EMANATED FROM THAT OFFICE.
REGARDING THE CHRONOLOGY OF PROCEDURES USED AND WHAT CONSIDERATION
WAS GIVEN TO THE REDUCTION OF THE BILLINGS AND SWEETGRASS RAILWAY POST
OFFICE FROM CLASS B TO CLASS A, THE REPORTED FACT IS THAT THE POINTS YOU
RAISE WERE FACTORS IN THE CASE FROM THE DATE OF THE FIRST DISCUSSION
WITH THE EMPLOYEES AFFECTED, PRIOR TO FEBRUARY 8, 1952. YOUR LETTER OF
JULY 15, 1952 (A COPY OF WHICH WAS FURNISHED US), REFERS TO THE
DEFICIENCY IN THE STUDY SCOPE OR MAIL DISTRIBUTION SCHEME WHICH EXISTED
PRIOR TO FEBRUARY 1952. MOREOVER, THE EMPLOYEES IN THEIR LETTER OF JULY
12, 1957, TO YOU--- THE CLAIMS HERE INVOLVED--- SAID SOME OF THEM WOULD
HAVE BEEN REDUCED IN GRADE HAD THE RAILWAY POST OFFICE BEEN CHANGED FROM
CLASS B TO CLASS A. HENCE, YOUR CONTENTION--- THAT THE MATTER OF
DOWN-GRADING OF THE ROAD DUTY WAS NOT DISCUSSED OR CONSIDERED UNTIL
AFTER THE FEBRUARY REORGANIZATION--- DOES NOT APPEAR SUBSTANTIATED BY
THE RECORD.
AS TO WHETHER FIELD REPRESENTATIVES OF THE POST OFFICE DEPARTMENT
INCORRECTLY STATED THE FACTS IN THIS CASE TO THE REVIEWING AGENCIES AND
WHETHER EMPLOYEE RELATIONS WERE PROPERLY MAINTAINED IN THE AREA, WE CAN
ONLY SAY THAT THE RECORDS--- INCLUDING YOUR LETTERS OF AUGUST 8 AND
AUGUST 28, 1952, TO MR. R. J. ALEXANDER, GENERAL SUPERINTENDENT, PTS,
SEATTLE, WASHINGTON--- DO NOT SUPPORT THE VIEW EXPRESSED BY YOU IN THE
LAST PARAGRAPH OF YOUR LETTER OF NOVEMBER 14, 1957.
THEREFORE, IN LIGHT OF THE PRESENT RECORD WE HAVE NO ALTERNATIVE
OTHER THAN TO SUSTAIN THE SETTLEMENTS OF OCTOBER 31, 1957, DISALLOWING
THE CLAIMS OF THE RESPECTIVE EMPLOYEES AFFECTED THEREBY.
B-135125, MAR. 26, 1958
TO MR. GREGORIO M. BERGULA:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1957,
TRANSMITTING AFFIDAVITS BY TWO PERSONS PURPORTING TO ESTABLISH THAT YOUR
FATHER, FELIX D. BERGULA, SR., WAS LAST HEARD OF ON DECEMBER 4, 1944, AT
WHICH TIME HE WAS IN THE CUSTODY OF THE JAPANESE ARMY. THE AFFIDAVITS
WERE SUBMITTED HERE IN SUPPORT OF THE CLAIM FILED BY ON BEHALF OF
YOURSELF AND YOUR BROTHERS AND SISTER FOR CERTAIN ACTIVE-DUTY PAY AND
RETIRED PAY BELIEVED TO BE DUE IN THE CASE OF YOUR FATHER. ALSO, THERE
HAS BEEN RECEIVED YOUR LETTER OF JANUARY 29, 1958, SUBMITTING A FURTHER
CLAIM FOR MEDICAL ALLOWANCES.
THE AFFIDAVITS TRANSMITTED BY YOU MAY NOT BE ACCEPTED BY OUR OFFICE
AS ESTABLISHING THE FACT OF YOUR FATHER'S DEATH. THEY SEEM ONLY TO SHOW
THAT YOUR FATHER WAS LAST SEEN BY THE AFFIANTS ON DECEMBER 4, 1944. OUR
OFFICE HAS NOT BEEN FURNISHED WITH ADEQUATE EVIDENCE REGARDING THE
STATUS OF YOUR FATHER, THAT IS TO SAY, WE HAVE NOT BEEN FURNISHED WITH A
DEATH CERTIFICATE BY A LOCAL OFFICIAL, SUCH AS A CORONER, OR BY A COURT
FINDING ESTABLISHING THE FACT OF YOUR FATHER'S DEATH.
WE WISH TO MAKE IT PLAIN THAT IF YOUR FATHER IS STILL LIVING HE (OR
HIS AGENT) WOULD BE THE ONLY PERSON AUTHORIZED TO SUBMIT A CLAIM FOR ANY
ARREARS OF PAY WHICH MAY BE DUE IN THIS CASE, AND THAT CONSIDERATION OF
ANY CLAIM NOW FILED FOR PAY WHICH ACCRUED IN, OR BEFORE, 1944 WOULD BE
LIMITED BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061,
31 U.S.C. 237, AS FOLLOWS:
"/1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE,
TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED
STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICER UNDER SECTIONS 71
AND 236 OF THIS TITLE, SHALL BE FOREVER BARRED UNLESS SUCH CLAIM,
BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED
AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL
YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A
CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE
UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE
YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS
AFTER PEACE IS ESTABLISHED.
"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) SHALL BE RECEIVED IN
THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT,
WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE
RESPONSE WITHOUT FURTHER COMMUNICATION.'
IT WILL BE NOTED THAT THE STATUTE EXPRESSLY PROHIBITS CONSIDERATION
BY THE GENERAL ACCOUNTING OFFICE OF ANY CLAIM FILED HERE LATER THAN TEN
FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. AN EXCEPTION TO
THAT REQUIREMENT IS CONTAINED IN THE QUOTED PROVISO IN THE ACT WHICH IS
TO THE EFFECT 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 SUCH ACCRUAL, SUCH CLAIM MAY BE
PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED. BY SECTION 3 OF
THE JOINT RESOLUTION APPROVED JULY 25, 1947, 61 STAT. 451, 454, IT WAS
PROVIDED THAT IN THE INTERPRETATION OF SECTION 1 OF THE ACT OF OCTOBER
9, 1940, THE DATE WHEN THE JOINT RESOLUTION BECAME EFFECTIVE SHOULD BE
DEEMED TO BE THE DATE OF TERMINATION OF ANY STATE OF WAR THERETOFORE
DECLARED BY THE CONGRESS AND OF THE NATIONAL EMERGENCIES PROCLAIMED BY
THE PRESIDENT ON SEPTEMBER 8, 1939, AND MAY
27, 1941. FIVE YEARS FROM THE DATE OF APPROVAL (EFFECTIVE DATE) OF
THE JOINT RESOLUTION EXPIRED ON JULY 25, 1952.
BY OUR CLAIMS DIVISION LETTER OF JULY 24, 1957, YOU WERE ADVISED THAT
IF IT IS ESTABLISHED THAT FELIX D. BERGULA, SR., IS NOW DECEASED, THE
AMOUNT DUE IN THIS CASE, WOULD BE FOR PAYMENT TO THE JUDGE ADVOCATE
GENERAL OF THE PHILIPPINE ARMY PURSUANT TO THE PROVISIONS OF PHILIPPINE
REPUBLIC ACT NO. 136, AS AMENDED, UPON RECEIPT OF A PROPER CLAIM FILED
BY THAT OFFICIAL. WE WISH TO ADVISE THAT IF YOUR FATHER DID DIE IN
1944, CONSIDERATION OF ANY CLAIM NOW FILED BY THE JUDGE ADVOCATE GENERAL
OF THE PHILIPPINE ARMY WOULD BE BARRED BY THE PROVISIONS OF THE CITED
ACT OF OCTOBER 9, 1940.
ACCORDINGLY, NO ALLOWANCE MAY BE MADE ON ACCOUNT OF THE CLAIM FILED
BY YOU ON BEHALF OF YOURSELF AND YOUR BROTHERS AND SISTER FOR THE
ARREARS OF PAY IN THIS CASE. THE FOREGOING APPLIES AS WELL TO YOUR
CLAIM FOR MEDICAL ALLOWANCES.
B-135150, MAR. 26, 1958
TO WELLS TRUCKWAYS, LTD. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 30, 1958,
REQUESTING REVIEW OF THE ACTION TAKEN ON YOUR CLAIMS FOR ADDITIONAL
FREIGHT CHARGES FOR TRANSPORTATION OF GOVERNMENT PROPERTY UNDER
GOVERNMENT BILLS OF LADING NOS. AF-4892360, AF-4892109, AND AF-4892485,
FROM THE NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA, TO THE
SUPPLY OFFICER, 684TH AC AND W SQUADRON, TUCSON AIR
FORCE STATION M-92, ATOP MT. LEMMON, TUCSON, ARIZONA.
FOR THIS SERVICE YOU ORIGINALLY CLAIMED AND WERE PAID TRANSPORTATION
CHARGES BASED ON SERVICE TO TUCSON, ARIZONA. YOU SUBSEQUENTLY CLAIMED
ADDITIONAL AMOUNTS BASED ON RATES FROM TUCSON TO MT. LEMMON, ARIZONA,
AND YOUR CLAIMS WERE DISALLOWED. SINCE THE MT. LEMMON AIR FORCE
STATION IS OUTSIDE THE CORPORATE LIMITS OF TUCSON, SETTLEMENT WILL ISSUE
IN YOUR FAVOR FOR ADDITIONAL FREIGHT CHARGES BEYOND TUCSON AS CLAIMED.
B-135325, MAR. 26, 1958
TO KENNETH E. THOMAS, U.S. NAVAL COMMUNICATION FACILITY:
FURTHER REFERENCE IS MADE TO YOUR RECENT CLAIM FOR PER DIEM FOR
TEMPORARY DUTY AT LONDON, ENGLAND, DURING THE PERIOD NOVEMBER 18, 1957,
TO MARCH 17, 1957. SINCE YOUR CLAIM IS A DUPLICATE OF THE CLAIM WHICH
WAS DISALLOWED BY OUR SETTLEMENT DATED AUGUST 21, 1957, IT WILL BE
CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.
BY ORDERS DATED NOVEMBER 10, 1956, YOU WERE TRANSFERRED FROM THE USS
AGILE (MSO-421) AT CHARLESTON, SOUTH CAROLINA, TO U.S. NAVAL FACILITY,
LONDON, ENGLAND, FOR DUTY FOLLOWING A PERIOD OF TEMPORARY DUTY AT U.S.
NAVAL COMMUNICATION FACILITY, LONDON, ENGLAND. ON MARCH 17, 1957, THE
COMMANDING OFFICER, U.S. NAVAL FACILITY, LONDON, ADVISED YOU THAT YOUR
TEMPORARY DUTY WAS TERMINATED EFFECTIVE MARCH 18, 1957, AND THAT YOU
WERE ATTACHED TO THAT SAME COMMAND FOR DUTY WITH
U.S. NAVAL COMMUNICATION FACILITY, LONDON. THEREAFTER, ON MARCH 25,
1957, THE ORDERS OF NOVEMBER 10, 1956, WERE MODIFIED RETROACTIVELY TO
SHOW THAT YOU WERE ORDERED TO U.S. NAVAL COMMUNICATION FACILITY FOR
"TEMPORARY DUTY" INSTEAD OF FOR "DUTY," IT BEING STATED THAT THIS WAS TO
SHOW THE ORIGINAL INTENT AT THE TIME OF ISSUANCE OF THE BASIC ORDERS.
THE ORDERS AS AMENDED STATED THAT YOUR ULTIMATE DESTINATION WAS U.S.
NAVAL COMMUNICATION FACILITY, LONDON. THE RESUBMISSION OF YOUR
CLAIM APPARENTLY IS ON THE PREMISE THAT BY REASON OF THE AMENDED
ORDERS, YOU/WERE TRANSFERRED TO LONDON FOR TEMPORARY DUTY ONLY AND THAT
LONDON WAS NOT DESIGNATED YOUR PERMANENT STATION UNTIL AFTER THE
TEMPORARY DUTY HAD BEEN COMPLETED.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE
SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES MAY BE PAID A
TRAVEL ALLOWANCE UNDER COMPETENT ORDERS WHEN AWAY FROM THEIR DESIGNATED
POSTS OF DUTY. JOINT TRAVEL REGULATIONS PROMULGATED UNDER THAT
AUTHORITY OF LAW PROVIDE A PER DIEM ALLOWANCE FOR TRAVEL AND TEMPORARY
DUTY AWAY FROM THE PERMANENT STATION. PARAGRAPH 3003-2 OF THOSE
REGULATIONS DEFINES TEMPORARY DUTY AS DUTY AT A LOCATION OTHER THAN THE
PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER
ORDERS WHICH PROVIDE FOR RETURN TO THE OLD PERMANENT STATION OR FOR
FURTHER ASSIGNMENT TO A NEW PERMANENT STATION. NO PER DIEM IS
AUTHORIZED, HOWEVER, WHEN THE TEMPORARY DUTY AND PERMANENT DUTY ARE AT
THE SAME PLACE.
IN YOUR CASE THE ORDERS OF NOVEMBER 10, 1956, DESIGNATED LONDON,
ENGLAND, AS YOUR PERMANENT STATION AND PROVIDED FOR TEMPORARY DUTY IN
THE SAME CITY. THE AMENDED ORDERS, ISSUED TO SHOW THE ORIGINAL INTENT
UNDER THE BASIC ORDERS, CLEARLY STATED THAT YOUR ULTIMATE DESTINATION
WAS LONDON.
SINCE IT SEEMS CLEAR THAT THE TEMPORARY DUTY WAS PERFORMED AT YOUR
PERMANENT STATION, PER DIEM IS NOT AUTHORIZED FOR SUCH DUTY. 34 COMP.
GEN. 427.
THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT OF AUGUST 21, 1957,
WAS CORRECT AND IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED AS
REQUESTED.
B-135417, MAR. 26, 1958
TO J. SAPERSTEIN AND SONS:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1958, REQUESTING
RECONSIDERATION OF OUR SETTLEMENT DATED FEBRUARY 20, 1958, WHICH
DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $501.49, REPRESENTING THE
LOSS ALLEGED TO HAVE BEEN SUSTAINED IN DISPOSING OF SCRAP IRON TUBING
PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. N164-7573.
THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO B-12-58-164, DATED
AUGUST 2, 1957, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM 1 COVERING
47,000 POUNDS OF SCRAP IRON TUBING, SAE 1040, ANNEALED, AT $0.02267 PER
POUND, OR FOR A TOTAL LOT PRICE OF $1,065.49. BY LETTER DATED SEPTEMBER
11, 1957, YOU ADVISED THAT A METALLURGIST HAD, SUBSEQUENT TO THE AWARD,
MADE AN ASSAY OF THIS SCRAP TUBING AND FOUND THAT INSTEAD OF BEING SAE
1040, IT WAS IN FACT NAE 8630.
WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION
THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY OFFERED FOR SALE WILL
CORRESPOND WITH THE DESCRIPTION, NO SUCH WARRANTY MAY BE IMPLIED WHERE
THERE IS AN EXPRESS DISCLAIMER OF WARRANTY. SEE LUMBRAZO V. WOODRUFF,
175 N.E. 25; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31,
CERTIORARI DENIED, 284 U.S. 676; AND I. SHAPIRO AND COMPANY V. UNITED
STATES, 66 C.CLS. 424.
THE DISCLAIMER OF WARRANTY CLAUSE IN THIS CASE EXPRESSLY PROVIDED THE
DESCRIPTION OF THE PROPERTY BEING SOLD WAS BASED UPON THE BEST AVAILABLE
INFORMATION AND THAT THE GOVERNMENT MADE "NO GUARANTY, WARRANTY, OR
REPRESENTATION, EXPRESS OR IMPLIED, AS TO * * * OF ANY OF THE PROPERTY.'
THE ABOVE COURT CASES, AND OTHERS TOO NUMEROUS TO MENTION INVOLVING
VARIATIONS IN THE CONDITIONS OF THE PROPERTY WITH THE DESCRIPTION IN THE
INVITATION, 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 PROPERTY THE GOVERNMENT IS
NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS UNAWARE OF THE QUALITY AND
CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS
BY THE "AS IS," TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE
RISK AS TO THE CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE
PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. NOTWITHSTANDING THE
FACT THAT THE CONDITION OF THE SURPLUS PROPERTY MAY NOT HAVE CONFORMED
TO THE DESCRIPTION IN THE INVITATION, THERE IS NOTHING IN THE RECORD TO
INDICATE THAT THE CONTRACTING OFFICER OR HIS AGENTS ACTED IN OTHER THAN
GOOD FAITH THROUGHOUT THE ENTIRE TRANSACTION. THE FACT THAT THE
GOVERNMENT WAS MISTAKEN ABOUT THE QUALITY OF THE SCRAP METAL DOES NOT
ENTITLE YOU TO RELIEF.
IN YOUR LETTER OF FEBRUARY 24, 1958, TO SENATOR CAPEHART YOU STATED
AS FOLLOWS:
"WE ARE FULLY AWARE OF PARAGRAPH 2, ON ALL INVITATIONS TO GENERAL
SALES TERMS AND CONDITIONS. BUT THE GOVERNMENT'S DEPOT DOES NOT GIVE
EACH BIDDER SAMPLES OF THIS TUBING SO THE PROSPECTIVE BUYER CAN CHECK TO
SEE THAT THEY ARE BIDDING ON SAE 1040 OR NAE 8630 UNTIL THE BUYER PAYS
100 PERCENT FOR THE AWARD BEFORE THE TUBING IS TURNED OVER TO THE
BIDDER. ALL WE HAD TO GO ON THAT WAS ADVERTISED IN THE INVITATION BID
NO. B-12-58-164, AND INSPECTED THE TUBING NO BIDDER CAN TELL IF THE
TUBING IS SAE 1040 OR NAE 8630 UNTIL THE TUBING IS TAKEN TO A
METALLURGIST FOR AN ASSAY WHICH ONE OF THE NAVAL AVIONICS FACILITY MEN
DONE ALSO AFTER THE AWARD WAS MADE AND TUBING WAS PAID FOR 100 PERCENT.'
THIS STATEMENT IS IN APPARENT CONFLICT WITH THE REPORT OF NOVEMBER
21, 1957, FROM THE SALES CONTRACTING OFFICER, WHO, IN REFERRING TO YOUR
CLAIM FOR REFUND, STATED:
"THIS PARTICULAR CONTRACTOR IS ALSO FULLY AWARE OF THE FACT THAT
MILITARY SCRAP METAL STRUCTURALLY DOES NOT LEND ITSELF TO ANY SPECIFIC
ALLOY. NORMALLY SCRAP IRON TUBING OFFERED BY THIS SALES OFFERING WOULD
BE HIGH CARBON CONTENT, I.E. SAE 1030 OR SAE 1040. THIS PARTICULAR
CONTRACTOR, AS WELL AS ALL OTHER SCRAP METAL BUYERS, IS EQUIPPED WITH
CERTAIN TESTING FACILITIES SUCH AS A SPOT NICKEL TEST WHICH WOULD
CONCLUSIVELY IDENTIFY THE SCRAP BEING INSPECTED.'
THE MATTER OF GRANTING RELIEF TO PURCHASES OF SURPLUS PROPERTY UNDER
THE TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE
SUBJECT OF NUMEROUS DECISIONS OF OUR OFFICE AND OF THE COURTS, AND IT
HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE
SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; S.
BRODY V. UNITED STATES, 64 C.CLS. 38; AND PARTICULARLY LIPSHITZ AND
COHEN V. UNITED STATES, 269 U.S. 90. WHILE THOSE DECISIONS MAY APPEAR
TO BE HARSH, THE GOVERNMENT HAS USED THE PLAINEST LANGUAGE POSSIBLE TO
ADVISE PROSPECTIVE BIDDERS THAT IN SURPLUS SALES CONTRACTS SUCH AS HERE
INVOLVED, THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY.
ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR ALLOWING YOUR CLAIM AND
THE SETTLEMENT OF FEBRUARY 20, 1958, IS SUSTAINED.
B-135479, MAR. 26, 1958
TO MR. JOSEPH C. HOGAN:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1958, AND PRIOR
CORRESPONDENCE, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN
THE AMOUNT OF $1,042.25 REPRESENTING AN ERRONEOUS RESIDUAL BENEFIT
PAYMENT MADE TO YOU BY THE RAILROAD RETIREMENT BOARD IN THE MATTER OF
YOUR DECEASED UNCLE, MR. JAMES EDWARD HICKEY. YOU REQUEST FURTHER
EXPLANATION AS TO THE BASIS OF THE INDEBTEDNESS.
THE FILE SHOWS THAT YOU RECEIVED CHECK NO. 36,206,340 DATED FEBRUARY
13, 1953, IN THE AMOUNT OF $1,533.95, IN PAYMENT OF THE AMOUNTS OF
$491.70 AND $1,042.25 THEN THOUGHT BY THE RAILROAD RETIREMENT BOARD TO
BE DUE YOU AS THE LUMP-SUM PAYMENT AND THE RESIDUAL LUMP-SUM PAYMENT,
RESPECTIVELY, BASED ON THE DEATH OF YOUR UNCLE, MR. JAMES EDWARD HICKEY.
UPON A SUBSEQUENT AUDIT OF THE MATTER, IT WAS DETERMINED BY THE
RAILROAD RETIREMENT BOARD THAT YOU WERE ENTITLED TO THE PAYMENT OF
$491.70 AS THE LUMP-SUM DEATH PAYMENT BUT THAT YOU WERE NOT ENTITLED TO
THE PAYMENT OF $1,042.25, OR ANY AMOUNT, AS A RESIDUAL LUMP-SUM PAYMENT.
IN A LETTER TO YOU DATED MARCH 6, 1953, COPY OF WHICH IS IN THE FILE,
THE RAILROAD RETIREMENT BOARD EXPLAINED THE MATTER TO YOU IN THE
FOLLOWING LANGUAGE:
"YOU WERE NOTIFIED IN OUR LETTER OF FEBRUARY 12, 1953 THAT YOU HAD
BEEN AWARDED AN INSURANCE LUMP SUM IN THE AMOUNT OF $491.70 AND A
RESIDUAL PAYMENT OF $1,042.25 BASED ON THE DEATH OF MR. JAMES E.
HICKEY.
"A POST AUDIT HAS BEEN MADE OF YOUR CLAIM UNDER THE RAILROAD
RETIREMENT ACT AND IT HAS BEEN DISCOVERED THAT YOU ARE NOT ENTITLED TO
THE RESIDUAL PAYMENT OF $1,042.25 FOR THE REASON THAT MR. HICKEY HAD
BEEN IN RECEIPT OF A RETIREMENT ANNUITY AND RECEIVED A TOTAL AMOUNT IN
EXCESS OF $1,042.25.
"SECTION 5 (F) 2 OF THE RAILROAD RETIREMENT ACT AS AMENDED PROVIDES
IN PART:
"WHENEVER IT SHALL APPEAR, WITH RESPECT TO THE DEATH OF AN EMPLOYEE
ON OR AFTER JANUARY 1, 1947, THAT NO BENEFITS, OR NO FURTHER BENEFITS,
OTHER THAN BENEFITS PAYABLE TO A WIDOW, WIDOWER, OR PARENT UPON
ATTAINING AGE SIXTY-FIVE AT A FUTURE DATE, WILL BE PAYABLE UNDER THIS
SECTION OR, PURSUANT TO SUBSECTION (K) OF THIS SECTION, UNDER SECTION
202 OF THE SOCIAL SECURITY ACT, AS AMENDED, THERE SHALL BE PAID TO SUCH
PERSON OR PERSONS AS THE DECEASED EMPLOYEE MAY HAVE DESIGNATED BY A
WRITING FILED WITH THE BOARD PRIOR TO HIS OR HER DEATH, OR IF THERE IS
NO DESIGNATION, TO THE PERSON OR PERSONS IN THE ORDER PROVIDED IN
PARAGRAPH (1) OF THIS SUBSECTION OR, IN THE ABSENCE OF SUCH PERSON OR
PERSONS, TO HIS OR HER ESTATE, A LUMP SUM IN AN AMOUNT EQUAL TO THE SUM
OF 4 PERCENTUM OF HIS OR HER COMPENSATION PAID AFTER DECEMBER 31, 1936,
AND PRIOR TO JANUARY 1, 1947, AND 7 PERCENTUM OF HIS OR HER COMPENSATION
AFTER DECEMBER 31, 1946 (EXCLUSIVE IN BOTH CASES OF COMPENSATION IN
EXCESS OF $300 FOR ANY MONTH), MINUS THE SUM OF ALL BENEFITS PAID TO HIM
OR HER, AND TO OTHERS DERIVING FROM HIM OR HER, DURING HIS OR HER LIFE,
OR TO OTHERS BY REASON OF HIS OR HER DEATH, UNDER THIS ACT, AND PURSUANT
TO SUBSECTION (K) OF THIS SECTION, UNDER SECTION 202 OF THE SOCIAL
SECURITY ACT, AS AMENDED ...'
MR. HICKEY'S COMPENSATION FOR THE YEARS 1937 THROUGH 1946 AMOUNTED TO
$22,401.76 AND AFTER 1946 AMOUNTED TO $9,112.54. THESE AMOUNTS WOULD
PROVIDE A TOTAL LUMP SUM PRIOR TO DEDUCTIONS FOR OTHER
BENEFITS OF $1,533.95. THE TOTAL RETIREMENT ANNUITY PAID TO MR.
HICKEY DURING HIS LIFETIME AMOUNTED TO $2,547.48. IN CONSEQUENCE NO
RESIDUAL AMOUNT REMAINED DUE OR PAYABLE.
WE REGRET THAT THE FACTS RELATED HEREIN WERE NOT NOTICED UNTIL AFTER
THE AWARD WAS MADE TO YOU ON FEBRUARY 12, 1953. HOWEVER, WE HAVE NO
ALTERNATIVE AT THIS TIME BUT TO REQUEST THAT YOU REFUND
THE AMOUNT OF $1,042.25.'
IN ACCORDANCE WITH THE QUOTED PROVISIONS OF THE RAILROAD RETIREMENT
ACT OF ANY RESIDUAL LUMP-SUM PAYMENT WHICH MIGHT HAVE BEEN PAYABLE TO
ANY PERSON IN THIS MATTER WOULD BE COMPUTED AS FOLLOWS:
TABLE
4 PERCENT OF $22,401.76 (MR. RICKEY'S COMPENSATION FOR THE PERIOD
AFTER DECEMBER 31, 1936, AND PRIOR TO JANUARY 1, 1947)
$896.07
7 PERCENT OF $9,112.54 (MR. HICKEY'S COMPENSATION FOR THE PERIOD
AFTER DECEMBER 31, 1946)
$637.88
---------
TOTAL $1,533.95
MINUS THE SUM OF BENEFITS WHICH WERE PAID TO MR. HICKEY DURING HIS
LIFETIME
$2,547.48
SINCE THE BENEFITS PAID TO MR. HICKEY DURING HIS LIFETIME ($2,547.48)
EXCEEDED THE AMOUNT OF THE POSSIBLE RESIDUAL LUMP-SUM PAYMENT AS ABOVE
COMPUTED IN ACCORDANCE WITH THE STATUTE ($1,533.95), IT IS OBVIOUS THAT
NO RESIDUAL LUMP-SUM PAYMENT WAS PROPERLY PAYABLE TO ANY PERSON.
IT IS WELL SETTLED THAT IN THE ABSENCE OF A SPECIFIC STATUTORY
PROVISION IN THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT OR
TORTIOUS ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH
COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN.
503; 14 ID. 221; ID. 473; ID. 855; BASSO V. UNITED STATES, 239 U.S.
602; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED
STATES, 148 U.S. 573; HART V. UNITED STATES, 95 U.S. 316; COOKE V.
UNITED STATES, 91 U.S. 389, 398. WITH SPECIFIC REFERENCE TO THE
LIABILITY OF PAYEES TO REFUND ERRONEOUS PAYMENTS MADE TO THEM BY
OFFICERS OR AGENTS OF THE UNITED STATES, IT IS STATED IN 29 COMP. GEN.
520:
"IT IS WELL SETTLED THAT THE UNITED STATES CAN NEVER BE BOUND OR
ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY
ITS OFFICERS, WITH OR WITHOUT JURISDICTION, AND WHETHER MADE UNDER
MISTAKE OF FACT OR MISTAKE OF LAW, AND THAT PARTIES RECEIVING SUCH
ERRONEOUS PAYMENTS ACQUIRED NO RIGHT THERETO BUT ARE LIABLE EX AEQUO ET
BONO TO REFUND THEM. SEE UNITED STATES V. BURCHARD, 125 U.S. 176;
UNITED STATES V. WURTS, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD
V. UNITED STATES, 164 U.S. 190, AND THE CASES COLLECTED AND DISCUSSE
IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24.'
IN VIEW OF THE FOREGOING, IT IS AGAIN REQUESTED THAT YOU PROMPTLY
REMIT TO THIS OFFICE THE AMOUNT OF THE ERRONEOUS PAYMENT RECEIVED BY YOU
($1,042.25) OR THAT YOU MAKE A PROMPT INITIAL PAYMENT, TOGETHER WITH A
DEFINITE PLAN FOR PAYMENT OF THE BALANCE WITHIN A REASONABLE TIME.
CHECKS OR MONEY ORDERS SHOULD BE DRAWN TO THE ORDER OF THE "U.S.
GENERAL ACCOUNTING OFFICE" AND MAILED TO THE DEBT SECTION, CLAIMS
DIVISION, GENERAL ACCOUNTING OFFICE, 441 G STREET, N.W., WASHINGTON 25,
D.C.
B-134729, MAR. 25, 1958
TO MR. CHARLES T. LABELLA:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 11, 1957, AND
JANUARY 10, 1958, CONCERNING A DEDUCTION OF $3,141.20 MADE BY THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE FROM ACCOUNTS DUE THE
DURALAB EQUIPMENT CORPORATION ON ACCOUNT OF ITS FAILURE TO DELIVER,
WITHIN THE TIME SPECIFIED, CERTAIN SUPPLIES CALLED FOR UNDER CONTRACT
NO. SA-43-PH-1607, DATED FEBRUARY 18, 1957, AS AMENDED.
YOU HAVE REQUESTED AN OPPORTUNITY TO APPEAR PERSONALLY CONCERNING
THIS CASE. YOU ARE ADVISED THAT YOU MAY CALL AT OUR OFFICE, 441 G
STREET, N.W., ANY TIME DURING OFFICIAL BUSINESS HOURS FOR THE PURPOSE OF
DISCUSSING THE MATTER WITH OUR REPRESENTATIVES. IF YOU PLAN TO CALL, IT
IS SUGGESTED THAT YOU MAKE PRIOR ARRANGEMENTS WITH J. E. WELCH,
ASSOCIATE GENERAL COUNSEL OF OUR OFFICE. THIS MAY BE DONE BY LETTER OR
TELEPHONE. MR. WELCH'S ROOM NUMBER IF 7053; HIS TELEPHONE NUMBER IS
EXECUTIVE 3-4621, EXTENSION 5784. HOWEVER, FOR REASONS HEREINAFTER SET
FORTH, IT IS NOT BELIEVED THAT ANY USEFUL PURPOSE WOULD BE SERVED BY
SUCH A CONFERENCE.
THE DURALAB EQUIPMENT CORPORATION WAS TO FURNISH AND DELIVER UNDER
THE CONTRACT FIVE COMPLETE FUME HOOD UNITS IN ACCORDANCE WITH
SPECIFICATIONS AND DRAWINGS AT A TOTAL COST OF $15,705.50. THE CONTRACT
PROVIDED FOR COMPLETION OF THE WORK WITHIN 75 CALENDAR DAYS AFTER
APPROVAL OF SHOP DRAWINGS BY THE GOVERNMENT. THE SCHEDULED DATE FOR
DELIVERY, BASED UPON RECEIPT OF THE APPROVED SHOP DRAWINGS BY THE
CONTRACTOR, WAS FIXED AT JULY 6, 1957. HOWEVER, AT THE CONTRACTOR'S
REQUEST,
THE TIME FOR DELIVERY WAS EXTENDED TO AUGUST 7, 1957, BECAUSE OF
DELAYS INCIDENT TO THE CLOSING OF THE CONTRACTOR'S PLANT FOR A TWO-WEEK
VACATION PERIOD IN JULY 1957. NOTWITHSTANDING THIS EXTENSION OF TIME,
FINAL DELIVERY AND ACCEPTANCE WAS NOT ACCOMPLISHED UNTIL OCTOBER 17,
1957. ACCORDINGLY, PURSUANT TO THE LIQUIDATED DAMAGES PROVISION OF THE
CONTRACT, DAMAGES IN THE AMOUNT OF ONE PERCENT OF THE CONTRACT PRICE FOR
THE MAXIMUM OF 20 CALENDAR DAYS WERE ASSESSED AGAINST THE CONTRACTOR AND
COLLECTED BY OFFSET AGAINST THE AMOUNT OTHERWISE DUE UNDER THE CONTRACT.
IN THAT CONNECTION, THE RECORD IS REPLETE WITH REFERENCES TO THE URGENT
NEED OF THE PROCURING AGENCY FOR THE CONTRACT SUPPLIES.
WHILE YOU HAVE NOT STATED THE BASIS OF YOUR APPEAL FROM THE DECISION
OF THE CONTRACTING OFFICER CONCERNING THE ASSESSMENT OF LIQUIDATED
DAMAGES, IT APPEARS THAT LETTER DATED OCTOBER 30, 1957, FROM THE
CONTRACTOR TO THE AGENCY EXPLAINING THE CIRCUMSTANCES OF THE DELAY WAS
DULY CONSIDERED BY THE CONTRACTING OFFICER IN ARRIVING AT HIS DECISION.
IT IS TO BE NOTED THAT THE CONTRACT CONTAINED NO PROVISION FOR
EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE FOR ANY CLAUSE;
RATHER, THE LIQUIDATED DAMAGES PROVISION PROVIDED FOR THE ASSESSMENT OF
DAMAGES FOR DELINQUENCY IN DELIVERY "IN THE ABSENCE OF AN EXPLANATION
SATISFACTORY TO THE CONTRACTING OFFICER.' THEREFORE, THE QUESTION HERE
INVOLVED IS WHETHER PERFORMANCE WAS RENDERED IMPOSSIBLE FOR THE PERIOD
OF DELAY, OR ANY PART THEREOF, BY ACTS OF GOD, BY THE LAW, OR BY THE
GOVERNMENT. SEE COLUMBUS RY. AND POWER CO. V. COLUMBUS, 249 U.S. 399,
412. NONE OF THE DELAY IS SHOWN, OR EVEN ALLEGED, TO HAVE BEEN CAUSED
BY ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT.
MOREOVER, THE CONTRACT CONTAINED, BY REFERENCE, THE STANDARD
"DISPUTES" CLAUSE WHICH PRESCRIBED THE PROCEDURE WHEREBY THE DECISION OF
THE CONTRACTING OFFICER ON DISPUTED QUESTIONS OF FACT MAY BE APPEALED,
WITHIN THE PRESCRIBED PERIOD OF TIME, TO THE HEAD OF THE DEPARTMENT. NO
APPEAL HAVING BEEN TAKEN FROM THE CONTRACTING OFFICER'S DECISION, AND NO
EVIDENCE OF GROSS ERROR, FRAUD OR CAPRICE WITH RESPECT TO SUCH DECISION
HAVING BEEN PRESENTED, UNDER A LONG LINE OF JUDICIAL PRECEDENTS WE ARE
LEFT WITH NO ALTERNATIVE BUT TO ACCORD FINALITY AND CONCLUSIVENESS TO
THE CONTRACTING OFFICER'S DETERMINATION, AS STIPULATED IN THE CONTRACT.
SEE PLUMLEY V. UNITED STATES, 266 U.S. 545; UNITED STATES V.
BROOKS-CALLAWAY COMPANY, 318 ID. 120; PENN BRIDGE COMPANY V. UNITED
STATES, 59 C.CLS. 892, 896-897; WILLIAMS COMPANY V. UNITED STATES, 85
ID. 431, 441; B-W CONSTRUCTION COMPANY V. UNITED STATES, 97 ID. 92,
122-124; MITCHELL CANNERIES, INC. V. UNITED STATES, 11 ID. 228; OLSEN
V. UNITED STATES, 122 C.CLS. 106; WILDERMUTH V. UNITED STATES, 195 F.2D
18.
B-134873, MAR. 25, 1958
TO MR. L. J. VAN SICKLE:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1958, TAKING
EXCEPTION TO CERTAIN STATEMENTS MADE IN OUR DECISION DATED FEBRUARY 26,
1958, WHICH CONCLUDED THAT THERE WAS NO PROPER BASIS FOR OUR OFFICE TO
TAKE ANY FURTHER ACTION IN CONNECTION WITH THE CONTRACTING OFFICER'S
DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER.
UPON A RE-EXAMINATION OF THE ADMINISTRATIVE RECORD, WE HAVE FOUND
THAT AFTER THE BID OPENING, TOPEKA AIR FORCE DEPOT REQUESTED DALLAS AIR
PROCUREMENT DISTRICT TO CONDUCT A PRE-AWARD SURVEY; THAT DALLAS AIR
PROCUREMENT DISTRICT ANSWERED THAT THE SURVEY WAS UNNECESSARY AS IT
COULD FURNISH A STATEMENT REGARDING YOUR STATUS; THAT BY TWX DATED
NOVEMBER 21, 1957, DALLAS AIR PROCUREMENT DISTRICT ADVISED THAT ITS
INVESTIGATION REVEALED "L J VAN SICKLE HAS NO MACHINERY EQUIPMENT OR
FACILITIES AND IS NOT ENGAGED IN OPERATING ANY PLANT STORE WAREHOUSE OR
BUSINESS ESTABLISHMENT OF ANY KIND; " AND THAT BASED ON THIS STATEMENT
AND YOUR OWN ACT IN LINING OUT THE WORD "REGULAR" FROM THE "REGULAR
DEALER" REPRESENTATION IN YOUR BID, THE CONTRACTING OFFICER DETERMINED
THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT NOT TO AWARD THE
SUBJECT CONTRACTS TO YOU. THUS, AT THE TIME OF AWARD, THE CONTRACTING
OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER WAS
REASONABLY SUPPORTED BY THE INFORMATION BEFORE HIM.
NOW, YOU STATE THAT YOU ACTED INCORRECTLY WHEN YOU LINED OUT THE WORD
"REGULAR.' THEREFORE, IT APPEARS THAT THE RESULT OF YOUR OWN
MISREPRESENTATION WAS INSTRUMENTAL IN THE CONTRACTING OFFICER'S
DETERMINATION AND THERE IS NO REASON WHY HE SHOULD HAVE SUSPECTED THAT
YOUR STATUS WAS DIFFERENT THAN YOU REPRESENTED IT TO BE, ESPECIALLY IN
VIEW OF THE SAME STATEMENT RECEIVED FROM THE DALLAS AIR PROCUREMENT
DISTRICT.
YOUR FINANCIAL STATEMENT DATED AUGUST 31, 1957, WAS NOT REFERRED TO
THE CONTRACTING OFFICER PRIOR TO THE TIME OF AWARD. IT AND THE OTHER
FACTORS, HAVING A BEARING ON YOUR RESPONSIBILITY, WHICH WERE BROUGHT TO
THE ATTENTION OF THE CONTRACTING OFFICER AFTER THE AWARD, WERE MENTIONED
IN OUR DECISION OF FEBRUARY 25, 1958, BECAUSE THOSE LATER-ACQUIRED
FACTORS TEND TO SHOW THAT THE CONTRACTING OFFICER'S DETERMINATION WAS
CORRECT. HOWEVER, IF, AS ALLEGED, YOUR ACTUAL POSITION IS SUPERIOR TO
YOUR STATUS AS REPRESENTED IN YOUR OWN FINANCIAL STATEMENT, THIS IS
ANOTHER INSTANCE WHERE YOUR OWN MISREPRESENTATION CONTRIBUTED TO THE
ACTION TO WHICH YOU OBJECT.
UNDER 10 U.S.C. 2305 (B), CONTRACTS ARE REQUIRED TO BE AWARDED TO THE
LOWEST RESPONSIBLE BIDDER. THEREFORE, GOVERNMENT OFFICERS ARE PRECLUDED
BY LAW FROM CONSIDERING MERELY THE POSSIBLE PECUNIARY SAVINGS IN A
PARTICULAR PROCUREMENT WITHOUT CONSIDERING THE BIDDER'S RESPONSIBILITY.
B-135186, MAR. 25, 1958
TO MR. JOHN G. KRIEGER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24, 1958, IN
REGARD TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS
ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS
ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS FOR THE PERIOD SEPTEMBER
11, 1947, TO SEPTEMBER 30, 1949; AND FOR THE DIFFERENCE, BEGINNING
OCTOBER 1, 1949, BETWEEN RETIRED PAY COMPUTED AS ONE-HALF OF BASE PAY
PLUS PERMANENT ADDITIONS UNDER THE PAY RATES IN EFFECT ON SEPTEMBER 30,
1949 (SAVED PAY), AND RETIRED PAY RECEIVED BY YOU, COMPUTED AS TWO AND
ONE-HALF PERCENTUM TIMES YEARS OF ACTIVE SERVICE TIMES ACTIVE-DUTY PAY
UNDER THE CAREER COMPENSATION ACT OF 1949.
YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 7, 1958, ON
THE GROUND THAT SINCE YOUR CREDITABLE SERVICE BEFORE AND AFTER TRANSFER
TO THE FLEET NAVAL RESERVE AGGREGATED ONLY 18 YEARS AND 10 MONTHS, YOU
WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION 208 OF THE NAVAL
RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT OF AUGUST 10,
1916, 60 STAT. 994--- SUCH BENEFITS BEING CONTINGENT UPON AN AGGREGATE
OF AT LEAST 19 YEARS AND 6 MONTHS' SERVICE.
IT APPEARS THAT YOU ENLISTED IN THE NAVY ON APRIL 8, 1907, AND WERE
DISCHARGED APRIL 7, 1911, SERVICE OF 4 YEARS; THAT YOU REENLISTED APRIL
10, 1911, AND SERVED CONTINUOUSLY AS AN ENLISTED MAN AND AS AN OFFICER
UNTIL JULY 24, 1922, SERVICE OF 11 YEARS, 3 MONTHS, AND 15 DAYS; AND
THAT YOU WERE TRANSFERRED TO THE FLEET NAVAL RESERVE ON THE LATTER DATE.
THUS, UPON YOUR TRANSFER YOU HAD TOTAL SERVICE OF 15 YEARS, 3 MONTHS,
AND 15 DAYS. APPARENTLY, SUCH TRANSFER WAS EFFECTED UNDER THE ACT OF
JULY 1, 1922, 42 STAT. 799, 800, WHICH PROVIDED, IN PERTINENT PART:
"* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER
EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN
YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH
SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE
TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF
THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON
SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY
LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF
ENLISTMENT AFTER SIXTEEN YEARS' SERVICE * * *.'
IT FURTHER APPEARS THAT YOU PERFORMED ACTIVE DUTY FROM AUGUST 5,
1941, TO FEBRUARY 19, 1945, 3 YEARS, 6 MONTHS, AND 15 DAYS. THAT
SERVICE, ADDED TO YOUR SERVICE AT TIME OF TRANSFER, 15 YEARS, 3 MONTHS,
AND 15 DAYS, AGGREGATED 18 YEARS AND 10 MONTHS.
IN OUR DECISION OF OCTOBER 3, 1952, 32 COMP. GEN. 159, 161, IT WAS
SAID--- IN ANSWER TO A QUESTION CONCERNING MEN TRANSFERRED TO THE FLEET
RESERVE UPON COMPLETION OF A MINIMUM OF 16 YEARS AND 1 DAY'S SERVICE
CREDITABLE IN DETERMINING ELIGIBILITY FOR SUCH TRANSFERS--- THAT THE
PRACTICAL EFFECT OF SECTION 208 "IS TO ADD THE ACTIVE SERVICE PERFORMED
SUBSEQUENT TO SUCH TRANSFER TO THE SERVICE CREDITED TO HIM PRIOR TO SUCH
TRANSFER AND ANY FRACTIONAL YEAR OF SIX MONTHS OR MORE APPEARING IN SUCH
TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR'S SERVICE.'
YOU REFER TO THE DISALLOWANCE OF YOUR CLAIM AS BEING AT VARIANCE WITH
THE ABOVE STATEMENT, IT BEING YOUR CONTENTION THAT YOU SHOULD BE GIVEN A
CONSTRUCTIVE CREDIT OF 16 YEARS AT DATE OF TRANSFER, TO WHICH SHOULD BE
ADDED YOUR SUBSEQUENT ACTIVE DUTY OF 3 YEARS, 6 MONTHS, AND 15 DAYS,
THUS GIVING YOU A CONSTRUCTIVE AGGREGATE OF 19 YEARS, 6 MONTHS, AND 15
DAYS' SERVICE, ENOUGH TO QUALIFY FOR INCREASED RETIRED PAY UNDER SECTION
208.
THE STATEMENT QUOTED ABOVE FROM THE DECISION OF OCTOBER 3, 1952, WAS
MADE IN CONNECTION WITH CASES OF TRANSFER TO THE FLEET RESERVE AFTER
MORE THAN 16 YEARS' SERVICE, WHICH IS NOT THE SITUATION IN YOUR CASE.
IN ANY EVENT, THE QUOTED STATEMENT IS TO THE EFFECT THAT ACTIVE SERVICE
AFTER TRANSFER SHOULD BE ADDED TO THE SERVICE CREDITED AT TIME OF
TRANSFER. THE ACT OF JULY 1, 1922, SUPRA, DID NOT PROVIDE THAT MEN
TRANSFERRED THEREUNDER SHOULD BE CREDITED WITH 16 YEARS' SERVICE.
INSTEAD, IT MERELY PROVIDED THAT SUCH MEN SHOULD RECEIVE THE SAME PAY
AND ALLOWANCES AS IF THEY HAD BEEN TRANSFERRED AFTER 16 YEARS' SERVICE.
THE OTHER ARGUMENTS ADVANCED IN YOUR LETTER HAVE BEEN CONSIDERED AND
DISCUSSED IN OUR DECISIONS, B-134160, DECEMBER 4, 1957, 37 COMP. GEN. -
, AND B-134160, JANUARY 29, 1958. A COPY OF EACH OF THESE DECISIONS IS
ENCLOSED FOR YOUR INFORMATION.
B-135310, MAR. 25, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 21, 1958, WITH
ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS),
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
WABASH TRUCK PARTS COMPANY, INC., ALLEGES IT MADE ON ITEM 3 OF ITS BID
ON WHICH SALES CONTRACT NO. 20-089-57-106 (S), DATED MARCH 27, 1957, IS
BASED.
BY INVITATION NO. 20-089-S-57-15, DATED FEBRUARY 25, 1957, THE
DEPARTMENT OF THE ARMY, DETROIT ARSENAL, CENTER LINE, MICHIGAN,
REQUESTED BIDS--- TO BE OPENED MARCH 19, 1957--- FOR THE PURCHASE OF
GOVERNMENT SURPLUS PROPERTY. ONE OF THE ITEMS WAS ITEM 3, DESCRIBED AS
FOLLOWS:
TABLE
"CABLE, WIRE, ROPE, TOWING AND LIFTING CONSISTING OF:
A. CABLE, TOWING WIRE ROPE, 5/8 INCH DIAM
15 FEET LONG
2 EA
B. CABLE, TOWING, WIRE ROPE, 5/8 INCH DIAM BY 60 INCHES LONG W/YOKE
ONE END THIMBLE
1 EA
C. CABLE, WIRE ROPE 5/8 INCH DIAM 6 BY 19, 158 INCHES LONG
39 EA
CONDITION UNUSED
ACQ COST $250.00 42 EA
TEN BIDS WERE RECEIVED ON THIS ITEM WHICH RANGE FROM THE COMPANY'S
HIGH BID OF $462 TO A LOW OF $4.20. THE SECOND AND THIRD HIGHEST BIDS
WERE $70.14 AND $28.14. AFTER RECORDING ALL BIDS ON THE ABSTRACT, THE
WABASH TRUCK PARTS COMPANY, INC., WAS FOUND TO BE THE HIGH BIDDER ON
ITEMS 3 AND 43. THE CONTRACTING OFFICER IN HIS STATEMENT OF MAY 1,
1957, STATED THAT SINCE THE COMPANY'S BID ON ITEM 3 APPEARED EXCESSIVE
IN VIEW OF THE OTHER BIDS RECEIVED ON THIS ITEM, THE PROPERTY DISPOSAL
OFFICER BEFORE AWARD OF BIDS, TELEPHONED THE HIGH BIDDER ON MARCH 21,
1957, REQUESTING A VERIFICATION OF THE BID ON ITEMS 3 AND 43. THE
PERSON WHO SIGNED THE BID INVOLVED CONFIRMED THE BID PRICES ON BOTH
ITEMS 3 AND 43. THE AWARD OF ITEMS 3 AND 43 WAS THEREAFTER MADE TO THE
COMPANY
AND THE COMPANY SO NOTIFIED TO THAT EFFECT BY LETTER DATED MARCH 27,
1957.
BY LETTER DATED APRIL 12, 1957, THE CONTRACTOR ADVISED THE DISPOSAL
OFFICER THAT HE HAD MADE AN ERROR IN HIS BID ON ITEM 3 AND THAT HIS BID
OF $11 EACH WAS FOR THE FOLLOWING:
"2 PIECES 5/8 INCH CABLE 15 FT. LONG
1 PIECE 5/8 INCH DO. 5 FT. LONG
39 PIECES 5/8 INCH DO. 158 FT. LONG"
ALSO, THE CONTRACTOR STATED THAT---
"NOW, SHORT LENGTHS OF CABLE ARE OF NO USE TO US AT ALL AND SINCE YOU
CAN READILY SEE BY THE BID PRICE EACH THAT WE ARE BIDDING ON CABLE BY
THE FOOT AND NOT BY INCHES--- AS THE REGULAR PRICE IS MUCH CHEAPER. WE
HAVE BOUGHT A LOT OF CABLE IN THE PAST AND NEVER BEFORE HAS CABLE BEEN
REFERRED TO IN INCHES INSTEAD OF FEET. WHEN YOU CALLED TO VERIFY THE
BID, I EXPLAINED THAT I EXPECTED TO GET 3 SHORT PIECES AND 39 PIECES 158
FT. LONG. INASMUCH AS THERE HAS BEEN A MISUNDERSTANDING, WE WILL PREPAY
THE FREIGHT ON THE MERCHANDISE BACK TO CENTER LINE IF THAT IS
SATISFACTORY TO YOU; AND IT CAN BE READVERTISED AND OUR MONEY RETURNED.
PLEASE ADVISE.'
THE CONTRACTING OFFICER'S REPORT OF MAY 1, 1957, REFERS TO THE LETTER
OF APRIL 12, 1957, FROM THE CONTRACTING OFFICER AND DOES NOT DENY THE
ALLEGATION IN THE CONTRACTOR'S LETTER OF APRIL 12 THAT HE EXPECTED TO
GET THREE SHORT PIECES OF CABLE AND 39 PIECES 158 FEET LONG INSTEAD OF
158 INCHES AS INDICATED IN THE INVITATION. IN FACT, THE CONTRACTING
OFFICER'S REPLY OF APRIL 18, 1957, IN WHICH HE DENIED THE CONTRACTOR'S
REQUEST OF APRIL 12 FOR THE RETURN OF THE PURCHASE PRICE INDICATES THAT
HE MAY HAVE BEEN AWARE OF THE NATURE OF THE CONTRACTOR'S ERROR SINCE HE
EMPHASIZES THE MATTER OF LENGTH OF THE CABLE IN HIS STATEMENT THAT "THE
DESCRIPTION OF ITEM NO. 3 CLEARLY INDICATED THAT THE LENGTH OF THE CABLE
FOR SALE WAS 158 INCHES LONG AND THAT THE ACQUISITION COST WAS $250.00.'
IN THE CIRCUMSTANCES, IT WOULD APPEAR THAT THERE IS CONSIDERABLE
DOUBT THAT IT CAN BE SAID, AS A MATTER OF LAW, THAT THE ACCEPTANCE
CONSUMMATED A VALID CONTRACT, PARTICULARLY SINCE THE CONTRACTOR'S BID
FOR THE PURCHASE OF THE CABLE WAS NEARLY TWICE THE AMOUNT OF THE
ACQUISITION COST.
ACCORDINGLY, ITEM 3 OF THE CONTRACT MAY BE CANCELLED AND THE PURCHASE
PRICE REFUNDED TO THE CONTRACTOR, AFTER HE HAS RETURNED THE CABLE
FREIGHT PREPAID, AS OFFERED BY HIM IN HIS LETTER OF APRIL 12, 1957.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT INVOLVED.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
OF MAY 1, 1957, ARE RETURNED.
B-135434, MAR. 25, 1958
TO MR. W. E. RILEY, AUTHORIZED CERTIFYING OFFICER, THROUGH
HEADQUARTERS, UNITED STATES COAST GUARD:
YOUR LETTER OF FEBRUARY 19, 1958, REQUESTS AN ADVANCE DECISION
WHETHER COMMANDER WILLIAM H. MAIN, 35659, UNITED STATES COAST GUARD
RESERVE, MAY BE CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS
ON ACCOUNT OF TWO ADOPTED CHILDREN (WILLIAM L. AND NANCY J. MAIN) ON AND
AFTER NOVEMBER 30, 1957.
THERE WERE ENCLOSED WITH YOUR LETTER CERTIFIED COPIES OF DECREES OF
ADOPTION DATED JANUARY 15 AND OCTOBER 24, 1952, IN THE MATTER OF
ADOPTION OF EACH OF THE CHILDREN BY WILLIAM H. MAIN AND RUTH L. MAIN;
THE OFFICER'S DEPENDENCY CERTIFICATE (DD FORM 137); AN AFFIDAVIT
EXECUTED BY RUTH LUND MAIN; CERTIFIED COPIES OF THE BIRTH CERTIFICATE
FOR EACH OF THE CHILDREN; AND A CERTIFIED COPY OF A FINAL DECREE OF
DIVORCE ISSUED AUGUST 22, 1957, IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, HOWARD COUNTY, FLORIDA, TERMINATING THE MARRIAGE
BETWEEN WILLIAM H. MAIN AND RUTH L. MAIN AND AWARDING THE CARE, CUSTODY,
AND CONTROL OF THE CHILDREN TO THE LATTER. IT APPEARS FROM THE
ENCLOSURES THAT WILLIAM L. MAIN WAS BORN AUGUST 6, 1950; THAT NANCY J.
MAIN WAS BORN OCTOBER 24, 1951; THAT THE CHILDREN RESIDE WITH THEIR
ADOPTIVE MOTHER; THAT THE OFFICER CONTRIBUTES $200 A MONTH FOR THEIR
SUPPORT; AND THAT THEY HAVE NO OTHER INCOME.
ON THE EVIDENCE SUBMITTED, THE OFFICER WILL BE CONSIDERED TO HAVE
DEPENDENTS (ADOPTED MINOR CHILDREN) WITHIN THE MEANING OF SECTION 102
(G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, AND PAYMENT
TO HIM OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER
WITH DEPENDENTS IS AUTHORIZED, PROVIDED THE ALLOWANCE IS OTHERWISE
PAYABLE, BEGINNING NOVEMBER 30, 1957, AND FOR SUCH TIME AS THERE IS NO
MATERIAL CHANGE IN THE DEPENDENCY STATUS OF THE CHILDREN.
THE DEPENDENCY CERTIFICATE (DD FORM 137) AND SUPPORTING PAPERS ARE
RETURNED. SUCH EVIDENCE, TOGETHER WITH THIS DECISION, OR A COPY, SHOULD
BE INCLUDED IN THE ACCOUNT WHERE CREDIT FOR THE PAYMENTS IS AUTHORIZED
IS FIRST CLAIMED.
B-135498, MAR. 25, 1958
TO MRS. LORETTA RILEY REESE:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, IN
EFFECT REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN SETTLEMENT
DATED SEPTEMBER 14, 1955, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR
CLAIM FOR THE LUMP-SUM AIR CORPS RESERVE BONUS ALLEGED TO BE DUE IN THE
CASE OF YOUR LATE HUSBAND, MAJOR THOMAS JOHN REESE, WHOSE DEATH OCCURRED
ON JUNE 29, 1955.
IN CONNECTION WITH THE CLAIM FILED BY YOU UNDER DATE OF JULY 21,
1955, OUR CLAIMS DIVISION REQUESTED THE DEPARTMENT OF THE AIR FORCE
UNDER DATE OF AUGUST 4, 1955, TO ADVISE, AMONG OTHER THINGS, WHETHER
YOUR LATE HUSBAND WAS EVER APPOINTED AN OFFICER IN THE AIR CORPS RESERVE
AND, IF SO, THE DATE OF SUCH APPOINTMENT AND THE LENGTH OF SERVICE IN
SUCH AIR CORPS RESERVE, AND WHETHER HE WAS SELECTED FOR A COMMISSION IN
THE REGULAR ARMY. UNDER DATE OF AUGUST 29, 1955, THE OFFICE OF THE AIR
ADJUTANT GENERAL REPLIED, IN PART, AS FOLLOWS:
"HE WAS APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES 23
JANUARY 1943; ACCEPTED 23 JANUARY 1943; ASSIGNED SERVICE NUMBER 0 1
535 062; PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED STATES 10
DECEMBER 1943; APPOINTED CAPTAIN, MEDICAL ADMINISTRATIVE CORPS RESERVE
23 JUNE 1947; ACCEPTED 26 JUNE 1947; ACCEPTED APPOINTMENT AS FIRST
LIEUTENANT, AIR FORCE OF THE UNITED STATES 30 JUNE 1948; PROMOTED TO
CAPTAIN, MEDICAL SERVICE CORPS, ARMY OF THE UNITED STATES 1 MARCH 1949;
TRANSFERRED TO MEDICAL DEPARTMENT, DEPARTMENT OF THE AIR FORCE 1 JULY
1949; PROMOTED TO MAJOR, UNITED STATES AIR FORCE 15 DECEMBER 1951;
PROMOTED TO MAJOR, AIR FORCE RESERVE 2 JULY 1952; ACCEPTED AN
INDEFINITE TERM APPOINTMENT AS MAJOR, AIR FORCE RESERVE 30 OCTOBER 1952.
"HE HAD ACTIVE DUTY AS A COMMISSIONED OFFICER FROM 23 JANUARY 1943 TO
29 JUNE 1955, THE DATE OF HIS DEATH.
"MAJOR REESE HAD NO ACTIVE DUTY UNDER HIS AIR FORCE RESERVE
COMMISSION.'
SECTION 2 OF THE ACT OF JUNE 16, 1936, 49 STAT. 1524, AS AMENDED, 10
U.S.C. (1952 ED.) 300A, PROVIDES THAT---
"WHENEVER ANY AIR CORPS RESERVE OFFICER WHO HAS NOT BEEN SELECTED FOR
COMMISSION IN THE REGULAR ARMY IS RELEASED FROM ACTIVE DUTY THAT HAS
BEEN CONTINUOUS FOR ONE OR MORE YEARS, HE SHALL BE PAID
LUMP SUM OF $500 FOR EACH COMPLETE YEAR OF ACTIVE SERVICE AS SUCH
OFFICER, AND IF RELEASED FROM ACTIVE DUTY OTHERWISE THAN UPON HIS OWN
REQUEST, OR AS THE RESULT OF INEFFICIENT OR UNSATISFACTORY
SERVICE AS DETERMINED BY THE SECRETARY OF WAR, SUCH LUMP-SUM PAYMENT
SHALL BE PRORATED FOR FRACTIONAL PARTS OF EACH YEAR OF SUCH ACTIVE
SERVICE. THE LUMP-SUM PAYMENTS HEREIN AUTHORIZED SHALL BE IN ADDITION
TO ANY PAY, ALLOWANCES, COMPENSATION, OR BENEFITS WHICH SUCH OFFICERS
MAY OTHERWISE BE ENTITLED TO RECEIVE: PROVIDED, THAT IN THE EVENT OF
THE DEATH OF SUCH OFFICER, AFTER CONTINUOUS ACTIVE DUTY FOR ONE OR MORE
YEARS, THE BENEFICIARIES SPECIFICALLY DESIGNATED * * * SHALL BE PAID
SUCH SUM * * *.'
THE ACT OF APRIL 28, 1950, 64 STAT. 90, PROVIDES THAT IN COMPUTING
LUMP-SUM PAYMENTS UNDER THE ABOVE PROVISIONS, NO CREDIT SHALL BE ALLOWED
FOR ACTIVE SERVICE PERFORMED AFTER JUNE 24, 1948.
YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF
SEPTEMBER 14, 1955, ON THE GROUND THAT THE RECORDS SHOW THAT YOUR LATE
HUSBAND DID NOT PERFORM ANY ACTIVE DUTY UNDER HIS AIR FORCE RESERVE
COMMISSION. IT MAY BE ADDED THAT THE DEPARTMENT OF THE AIR FORCE
EXPRESSED THE VIEW THAT NO LUMP-SUM AIR FORCE RESERVE BONUS IS PAYABLE
IN THIS CASE.
IT SEEMS CLEAR FROM THE MILITARY HISTORY FURNISHED BY THE DEPARTMENT
OF THE AIR FORCE THAT YOUR LATE HUSBAND DID NOT SERVE ON ACTIVE DUTY AS
A COMMISSIONED OFFICER IN THE AIR FORCE RESERVE PRIOR TO JUNE 24, 1948,
AND THAT, THEREFORE, NO LUMP-SUM BONUS IS DUE IN HIS CASE. ACCORDINGLY,
THE SETTLEMENT ACTION OF SEPTEMBER 14, 1955, DENYING YOUR CLAIM MUST BE
SUSTAINED.
B-135518, MAR. 25, 1958
TO THE HONORABLE FRANKLIN FLOETE, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1958, REQUESTING OUR
VIEWS AS TO THE PROPRIETY OF WAIVING THE ISSUANCE OF U.S. GOVERNMENT TAX
EXEMPTION CERTIFICATES FOR MUNICIPAL TAXES WHERE SUCH TAXES WOULD AMOUNT
TO $1 OR LESS.
YOU STATE THAT USERS OF INTERAGENCY MOTOR POOL VEHICLES ARE ISSUED
CREDIT CARDS WHICH ARE UTILIZED FOR THE PURCHASE OF GASOLINE AT SERVICE
STATIONS AFFILIATED WITH THE CONTRACTOR OIL COMPANIES LOCATED THROUGHOUT
THE UNITED STATES. THIS, YOU STATE, RESULTS IN THE ISSUANCE OF NUMEROUS
TAX EXEMPTION CERTIFICATES, IN RELATIVELY SMALL AMOUNTS, PARTICULARLY IN
THE CASE OF MUNICIPAL TAXES, WHERE INDIVIDUAL PURCHASES ARE MADE IN MANY
DIFFERENT LOCATIONS, WITH ONLY A SMALL TAX CHARGE FOR EACH MUNICIPALITY
ON A SINGLE INVOICE FROM A CONTRACTING OIL COMPANY.
AS TO THE PREPARATION AND PROCESSING OF THESE CERTIFICATES, YOU
REPORT THAT A STUDY OF THE DIRECT COSTS INVOLVED IN ISSUING 721
CERTIFICATES FOR $1 OR LESS REVEALED THAT THE DIRECT COSTS ALONE FOR
PERSONAL SERVICES AND FORMS AMOUNTED TO $145.95, AS COMPARED WITH
$138.59 REALIZED IN TAX EXEMPTIONS FROM THE CERTIFICATES ISSUED. IN
ADDITION, YOU CITE THE FOLLOWING AS BEING AMONG THE MANY INDIRECT COSTS
WHICH YOU HAVE NOT ATTEMPTED TO EVALUATE:
"/1) UPDATING VARIOUS LISTS OF CITIES AND TOWNS ALLOWING EXEMPTIONS
AS PROVIDED BY THE OIL COMPANIES AND OTHER SOURCES;
"/2) CORRESPONDENCE AND CLAIMS FOR DISALLOWED CERTIFICATES RESULTING
FROM CHANGE IN EXEMPTION OR CANCELLATION THROUGH ACTION OF LOCATION
GOVERNMENT BY ORDINANCE OR EDICT;
"/3) LEGAL RESEARCH AND CORRESPONDENCE TO RESOLVE QUESTIONS WHICH
ARISE AS TO THE TYPE OF TAX INVOLVED.'
IT IS YOUR STATED VIEW THAT IF THE VALUE OF SUCH INDIRECT COSTS WERE
ADDED TO THE DIRECT COSTS, IT IS LIKELY THAT THE COMBINED AMOUNT WOULD
EXCEED THE TOTAL REALIZED FROM THE ISSUANCE OF MUNICIPAL TAX EXEMPTION
CERTIFICATES IN ALL DENOMINATIONS.
ON THE BASIS OF THE FACTS AS REPORTED, OUR OFFICE WOULD NOT BE
REQUIRED TO OBJECT TO THE PROMULGATION OF INSTRUCTIONS BY YOUR
ADMINISTRATION WHEREBY THE ISSUANCE OF TAX EXEMPTION CERTIFICATES FOR
MUNICIPAL TAXES AMOUNTING TO $1 OR LESS MAY BE WAIVED.
B-135519, MAR. 25, 1958
TO MR. EDWARD M. MARKS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1958,
ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, RELATING TO YOUR
INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,620, ARISING OUT
OF THE NON-DEDUCTION FROM YOUR PAY OF A CLASS E ALLOTMENT PAID TO YOUR
WIFE AT THE RATE OF $45 PER MONTH DURING THE PERIOD JULY 1, 1942,
THROUGH JUNE 30, 1945. IN YOUR LETTER YOU REQUESTED THAT COLLECTION IN
THIS CASE BE WAIVED ON THE GROUND THAT REPAYMENT OF THE AMOUNT DUE WOULD
CAUSE UNDUE HARDSHIP OF YOUR FAMILY, IT BEING STATED IN YOUR LETTER THAT
YOU HAD A GROSS INCOME OF $8,320 DURING THE YEAR 1957 ON WHICH YOU
MAINTAINED YOUR FAMILY CONSISTING OF YOURSELF AND YOUR WIFE AND FOUR
CHILDREN.
THE RECORD SHOWS THAT UNDER DATE OF APRIL 21, 1942, YOU AUTHORIZED
THE PAYMENT OF A CLASS E ALLOTMENT TO YOUR WIFE AT THE RATE OF $45 PER
MONTH, EFFECTIVE JUNE 1, 1942. THE ALLOTMENT WAS PAID FROM JUNE 1,
1942, THROUGH JUNE 30, 1945, HOWEVER, THE REQUIRED DEDUCTION FROM YOUR
PAY WAS MADE ONLY FOR THE MONTH OF JUNE 1942, RESULTING IN ERRONEOUS
PAYMENTS AMOUNTING TO $1,620. YOU ACKNOWLEDGE THE FACT OF THE
OVERPAYMENT BUT YOU SEEM TO FEEL THAT COLLECTION THEREOF SHOULD BE
WAIVED BECAUSE THE FAILURE TO MAKE PROPER DEDUCTIONS FROM YOUR PAY WAS
DUE TO ADMINISTRATIVE ERROR AND BECAUSE OF THE INDICATED HARDSHIP ON
YOUR FAMILY THAT WOULD BE INVOLVED IN REPAYMENT.
YOU ARE ADVISED THAT THERE IS NO AUTHORITY VESTED IN ANY OFFICIAL OF
THE GOVERNMENT TO WAIVE COLLECTION OF THIS INDEBTEDNESS ON THE BASIS OF
HARDSHIP OR OTHERWISE. RESPECTING THE ADMINISTRATIVE ERROR IN FAILING
TO MAKE APPROPRIATE DEDUCTIONS FROM YOUR PAY, IT MAY BE SAID THAT SUCH
ERROR HAS NO BEARING ON YOUR LEGAL LIABILITY TO REFUND THE AMOUNT DUE.
THE COURTS HAVE HELD THAT THERE IS NO EQUITABLE RIGHT TO RETAIN MONEY
ERRONEOUSLY PAID BY THE GOVERNMENT. IN THE CASE OF UNITED STATES V.
NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP.
484, 486, THE COURT STATED THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT
RESULTING FROM A MISTAKE BY A PUBLIC OFFICIAL, MUST IN EQUITY MAKE
RESTITUTION, SINCE RESTITUTION RESULTS IN NO LOSS TO HIM, HE HAVING
RECEIVED SOMETHING FOR NOTHING. IN WISCONSIN CENTRAL RAILROAD V. UNITED
STATES, 164 U.S. 190, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS
PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS
OFFICERS, ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION.
EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE
RECIPIENT OR THE FACT THAT THE PAYMENT MAY HAVE BEEN RECEIVED IN GOOD
FAITH "CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER
RIGHTFULLY BELONGED TO HIM AT ALL.' SEE UNITED STATES V. BENTLEY, 107
F.2D 382, 384.
BY LETTER OF FEBRUARY 18, 1958, OUR CLAIMS DIVISION ADVISED YOU THAT
ARRANGEMENTS SHOULD BE MADE FOR LIQUIDATION OF THIS INDEBTEDNESS EITHER
BY PAYMENT OF A LUMP SUM OR BY MONTHLY PAYMENTS OF AT LEAST $20 EACH,
BEGINNING IMMEDIATELY. IN VIEW OF YOUR REPORTED INCOME, IT DOES NOT
APPEAR THAT SUCH MONTHLY PAYMENTS ARE BEYOND YOUR ABILITY TO PAY.
PLEASE INDICATE WITHIN THIRTY DAYS FROM THE DATE OF THIS LETTER YOUR
INTENTIONS RESPECTING PAYMENT OF THE AMOUNT DUE.
B-133733, MAR. 24, 1958
TO COLONEL WILLIAM M. KASPER:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1958, REQUESTING
FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF
COMMERCIAL TRANSPORTATION FOR YOUR DEPENDENTS FROM NEW YORK, NEW YORK,
TO LEHAVRE, FRANCE, IN OCTOBER 1956.
THE QUESTION OF YOUR RIGHT TO REIMBURSEMENT FOR THE TRAVEL OF YOUR
DEPENDENTS HERE INVOLVED WAS CAREFULLY CONSIDERED ON YOUR REQUEST OF
AUGUST 28, 1957, AND YOU WERE FULLY INFORMED IN OUR DECISION TO YOU
DATED DECEMBER 17, 1957, B-133733, OF THE REASONS FOR THE DISALLOWANCE
OF YOUR CLAIM.
IN YOUR PRESENT LETTER YOU SAY IN SUBSTANCE THAT YOUR TOUR OF DUTY IN
IRAN WAS ACTUALLY COMPLETED ON AUGUST 24, 1956; THAT THE ORDERS OF
AUGUST 18, 1956, ASSIGNED YOU TO A TOUR OF DUTY IN PARIS, FRANCE, IN
EXCESS OF 18 MONTHS; AND THAT THE REFERENCE IN PARAGRAPH 5 OF THE
ORDERS TO CATEGORY 11, PARAGRAPH 3A, CHANGE 1, ARMY REGULATIONS 55-107,
AUTHORIZING THE TRAVEL OF YOUR DEPENDENTS FROM THE UNITED STATES TO
FRANCE ON A SPACE AVAILABLE BASIS ONLY, WAS IN ERROR. FOR SUCH REASONS
YOU URGE THAT YOUR DEPENDENTS WERE ENTITLED TO TRANSPORTATION ON A SPACE
REQUIREMENT BASIS AND THAT YOUR CLAIM SHOULD BE ALLOWED.
IT NOW APPEARS THAT YOUR TOUR OF DUTY IN IRAN WAS COMPLETED ON AUGUST
24, 1956. THE ORDERS OF AUGUST 18, 1956, ASSIGNING YOU TO A TOUR OF
DUTY IN PARIS, FRANCE, APPARENTLY IN EXCESS OF 18 MONTHS, WERE ISSUED
PRIOR TO THE TIME YOUR DEPENDENTS LEFT IRAN FOR THE UNITED STATES ON
AUGUST 21, 1956. THUS SUCH ORDERS SERVED AS A BASIS FOR YOUR
DEPENDENTS' TRAVEL FROM IRAN TO PARIS AT GOVERNMENT EXPENSE AND THEIR
ADVANCE TRAVEL TO THE UNITED STATES MUST BE REGARDED AS HAVING BEEN
PERFORMED IN CONNECTION WITH THE NEW TOUR OF DUTY DIRECTED IN THE ORDERS
OF AUGUST 18, 1956. SINCE YOUR DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL
FROM THE UNITED STATES TO FRANCE AT GOVERNMENT
EXPENSE IN THE CIRCUMSTANCES NOW SHOWN, THE ORDERS OF AUGUST 18,
1956, PROPERLY AUTHORIZED THEIR TRAVEL BY GOVERNMENT VESSEL ON A SPACE
AVAILABLE BASIS. THE FACT THAT THE ORDERS OF AUGUST 18, 1956, MAY HAVE
ERRONEOUSLY REFERRED TO CATEGORY 11, PARAGRAPH 3A, CHANGE 1, ARMY
REGULATIONS 55-107, MAY NOT BE CONSIDERED AS A BASIS FOR THE PAYMENT OF
YOUR CLAIM, SINCE YOUR DEPENDENTS WERE OTHERWISE ENTITLED TO TRAVEL FROM
THE UNITED STATES TO FRANCE BY GOVERNMENT VESSEL ON A SPACE AVAILABLE
BASIS ONLY.
ACCORDINGLY, OUR DECISION TO YOU DATED DECEMBER 17, 1957, B-133733,
IS AFFIRMED.
B-135299, MAR. 24, 1958
TO HONORABLE HARRIS ELLSWORTH, CHAIRMAN, UNITED STATES CIVIL SERVICE
COMMISSION:
YOUR LETTER OF FEBRUARY 17, 1958, REQUESTS OUR DECISION, IN
CONNECTION WITH AN APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS,
WHETHER AN AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF MISS LILLIAN
KUENNE, IS AVAILABLE TO LIQUIDATE AN INDEBTEDNESS OF MISS KUENNE
RESULTING FROM AN OVERPAYMENT OF SALARY MADE TO HER IN AUGUST 1947 BY
THE NAVAL GOVERNMENT OF GUAM.
YOU ENCLOSE WITH YOUR LETTER A COPY OF AN OPINION, DATED SEPTEMBER 8,
1948, OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, TO THE EFFECT THAT
EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED
EXCLUSIVELY TO THE LOCAL AFFAIRS OF GUAM WERE NOT EMPLOYEES IN OR UNDER
THE NAVY DEPARTMENT, OR IN OR UNDER ANY EXECUTIVE, JUDICIAL, OR
LEGISLATIVE BRANCH OF THE UNITED STATES GOVERNMENT AND THUS WERE NOT
ENTITLED TO RETIREMENT AND OTHER PRIVILEGES UNDER THE LAWS OF THE UNITED
STATES EXCEPT AS EXPRESSLY AUTHORIZED BY STATUTE. YOU SAY THE
COMMISSION IS IN AGREEMENT WITH THAT VIEW AND THAT RETIREMENT CREDIT IS
DENIED FOR SUCH SERVICE.
FROM 1899 UNTIL 1950, EXCEPT FOR THE PERIOD OF THE JAPANESE
OCCUPATION, THE NAVY DEPARTMENT EXERCISED CONTROL OVER THE ISLAND OF
GUAM, PURSUANT TO EXECUTIVE ORDERS, THROUGH THE MEDIUM OF NAVAL OFFICERS
APPOINTED AS GOVERNORS. WE HAVE HELD THAT EMPLOYEES OF THE GOVERNMENT
OF GUAM, WHO SUBSEQUENT TO THE ENACTMENT OF THE ACT OF AUGUST 1, 1950,
64 STAT. 384, ESTABLISHING A CIVIL GOVERNMENT OF GUAM RECEIVE SALARY
FROM THE TERRITORY IN ACCORDANCE WITH SECTION 26 (D) OF THAT ACT, 64
STAT. 391, ARE NOT EMPLOYEES OF THE UNITED STATES WITHIN THE PURVIEW OF
5 U.S.C. 30N AND 30O, WHICH CONCERN THE GRANTING OF COURT LEAVE TO
EMPLOYEES OF THE UNITED STATES SERVING AS JURORS. 35 COMP. GEN. 369.
ALSO, REGARDING AMERICAN SAMOA WHICH, IN A MANNER SIMILAR TO GUAM, WAS
GOVERNED BY THE DEPARTMENT OF THE NAVY UNTIL 1951, WHEN JURISDICTION
OF THE TERRITORY WAS TRANSFERRED BY EXECUTIVE ORDER TO THE DEPARTMENT OF
THE INTERIOR, WE HELD THAT EMPLOYMENT WITH THE GOVERNMENT OF AMERICAN
SAMOA INVOLVING TERRITORIAL DUTIES WAS NOT EMPLOYMENT AS AN OFFICER OR
EMPLOYEE OF THE UNITED STATES WITHIN THE MEANING OF THE DUAL
COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS
AMENDED, 5 U.S.C. 59A, B-112015, FEBRUARY 12, 1953.
THE OPINIONS AND DECISIONS REFERRED TO GENERALLY ESTABLISH THAT
EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED TO THE
LOCAL AFFAIRS OF GUAM ARE NOT EMPLOYEES OF THE UNITED STATES. WE HAVE
INFORMALLY OBTAINED A COPY OF THE DUTIES OF MISS KUENNE'S POSITION WITH
THE NAVAL GOVERNMENT OF GUAM. THOSE DUTIES CLEARLY SHOW THEY WERE
CONCERNED WITH THE LOCAL AFFAIRS OF GUAM, AND IT APPEARS THAT DURING THE
PERIOD SHE WAS NOT AN EMPLOYEE OF THE UNITED STATES BUT RATHER, AN
EMPLOYEE OF THE ISLAND GOVERNMENT AND WE SO HOLD HERE.
HOWEVER, THE QUESTION OF WHETHER SET OFF OF HER RETIREMENT CREDIT
WOULD BE PROPER IS NOT NECESSARILY DEPENDENT UPON HER STATUS AS AN
EMPLOYEE BUT RATHER WHETHER THE OVERPAYMENT WAS MADE FROM APPROPRIATED
MONEYS OF THE UNITED STATES OR FUNDS BELONGING TO THE GOVERNMENT OF
GUAM--- EITHER BECAUSE THEY WERE LOCALLY RAISED BY TAXES IMPOSED BY THAT
GOVERNMENT OR BECAUSE THEY WERE GRANTED BY THE UNITED STATES IN SUCH
CIRCUMSTANCES THAT THEY BECAME LOCAL FUNDS.
PRIOR TO THE TIME GUAM WAS OCCUPIED BY JAPAN DURING WORLD WAR II,
CIVILIAN EMPLOYEES OF THE NAVAL GOVERNMENT OF GUAM WHOSE DUTIES RELATED
EXCLUSIVELY TO ITS LOCAL AFFAIRS WERE PAID FROM FUNDS DERIVED FROM LOCAL
TAXES AND OTHER LOCAL REVENUE. WHEN THE UNITED STATES REGAINED
POSSESSION, THE ISLAND WAS DEVASTATED; FOR A TIME THERE WERE NO LOCAL
REVENUES; AND THE COST OF ITS GOVERNMENT AND REHABILITATION WERE
DEFRAYED WHOLLY FROM MONEYS OF THE UNITED STATES INCLUDED IN FUNDS
APPROPRIATED TO THE NAVY DEPARTMENT. IN THE FISCAL YEAR 1948, WHEN THE
OVERPAYMENT HERE INVOLVED WAS MADE, APPROXIMATELY $500,000 OF THE COSTS
OF THE LOCAL GOVERNMENTS OF GUAM AND CERTAIN OTHER ISLAND POSSESSIONS---
SUCH AS AMERICAN SAMOA AND OTHER ISLAND FORMERLY A PART OF THE JAPANESE
EMPIRE WHICH WERE UNDER THE CONTROL OF THE NAVY DEPARTMENT--- WAS
OBTAINED FROM THE LOCAL REVENUES, THE BALANCE OF APPROXIMATELY
$5,100,000 BEING DEFRAYED FROM APPROPRIATED MONEYS OF THE UNITED STATES.
SEE PAGES 176 AND 177, HOUSE HEARINGS ON THE DEPARTMENT OF THE NAVY
APPROPRIATION BILL FOR 1949. SUCH FUNDS WERE NOT APPROPRIATED IN THE
FORM OF GRANTS TO GUAM UNDER SUCH CIRCUMSTANCES THAT THEY BECAME LOCAL
FUNDS BUT CONTINUED UNTIL PROPERLY EXPENDED FOR THE PURPOSE FOR WHICH
APPROPRIATED TO REPRESENT FUNDS OF THE UNITED STATES. ANY EXCESSIVE
PAYMENT FROM SUCH APPROPRIATED FUNDS CONSTITUTED AN IMPROPER EXPENDITURE
OF THE FUNDS OF THE UNITED STATES AND CONSTITUTED, ALSO, A DEBT TO THE
UNITED STATES WHICH FUNDS SHOULD BENEFIT FROM ANY RECOUPMENT OF THE
DEBT. THE ADMINISTRATIVE REPORT INDICATES MISS KUENNE WAS OVERPAID FROM
SUCH APPROPRIATED FUNDS. THEREFORE, IF OTHERWISE PROPER, THE AMOUNT OF
THE REPORTED OVERPAYMENT SHOULD BE RECOVERED FROM FUNDS TO HER CREDIT IN
THE RETIREMENT FUNDS IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE. 35
COMP. GEN. 38. COMPARE 36 COMP. GEN. 457.
B-135411, MAR. 24, 1958
TO MAJOR GENERAL W. E. POTTER, GOVERNOR, CANAL ZONE GOVERNMENT:
YOUR LETTER OF FEBRUARY 28, 1958, REQUESTS OUR DECISION CONCERNING
THE AVAILABILITY OF FUNDS APPROPRIATED FOR THE CANAL ZONE GOVERNMENT FOR
THE CONVERSION OF BUILDING NO. 98 FOR USE AS AN ELEMENTARY SCHOOL.
YOU STATE THAT PLANS ARE WELL ADVANCED TO UTILIZE THE NORTHEAST
SECTION OF COCO SOLO NAVAL RESERVATION, WITH THE IMPROVEMENTS THEREON,
AS A SUBSTITUTE FOR THE HOUSING, SCHOOLS, AND OTHER FACILITIES IN THOSE
SECTIONS OF COLON FROM WHICH THE PANAMA CANAL COMPANY AND THE CANAL ZONE
GOVERNMENT ARE AUTHORIZED AND DIRECTED TO WITHDRAW PURSUANT TO THE 1955
TREATY AND PUBLIC LAW 85-223 APPROVED AUGUST 30, 1057, 71 STAT. 509.
YOU STATE FURTHER THAT THE ONLY FACILITIES THAT WILL REMAIN IN THOSE
SECTIONS OF COLON BY THE END OF THE CURRENT FISCAL YEAR WILL BE THE
ELEMENTARY AND JUNIOR-SENIOR HIGH SCHOOL PLANTS.
YOU REPORT THE FIFTEENTH NAVAL DISTRICT ALREADY HAS INFORMALLY TURNED
OVER TO THE CANAL ZONE GOVERNMENT/PANAMA CANAL COMPANY THE POSSESSION OF
CERTAIN OF THE BUILDINGS AND UTILITIES IN THE AREA INVOLVED, INCLUDING
BUILDING NO. 98 WHICH IS THE STRUCTURE THE CANAL ZONE GOVERNMENT
PROPOSES TO CONVERT TO AN ELEMENTARY SCHOOL. IT APPEARS THAT YOU HAVE
SUBMITTED A PROPOSAL TO THE COMMANDANT, FIFTEENTH NAVAL DISTRICT
COVERING THE TRANSFER OF THE BUILDINGS AND OTHER PROPERTY WITHIN THE
AREA PURSUANT TO SECTION 204 OF THE DEPARTMENT OF COMMERCE AND RELATED
AGENCIES APPROPRIATION ACT, 1956 (69 STAT. 236); HOWEVER, WHILE IN
AGREEMENT WITH THE GENERAL PLAN FOR THE USE AND OCCUPANCY OF THE AREA BY
THE CANAL AGENCIES, THE SAID NAVAL DISTRICT WISHES TO RETAIN THE RIGHT
TO RECAPTURE THE BUILDINGS AND FACILITIES IN THE EVENT OF NATIONAL
DEFENSE NEED. YOU EXPRESS THE VIEW THAT FULFILLMENT OF THE NEEDS OF
NATIONAL DEFENSE MAY BE ACCOMPLISHED BY THE PRESIDENT OF THE UNITED
STATES OR BY THE COMMANDER-IN-CHIEF, CARIBBEAN COMMAND, UNDER AUTHORITY
WHICH WOULD BE CONFERRED UPON HIM BY EXECUTIVE ORDER. YOU STATE THAT,
WHILE THIS ISSUE WILL BE RESOLVED, THERE IS AN URGENT PRESENT NEED FOR
PROCEEDING WITH THE CONVERSION OF BUILDING NO. 98 WHICH WOULD BE
ACCOMPLISHED BY USING, SUBJECT TO THE APPROVAL OF THE BUREAU OF THE
BUDGET, FUNDS CURRENTLY AVAILABLE. IN THIS REGARD, YOU ADVISE THAT,
BEFORE PROCEEDING WITH THIS WORK, YOU WOULD SECURE THE APPROVAL OF THE
APPROPRIATIONS COMMITTEES PRIOR TO FORMAL HEARINGS ON YOUR 1959 BUDGET,
WHEREIN THE REPLACEMENT SCHOOLS PLANTS ARE PROGRAMMED. IN THE
CIRCUMSTANCES, YOU REQUEST ADVICE WHETHER OUR OFFICE WOULD BE REQUIRED
TO OBJECT TO THE INSTITUTION OF THIS PROJECT.
SECTION 204 OF THE DEPARTMENT OF COMMERCE AND RELATED AGENCIES
APPROPRIATION ACT OF 1956, SUPRA, AUTHORIZES THE TRANSFER BETWEEN
DEPARTMENTS AND AGENCIES, INCLUDING THE CANAL ZONE GOVERNMENT, WITH OR
WITHOUT EXCHANGE OF FUNDS, OF "ALL OR SO MUCH OF THE FACILITIES,
BUILDINGS, STRUCTURES, IMPROVEMENTS, STOCK AND EQUIPMENT OF THEIR
ACTIVITIES LOCATED IN THE CANAL ZONE, AS MAY BE MUTUALLY AGREED UPON BY
THE AGENCIES INVOLVED AND APPROVED BY THE DIRECTOR OF THE BUREAU OF THE
BUDGET, IN THE INTEREST OF ELIMINATION OF DUPLICATE ACTIVITIES AND
RELATED FACILITIES * * "
PUBLIC LAW 85-223, APPROVED AUGUST 30, 1957, WHICH IMPLEMENTED THE
1955 TREATY AND AGREEMENT WITH THE REPUBLIC OF PANAMA PROVIDES, AMONG
OTHER THINGS, THAT---
"* * * THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH AMOUNTS AS
MAY BE REQUIRED FOR THE NECESSARY REPLACEMENT OF PROPERTY OR FACILITIES
OF THE PANAMA CANAL COMPANY OR CANAL ZONE GOVERNMENT CONVEYED OR
RENDERED EXCESS AS THE RESULT OF THE TREATY OR MEMORANDUM, SUCH AMOUNTS
TO BE CHARGED TO THE PANAMA CANAL COMPANY OR THE CANAL ZONE GOVERNMENT,
RESPECTIVELY.'
CONSIDERATION OF THE INSTANT MATTER NECESSARILY INVOLVES SECTION
3733, REVISED STATUTES, 41 U.S.C. 12, WHICH PROVIDES AS FOLLOWS:
"NO CONTRACT SHALL BE ENTERED INTO FOR THE ERECTION, REPAIR, OR
FURNISHING OF ANY PUBLIC BUILDING, OR FOR ANY PUBLIC IMPROVEMENT WHICH
SHALL BIND THE GOVERNMENT TO PAY A LARGER SUM OF MONEY THAN THE AMOUNT
IN THE TREASURY APPROPRIATED FOR THE SPECIFIC PURPOSE.'
WHILE YOU DO NOT STATE WHAT THE PROPOSED CONVERSION OF BUILDING NO.
98 TO A SCHOOL BUILDING WOULD COST, IT SEEMS CLEAR THAT THE
ACCOMPLISHMENT OF THE PROJECT WOULD CONSTITUTE A PUBLIC IMPROVEMENT
WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISION OF SECTION 3733,
REVISED STATUTES, SO AS TO REQUIRE A SPECIFIC APPROPRIATION FOR THAT
PURPOSE FROM THE CONGRESS. 27 COMP. GEN. 634; 29 ID. 235; 30 ID. 487.
MOREOVER, THE ABOVE-QUOTED PORTION OF PUBLIC LAW 85-223 CLEARLY
CONTEMPLATES THE MAKING BY THE CONGRESS OF AN APPROPRIATION FOR
REPLACEMENT SUCH AS THERE AUTHORIZED. YOUR LETTER INDICATES SUCH AN
APPROPRIATION HAS NOT YET BEEN MADE BUT PROVISION THEREFOR IS
CONTEMPLATED IN THE 1959 BUDGET OF YOUR AGENCY WHICH HAS NOT YET BEEN
ACTED UPON BY THE CONGRESS.
ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION PRESENTED, YOU ARE
ADVISED THAT, SINCE IT DOES NOT CONTAIN SPECIFIC AUTHORITY THEREFOR, IT
IS OUR VIEW THAT THE CURRENT APPROPRIATION OF THE
B-129403, MAR. 21, 1958
TO GAINES V. PALMES, ESQUIRE:
REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1957, RELATIVE TO A
CLAIM IN THE AMOUNT OF $111,979.86 ALLEGED TO BE DUE ARCHIE AND ALLAN
SPIERS, INC., NEWPORT NEWS, VIRGINIA, REPRESENTING INCREASED COSTS OR
DAMAGES CAUSED BY DELAYS OF THE GOVERNMENT AMOUNTING TO A BREACH OF
CONTRACT NOY-27124, DATED JUNE 30, 1951, FOR THE REHABILITATION BY THIS
FIRM OF FUEL AND WATER PIPELINES AT THE UNITED STATES NAVAL BASE,
NORFOLK, VIRGINIA. THE CLAIM CONSISTS OF THREE ITEMS SET FORTH IN YOUR
LETTER OF OCTOBER 3, 1956, AS FOLLOWS:
TABLE
CLAIM NO. 1. INCREASED COST INCURRED AS A RESULT OF
DELAY IN AWAITING ISSUANCE OF A PROPOSED CHANGE ORDER $14,470.27
CLAIM NO. 2. INCREASED COST OF PERFORMANCE OF ORIGINAL
CONTRACT WORK DUE TO ENCOUNTERING UNFORESEEN
CONDITIONS, AND TO MISREPRESENTATION OF CONDITIONS 90,010.46
CLAIM NO. 3. COST OF MAINTENANCE OF PIPELINES DUE TO
ENCOUNTERING UNFORESEEN CONDITIONS 7,499.13
AS YOU INDICATE, THE CONTRACTOR, BY LETTER DATED MARCH 15, 1954,
INITIALLY SUBMITTED A CLAIM TO THE CONTRACTING OFFICER ALLEGING THAT
OVER AND ABOVE THE AMOUNT OF $2,072.62 STATED IN THE FINAL PAYMENT
VOUCHER, THE ADDITIONAL SUM OF $60,348.06 WAS DUE UNDER THIS CONTRACT
FOR (1) STANDBY EXPENSES INCURRED FROM DATE OF COMPLETION OF THE
CONTRACT WORK TO FINAL ACCEPTANCE IN THE AMOUNT OF $15,197.16, AND (2)
EXPENSES INCURRED BY REASON OF DELAYS CAUSED BY CHANGES IN PLANS AND
DRAWINGS AND BY NAVY ACTIVITIES ON PIERS, SUCH AS MOVEMENTS OF
AIRPLANES, LOADING AMMUNITION, TC., IN THE AMOUNT OF $45,150.90. BY
YOUR LETTER DATED JANUARY 2, 1956, HOWEVER, THE CLAIM WAS RESTATED AND
REVISED SO AS TO EMBRACE THE THREE ITEMS NOW CLAIMED, AND THE TOTAL
AMOUNT ALLEGED TO BE DUE WAS INCREASED ON THE BASIS THAT "THE CLAIMS
MADE HEREIN ARE BASED ON ACTUAL COST FIGURES RATHER THAN ON ESTIMATES AS
WAS THE CASE IN FIRST PRESENTING THE CLAIMS.'
PAYMENT OF THE CLAIM WAS DENIED BY THE CONTRACTING OFFICER IN HIS
DECISION DATED MARCH 19, 1956, ON THE BASIS THAT (1) TO THE EXTENT THE
CLAIM WAS IN THE NATURE OF A CLAIM FOR DAMAGES, IT COULD NOT BE THE
SUBJECT OF COMPENSATION UNDER THE TERMS OF THE CONTRACT; (2) SINCE THE
CONTRACTOR HAD SIGNED CHANGE ORDERS WITHOUT EXCEPTION REIMBURSING IT FOR
EXPENSES INCIDENT TO CHANGED CONDITIONS ENCOUNTERED, NO BASIS EXISTED
FOR ALLOWING ADDITIONAL COMPENSATION ON ACCOUNT OF SUCH CHANGED
CONDITIONS; AND (3) SINCE ARTICLE 4 (D) OF THE CONTRACT PROVIDED THAT
THE CONTRACTOR WOULD BE RESPONSIBLE FOR ALL WORK PERFORMED UNTIL
COMPLETION AND FINAL ACCEPTANCE, COST OF SUCH MAINTENANCE WORK MUST BE
BORNE BY THE CONTRACTOR. THE CONTRACING OFFICER'S DECISION WAS DULY
APPEALED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS WHERE IT WAS
DISMISSED ON THE GROUND URGED BY THE CONTRACTING AGENCY THAT THE CLAIM
WAS ESSENTIALLY ONE FOR DAMAGES FOR DELAY AMOUNTING TO A BREACH OF
CONTRACT BY THE GOVERNMENT OVER WHICH THE BOARD HAD NO JURISDICTION
UNDER THE "DISPUTES" ARTICLE OF THE CONTRACT. ASBCA NO. 3503, AUGUST 6,
1956. APPARENTLY NO ATTEMPT WAS MADE TO OBTAIN FURTHER CONSIDERATION BY
THE BOARD.
CLAIM NO. 1, IT IS STATED IN YOUR LETTER OF OCTOBER 3, 1956, WAS MADE
ON THE BASIS THAT SINCE THE INCREASED COSTS INCURRED RESULTED FROM
AWAITING THE ISSUANCE OF A PROPOSED CHANGE ORDER, WHICH WAS NEVER
ISSUED, PAYMENT THEREOF SHOULD BE MADE UNDER THE CHANGES ARTICLE OF THE
CONTRACT. CLAIMS NOS. 2 AND 3, IT IS STATED IN THIS LETTER, WERE
ASSERTED ON THE GROUND THAT SINCE THE INCREASED COSTS CLAIMED RESULTED
FROM ENCOUNTERING CONDITIONS WHICH WERE NOT EXPECTED BY EITHER PARTY THE
COSTS WERE COMPENSABLE UNDER ARTICLE 4 OF THE CONTRACT. IT IS STATED
FURTHER IN YOUR LETTER THAT "OTHER FACTS ARE HIGHLY MATERIAL TO THESE
CLAIMS WHICH ESTABLISH NOT ONLY A CHANGED CONDITION BUT A BREACH OF
CONTRACT BY THE CONTRACTING OFFICER THROUGH MISREPRESENTING CONDITIONS
TO BE ENCOUNTERED.' THUS, IT IS CONTENDED IN YOUR LETTER THAT, IN
ADDITION TO THE INCREASED COST OF $14,476.27 SUSTAINED DURING THE DELAY
PERIOD SUBSEQUENT TO COMPLETION OF THE CONTRACT, THE CONTRACTOR ALSO
SUSTAINED INCREASED COSTS IN THE AMOUNT OF $90,010.46 IN PERFORMING THE
ORIGINAL CONTRACT WORK DUE TO UNREASONABLE DELAYS AND DISRUPTION OF
OPERATIONS CAUSED BY FAULTY PLANS AND SPECIFICATIONS PREPARED BY THE
NAVY, IN THAT LOCATIONS OF PILING SUPPORTING THE PIERS WERE IN MANY
PLACES ENTIRELY DIFFERENT FROM THOSE SHOWN ON THE CONTRACT DRAWINGS,
AMOUNTING TO A SERIOUS MISREPRESENTATION OF CONDITIONS TO BE
ENCOUNTERED; TOGETHER WITH OTHER INCREASED COSTS OF $7,499.13 FOR
MAINTENANCE OF CERTAIN PIPELINES FOR A PERIOD OF THREE MONTHS AFTER THE
WORK WAS COMPLETED, BUT BEFORE IT WAS ACCEPTED BY THE GOVERNMENT.
YOU ALLEGE THAT THE INCREASED COSTS CLAIMED REPRESENT THE DIFFERENCE
BETWEEN THE ACTUAL COST INCURRED IN PERFORMING THE CONTRACT AND THE
REASONABLE COST THEREOF BUT FOR THE DELAYS OCCASIONED BY THE GOVERNMENT,
WHICH INCREASED COSTS CONSTITUTE THE MEASURE OF INCREASED COSTS OR
DAMAGES PAYABLE TO THE CONTRACTOR. YOU URGE THAT THE "REASONABLE COST"
MAY BE DETERMINED BY PROJECTING THE COST ACTUALLY INCURRED DURING THE
MONTH OF MAY 1952 (A MONTH DURING WHICH YOU ALLEGE THERE WAS NO
INTERFERENCE OR DELAY CAUSED BY THE GOVERNMENT) AT THE RATIO OF THE
PERCENTAGE OF WORK PERFORMED DURING THAT MONTH, ESTIMATED AT 16.87
PERCENT IN YOUR MEMORANDUM OF MARCH 29, 1957. HOWEVER, YOU EXCLUDE THE
COST OF MATERIALS FROM YOUR DETERMINATION ON THE GROUND THAT SUCH COSTS
WERE NOT AFFECTED BY THE DELAYS. ON NOVEMBER 14, 1957, YOU SUBMITTED A
"STATEMENT OF INCREASED COST INCURRED BASED UPON THE DIFFERENCE BETWEEN
THE REASONABLE COST AND ACTUAL COST" WHICH IS BASED ON AN ESTIMATE OF 11
MONTHS REQUIRED FOR PERFORMANCE INCLUDING CHANGE ORDER WORK NOT
PREVIOUSLY CONSIDERED, SHOWING AN AGGREGATE AMOUNT OF $104,206.
FOLLOWING CONFERENCES WITH REPRESENTATIVES OF OUR OFFICE, IN YOUR
LETTER OF NOVEMBER 20, 1957, YOU REVIEWED AND REITERATED THE CONTENTIONS
PREVIOUSLY ADVANCED IN SUPPORT OF THE CLAIM, CITING SOME OF THE
AUTHORITIES REFERRED TO IN THE ATTACHED REPRINT OF YOUR ARTICLE "DAMAGES
IN GOVERNMENT CONSTRUCTION CONTRACTS" FROM THE FORDHAM LAW REVIEW, VOL.
XXV, NO. 4, WINTER 1956-57. YOU ALSO STATED IN THIS LETTER YOUR VIEWS
AND COMMENTS WITH RESPECT TO A "REPORT ON REVIEW OF CONTRACT NOY-27124"
MADE BY REPRESENTATIVES OF OUR ACCOUNTING AND AUDITING STAFF BASED UPON
AN EXAMINATION OF THE CONTRACTOR'S RECORDS. SUBMITTED WITH YOUR LETTER
WERE REVISED COST STATEMENT, SCHEDULE "A"--- "STATEMENT OF INCREASED
COSTS INCURRED BASED UPON THE DIFFERENCE BETWEEN THE REASONABLE COST AND
ACTUAL COST" AND SCHEDULE "B"--- "SUMMARY OF COST BASED ON ADJUSTED GAO
DIT.' SCHEDULE "A" SHOWS "ACTUAL COST ENTIRE CONTRACT WORK" IN THE
AMOUNT OF $242,180.83. ACTUAL COSTS FOR MAY 1952 ARE SHOWN AS
$12,695.77, AND ON THE THEORY THAT ALL OF THE WORK COULD HAVE BEEN
PERFORMED IN 12 MONTHS UNDER THE CONDITIONS WHICH EXISTED IN THAT MONTH,
YOU ARRIVE AT A ,REASONABLE COST" OF $152,400, LEAVING A DIFFERENCE OF
$89,780 ALLEGED DAMAGES. SCHEDULE "B" SHOWS "CONTRACTOR'S ESTIMATE" OF
TOTAL COSTS (EXCLUSIVE OF MATERIAL COSTS) AMOUNTING TO $164,131.58 AND
"ADJUSTED COST" (ALSO EXCLUSIVE OF MATERIAL COSTS) AMOUNTING TO
$242.180.83, LEAVING A DIFFERENCE OF $78,049.25, WHICH AMOUNT YOU OFFER
TO ACCEPT IN FULL SETTLEMENT.
IT IS WELL ESTABLISHED THAT THE UNITED STATES CAN BE REQUIRED TO MAKE
COMPENSATION TO A CONTRACTOR FOR DAMAGES WHICH HE HAS ACTUALLY SUSTAINED
AS A RESULT OF A BREACH OF THE CONTRACT BY THE GOVERNMENT AND THAT UNDER
SUCH CIRCUMSTANCES THE BURDEN IS ON THE CONTRACTOR TO PROVE ITS DAMAGES,
IF ANY, LIMITED TO THE ACTUAL LOSSES INCURRED. UNITED STATES V. SMITH,
OCTOBER 18, 1876, 94 U.S. 214, 217-219, AND CASES THERE CITED; UNITED
STATES V. MEULLER, 113 U.S. 153, 156; UNITED STATES V. BARLOW, 184
U.S. 123, 147; RIPLEY V. UNITED STATES, 223 U.S. 695; UNITED STATES V.
WYCKOFF, 271 U.S. 263. HOWEVER, IT IS ALSO WELL ESTABLISHED THAT
DELAYS RESULTING FROM CHANGES PERMITTED UNDER THE TERMS OF THE CONTRACT
DO NOT CONSTITUTE A BREACH OF CONTRACT BY THE GOVERNMENT, AND THAT THE
GOVERNMENT IS NOT LIABLE FOR DAMAGES ALLEGEDLY SUFFERED ON ACCOUNT OF
SUCH DELAYS. UNITED STATES V. RICE, NOVEMBER 9, 1942, 317 U.S. 61, AND
UNITED STATES V. VOLEY, NOVEMBER 25, 1946, 329 U.S. 64. APPLYING THE
PRINCIPLES OF THESE DECISIONS TO THE FACTS AND CIRCUMSTANCES OF RECORD
IN THIS CASE, OUR OFFICE WOULD NOT BE JUSTIFIED IN CERTIFYING ANY AMOUNT
FOR PAYMENT UNDER YOUR CLAIM FOR THE FOLLOWING REASONS.
UNDER THE TERMS OF THE CONTRACT YOU AGREED TO FURNISH THE MATERIALS
AND PERFORM THE WORK REQUIRED ON CONSIDERATION OF THE PAYMENT BY THE
GOVERNMENT OF $424,513.90. THE CONTRACT PROVIDED THAT THE WORK WAS TO
COMMENCE JUNE 30, 1951, AND BE COMPLETED BY MARCH 26, 1952, OR WITHIN
270 DAYS (9 MONTHS) SUBJECT TO ASSESSMENT OF LIQUIDATED DAMAGES OF $125
PER CALENDAR DAY FOR DELAY IN COMPLETION PURSUANT TO ARTICLE 11 OF THE
CONTRACT. PROVISIONS WERE INCLUDED IN THE CONTRACT FOR MAKING
ADJUSTMENTS IN THE CONTRACT PRICE DUE TO "CHANGED CONDITIONS" UNDER
ARTICLE 4 (B); FOR CHANGES AND EXTRAS UNDER ARTICLE 10; FOR EXTENSIONS
OF TIME FOR COMPLETION DUE TO CAUSES BEYOND THE CONTROL AND WITHOUT THE
FAULT OR NEGLIGENCE OF THE CONTRACTOR UNDER ARTICLE 11; AND FOR FINAL
AND CONCLUSIVE DECISIONS BY THE CONTRACTING OFFICER OF DISPUTES OF
QUESTIONS OF FACT ARISING UNDER THE CONTRACT NOT SETTLED BY AGREEMENT,
SUBJECT TO APPEAL TO AND FINAL DECISION BY THE SECRETARY OR
HIS DULY AUTHORIZED REPRESENTATIVE UNDER ARTICLE 16.
NINE CHANGE ORDERS WERE ISSUED UNDER THE CONTRACT, SIX PURSUANT TO
ARTICLE 10 RELATING TO CHANGES IN THE DRAWINGS OR SPECIFICATIONS AND
THREE PURSUANT TO ARTICLE 11 RELATING TO DELAYS AND THE ASSESSMENT OF
LIQUIDATED DAMAGES. ALL WERE DULY ACCEPTED WITHOUT OBJECTION BY THE
CONTRACTOR. PURSUANT TO THESE CHANGE ORDERS THE CONTRACT PRICE WAS
INCREASED FROM $424,513.90 TO $522,148.90, AND THE TIME FOR PERFORMANCE
AND COMPLETION OF THE WORK STIPULATED IN THE CONTRACT AMOUNTING TO 270
DAYS (9 MONTHS) WAS INCREASED 538 DAYS (18 MONTHS), RESULTING IN A TOTAL
OF 808 DAYS (APPROXIMATELY 27 MONTHS) FOR COMPLETION OF THE CONTRACT
WITHOUT ASSESSMENT OF LIQUIDATED DAMAGES.
THE RECORD SHOWS THAT THE CONTRACT WORK WAS COMPLETED ON OR ABOUT
SEPTEMBER 15, 1953, THE CONTRACT DATE FOR COMPLETION AS EXTENDED BY THE
CHANGE ORDERS. BY LETTER DATED SEPTEMBER 14, 1953, THE CONTRACTOR
ADVISED THE OFFICER IN CHARGE OF CONSTRUCTION THAT DUE TO FAILURE OF
CERTAIN EXPANSION JOINTS TO WORK PROPERLY, ALTHOUGH THEY HAD BEEN
INSTALLED ACCORDING TO PLANS, IT WAS NOW FACED WITH AN ADDITIONAL CHANGE
ORDER TO CORRECT THIS FAULT; THAT THE ARCHITECT WAS PREPARING
ADDITIONAL DRAWINGS; THAT IT WAS UNDERSTOOD THE NAVY WOULD NOT ACCEPT
THE JOB UNTIL THIS CONDITION WAS CORRECTED; AND THAT WE (THE
CONTRACTOR) WILL EXPECT THE NAVY TO REIMBURSE US FOR MEN AND EQUIPMENT
ON THE JOB UNTIL SUCH TIME AS WE ARE IN RECEIPT OF THE CHANGE ORDER.
THE OFFICER IN CHARGE OF CONSTRUCTION REPLIED BY LETTER DATED SEPTEMBER
28, 1953, THAT AN INSPECTION BY REPRESENTATIVE OF HIS OFFICE REVEALED
THE FACT THAT THE EXPANSION JOINT ANCHORS WERE NOT INSTALLED IN
ACCORDANCE WITH THE CONTRACT DRAWINGS. NO FURTHER CHANGES WERE
AUTHORIZED AND NO ADDITIONAL CHANGE ORDERS WERE ISSUED, NOR WAS ANY
CORRECTIVE WORK REQUIRED, BUT THE WORK WAS FINALLY ACCEPTED ON JANUARY
12, 1954, IN THE SAME CONDITION AS WHEN IT WAS COMPLETED IN SEPTEMBER.
THE CONTRACTOR RECEIVED PAYMENT UNDER THE FINAL VOUCHER DATED NOVEMBER
10, 1953, IN THE AMOUNT OF $2,072.62, LESS $72.62 ADMINISTRATIVELY
DEDUCTED, AND THE CONTRACTOR'S CLAIM OF MARCH 15, 1954, FOR EXPENSES
ALLEGEDLY INCURRED DURING THE PERIOD AFTER COMPLETION TO FINAL
ACCEPTANCE, AGGREGATING $15,197.16, WAS DENIED BY THE CONTRACTING
OFFICER'S DECISION OF MARCH 19, 1956, AS HEREINBEFORE INDICATED.
THE CONTRACT AS AMENDED BY AGREEMENT OF THE PARTIES PROVIDED FOR
COMPLETION OF ALL THE WORK IN 450 DAYS OR 15 MONTHS, EXCLUSIVE OF THE
EXTENSIONS OF TIME AMOUNTING TO 358 DAYS (APPROXIMATELY 12 MONTHS)
GRANTED THE CONTRACTOR BECAUSE OF EXCUSABLE DELAYS FOR THE PURPOSE OF
RELIEVING HIM FROM THE ASSESSMENT OF LIQUIDATED DAMAGES. OF THE TOTAL
538 DAYS (18 MONTHS) EXTENSIONS IN TIME GRANTED UNDER THE CONTRACT FOR
EXCUSABLE DELAYS, IT APPEARS THAT 66.5 PERCENT, THE MAJOR PORTION OF THE
DELAY ENCOUNTERED, WAS DUE TO THE CONTRACTOR'S INABILITY TO PROCURE THE
MATERIALS HE HAD AGREED TO FURNISH AND INSTALL UNDER THE TERMS OF THE
CONTRACT, AND TO INCLEMENT WEATHER, AND A STRIKE, AND THAT MUCH OF THIS
DELAY OCCURRED CONCURRENTLY WITH THE DELAY CAUSED BY CHANGES IN THE
DRAWINGS AND SPECIFICATIONS. IT SEEMS EVIDENT, THEREFORE, THAT THE
DELAYS CAUSED BY THE LACK OF THE REQUIRED MATERIALS--- PRESUMABLY
ANTICIPATED BY THE CONTRACTOR AS A PART OF THE RISK INHERENT IN THIS
TYPE OF UNDERTAKING--- NECESSARILY MUST BE CONSIDERED IN DETERMINING
SUCH EXCESS COSTS OR DAMAGES AS MAY HAVE BEEN INCURRED BY THE CONTRACTOR
BECAUSE OF IMPAIRED EFFICIENCY OF ITS OPERATIONS, AND THAT THIS IS SO,
NOTWITHSTANDING THE FACT THAT RECORDED MATERIAL COSTS WERE APPROXIMATELY
$60,000 LESS THAN THE CONTRACTOR'S ESTIMATE OF ITS ANTICIPATED COSTS AS
SUPPLEMENTED BY ITS ESTIMATES FOR THE CHANGE ORDER WORK.
WITH RESPECT TO THE AMOUNT OF THE INCREASED COSTS OR DAMAGES
ALLEGEDLY INCURRED BY THE CONTRACTOR, THE EVIDENCE OF RECORD IS IN
CERTAIN RESPECTS INCONSISTENT WITH YOUR CONTENTIONS. TWELVE MONTHS IS
CLAIMED AS A REASONABLE TIME FOR PERFORMANCE, AS COMPARED WITH THE
CONTRACT PERIOD OF FIFTEEN MONTHS. ESTIMATED COSTS, RATHER THAN "ACTUAL
COST FIGURES," AS ALLEGED IN YOUR LETTER OF JANUARY 2, 1956, WERE USED
IN YOUR DETERMINATION OF BOTH THE CLAIMED "REASONABLE COST" AND THE
CLAIMED "ACTUAL COST" OF PERFORMANCE. IT APPEARS FROM THE "REPORT ON
REVIEW" BY OUR ACCOUNTING AND AUDITING STAFF THAT, WITHOUT VERIFICATION
AS TO WHETHER THE RECORDED LABOR AND EQUIPMENT COSTS ACTUALLY WERE
EXPENDED IN THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR'S RECORDS
REFLECT THAT ALL ITEMS OF COST CHARGEABLE TO THE CONTRACT FOR THE ENTIRE
PERIOD OF 31 MONTHS, JUNE 30, 1951, TO JANUARY 30, 1954, AMOUNT TO A
TOTAL OF $479,075.87. IT APPEARS FURTHER, THAT THE TOTAL RECORDED COSTS
OF $479,075.87, AND LIKEWISE THE TOTAL ESTIMATED COSTS OF $450,476.57
(YOUR REVISED ESTIMATE FOR "REASONABLE COST" IN THE AMOUNT OF
$164,131.58, PLUS THE CONTRACTOR'S ESTIMATES FOR MATERIALS IN THE AMOUNT
OF $286,344.99), ARE LESS THAN THE TOTAL CONSIDERATION OF $522,148.90
PAID UNDER THE TERMS OF THE CONTRACT.
AS URGED IN THE PRESENTATION OF YOUR CLAIM, THE COURT OF CLAIMS
APPARENTLY HAS HELD, IN EFFECT, THAT THE GOVERNMENT IS LIABLE FOR A
BREACH OF CONTRACT DUE TO FAULTY DRAWINGS AND UNREASONABLE DELAYS
AFFECTING THE EFFICIENCY OF CONTRACT OPERATIONS, AND HAS APPROVED THE
AWARD OF DAMAGES IN AN AMOUNT REPRESENTING THE COSTS ACTUALLY INCURRED
IN EXCESS OF THE COSTS WHICH REASONABLY WOULD HAVE BEEN INCURRED BUT FOR
THE BREACH.
WHILE WE HAVE NEVER CONCURRED IN THE VIEW SOMETIMES EXPRESSED BY THE
COURT OF CLAIMS THAT WE ARE WITHOUT JURISDICTION TO CONSIDER CLAIMS FOR
UNLIQUIDATED DAMAGES, IT HAS ALWAYS BEEN RECOGNIZED THAT, WHERE THE
FACTS ARE IN DISPUTE OR ARE OTHERWISE SO UNCERTAIN AS TO REQUIRE THE
TAKING OF TESTIMONY, EXAMINATION AND CROSS-EXAMINING OF WITNESSES, AND
THE WEIGHING OF CONFLICTING EVIDENCE, IT IS IMPRACTICAL FOR THE
ACCOUNTING OFFICERS TO DETERMINE WITH ACCURACY THE TRUE MERITS
OF SUCH CLAIMS. SEE 21 COMP. DEC. 134; 4 COMP. GEN. 404. IT IS
EQUALLY TRUE THAT WHERE THE LEGAL BASIS OF A CLAIM IS SO DUBIOUS AS TO
LEAVE SERIOUS DOUBT AS TO WHETHER IT WOULD BE RECOGNIZED BY THE COURTS
THE PROPER COURSE FOR THE ACCOUNTING OFFICERS IS TO REJECT IT.
IN OUR OPINION, THE INFORMATION AND EVIDENCE SUBMITTED BY YOU,
CONSIDERED WITH THE ENTIRE RECORD AVAILABLE IN THIS CASE, DO NOT
ESTABLISH YOUR ALLEGATIONS EITHER AS TO THE LIABILITY OF THE GOVERNMENT
FOR ALL OF THE INCREASED COSTS CLAIMED, OR AS TO THE AMOUNT TO WHICH THE
CONTRACTOR IS ENTITLED, WITH SUFFICIENT CERTAINTY TO JUSTIFY ANY PAYMENT
BY OUR OFFICE.
FURTHERMORE, IT SEEMS EVIDENT FROM THE FOREGOING THAT ANY OPINION BY
THE DEPARTMENT OF THE NAVY, WHICH IT IS SUGGESTED IN YOUR LETTER OF
MARCH 7, 1958, BE REQUESTED BY US, RELATIVE TO THE ,AMOUNT OF DAMAGES
SUSTAINED BY THE CONTRACTOR AS A RESULT OF DELAYS AND DISRUPTION OF
OPERATIONS OCCASIONED BY THE ERRORS IN THE CONTRACT DRAWINGS" OR AN
ADMINISTRATIVE "ESTIMATE OF THE REASONABLE COST OF PERFORMING THE
CONTRACT WORK IN STRICT ACCORDANCE WITH THE CONTRACT DRAWINGS AND
SPECIFICATIONS," WHICH YOU ALSO SUGGEST BE REQUESTED, COULD NOT BE
ACCEPTED, IF FURNISHED, AS DETERMINATIVE OF YOUR CLAIMS.
B-134616, MAR. 21, 1958
TO MR. LESTER H. THOMPSON, AUTHORIZED CERTIFYING OFFICER, FEDERAL
HOUSING ADMINISTRATION:
YOUR LETTER OF FEBRUARY 25, 1958, REQUESTS DECISION WHETHER YOU MAY
CERTIFY FOR PAYMENT THE ENCLOSED BUREAU VOUCHER NO. 40977 (BUREAU
SCHEDULE NO. 2725) IN THE AMOUNT OF $303. THAT SUM REPRESENTS THE PER
DIEM IN LIEU OF SUBSISTENCE ADMINISTRATIVELY SUSPENDED FROM THE OCTOBER,
NOVEMBER, AND DECEMBER 1957 TRAVEL VOUCHERS OF J. A. MEREDITH IN
ACCORDANCE WITH OUR DECISION OF JANUARY 28, 1958, IN HIS CASE. THE SUM
OF $303 NOW IS RECLAIMED BY MR. MEREDITH IN THE CIRCUMSTANCES RELATED IN
THE ENCLOSURES WITH YOUR LETTER, AS SUMMARIZED BELOW.
THE ENCLOSURES WITH YOUR LETTER (EXHIBITS D AND E) EVIDENCE THAT MR.
MEREDITH'S OFFICIAL STATION HAS BEEN CHANGED FROM KNOXVILLE TO HIS PLACE
OF ABODE ON OAK GROVE ROAD, JOHNSON CITY, TENNESSEE, EFFECTIVE FEBRUARY
10, 1958. HENCE YOU REQUEST OUR ADVICE, ALSO IN LIGHT OF THE RELATED
CIRCUMSTANCES, WHETHER YOU MAY CERTIFY FOR PAYMENT A SUBSEQUENT CLAIM BY
MR. MEREDITH, UPON THE SAME BASIS AS THE RECLAIM AT HAND--- ASSUMING
THAT MR. MEREDITH WILL REQUEST PAYMENT OF PER DIEM FOR THE PERIOD
JANUARY 1 THROUGH FEBRUARY 9, 1958.
THE RECORD REVEALS THAT THE PRIOR DESIGNATION OF KNOXVILLE AS MR.
MEREDITH'S OFFICIAL STATION FOR PER DIEM PURPOSES ORIGINALLY WAS
JUSTIFIED IN VIEW OF THE UNCERTAINTY AT THE TIME CONCERNING THE AMOUNT
OF TRAVEL HE WOULD PERFORM AND THE AREA WITHIN WHICH HE WOULD BE
REQUIRED TO PERFORM THE PREPONDERANCE OF HIS DUTIES; THAT A GRADUAL
DECLINE IN THE VOLUME OF MR. MEREDITH'S WORK IN THE KNOXVILLE AREA, WITH
CORRESPONDING INCREASE OF HIS WORK IN THE JOHNSON CITY AREA, CULMINATED
IN THE ADMINISTRATIVE REVIEW OF THE SITUATION PURSUANT TO OUR DECISION
OF JANUARY 28, 1958, B-134616, TO YOU. THUS, IT NOW APPEARS THAT THE
ORIGINAL DESIGNATION OF MR. MEREDITH'S OFFICIAL STATION WAS MADE BY
APPROPRIATE ADMINISTRATIVE AUTHORITY IN LIGHT OF THE ATTENDANT
CIRCUMSTANCES, AS EVIDENT AT THE TIME, AND THAT SUCH ORIGINAL
DETERMINATION AND THE REDETERMINATION EFFECTIVE FEBRUARY 10, 1958, WERE
MADE WITH DUE REGARD TO THE EXIGENCIES OF THE SERVICE, AND WITH NO
INTENT PRIMARILY TO SERVE THE PERSONAL CONVENIENCE OR DESIRES OF MR.
MEREDITH. FURTHER, IT APPEARS THAT MR. MEREDITH PERFORMED THE REQUIRED
TRAVEL AND TEMPORARY DUTY IN GOOD FAITH AND IN ACCORDANCE WITH
HIS PRE-EXISTING TRAVEL ORDERS AND THE ADMINISTRATIVE INSTRUCTIONS
GIVEN HIM IN THE MATTER.
IN THE CIRCUMSTANCES, OUR VIEW IS THAT THE ATTACHED RECLAIM VOUCHER,
RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.
REGARDING THE PERIOD JANUARY 1 THROUGH FEBRUARY 9, 1958, YOUR LETTER
INDICATES THAT A VOUCHER COVERING THAT PERIOD IS NOT PRESENTLY BEFORE
YOU FOR CERTIFICATION. THUS, WE MAY NOT UNDERTAKE TO FURNISH A FINAL
DECISION SUCH AS YOU REQUEST. HOWEVER, IF MR. MEREDITH SHOULD SUBMIT
TO YOU A CLAIM FOR PER DIEM FOR THE PERIOD JANUARY 1 THROUGH FEBRUARY 9,
1958, COMPUTED UPON THE SAME BASIS AS THE ATTACHED RECLAIM VOUCHER, WE
MAY SAY THAT IF NO OTHER MATERIAL QUESTION IS INVOLVED FAVORABLE
CONSIDERATION WOULD SEEM TO BE APPROPRIATE.
B-134819, MAR. 21, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED FEBRUARY 28, 1958, WITH ENCLOSURES,
FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS), WHO REQUESTED A
DECISION WHETHER A SALES CONTRACT WITH MR. J. M. SIEGEL, LOS ANGELES,
CALIFORNIA, MAY BE RESCINDED.
ON OCTOBER 9, 1957, MR. J. M. SIEGEL WAS AWARDED CONTRACT NO. DA
(S/-04-513 AVI-183, IN THE TOTAL AMOUNT OF $11,220.84, SELLING TO HIM
5,834 YOKE TYPE LIFE PRESERVERS, DESCRIBED AS "SCRAP MATERIAL AND
SALVAGE PROPERTY," AT $1.0666 EACH AND 5,000 UNITS AT $0.99966 EACH. ON
NOVEMBER 21, 1957, AT A CONFERENCE WITH THE CONTRACTING OFFICER AND THE
ASSISTANT PROPERTY DISPOSAL OFFICER, AND IN SUBSEQUENT CORRESPONDENCE,
THE PURCHASER REQUESTED REFUND OF HIS DEPOSIT OF $3,788, BECAUSE THE
U.S. COAST GUARD WOULD NOT APPROVE THE USE OF THE LIFE PRESERVERS. THE
PURCHASER STATED THAT WHEN HE MADE HIS BID HE BELIEVED THAT THE LIFE
PRESERVERS WERE SUITABLE FOR USE, BECAUSE ON EACH ARTICLE THERE WAS A
LABEL WHICH ALLEGEDLY STATED,"PRESERVERS HAVE BEEN GOVT. TESTED
REPRESENTATIVELY AND APPROVED FOR SERVICE.'
FROM THE SAME LOT THAT THE SALE WAS MADE TO MR. SEIGEL AT UNIT PRICES
OF $1,0666 AND $0.99966, QUANTITIES OF LIFE PRESERVERS ALSO WERE SOLD TO
OTHER PURCHASERS AT UNIT PRICES OF $1.178, $1.033, $0.988 AND $0.933.
THEREFORE, THERE WAS NOTHING UNUSUAL ABOUT MR. SIEGEL'S PURCHASE PRICE.
THE TERMS AND CONDITIONS OF THE SALE DISCLAIMED ANY WARRANTY OF
"FITNESS FOR ANY USE OR URPOSE" AND CAUTIONED THAT NO CLAIM WOULD BE
CONSIDERED "FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE
PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.' THE GOVERNMENT HAD
NO KNOWLEDGE OF THE PURPOSE OR USE TO WHICH THE LIFE PRESERVERS WERE TO
BE PUT AND IT IS EVIDENT FROM THE TERMS OF THE SALE THAT THE GOVERNMENT
DID NOT WARRANT THAT THE ARTICLES COULD BE USED FOR ANY PARTICULAR
PURPOSE. THE MATERIAL WAS SOLD IN GOOD FAITH FOR WHAT IT WAS BELIEVED
TO BE--- SCRAP AND SALVAGE. BY SO DESCRIBING THE PROPERTY, THE
GOVERNMENT INDICATED TO ALL PROSPECTIVE PURCHASERS THAT THE PROPERTY HAD
NO REASONABLE PROSPECT OF FUTURE USE AND HAD NO VALUE EXCEPT FOR ITS
BASIC MATERIAL CONTENT.
EVIDENTLY, THE PURCHASER NOW CHOOSES TO DISREGARD THE PLAIN TERMS OF
THE SALE AND TO RELY ON THE STATEMENT ALLEGED TO HAVE BEEN ON THE LABEL
ON EACH LIFE PRESERVER. IN 1 WILLISTON ON SALES 213, THE RULE IS STATED
AS FOLLOWS:
"THE PARTIES MAY BY AGREEMENT LIMIT THE EFFECT OF LANGUAGE WHICH
WOULD OTHERWISE BE CONSTRUED AS AMOUNTING TO AN EXPRESS WARRANTY. THE
MOST COMMON ILLUSTRATION OF THIS IS WHERE THE SELLER MAKES STATEMENTS IN
REGARD TO THE GOODS, BUT REFUSES TO WARRANT THE TRUTH OF THE STATEMENTS.
THOUGH THE STATEMENTS BY THEMSELVES MIGHT BE SUFFICIENT TO CONSTITUTE A
WARRANTY, THE REFUSAL NOT ONLY INDICATES AN UNWILLINGNESS TO CONTRACT
FOR THE TRUTH OF THE STATEMENTS, BUT ALSO SHOULD PUT THE BUYER SO ON HIS
GUARD THAT HE WOULD NOT BE JUSTIFIED IN BUYING IN RELIANCE UPON THEM.'
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR RELIEVING MR. SEIGEL OF HIS
OBLIGATION UNDER THE TERMS OF THE CONTRACT.
B-134923, MAR. 21, 1958
TO MR. NEAL J. PRICE, AUTHORIZED CERTIFYING OFFICER, INTERNATIONAL
COOPERATION ADMINISTRATION:
YOUR LETTER OF JANUARY 16, 1958, AUD:AAB:NA, REQUESTS A DECISION
WHETHER MR. EMIL SMITH, WHO SERVED AT ANKARA, TURKEY, WITH THE
INTERNATIONAL COOPERATION ADMINISTRATION, IS ENTITLED TO A SUBSISTENCE
ALLOWANCE--- ADMINISTRATIVELY DISALLOWED AND NOW RECLAIMED--- FOR A
PERIOD OF CONSULTATION IN WASHINGTON, D.C., FOLLOWING HIS RETURN TO THE
UNITED STATES.
ORDERS DATED SEPTEMBER 9, 1957, AUTHORIZING TRAVEL AND NECESSARY
EXPENSES IN ACCORDANCE WITH THE FOREIGN SERVICE TRAVEL REGULATIONS AND
THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, PROVIDED FOR THE TRAVEL
OF MR. SMITH FROM ANKARA, TURKEY, HIS OFFICIAL STATION, TO SILVER
SPRING, MARYLAND, THE PLACE OF HIS RESIDENCE IN THE UNITED STATES. THE
STATED PURPOSE OF THE TRAVEL WAS ,SEPARATION.' THE ORDERS ALSO PROVIDED
FOR FIVE DAYS OF CONSULTATION IN WASHINGTON, D.C. MR. SMITH'S PLACE OF
RESIDENCE, SILVER SPRING, MARYLAND, IS ADJACENT TO WASHINGTON, D.C.
MR. SMITH DEPARTED FROM ANKARA, TURKEY, OCTOBER 26, 1957, AND ARRIVED
AT SILVER SPRING, MARYLAND, NOVEMBER 7, 1957. FROM NOVEMBER 12 TO 18,
1957, HE WAS IN CONSULTATION AT WASHINGTON.
PERSONNEL ACTION DATED NOVEMBER 20, 1957, SEPARATED MR. SMITH AT THE
CLOSE OF BUSINESS NOVEMBER 18, 1957. THE PERSONNEL ACTION INDICATES
THAT MR. SMITH WAS APPOINTED TO A POSITION WITH THE INTERNATIONAL
COOPERATION ADMINISTRATION AT WASHINGTON, D.C., ON NOVEMBER 19, 1957,
WITHOUT A BREAK IN SERVICE.
THE TRAVEL AUTHORIZED AND PERFORMED WAS FOR THE PURPOSE OF RETURNING
MR. SMITH TO THE UNITED STATES FOR SEPARATION, AND THE FACT THAT HE
SUBSEQUENTLY, AFTER COMPLETION OF CONSULTATION AND SEPARATION, RECEIVED
AN APPOINTMENT IN WASHINGTON, IS NOT VIEWED AS MODIFYING THE NATURE OF
THE TRAVEL PERFORMED OR AS ENHANCING HIS RIGHTS. THE SITUATION HEREIN
IS ESSENTIALLY THAT CONSIDERED IN 29 COMP. GEN. 453, INVOLVING THE
RETURN OF A FOREIGN SERVICE OFFICER TO WASHINGTON, D.C., HIS PLACE OF
RESIDENCE, FOR RETIREMENT. WE HELD THEREIN THAT THE OFFICER COULD NOT
BE CONSIDERED IN A TRAVEL STATUS AT WASHINGTON D.C., THE PLACE OF
RESIDENCE AT WHICH THE TRAVEL TERMINATED SO AS TO ENTITLE HIM TO A
SUBSISTENCE ALLOWANCE FOR A PERIOD OF CONSULTATION AT WASHINGTON PRIOR
TO THE EFFECTIVE DATE OF HIS RETIREMENT.
IN CONSONANCE WITH THAT DECISION, DEEMED CONTROLLING IN THE PRESENT
CASE, YOU ARE ADVISED WE DO NOT CONSIDER MR. SMITH ENTITLED TO THE
SUBSISTENCE ALLOWANCE CLAIMED FOR THE PERIOD OF HIS CONSULTATION IN
WASHINGTON.
THE RECLAIM VOUCHER FORWARDED WITH YOUR LETTER, WHICH IS RETURNED
HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.
B-135066, MAR. 21, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED JANUARY 28, 1058, FROM THE
ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), RELATIVE TO THE
CLAIM OF LEHIGH CHEMICAL PRODUCTS COMPANY OF CHESTERTOWN, MARYLAND,
UNDER CONTRACT NO. ASP-14962, DATED MAY 16, 1956, WITH THE ARMED
SERVICES PETROLEUM PURCHASING AGENCY. TRANSMITTED WITH THE LETTER WERE
INVOICES OF THE CLAIMANT AGGREGATING $2,668.22, INCLUDING $2,186.92 FOR
COST OF STORAGE AND $481.30 FOR MARYLAND STATE INVENTORY TAX.
DECISION IS REQUESTED AS TO WHETHER PAYMENT ON THE INVOICES IS
AUTHORIZED.
THE CONTRACT REQUIRED LEHIGH CHEMICAL PRODUCTS COMPANY TO DELIVER
LUBRICATING GREASES TO VARIOUS GOVERNMENT ACTIVITIES ON OR ABOUT JULY
10, 1956. IT CONTAINS A PROVISIONS THAT "ALL INSPECTIONS AND TESTS BY
THE GOVERNMENT SHALL BE PERFORMED IN SUCH A MANNER AS NOT TO UNDULY
DELAY
THE WORK.'
IN THE LETTER OF JANUARY 28, 1958, IT IS STATED THAT AS A RESULT OF
ADVERSE REPORTS ON SIMILAR GREASES DELIVERED BY THIS CONTRACTOR UNDER A
PRIOR CONTRACT, THE BUREAU OF AERONAUTICS (THE QUALIFYING AGENCY),
DEPARTMENT OF THE NAVY, VERBALLY REQUESTED THE CONTRACTOR ON JULY 13,
1956, NOT TO MAKE ANY SHIPMENTS UNDER THE CONTRACT UNTIL TESTS WERE MADE
TO DETERMINE CONFORMANCE WITH THE SPECIFICATIONS. BY LETTER DATED
AUGUST 17, 1956, THE CONTRACTING OFFICER REQUESTED THE CONTRACTOR TO
WITHHOLD SHIPMENTS PENDING COMPLETION OF TESTS. UNDER DATE OF SEPTEMBER
24, 1956, THE CONTRACTOR SUBMITTED A COPY OF TEST RESULTS MADE BY AN
INDEPENDENT COMMERCIAL LABORATORY SHOWING THAT THE GREASES TESTED MET
CONTRACTUAL SPECIFICATIONS. ON OCTOBER 23, 1956, THE U.S. NAVAL
LABORATORY, ANNAPOLIS, MARYLAND, SUBMITTED A SATISFACTORY TEST REPORT
WHICH SUBSEQUENTLY WAS CONSIDERED INCONCLUSIVE DUE TO DEFECTS IN
SAMPLES. FINAL TESTS CONDUCTED BY REPRESENTATIVES OF THE ARMY, NAVY AND
AIR FORCE ON NOVEMBER 27 AND 28, 1956, SHOWED THAT THE GREASES MET
SPECIFICATIONS. ACCORDINGLY, BY LETTER DATED DECEMBER 3, 1956, THE
CONTRACTOR WAS AUTHORIZED TO CONTINUE THE MANUFACTURE AND DELIVERY OF
THE GREASES COVERED BY THE CONTRACT AND FINAL DELIVERIES WERE MADE
DURING JANUARY 1957.
THE REFERRED-TO INVOICES COVER EXPENSES INCURRED BY THE CONTRACTOR IN
STORING THE THERETOFORE MANUFACTURED GREASES DURING THE PERIOD FROM JULY
28, 1956, TO NOVEMBER 28, 1956, AND IN PAYING THE MARYLAND STATE
INVENTORY TAX ON THE GREASES. IT IS STATED IN THE LETTER OF JANUARY 28,
1958, THAT THE AMOUNT OF THE CLAIM IS REPORTED BY THE CONTRACTING
OFFICER TO BE FAIR AND REASONABLE; ALSO, THAT THE CONTRACTING OFFICER
EXPRESSES THE OPINION THAT THE GOVERNMENT HAD AMPLE TIME BETWEEN JULY 13
AND JULY 28, 1956, TO CONDUCT THE NECESSARY INSPECTION TESTS.
IT APPEARS THAT THE EXPENSES IN QUESTION WERE INCURRED BY THE
CONTRACTOR WITHOUT ITS FAULT AND AS A DIRECT RESULT OF THE DELAY IN
DELIVERY UNDER THE CONTRACT UNNECESSARILY AND UNREASONABLY CAUSED BY
INVOICES IS PROPER. SEE UNITED STATES V. SMITH. 94 U.S. 214; UNITED
STATES V. MUELLER, 113 U.S. 156; UNITED STATES V. WYCKOFF PIPE AND
CREOSOTING COMPANY, 271 U.S. 263; KEHM CORPORATION V. UNITED STATES,
119 C.CLS. 472.
B-135329, MAR. 21, 1958
TO MR. M. C. THOMPSON, ACTING CERTIFYING OFFICER, BUREAU OF
EMPLOYEES' COMPENSATION, UNITED STATES DEPARTMENT OF LABOR:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1958, FILE
X-1082472, TRANSMITTING TWO ITEMIZED BILLS FROM THE UNIVERSITY HOSPITAL,
UNIVERSITY OF MICHIGAN, ANN ARBOR, MICHIGAN, IN THE AMOUNTS OF $722.45
AND $148.75, COVERING SERVICES RENDERED BY THE HOSPITAL TO CLIFFORD E.
WHIPPLE, BOX 303, LACARNE, OHIO, FROM JULY 17 TO AUGUST 10, 1957, AND
FROM AUGUST 31 TO SEPTEMBER 7, 1957, RESPECTIVELY. BOTH BILLS HAVE BEEN
ADMINISTRATIVELY APPROVED FOR THE AMOUNTS STATED. YOU REQUEST A
DECISION AS TO WHETHER THESE BILLS IN THEIR PRESENT FORM MAY BE ACCEPTED
FOR PAYMENT.
YOU STATE THAT THESE BILLS WERE PREPARED ON A BILLING MACHINE AND
THAT IT IS CUSTOMARY TO RETAIN IN THE HOSPITAL THE TRUE ORIGINAL OF EACH
BILL. IN EACH INSTANCE, ONE CARBON COPY HAS BEEN STAMPED "ORIGINAL
INVOICE" AND BEARS THE CERTIFICATION OF THE COLLECTION MANAGER OF THE
HOSPITAL.
IN LETTER DATED DECEMBER 26, 1957, TO THE FISCAL OFFICER, BUREAU OF
EMPLOYEES' COMPENSATION, THE COLLECTION MANAGER OF THE HOSPITAL STATED
THAT THIS IS THE HOSPITAL'S USUAL ROUTINE FOR ALL GOVERNMENTAL AGENCIES,
AND THAT IT HAS BEEN QUITE ACCEPTABLE TO THE MANY AND VARIOUS AGENCIES
OF THE FEDERAL GOVERNMENT WITH WHICH IT DEALS.
YOU STATE THAT YOU HAVE CONSISTENTLY REFUSED TO ACCEPT BILLS UNLESS
THEY ARE TRUE ORIGINALS, BUT DO NOT DESIRE TO BE ARBITRARY IF CARBONS,
WHEN PLAINLY STAMPED AS "ORIGINAL INVOICE," ARE ACCEPTABLE TO THE
GENERAL ACCOUNTING OFFICE. YOU ALSO STATE THAT THIS QUESTION COMES UP
FREQUENTLY SINCE YOU NO LONGER REQUIRE THE SUBMISSION OF MEDICAL BILLS
ON FORM S-69, AND THAT THE DECISION IN THIS CASE WILL BE USED AS A
PRECEDENT.
ORDINARILY, OUR OFFICE REQUIRES THAT THE ORIGINAL INVOICE BE
SUBMITTED AS A BASIS FOR PAYMENT. HOWEVER, WHERE THE PAYEE'S STANDARD
BILLING PRACTICE REQUIRES RETENTION OF THE ORIGINAL INVOICE, WE DO NOT
OBJECT TO A COPY BEING USED TO BILL GOVERNMENT AGENCIES, PROVIDED ONE
COPY--- AND ONE COPY ONLY--- BEARS A NOTATION SUCH AS "ORIGINAL" OR
"CUSTOMER'S INVOICE" . ALSO, IF THE GOVERNMENT AGENCY REQUIRES AN
ADDITIONAL COPY FOR ITS OWN RECORDS, THAT COPY SHOULD BE CLEARLY MARKED
"COPY" . SEE 31 COMP. GEN. 649.
THE BILLS IN QUESTION APPEAR TO COMPLY WITH THE REQUIREMENTS STATED
ABOVE.
ACCORDINGLY, THE BILLS ARE RETURNED, AND YOU ARE ADVISED THAT PAYMENT
THEREON IS AUTHORIZED, IF OTHERWISE PROPER.
B-135373, MAR. 21, 1958
TO T. A. JAMES, DISBURSING OFFICER, THROUGH THE COMMANDANT OF THE
MARINE CORPS:
YOUR LETTER OF FEBRUARY 17, 1958, REQUESTS A DECISION WHETHER PAYMENT
IS AUTHORIZED ON A VOUCHER STATED IN FAVOR OF MAJOR LLOYD S. PENN,
019140, USMC, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF AN
ALLEGED DEPENDENT STEPSON (JOHN T. T. O-NEILL), FROM PENSACOLA, FLORIDA,
TO VIENNA, VIRGINIA, BETWEEN JANUARY 4 AND 15, 1958, PURSUANT TO
PERMANENT CHANGE OF STATION ORDERS, DATED AUGUST 19, 1957.
THE VOUCHER SHOWS THAT THE CHILD WAS BORN MAY 24, 1944. IN A
STATEMENT DATED JANUARY 27, 1958, THE OFFICER CERTIFIES THAT HE
CONTRIBUTES FROM $25 TO $30 A MONTH FOR THE SUPPORT OF HIS STEPSON,
WHOSE GROSS INCOME FROM SOURCES OTHER THAN THE OFFICER IS $90 A MONTH
AND WHOSE LIVING EXPENSES AVERAGE $116 A MONTH. SUCH LIVING EXPENSES
ARE ITEMIZED AS FOLLOWS: FOOD $45, LODGING $40, CLOTHES $12,
ENTERTAINMENT $8, EDUCATION $6, AND MISCELLANEOUS $5.
IN ORDER FOR A MEMBER OF THE UNIFORMED SERVICES TO BE ENTITLED TO
REIMBURSEMENT FOR AN ADOPTED CHILD OR STEPCHILD, THE ADOPTED CHILD OR
STEPCHILD MUST BE IN FACT DEPENDENT UPON THE MEMBER. DECISION OF APRIL
3, 1956, B-126916, 35 COMP. GEN. 536. IN THAT DECISION, IN CONSIDERING
SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
AUTHORIZING REIMBURSEMENT TO SERVICE MEMBERS FOR TRANSPORTATION OF THEIR
DEPENDENTS WHEN ORDERED TO MAKE PERMANENT CHANGE OF STATION, AND SECTION
102 (G) OF THE ACT, 63 STAT. 804, DEFINING THE TERM "DEPENDENT" AS
INCLUDING ,STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR
ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON SUCH MEMBER," WE SAID:
"SUCH PROVISIONS, INSOFAR AS STEPCHILDREN AND ADOPTED CHILDREN ARE
CONCERNED, ARE SUBSTANTIALLY THE SAME AS THE PROVISIONS OF PRIOR SIMILAR
STATUTES RELATING TO THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED
SERVICES TO TRANSPORTATION AND OTHER ALLOWANCES ON ACCOUNT OF SUCH
DEPENDENTS. THE WORDS "IN FACT DEPENDENT" WERE USED TO EXPRESS THE
INTENT THAT A STEPCHILD OR ADOPTED CHILD MAY BE CONSIDERED A DEPENDENT
FOR THE PURPOSE OF THE STATUTES ONLY WHEN IT IS ESTABLISHED THAT THE
STEPCHILD OR THE ADOPTED CHILD ACTUALLY IS DEPENDENT ON THE MEMBER OF
THE UNIFORMED SERVICES FOR ITS SUPPORT, MAINTENANCE, AND EDUCATION.
WHERE SUFFICIENT FUNDS ARE AVAILABLE FROM SOURCES OTHER THAN THE MEMBER,
EITHER DIRECTLY OR INDIRECTLY, FOR THE SUPPORT, MAINTENANCE, AND
EDUCATION OF A STEPCHILD OR AN ADOPTED CHILD, THE CHILD IS NOT IN FACT
DEPENDENT UPON THE MEMBER.'
UNDER THE SHOWING IN THIS CASE, NAMELY, THAT THE OFFICER CONTRIBUTED
ONLY $26 A MONTH OF THE CHILD'S LIVING EXPENSES OF $116 A MONTH, OR
SLIGHTLY MORE THAN 22 PERCENT OF SUCH EXPENSES, IT IS NOT CONSIDERED
THAT THE CHILD WAS IN FACT DEPENDENT UPON THE OFFICER WHEN THE TRAVEL
WAS PERFORMED. COMPARE THE ANSWER TO QUESTION NO. 5 IN DECISION OF
DECEMBER 23, 1955, B-124140, TO THE SECRETARY OF DEFENSE, COPY ENCLOSED.
ACCORDINGLY, PAYMENT ON THE VOUCHER WHICH IS RETAINED HERE, IS NOT
AUTHORIZED.
B-135387, MAR. 21, 1958
TO THE SECRETARY OF THE ARMY:
IN LETTER DATED FEBRUARY 26, 1958, THE ASSISTANT SECRETARY OF THE
ARMY (FM) REQUESTS A DECISION AS TO THE LIABILITY, IF ANY, OF THE UNITED
TELEPHONE COMPANY OF MISSOURI FOR RENTAL IN CONNECTION WITH ITS
OCCUPANCY OF BUILDINGS NOS. 358 AND 860 AT FORT LEONARD WOOD, MISSOURI,
FROM APRIL 1, 1953, TO DATE.
ACCORDING TO THE RECORDS FURNISHED, THE UNITED TELEPHONE COMPANY OF
MISSOURI OCCUPIED BUILDING NO. 358 AT FORT LEONARD WOOD FROM APRIL 1,
1953, THROUGH JULY 2, 1956, WITHOUT PAYMENT OF ANY COMPENSATION AND
APPARENTLY WITHOUT ANY CLAIM FOR COMPENSATION HAVING BEEN ASSERTED BY
THE GOVERNMENT. FOLLOWING A FIRE WHICH OCCURRED AT THE PREMISES DURING
JULY 1956, BUILDING NO. 860 WAS ASSIGNED FOR USE BY THE COMPANY, AND
DEMAND WAS MADE BY THE REAL ESTATE OFFICER, CORPS OF ENGINEERS, KANSAS
CITY, MISSOURI, FOR PAYMENT OF THE ESTIMATED REASONABLE RENTAL VALUE OF
$540 PER ANNUM, OR THE TOTAL SUM OF $1,758, FOR THE ENTIRE PERIOD OF
OCCUPANCY OF BUILDING NO. 358. DEMAND WAS ALSO MADE FOR THE EXECUTION
OF A LEASE FOR BUILDING NO. 860 AT A RENTAL OF $40 PER MONTH, AND A
CLAIM FOR $960 FOR TWO YEARS AT THAT RATE HAS BEEN ASSERTED.
THE UNITED TELEPHONE COMPANY OF MISSOURI HAS DISCLAIMED LIABILITY FOR
ANY PAYMENT FOR OCCUPANCY OF BUILDING NO. 358, CONTENDING, IN SUBSTANCE,
THAT IT OCCUPIED THE BUILDING AT THE REQUEST AND INSTRUCTIONS OF THE
OFFICIALS AT FORT LEONARD WOOD, AND CONTINUED TO PROVIDE TELEPHONE OR
EXCHANGE SERVICE FOR THE BENEFIT OF ARMY PERSONNEL AT THAT POST
THROUGHOUT THE PERIOD OF ITS OCCUPANCY WITHOUT ANY DEMAND UPON IT OR THE
PAYMENT OF RENTAL FOR THE SPACE NECESSARILY OCCUPIED FOR SUCH PURPOSE.
WITH RESPECT TO BUILDING NO. 860 THE COMPANY HAS REFUSED TO EXECUTE
THE PROFFERED LEASE, AND ALLEGES THAT ITS OCCUPANCY OF BUILDING NO. 860
WAS ACCOMPLISHED AT THE REQUEST OF RESPONSIBLE ARMY PERSONNEL AT FORT
LEONARD WOOD, AND THAT THE EXCHANGE SERVICE PROVIDED AT THAT POST WAS
SET UP PRIMARILY TO MEET THE SPECIFIC NEEDS AND WISHES OF ARMY PERSONNEL
IN THAT AREA; THAT WHILE IT IS GENERALLY AGREEABLE TO THE PAYMENT OF A
REASONABLE RENTAL ON THE PREMISES, THE RENTAL STIPULATED IN THE
PURPORTED LEASE WAS "BELATEDLY" MENTIONED TO IT, AND, IN FACT, WAS NOT
EVEN SUGGESTED PRIOR TO OCCUPANCY, AND WAS ARBITRARILY FIXED WITHOUT ITS
AGREEMENT OR CONCURRENCE. IT ALSO STATES THAT IT HAS BEEN UNABLE TO
FIND ANY OTHER COMPANY IN ITS FIELD WHICH IS CHARGED RENT FOR OCCUPANCY
OF SPACE ON ANY MILITARY POST UNDER SIMILAR CIRCUMSTANCES.
THE ONLY BASIS IN THE PRESENT RECORD FOR THE GOVERNMENT'S CLAIM IS
THE POSITION TAKEN BY THE DISTRICT REAL ESTATE OFFICER, THAT SINCE THE
COMPANY ENTERED INTO OCCUPANCY OF THE BUILDING, THERE ARISES A LEGAL
PRESUMPTION THAT IT WILL PAY A FAIR AND REASONABLE RENTAL THEREON.
USUALLY, THE USE AND OCCUPANCY OF A STRUCTURE KNOWN TO BE OWNED BY
ANOTHER, FOR THE PURPOSES OR BENEFIT OF THE OCCUPANT, RAISES AN IMPLIED
OBLIGATION TO PAY THE FAIR AND REASONABLE RENTAL VALUE THEREOF TO THE
OWNER. IT MUST BE BORNE IN MIND, HOWEVER, THAT THE RELATION OF LANDLORD
AND TENANT CAN BE CREATED ONLY BY CONTRACT, EXPRESS OR IMPLIED. IT
CANNOT EXISTS WITHOUT SUCH A CONTRACT, AND THE COURTS HAVE RULED THAT A
LANDLORD AND TENANT RELATIONSHIP NEVER WILL BE IMPLIED WHEN THE ACTS AND
CONDUCT OF THE PARTIES ARE INCONSISTENT WITH ITS EXISTENCE. SEE WIGGINS
FERRY COMPANY V. OHIO AND M. R. CO., 142 U.S. 396; BUTLER V. COWLES,
19 AM.DEC. 612; VAN PELT V. RUSSELL, 203 S.W. 267.
INSOFAR AS THE OCCUPANCY OF BUILDING NO. 358 IS CONCERNED, WE ARE
GIVEN NO INFORMATION, OTHER THAN THE TELEPHONE COMPANY'S STATEMENT, AS
TO THE CIRCUMSTANCES UNDER WHICH IT CAME ABOUT OR THE NATURE OF ITS USE.
NO BASIS APPEARS FOR FINDING THAT A LANDLORD AND TENANT RELATIONSHIP
EXISTED, OR EVEN WAS CONTEMPLATED BY THE PARTIES DURING THE THREE AND A
FRACTION YEARS THE PREMISES WERE OCCUPIED BY THE COMPANY WITHOUT THE
PAYMENT OF RENTAL OF ANY KIND. THE COMPANY'S STATEMENT INDICATES THAT
IT USED THE BUILDING TO PROVIDE EXCHANGE SERVICE AT THE SPECIFIC REQUEST
OR INSISTENCE OF RESPONSIBLE ARMY AUTHORITIES FOR THE BENEFIT OF THE
GOVERNMENT IN SERVING THE POST PERSONNEL. IN SUCH CASE, IT WOULD SEEM
THAT THE SERVICE WAS PERFORMED BY THE COMPANY, AND THE PREMISES
FURNISHED BY THE GOVERNMENT, FOR THE MUTUAL BENEFIT OF THE PARTIES, AND
SINCE THE MATTER OF MONEY PAYMENT APPARENTLY WAS NOT DISCUSSED DURING
THE PERIOD OF OCCUPANCY, IT IS ONLY REASONABLE TO ASSUME THAT NO PAYMENT
FOR THE USE OR OCCUPANCY OF THE BUILDING WAS CONTEMPLATED. ACCORDINGLY,
THERE EXISTS NO CONTRACTUAL OR OTHER LEGAL BASIS UPON WHICH RENTAL ON
THAT STRUCTURE MAY NOW BE DEMANDED OF THE OCCUPANT.
WITH RESPECT TO THE CURRENT OCCUPANCY OF BUILDING NO. 860, THE RECORD
LEAVES US UNCERTAIN AS TO WHETHER THE QUESTION OF PAYMENT WAS RAISED AT
THE TIME THE OCCUPANCY WAS AUTHORIZED OR WHETHER IT WAS A LATER
DEVELOPMENT RESULTING FROM THE ATTITUDE OF THE REAL ESTATE OFFICER.
SINCE ARMY SR 105-20-3 APPEARS TO FIX RESPONSIBILITY FOR ALL TELEPHONE
SERVICE FACILITIES AT AN ARMY INSTALLATION IN THE POST COMMANDER AND
POST SIGNAL OFFICER, SUBJECT TO THE AUTHORITY OF THE ARMY AREA
COMMANDER, IT WOULD APPEAR THAT THE TERMS OF ANY LEASE OR LICENSE TO THE
TELEPHONE COMPANY SHOULD BE NEGOTIATED BY OR AT LEAST WITH THE APPROVAL
OF THOSE AUTHORITIES. IN VIEW OF THE STATEMENT OF THE COMPANY THAT IT
CAN FIND NO OTHER COMPANY IN ITS FIELD WHICH IS REQUIRED TO PAY RENT
UNDER SIMILAR CIRCUMSTANCES, IT IS RECOMMENDED THAT THE PROPRIETY OR
POLICY OF SUCH ARRANGEMENTS BE REVIEWED AT THE APPROPRIATE DEPARTMENTAL
OR COMMAND LEVEL, AND THAT APPROPRIATE NEGOTIATIONS BE THEN INSTITUTED
WITH THE UNITED TELEPHONE COMPANY OF MISSOURI WITH A VIEW TO ARRIVING AT
A SATISFACTORY SETTLEMENT CONCERNING THE TERMS OF THE OCCUPANCY OF
BUILDING NO. 860. PENDING SUCH ACTION IT IS RECOMMENDED THAT FURTHER
COLLECTION ACTION BY YOUR DEPARTMENT BE SUSPENDED.
B-135506, MAR. 21, 1958
TO MR. JAMES F. KELLY, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE:
YOUR LETTER OF MARCH 14, 1958, ASKS WHETHER THE TWO REGIONAL
DIRECTORS INVITED TO ATTEND AND PARTICIPATE IN THE NATIONAL CONFERENCE
OF THE AMERICAN SOCIETY FOR PUBLIC ADMINISTRATION FOR THE PERIOD MARCH
23 THROUGH 26, 1958, MAY BE ADVANCED FUNDS TO COVER TRAVEL AND OTHER
EXPENSES IN CONNECTION WITH THE MEETING.
YOU SAY ONE OF THE REGIONAL DIRECTORS HAS BEEN ASKED TO PARTICIPATE
AS:
"1. CHAIRMAN AND MODERATOR OF THE SESSION ON MARCH 24, 1958;
2. PARTICIPANT IN THE PANEL CHAIRED BY MR. BERNARD GLADIEUX ON THE
SUBJECT OF "TACTICS AND STRATEGY IN PUBLIC ADMINISTRATION" ON MARCH 26;
3. MEMBER OF THE INTERNATIONAL COMMITTEE OF ASPA, MEETING ON MARCH
25 AND 26;
4. MEMBER OF THE NATIONAL ADVISORY COMMITTEE OF THE SOCIETY.'
THE OTHER REGIONAL DIRECTOR HAS GEEN ASKED TO PARTICIPATE AS:
"1. MEMBER OF THE COUNCIL OF THE ASPA;
2. PARTICIPANT IN THE FIRST MEETING OF THE ASPA COMMITTEE ON
RESEARCH NEEDS AND RESOURCES;
3. PARTICIPANT ON PANEL DISCUSSION OF "CLINIC ON COMMUNICATION IN
PUBLIC HEALTH INISTRATION," A JOINT SESSION OF THE ASPA AND PUBLIC
HEALTH ASSOCIATION OF NEW YORK CITY.'
YOU POINT OUT THAT SECTION 204 OF THE DEPARTMENT OF HEALTH,
EDUCATION, AND WELFARE APPROPRIATION ACT OF 1958, 71 STAT. 223, PROVIDES
THAT APPROPRIATIONS AVAILABLE FOR SALARIES AND EXPENSES "SHALL BE
AVAILABLE FOR TRAVEL EXPENSES AND FOR ATTENDANCE AT MEETINGS CONCERNED
WITH THE
FUNCTIONS OR ACTIVITIES FOR WHICH SUCH APPROPRIATIONS ARE MADE.' YO
DIRECT ATTENTION TO OUR DECISION 37 COMP. GEN. 335 WHEREIN WE HELD AS
FOLLOWS, QUOTING FROM THE SYLLABUS:
"MEETINGS OF A PRIVATE ORGANIZATION (BROOKINGS EXECUTIVE CONFERENCE
PROGRAM) ATTENDED BY SELECT DEPARTMENT OF COMMERCE PERSONNEL FOR
PURPOSES OF EXECUTIVE DEVELOPMENT AND IMPROVEMENT ARE NOT SO
PARTICULARLY ASSOCIATED WITH THE WORK OF THE DEPARTMENT IN THE
PERFORMANCE OF ITS STATUTORY FUNCTIONS TO BE REGARDED AS MEETINGS
"CONCERNED WITH THE ACTIVITIES FOR WHICH APPROPRIATIONS ARE MADE" WITHIN
THE MEANING OF SECTION 103 OF THE DEPARTMENT OF COMMERCE AND RELATED
AGENCIES APPROPRIATION ACT, 1958, FOR PAYMENT BY THE GOVERNMENT OF THE
TRAVEL AND PER DIEM OF THE PERSONNEL SELECTED TO ATTEND. THAT PART OF
36 COMP. GEN. 474, OR ANY OTHER DECISIONS INDICATING A CONTRARY
CONCLUSION, OVERRULED.'
YOU POINT OUT THAT WHILE OUR DECISION 37 COMP. GEN. 335 STATES THAT
IT OVERRULES THAT PART OF 36 COMP. GEN. 474, OR ANY OTHER DECISION
INDICATING A CONTRARY CONCLUSION, YOU FEEL THAT THERE WAS NOT OVERRULED
THAT PORTION OF 36 COMP. GEN. 474 WHICH STATES THAT A FIVE-DAY
MANAGEMENT CONFERENCE FOR GOVERNMENT ADMINISTRATORS CONDUCTED UNDER THE
SPONSORSHIP OF THE AMERICAN SOCIETY FOR PUBLIC ADMINISTRATION FOR THE
PURPOSE OF EXCHANGING EXPERIENCES AND INFORMATION IN THE FIELD OF
MANAGEMENT IS A "MEETING" RATHER THAN A "COURSE OF TRAINING OR
INSTRUCTION.' OUR DECISION 37 COMP. GEN. 335 HELD TO THE EFFECT THAT THE
MEETING OR CONFERENCE MUST DEAL WITH "ACTIVITIES PECULIARLY ASSOCIATED
WITH THE WORK OF AN AGENCY IN THE PERFORMANCE OF ITS STATUTORY FUNCTIONS
AND NOT TO GENERAL PROBLEMS, SUCH AS MANAGEMENT, WHICH ARE COMMON TO ALL
ORGANIZATIONS.' BY THAT LANGUAGE THERE WAS OVERRULED THAT PART OF 36
COMP. GEN. 474 CONCERNING THE USE OF APPROPRIATED MONEYS FOR PAYMENT OF
TRAVEL AND OTHER EXPENSES INCIDENT TO MEETINGS AND CONFERENCES DEALING
WITH GENERAL MANAGEMENT PROBLEMS.
IN VIEW OF THE LANGUAGE IN OUR DECISION 37 COMP. GEN. 335, AND THE
STATUTORY PROVISIONS INVOLVED, SINCE ONE OF THE REGIONAL DIRECTORS WILL
BE DEALING WITH MATTERS OF A GENERAL NATURE PECULIAR TO THE SOCIETY AND
PUBLIC ADMINISTRATION, NO BASIS EXISTS FOR AUTHORIZING AN ADVANCE OF
FUNDS TO HIM TO COVER TRAVEL AND OTHER EXPENSES IN CONNECTION WITH
ATTENDANCE AT THE MEETING AS SUCH PARTICIPATION CONCERNS NEITHER THE
FUNCTIONS OR ACTIVITIES OF THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE BUT SEEMINGLY DEALS ONLY WITH GENERAL MANAGEMENT MATTERS.
AS TO THE OTHER REGIONAL DIRECTOR, SINCE HIS PARTICIPATION, IN PART
AT LEAST, WILL CONCERN PUBLIC HEALTH MATTERS, A FUNCTION OR ACTIVITY OF
THE DEPARTMENT, THE ADVANCE OF FUNDS TO HIM TO COVER TRAVEL AND OTHER
EXPENSES IN CONNECTION WITH ATTENDANCE AT THE MEETING WOULD BE IN ACCORD
WITH THE STATUTORY LANGUAGE ABOVE AND OUR DECISION 37 COMP. GEN. 335.
B-135143, MAR. 20, 1958
TO MR. EARL W. TREADWAY:
YOUR LETTER OF JANUARY 21, 1958, REQUESTS RECONSIDERATION OF OUR
CERTIFICATE OF SETTLEMENT DATED NOVEMBER 20, 1957, WHICH DISALLOWED YOUR
CLAIM FOR REIMBURSEMENT OF TRAVELING EXPENSES OF YOURSELF, AND
TRANSPORTATION OF YOUR DEPENDENTS AND YOUR PERSONAL EFFECTS FROM LOS
ANGELES, CALIFORNIA, TO THE PANAMA CANAL ZONE.
THE RECORD SHOWS THAT YOU ACCEPTED AN APPOINTMENT WITH THE PANAMA
CANAL COMPANY FOR A PERIOD OF APPROXIMATELY SIX MONTHS. THE AGREEMENT
REGARDING TRANSPORTATION SIGNED BY YOU PROVIDES THAT "I WILL REMAIN IN
THE SERVICE OF THE PANAMA CANAL COMPANY OR CANAL ZONE GOVERNMENT ON THE
ISTHMUS OF PANAMA, FOR THE PERIOD (APPROXIMATELY SIX MONTHS) REQUIRED TO
PERFORM THE DUTIES FOR WHICH I AM TEMPORARILY EMPLOYED, * * *.'
PARAGRAPH (B) OF THE AGREEMENT IS AS FOLLOWS:
"/B) THAT IN CASE OF A VIOLATION OF THIS AGREEMENT, ANY MONEYS
EXPENDED BY THE UNITED STATES ON ACCOUNT OF TRAVEL OR TRANSPORTATION
RESULTING FROM MY EMPLOYMENT SHALL BE CONSIDERED A DEBT DUE BY ME TO THE
UNITED STATES, AND THE PANAMA CANAL COMPANY OR CANAL ZONE GOVERNMENT IS
AUTHORIZED TO WITHHOLD AND APPLY TO MY INDEBTEDNESS ANY MONEY THEN DUE
TO ME FOR SERVICES OR LEAVE.'
BY AIR MAIL LETTER OF DECEMBER 19, 1955, TO YOU, YOU WERE NOTIFIED IN
PARAGRAPH TWO AS FOLLOWS:
"SINCE YOUR APPOINTMENT IS FOR A TEMPORARY PERIOD, NOT TO EXCEED MAY
15, 1956, CURRENT LAWS AND REGULATIONS AUTHORIZE TRANSPORTATION FOR
YOURSELF ONLY, AT GOVERNMENT EXPENSE. SHOULD YOUR FAMILY ACCOMPANY YOU,
OR JOINT YOU AT A LATER DATE, THE COST OF THEIR TRANSPORTATION AND
SHIPMENT OF YOUR HOUSEHOLD GOODS TO THE ISTHMUS AND RETURN TO THE UNITED
STATES UPON COMPLETION OF YOUR TEMPORARY EMPLOYMENT, MUST BE AT YOUR
EXPENSE AND CANNOT BE REIMBURSED.'
YOU ARRIVED IN THE CANAL ZONE JANUARY 5, 1956, WITH YOUR DEPENDENTS
AND WERE REIMBURSED FOR YOUR TRAVELING EXPENSES IN THE AMOUNT OF
$220.66. THE COST OF THE TRANSPORTATION OF YOUR DEPENDENTS WAS PAID BY
YOU. THIRTY-ONE DAYS AFTER YOU REPORTED FOR DUTY IN THE CANAL ZONE YOU
RESIGNED FROM THE PANAMA CANAL COMPANY TO ACCEPT A PERMANENT POSITION
WITH THE HEADQUARTERS, UNITED STATES ARMY, CARIBBEAN, FORT AMADOR, CANAL
ZONE. HAVING RESIGNED FROM YOUR POSITION WITH THE PANAMA CANAL COMPANY
TO ACCEPT A POSITION WITH THE DEPARTMENT OF THE ARMY THE FOLLOWING DAY
IN THE CANAL ZONE, NO ORDERS FOR TRAVEL OR TRANSPORTATION WERE REQUIRED.
AT THE TIME OF YOUR EMPLOYMENT BY THE DEPARTMENT OF THE ARMY YOU DID
NOT EXECUTE AN AGREEMENT TO REMAIN IN THE SERVICE AT DUTY STATION FOR
ANY SPECIFIED PERIOD. YOU WERE REQUESTED TO AND DID REFUND ON FEBRUARY
7, 1956, $220.66, REPRESENTING YOUR TRAVELING EXPENSES IN REPORTING TO
THE PANAMA CANAL COMPANY.
WE DISALLOWED YOUR CLAIM FOR TRAVELING EXPENSES OF YOURSELF AND
TRANSPORTATION OF YOUR DEPENDENTS AND YOUR PERSONAL EFFECTS FROM LOS
ANGELES TO THE PANAMA CANAL ZONE ON THE BASIS OF A REPORT FROM THE
DEPARTMENT OF THE ARMY THAT YOU DID NOT HAVE AN EMPLOYMENT AND
TRANSPORTATION AGREEMENT WITH THE DEPARTMENT OF THE ARMY AND INASMUCH AS
YOU WERE HIRED LOCALLY AND WERE NOT RECRUITED FROM THE UNITED STATES.
IT IS STATED BY YOU THAT YOU SIGNED AN EMPLOYMENT AGREEMENT ON NOVEMBER
13, 1957.
IN SUPPORT OF YOUR CLAIM FOR REIMBURSEMENT OF TRAVELING EXPENSES FOR
YOURSELF AND DEPENDENTS YOU CITE 27 COMP. GEN. 394 AND 29 COMP. GEN.
526. THE PRINCIPLE LAID DOWN IN THOSE CASES WOULD NOT BE APPLICABLE TO
THE SITUATION PRESENTED HERE. THE FACTS IN THOSE TWO CASES DIFFER FROM
THE FACTS IN YOUR CASE IN THAT AT THE TIME THE EMPLOYEES ACCEPTED THE
APPOINTMENTS THEY WERE OVERSEAS AND THEIR FAMILIES WERE IN THE UNITED
STATES AND THE ADMINISTRATIVE AGENCIES WERE WILLING TO ISSUE TRAVEL
ORDERS AUTHORIZING TRAVEL OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE TO
THE EMPLOYEE'S OVERSEAS POST OF DUTY.
THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS CPR T3.5,
SECTION 5, PARAGRAPH 5-3D, DATED AUGUST 31, 1955, IN EFFECT AT THE TIME
THE TRAVEL IN QUESTION WAS PERFORMED, WITH RESPECT TO DEPENDENTS,
PROVIDES AS FOLLOWS:
"TRAVEL OF DEPENDENTS OF EMPLOYEES HIRED LOCALLY FOLLOWING
UNINTERRUPTED FEDERAL SERVICE.
"D. WHERE AN EMPLOYEE OF ANOTHER FEDERAL DEPARTMENT OR AGENCY IS
APPOINTED TO A POSITION IN THE ARMY ESTABLISHMENT WITHOUT A BREAK IN
SERVICE, MOVEMENT OF DEPENDENTS FROM ONE FOREIGN ADDRESS TO HIS NEW DUTY
STATION WILL BE AT GOVERNMENT EXPENSE IF THE MOVE IS PRIMARILY FOR THE
BENEFIT OF THE GOVERNMENT. IF THE EMPLOYEE'S DEPENDENTS HAD NOT JOINED
THE EMPLOYEE IN THE OVERSEAS AREA, MOVEMENT FROM THE UNITED STATES MAY
BE AUTHORIZED * * *.' UNDER THE ABOVE CITED REGULATION WHERE AN EMPLOYEE
OF ANOTHER DEPARTMENT OR AGENCY OVERSEAS HAS BEEN APPOINTED WITHOUT A
BREAK IN SERVICE TO A POSITION WITH THE DEPARTMENT OF THE ARMY OVERSEAS
HE IS ENTITLED TO HAVE HIS DEPENDENTS TRANSPORTED FROM HIS OLD POST OF
DUTY TO HIS NEW POST OF DUTY AT GOVERNMENT EXPENSE. THE REGULATION ALSO
MAKES PROVISION FOR THE TRANSPORTATION AT GOVERNMENT EXPENSE OF
DEPENDENTS OF EMPLOYEES WHEN THEY HAVE NOT JOINED HIM AT HIS OVERSEAS
STATION PRIOR TO THE NEW APPOINTMENT. HOWEVER, THERE IS NO PROVISION
MADE FOR THE DEPARTMENT OF THE ARMY TO REIMBURSE AN EMPLOYEE FOR THE
COST OF TRANSPORTING HIS DEPENDENTS FROM THE UNITED STATES WHERE THE
DEPENDENTS ARE AT THE DUTY STATION WHEN HE ACCEPTS AN APPOINTMENT WITH
THAT DEPARTMENT. ACCORDINGLY, THERE IS NO AUTHORITY UNDER THE FOREGOING
CIRCUMSTANCES TO REIMBURSE YOU FOR THE COST OF THE TRAVELING EXPENSES OF
YOUR DEPENDENTS IN TRAVELING, WITH YOU, TO YOUR OVERSEAS DUTY STATION.
A SETTLEMENT WILL ISSUE IN DUE COURSE, HOWEVER, IN AN AMOUNT
REPRESENTING THE COST OF YOUR TRAVELING EXPENSES, INCLUDING COST OF
SHIPPING YOUR PERSONAL EFFECTS, IN REPORTING TO YOUR OVERSEAS POST OF
DUTY.
B-130614, MAR. 19, 1958
TO MR. HOMER A KEENE:
YOUR UNDATED LETTER POSTMARKED JANUARY 13, 1958, FORWARDED TO OUR
OFFICE BY THE U.S. NAVY REGIONAL ACCOUNTS OFFICE, IN EFFECT REQUESTS
RECONSIDERATION OF THAT PART OF OUR DECISION OF MAY 29, 1957, B-130614,
TO YOU, WHICH SUSTAINED THE DISALLOWANCE OF COMPENSATION FOR THE PERIOD
DECEMBER 31, 1955, TO JANUARY 5, 1956.
THE FACTS IN YOUR CASE AND THE REASON FOR THE DISALLOWANCE OF YOUR
CLAIM ARE FULLY SET FORTH IN OUR DECISION TO YOU OF MAY 29, AND NEED NOT
BE REPEATED HERE.
IT IS YOUR CONTENTION THAT YOU WERE DISCHARGED ON DECEMBER 30, 1955,
IN VIOLATION OF AN EMPLOYMENT CONTRACT WITH THE DEPARTMENT OF THE NAVY
AND, AS A CONSEQUENCE, WERE IN A NON-PAY STATUS FROM DECEMBER 30, 1955,
UNTIL JANUARY 4, 1956, BEFORE TRANSPORTATION HOME BECAME AVAILABLE. YOU
CLAIM PAY NOT ONLY FOR THAT PERIOD BUT ALSO UNTIL YOUR ARRIVAL AT THE
POINT OF YOUR HIRE WHICH WAS ON JANUARY 5, 1956.
YOU WERE FURNISHED GOVERNMENT TRANSPORTATION TO THE UNITED STATES ON
JANUARY 4, 1956, WHICH WAS THE FIRST AVAILABLE TRANSPORTATION AFTER YOU
WERE SEPARATED FROM THE SERVICE. ALSO, YOU WERE ALLOWED PER DIEM IN
LIEU OF SUBSISTENCE DURING THE PERIOD OF ACTUAL TRAVEL WHICH, WHILE OF
DOUBTFUL LEGALITY, WILL NOT BE QUESTIONED NOW.
WE DO NOT HAVE A COPY OF THE EMPLOYMENT AGREEMENT SIGNED BY YOU ON
FILE, BUT THERE IS A LETTER DATED APRIL 24, 1956, FROM THE COMMANDING
OFFICER, U.S. NAVAL STATION, KODIAK, ALASKA, STATING THAT NEITHER YOUR
CONTRACT OF EMPLOYMENT NOR TRAVEL ORDERS SPECIFY THAT AN EMPLOYEE MUST
BE KEPT ON THE PAYROLL UNTIL RETURNED TO THE CONTINENTAL UNITED STATES.
IT HAS BEEN REPORTED HERE ADMINISTRATIVELY THAT YOUR EMPLOYMENT WITH
THE DEPARTMENT OF THE NAVY TERMINATED AS OF DECEMBER 30, 1955, AT
KODIAK, ALASKA, AS A RESULT OF A NECESSARY REDUCTION IN FORCE, AND DOES
NOT APPEAR THAT YOU PERFORMED ANY SERVICES FOR THE DEPARTMENT OF THE
NAVY AFTER THAT DATE. HENCE, IT IS CLEAR THAT THE PAYMENT OF SALARY FOR
SERVICES RENDERED THE SAID DEPARTMENT MUST, AND DID, CEASE AS OF
DECEMBER 30, 1955, IT BEING A WELL-SETTLED RULE THAT PAYMENT OF
COMPENSATION TO A FORMER CIVILIAN EMPLOYEE OF THE GOVERNMENT FOR A
PERIOD SUBSEQUENT TO HIS SEPARATION FROM THE SERVICE OF THE GOVERNMENT
IS UNAUTHORIZED.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS
SUSTAINED.
B-132124, MAR. 19, 1958
TO THE SECRETARY OF THE ARMY:
THERE IS ENCLOSED HEREWITH A COPY OF OUR LETTER OF TODAY TO GARDNER,
MORRISON AND ROGERS, ATTORNEYS FOR MCGREGOR AND WERNER, INCORPORATED,
WITH RESPECT TO ITS PROTEST THAT PERFORMANCE UNDER CONTRACT NO.
DA-49-083-OSA-1108, DATED JANUARY 31, 1957, WAS NOT IN STRICT COMPLIANCE
WITH THE ADVERTISED SPECIFICATIONS. THIS MATTER WAS THE SUBJECT OF
REPORTS DATED JULY 5 AND SEPTEMBER 11, 1957, FROM YOUR ADMINISTRATIVE
ASSISTANT SECRETARY, HIS REFERENCE SAOAA, AND REPORT DATED JULY 26,
1957, FROM THE DIRECTOR, DEFENSE SUPPLY SERVICE, HIS REFERENCE
BC/ND/52007.
ALSO, THERE IS RETURNED HEREWITH THE FIFTH AND FINAL PAYMENT VOUCHER
UNDER THE CONTRACT IN THE AMOUNT OF $10,650.41, AS ADJUSTED TO REFLECT
CREDIT FOR DELIVERY OF NON-SPECIFICATION SUPPLIES, WHICH MAY BE
PROCESSED FOR PAYMENT IN THE ADJUSTED AMOUNT IF OTHERWISE CORRECT.
IN THE COURSE OF OUR INVESTIGATION OF THIS PROCUREMENT, A QUESTION
AROSE AS TO THE ELIGIBILITY OF THE MCGREGOR CARBON FORMS COMPANY TO
RECEIVE AWARD AS A "REGULAR DEALER" OR "MANUFACTURER" WITHIN THE MEANING
OF THE WALSH-HEALEY ACT, 41 U.S. CODE 35-45, AND THE ADMINISTRATIVE
REGULATIONS PROMULGATED THEREUNDER. AS A RESULT OF INFORMAL DISCUSSIONS
WITH REPRESENTATIVES OF THE DEPARTMENT OF LABOR, IT IS SUGGESTED THAT
THE MATTER OF THIS FIRM'S ELIGIBILITY FOR FUTURE AWARD OF PRINTING
CONTRACTS BE CONSIDERED FOR POSSIBLE REFERRAL TO THE SECRETARY OF LABOR
WHO HAS FINAL JURISDICTION IN ADMINISTRATION OF THE WALSH-HEALEY ACT.
B-134011, MAR. 19, 1958
TO MR. JOHN K. LANGAN:
REFERENCE IS MADE TO A LETTER DATED JANUARY 17, 1958, FROM YOUR
ATTORNEY RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE
AMOUNT OF $338.83 ARISING FROM THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM
NAPLES, ITALY, TO PARAMOUNT, CALIFORNIA, INCIDENT TO YOUR RELEASE FROM
ACTIVE DUTY AS LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE.
ON THE BASIS OF ORDERS DETACHING YOU FROM DUTY AT NAPLES, ITALY, AND
RETURNING YOU TO THE UNITED STATES FOR SEPARATION PROCESSING AND UPON
COMPLETION TO PROCEED TO YOUR HOME OF RECORD, ODELL, ILLINOIS, FOR
RELEASE FROM ACTIVE DUTY, YOU APPLIED FOR SHIPMENT OF YOUR HOUSEHOLD
EFFECTS FROM NAPLES, ITALY, TO NAVAL SUPPLY DEPOT, SAN PEDRO,
CALIFORNIA, WHERE THEY WERE TO BE HELD FOR FURTHER DISPOSITION. IN
EXECUTING THE APPLICATION YOU AGREED TO PAY ALL EXCESS COST INVOLVED.
THE METHOD OF SHIPMENT DESIGNATED BY YOU WAS "WATER-RAIL.' THE SHIPPING
OFFICER FURTHER DESIGNATED "WATER FREIGHT.' YOUR EFFECTS WERE SHIPPED
FROM NAPLES, ITALY, TO BAYONNE, NEW JERSEY, BY WATER AND FROM THE LATTER
POINT TO PARAMOUNT, CALIFORNIA, BY RAIL. SINCE THE COST OF RAIL
SHIPMENT BETWEEN THOSE POINTS WAS GREATER THAN TO YOUR HOME, YOU WERE
CHARGED WITH THE EXCESS COST OF $338.83. YOUR LIABILITY FOR SUCH EXCESS
COST WAS EXPLAINED TO YOU IN OUR DECISION B-134011, DATED DECEMBER 27,
1957. IN HIS PRESENT LETTER YOUR ATTORNEY AGAIN RAISES THE POINT THAT
YOUR EFFECTS SHOULD HAVE BEEN SHIPPED TO CALIFORNIA BY WATER, AND THAT
THE GOVERNMENT EITHER MADE A MISTAKE IN ROUTING YOUR EFFECTS VIA BAYONNE
OR IT WAS A MATTER OF CONVENIENCE TO THE GOVERNMENT TO DO SO. HE
MENTIONS IN PARTICULAR THAT AT NO PLACE IN YOUR APPLICATION WAS THERE
ANY DESIGNATION THAT THE SHIPMENT SHOULD TOUCH AN ATLANTIC PORT.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
37 U.S.C. 253, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES SHALL BE
ENTITLED IN CONNECTION WITH A CHANGE OF STATION TO
TRANSPORTATION OF HOUSEHOLD EFFECTS TO AND FROM SUCH LOCATIONS AS MA
BE PRESCRIBED BY THE SECRETARIES CONCERNED "WITHOUT REGARD TO THE
COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION.' IN CONFORMITY
WITH THAT AUTHORITY OF LAW, JOINT TRAVEL REGULATIONS PROVIDE THAT
SHIPMENTS OF HOUSEHOLD EFFECTS MAY BE MADE BY THE VARIOUS MODES OF
TRANSPORTATION WITHOUT REGARD TO COMPARATIVE COST; THAT THE SHIPPING
OFFICER WILL SELECT THE MEANS OF TRANSPORTATION WHICH WILL SERVE THE
BEST INTEREST OF THE GOVERNMENT AND THE OWNER OF THE PROPERTY, AND THAT
WATER SHIPMENT OF HOUSEHOLD EFFECTS NORMALLY WILL BE MADE BY GOVERNMENT
VESSEL. NAVY SHIPPING GUIDE PROVIDES THAT FOR OCEAN SHIPMENTS OF
HOUSEHOLD GOODS, SHIPMENT AUTHORITIES WILL SELECT THE TRANSSHIPPING
ACTIVITY WHICH BEST SERVES THE NEEDS OF THE GOVERNMENT AND THE OWNER OF
THE PROPERTY. IT FURTHER PROVIDES THAT FOR THE ATLANTIC-MEDITERRANEAN
AREAS, THE TRANSSHIPMENT ACTIVITIES ARE NAVAL SUPPLY DEPOT, BAYONNE, NEW
JERSEY, AND NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA. IT IS OUR
UNDERSTANDING THAT IN A CASE WHERE A MEMBER IS RETURNING TO THE UNITED
STATES FROM EUROPE, EVEN THOUGH HE MAY BE ASSIGNED TO A POINT ON THE
WEST COAST, THE NORMAL ROUTE FOR SHIPMENT OF HOUSEHOLD EFFECTS IS BY
WATER TO AN EAST COAST PORT AND FROM THERE TO DESTINATION IN THE UNITED
STATES BY RAIL. SUCH ROUTING WAS FOLLOWED IN YOUR CASE AND NO ERROR IN
ROUTING IS APPARENT. THE FACT THAT YOU MAY HAVE BEEN ADVISED THAT SOME
OTHER ROUTING WAS TO BE USED DOES NOT CHANGE YOUR RIGHTS OR THE LEGAL
OBLIGATION OF THE GOVERNMENT.
PARAGRAPH 8009-5A, JOINT TRAVEL REGULATIONS, PROVIDES THAT A MEMBER
RELEASED FROM ACTIVE DUTY IS ENTITLED TO SHIPMENT OF HOUSEHOLD EFFECTS
AT GOVERNMENT EXPENSE FROM HIS LAST OR ANY PREVIOUS DUTY STATION, OR
FROM A DESIGNATED PLACE IN THE UNITED STATES, TO THE PLACE TO WHICH HE
ELECTS TO RECEIVE TRAVEL ALLOWANCES, THAT IS TO SAY, TO HIS HOME OF
RECORD OR TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY.
CONTRARY TO YOUR APPARENT BELIEF IN THE MATTER, NEITHER THE CONTROLLING
STATUTE NOR THE REGULATIONS ISSUED PURSUANT TO THAT STATUTE REQUIRE THE
GOVERNMENT TO SHIP HOUSEHOLD EFFECTS FOR THE SOLE CONVENIENCE OF THE
OWNER MEMBER BETWEEN POINTS OTHER THAN THE AUTHORIZED POINTS AS
DETERMINED FROM THE PARTICULAR CHANGE OF STATION ORDERS. AS TO
SHIPMENTS BETWEEN OTHER POINTS, THE REGULATIONS PROVIDE ONLY, UNDER THE
GENERAL HEADING "EXCESS COSTS," PARAGRAPH 8100-1, JOINT TRAVEL
REGULATIONS, THAT COSTS IN EXCESS OF THOSE AUTHORIZED WHICH ARE INCURRED
BY REASON OF SHIPMENT BY SPECIFIC ROUTING, OR FROM OR TO OTHER THAN
AUTHORIZED POINTS, SHALL BE PAID BY THE MEMBER CONCERNED.
UPON YOUR RELEASE FROM ACTIVE DUTY YOU BECAME ENTITLED TO SHIPMENT OF
HOUSEHOLD EFFECTS FROM YOUR OVERSEAS STATION, NAPLES, ITALY, TO ODELL,
ILLINOIS, YOUR HOME OF RECORD, BUT YOU CHOSE TO HAVE THEM SHIPPED
INSTEAD AND FOR YOUR CONVENIENCE TO THE WEST COAST. UNDER THE NORMAL
ROUTING FOR SUCH SHIPMENT WATER FREIGHT WAS REQUIRED FROM NAPLES TO THE
ATLANTIC COAST OF THE CONTINENTAL UNITED STATES, WITH RAIL SHIPMENT TO
DESTINATION AND YOU ARE LIABLE FOR THE COSTS RESULTING FROM SUCH
SHIPMENT IN EXCESS OF THE COST OF SHIPMENT TO YOUR HOME OF RECORD. ANY
ADVICE TO THE CONTRARY YOU MAY HAVE BEEN FURNISHED WOULD NOT INCREASE
YOUR RIGHTS UNDER THE REGULATIONS.
AS INDICATED IN THE DECISION OF DECEMBER 27, 1957, YOUR FAILURE TO
REMIT THE AMOUNT OF THE INDEBTEDNESS OR TO MAKE IMMEDIATE ARRANGEMENT
FOR ITS LIQUIDATION IN INSTALLMENTS WILL NECESSITATE
REFERENCE OF THE MATTER TO THE DEPARTMENT OF JUSTICE.
B-134523, MAR. 19, 1958
TO MR. EDWARD J. RYAN:
YOUR LETTER POSTMARKED OCTOBER 22, 1957, WRITTEN IN BEHALF OF MR.
ROLAND G. GAUTHIER, CONCERNS THE CLAIM OF THE UNITED STATES AGAINST MR.
GAUTHIER IN THE PRINCIPAL AMOUNT OF $1,025.52, PLUS INTEREST, ARISING BY
REASON OF HIS DEFAULT ON GUARANTY LOAN NO. LHC-160101-MASS. THE FACTS
OF THIS CLAIM WERE SET FORTH IN OFFICE LETTER TO YOU DATED SEPTEMBER 18,
1957.
YOU STATE IN YOUR RECENT LETTER THAT THERE IS NO CASE AGAINST MR.
GAUTHIER FOR THE FOLLOWING REASONS:
"1. NO NOTICE OF A CLAIM FOR DEFICIENCY WAS EVER SERVED, UNDER
CHAPTER 244, OF THE LAWS OF MASSACHUSETTS, SECTION 17B.
"2. THE STATUTE OF LIMITATIONS OF TWO YEARS, UNDER CHAPTER 244,
SECTION 17A, OF THE LAWS OF MASSACHUSETTS; HAS RUN AGAINST THE CLAIM.
"3. YOUR TRUSTED AGENT, THE BANK RESOLD THE PROPERTY, AND MADE UP
THIS DEFICIENCY, AND SHOULD NOT BE UNJUSTLY ENRICHED, BY THE RESALE, AND
NOW ATTEMPTING TO HOLD THE VETERAN ON A DEFICIENCY. IF YOU HAVE A
SHORTAGE OF $1,025.00, YOU SHOULD OBTAIN IT FROM YOUR TRUSTEE, THE BANK.
THEY HAVE NO RIGHT TO HOLD THIS SECRET PROFIT, AT THE EXPENSE OF THE
VETERAN.'
UPON RECEIPT OF YOUR LETTER A COPY WAS FORWARDED TO THE VETERANS
ADMINISTRATION REGIONAL OFFICE, BOSTON, MASSACHUSETTS, FOR A REPORT ON
THE ALLEGATIONS MADE BY YOU. THE VETERANS ADMINISTRATION HAS RECENTLY
REPORTED THAT THE LAW GOVERNING DEFICIENCY JUDGMENTS IN MASSACHUSETTS
WAS WELL KNOWN AND THE FAILURE TO ASK FOR THE LENDER TO PRESERVE THE
PERSONAL LIABILITY OF THE VETERAN WAS BASED ON AN ADMINISTRATIVE
DETERMINATION. IT WAS DECIDED TO ABANDON THE GOVERNMENT'S RIGHT OF
SUBROGATION UNDER THE FORECLOSURE PROCEEDINGS AND THE SUBSEQUENT
PURCHASE OF THE PROPERTY AND MORTGAGE NOTE BY THE VETERANS
ADMINISTRATION AND TO RELY INSTEAD ON THE GOVERNMENT'S RIGHT OF
INDEMNITY. AS YOU WERE ADVISED IN OFFICE LETTER OF SEPTEMBER 18, 1957,
THE CLAIM AGAINST
MR. GAUTHIER IS BASED UPON THE VETERANS ADMINISTRATOR'S COMMON LAW
RIGHT OF INDEMNITY AS SET FORTH IN SECTION 36.4323 (E) OF TITLE 38, CODE
OF FEDERAL REGULATIONS ISSUED PURSUANT TO SECTION 504 OF THE
SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, 38 U.S.C. 694D. THIS
REGULATION PROVIDES AS FOLLOWS:
"ANY AMOUNTS PAID BY THE ADMINISTRATOR ON ACCOUNT OF THE LIABILITIES
OF ANY VETERAN GUARANTEED OR INSURED UNDER THE PROVISIONS OF THE ACT
SHALL CONSTITUTE A DEBT OWING TO THE UNITED STATES BY SUCH VETERAN.'
REGULATIONS PROMULGATED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, IF
WITHIN HIS AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW. COWANDA
COOPERATIVE SAVINGS AND LOAN ASSN. V. CRAY, 183 F.2D 367. ALSO, IN LOAN
GUARANTEED BY THE GOVERNMENT UNDER THE SERVICEMEN'S READJUSTMENT ACT OF
1944, IS CONTROLLED ENTIRELY BY THAT ACT AND STATE LAWS AND STATE
DECISIONS ARE INAPPLICABLE. THE COURT IN HOLDING FOR THE GOVERNMENT IN
THAT CASE RELIED CHIEFLY UPON THE REGULATION OF THE VETERANS
ADMINISTRATION QUOTED ABOVE.
SINCE THE GOVERNMENT DECIDED TO PROCEED AGAINST MR. GAUTHIER UNDER
THE RIGHT OF INDEMNITY, THE PROVISIONS OF CHAPTER 244 OF THE LAWS OF
MASSACHUSETTS, PARTICULARLY SECTION 17B, CONCERNING NOTICE, AND SECTION
17A, CONCERNING THE PERIOD OF LIMITATION WHEN SUIT CAN BE BROUGHT, WHICH
WERE SET FORTH AS A BASIS FOR DEFENSE UNDER ALLEGATIONS 1 AND 2 OF YOUR
LETTER, WOULD HAVE NO APPLICATION UNDER THE COURT RULINGS CITED ABOVE.
FURTHER, ON THE QUESTION OF THE STATUTE OF LIMITATIONS, THE RULE IS THAT
THE UNITED STATES IS IMMUNE, AS A SOVEREIGN, FROM THE DEFENSE OF THE
STATUTE OF LIMITATIONS UNLESS THAT IMMUNITY IS EXPRESSLY WAIVED. UNITED
STATES V. SUMMERLIN, 310 U.S. 414, 84 L.ED. 1283.
AS TO THE THIRD ALLEGATION IN YOUR LETTER IN WHICH YOU STATE THAT THE
BANK RESOLD AND MADE UP THE DEFICIENCY CHARGED TO THE DEBTOR,
INFORMATION RECEIVED FROM THE VETERANS ADMINISTRATION SHOWS THAT THE
TOTAL INDEBTEDNESS AT THE TIME OF THE FORECLOSURE SALE INCLUDING ACCRUED
INTEREST AND FORECLOSURE COSTS WAS $10,525.52; AND THAT THE LENDER BANK
BOUGHT THE PROPERTY AT THE FORECLOSURE SALE FOR $9,500 AND THEREAFTER
ELECTED TO CONVEY TITLE TO THE ADMINISTRATOR OF VETERANS' AFFAIRS FOR
THAT SAME AMOUNT. THE AMOUNT OF $9,500 WAS CREDITED TO THE VETERANS'
ACCOUNT AND THE DEFICIT OF $1,025.52 WAS PAID TO THE BANK BY THE
VETERANS ADMINISTRATION PURSUANT TO THE GUARANTY AGREEMENT WHICH AMOUNT
THE GOVERNMENT NOW MAKES CLAIM FOR AGAINST MR. GAUTHIER UNDER THE
PROVISIONS IN THE VETERANS ADMINISTRATION REGULATION QUOTED ABOVE.
HENCE, UNDER THESE CIRCUMSTANCES, THERE IS NO BASIS FOR THE ASSERTION
THAT THE LENDING BANK HAS MADE ANY PROFIT AT THE EXPENSE OF THE VETERAN.
IN VIEW OF THE FOREGOING, IT IS SUGGESTED THAT PAYMENT OF THE AMOUNT
OF THE INDEBTEDNESS BE MADE AS PROMPTLY AS POSSIBLE IN ORDER TO AVOID
FURTHER INTEREST CHARGES AND COURT COSTS IN THE EVENT SUIT IS
INSTITUTED.
B-134761, MAR. 19, 1958
TO MR. JOHN F. RHOADS:
YOUR LETTER OF OCTOBER 15, 1957, REQUESTS RECONSIDERATION OF OUR
SETTLEMENT OF AUGUST 7, 1952, WHICH DISALLOWED YOUR CLAIM (RECEIVED HERE
FEBRUARY 13, 1950) FOR OVERTIME COMPENSATION FOR SERVICES RENDERED AS A
PATROL INSPECTOR, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF
JUSTICE.
YOU SAY IN YOUR LETTER THAT:
"DURING THIS PERIOD OF TIME I PERFORMED MY ACCUSTOMED DUTIES AS A
PATROL INSPECTOR IN EXCESS OF EIGHT HOURS A DAY AND IN EXCESS OF 40
HOURS A WEEK. ALL HOURS OF DUTY PERFORMED BY ME WERE REPORTED ON DAILY
REPORT FORM I-50 WHICH WERE EXAMINED AND APPROVED BY MY SUPERVISORY
OFFICER. STANDARD FORMS 1130, TIME AND ATTENDANCE REPORTS WERE PREPARED
BY MY SUPERVISORY OFFICER, WHO WAS MY TIMEKEEPER, AND WERE SUBMITTED TO
THE PROPER FINANCE OFFICER IN ACCORDANCE WITH OUTSTANDING INSTRUCTIONS.
"ALL OF THE OVERTIME FOR WHICH I CLAIM PAYMENT WAS REPORTED ON BOTH
FORMS UNDER A COLUMN LABELED "VOLUNTARY OVERTIME OF VT.' THIS WAS DONE
BECAUSE OF INSTRUCTIONS WHICH REQUIRED THAT IT BE REPORTED IN THAT
MANNER. THE OVERTIME DUTIES PERFORMED BY ME WERE NOT VOLUNTARILY
PERFORMED IN ANY SENSE OF THE WORD BUT WERE REQUIRED BY MY SUPERVISORY
OFFICERS AND WAS APPROVED BY ALL CONCERNED.'
YOU SAY YOU CLAIM PAYMENT FOR THE OVERTIME ON THE BASIS OF THE
DECISIONS RENDERED IN FARLEY V. UNITED STATES, 131 C.CLS. 776,
SCHAIBLE, SANDERSON, AND HANDLEY ET AL. V. UNITED STATES, 135 C.CLS.
890, AND ANDERSON ET AL. V. UNITED STATES, C.CLS. NO. 50303, DECIDED
JULY 12, 1956.
ALTHOUGH YOU MAKE CLAIM FOR PERIOD PRIOR TO JULY 1, 1945, YOUR
REQUEST CONTAINS THIS HEADING:
"RE: CLAIM FOR ADDITIONAL PAY UNDER THE PROVISIONS OF THE FEDERAL
EMPLOYEES PAY ACT OF 1945.'
SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (WHICH BECAME
EFFECTIVE JULY 1, 1945), 59 STAT. 296, AS AMENDED, 68 STAT. 1109,
REQUIRES PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES FOR ALL
HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF FORTY HOURS
IN ANY ADMINISTRATIVE WORK WEEK AT THE RATES SET FORTH THEREIN.
CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO SECTION 201 PROVIDE
GENERALLY FOR PAYMENT FOR OVERTIME OFFICIALLY ORDERED OR APPROVED IN
EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK. THE REGULATIONS
ALSO PROVIDE THAT NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN
THE REGULARLY SCHEDULED ADMINISTRATIVE WORK WEEK SHALL BE ORDERED OR
APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH
AUTHORITY HAS BEEN DELEGATED. ALSO, REGULATIONS ISSUED INCIDENT TO THE
PAY ACTS IN EFFECT BETWEEN DECEMBER 1, 1942, AND JUNE 30, 1945, PROVIDED
SUBSTANTIALLY THE SAME AS THE REGULATIONS ISSUED PURSUANT TO THE 1945
PAY ACT. (PRIOR TO DECEMBER 1, 1942, YOU DID NOT FALL UNDER THE
PROVISIONS OF ANY LAW AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION.)
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 MUST 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. THE SERVICE ALSO ADVISES THAT ITS RECORDS INDICATE
THERE WERE NO HOURS OF WORK IN EXCESS OF FORTY HOURS IN ANY
ADMINISTRATIVE WORK WEEK WHICH WERE OFFICIALLY ORDERED OR APPROVED BY
COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID.
THE COURT CASES CITED BY YOU ARE NOT APPLICABLE TO YOUR CLAIM. IN
FARLEY V. UNITED STATES, IT APPEARS THE CLAIMANT WAS REQUIRED TO REMAIN
ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF HER
EMPLOYMENT. THE IMMIGRATION AND NATURALIZATION SERVICE ADVISES THAT
THERE IS NO RECORD OF ANY ORDER DIRECTING YOU TO REMAIN ON DUTY OR TO
PERFORM EXTRA DUTY AS A CONDITION OF YOUR EMPLOYMENT.
IN HANDLEY ET AL. V. UNITED STATES, THE COURT HELD THAT ACCEPTANCE BY
A GOVERNMENT EMPLOYEE OF LESS THAN THE LAWFUL COMPENSATION UNDER A
MISTAKE OF LAW DOES NOT BAR THE CLAIM FOR THE DIFFERENCE AT A LATER
DATE. AS INDICATED ABOVE, IT APPEARS YOU WERE PAID ALL THE COMPENSATION
LAWFULLY DUE YOU FOR OVERTIME.
MOREOVER, 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 TO BE THE CASE IN ANDERSON ET
AL. V. UNITED STATES.
IN VIEW OF THE ADMINISTRATIVE REPORT SHOWING THAT NO OVERTIME SERVICE
IN YOUR CASE HAD BEEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY,
EXCEPT SUCH AS ALREADY HAS BEEN ADMINISTRATIVELY PAID FOR, AND IN LIGHT
OF THE APPLICABLE STATUTES AND REGULATIONS, THE DISALLOWANCE OF YOUR
CLAIM WAS PROPER. HENCE, THE SETTLEMENT IS SUSTAINED.
B-134767, MAR. 19, 1958
TO MR. GEORGE L. OLSON:
YOUR LETTER OF NOVEMBER 18, 1957, CLAIMS ADDITIONAL COMPENSATION
UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR
OVERTIME SERVICES SAID TO HAVE BEEN RENDERED AS A PATROL INSPECTOR,
IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE, DURING
THE 10-YEAR PERIOD IMMEDIATELY PRECEDING THE FILING OF A PREVIOUS CLAIM
BY YOU. THE PRIOR CLAIM, RECEIVED HERE OCTOBER 27, 1949, WAS FOR EXTRA
COMPENSATION UNDER THE ACT OF MARCH 2, 1931, 46 STAT. 1467, WHICH CLAIM
WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 11, 1952. IT IS EXTREMELY
DOUBTFUL, THEREFORE, WHETHER YOUR PRIOR CLAIM COULD BE REGARDED AS
HAVING TOLLED THE 10-YEAR LIMITATION PERIOD PRESCRIBED BY THE ACT OF
OCTOBER 9, 1940, 54 STAT. 1061, FOR CLAIMS COGNIZABLE BY OUR OFFICE.
HOWEVER, FOR REASONS HEREINAFTER STATED, YOUR PRESENT CLAIM IS FOR
DISALLOWANCE IN ANY EVENT, ASIDE FROM ANY QUESTION OF THE EXACT PERIOD
COVERED.
YOU SAY IN YOUR LETTER THAT:
"DURING THIS PERIOD OF TIME I PERFORMED MY ACCUSTOMED DUTIES AS A
PATROL INSPECTOR IN EXCESS OF EIGHT HOURS A DAY AND IN EXCESS OF 40
HOURS A WEEK. ALL HOURS OF DUTY PERFORMED BY ME WERE REPORTED ON DAILY
REPORT FORM I-50 WHICH WERE EXAMINED AND APPROVED BY MY SUPERVISORY
OFFICER. STANDARD FORMS 1130, TIME AND ATTENDANCE REPORTS WERE PREPARED
BY MY SUPERVISORY OFFICER, WHO WAS MY TIMEKEEPER, AND WERE SUBMITTED TO
THE PROPER FINANCE OFFICER IN ACCORDANCE WITH OUTSTANDING INSTRUCTIONS.
"ALL OF THE OVERTIME FOR WHICH I CLAIM PAYMENT WAS REPORTED ON BOTH
FORMS UNDER A COLUMN LABELED "VOLUNTARY OVERTIME OR VT.' THIS WAS DONE
BECAUSE OF INSTRUCTIONS WHICH REQUIRED THAT IT BE REPORTED IN THAT
MANNER. THE OVERTIME DUTIES PERFORMED BY ME WERE NOT VOLUNTARILY
PERFORMED IN ANY SENSE OF THE WORD BUT WERE REQUIRED BY MY SUPERVISORY
OFFICERS AND WAS APPROVED BY ALL CONCERNED.'
YOU SAY YOU CLAIM PAYMENT FOR THE OVERTIME ON THE BASIS OF THE
DECISIONS RENDERED IN FARLEY V. UNITED STATES, 131 C.CLS. 776,
SCHIABLE, SANDERSON, AND HENDLEY ET AL. V. UNITED STATES, 135 C.CLS.
890, AND ANDERSON ET AL. V. UNITED STATES, C.CLS. NO. 50302, DECIDED
JULY 12, 1956.
ALTHOUGH YOU MAKE CLAIM FOR A PERIOD PRIOR TO JULY 1, 1945, YOUR
REQUEST CONTAINS THIS HEADING:
"RE: CLAIM FOR ADDITIONAL PAY UNDER THE PROVISIONS OF THE FEDERAL
EMPLOYEES PAY ACT OF 1945.'
SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (WHICH BECAME
EFFECTIVE JULY 1, 1945), 59 STAT. 296, AS AMENDED, 68 STAT. 1109,
REQUIRES PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES FOR ALL
HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF FORTY HOURS
IN ANY ADMINISTRATIVE WORK WEEK AT THE RATES SET FORTH THEREIN.
CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO SECTION 201 PROVIDE
GENERALLY FOR PAYMENT FOR OVERTIME OFFICIALLY ORDERED OR APPROVED IN
EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK. THE REGULATIONS
ALSO PROVIDE THAT NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN
THE REGULARLY SCHEDULED ADMINISTRATIVE WORK WEEK SHALL BE ORDERED OR
APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH
AUTHORITY HAS BEEN DELEGATED. ALSO, REGULATIONS ISSUED INCIDENT TO THE
PAY ACTS IN EFFECT BETWEEN DECEMBER 1, 1942, AND JUNE 30, 1945, PROVIDED
SUBSTANTIALLY THE SAME AS THE REGULATIONS ISSUED PURSUANT TO THE 1945
PAY ACT. (PRIOR TO DECEMBER 1, 1942, YOU DID NOT FALL UNDER THE
PROVISIONS OF ANY LAW AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION).
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 MUST 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. THE SERVICE ALSO ADVISES THAT ITS RECORDS INDICATE
THERE WERE NO HOURS OF WORK IN EXCESS OF FORTY HOURS IN ANY
ADMINISTRATIVE WORK WEEK WHICH WERE OFFICIALLY ORDERED OR APPROVED BY
COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID.
THE COURT CASES CITED BY YOU ARE NOT APPLICABLE TO YOUR CLAIM.
FARLEY V. UNITED STATES, IT APPEARS THE CLAIMANT WAS REQUIRED TO REMAIN
ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF HER EMPLOYMENT. THE
IMMIGRATION AND NATURALIZATION SERVICE ADVISES THAT THERE IS NO RECORD
OF ANY ORDER DIRECTING YOU TO REMAIN ON DUTY OR TO PERFORM EXTRA DUTY AS
A CONDITION OF YOUR EMPLOYMENT.
IN HANDLEY ET AL. V. UNITED STATES, THE COURT HELD THAT ACCEPTANCE BY
A GOVERNMENT EMPLOYEE OF LESS THAN THE LAWFUL COMPENSATION UNDER A
MISTAKE OF LAW DOES NOT BAR THE CLAIM FOR THE DIFFERENCE AT A LATER
CLAIM. AS INDICATED ABOVE, IT APPEARS YOU WERE PAID ALL THE
COMPENSATION LAWFULLY DUE YOU FOR OVERTIME.
MOREOVER, 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 TO BE THE CASE IN ANDERSON ET
AL. V. UNITED STATES.
IN VIEW OF THE ADMINISTRATIVE REPORT SHOWING THAT NO OVERTIME SERVICE
IN YOUR CASE HAD BEEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY,
EXCEPT SUCH AS ALREADY HAS BEEN ADMINISTRATIVELY PAID FOR, AND IN LIGHT
OF THE APPLICABLE STATUTES AND REGULATIONS, YOUR CLAIM MUST BE
DISALLOWED.
B-134778, MAR. 19, 1958
TO MR. JOSEPH VASGARD:
YOUR LETTER OF OCTOBER 30, 1957, REQUESTS RECONSIDERATION OF OUR
SETTLEMENT OF FEBRUARY 11, 1952, WHICH DISALLOWED YOUR CLAIM (RECEIVED
HERE MARCH 6, 1950) FOR OVERTIME COMPENSATION FOR SERVICES RENDERED AS A
PATROL INSPECTOR, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF
JUSTICE.
YOU SAY IN YOUR LETTER THAT:
"DURING THIS PERIOD OF TIME I PERFORMED MY ACCUSTOMED DUTIES AS A
PATROL INSPECTOR IN EXCESS OF EIGHT HOURS A DAY AND IN EXCESS OF 40
HOURS A WEEK. ALL HOURS OF DUTY PERFORMED BY ME WERE REPORTED ON DAILY
REPORT FORM I-51 WHICH WERE EXAMINED AND APPROVED BY MY SUPERVISORY
OFFICER. STANDARD FORMS 1130, TIME AND ATTENDANCE REPORTS WERE PREPARED
BY MY SUPERVISORY OFFICER, WHO WAS MY TIMEKEEPER, AND WERE SUBMITTED TO
THE PROPER FINANCE OFFICER IN ACCORDANCE WITH OUTSTANDING INSTRUCTIONS.
"ALL OF THE OVERTIME FOR WHICH I CLAIM PAYMENT WAS REPORTED ON BOTH
FORMS UNDER A COLUMN LABELED "VOLUNTARY OVERTIME OR VT.' THIS WAS DONE
BECAUSE OF INSTRUCTIONS WHICH REQUIRED THAT IT BE REPORTED IN THAT
MANNER. THE OVERTIME DUTIES PERFORMED BY ME WERE NOT VOLUNTARILY
PERFORMED IN ANY SENSE OF THE WORD BUT WERE REQUIRED BY MY SUPERVISORY
OFFICERS AND WAS APPROVED BY ALL CONCERNED.'
YOU SAY YOU CLAIM PAYMENT FOR THE OVERTIME ON THE BASIS OF THE
DECISIONS RENDERED IN FARLEY V. UNITED STATES, 131 C.CLS. 776,
SCHIABLE, SANDERSON, AND HANDLEY ET AL. V. UNITED STATES, 135 C.CLS.
890, AND ANDERSON ET AL. V. UNITED STATES, C.CLS. NO. 50303, DECIDED
JULY 12, 1956.
ALTHOUGH YOU MAKE CLAIM FOR A PERIOD PRIOR TO JULY 1, 1945, YOUR
REQUEST CONTAINS THIS HEADING:
"RE: CLAIM FOR ADDITIONAL PAY UNDER THE PROVISIONS OF THE FEDERAL
EMPLOYEES PAY ACT OF 1945.'
SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (WHICH BECAME
EFFECTIVE JULY 1, 1945), 59 STAT. 296, AS AMENDED, 68 STAT. 1109,
REQUIRES PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES FOR ALL
HOURS OF WORK "OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF FORTY HOURS
IN ANY ADMINISTRATIVE WORK WEEK AT THE RATES SET FORTH THEREIN.
CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO SECTION 201 PROVIDE
GENERALLY FOR PAYMENT FOR OVERTIME OFFICIALLY ORDERED OR APPROVED IN
EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORK WEEK. THE REGULATIONS
ALSO PROVIDE THAT NO OVERTIME IN EXCESS OF ANY THAT MAY BE INCLUDED IN
THE REGULARLY SCHEDULED ADMINISTRATIVE WORK WEEK SHALL BE ORDERED OR
APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH
AUTHORITY HAS BEEN DELEGATED. ALSO, REGULATIONS ISSUED INCIDENT TO THE
PAY ACTS IN EFFECT BETWEEN DECEMBER 1, 1942, AND JUNE 30, 1945, PROVIDED
SUBSTANTIALLY THE SAME AS THE REGULATIONS ISSUED PURSUANT TO THE 1945
PAY ACT. (PRIOR TO DECEMBER 1, 1942, YOU DID NOT FALL UNDER THE
PROVISIONS OF ANY LAW AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION.)
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 MUST 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. THE SERVICE ALSO ADVISES THAT ITS RECORDS INDICATE
THERE WERE NO HOURS OF WORK IN EXCESS OF FORTY HOURS IN ANY
ADMINISTRATIVE WORK WEEK WHICH WERE OFFICIALLY ORDERED OR APPROVED BY
COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID.
THE COURT CASES CITED BY YOU ARE NOT APPLICABLE TO YOUR CLAIM. IN
FARLEY V. UNITED STATES, IT APPEARS THE CLAIMANT WAS REQUIRED TO REMAIN
ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF HER
EMPLOYMENT. THE IMMIGRATION AND NATURALIZATION SERVICE ADVISES THA
THERE IS NO RECORD OF ANY ORDER DIRECTING YOU TO REMAIN ON DUTY OR TO
PERFORM EXTRA DUTY AS A CONDITION OF YOUR EMPLOYMENT.
IN HANDLEY ET AL. V. UNITED STATES, THE COURT HELD THAT ACCEPTANCE BY
A GOVERNMENT EMPLOYEE OF LESS THAN THE LAWFUL COMPENSATION UNDER A
MISTAKE OF LAW DOES NOT BAR THE CLAIM FOR THE DIFFERENCE AT A LATER
DATE. AS INDICATED ABOVE, IT APPEARS YOU WERE PAID ALL THE COMPENSATION
LAWFULLY DUE YOU FOR OVERTIME.
MOREOVER, 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 TO BE THE CASE IN ANDERSON ET
AL. V. UNITED STATES.
IN VIEW OF THE ADMINISTRATIVE REPORT SHOWING THAT NO OVERTIME SERVICE
IN YOUR CASE HAD BEEN AUTHORIZED OR APPROVED BY COMPETENT AUTHORITY,
EXCEPT SUCH AS ALREADY HAS BEEN ADMINISTRATIVELY PAID FOR, AND IN LIGHT
OF THE APPLICABLE STATUTES AND REGULATIONS, THE DISALLOWANCE OF YOUR
CLAIM WAS PROPER. HENCE, THE SETTLEMENT IS SUSTAINED.
B-134833, MAR. 19, 1958
TO LIEUTENANT COMMANDER FRANKLIN A. FRANCO, USNR:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1957, REQUESTING
REVIEW OF THE SETTLEMENT OF MAY 28, 1957, WHICH DISALLOWED IN PART YOUR
CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED BY A MEMBER OF PATROL
SQUADRON SIX, U.S. PACIFIC FLEET AIR FORCE, IN 1952.
THE RECORD SHOWS THAT YOU WERE ALLOWED PER DIEM FOR THE PERIOD JULY 6
THROUGH JULY 11, 1952. HOWEVER, IN YOUR REQUEST FOR REVIEW, YOU
APPARENTLY BELIEVE THAT YOU ARE ENTITLED TO PER DIEM FOR THE PERIOD JULY
6 THROUGH NOVEMBER 8, 1952, INCIDENT TO YOUR SQUADRON DEPLOYMENT.
ENTITLEMENT TO PER DIEM FOR TEMPORARY ADDITIONAL DUTY UNDER THE JOINT
TRAVEL REGULATIONS ARISES ONLY WHEN IT IS PERFORMED UNDER WRITTEN ORDERS
WHICH DIRECT ITS PERFORMANCE AND PROVIDE FOR THE MEMBER'S RETURN TO THE
OLD PERMANENT STATION. NO SUCH ORDERS ARE OF EVIDENCE IN YOUR CASE FOR
THE PERIOD JULY 11 THROUGH NOVEMBER 8, 1952. ON THE CONTRARY, BY THIRD
ENDORSEMENT OF JULY 11, 1952, IT IS NOTED THAT YOUR TEMPORARY ADDITIONAL
DUTY WAS COMPLETED ON THAT DATE AND YOU WERE TO RESUME YOUR REGULAR
DUTIES.
WITH REGARD TO THE DEPLOYED STATUS OF YOUR PATROL SQUADRON, IT IS
NOTED THAT SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, CLARIFIED NAVY
DEPARTMENT POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHERE PROPER
WRITTEN ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE CONCLUSION
THAT PER DIEM WAS NOT PAYABLE. THE INSTRUCTION PROVIDES, AMONG OTHER
THINGS, THAT MEMBERS CURRENTLY DEPLOYED WHO HAVE NOT BEEN ISSUED WRITTEN
TEMPORARY ADDITIONAL DUTY ORDERS WILL BE ISSUED PROPER CONFIRMATORY
ORDERS, AND THAT MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY DUTY
AND WHO, PRIOR TO THE RECEIPT OF SECNAV INSTRUCTION, WERE ISSUED WRITTEN
TEMPORARY ADDITIONAL DUTY ORDERS WILL BE PAID THE APPROPRIATE PER DIEM
ALLOWANCE. PARAGRAPH 6D OF SUCH INSTRUCTIONS PROVIDES AS FOLLOWS:
"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.'
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
63 STAT. 813, AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL
PERFORMED UNDER COMPETENT ORDERS. COMPETENT ORDERS FOR PER DIEM
PURPOSES ARE DEFINED IN PARAGRAPH 3000-3003, JOINT TRAVEL REGULATIONS.
AN EXAMINATION OF THE RECORD SHOWS THAT NO SUCH ORDERS WERE ISSUED IN
YOUR CASE. WHERE COMPETENT ORDERS WERE NOT ISSUED AND THE EXPENSES OF
TRAVEL WERE OF MINOR NATURE BECAUSE OF THE FACT THAT BOTH GOVERNMENT
QUARTERS AND MESSING FACILITIES WERE AVAILABLE, THE QUESTION OF WHETHER
PROPER CONFIRMATORY ORDERS WILL BE ISSUED IN AN OTHERWISE PROPER CASE IS
A MATTER FOR ADMINISTRATIVE DETERMINATION. PARAGRAPH 6D OF SECNAV
INSTRUCTION 7220.19 CONSTITUTES A NUMBER OF CLAIMS APPARENTLY SIMILAR TO
YOURS MAY HAVE BEEN PAID AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF
YOUR CLAIM CONTRARY TO THIS ADMINISTRATIVE DETERMINATION.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM FOR THE
PERIOD INVOLVED WAS CORRECT AND IS SUSTAINED.
B-134849, MAR. 19, 1958
TO LIEUTENANT MARK LANHAM, USN, RETIRED:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1957, CONCERNING THE
SETTLEMENT DATED DECEMBER 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR
EXPENSES INCURRED FOR TEMPORARY STORAGE OF HOUSEHOLD GOODS AT
CINCINNATI, OHIO, AND FOR REIMBURSEMENT OF THE COST OF SHIPPING A
PORTION OF SUCH HOUSEHOLD GOODS FROM CINCINNATI, OHIO, TO SPRINGFIELD,
MISSOURI, DURING JULY 1957.
THE RECORD SHOWS THAT YOU WERE SERVING AS A LIEUTENANT ASSIGNED TO
ACTIVE DUTY WITH THE COMMANDER FLEET ACTIVITIES, U.S. NAVY, YOKOSUKA,
JAPAN, WHEN YOUR REQUEST TO BE TRANSFERRED TO THE RETIRED LIST WAS
APPROVED JULY 1, 1956. PURSUANT TO BUREAU OF PERSONNEL MESSAGE ORDERS
NO. 231253Z, ISSUED IN MAY 1956, YOU WERE DETACHED FROM DUTY AT
YOKOSUKA, JAPAN, AND DIRECTED TO PROCEED TO THE UNITED STATES, THENCE TO
THE APPROPRIATE NAVAL ACTIVITY NEAREST THE PORT OF DEBARKATION FOR
TEMPORARY DUTY AWAITING RETIREMENT. UPON COMPLETION OF SUCH TEMPORARY
DUTY--- WHEN DIRECTED BY THE COMMANDING OFFICER OF THE ACTIVITY
CONCERNED--- YOU WERE TO BE DETACHED FROM ACTIVE DUTY AND TO PROCEED TO
YOUR HOME OF SELECTION. IT IS SHOWN THAT YOU WERE RELEASED FROM ALL
ACTIVE DUTY ON JUNE 30 AND TRANSFERRED TO THE RETIRED LIST WITH THE RANK
AND RETIRED PAY OF A LIEUTENANT EFFECTIVE JULY 1, 1956.
THE RECORD FURTHER SHOWS THAT AS A RESULT OF THE ABOVE-MENTIONED
ORDERS AND IN COMPLIANCE WITH YOUR APPLICATION (FORM 116) FOR
TRANSPORTATION OF HOUSEHOLD GOODS, 6,890 POUNDS (GROSS WEIGHT) OF YOUR
EFFECTS WERE SHIPPED FROM STOCKTON, CALIFORNIA, TO CINCINNATI, OHIO, VIA
MOTOR FREIGHT ON GOVERNMENT BILL OF LADING NO. N30765544, DATED AUGUST
20, 1956, AT GOVERNMENT EXPENSE. A SECOND SHIPMENT OF HOUSEHOLD GOODS
(GROSS WEIGHT OF 5,525 POUNDS) WAS TRANSPORTED BETWEEN THE SAME POINTS
AT GOVERNMENT EXPENSE ON GOVERNMENT BILL OF LADING NO. N8412399, DATED
JUNE 4, 1957. APPARENTLY THIS LATTER SHIPMENT WAS FROM A NONTEMPORARY
STORAGE WAREHOUSE, SINCE IT IS REPORTED TO HAVE BEEN PICKED UP IN
STOCKTON, CALIFORNIA, ON JUNE 12, 1957, PRIOR TO THE RECEIPT OF YOUR
REQUEST, DATED JULY 8, 1957, THAT THE SHIPMENT BE DIVERTED FROM
CINCINNATI TO SPRINGFIELD, MISSOURI. YOUR CLAIM FOR $188, OF WHICH
$1120 COVERS FIVE DAYS TEMPORARY STORAGE IN CINCINNATI, AND THE BALANCE
($176.80) REPRESENTS RAIL FREIGHT CHARGES INCURRED INCIDENT TO THE
RESHIPMENT OF SUCH EFFECTS FROM PLACE OF TEMPORARY STORAGE TO
SPRINGFIELD, MISSOURI, WAS DISALLOWED BY OUR SETTLEMENT DATED DECEMBER
12, 1957, FOR THE REASONS THEREIN STATED. YOU NOW REQUEST
RECONSIDERATION OF THAT SETTLEMENT.
THE TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY
STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD GOODS OF MEMBERS OF THE
UNIFORMED SERVICES AT GOVERNMENT EXPENSE IS GOVERNED
BY REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
AS AMENDED, WHICH ARE PUBLISHED IN THE JOINT TRAVEL REGULATIONS.
PARAGRAPH 8006-1 (CHANGE 45, EFFECTIVE APRIL 1, 1956) OF SUCH
REGULATIONS PROVIDED FOR TEMPORARY STORAGE OF HOUSEHOLD GOODS (WITHIN
PRESCRIBED WEIGHT ALLOWANCES) AT GOVERNMENT EXPENSE, WHENEVER NECESSARY
IN CONNECTION WITH A PERMANENT CHANGE OF STATION, BECAUSE OF CONDITIONS
BEYOND THE CONTROL OF THE MEMBER (INCLUDING BUT NOT LIMITED TO DIRECTED
SURRENDER OF QUARTERS, ARRIVAL OF SHIPMENT AT DESIGNATION BEFORE ARRIVAL
OF MEMBER, OR NONAVAILABILITY OF HOUSING AT DESTINATION). ALSO, THE
REGULATIONS REQUIRED THAT PAYMENT VOUCHERS COVERING TEMPORARY STORAGE OF
HOUSEHOLD GOODS SHOULD BE SUPPORTED BY A CERTIFICATE OF A PROPERLY
DESIGNATED OFFICIAL THAT SUCH STORAGE IS NECESSARY.
PARAGRAPH 8009-6A AND C (CHANGE 43) OF THE JOINT TRAVEL REGULATIONS
APPLICABLE AT THE TIME OF YOUR RETIREMENT READS, IN PERTINENT PART, AS
FOLLOWS:
"A. SHIPMENT TO HOME OF SELECTION AUTHORIZED. A MEMBER ON ACTIVE
DUTY WHO IS * * * RETIRED WITH PAY * * * WITH 8 OR MORE YEARS OF
CONTINUOUS ACTIVE DUTY IMMEDIATELY PRECEDING RETIREMENT * * * WILL BE
ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS FROM HIS LAST DUTY STATION, OR
ANY OTHER PLACE TO WHICH HIS HOUSEHOLD GOODS WERE PREVIOUSLY SHIPPED AT
GOVERNMENT EXPENSE * * * TO THE HOME SELECTED BY THE MEMBER FOR THE
PURPOSE OF RECEIVING TRAVEL ALLOWANCES FOR HIS TRAVEL IN ACCORDANCE WITH
PAR. 4158, PROVIDED THAT SUCH GOODS ARE TURNED OVER TO A TRANSPORTATION
OFFICER OR CARRIER FOR SHIPMENT WITHIN ONE YEAR FOLLOWING TERMINATION OF
ACTIVE DUTY. SHIPMENT OF HOUSEHOLD GOODS TO ANY PLACE OTHER THAN HOME
OF SELECTION IS NOT AUTHORIZED. * * *.
"C. STORAGE. A MEMBER WHO IS ENTITLED TO SHIPMENT OF HOUSEHOLD
GOODS TO A HOME OF SELECTION UNDER THE CONDITIONS OUTLINED IN SUBPAR. A,
WILL BE ENTITLED TO NONTEMPORARY STORAGE OF ALL OR ANY PORTION OF HIS
HOUSEHOLD GOODS IN ACCORDANCE WITH PAR. 8006 FOR A PERIOD NOT TO EXCEED
ONE YEAR FROM THE DATE OF TERMINATION OF ACTIVE DUTY. TEMPORARY STORAGE
IN CONNECTION WITH A SHIPMENT FROM NONTEMPORARY STORAGE TO THE MEMBER'S
HOME OF SELECTION IS NOT AUTHORIZED. * * *"
ALTHOUGH YOU HAD UNTIL JUNE 30, 1957--- YEAR FROM THE EFFECTIVE DATE
OF YOUR RETIREMENT--- IN WHICH TO SELECT A HOME FOR THE PURPOSE OF
RECEIVING TRAVEL ALLOWANCES, IT IS SHOWN THAT YOU MADE REQUEST FOR AND
WERE PAID MILEAGE FOR "PERSONAL TRAVEL" TO CINCINNATI AFTER ONLY A
PORTION OF YOUR EFFECTS WERE TRANSPORTED TO YOUR SELECTED HOME PURSUANT
TO APPLICATION. ONCE A HOME IS SELECTED AND TRAVEL THERETO IS
PERFORMED, SUCH SELECTION IS IRREVOCABLE. THUS, AFTER YOU PERFORMED
TRAVEL TO CINCINNATI AND RECEIVED MILEAGE THEREFOR, THAT PLACE WAS
CONSIDERED AS YOUR ,HOME OF SELECTION," AND THE SHIPMENT OF YOUR
HOUSEHOLD GOODS TO ANY PLACE OTHER THAN CINCINNATI WAS NOT AUTHORIZED.
SEE PARAGRAPH 4158 OF THE JOINT TRAVEL REGULATIONS. UNDER THE ORDERS
EFFECTING YOUR RETIREMENT YOU BECAME ELIGIBLE TO HAVE ALL OR ANY PORTION
OF YOUR HOUSEHOLD GOODS PLACED IN NONTEMPORARY STORAGE FOR NOT TO EXCEED
ONE YEAR FROM JUNE 30, 1956. HOWEVER, THE PAYMENT OF TEMPORARY STORAGE
CHARGES ON HOUSEHOLD GOODS SHIPPED FROM NONTEMPORARY STORAGE IS
SPECIFICALLY PRECLUDED BY THE QUOTED REGULATIONS.
FOR THE REASONS INDICATED THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR
CLAIM. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 12, 1957, IS SUSTAINED.
ASIDE FROM THE FACT THAT NO PART OF YOUR CLAIM IS ALLOWABLE UNDER THE
LAW AND THE APPLICATION REGULATIONS, IT NOW APPEARS THAT THE GROSS
WEIGHT (12,415 POUNDS) OF YOUR HOUSEHOLD GOODS SHIPPED FROM CALIFORNIA
TO CINCINNATI EXCEEDED THE AUTHORIZED WEIGHT ALLOWANCE BY 368 POUNDS,
AND THAT YOU ARE LEGALLY CHARGEABLE WITH EXCESS COST ON THE EXCESS
WEIGHT ABOVE INDICATED.
B-135008, MAR. 19, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED JANUARY 22, 1958, WITH ENCLOSURES,
FROM ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION
WITH REGARD TO THE REQUEST OF W. R. MADDY AND COMPANY, 1499 RITTER
BOULEVARD, HUNTINGTON, WEST VIRGINIA, FOR RESCISSION OF CONTRACT NO
DA-46-022-CIVENG-58-94.
ON OCTOBER 10, 1957, THE UNITED STATES ARMY ENGINEER DISTRICT,
HUNTINGTON, WEST VIRGINIA, ISSUED AN INVITATION FOR BIDS FOR CLEARING
AND STRAIGHTENING THE CHERRY RIVER CHANNEL, AT RICHWOOD, WEST VIRGINIA.
THE CONTRACT WAS TO BE LET ON A TOTAL AMOUNT BASIS, BUT THE INVITATION
CALLED FOR PRICE QUOTATIONS ON THE SEPARATE ITEMS OF THE WORK TO BE
DONE.
IN RESPONSE TO THE INVITATION, SIX BIDS RANGING FROM $6,995 TO
$29,500 FOR THE ENTIRE PROJECT WERE RECEIVED AND OPENED AS SCHEDULED ON
OCTOBER 29, 1957. THE BID OF W. R. MADDY AND COMPANY, TOTALING $6,995
FOR THE PROJECT, WAS THE LOWEST BID RECEIVED.
UPON REVIEW OF THE BIDS, THE CONTRACTING OFFICER CONCLUDED THAT W.
R. MADDY AND COMPANY'S TOTAL BID, AND PARTICULARLY ITS QUOTATION ON
ITEM NO. 2 FOR CHANNEL EXCAVATION, WERE SO LOW, WHEN COMPARED WITH THE
GOVERNMENT'S TOTAL ESTIMATE OF $12,320 AND THE OTHER BIDS RECEIVED, AS
TO INDICATE AN ERROR IN THE BID. BY TELEPHONE, ON OCTOBER 30, 1957, A
REPRESENTATIVE OF THE CONTRACTING OFFICER QUESTIONED MR. W. R. MADDY,
OWNER OF THE COMPANY, AS TO THE REASONABLENESS OF THE COMPANY'S OVER-ALL
BID, AND A CONFERENCE WAS ARRANGED FOR NOVEMBER 1 TO DISCUSS THAT BID.
AT THE CONFERENCE, MR. MADDY'S ATTENTION WAS CALLED PARTICULARLY TO THE
SUBSTANTIAL DISPARITY BETWEEN HIS COMPANY'S UNIT BID PRICE OF $0.90 PER
CUBIC YARD FOR CHANNEL EXCAVATION UNDER ITEM NO. 2 AND THE BID OF $3 ON
THAT ITEM BY EACH OF THE NEXT TWO LOW LOW BIDDERS, AND ALSO THE ESTIMATE
OF THE GOVERNMENT OF $1.90 FOR THAT ITEM. MR. MADDY WAS ADVISED OF THE
COMPANY'S RIGHT TO FILE A CLAIM OF MISTAKE IN BID AND THAT, IN SUCH A
CLAIM WERE FILED, CONSIDERATION WOULD BE GIVEN TO REVISION OF THE BID
PROVIDED SUPPORTING DATA WERE FURNISHED BOTH AS TO THE COMPANY'S MISTAKE
AND ITS INTENDED BID PRICE, OR CONSIDERATION WOULD BE GIVEN TO PERMIT
WITHDRAWAL OF THE COMPANY'S BID IF IT COULD NOT PROVE ITS INTENDED BID
PRICE. MR. MADDY THEN STATED THAT HE DID NOT HAVE ANY WORKSHEETS
COVERING THE BID AS SUBMITTED, THAT HE DID NOT HAVE ANY WORK AT THE
PRESENT TIME, AND THAT HE WANTED TO TAKE ON THE JOB AND WOULD DO SO AT
THE COMPANY'S BID PRICE. AT THE CONCLUSION OF THE CONFERENCE, BY LETTER
DATED NOVEMBER 1, 1957, ADDRESSED TO THE CONTRACTING OFFICER, MR. MADDY
CONFIRMED HIS COMPANY'S BID AS SUBMITTED AND REQUESTED THAT, AT THE
EARLIEST CONVENIENCE OF THE CONTRACTING OFFICER, A CONTRACT BE PREPARED
AND FURNISHED HIM FOR EXECUTION.
THEREAFTER, UPON THE BASIS OF A PREAWARD SURVEY WHICH INCLUDED A
CHECK WITH THE CITY MANAGER, IRONTON, OHIO, FOR WHOM W. R. MADDY HAD
RECENTLY PERFORMED SIMILAR WORK SUCCESSFULLY AND AFTER REVIEW OF THE LOW
BIDDER'S FINANCIAL STATEMENT, THE CONTRACTING OFFICER DETERMINED THAT W.
R. MADDY AND COMPANY WAS FINANCIALLY RESPONSIBLE AND CAPABLE OF
SATISFACTORY PERFORMANCE OF THE WORK HERE INVOLVED. BY LETTER DATED
NOVEMBER 4, 1957, THE CONTRACTING OFFICER ADVISED W. R. MADDY AND
COMPANY THAT ITS BID IN THE ESTIMATED AMOUNT OF $6,995 FOR PERFORMANCE
OF THE WORK AS ADVERTISED HAD BEEN ACCEPTED SUBJECT TO ACCOMPLISHMENT OF
THE CONTRACT, AND PERFORMANCE AND PAYMENT BONDS. FORMAL CONTRACT NO.
DA-46-022-CIVENG-58-94 WAS FORWARDED TO MR. MADDY FOR PROMPT EXECUTION
OF ALL COPIES OF THE CONTRACT AND BONDS, AND RETURN OF THE ORIGINAL OF
THE CONTRACT AND THE ORIGINAL AND DUPLICATES OF THE REQUIRED BONDS.
THE CONTRACTOR DID NOT EXECUTE AND RETURN THE CONTRACT PAPERS
ENCLOSED WITH THE NOTICE OF AWARD. BUT, AT FURTHER, CONFERENCES ON
NOVEMBER 8 AND 12, 1957, REQUESTED BY MR. MADDY, AND BY LETTER DATED
NOVEMBER 14, 1957, THE CONTRACTOR REQUESTED RESCISSION OF THE CONTRACT.
MR. MADDY TOOK THE POSITION THAT:
1. DUE TO THE NATURE AND CHARACTER OF THE PROJECT HE WAS NOT
COMPETENT TO BID UPON SAME.
2. HE WAS COMPLETELY MISTAKEN AS TO THE NATURE, CHARACTER, AND
EXTENT OF THE WORK CONTEMPLATED. AT THE TIME OF HIS SITE INVESTIGATION,
THE RIVER WAS AT HIGH STAGE. IT WAS ONLY AFTER CONFIRMATION OF HIS BID
AND AWARD OF THE CONTRACT, WHEN HE AGAIN VISITED THE SITE, THAT THE
MAGNITUDE OF THE JOB BECAME APPARENT TO HIM.
3. AS TO THE PRICE WHICH HE BID FOR ITEM NO. 2, CHANNEL EXCAVATION,
HE FAILED TO INCLUDE THE TOTAL AMOUNT OF $7,800 SUGGESTED BY A MR. JOHN
E. GREENE, WHO ASSISTED IN THE SURVEY OF THE PROJECT AND CALCULATION OF
HIS BID, AND INADVERTENTLY BID $3,150 INSTEAD FOR ITEM NO. 2, THUS
MAKING A MISTAKE IN BID IN THE AMOUNT OF $4,655 ON THAT ITEM.
4. DURING THE FIRST CONFERENCE PRIOR TO AWARD AT THE TIME HIS
ATTENTION WAS CALLED TO POSSIBLE ERROR IN BID AND WHEN HE CONFIRMED HIS
BID, THE WORKSHEETS UPON WHICH HIS BID WAS CALCULATED WERE NOT CONSULTED
BY HIM, NOR WERE THE ITEMS UPON WHICH THE BID WAS PREDICATED EXAMINED IN
DETAIL, AND IT WAS NOT UNTIL AFTER THE CONFERENCE THAT HE DISCOVERED THE
ERROR IN BID.
5. BECAUSE OF THE EXTREME DIFFERENCE BETWEEN HIS BID AND THE
GOVERNMENT ESTIMATE AND OTHER BIDS RECEIVED, HE IS UNABLE TO SECURE AND
FURNISH PERFORMANCE AND PAYMENT BONDS AS REQUIRED.
6. THE CONTRACTING OFFICER ERRED IN DETERMINING THAT HE WAS A
RESPONSIBLE BIDDER, AND HAD A FURTHER EXAMINATION BEEN MADE IN THIS
RESPECT THE CONTRACT WOULD NOT HAVE BEEN AWARDED TO HIM.
IN SUPPORT OF THE ALLEGATION OF ERROR IN THE BID OF W. R. MADDY AND
COMPANY, AFFIDAVITS BY W. R. MADDY AND JOHN E. GREENE, AND THEIR
RESPECTIVE ORIGINAL WORKSHEETS WERE SUBMITTED. MR. GREEN'S AFFIDAVIT
CONTAINED THE STATEMENT THAT, AT THE REQUEST OF MR. MADDY, HE MADE A
CALCULATION OF AN ESTIMATE FOR MR. MADDY TO USE IN SUBMITTING A BID ON
THE ADVERTISED WORK; THAT HIS CALCULATION AS TO ITEM NO. 2 FOR CHANNEL
EXCAVATION WAS BASED ON REMOVING AN ESTIMATED 3,500 YARDS AT $2.23 PER
YARD, OR AN ESTIMATED TOTAL OF $7,800 ($7,805) FOR THAT ITEM; AND THAT
AS A RESULT OF HIS CALCULATIONS ON ALL THREE ITEMS OF THE INVITATION HE
ADVISED MR. MADDY TO BID APPROXIMATELY A TOTAL OF $12,000 FOR THE
PROJECT.
IN HIS AFFIDAVIT, MR. MADDY STATED THAT HE INADVERTENTLY CALCULATED
THE CHANNEL EXCAVATION (ITEM NO. 2) ON THE BASIS OF REMOVING 3,500 CUBIC
YARDS AT A COST OF ONLY $3,150, INSTEAD OF $7,800 ($7,805) AS SUGGESTED
BY MR. GREENE, WHICH RESULTED IN AN ERROR OF $4,655 IN HIS COMPANY'S BID
PRICE ON THAT ITEM.
IN SUPPORT OF HIS REQUEST FOR RESCISSION OF THE CONTRACT, MR. MADDY
ALSO SUBMITTED LETTERS, DATED NOVEMBER 12, 1957, FROM THE UNITED STATES
FIDELITY AND GUARANTY COMPANY--- WHO FURNISHED THE BID BOND OF $3,000
ACCOMPANYING THE COMPANY'S BID--- AND FROM THE CARSON INSURANCE COMPANY,
OF CHARLESTON, WEST VIRGINIA, IN WHICH EACH COMPANY RESPECTIVELY ADVISED
MR. MADDY THAT IT DECLINED TO PROVIDE A PERFORMANCE AND PAYMENT BOND ON
THE INVOLVED WORK INASMUCH AS THE MADDY COMPANY'S BID OF $6,995 WAS FAR
BELOW THE GOVERNMENT'S ESTIMATE FOR THE PROJECT AND ALSO THE BIDS OF THE
NEXT TWO LOW BIDDERS, AND AS IT WAS THE BONDING COMPANY'S OPINION THAT
IT WAS FINANCIALLY IMPOSSIBLE FOR THE COMPANY TO DO THE WORK FOR $6,995.
IN HIS FINDINGS OF FACTS, DATED NOVEMBER 27, 1957, THE CONTRACTING
OFFICER OFFICER STATED THAT, UPON A REVIEW OF THE FACTS BEFORE HIM AT
THE TIME OF MAKING THE AWARD AND AS DISCLOSED IN CONFERENCES WITH MR.
MADDY AND IN ADDITIONAL DATA PRESENTED BY MR. MADDY AFTER AWARD OF THE
CONTRACT, IT WAS APPARENT THAT A BONA FIDE MISTAKE WAS MADE IN THE
COMPANY'S BID AS SUBMITTED, AND HAD HE BEEN AWARE OF THE MISTAKE PRIOR
TO AWARD OF THE CONTRACT, HE WOULD HAVE WITHHELD AWARD OF THE CONTRACT
AND WOULD HAVE RECOMMENDED TO THE CHIEF OF ENGINEERS THAT W. R. MADDY
AND COMPANY BE PERMITTED TO WITHDRAW ITS BID. THE CONTRACTING OFFICER
ALSO STATED THAT, NOTWITHSTANDING HIS PREAWARD DETERMINATION THAT THE
COMPANY WAS FINANCIALLY RESPONSIBLE AND CAPABLE OF PERFORMING THE WORK
REQUIRED UNDER THE CONTRACT, THERE WAS PRESENT, PRIOR TO AWARD, EVIDENCE
OF IRRESPONSIBILITY ON THE PART OF MR. MADDY, OWNER OF THE COMPANY; AND
THAT HE HAD ERRED IN DETERMINING THAT W. R. MADDY AND COMPANY WAS A
RESPONSIBLE BIDDER, AND THAT HAD FURTHER PREAWARD INVESTIGATION BEEN
MADE IN THIS RESPECT THE AWARD WOULD NOT HAVE BEEN MADE TO THE
CONTRACTOR. THE CONTRACTING OFFICER FURTHER STATED THAT, IN HIS
OPINION, TO REQUIRE THE CONTRACTOR TO PERFORM THE WORK CALLED FOR UNDER
THE CONTRACT OR TO SUFFER DAMAGES TO THE EXTENT OF THE COST TO THE
UNITED STATES OVER AND ABOVE THE AMOUNT OF ITS BID PRICE IN HAVING SUCH
WORK DONE BY ANOTHER CONTRACTOR, WOULD VISIT SUCH FINANCIAL DISTRESS AND
HARDSHIP UPON THE CONTRACTOR AS TO BE UNCONSCIONABLE.
WHILE IT IS TRUE THAT THE RESPONSIBILITY FOR THE PREPARATION OF A BID
IS UPON THE BIDDER, WHO ORDINARILY MUST BEAR THE CONSEQUENCES OF AN
ERROR IN THE BID UPON WHICH A CONTRACT IS BASED, THE LAW IS WELL
SETTLED, HOWEVER, THAT THE GOVERNMENT MUST BE HELD TO THE SAME GENERAL
PRINCIPLES OF EQUITY AND FAIR PLAY IN DEALING WITH THOSE WHO CONTRACT
WITH IT AS ARE THE CONTRACTORS THEMSELVES.
SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS.
120, 162, 163, AND KEMP V. UNITED STATES, 38 F.SUPP. 568, 570. IN
OTHER WORDS, THE COURTS HAVE RECOGNIZED THAT THE SOVEREIGN IS NOT
ENTITLED TO TAKE UNCONSCIONABLE ADVANTAGE OF ITS SPECIAL STATUS AS A
GOVERNING BODY. SEE STATE OF CONNECTICUT V. F. H. MCGRAW AND COMPANY,
41 F.SUPP. 369, 374.
THE RECORD INDICATES THAT THE CONTRACTING OFFICER ISSUED THE AWARD TO
W. R. MADDY AND COMPANY, RELYING UPON THE OWNER'S CONFIRMATION---
WITHOUT REFERENCE TO HIS WORKSHEETS--- OF THE COMPANY'S BID, AT BOTH A
PREAWARD CONFERENCE ON NOVEMBER 1, 1957, AND IN A LETTER OF THE SAME
DATE. THERE APPEARS TO BE LITTLE, IF ANY, DOUBT CONCERNING THE
EXISTENCE OF A BONA FIDE ERROR IN THE PREPARATION OF THE CONTRACTOR'S
PROPOSAL AND IT WOULD BE INEQUITABLE TO ENFORCE THE CONTRACT.
IN VIEW OF ALL THE CIRCUMSTANCES, PARTICULARLY SINCE IT IS UNDERSTOOD
THAT THE CONTRACTOR HAS NOT EXECUTED THE CONTRACT PAPERS OR FURNISHED A
PERFORMANCE OR PAYMENT BOND, AND NO NOTICE TO PROCEED WITH THE WORK HAS
BEEN ISSUED, THE AWARD SHOULD BE CANCELED, AS RECOMMENDED BY THE
CONTRACTING OFFICER, WITHOUT LIABILITY TO THE COMPANY.
THE UNDATED ADMINISTRATIVE REPORT; THE CONTRACTING OFFICER'S
FINDINGS OF FACT, DATED NOVEMBER 27, 1957; THE RESPECTIVE AFFIDAVITS
AND ORIGINAL WORKSHEETS OF MR. JOHN E. GREENE AND OF MR. W. MADDY;
AND THE ABSTRACT OF BIDS ARE RETAINED. THE OTHER PAPERS ARE RETURNED.
B-135062, MAR. 19, 1958
TO MR. MICHAEL J. SENDLBECK:
REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 27, 1957,
CONCERNING YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE IN THE
CASE OF YOUR LATE SON, RICHARD H. SENDLBECK, WHO DIED APRIL 24, 1944,
WHILE SERVING AS AN ENLISTED MAN IN THE ARMY.
ON JUNE 13, 1944, THERE WAS RECEIVED IN OUR OFFICE A LETTER DATED
JUNE 9, 1944, FROM THE DEPARTMENT OF THE ARMY ENCLOSING YOUR APPLICATION
DATED MAY 19, 1944, FOR THE AMOUNT DUE THE ESTATE OF THE DECEDENT. YOU
CERTIFIED THAT YOUR LATE SON WAS NOT SURVIVED BY A WIDOW OR CHILD BUT
THAT HE WAS SURVIVED BY YOU AND HIS MOTHER, GIVING HER ADDRESS AS
BUFFALO, NEW YORK. IT APPEARING FROM INFORMATION FURNISHED BY THE
DEPARTMENT OF THE ARMY THAT THE ARREARS OF PAY DUE AMOUNTED TO $110.76,
OUR CLAIMS DIVISION BY SETTLEMENT DATED OCTOBER 7, 1944, ALLOWED YOU THE
SUM OF $55.38, REPRESENTING ONE-HALF OF THE AMOUNT DUE AND ADVISED YOU
THAT THE REMAINING ONE-HALF OF THE AMOUNT DUE WAS RESERVED FOR THE
MOTHER. LATER, BY LETTER DATED JANUARY 7, 1946, YOU MADE CLAIM FOR THE
BALANCE RESERVED FOR THE MOTHER, SAYING THAT SHE LEFT YOU AND YOUR SIX
CHILDREN, INCLUDING THE DECEDENT, MORE THAN FIVE YEARS PREVIOUSLY AND
THAT YOU DID NOT KNOW HER ADDRESS. BY LETTER DATED FEBRUARY 19, 1946,
THE CLAIMS DIVISION ADVISED YOU THAT UNDER THE ACT OF JUNE 30, 1906, 34
STAT. 750, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, 58 STAT. 795, THEN
GOVERNING THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF
DECEASED PERSONNEL OF THE ARMY, THE FATHER AND MOTHER WERE ENTITLED TO
EQUAL SHARES OF THE ESTATE, IN THE ABSENCE OF A CLAIM FROM A LEGAL
REPRESENTATIVE OF THE ESTATE, AND IF THE DECEDENT WAS NOT SURVIVED BY A
WIDOW OR CHILD.
IN YOUR PRESENT COMMUNICATION YOU REPEAT YOUR PREVIOUS STATEMENTS AS
TO THE MOTHER LEAVING YOU AND THE CHILDREN AND THAT YOU HAVE NOT BEEN
ABLE TO LOCATE HER. YOU ASK WHAT WILL BE DONE WITH THE BALANCE DUE AND
YOU EXPRESS THE BELIEF THAT THE DECEDENT'S PATERNAL GRANDMOTHER, HAVING
RAISED THE CHILDREN, IS ENTITLED TO THE AMOUNT DUE.
AS YOU WERE ADVISED IN THE LETTER OF FEBRUARY 19, 1946, THE ACT OF
JUNE 30, 1906, AS AMENDED BY THE ACT OF DECEMBER 7, 1944, PERMITTED THE
ACCOUNTING OFFICERS, WHERE NO DEMAND WAS PRESENTED BY A DULY APPOINTED
LEGAL REPRESENTATIVE OF A DECEDENT'S ESTATE AND HE WAS NOT SURVIVED BY A
WIDOW OR CHILD, TO ALLOW THE AMOUNT FOUND DUE TO THE FATHER AND MOTHER
IN EQUAL PARTS, UNLESS AT THE TIME OF SETTLEMENT EITHER THE FATHER OR
MOTHER BE DEAD, IN WHICH CASE THEN TO THE ONE SURVIVING. THE SAME IS
TRUE UNDER THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH AMENDED THE
ACTS OF JUNE 30, 1906, AND DECEMBER 7, 1944, AND NOW GOVERNS THE
SETTLEMENT OF CLAIMS FOR AMOUNTS DUE ESTATES OF DECEASED ARMY PERSONNEL
WHO DIED PRIOR TO JANUARY 1, 1956.
AS TO THE PAYMENT OF THE REMAINING ONE-HALF SHARE TO THE DECEDENT'S
GRANDMOTHER, YOU ARE ADVISED THAT A GRANDMOTHER DOES NOT COME WITHIN ANY
OF THE CLASSES OF HEIRS PERMITTED BY ANY OF THE CITED ACTS TO SHARE IN
THE DISTRIBUTION OF THE AMOUNT DUE THE ESTATE OF A DECEASED MEMBER OF
THE ARMY. WHILE THE GRANDMOTHER MAY HAVE STOOD IN THE RELATIONSHIP OF A
FOSTER PARENT OF YOUR LATE SON, SUCH STATUS DOES NOT ESTABLISH LEGAL
RELATIONSHIP OF PARENT AND CHILD OR OTHERWISE MAKE HER ELIGIBLE TO
RECEIVE FROM THE GOVERNMENT THE AMOUNT DUE HIS ESTATE. THE LAW HAS BEEN
THE SAME IN THAT RESPECT SINCE THE ACT OF JUNE 30, 1906, AND IT LONG HAS
BEEN HELD THAT A FOSTER PARENT IS NOT A LEGAL HEIR WITHIN THE MEANING OF
THAT ACT AS AMENDED, AND IS NOT ENTITLED TO THE AMOUNT DUE THE
DECEDENT'S ESTATE EXCEPT IN CERTAIN CASES WHERE IT IS AFFIRMATIVELY
ESTABLISHED THAT THE CLAIMING FOSTER PARENT HAD LEGALLY ADOPTED THE
DECEDENT AND BECAME HIS LEGAL HEIR. SINCE IT DOES NOT APPEAR THE THE
GRANDMOTHER LEGALLY ADOPTED YOUR LATE SON, THERE IS NO LEGAL BASIS FOR
ALLOWING HER THE BALANCE DUE AS ARREARS OF PAY.
FURTHERMORE, SINCE THE MOTHER HAS NOT MADE CLAIM FOR THE AMOUNT
RESERVED FOR HER, IT APPEARS THAT SHE COULD NOT NOW BE ALLOWED THAT
AMOUNT IN HER OWN RIGHT SINCE THE ACT OF OCTOBER 9, 1940, 54 STAT.
1061, PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES SHALL BE
FOREVER BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN
10 FULL YEARS AFTER SUCH CLAIM FIRST ACCRUED.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD BEFORE US, THERE IS
NO FURTHER ACTION WE MAKE TAKE IN THE MATTER AND THE BALANCE DUE MUST BE
RETAINED IN THE TREASURY OF THE UNITED STATES.
B-135176, MAR. 19, 1958
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1958, REQUESTING AN
ADVANCE DECISION CONCERNING THE PROVISIONS OF EXECUTIVE ORDER NO.
10582, DATED DECEMBER 17, 1954. THE RESOLUTION OF THIS QUESTION IS
NECESSARY AS A PREREQUISITE TO MAKING AN AWARD ON INVITATION TO BID NO.
8603 FOR WIRE AND CABLE, ISSUED BY THE BONNEVILLE POWER ADMINISTRATION
ON DECEMBER 7, 1957.
THIRTY-THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND
WERE OPENED ON JANUARY 8, 1958. THE SCHEDULE INCLUDED FIVE GROUPS OF
ITEMS OF VARIOUS TYPES OF WIRE AND CABLE, AND SPECIFIED THAT AWARD WOULD
BE MADE BY GROUP OR AS A WHOLE WHICHEVER PROVES TO BE IN THE BEST
INTEREST OF THE GOVERNMENT. NINETEEN OF THE BIDDERS SUBMITTED PRICES ON
GROUP I, WHICH INCLUDED 10 ITEMS FOR A TOTAL OF 178,000 FEET OF LEAD
SHEATHED, POLYCHLOROPRENE COVERED CONTROL CABLE.
THE LOWEST BID ON GROUP I WAS IN THE AMOUNT OF $77,152 F.O.B.
DESTINATION, SUBMITTED BY THE BRITISH INSULATED CALLENDER'S CABLES,
LTD., LONDON, ENGLAND, WITH A DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN
THIRTY DAYS. THE SECOND LOW BIDS WERE TIED IN THE AMOUNT OF $82,413
F.O.B. DESTINATION, NET, AND WERE SUBMITTED BY STUBBS ELECTRIC COMPANY,
PORTLAND, OREGON, AND GENERAL CABLE CORPORATION, PORTLAND, OREGON.
THE PROVISION ENTITLED "REGULATIONS APPLYING TO DETERMINATIONS UNDER
THE "BUY AMERICAN ACT" " ON PAGES 14 AND 15 OF THE SCHEDULE SPECIFIED
THAT FOR THE PURPOSE OF "BUY AMERICAN ACT" DETERMINATIONS, 6 PERCENT
WOULD BE ADDED TO BIDS OFFERING FOREIGN MATERIALS AND 12 PERCENT WOULD
BE ADDED IF THE LOWEST RESPONSIVE BIDDER OFFERING DOMESTIC MATERIALS
WOULD PRODUCE SUCH MATERIALS IN AREAS OF SUBSTANTIAL UNEMPLOYMENT AS
DETERMINED BY THE SECRETARY OF LABOR. BIDDERS WERE ALSO REQUIRED TO
SPECIFY THE POINT OF PRODUCTION OF MATERIAL BID UPON.
THE BRITISH INSULATED CALLENDER'S CABLES BID SPECIFIES THE POINT OF
PRODUCTION FOR GROUP I AS LEIGH, LANCS, ENGLAND, THEREBY ESTABLISHING AN
INTENT TO FURNISH MATERIALS OF FOREIGN ORIGIN. THE STUBBS ELECTRIC
COMPANY AND GENERAL CABLE CORPORATION BIDS EACH SPECIFY THAT THE GROUP I
ITEMS WILL BE PRODUCED AT THE GENERAL CABLE CORPORATION PLANT AT PERTH
AMBOY, NEW JERSEY.
ADDITION OF A 6 PERCENT DIFFERENTIAL TO THE BRITISH INSULATED
CALLENDER'S CABLES BID PRICE RESULTS IN AN EVALUATION AMOUNT OF
$80,963.31, WHICH IS LOWER THAN THE LOWEST RESPONSIVE DOMESTIC MATERIAL
BIDS OF $82,413. HOWEVER, IF THE LOWEST RESPONSIVE DOMESTIC BIDDER WILL
PRODUCE SUBSTANTIALLY ALL MATERIALS IN AREAS OF SUBSTANTIAL UNEMPLOYMENT
AND A DIFFERENTIAL OF 12 PERCENT IS ADDED TO THE FOREIGN BID THE
EVALUATION AMOUNT BECOMES $85,546.14, WHICH IS HIGHER THAN THE LOW
DOMESTIC BIDS.
THE NOVEMBER 1957 LISTING OF "AREAS OF SUBSTANTIAL LABOR SURPLUS" BY
THE U.S. DEPARTMENT OF LABOR WAS THE LATEST AVAILABLE LISTING ON THE BID
OPENING DATE. THAT LISTING DID NOT INCLUDE PERTH AMBOY, NEW JERSEY.
HOWEVER, SINCE IT IS KNOWN THAT THESE LISTINGS ARE PUBLISHED BIMONTHLY
THE DEPARTMENT OF LABOR WAS CONTACTED FOR THE LATEST RATING AND YOUR
DEPARTMENT WAS ADVISED THAT PERTH AMBOY CONTINUES TO BE RATED GROUP C,
NOT CONSIDERED AS AN AREA OF SUBSTANTIAL LABOR SURPLUS FOR "BUY AMERICAN
ACT" PURPOSES.
SUBSEQUENT TO BID OPENING A REPRESENTATIVE OF THE GENERAL CABLE
CORPORATION VERBALLY ADVISED THE BONNEVILLE POWER ADMINISTRATION THAT IF
AWARD IS MADE TO THEM OR TO THE STUBBS ELECTRIC COMPANY THEY WOULD
UNDERTAKE TO PRODUCE THE GROUP I ITEMS IN THEIR PLANT AT ROME, NEW YORK,
WHICH IS IN THE LABOR CLASSIFICATION AREA OF UTICA-ROME, NEW YORK,
DECLARED IN THE JANUARY 1958 DEPARTMENT OF LABOR LISTING TO BE AN AREA
OF SUBSTANTIAL LABOR SURPLUS. A WRITTEN REQUEST FOR ADDITION OF THE 12
PERCENT DIFFERENTIAL TO THE FOREIGN BID WAS MADE IN THEIR LETTER OF
JANUARY 28, 1958. THE NOVEMBER 1957 LISTING BY THE DEPARTMENT OF LABOR
INDICATES A GROUP C RATING FOR UTICA-ROME. THEREFORE, AT A TIME
SUBSEQUENT TO THE BID OPENING, BUT PRIOR TO AWARD, THE EFFECTIVE
CLASSIFICATION OF THIS AREA BY THE LABOR DEPARTMENT HAS CHANGED. TH
REGULATIONS OF THE DEPARTMENT OF THE INTERIOR PROVIDE THAT THE LATEST
AVAILABLE UNEMPLOYMENT REPORT OF THE DEPARTMENT OF LABOR AT THE TIME OF
AWARD WILL BE USED IN APPLYING "BUY AMERICAN ACT" PERCENTAGES.
THE GENERAL CABLE CORPORATION CONTENDS THAT UNDER THE PROVISIONS OF
EXECUTIVE ORDER NO. 10582, DATED DECEMBER 17, 1954, THEY HAVE THE RIGHT
AT ANY TIME PRIOR TO AWARD TO DESIGNATE THE POINT OF PRODUCTION SO AS TO
OBTAIN THE ORDER AND PLACE IT IN A LABOR DISTRESSED AREA. SINCE THE
UNEMPLOYMENT REPORT OF THE DEPARTMENT OF LABOR WHICH MUST BE USED IN
DETERMINING THE AWARD WAS NOT AVAILABLE ON THE DATE OF BID OPENING, THEY
FEEL THEY WERE PLACED IN A DISADVANTAGEOUS AND UNFAIR POSITION AT THE
TIME OF BID PREPARATION. IT IS STATED THAT THE PLANT AT ROME, NEW YORK,
HAS THE EQUIPMENT AND CAPACITY TO MEET ALL THE REQUIREMENTS OF THE BID
PROPOSAL.
THE ACT OF MARCH 3, 1933, 41 U.S.C. 10 (A/-/D), COMMONLY KNOWN AS THE
"BUY AMERICAN ACT," PROVIDES THAT PREFERENCE IN THE AWARD OF GOVERNMENT
CONTRACTS SHALL BE GIVEN TO DOMESTIC SUPPLIERS AS AGAINST FOREIGN
SUPPLIES, UNLESS THE DOMESTIC SUPPLIER'S BID IS UNREASONABLE OR THE
AWARD TO HIM WOULD BE INCONSISTENT WITH THE PUBLIC INTEREST. EXECUTIVE
ORDER NO. 10582 WAS DESIGNED TO BRING ABOUT THE GREATEST POSSIBLE
UNIFORMITY AMONG EXECUTIVE AGENCIES IN APPLYING THE "BUY AMERICAN ACT.'
TWO METHODS ARE PROVIDED IN THE ORDER FOR DETERMINING WHETHER THE
DOMESTIC SUPPLIER'S BID IS UNREASONABLE. UNDER METHOD APPLICABLE TO
THIS CASE THE BID OF A DOMESTIC SUPPLIER IS DEEMED UNREASONABLE IF IT IS
GREATER THAN 106 PERCENT OF THE BID OF THE FOREIGN SUPPLIER. ALSO,
SECTION 3 (C) OF EXECUTIVE ORDER NO. 10582 PROVIDES:
"SEC. 3. NOTHING IN THIS ORDER SHALL AFFECT THE AUTHORITY OR
RESPONSIBILITY OF AN EXECUTIVE AGENCY:
"/C) TO REJECT A BID OR OFFER TO FURNISH MATERIALS OF FOREIGN ORIGIN
IN ANY SITUATION IN WHICH THE DOMESTIC SUPPLIER OFFERING THE LOWEST
PRICE FOR FURNISHING THE DESIRED MATERIALS UNDERTAKES TO
PRODUCE SUBSTANTIALLY ALL OF SUCH MATERIALS IN AREAS OF SUBSTANTIAL
UNEMPLOYMENT, AS DETERMINED BY THE SECRETARY OF LABOR IN ACCORDANCE WITH
SUCH APPROPRIATE REGULATIONS AS HE MAY ESTABLISH AND DURING SUCH PERIOD
AS THE PRESIDENT MAY DETERMINE THAT IT IS IN THE NATIONAL INTEREST TO
PROVIDE TO SUCH AREAS PREFERENCE IN THE AWARD OF GOVERNMENT CONTRACTS.'
IN ISSUING EXECUTIVE ORDER NO. 10582, THE PRESIDENT ANNOUNCED THAT HE
HAD MADE A DETERMINATION THAT IT WAS IN THE NATIONAL INTEREST TO GIVE A
PREFERENCE TO DOMESTIC LOW BIDDERS WHO WILL PRODUCE SUBSTANTIALLY ALL OF
THE MATERIALS CONTRACTED FOR IN A LABOR SURPLUS AREA. THE EXECUTIVE
ORDER DID NOT SPECIFY HOW MUCH "PREFERENCE" OVER AND ABOVE THE INITIAL 6
PERCENT DIFFERENTIAL SHOULD BE APPLIED IN THOSE CASES WHERE THE LOWEST
DOMESTIC BIDDER IS TO MANUFACTURE THE GOODS IN A SURPLUS LABOR AREA.
THE DEPARTMENT OF THE INTERIOR REGULATIONS ISSUED PURSUANT TO SECTION 4
OF EXECUTIVE ORDER NO. 10582 PROVIDE THAT AN ADDITIONAL 6 PERCENT WILL
BE ADDED TO THE INITIAL 6 PERCENT DIFFERENTIAL IN THIS SITUATION. THESE
REGULATIONS, OF WHICH ALL BIDDERS WERE NOTIFIED, PROVIDE FURTHER THAT
THE LATEST UNEMPLOYMENT REPORT OF THE DEPARTMENT OF LABOR AVAILABLE AT
THE TIME THE AWARD IS MADE WILL BE USED IN DETERMINING IF THIS 12
PERCENT DIFFERENTIAL IS FOR APPLICATION.
THE LANGUAGE OF THE EXECUTIVE ORDER, QUOTED ABOVE, SEEMS TO BE
SUSCEPTIBLE OF THE INTERPRETATION THAT THE LOWEST DOMESTIC BIDDER MAY
AGREE, AFTER OPENING OF BIDS, TO PRODUCE THE MATERIALS BID UPON IN AREAS
OF SUBSTANTIAL UNEMPLOYMENT. THERE WAS NO SPECIFIC REQUIREMENT IN THE
INVITATION THAT THE BIDDER WOULD BE OBLIGATED TO PRODUCE THE MATERIA
AT THE FACTORY INDICATED IN THE BID, AND THE COST TO THE GOVERNMENT WAS
NOT AFFECTED IN ANY MANNER BY THE SELECTION OF THE POINT OF MANUFACTURE
SINCE BID PRICES WERE REQUIRED TO THE SUBMITTED F.O.B. DESTINATION.
ACCORDINGLY AND SINCE THE DEPARTMENT OF THE INTERIOR REGULATIONS
SPECIFICALLY PROVIDE THAT THE LATEST UNEMPLOYMENT REPORT OF THE
DEPARTMENT OF LABOR AVAILABLE AT THE TIME THE AWARD IS MADE WILL BE USED
IN DETERMINING THE AWARD, IT IS OUR VIEW THAT IN CIRCUMSTANCES SUCH AS
INVOLVED IN THIS CASE THE LOW DOMESTIC BIDDER MAY BE PERMITTED AFTER
OPENING TO DESIGNATE A POINT OF PRODUCTION OTHER THAN THAT NAMED IN ITS
BID IF SUCH SUBSTITUTED POINT IS WITHIN AN AREA OF SUBSTANTIAL LABOR
SURPLUS. THE INVITATIONS FOR BIDS ARE RETURNED AS REQUESTED.
B-135269, MAR. 19, 1958
TO MAJOR RALPH A. CASWELL:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF FEBRUARY 7 AND FEBRUARY
13, 1958, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 26, 1956,
WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $1,062.42, REPRESENTING THE
AMOUNT COLLECTED FROM YOU AS THE EXCESS COST OF THREE SHIPMENTS OF YOUR
HOUSEHOLD EFFECTS.
THE FIRST SHIPMENT WAS MADE INCIDENT TO ORDERS DATED NOVEMBER 3 AND
DECEMBER 3, 1952, WHICH RETURNED YOU TO THE UNITED STATES FROM DUTY IN
JAPAN AND ASSIGNED YOU TO DUTY AT CAMP SAN LUIS OBISPO, CALIFORNIA. THE
SHIPMENT WAS MADE IN TWO PARTS. A PORTION OF YOUR EFFECTS WAS SHIPPED
FROM JAPAN TO OAKLAND, CALIFORNIA, AND THEN TO SAN LUIS OBISPO. THE
BALANCE WAS SHIPPED FROM GOVERNMENT STORAGE AT MIRA LOMA, CALIFORNIA, TO
SAN LUIS OBISPO. THE TOTAL NET WEIGHT OF THE SHIPMENTS WAS 13,647
POUNDS. SINCE THE SHIPMENTS EXCEEDED YOUR WEIGHT ALLOWANCE YOU WERE
REQUIRED TO PAY $42.68 REPRESENTING THE EXCESS COST OF THE SHIPMENT FROM
MIRA LOMA TO SAN LUIS OBISPO.
THE JOINT TRAVEL REGULATIONS ESTABLISH FOR MILITARY PERSONNEL
GRADUATED WEIGHT LIMITATIONS (BASED ON RANK) ON HOUSEHOLD EFFECTS
SHIPPED AT GOVERNMENT EXPENSE. THE ALLOWANCE FOR THE RANK OF MAJOR IS
9,500 POUNDS. WHEN THE FIRST SHIPMENT WAS MADE, HOWEVER, THERE WAS IN
EFFECT SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1953,
66 STAT. 537, PLACING A WEIGHT LIMITATION OF 9,000 POUNDS ON ANY ONE
SHIPMENT OF HOUSEHOLD EFFECTS. FOR THAT REASON THE DEPARTMENT OF THE
ARMY USED A WEIGHT ALLOWANCE OF 9,000 POUNDS IN COMPUTING THE EXCESS
COST OF THAT SHIPMENT. THE ACT OF JULY 27, 1956, 70 STAT. 700, 701,
PROVIDES THAT ANY MEMBER OF THE ARMED FORCES WHO WAS TRANSFERRED TO A
DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES UNDER ORDERS WHICH
RELIEVED HIM FROM A DUTY STATION WITHIN THE UNITED STATES BEFORE JULY
10, 1952, AND WHO WAS TRANSFERRED BACK TO THE UNITED STATES UNDER AN
ORDER WHICH RELIEVED HIM FROM A DUTY STATION OUTSIDE THE CONTINENTAL
UNITED STATES AFTER JULY 9, 1952, AND BEFORE JULY 1, 1953, IS ENTITLED
TO TRANSPORTATION OF HIS HOUSEHOLD EFFECTS WITHOUT REGARD TO THE WEIGHT
LIMITATION OF SECTION 632 OF THE DEPARTMENT OF DEFENSE APPROPRIATION
ACT, 1953. IT FURTHER PROVIDES THAT ANY MEMBER WHO HAS MADE A REPAYMENT
TO THE UNITED STATES BECAUSE THE NET WEIGHT OF HIS HOUSEHOLD EFFECTS IN
SUCH TRANSFER EXCEEDED THE WEIGHT LIMITATION OF SECTION 632, MAY BE PAID
THE AMOUNT INVOLVED, IF OTHERWISE PROPER. SINCE YOU WERE ENTITLED UNDER
THE JOINT TRAVEL REGULATIONS, TO SHIP HOUSEHOLD EFFECTS WITHIN A WEIGHT
ALLOWANCE OF 9,500 POUNDS, THE EXCESS COST OF THE FIRST SHIPMENT WILL BE
RECOMPUTED ON THE BASIS OF THAT WEIGHT ALLOWANCE.
UNDER AUTHORITY OF ORDERS DATED SEPTEMBER 1, 1953, TRANSFERRING YOU
FROM CAMP SAN LUIS OBISPO, CALIFORNIA, TO FORT HOOD, TEXAS, 15,240
POUNDS OF HOUSEHOLD EFFECTS WERE SHIPPED TO YOUR NEW STATION BY VAN.
SINCE THE WEIGHT OF THE SHIPMENT EXCEEDED YOUR AUTHORIZED WEIGHT
ALLOWANCE, YOU WERE REQUIRED TO PAY THE EXCESS COST OF $681.64. AS TO
THIS SHIPMENT, YOU EXPRESS THE BELIEF THAT THE WEIGHT SHOWN ON THE BILL
OF LADING IS ERRONEOUS. YOU STATED THAT, AT THE TIME THE SHIPMENT WAS
MADE, CAMP SAN LUIS OBISPO WAS BEING INACTIVATED AND NUMEROUS SHIPMENTS
WERE BEING MADE LEADING TO CONFUSION AND ERROR; THAT YOUR PERSONAL
BAGGAGE AND PROFESSIONAL BOOKS AND EQUIPMENT WERE NOT SEPARATED FROM
YOUR HOUSEHOLD EFFECTS BUT WERE INCLUDED IN THE WEIGHT OF THE SHIPMENT;
AND THAT WHEN THE VAN ARRIVED AT YOUR RESIDENCE TO PICK UP YOUR
FURNITURE, SOME HOUSEHOLD EFFECTS OF ANOTHER PERSON WERE FOUND IN IT.
THE THIRD SHIPMENT WAS FROM KILLEEN, TEXAS, TO SAN LUIS OBISPO,
CALIFORNIA, INCIDENT TO ORDERS DATED AUGUST 20, 1954, TRANSFERRING YOU
FROM FORT HOOD, TEXAS, TO FORT HUACHUCA, ARIZONA. SINCE THE SHIPMENT
INVOLVED GREATER EXPENSE THAN SHIPMENT FROM THE OLD STATION TO THE NEW,
YOU WERE REQUIRED TO PAY THE EXCESS COST OF $338.10. YOU STATE THAT
THIS SHIPMENT WAS MOTIVATED BY THE LACK OF DESIRABLE HOUSING FOR YOUR
DEPENDENTS AT YOUR NEW STATION, AND CONTEND THAT A SAVINGS WAS
SUBSEQUENTLY REALIZED BY THE GOVERNMENT FROM THE SHIPMENT AS MADE
INASMUCH AS YOUR NEXT CHANGE OF STATION WAS TO TAIWAN, FREE CHINA.
THE STATUTORY AUTHORITY FOR TRANSPORTATION OF HOUSEHOLD EFFECTS OF
MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE
CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). THAT
SECTION PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH
RANKS, GRADES OR RATINGS, TO AND FROM SUCH LOCATIONS AS MAY BE
PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED
SERVICES SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS IN
CONNECTION WITH A CHANGE OF STATION. PARAGRAPH 8000-2 OF THE JOINT
TRAVEL REGULATIONS PROMULGATED PURSUANT TO AUTHORITY CONTAINED IN THAT
ACT, DEFINES HOUSEHOLD EFFECTS AS INCLUDING PERSONAL EFFECTS AND
PROFESSIONAL BOOKS. PARAGRAPH 8002 OF THE REGULATIONS PRESCRIBES THE
CONDITIONS UNDER WHICH PROFESSIONAL BOOKS MAY BE INCLUDED IN A SHIPMENT
OF HOUSEHOLD EFFECTS WITHOUT A CHARGE AGAINST THE WEIGHT ALLOWANCE OF
THE OWNER. THOSE CONDITIONS MAKE IT MANDATORY THAT THE WEIGHT OF THE
BOOKS BE SEPARATELY ESTABLISHED AND THAT DOCUMENTARY EVIDENCE OF SUCH
WEIGHT BE FURNISHED. WITH RESPECT TO THE SECOND SHIPMENT, THE RECORD
SHOWS THAT THE GOVERNMENT PAID FOR SHIPMENT OF 15,240 POUNDS OF YOUR
HOUSEHOLD EFFECTS. THAT IS THE WEIGHT SHOWN ON THE BILL OF LADING. IT
IS SUPPORTED BY A WEIGHT CERTIFICATE ISSUED BY A PUBLIC WEIGH MASTER AT
PASO ROBLES, CALIFORNIA, SHOWING A GROSS WEIGHT OF 42,170 POUNDS AND A
TARE WEIGHT OF 26,930 POUNDS. THERE IS NO INDICATION ON THE BILL OF
LADING OR OTHERWISE THAT PROFESSIONAL BOOKS WERE INCLUDED IN
THE SHIPMENT. IN THE ABSENCE OF SOME EVIDENCE FROM AN OFFICIAL
SOURCE ESTABLISHING THAT PROFESSIONAL BOOKS WERE SHIPPED AND THE EXACT
WEIGHT OF THOSE BOOKS, THERE IS NO LEGAL BASIS ON WHICH THE EXCESS COST
OF THAT SHIPMENT MAY BE REDUCED BY REASON OF THE INCLUSION OF
PROFESSIONAL BOOKS. ALSO, THERE APPEARS NO BASIS ON WHICH IT REASONABLY
MAY BE CONCLUDED THAT THE WEIGHT OF YOUR HOUSEHOLD EFFECTS AS SHIPPED
FROM SAN LUIS OBISPO WAS LESS THAN SHOWN ON THE BILL OF LADING OR THAT
SUCH WEIGHT INCLUDED HOUSEHOLD EFFECTS OTHER THAN YOUR OWN. THIS WOULD
BE TRUE EVEN IF IT WERE ESTABLISHED THAT ADDITIONAL MATERIAL WAS IN THE
VAN WHEN IT ARRIVED AT YOUR RESIDENCE IN SAN LUIS OBISPO. PRESUMABLY,
THE WEIGHT OF ANY MATERIAL THEN IN THE VAN WAS INCLUDED IN THE TARE
WEIGHT OF 26,930 POUNDS.
AS TO THE THIRD SHIPMENT, THE LAW AND REGULATIONS AUTHORIZE THE
SHIPMENT OF HOUSEHOLD EFFECTS, UPON CHANGE OF STATION WITHIN THE UNITED
STATES, FROM THE OLD STATION TO THE NEW OR BETWEEN OTHER POINTS AT NO
GREATER COST. WHEN SHIPMENT IS MADE TO A POINT INVOLVING GREATER COST,
IT IS DONE AS A MATTER OF CONVENIENCE TO THE MEMBER, IT BEING AGREED
UNDER THE TERMS OF THE APPLICATION FOR SHIPMENT THAT HE WILL PAY THE
EXCESS COST INCURRED. THE FACT THAT SHIPMENT IS MADE TO A PLACE WHICH
TURNS OUT TO BE NEARER TO A STATION SUBSEQUENTLY ASSIGNED, THAN IS THE
FIRST NEW STATION, HAS NOT BEEN REGARDED AS FURNISHING A PROPER BASIS
FOR REFUNDING ANY OF THE EXCESS COST COLLECTED FROM THE MEMBER.
ACCORDINGLY, AS TO THE SECOND AND THIRD SHIPMENTS THE SETTLEMENT OF
SEPTEMBER 26, 1956, IS SUSTAINED.
A SETTLEMENT FOR THE AMOUNT FOUND DUE IN CONNECTION WITH THE FIRST
SHIPMENT, WILL ISSUE IN DUE COURSE.
B-135315, MAR. 19, 1958
TO MRS. NAOMI E. STOKES, AUTHORIZED CERTIFYING OFFICER, BUREAU OF
MINES, DEPARTMENT OF THE INTERIOR:
ON FEBRUARY 20, 1958, YOU REQUESTED OUR DECISION UPON THE PROPRIETY
OF CERTIFYING FOR PAYMENT THE TRAVEL VOUCHER SUBMITTED IN FAVOR OF
PHILIP G. FREEMAN, WHEREIN THE TRAVELER CLAIMED $92.88 TO BE APPLIED
AGAINST A TRAVEL ADVANCE OF $325 WHICH HE OBTAINED TO DEFRAY EXPENSES OF
CHANGE OF OFFICIAL STATION FROM PERIORA, ILLINOIS, TO GRAND FORKS, NORTH
DAKOTA.
THE EMPLOYEE HAS FIVE DEPENDENTS, HIS WIFE AND FOUR SMALL CHILDREN
AGES 3, 2, 1, AND 5 WEEKS. THE TRAVEL WAS PERFORMED BY MEANS OF THE
EMPLOYEE'S PRIVATELY OWNED AUTOMOBILE. THE TRAVEL ORDERS AUTHORIZED USE
OF AN AUTOMOBILE AT 10 CENTS PER MILE LIMITED TO COST OF COMMON CARRIER,
INCLUDING PER DIEM OF EMPLOYEE, OF ALL TRAVELERS WHOSE EXPENSES THE
GOVERNMENT IS OBLIGATED TO PAY. TRANSPORTATION EXPENSES OF IMMEDIATE
FAMILY WAS AUTHORIZED. IN THE COMPARATIVE COST STATEMENT SHOWN ON THE
VOUCHER THE EMPLOYEE HAS CLAIMED THE FOLLOWING:
TABLE
2 1ST CLASS FARES ONE WAY $ 50.38
1 BEDROOM FROM PEORIA, ILLINOIS
TO ST. PAUL, MINNESOTA 12.75
1 BEDROOM FROM ST. PAUL, MINNESOTA
TO GRAND FORKS, NORTH DAKOTA 12.75
PER DIEM 1 1/4 DAYS AT $12.00 15.00
OTHER 2.00
-------
$ 92.88
THE INFORMATION SUBMITTED IN THIS CASE INDICATES THAT HAD TRAVEL BEEN
BY TRAIN IT WOULD HAVE INVOLVED DAY AND NIGHT TRAVEL, WITH A CHANGE OF
TRAINS PERMITTING DAYTIME ACCOMMODATIONS FOR PART OF THE TRIP.
YOUR LETTER STATES THAT THE VOUCHER IS BEING SUBMITTED FOR A DECISION
AS TO WHETHER OUR DECISION IN 33 COMP. GEN. 553, COULD BE APPLIED IN
THIS CASE TO THE EXTENT THAT THE TRAVELER COULD HAVE CLAIMED THE COST OF
A BEDROOM SUITE INSTEAD OF TWO LOWER BERTHS. THE DECISION IN 33 COMP.
GEN. 553 INVOLVED THE QUESTION OF WHETHER THE COST OF THREE LOWER BERTHS
FOR THE USE OF THE EMPLOYEE'S WIFE AND DAUGHTER, AGE 9, AND SON, AGE 11,
COULD BE ALLOWED IN THE COMPARATIVE COST BY DIRECT ROUTE, SINCE ONE
UPPER AND ONE LOWER BERTH WERE ACTUALLY USED BY THE INDIRECT ROUTE.
SECTION 3.6A (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
AUTHORIZES USE OF ONE STANDARD LOWER BERTH WHEN NIGHT TRAVEL IS
INVOLVED. FOR DAYTIME TRAVEL THE REGULATIONS PERMIT ONE SEAT IN A
SLEEPING OR PARLOR CAR. SECTION 4 OF THE EXECUTIVE ORDER NO. 9805
PROVIDES THAT TRANSPORTATION OF THE IMMEDIATE FAMILY OF AN EMPLOYEE
SHALL BE SUBJECT TO THOSE PROVISIONS OF THE TRAVEL REGULATIONS WHICH
RELATE TO TRANSPORTATION. CF. 25 COMP. GEN. 372, 375. WE UNDERSTAND,
HOWEVER, THAT THE PULLMAN COMPANY ORDINARILY REQUIRES CHILDREN UNDER 5
YEARS OF AGE TO BE ACCOMPANIED BY AN ADULT AND SLEEP WITH THE ADULT. NO
ADMINISTRATIVE REGULATIONS ARE REFERRED TO IN YOUR LETTER, THEREFORE, WE
ASSUME NO ADMINISTRATIVE REGULATIONS OR POLICY EXISTS CONCERNING THIS
MATTER.
WHERE, AS HERE, THE EMPLOYEE AND HIS WIFE AND FOUR CHILDREN (AGES 5
WEEKS, 1, 2, AND 3 YEARS) PERFORM TRAVEL BY AUTOMOBILE THE CONSTRUCTIVE
COST OF DAYTIME TRAVEL BY TRAIN IS TO BE COMPUTED BY
ALLOWING A SEAT IN A SLEEPING PARLOR CAR FOR EACH INDIVIDUAL. FOR
THE NIGHTTIME CONSTRUCTIVE TRAVEL COSTS A REASONABLE APPLICATION OF THE
TRAVEL REGULATIONS TO THIS CASE WHEN CONSTRUED TOGETHER WITH THE PULLMAN
COMPANY POLICY WOULD PERMIT USE OF THREE LOWER BERTHS.
THE CONSTRUCTIVE COST OF COMMON CARRIER TRAVEL FOR THE EMPLOYEE AND
HIS FAMILY SHOULD BE COMPUTED ACCORDINGLY, AND SHOULD INCLUDE THE
REQUIRED FIRST-CLASS FARES. SINCE THE TRAVEL WAS PERFORMED ON A WEEKDAY
USE OF THE "FAMILY PLAN" IN EFFECT AT TIME OF TRAVEL WOULD BE PROPER.
ALLOWABLE EXPENSES SHOULD BE LIMITED TO CONSTRUCTIVE COSTS OF THE COMMON
CARRIER TRAVEL, INCLUDING APPROPRIATE PER DIEM FOR THE EMPLOYEE, OR
MILEAGE FOR USE OF THE PRIVATELY OWNED AUTOMOBILE AT 10 CENTS PER MILE
PLUS APPLICABLE PER DIEM, WHICHEVER IS THE LESSER. WE SEE NO OBJECTION
TO APPROPRIATE ADJUSTMENT OF THE VOUCHER TO PERMIT PAYMENT OF THE TRAVEL
COSTS OF CONFORM WITH THE ABOVE.
B-135354, MAR. 19, 1958
TO MR. ROBERT D. GERMAN:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1958, IN EFFECT
REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 31, 1954, WHICH DISALLOWED
YOUR CLAIM FOR $109.59 REPRESENTING THE AMOUNT COLLECTED FROM YOU AS THE
EXCESS COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM SAN FRANCISCO,
CALIFORNIA, TO WASHINGTON, D.C.
THE SHIPMENT WAS MADE INCIDENT TO CHANGE OF STATION ORDERS DATED JULY
23, 1953, WHILE YOU WERE SERVING AS CHIEF HOSPITAL CORPS MAN, UNITED
STATES NAVY. THE SHIPMENT WAS MADE BY COMMERCIAL VAN ON A GOVERNMENT
BILL OF LADING, AND SINCE THE WEIGHT SHIPPED EXCEEDED YOUR AUTHORIZED
WEIGHT ALLOWANCE BY 775 POUNDS, YOU WERE REQUIRED TO PAY THE EXCESS COST
INCURRED IN ACCORDANCE WITH THE TERMS OF THE APPLICATION FOR SHIPMENT.
YOUR REQUEST FOR REVIEW IS BASED ON A COMPARISON OF THE INVENTORY OF THE
ITEMS IN THAT SHIPMENT WITH THE INVENTORY OF A PRIOR SHIPMENT AND A
SUBSEQUENT SHIPMENT. ALSO, YOU EXPRESS THE BELIEF THAT THE WEIGHT
BILLED INCLUDED THE EFFECTS OF SOME OTHER PERSON.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS
AND FOR SUCH RANKS, GRADES OR RATINGS AS MAY BE PRESCRIBED FOR THE
SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE
ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO AND FROM SUCH
LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE
SECRETARIES. PURSUANT TO THAT AUTHORITY OF LAW, THE JOINT TRAVEL
REGULATIONS PRESCRIBE WEIGHT ALLOWANCES FOR THE VARIOUS RANKS AND GRADES
AND PROVIDE FOR A PERCENTAGE INCREASE TO ALLOW FOR PACKING FOR THE MODE
OF TRANSPORTATION UTILIZED. THE COST OF SHIPPING HOUSEHOLD EFFECTS IN
EXCESS OF THE AUTHORIZED WEIGHT ALLOWANCE AS INCREASED BY THE ALLOWANCE
FOR PACKING IS FOR PAYMENT BY THE OWNER. IN YOUR CASE, YOU WERE
ENTITLED TO SHIP 4,500 POUNDS PLUS FIVE PERCENT FOR PACKING FOR VAN
SHIPMENT OR A TOTAL OF 4,725 POUNDS. THE DEPARTMENT OF THE NAVY PAID
THE CARRIER FOR PACKING AND SHIPPING 5,500 POUNDS OF YOUR HOUSEHOLD
EFFECTS BASED ON THE WEIGHT SHOWN ON THE BILL OF LADING SUPPORTED BY A
CERTIFICATE OF A PUBLIC WEIGHMASTER. THE EXCESS COST CHARGED TO YOU WAS
COMPUTED ON THE BASIS OF THAT WEIGHT. EVIDENCE INDICATING THAT MANY OF
THE ITEMS WERE INCLUDED IN OTHER SHIPMENTS OF YOUR HOUSEHOLD GOODS AND
THAT THE GOVERNMENT PAID FOR SHIPPING A LESSER WEIGHT ON THOSE OTHER
OCCASIONS DOES NOT ESTABLISH THAT THE WEIGHT BILLED FOR THE SHIPMENT
HERE INVOLVED WAS INCORRECT; THAT IT INCLUDED THE EFFECTS OF ANOTHER
INDIVIDUAL, OR THAT SOME OTHER WEIGHT, NOT MENTIONED BY YOU, WAS
CORRECT. THAT BEING SO, THE EVIDENCE SUBMITTED AFFORDS NO BASIS ON
WHICH ANY PART OF THE AMOUNT COLLECTED FROM YOU AS EXCESS COST MAY BE
REFUNDED.
ACCORDINGLY, THE SETTLEMENT OF MARCH 31, 1954, IS SUSTAINED.
THE ENCLOSURES WITH YOUR LETTER, HAVING BECOME A PART OF THE RECORD
ON WHICH DISPOSITION OF YOUR CLAIM WAS BASED, ARE REQUIRED TO BE
RETAINED HERE AND MAY NOT BE RETURNED AT YOUR REQUEST.
B-135401, MAR. 19, 1958
TO MR. A. J. GNOZA, JR., ASSISTANT CHIEF, SUPPLY DIVISION, VETERANS
ADMINISTRATION HOSPITAL:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 25, 1958, YOUR FILE
5107-134C, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH
RESPECT TO AN ERROR ALLEGED BY GEORGE D. EMERSON COMPANY, 51 MCGRATH
HIGHWAY, SOMERVILLE, MASSACHUSETTS, TO HAVE BEEN MADE IN ITS BID
SUBMITTED IN RESPONSE TO YOUR INVITATION FOR BIDS FOR FURNISHING CERTAIN
ARTICLES OF FOOD.
IN RESPONSE TO THE INVITATION, GEORGE D. EMERSON COMPANY SUBMITTED
ITS BID ON VARIOUS ITEMS, INCLUDING ITEM NO. 4, DESCRIBED IN THE
INVITATION AS FOLLOWS:
"COFFEE, INSTANT, PACKED IN AIRTIGHT 1 LB. CONTAINERS.'
THE BIDS RECEIVED WERE OPENED FEBRUARY 20, 1958, IN ACCORDANCE WITH
THE INVITATION, AND WERE AS FOLLOWS ON ITEM NO. 4:
CHART
GEORGE D. EMERSON COMPANY $0.98 PER POUND
SEEMAN BROTHERS 2.25 PER POUND
SUFFOLK GROCERY COMPANY 0.95 PER SIX-OUNCE
JAR.
BECAUSE OF THE DISPARITY BETWEEN THE LOW BID AND THE OTHER BIDS
RECEIVED, GEORGE D. EMERSON COMPANY WAS REQUESTED BY TELEPHONE TO VERIFY
ITS BID ON ITEM NO. 4 AND IT THEN ALLEGED AN ERROR IN THE BID. BY ITS
LETTER DATED FEBRUARY 24, 1958, IT STATED THAT THE BID OF $0.98 WAS
INTENDED TO APPLY TO A SIX-OUNCE GLASS JAR, MAKING A PRICE OF $2.61 PER
POUND; ALSO, THAT THE SIX-OUNCE JAR WAS THE LARGEST HANDLED BY IT.
IN VIEW OF THE FACTS AS REPORTED AND SHOWN BY THE FILE, IT MAY BE
REGARDED AS SATISFACTORILY ESTABLISHED THAT GEORGE D. EMERSON COMPANY
MADE A BONA FIDE ERROR IN ITS BID. AS SUGGESTED IN YOUR LETTER, THE
PROBABILITY OF ERROR WAS APPARENT WHEN THE BIDS WERE OPENED BECAUSE OF
THE GREAT DISPARITY BETWEEN THE BID OF GEORGE D. EMERSON COMPANY AND THE
OTHER BIDS RECEIVED. FOR THE REASONS ABOVE INDICATED AND SINCE THE
ERROR WAS ALLEGED BEFORE AWARD, THE BID OF GEORGE D. EMERSON
COMPANY MAY BE DISREGARDED.
THE BID AND THE BIDDER'S LETTER OF FEBRUARY 24, 1958, ARE RETURNED
HEREWITH.
B-54550, MAR. 19, 1958
TO FELTEX CORPORATION:
BY LETTER DATED FEBRUARY 12, 1958, THE ASSISTANT SECRETARY OF THE
ARMY (LOGISTICS) FORWARDED TO OUR OFFICE FOR CONSIDERATION YOUR LETTER
DATED AUGUST 9, 1957, WITH ENCLOSURES, IN REGARD TO YOUR CLAIM FOR
$87,268.03 UNDER COST PLUS A FIXED FEE CONTRACT NO. W-ORD-534, DATED
SEPTEMBER 17, 1941.
UNDER THE CONTRACT YOU AGREED TO FURNISH, THROUGH THE MANAGEMENT,
OPERATION, ETC., OF AN ORDNANCE PLANT LOCATED NEAR ROCK ISLAND,
ILLINOIS, TO THE DEPARTMENT OF THE ARMY, SUBSTANTIAL QUANTITIES OF A
CERTAIN TYPE OR TYPES OF FIBRE CONTAINERS FOR AMMUNITION, FOR WHICH YOU
WERE TO RECEIVE REIMBURSEMENT FOR EXPENDITURES, AS PROVIDED IN THE
CONTRACT, PLUS A FIXED FEE. THE CLAIM IS BASED ON YOUR ALLEGATION THAT
THE PART OF THE FIXED FEE, INVOLVING SUPPLEMENTS NOS. 4, 6 AND 7 TO
CONTRACT NO. W-ORD-534, SHOULD HAVE BEEN BASED ON 4 PERCENT AND NOT ON
THE 2 PERCENT PAID TO YOU SINCE THE QUANTITIES OF FIBRE CONTAINERS
ORDERED BY THE GOVERNMENT UNDER THESE SUPPLEMENTS NEVER REACHED THE
PROPORTIONS AGREED UPON. YOU FURNISH A COPY OF A LETTER DATED FEBRUARY
15, 1945, WHICH YOU STATE IS THE ORIGINAL CLAIM FILED BY YOU WITH THE
CONTRACTING OFFICER AT THAT TIME. ALSO, YOU STATE THAT, TO THE BEST OF
YOUR KNOWLEDGE, NO ACTION WAS EVEN TAKEN BY THE GOVERNMENT ON THAT
LETTER.
TO SET FORTH FURTHER DETAILS AS TO SUCH ADDITIONAL FACTS AS MIGHT BE
PERTINENT TO THE MERITS OF YOUR CLAIM WOULD NOT SEEM TO SERVE ANY USEFUL
PURPOSE SINCE IT APPEARS THAT THE SOLE ISSUE FOR DETERMINATION HERE
INVOLVES A QUESTION AS TO THE TIMELINESS OF THE FILING OF THE CLAIM.
WITH RESPECT THERETO, THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061,
PROVIDES, IN PERTINENT PART, 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 OR 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.
"SEC. 2. WHENEVER ANY CLAIM BARRED BY SECTION 1 SHALL BE RECEIVED IN
THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT,
WITH A COPY OF THIS ACT, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE
WITHOUT FURTHER COMMUNICATION.'
IT WILL BE OBSERVED THAT THE REFERRED-TO ACT REQUIRES CLAIMS TO BE
FILED IN THE GENERAL ACCOUNTING OFFICE AND BARS CONSIDERATION OF ANY
CLAIM NOT SO FILED WITHIN THE TEN YEAR PERIOD. EVEN IF THE RECEIPT OF
YOUR LETTER DATED FEBRUARY 15, 1945, BY THE DEPARTMENT OF THE ARMY COULD
BE DEFINITELY ESTABLISHED, THE FILING OF A CLAIM IN THE ADMINISTRATIVE
OFFICE DOES NOT MEET THE REQUIREMENTS OF THE STATUTE. WHILE IT IS
OBVIOUS THAT ANY CLAIM WHICH YOLU MIGHT HAVE HAD IN THIS MATTER FIRST
ACCRUED AS EARLY AS 1943, YOUR CLAIM WAS NOT RECEIVED IN THE GENERAL
ACCOUNTING OFFICE UNTIL FEBRUARY 14, 1958.
ACCORDINGLY, THE PROVISIONS OF THE FOREGOING ACT MAKE IT COMPULSORY
UPON OUR OFFICE TO DENY YOUR CLAIM AS NOT HAVING BEEN TIMELY FILED.
THE PAPERS FURNISHED BY YOU, WITH THE EXCEPTION OF YOUR LETTER DATED
AUGUST 9, 1957, TO THE ASSISTANT SECRETARY OF THE ARMY, ARE RETURNED
HEREWITH.
B-124652, MAR. 18, 1958
TO SECOND LIEUTENANT GEORGE FRITZ, MAC, RETIRED:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1958, AND TO YOUR
LETTERS OF DECEMBER 1 AND DECEMBER 2, 1957, RELATIVE TO YOUR CLAIM FOR
TERMINAL LEAVE PAY UPON RELEASE FROM ACTIVE DUTY JULY 8, 1944, AS SECOND
LIEUTENANT, ARMY OF THE UNITED STATES. SINCE A SIMILAR CLAIM WAS DENIED
BY OUR CLAIMS DIVISION BY LETTER DATED OCTOBER 23, 1946, YOUR PRESENT
LETTERS ADDRESSED TO THE FINANCE OFFICE, UNITED STATES ARMY, AND
FORWARDED HERE TO APPROPRIATE ACTION, WILL BE CONSIDERED AS A REQUEST
FOR RECONSIDERATION OF THE DENIAL OF YOUR CLAIM.
IT APPEARS THAT YOU WERE RELEASED FROM ACTIVE DUTY PURSUANT TO
PARAGRAPH 13 OF SPECIAL ORDERS NO. 169, DATED JULY 3, 1944, ARMY SERVICE
FORCES, EIGHTH SERVICE COMMAND, BROOKE GENERAL HOSPITAL,
FORT SAM HOUSTON, TEXAS, WHICH PROVIDED, INSOFAR AS MATERIAL HERE, A
FOLLOWS:
"13. LT COL HARVEY C. MAXWELL, 0224771, MC. BGH, AS OFFICER IN
CHARGE, AND T/5TH JOHN J. PEREIRA, 39684093, PFC KENNETH NICHOLSON,
39552805, AND PVT MARTIN LIEBERMAN, 39559461, DMD THIS STA, AS
ATTENDANTS, WILL TAKE CHARGE OF AND CONDUCT EACH OF THE FOLLOWING NAMED
PATIENTS FROM THIS HOSP TO THE PLACE INDICATED:
2ND LT GEORGE FRITZ, 0451622, MAC, MDRP, BGH, FSHT
TO: VETERANS ADMINISTRATION FACILITY, PALO ALTO, CALIF.
"UPON ARRIVAL IN PALO ALTO, CALIF., LT COL MAXWELL AND PVT LIEBERMAN
WILL DELIVER 2ND LT FRITZ TO THE CUSTODY OF THE MANAGER, VETERANS
ADMINISTRATION FACILITY, THEREAT, OBTAINING A RECEIPT FOR THE PATIENT
WHICH WILL BE MAILED WITHOUT DELAY TO THE CC THIS HOSP.
"EFFECTIVE ON DATE OF ARRIVAL IN PALO ALTO, CALIF., 8 JULY 1944, 2ND
LT FRITZ WILL BE RELIEVED FROM ACTIVE DUTY (RAD HQ 8SC, 27 JUN 44).'
YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 8, 1944, AND YOU WERE PAID
PAY AND ALLOWANCES THROUGH THAT DATE. YOU STATE THAT YOU WERE GRANTED
NO TERMINAL LEAVE AT THAT TIME AND THAT YOU HAVE BEEN DEPRIVED OF 90
DAYS TERMINAL LEAVE PAY. YOU ALSO INQUIRE WHETHER RETROACTIVE ORDERS
MAY NOW BE ISSUED AUTHORIZING SUCH LEAVE AND CASH BE PAID TO YOU FOR
SUCH LEAVE.
DURING THE PERIOD HERE CONCERNED (JULY 1944), THE LAWS PERTAINING TO
LEAVE OF ABSENCE OF OFFICERS OF THE ARMY PROVIDED AS FOLLOWS:
"SECTION 1265, REVISED STATUTES:
"OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY
ABSENT FROM DUTY AND AWAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN
ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT
EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF-PAY DURING
SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT
LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE
ABSENCE IS EXCUSED AS UNAVOIDABLE.'
ACT OF JULY 29, 1876, 19 STAT. 102:
"THAT AN ACT APPROVED MAY EIGHT, EIGHTEEN HUNDRED AND SEVENTY-FOUR,
IN REGARD TO LEAVE OF ABSENCE OF ARMY OFFICERS, BE, AND THE SAME IS
HEREBY, SO AMENDED THAT ALL OFFICERS ON DUTY SHALL BE ALLOWED, IN THE
DISCRETION OF THE SECRETARY OF WAR, SIXTY DAYS' LEAVE OF ABSENCE WITHOUT
DEDUCTION OF PAY OR ALLOWANCES: PROVIDED, THAT THE SAME BE TAKEN ONCE
IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE
EXTENDED TO THREE MONTHS, IF TAKEN ONCE ONLY IN THREE YEARS, OR FOUR
MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.'
THE LEAVE OF ABSENCE WHICH COULD HAVE BEEN GRANTED IN THE DISCRETION
OF THE SECRETARY OF WAR WAS PERMISSION TO BE ABSENT FROM DUTY AND
NECESSARILY APPLIED ONLY TO OFFICERS ON ACTIVE DUTY. IT NECESSARILY
FOLLOWS THAT AN OFFICER IS ENTITLED TO PAY AND ALLOWANCES ONLY WHEN ON
ACTIVE DUTY. YOU WERE RELEASED FROM ACTIVE DUTY ON JULY 8, 1944, AND
YOUR RIGHT TO PAY AND ALLOWANCES UNDER THE LAW CEASED ON THAT DATE. THE
FACT THAT IT MAY THEN HAVE BEEN POSSIBLE FOR THE SECRETARY OF WAR IN HIS
DISCRETION TO HAVE GRANTED YOU "TERMINAL LEAVE" GIVES YOU NO RIGHT TO
PAY AFTER RELEASE FROM ACTIVE DUTY ON JULY 8, 1944, IN LIEU OF LEAVE NOT
TAKEN OR GRANTED PRIOR THERETO WHILE ON ACTIVE DUTY. WE MAY NOT
UNDERTAKE TO REVIEW THE DISCRETIONARY ACTION OF THE SECRETARY OF WAR IN
NOT GRANTING "TERMINAL LEAVE.' IT SEEMS APPROPRIATE TO INFORM YOU THAT
WHILE THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AUTHORIZED
PAYMENT FOR ACCUMULATED LEAVE TO BE MADE TO ENLISTED MEMBERS OF THE
ARMED FORCES DISCHARGED PRIOR TO AUGUST 31, 1946, THE SAID ACT CONTAINS
NO SIMILAR PROVISION AUTHORIZING COMMISSIONED OFFICERS DISCHARGED OR
RELEASED TO INACTIVE DUTY PRIOR TO THAT DATE TO BE PAID FOR LEAVE EARNED
BUT NOT TAKEN PRIOR TO DISCHARGE OR RELEASE TO INACTIVE DUTY. ALSO, WE
KNOW OF NO AUTHORITY OF LAW UNDER WHICH ORDERS COULD NOW BE ISSUED SO AS
TO PROVIDE A BASIS FOR PAYMENT TO YOU FOR YOUR UNUSED ACCRUED LEAVE.
B-134500, MAR. 18, 1958
TO MR. W. E. PILCHER, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:
YOUR LETTER OF SEPTEMBER 16, 1957, REQUESTING A DECISION AS TO
WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING A CLAIM OF THE
FLIPPIN MATERIALS COMPANY, HOUSTON, TEXAS, FOR THE AMOUNT OF $25,415.64
UNDER CONTRACT NO. W-03-050-ENG-525, DATED NOVEMBER 3, 1947, HAS BEEN
REFERRED HERE BY THE CHIEF OF FINANCE.
THE CONTRACT WAS ENTERED INTO WITH SEVERAL COMPANIES DOING BUSINESS
AS A JOINT VENTURE UNDER THE NAME OF THE FLIPPIN MATERIALS COMPANY. THE
JOINT VENTURERS AGREED TO PRODUCE MATERIALS FOR CONCRETE AGGREGATE FROM
A GOVERNMENT-OWNED QUARRY SITE IN THE VICINITY OF FLIPPIN, ARKANSAS, AND
TO DELIVER, PROCESS AND PLACE THE FINISHED AGGREGATE IN DESIGNATED
STORAGE PILES ON THE RIGHT ABUTMENT AT BULL SHOALS DAM SITE, LOCATED ON
THE WHITE RIVER IN THE STATE OF ARKANSAS.
PAYMENT FOR SUCH SERVICES WAS TO BE MADE AT STIPULATED UNIT PRICES
SUBJECT TO THE PROVISIONS OF ARTICLE 29 OF THE CONTRACT, ENTITLED
"REDUCTION IN PRICES.' THE CONTRACT ALSO PROVIDES IN PARAGRAPH SC-14 FOR
PAYMENTS TO BE MADE BY THE GOVERNMENT IN THE FORM OF "PAYMENT FOR
PREPARATORY WORK.'
IT IS REPORTED THAT THE JOINT VENTURERS HAVE FILED SUIT IN THE COURT
OF CLAIMS FOR RECOVERY OF THE SUM OF $646,000, ALLEGING THAT CERTAIN
EXTRA WORK WAS REQUIRED BECAUSE THE GOVERNMENT-OWNED QUARRY FROM WHICH
THE MATERIALS FOR THE FINISHED AGGREGATE WERE TO BE OBTAINED WAS NOT AS
REPRESENTED. YOU STATE THAT SUCH OUTSTANDING CLAIM CONTAINS NO MATTERS
IDENTICAL TO THOSE BEING FORWARDED FOR ADVANCE DECISION. THE INSTANT
CLAIM COVERS AN ALLEGED BALANCE OF $24,902.72 DUE UNDER THE PAYMENT
PROVISIONS OF THE CONTRACT, PLUS $512.92, APPROVED FOR PAYMENT UNDER
MODIFICATION 5 OF THE CONTRACT WHICH RELATES TO THE HANDLING OF ARKANSAS
SEVERANCE TAX LITIGATION.
THE RECORD SHOWS THAT A CONSIDERABLE AMOUNT OF PREPARATORY WORK WAS
REQUIRED BEFORE COMMENCEMENT OF DELIVERIES OF THE FINISHED AGGREGATE.
DELIVERIES WERE COMMENCED IN MARCH 1951 AND COMPLETED IN OCTOBER 1952.
COMPUTED AT THE CONTRACT UNIT PRICES AND LUMP SUM AMOUNTS PAYABLE UNDER
CERTAIN CHANGE ORDERS, THE AMOUNT PAYABLE FOR THE MATERIAL PRODUCED
WOULD BE $10,386,935.86.
THAT AMOUNT WAS USED IN THE COMPUTATION OF THE ADJUSTMENT DUE THE
GOVERNMENT UNDER THE FORMULA PROVIDED IN ARTICLE 29 FOR A REDUCTION IN
PRICE IN THE EVENT THAT THE TOTAL CONTRACT PRICE EXCEEDED THE ACTUAL
COST OF PERFORMANCE PLUS 10 PERCENT.
ON THE BASIS OF COST FIGURES SUBMITTED BY THE JOINT VENTURE THE PRICE
ADJUSTMENT WOULD HAVE AMOUNTED TO A DECREASE OF $838,148.82, AND THE
SUBJECT VOUCHER REPRESENTS THE BALANCE DUE THE CONTRACTOR ON THAT BASIS.
YOU ARE IN DOUBT, HOWEVER, AS TO THE PROPRIETY OF CERTAIN ITEMS
INCLUDED IN THE CONTRACTOR'S COST STATEMENT, IN THE AGGREGATE AMOUNT OF
$105,863.60, ELIMINATION OF WHICH WOULD RESULT IN A PRICE REDUCTION OF
$891,080.62 AND AN INDEBTEDNESS OF THE CONTRACTOR TO THE GOVERNMENT FOR
AN OVERPAYMENT IN THE AMOUNT OF $27,516.16, COVERING A STATED BALANCE OF
$28,029.08 REMAINING DUE FROM THE REDUCTION IN THE CONTRACT PRICE, LESS
THE SUM OF $512.92 DUE THE JOINT VENTURERS UNDER MODIFICATION 5 OF THE
CONTRACT.
THE SUM OF $52,931.80 IN CONTROVERSY CONSISTS OF THE FOLLOWING ITEMS:
CHART
INTEREST PAID TO BANK $57,470.81
DAMAGE CLAIMS 25,000.00
LEGAL EXPENSES, ETC., ON SUIT AGAINST U.S. 11,881.78
----------
TOTAL $94,352.59 HOME OFFICE
CLAIMED THEREON (2 PERCENT) 1,887.05
----------
TOTAL $96,239.64 ADDITION FOR
ADJUSTED COST (10 PERCENT) 9,623.96
---------- POSSIBLE OVERSTATEMENT OF
ADJUSTED COST $105,863.60 RESULTING UNDERSTATEM
PERCENT) 52,931.80
IN REGARD TO THE INCLUSION OF INTEREST AS AN ITEM OF COST, YOU REFER
TO THE NEGOTIATIONS LEADING TO THE INCLUSION OF THE REDUCTION IN PRICE
CLAUSE OF THE CONTRACT (ARTICLE 29) AND THE CONTRACT PROVISIONS
CONCERNING PAYMENT FOR PREPARATORY WORK (PARAGRAPH SC-14). YOU STATE
THAT $2,400,250 WAS PAID TO THE JOINT VENTURE AS PREPARATORY PAYMENTS IN
THE VERY EARLY STAGES OF THE CONTRACT AND THAT IT WAS BELIEVED THAT THE
INCLUSION OF PARAGRAPH SC-14 IN THE CONTRACT WOULD ALLOW SUFFICIENT
FUNDS TO FINANCE THE JOB. THE RECORD FURNISHED CONTAINS NOTHING TO SHOW
THAT THIS WAS THE CONTRACTOR'S UNDERSTANDING. THE PROPOSAL WHICH
FURNISHED THE BASIS FOR ARTICLE 29 WAS STATED IN THE CONTRACTOR'S LETTER
OF OCTOBER 27, 1947, WHICH CONTAINED THE STIPULATION "* * * IT WILL BE
NECESSARY TO ARRIVE AT A METHOD OF DETERMINING COST AND OUR ONLY
RESERVATIONS IN THAT CONNECTION ARE THAT THE CONTRACTOR NOT BE OBLIGATED
TO HAVE ANY CAPITAL TIED UP IN PLANT AND EQUIPMENT AT THE CONCLUSION OF
THE WORK AND THAT PROPER ALLOWANCE BE MADE FOR INDIRECT COSTS AND HOME
OFFICE OVERHEAD.' INTEREST ON BORROWED CAPITAL IS AN INDIRECT COST, AND
WHILE IT HAS CONSISTENTLY BEEN THE POSITION OF THE GOVERNMENT THAT
INTEREST IS NOT AN ALLOWABLE ITEM OF COST UNDER COST-TYPE GOVERNMENT
CONTRACTS--- SEE, FOR EXAMPLE, TD 4904 AND TD 5000, AND THE WAR-NAVY
DEPARTMENTS' "EXPLANATION OF PRINCIPLES FOR DETERMINATION OF COSTS,
APRIL, 1942"--- WE CONCLUDE THAT THE PROVISIONS OF ARTICLE 29, READ
AGAINST THE BACKGROUND OF THE ABOVE-QUOTED STATEMENT AND IN THE LIGHT OF
THE DETERMINATIONS OF COSTS BY THE ACCOUNTING FIRM CHOSEN IN ACCORDANCE
WITH THE CONTRACT AND THE ACCEPTANCE OF THOSE DETERMINATIONS BY THE
CONTRACTING OFFICER, ARE SUCH AS TO AUTHORIZE THE RECOGNITION OF
INTEREST AS AN ELEMENT OF COST TO BE CONSIDERED IN COMPLETING THE COSTS
OF THE CONTRACT FOR THE PURPOSES OF THAT ARTICLE.
WE DO NOT HAVE FULL INFORMATION CONCERNING THE JOINT VENTURE'S
COMPUTATION OF THE REDUCTION IN CONTRACT PRICE. HOWEVER, IN ONE OF THE
FINANCIAL STATEMENTS PREPARED BY THE FIRM OF ERNST AND ERNST, CERTIFIED
PUBLIC ACCOUNTANTS, RELATING TO THE JOINT VENTURE, IT IS SET FORTH THAT
INTEREST OF $22,792.90 WAS CHARGED TO "OZARK DAM CONSTRUCTORS," AND THAT
THE JOINT VENTURE WAS CHARGED INTEREST OF $6,009.95 BY "OZARK DAM
CONSTRUCTORS.' IF THE NET AMOUNT OF $16,782.95 HAS NOT BEEN INCLUDED IN
THE SUM OF $1,082,975.37, DEDUCTED AS "OTHER INCOME" ON THE JOINT
VENTURE'S STATEMENT OF ACCOUNT, IT IS APPARENT THAT THE SUM OF
$16,782.95 SHOULD NOW BE DEDUCTED FROM THE CLAIMED INTEREST COST OF
$57,470.81.
WITH RESPECT TO THE CLAIMED COST OF $25,000, WE FIND NO PROPER BASIS
FOR THE CONCLUSION THAT, BECAUSE THE JOINT VENTURE'S INSURANCE COMPANY
UNDERTOOK TO DEFEND AND WAS SUCCESSFUL IN DEFENDING A SECOND GROUP OF
SUITS FILED AGAINST THE JOINT VENTURERS, IT HAS, THEREFORE, ADMITTED
LIABILITY UNDER THE INSURANCE POLICY. THE RECORD APPEARS REASONABLY TO
ESTABLISH THAT THE QUESTION OF SUCH LIABILITY WAS STILL IN DISPUTE WHEN
THE INSURANCE COMPANY AGREED TO FURNISH THE NECESSARY LEGAL SERVICES FOR
DEFENSE OF THE SECOND GROUP OF CASES. IN THE CIRCUMSTANCES, WE PERCEIVE
NO OBJECTION TO TREATMENT OF THE SUM OF $25,000, PAID IN SETTLEMENT OF
THE EARLIER SUITS, AS AN ALLOWABLE ITEM OF COST IN THE PERFORMANCE OF
THE GOVERNMENT CONTRACT FOR THE PURPOSE OF DETERMINING THE PRICE
REDUCTION.
CONCERNING THE CLAIMED COST OF $11,881.78, IT IS OUR OPINION 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.
YOU ARE ACCORDINGLY ADVISED THAT ON THE PRESENT RECORD PAYMENT MAY BE
MADE OF THE BALANCE DETERMINED TO BE DUE AFTER ELIMINATION OF THE ITEM
OF LEGAL EXPENSES OF $11,881.78 AND ADJUSTMENT OF THE INTEREST CHARGE,
IF REQUIRED, TO REFLECT THE PORTION OF THE INTEREST CHARGED TO OZARK DAM
CONSTRUCTORS.
B-135133, MAR. 18, 1958
TO COMMANDER OIL CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1958, WITH
ENCLOSURE, WHICH IS ACCEPTED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT
DATED DECEMBER 11, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR
$120.05 UNDER FEDERAL SUPPLY SERVICE CONTRACT NO. GS-02S-11179.
UNDER THE CONTRACT, ENTERED INTO BY YOU ON JUNE 19, 1956, WITH THE
GENERAL SERVICES ADMINISTRATION, YOU AGREED TO FURNISH TO THE VARIOUS
AGENCIES OF THE UNITED STATES GOVERNMENT LOCATED IN REGION NO. 2, SUCH
TYPES AND QUANTITIES OF FUEL OIL, KEROSENE AND SOLVENTS AS MAY BE
REQUIRED BY THOSE AGENCIES DURING THE PERIOD FROM AUGUST 1, 1956,
THROUGH JULY 31, 1957, AT CERTAIN PRICES AS SPECIFIED IN THE CONTRACT.
IT APPEARS THAT THE SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL,
NORTHPORT, LONG ISLAND, NEW YORK, ORDERED CERTAIN QUANTITIES AND TYPES
OF FUEL OIL UNDER THE CONTRACT DURING FEBRUARY 1957. IT APPEARS FURTHER
THAT ON OR ABOUT FEBRUARY 1, 1957, THERE WAS A STRIKE OF TUG BOAT
OPERATORS IN THE NEW YORK AREA, WHICH INTERFERED WITH THE DELIVERY OF
OIL INTO NEW YORK CITY. BY REASON OF SUCH STRIKE YOU ALLEGE THAT IT
BECAME NECESSARY TO TRANSPORT THE FUEL OIL BY TRUCK FROM LINDEN, NEW
JERSEY, TO THE VETERANS ADMINISTRATION HOSPITAL AT NORTHPORT IN ORDER TO
FILL THE HOSPITAL'S ORDERS UNDER THE CONTRACT AND, IN VIEW OF THE
REQUIRED OVERTIME OF THE TRUCK DRIVERS, INSURANCE, PAYROLL TAXES, ETC.,
YOU CLAIMED AN ADDITIONAL AMOUNT OF $0.015 PER GALLON--- LATER REDUCED
TO $0.01 PER GALLON--- ON 12,005 GALLONS OF THE FUEL OIL DELIVERED, OR A
TOTAL OF $120.05.
IN THE LETTER OF JANUARY 21, 1958, YOU STATE, AS THE BASIS OF YOUR
REQUEST FOR REVIEW, THAT YOU NEVER HAD GUARANTEED UNINTERRUPTED FUEL
DELIVERIES DURING THE PROGRESS OF THE STRIKE, AS STATED IN THE
SETTLEMENT OF DECEMBER 17, 1957. IN ADDITION, YOU FORWARDED TABULATED
SHEETS SHOWING TRANSPORTATION SCHEDULES DURING THE PERIOD FROM FEBRUARY
8, 1957, THROUGH MARCH 13, 1957, TO INDICATE THE FUEL OIL THAT WAS
TRUCKED FROM LINDEN, NEW JERSEY, TO YOUR PLANT DURING THE STRIKE.
REGARDLESS OF THE OTHER ASPECTS OF THE CLAIM, SUCH AS YOUR DENIAL OF
THE REPORTED GUARANTEE OF UNINTERRUPTED DELIVERIES AND THE MATTER OF
PROOF THAT THE FUEL OIL WAS TRUCKED FROM LINDEN, NEW JERSEY, TO YOUR
PLANT DURING THE STRIKE, THE FACT REMAINS THAT THE BASIC ISSUE OF YOUR
CLAIM MUST BE RESOLVED AROUND THE SPECIFIC TERMS OF THE CONTRACT ITSELF.
IN THIS CONNECTION, AN EXAMINATION OF CONTRACT NO. GS-02S-11179 FAILS
TO REVEAL ANY LANGUAGE, IN EITHER THE GENERAL OR THE SPECIAL PROVISIONS
OF THE CONTRACT OR IN ANY OTHER PART THEREOF WHICH MAY BE INTERPRETED AS
AUTHORIZING, EITHER EXPRESSLY OR BY IMPLICATION, AN INCREASE IN THE
CONTRACT PRICE BASED UPON ADDITIONAL EXPENSES FOR TRUCKING SERVICES MADE
NECESSARY BY REASON OF A TUG BOAT OPERATORS' STRIKE. HENCE, IT FOLLOWS
THAT THERE APPEARS NO LEGAL BASIS UPON WHICH FAVORABLE CONSIDERATION MAY
BE ACCORDED YOUR CLAIM BY OUR OFFICE AND, IN FACT, THERE CANNOT READILY
BE PERCEIVED THE CONTRACTUAL BASIS UPON WHICH YOU RELY IN THIS RESPECT.
WHILE NOT PARTICULARLY PERTINENT, WE ALSO MIGHT ADVISE THAT EVEN IF
YOUR CLAIM WAS OTHERWISE FOR ALLOWANCE, PROOF OF THE TRUCKING SERVICES
FOR DELIVERY OF THE FUEL OIL TO THE NORTHPORT HOSPITAL DOES NOT APPEAR
TO BE SUBSTANTIATED BY THE TRANSPORTATION SCHEDULES FURNISHED BY YOU.
NOTWITHSTANDING THAT YOUR CLAIM WAS BASED ENTIRELY ON THE DELIVERY OF
NO. 4 FUEL OIL, BOTH PURCHASE ORDERS NOS. 1843 AND 2045, UPON WHICH THE
CLAIM IS BASED, SPECIFY ITEM NO. 379 AND NO. 5 FUEL OIL. A REFERENCE TO
ITEM NO. 379 IN CONTRACT NO. GS-02S-11179 SHOWS THIS ITEM TO CALL FOR NO
5 FUEL OIL AND THE SCHEDULES FURNISHED BY YOU DO NOT SHOW TRANSPORTATION
OF THE NO. 5 OIL.
B-135192, MAR. 18, 1958
TO COLONEL WILLIAM A. MARTIN, USAF:
YOUR LETTER OF JANUARY 20, 1958, REQUESTS REVIEW OF OUR SETTLEMENT
DATED NOVEMBER 27, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE
AMOUNT PAID BY YOU TO THE GOVERNMENT AS EXCESS COST FOR SPECIAL PACKING
OF YOUR HOUSEHOLD EFFECTS INCIDENT TO THEIR SHIPMENT FROM ALTUS,
OKLAHOMA, TO IZMIR, TURKEY.
BY ORDERS DATED JUNE 18, 1956, YOU WERE TRANSFERRED FROM DUTY AT
ALTUS AIR FORCE BASE, OKLAHOMA, TO DUTY AT IZMIR, TURKEY. PURSUANT TO
YOUR APPLICATION, IN WHICH YOU AGREED TO PAY ALL COSTS NOT AUTHORIZED BY
REGULATIONS, YOUR HOUSEHOLD EFFECTS WERE PACKED FOR OVERSEAS SHIPMENT.
THE GOVERNMENT PAID FOR THIS SERVICE. IT ALSO PAID THE SUM OF $104.75
FOR SPECIAL PACKING AND ADDITIONAL LABOR CHARGES. EXCEPTION WAS TAKEN
TO THIS PAYMENT FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS PROVIDE
THAT SPECIAL OR ACCESSORIAL SERVICES WHICH MAY INVOLVE ADDITIONAL
EXPENSE ARE NOT AUTHORIZED AT GOVERNMENT EXPENSE AND MUST BE PAID BY THE
MEMBER. YOU AGREE THAT THE REGULATIONS REQUIRE THAT THE MEMBER PAY FOR
SPECIAL SERVICES. YOU CONTEND, HOWEVER, THAT THESE SERVICES WERE NOT
FURNISHED. IN SUPPORT OF YOUR CLAIM YOU HAVE FURNISHED AFFIDAVITS
SIGNED BY YOU AND YOUR WIFE IN WHICH IT IS STATED THAT NO REQUEST FOR
SPECIAL HANDLING OR PACKING WAS MADE UPON THE CONTRACTOR.
OUR OFFICE, OF COURSE, HAS NO FIRST-HAND INFORMATION IN THE MATTER
AND OF NECESSITY MUST RELY UPON THE FINDINGS OF FACT AS MADE BY THE
ADMINISTRATIVE AGENCY. IN THIS CONNECTION, IT HAS LONG BEEN THE
ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES
WHERE THERE IS A DISPUTE BETWEEN THE CLAIMANT AND THE ADMINISTRATIVE
AGENCY AS TO THE FACTS, TO ACCEPT THE STATEMENT OF FACTS AS
ADMINISTRATIVELY REPORTED IN THE ABSENCE OF SUFFICIENT EVIDENCE TO
OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 3 COMP. GEN. 51;
16 ID. 325; ID. 414; 20 ID. 578.
THE CONTRACTOR WAS PAID THE SUM OF $104.75 FOR ADDITIONAL PACKING AND
LABOR ON THE BASIS OF HIS INVOICE WHICH HE CERTIFIED WAS TRUE AND JUST
IN ALL RESPECTS. THE CHARGES AS SHOWN ON HIS INVOICE WERE VERIFIED BY
THE TRANSPORTATION SERVICE OFFICER, ALTUS AIR FORCE BASE, OKLAHOMA, WHO
REPORTED THAT HE WAS PRESENT DURING PART OF THE PACKING OPERATION. IN
THESE CIRCUMSTANCES, THE CERTIFICATES FURNISHED BY YOU MAY NOT BE
ACCEPTED AS SUFFICIENT TO OVERCOME THE VERIFIED OFFICIAL REPORT OF THE
TRANSPORTATION OFFICER THAT ADDITIONAL SERVICES WERE FURNISHED YOU BY
THE CONTRACTOR.
B-135207, MAR. 18, 1958
TO MR. JAMES E. BIE:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 3, 1957,
REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM FAMILY
ALLOWANCE PAYMENTS MADE TO YOUR PARENTS FOR THE PERIOD FROM MARCH 1,
1946, THROUGH JUNE 30, 1947. THIS MATTER WAS THE SUBJECT OF OUR LETTER
DATED NOVEMBER 18, 1957, DW-Z-797237-CSR-5, TO HONORABLE ALEXANDER
WILEY, UNITED STATES SENATE. IT IS PRESUMED THAT THE LETTER, OR A COPY,
WAS FORWARDED TO YOU.
ON MARCH 1, 1946, WHILE SERVING AS AN ENLISTED MAN IN THE UNITED
STATES ARMY, YOU APPLIED FOR FAMILY ALLOWANCE BENEFITS FOR YOUR PARENTS
AND YOU YOUNGER BROTHER. AN INITIAL FAMILY ALLOWANCE PAYMENT OF $79,
FOR THE MONTH OF FEBRUARY 1946, WAS MADE ON MARCH 6, 1946, TO YOUR
MOTHER, MRS. MARGARET E. BIE, AS PAYEE, FOR SUCH DEPENDENTS. THE SUM
SO PAID INCLUDED $68 FOR YOUR FATHER AND MOTHER AND $11 FOR YOUR MINOR
BROTHER. IT APPEARS THAT ON MARCH 21, 1946, THE REGULAR FAMILY
ALLOWANCE WAS AUTHORIZED, EFFECTIVE MARCH 1, 1946, IN BEHALF OF YOUR
PARENTS BUT NOT FOR YOUR BROTHER. IT FURTHER APPEARS, HOWEVER, THAT ON
APRIL 4, 1946, THE OFFICE OF DEPENDENCY BENEFITS, ON ASF ODB FORM 705,
ADVISED THE COMMANDING OFFICER, 1612 SCU RRC, FORT SHERIDAN, ILLINOIS,
THAT THE FAMILY ALLOWANCE FOR YOUR PARENTS AND BROTHER HAD BEEN
DISAPPROVED FOR THE REASON THAT ,DEPENDENCY DOES NOT EXIST.' AN
EXAMINATION OF VOUCHER NO. 35366, JUNE 1946 ACCOUNTS OF F. S. STRATTON,
WHICH COVERED YOUR PAY FOR MAY 1946, SHOWS THAT AS A RESULT OF SUCH
NOTICE YOU WERE CREDITED WITH THE SUM OF $44, REPRESENTING FAMILY
ALLOWANCE DEDUCTION OF $22 A MONTH MADE FROM YOUR PAY FOR MARCH AND
APRIL 1946, AND THAT THE AMOUNT OF $79 WAS DEDUCTED, FROM AMOUNTS
OTHERWISE DUE YOU, TO EFFECT COLLECTION OF THE AMOUNT OF THE INITIAL
FAMILY ALLOWANCE PAYMENT. UPON SUBSEQUENT RECONSIDERATION, HOWEVER, THE
FAMILY ALLOWANCE FOR YOUR PARENTS WAS APPROVED, EFFECTIVE MARCH 1, 1946,
AND PAYMENTS AT THE APPLICABLE RATE OF $68 A MONTH WERE AUTHORIZED.
APPROVAL OF THE FAMILY ALLOWANCE BENEFITS FOR YOUR MINOR BROTHER WAS
WITHHELD PENDING RECEIPT OF HIS BIRTH CERTIFICATE. IT APPEARS THAT THE
BIRTH CERTIFICATE WAS NEVER FURNISHED AND THAT HIS ENTITLEMENT WAS NEVER
ESTABLISHED.
THE RECORDS SHOW THAT 16 FAMILY ALLOWANCE CHECKS, EACH FOR $68,
COVERING THE FAMILY ALLOWANCE FOR YOUR PARENTS FOR THE PERIOD FROM MARCH
1, 1946, TO JUNE 30, 1947, WERE ISSUED TO YOUR MOTHER MRS. MARGARET E.
BIE, AS PAYEE, AND THAT SHE RECEIVED AND CASHED THE CHECKS. SINCE NO
AMOUNTS WERE WITHHELD FROM YOUR PAY TO COVER YOUR REQUIRED CONTRIBUTION
OF $22 A MONTH TO SUCH FAMILY ALLOWANCE PAYMENTS, AN OVERPAYMENT TO YOU
IN THE AMOUNT OF $352 WAS INDICATED. IT WAS CONSIDERED, HOWEVER, THAT
SINCE A MONTHLY FAMILY ALLOWANCE OF $68 FOR YOUR PARENTS WAS APPROVED,
THEY WERE ENTITLED TO $68 OF THE INITIAL FAMILY ALLOWANCE AND SINCE YOU
WERE NOT REQUIRED TO CONTRIBUTE ANY PART OF SUCH PAYMENT ONLY $11,
REPRESENTING THE PART OF THE INITIAL FAMILY ALLOWANCE PAID FOR YOUR
MINOR BROTHER, SHOULD HAVE BEEN COLLECTED FROM YOU. ON SUCH BASIS, THE
AMOUNT OF YOUR INDEBTEDNESS WAS REDUCED FROM $352 TO $284.
YOU SAY THAT IF THE FAMILY ALLOWANCE WAS PROPERLY PAID TO YOUR
PARENTS THROUGH JUNE 30, 1947, IT SEEMS TO YOU THAT IT SHOULD HAVE
CONTINUED THROUGH SEPTEMBER 22, 1947, THE DATE OF YOUR DISCHARGE, AND
THAT YOUR PARENTS ARE ENTITLED TO AN ADDITIONAL $185 (2 MONTHS AND 22
DAYS AT $68 A MONTH) AND THAT THE CHARGES AGAINST YOU SHOULD BE
INCREASED BY $60 (2 MONTHS AND 22 DAYS AT $22 A MONTH).
WITH OUR LETTER DATED NOVEMBER 18, 1957, WE SENT TO SENATOR WILEY
PHOTOSTATIC COPIES OF THE PERTINENT PARTS OF 13 VOUCHERS COVERING
PAYMENTS MADE TO YOU FOR THE PERIOD FROM FEBRUARY 27, 1946, TO SEPTEMBER
22, 1947. YOU REFER TO VOUCHER NO. 5634, JANUARY 1947 ACCOUNTS OF B. B.
CALLAWAY, WHICH COVERED YOUR PAY FOR THE PERIOD FROM SEPTEMBER 1 TO
DECEMBER 31, 1946, AND TO VOUCHER NO. 7573, FEBRUARY 1947 ACCOUNTS OF
THE SAME DISBURSING OFFICER, COVERING YOUR PAY FOR JANUARY 1947, AND SAY
THAT IT IS QUITE OBVIOUS THAT THOSE VOUCHERS WERE NOT SIGNED BY YOU AND
THAT THE INITIALS IN THE RIGHT COLUMN DO NOT BEAR ANY RESEMBLANCE TO
YOUR WRITING. YOU SAY, FURTHER, THAT IF YOUR SUSPICIONS ARE CORRECT,
YOU NEVER RECEIVED THE AMOUNTS OF $359.60 AND $89.50 SHOWN AS PAID ON
THOSE VOUCHERS AND THAT, THEREFORE, THE SUM OF $449.10 IS STILL DUE YOU.
YOU REFER, ALSO, TO VOUCHER NO. 1336, AUGUST 1947 ACCOUNTS OF GEORGE H.
ZIMMER, WHICH SHOWS THAT YOU WERE PAID $100 AS FIRST INSTALLMENT OF $300
DUE YOU AS MUSTERING-OUT PAY. SINCE YOU WERE PAID NO MUSTERING-OUT PAY
ON VOUCHER NO. 4522, SEPTEMBER 1947 ACCOUNTS OF A. S. KINSMAN, WHICH
COVERED YOUR PAY THROUGH SEPTEMBER 22, 1947, THE DATE OF YOUR DISCHARGE,
YOU CONCLUDE THAT THE AMOUNT OF $200 IS STILL DUE YOU AS MUSTERING-OUT
PAY.
IN RECAPITULATION, YOU STATE THAT THERE IS DUE YOU THE AMOUNT OF
$305.10 AND THAT THERE IS DUE YOUR PARENTS THE AMOUNT OF $185, A TOTAL
OF $490.10, WHICH IS THE DIFFERENCE BETWEEN $344 (THE TOTAL OF $284 AND
$60) AND $834.10 (THE TOTAL OF $359.60, $89.50, $200 AND $185).
THE RECORDS SHOW THAT CHECK NO. 291,598, DATED AUGUST 1, 1947, FOR
$68, DRAWN TO THE ORDER OF MARGARET E. BIE, WHICH COVERED THE FAMILY
ALLOWANCE FOR THE MONTH OF JULY 1947, WAS RETURNED BY THE PAYEE, WITHOUT
COVERING LETTER, IN AN ENVELOPE POSTMARKED AUGUST 19, 1947, TO THE
FAMILY ALLOWANCE DIVISION, ARMY FINANCE CENTER, OFFICE OF THE CHIEF OF
FINANCE, ST. LOUIS 20, MISSOURI. CHECK NO. 622,367, DATED SEPTEMBER 1,
1947, FOR $68, ALSO DRAWN TO THE ORDER OF MARGARET E. BIE, WHICH COVERED
THE FAMILY ALLOWANCE FOR THE MONTH OF AUGUST 1947, WAS RETURNED IN AN
ENVELOPE POSTMARKED SEPTEMBER 6 (?), 1947, WITH AN ACCOMPANYING NOTE,
NOT DATED, SIGNED BY MARGARET E. BIE,
AS FOLLOWS: "JAMES E. BIE - DISCHARGED.' THE TWO CHECKS WERE
SUBSEQUENTLY CANCELED. THE RECORDS DO NOT SHOW THAT A FAMILY ALLOWANCE
CHECK WAS ISSUED IN THIS CASE FOR SEPTEMBER 1947. SINCE NO CLAIM FOR
THE FAMILY ALLOWANCE FOR SEPTEMBER 1947 OR FOR THE PROCEEDS OF THE TWO
CANCELED CHECKS WAS RECEIVED IN OUR OFFICE WITHIN THE 10-YEAR PERIOD,
ANY CLAIM THEREFOR IS NOW BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER
9, 1940, 54 STAT. 1061. SECTION 1 OF THAT ACT PROVIDES---
"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY AN 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 * * *.'
YOUR LETTER DATED DECEMBER 3, 1957, IN WHICH YOU CLAIM THE SUM OF
$359.60 SHOWN AS PAID YOU ON VOUCHER NO. 5634, JANUARY 1947 ACCOUNTS OF
B. B. CALLAWAY, AND THE SUM OF $89.50 SHOWN AS PAID YOU ON VOUCHER NO.
7573, FEBRUARY 1947 ACCOUNTS OF THE SAME DISBURSING OFFICER, WAS
RECEIVED IN OUR OFFICE ON DECEMBER 5, 1957. YOUR CLAIM FOR THOSE
AMOUNTS IS, THEREFORE, BARRED BY THE PROVISIONS OF THE ACT OF OCTOBER 9,
1940, QUOTED ABOVE. IT MAY BE STATED, HOWEVER, THAT VOUCHER NO. 5634
BEARS THE CERTIFICATION OF FIRST LIEUTENANT NICHOLAS F. FAHEY, AS
FOLLOWS:
"I CERTIFY THAT I WITNESSED THE PAYMENT OF THIS ROLL AND THAT PRIOR
TO THE SIGNING OF THIS CERTIFICATE EACH MAN RECEIVED THE AMOUNT SET
OPPOSITE HIS NAME, WITH THE EXCEPTION OF THOSE MEN MARKED "NOT PAID,"
AND THOSE INDICATED TO BE PAID BY CHECK.'
VOUCHER NO. 7573 BEARS AN IDENTICAL CERTIFICATION EXECUTED BY CAPTAIN
ALBERT C. METTS. THERE IS NOTHING TO INDICATE THAT THE PAYMENTS SHOWN
ON THE VOUCHERS WERE NOT MADE TO YOU AS OFFICIALLY CERTIFIED AND,
CONTRARY TO YOUR STATEMENT, YOUR NAME AND INITIALS ON THE VOUCHERS
APPEAR TO COMPARE FAVORABLY WITH OTHER SPECIMENS OF YOUR HANDWRITING IN
THE FILE. HENCE, EVEN IF YOUR CLAIM FOR THE AMOUNTS SHOWN AS PAID TO
YOU ON THE VOUCHERS WERE NOT BARRED, NO FURTHER PAYMENT SHOULD BE
AUTHORIZED.
IN ADDITION TO THE INITIAL MUSTERING-OUT PAYMENT OF $100 INCLUDED IN
THE AMOUNT PAID TO YOU ON VOUCHER NO. 1336, AUGUST 1947 ACCOUNTS OF
GEORGE H. ZIMMER, YOU WERE PAID MUSTERING-OUT PAYMENTS AS FOLLOWS:
$100 BY CHECK NO. 3,530,491, DATED SEPTEMBER 15, 1947, DRAWN BY
GEORGE H. ZIMMER, AND $100 BY CHECK NO. 3,532,106, DATED OCTOBER 15,
1947, DRAWN BY A. S. KINSMAN. OUR RECORDS INDICATE THAT THE TWO CHECKS
WERE NEGOTIATED IN DUE COURSE AND PAID BY THE TREASURER OF THE UNITED
STATES AND THAT, DUE TO THEIR AGE, THEY WERE DESTROYED PURSUANT TO LAW.
CONSIDERATION OF YOUR CLAIM FOR MUSTERING-OUT PAY IN THE AMOUNT OF $200,
WHICH IS IN EFFECT A CLAIM FOR THE PROCEEDS OF THE TWO CHECKS, IS
PRECLUDED BY SECTION 2 OF THE ACT OF JUNE 22, 1926, 44 STAT. 761, WHICH
PROVIDES:
"ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS
APPEARING TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO THE
GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF
THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED.'
ACCORDINGLY, THERE APPEARS NO REASON FOR MODIFICATION OF OUR PRIOR
ACTION IN THIS CASE--- FINDING YOU INDEBTED TO THE UNITED STATES IN THE
AMOUNT OF $284. IMMEDIATE STEPS SHOULD BE TAKEN BY YOU TO SUBMIT AN
ACCEPTABLE PLAN FOR ITS FINAL LIQUIDATION BY INSTALLMENTS, IN ORDER THAT
FURTHER COLLECTION ACTION WILL NOT BE NECESSARY. PAYMENTS MADE BY YOU
SHOULD BE IN THE FORM OF BANK DRAFTS, CHECKS, OR MONEY ORDERS PAYABLE TO
"U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO U.S. GENERAL
ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING
TO CLAIM Z-797237.
B-135402, MAR. 18, 1958
TO WABASH RAILROAD COMPANY:
WE HAVE YOUR LETTER OF FEBRUARY 28, 1958, FILE E-663 GA, IN WHICH YOU
ASK OUR OPINION AS TO THE PROPER PROCEDURE FOR YOU TO FOLLOW IN
COLLECTION OF UNPAID SURCHARGES ON SHIPMENTS OF NITROGUANIDINE PIERITE
WHICH MOVED FROM CANADA TO THE UNITED STATES UNDER GOVERNMENT BILLS OF
LADING DURING 1956 AND 1957.
IN THE ABSENCE OF SPECIFIC DETAILS AS TO SOME PARTICULAR SHIPMENT,
WITH REFERENCE TO AT LEAST A GOVERNMENT BILL OF LADING NUMBER AND
NORFOLK AND WESTERN RAILWAY BILL NUMBER ON WHICH THE TRANSPORTATION
CHARGES WERE PAID BY THE GOVERNMENT, WE ARE UNABLE TO PROVIDE ANY
CONCLUSIVE STATEMENT ON THE ADJUSTMENT OF THE MATTER YOU IDENTIFY IN
GENERAL TERMS. UNDER THE CIRCUMSTANCES WE WOULD NOT HAVE OCCASION TO
ADVISE YOU AS TO THE EXACT PROCEDURE TO BE FOLLOWED, SINCE YOU DO NOT
RELATE YOUR REQUEST TO ANY SPECIFIC CLAIM ON WHICH OUR OFFICE HAS TAKEN
ACTION. IT MAY BE NOTED, HOWEVER, THAT CONDITION 2 ON THE BACK OF THE
GOVERNMENT BILL OF LADING, BEING A PART OF THE CONTRACT ENTERED INTO BY
THE INTERESTED CARRIERS, REQUIRES THE DELIVERING CARRIER AT DESTINATION
(WHICH IN THIS CASE YOU IDENTIFY AS THE NORFOLK AND WESTERN RAILWAY) TO
BILL AND COLLECT THE CHARGES FOR THE TRANSPORTATION COVERED THEREBY.
THUS, THE USUAL PROCEDURE, CONSISTENT WITH CONDITION 2 OF THE BILL OF
LADING CONTRACT, WOULD BE FOR THE DESTINATION CARRIER TO BILL FOR ANY
ADDITIONAL AMOUNT BELIEVED TO BE DUE FOR THE TRANSPORTATION INVOLVED.
B-134323, MAR. 17, 1958
TO MR. SAM D. ARLIA, JR. :
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10, 1957,
REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ARREARS OF PAY BELIEVED DUE
YOU AS OF AUGUST 11, 1952, THE DATE OF YOUR RELEASE FROM ACTIVE DUTY AS
CORPORAL, ARMY OF THE UNITED STATES.
YOU STATE THAT YOUR MOTHER ACTUALLY RECEIVED ALLOTMENT PAYMENTS
TOTALING ONLY $420--- TWO CHECKS OR ONE CHECK AMOUNTING TO $120 IN
FEBRUARY OF 1952 AND ONE CHECK IN THE AMOUNT OF $60 FOR EACH MONTH
THEREAFTER UNTIL YOUR DISCHARGE IN AUGUST 1952--- AND THAT ERRONEOUS
ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY FOR THE PERIOD INVOLVED.
WE HAVE OBTAINED FROM THE DEPARTMENT OF THE ARMY A DESCRIPTION OF ALL
CHECKS COVERING ALLOTMENT PAYMENTS MADE TO YOUR MOTHER, MRS. EMILIA N.
ARLIA, INCIDENT TO YOUR SERVICE IN THE ARMY DURING SUCH PERIOD AND WE
HAVE WITHDRAWN THE CHECKS FROM THE FILES FOR USE IN CONNECTION WITH THE
CONSIDERATION OF YOUR CLAIM. THE FIRST CHECK, IN THE AMOUNT OF $180,
COVERED THE ALLOTMENT FOR THE PERIOD FROM NOVEMBER 1, 1951, TO JANUARY
31, 1952, AND WAS DATED FEBRUARY 8, 1952. THEREAFTER, SIX CHECKS, EACH
FOR $60, WERE ISSUED, THE LAST CHECK, DATED AUGUST 1, 1952, COVERING THE
ALLOTMENT FOR THE MONTH OF JULY 1952. IT APPEARS THAT ALL OF SUCH
CHECKS WERE INDORSED BY THE SAME PERSON AND IT IS ASSUMED THAT THE
SIGNATURE ON EACH IS THAT OF YOUR MOTHER.
A REVISED STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD FROM JANUARY 1
TO AUGUST 11, 1952, IS AS FOLLOWS:
TABLE
CREDITS
BROUGHT FORWARD FROM PRIOR PERIOD $0.61
BASIC PAY AS A SERGEANT WITH OVER 4 YEARS OF SERVICE, JANUARY 1 TO
APRIL 30, 1952, AT $154.35
A MONTH 617.40
BASIC PAY AS A SERGEANT WITH OVER 4 YEARS OF SERVICE, MAY 1 TO JULY
2, 1952, AT $160.52 A MONTH
331.74
FOREIGN SERVICE PAY, JANUARY 1 TO JULY 2, 1952, AT $16 A MONTH
97.07
CLOTHING ALLOWANCE, JANUARY 1 TO JUNE 30, 1952, AT $5.10 A MONTH
30.60
LEAVE RATIONS, FEBRUARY 11 TO 17, 1952, AT $1.20 A DAY
8.40
BASIC PAY AS A CORPORAL WITH OVER 4 YEARS OF SERVICE, JULY 3 TO
AUGUST 11, 1952, AT $137.59 A
MONTH 178.87
FOREIGN SERVICE PAY, JULY 3 TO AUGUST 2, 1952, AT $13 A MONTH
13.00
CLOTHING ALLOWANCE, JULY 1 TO AUGUST 11, 1952, AT $4.20 A MONTH
5.74
PAY FOR 10 DAYS OF UNUSED LEAVE, AT $137.59 A MONTH
45.86
SUBSISTENCE ALLOWANCE FOR 10 DAYS OF UNUSED LEAVE, AT $0.70 A DAY
7.00
TRAVEL ALLOWANCE AT DISCHARGE 17.82
FIRST INSTALLMENT OF MUSTERING-OUT PAY 100.00
------- $1,454.11
CHARGES
CLASS QD ALLOTMENT, NOVEMBER 1951 THROUGH JULY 1952, AT $60 A MONTH
$540.00
CLASS E ALLOTMENT (NATIONAL BANKERS LIFE INSURANCE COMPANY), JANUARY
1 TO JULY 31, 1952, AT
$10 A MONTH 70.00
WITHHOLDING TAX 159.50
COURT-MARTIAL FORFEITURE 21.00
PAYMENTS BY ARMY DISBURSING OFFICERS ($10, $10, $10, $10, $10, $10,
$20 AND $117.82)
197.82
------- 988.32
-------
BALANCE DUE YOU $465.
B-135158, MAR. 17, 1958
TO MR. CHARLES HOWARD SILVIA:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1958, IN
REGARD TO YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED AS
ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED AS
ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.
YOUR CLAIM FOR SUCH INCREASE IN PAY FOR THE PERIOD SEPTEMBER 6, 1947,
TO SEPTEMBER 30, 1949, WAS DISALLOWED BY OUR SETTLEMENT OF JANUARY 13,
1958, ON THE GROUND THAT SINCE YOUR CREDITABLE SERVICE BEFORE AND AFTER
TRANSFER TO THE FLEET NAVAL RESERVE AGGREGATED ONLY 16 YEARS, 9 MONTHS,
AND 12 DAYS, YOU WERE NOT ENTITLED TO THE BENEFITS PRESCRIBED IN SECTION
208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT
OF AUGUST 10, 1946, 60 STAT. 994--- SUCH BENEFITS BEING CONTINGENT UPON
AN AGGREGATE OF AT LEAST 19 YEARS AND 6 MONTHS' SERVICE.
IT APPEARS THAT YOU ENLISTED IN THE NAVY ON DECEMBER 8, 1908, FOR
MINORITY; THAT YOU WERE DISCHARGED DECEMBER 4, 1912, CREDITABLE SERVICE
4 YEARS; THAT YOU REENLISTED MARCH 11, 1913, AND WERE DISCHARGED MARCH
10, 1917, CREDITABLE SERVICE 4 YEARS; THAT YOU REENLISTED MAY 12, 1917,
AND WERE DISCHARGED DECEMBER 31, 1921, CREDITABLE SERVICE 4 YEARS, 7
MONTHS, AND 19 DAYS; AND THAT YOU REENLISTED JANUARY 2, 1922, AND WERE
TRANSFERRED TO THE FLEET NAVAL RESERVE JULY 11, 1922, CREDITABLE SERVICE
6 MONTHS AND 10 DAYS. THUS, UPON YOUR TRANSFER TO THE FLEET NAVAL
RESERVE YOU HAD CREDITABLE SERVICE TOTALLING 13 YEARS, 1 MONTH AND 29
DAYS. APPARENTLY, SUCH TRANSFER WAS EFFECTED UNDER THE ACT OF JULY 1,
1922, 42 STAT. 799, 800, WHICH PROVIDED, IN PERTINENT PART:
"* * * THAT ENLISTED MEN OF THE NAVY WHO WOULD BE ELIGIBLE UNDER
EXISTING LAW FOR TRANSFER TO THE FLEET NAVAL RESERVE AFTER SIXTEEN
YEARS' SERVICE AT THE EXPIRATION OF THE CURRENT ENLISTMENT IN WHICH
SERVING, OR WHO HAVE COMPLETED SIXTEEN YEARS' SERVICE, MAY BE
TRANSFERRED TO THE FLEET NAVAL RESERVE AT ANY TIME AFTER THE PASSAGE OF
THIS ACT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AND SHALL, UPON
SUCH TRANSFER, RECEIVE THE SAME PAY AND ALLOWANCES AS NOW AUTHORIZED BY
LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE EXPIRATION OF
ENLISTMENT AFTER SIXTEEN YEARS' SERVICE * * *.'
IT FURTHER APPEARS THAT YOU PERFORMED ACTIVE DUTY FROM MAY 21, 1942,
TO JANUARY 3, 1946, 3 YEARS, 7 MONTHS, AND 13 DAYS. THAT SERVICE ADDED
TO YOUR SERVICE AT TIME OF TRANSFER, 13 YEARS, 1 MONTH, AND 29 DAYS,
AGGREGATED 16 YEARS, 9 MONTHS, AND 12 DAYS.
IN OUR DECISION OF OCTOBER 3, 1952, 32 COMP. GEN. 159, 161, IT WAS
SAID--- IN ANSWER TO A QUESTION CONCERNING MEN TRANSFERRED TO THE FLEET
RESERVE UPON COMPLETION OF A MINIMUM OF 16 YEARS AND 1 DAYS' SERVICE
CREDITABLE IN DETERMINING ELIGIBILITY FOR SUCH TRANSFERS--- THAT THE
PRACTICAL EFFECT OF SECTION 208 "IS TO ADD THE ACTIVE SERVICE PERFORMED
SUBSEQUENT TO SUCH TRANSFER TO THE SERVICE CREDITED TO HIM PRIOR TO SUCH
TRANSFER AND ANY FRACTIONAL YEAR OF SIX MONTHS OR MORE APPEARING IN SUCH
TOTAL SERVICE IS TO BE CONSIDERED A FULL YEAR'S SERVICE.'
YOU REFER TO THE DISALLOWANCE OF YOUR CLAIM AS BEING AT VARIANCE WITH
THE ABOVE STATEMENT, IT BEING YOUR CONTENTION THAT YOU SHOULD BE GIVEN A
CONSTRUCTIVE CREDIT OF 16 YEARS AT DATE OF TRANSFER, TO WHICH SHOULD BE
ADDED YOUR SUBSEQUENT ACTIVE DUTY OF 3 YEARS, 7 MONTHS, AND 13 DAYS,
THUS GIVING YOU A CONSTRUCTIVE AGGREGATE OF 19 YEARS, 7 MONTHS, AND 13
DAYS' SERVICE, ENOUGH TO QUALIFY FOR INCREASED RETIRED PAY UNDER THE
ABOVE SECTION 208.
THE STATEMENT QUOTED ABOVE FROM THE DECISION OF OCTOBER 3, 1952, WAS
MADE IN CONNECTION WITH CASES OF TRANSFER TO THE FLEET RESERVE AFTER
MORE THAN 16 YEARS' SERVICE, WHICH IS NOT THE SITUATION IN YOUR CASE.
IN ANY EVENT, THE QUOTED STATEMENT IS TO THE EFFECT THAT ACTIVE SERVICE
AFTER TRANSFER SHOULD BE ADDED TO THE SERVICE CREDITED AT TIME OF
TRANSFER. THE ACT OF JULY 1, 1922, SUPRA, DID NOT PROVIDE THAT MEN
TRANSFERRED THEREUNDER SHOULD BE CREDITED WITH 16 YEARS' SERVICE.
INSTEAD, IT MERELY PROVIDED THAT SUCH MEN SHOULD RECEIVE THE SAME PAY
AND ALLOWANCES AS IF THEY HAD BEEN TRANSFERRED AFTER 16 YEARS' SERVICE.
THE OTHER ARGUMENTS ADVANCED IN YOUR LETTER HAVE BEEN CONSIDERED AND
DISCUSSED IN OUR DECISIONS, B-135160, DECEMBER 4, 1957, 37 COMP. GEN. -
AND B-135160, JANUARY 29, 1958. A COPY OF EACH OF THOSE DECISIONS IS
ENCLOSED FOR YOUR INFORMATION.
B-135213, MAR. 17, 1958
TO MASTER SERGEANT NARCISO FRIGILLANA:
REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 23, 1957, AND JANUARY
15, 1958, FORWARDED HERE THROUGH CHANNELS, CONCERNING YOUR CLAIM IN THE
AMOUNT OF $308.38, REPRESENTING THE AMOUNT EXPENDED FOR UNIFORMS,
INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.
YOUR CLAIM WAS FORWARDED BY THE OFFICE OF THE CHIEF OF FINANCE,
DEPARTMENT OF THE ARMY, FOR CONSIDERATION AS A MERITORIOUS CLAIM UNDER
THE ACT OF APRIL 10, 1928, 45 STAT. 413, SINCE THE CLAIM WAS CONSIDERED
NOT PAYABLE UNDER ANY ACT OR APPROPRIATION AVAILABLE TO THE DEPARTMENT
OF THE ARMY. CLAIMS UNDER THE ACT OF MAY 29, 1945, 49 STAT. 225, AND
TORT CLAIMS OF ARMY PERSONNEL AGAINST THE DEPARTMENT OF THE ARMY UNDER
28 U.S.C. 2672, MUST BE CONSIDERED AND SETTLED BY THE SECRETARY OF THE
ARMY OR HIS DESIGNEE.
YOU STATE THAT IN DECEMBER 1955, YOU WERE PLACED IN THE CATEGORY OF
"VOLUNTEER INDEFINITE" WARRANT OFFICER--- APPARENTLY AS A MEMBER OF THE
ARMY RESERVE--- THAT THEREAFTER THE DEPARTMENT OF THE ARMY ENJOINED ALL
OFFICERS, EXCEPT THOSE WHO HAD LESS THAN A YEAR TO SERVE IN THEIR
CATEGORIES OTHER THAN "VOLUNTEER INDEFINITE," TO CHANGE OVER TO NEW
UNIFORMS ON OCTOBER 1, 1957 (LATER EXTENDED TO AN INDEFINITE DATE), AND
THAT IN ORDER TO COMPLY WITH THE REGULATIONS, YOU PURCHASED NEW UNIFORMS
IN MARCH 1957. YOU STATE FURTHER THAT TWO OF THE UNIFORMS (ARMY GREENS
AND BLUES) WERE NEVER WORN BECAUSE OF THE SUMMER SEASON, AND THAT YOUR
ARMY WHITES WERE WORN ONLY TWICE, BECAUSE YOU WERE RELEASED FROM ACTIVE
DUTY BEFORE YOU WERE ABLE TO PUT THE UNIFORMS TO USE, AND HENCE THE
AMOUNT PAID FOR THE UNIFORMS BECAME A TOTAL LOSS. WHILE THE ACTUAL DATE
OF YOUR RELEASE FROM ACTIVE DUTY IS NOT SHOWN, YOU STATE THAT YOU WERE
NOTIFIED OF SUCH RELEASE ON AUGUST 26, 1957.
THE ACT OF APRIL 10, 1928, PROVIDES:
"THAT WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR
DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY
THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND
IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS
SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE
CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS
BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION
THEREON.'
THE ONLY CLAIMS CONSIDERED PROPER FOR THE SUBMISSION TO THE CONGRESS
UNDER THIS STATUTE ARE THOSE THAT CONTAIN ELEMENTS OF LEGAL LIABILITY OR
EQUITY ON WHICH THE GENERAL ACCOUNTING OFFICE WOULD TAKE ACTION AND
ALLOW BUT FOR THE FACT THAT THERE IS NO APPROPRIATION AVAILABLE FOR
THEIR ADJUSTMENT.
THERE APPEAR NO ELEMENTS OF LEGAL OR EQUITABLE LIABILITY ON THE PART
OF THE GOVERNMENT, IN YOUR CASE, THAT WOULD WARRANT OUR REPORTING THE
MATTER TO THE CONGRESS. THE ARMY REGULATIONS TO WHICH YOU REFER (AR
670-5) RELATING TO THE CHANGEOVER TO THE NEW UNIFORMS--- PARAGRAPH 116
OF SUCH REGULATIONS INDICATES THAT WHITE UNIFORMS ARE NOT REQUIRED OF
OFFICERS STATIONED IN THE UNITED STATES--- ARE SO DESIGNED AS TO PERMIT
REPLACEMENT OF THE OLIVE DRAB UNIFORMS AS THEY BECOME UNSERVICEABLE.
THE EARLIEST DATE ANY OF SUCH UNIFORMS WERE REQUIRED WAS OCTOBER 1,
1957. YOU PURCHASED YOUR NEW UNIFORMS IN MARCH 1957 BEFORE YOU HAD ANY
NEED FOR THEM, IT APPEARING THAT YOU WORE ONLY ONE OF THEM TWICE.
APPARENTLY, YOUR OLD UNIFORMS WERE STILL IN A SERVICEABLE CONDITION AT
THE TIME YOU WERE RELEASED FROM ACTIVE DUTY.
PROVISION IS MADE IN SECTION 243 OF THE ARMED FORCES RESERVE ACT OF
1952, 66 STAT. 492, FOR THE PAYMENT OF APPROPRIATE ALLOWANCES FOR THE
INITIAL PURCHASE OF UNIFORMS AND THEIR MAINTENANCE. TO THE EXTENT THAT
SUCH ALLOWANCES DO NOT COVER THE ACTUAL COST OF UNIFORMS, INCLUDING
THOSE PURCHASED BY A RESERVE OFFICER ON EXTENDED ACTIVE DUTY, SHORTLY
BEFORE HE IS INVOLUNTARILY RELEASED FROM ACTIVE DUTY, THE OFFICER
CONCERNED MUST BEAR THE ADDITIONAL COST INVOLVED. WHILE THE CONGRESS
HAS ENACTED LEGISLATION TO ENCOURAGE MEMBERS OF RESERVE COMPONENTS TO
MAKE A CAREER OF ACTIVE MILITARY SERVICE, THE ONLY ALLOWANCE WHICH IS
PAYABLE TO CAREER RESERVISTS WHO ARE INVOLUNTARILY RELEASED FROM ACTIVE
DUTY IS THE READJUSTMENT PAY PROVIDED IN THE ACT OF JULY 9, 1956, 70
STAT. 517. IT FOLLOWS THAT YOUR CLAIM IS NOT SUCH AS WOULD WARRANT OUR
REPORTING IT TO THE CONGRESS UNDER THE 1928 ACT.
B-135210, MAR. 15, 1958
TO THE HONORABLE LEWIS L. STRAUSS, CHAIRMAN, ATOMIC ENERGY
COMMISSION:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 10, 1958, WITH
ENCLOSURES, FROM THE GENERAL MANAGER, REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE FORD CONSTRUCTION
COMPANY, INC., PROVO, UTAH, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT
NO. AT/10-1/-915 DATED SEPTEMBER 20, 1957, WAS AWARDED.
THE IDAHO OPERATIONS OFFICE, ATOMIC ENERGY COMMISSION, IDAHO FALLS,
IDAHO, BY INVITATION NO. AT/10-1/-915, REQUESTED BIDS--- TO BE OPENED
ON SEPTEMBER 18, 1957--- FOR THE PRODUCTION AND STOCKPILING OF CONCRETE
AGGREGATES AT THE NATIONAL REACTOR TESTING STATION IN IDAHO. THE WORK
TO BE PERFORMED WAS DIVIDED INTO NINE ITEMS FOR THE PURPOSES OF
SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. IN RESPONSE THE FORD
CONSTRUCTION COMPANY, INC., SUBMITTED A BID DATED SEPTEMBER 17, 1957,
OFFERING TO PERFORM THE WORK DESCRIBED UNDER ITEMS 1 TO 9, INCLUSIVE,
FOR THE TOTAL AGGREGATE BID PRICE OF $169,052. BY TELEGRAM DATED
SEPTEMBER 18, 1957, RECEIVED PRIOR TO BID OPENING TIME, THE CORPORATION
REDUCED ITS UNIT BID PRICES FOR ITEMS 1 AND 2 BY $0.10 AND ITS UNIT BID
PRICES FOR ITEMS 3 AND 4 BY $0.50. THE ABSTRACT OF BIDS SHOWS THAT THE
ONLY OTHER BIDDER ON THE WORK QUOTED A TOTAL AGGREGATE BID PRICE OF
$213,139, AND IT IS REPORTED THAT THE GOVERNMENT'S ESTIMATE FOR THE WORK
WAS $133,880.
IN HIS LETTER THE GENERAL MANAGER STATED THAT BY TELEGRAM DATED
SEPTEMBER 19, 1957, THE CORPORATION WAS ADVISED THAT IT HAD MADE AN
ERROR IN EXTENDING THE UNIT BID PRICE FOR ITEM 3 AND IN THE ADDITION OF
THE ITEMS MAKING THE TOTAL BID PRICE; AND THAT THE CORPORATION WAS ALSO
REQUESTED TO CONFIRM THE CORRECTED TOTAL PRICE OF $65,772 FOR ITEM 3 AND
THE CORRECTED TOTAL AGGREGATE BID PRICE OF $152,951.
IT IS REPORTED THAT SEVERAL DAYS AFTER RECEIPT OF THE TELEGRAM
REQUESTING CONFIRMATION OF THE BID, THE PRESIDENT OF THE FORD
CONSTRUCTION COMPANY, INC., CONTACTED ONE OF THE IDAHO OPERATIONS OFFICE
ENGINEERS AND INQUIRED WHETHER HE COULD SET UP HIS PLANT IN DEPOSIT "B,"
A DIFFERENT AGGREGATE DEPOSIT FROM THAT REQUIRED IN THE SPECIFICATIONS;
THAT THE PRESIDENT OF THE CORPORATION STATED THAT THE REDUCTION IN HIS
BID WAS BASED ON THE USE OF DEPOSIT "B," WHICH HE STATED WAS MORE
FAVORABLE FOR PRODUCTION OF SAND; AND THAT WHEN THE PRESIDENT OF THE
CORPORATION WAS ADVISED THAT HE WOULD NOT BE PERMITTED TO USE DEPOSIT
"B," HE ASKED WHETHER HE COULD WITHDRAW THE TELEGRAPHIC AMENDMENT TO THE
CORPORATION'S BID, INDICATING, HOWEVER, THAT HE WOULD PERFORM THE WORK
AT THE LOWER PRICE. IT IS ALSO REPORTED THAT ON SEPTEMBER 24, 1957, THE
PRESIDENT OF THE CORPORATION WAS ADVISED THAT HIS REQUEST TO WITHDRAW
HIS TELEGRAPHIC REDUCTION IN BID PRICE COULD NOT BE GRANTED AND THAT HE
REPLIED THAT HE WAS UNWILLING TO CLAIM A MISTAKE IN BID AT THAT TIME AND
WOULD ACCEPT THE AWARD WHEN RECEIVED.
BY LETTER DATED SEPTEMBER 20, 1957, WHICH IT IS REPORTED WAS NOT
MAILED UNTIL SEPTEMBER 24, THE FORD CONSTRUCTION COMPANY, INC., WAS
NOTIFIED THAT THE CONTRACT IN THE AMOUNT OF $152,951 HAD BEEN
AWARDED TO IT AND THAT IT SHOULD PROCEED WITH THE WORK DESCRIBED
THEREIN. IT IS REPORTED THAT ON SEPTEMBER 26, 1957, THE CORPORATION
INDICATED ACCEPTANCE OF THE AWARD.
BY TELEGRAM DATED SEPTEMBER 26, 1957, THE CORPORATION ADVISED THAT
THE CORRECTED PRICES SHOWN IN THE ADMINISTRATIVE OFFICE'S TELEGRAM OF
SEPTEMBER 19, 1957, WERE CORRECT, AND REQUESTED THAT IF IT WERE NOT
PERMITTED TO USE AGGREGATE DEPOSIT "B" AS A SOURCE OF RAW MATERIALS, THE
CONTRACT PRICE OF THE WORK BE INCREASED FROM $152,951 TO $169,252,
WHICH, IT STATED, WAS THE AMOUNT OF ITS BID BEFORE THE TELEGRAPH
AMENDMENT THEREOF.
IN A LETTER DATED OCTOBER 14, 1957, THE CORPORATION ALLEGED THAT IT
HAD MADE A MISTAKE IN PREPARING ITS BID BY ASSUMING THAT IT COULD USE
AGGREGATE DEPOSIT "B.' BY LETTER DATED OCTOBER 19, 1957, THE CORPORATION
SUBMITTED CERTAIN WORKSHEETS AND AN AFFIDAVIT DATED OCTOBER 19, 1957, IN
WHICH THE PRESIDENT OF THE CORPORATION STATED THAT AFTER MAILING IN THE
CORPORATION'S ORIGINAL BID OF $169,252 TO THE CONTRACTING OFFICE, HE AND
ANOTHER OFFICIAL OF THE CORPORATION MAILING IN THE CORPORATION'S
ORIGINAL BID OF $169,252 TO THE CONTRACTING OFFICE, HE AND ANOTHER
OFFICIAL OF THE CORPORATION EXAMINED THE MAP WHICH HAD BEEN ATTACHED TO
THE INVITATION; THAT DURING THEIR DISCUSSION THEY DECIDED THAT IT WOULD
BE CHEAPER TO PIPE THE WATER DOWN TO AGGREGATE DEPOSIT "B" FROM ANP WELL
NO. 7 WITH FOUR-INCH ALUMINUM IRRIGATION PIPE; THAT THEY BELIEVED ALSO
FROM THEIR VISUAL INSPECTION OF THE SITE THAT AGGREGATE DEPOSIT "B"
CONTAINED A LARGER PROPORTION OF USABLE SAND TO ROCK THAN AGGREGATE
DEPOSIT "C," AND, THEREFORE, WOULD COST LESS TO PRODUCE IN THE
PROPORTIONS REQUIRED BY INVITATION NO. AT/10-1/-915; THAT THEY,
THEREFORE, MADE THE DECISION TO USE AGGREGATE DEPOSIT "B" RATHER THAN
AGGREGATE DEPOSIT "C; " AND THAT BASED UPON THIS DECISION,
THEY SENT A TELEGRAM REDUCING THEIR BID ON EACH ITEM OF ROCK AND EACH
ITEM OF SAND, AND ESTABLISHING A NEW TOTAL AGGREGATE BID PRICE OF
$152,951.
IN A MEMORANDUM DATED NOVEMBER 20, 1957, FROM THE ACTING MANAGER,
IDAHO OPERATIONS OFFICE, TO THE CONTROLLER, DIVISION OF FINANCE,
WASHINGTON, D.C., IT WAS STATED THAT THE CORPORATION'S SUPPORTING
DOCUMENTS FAIL TO SHOW HOW COSTS WOULD BE REDUCED BY USING GRAVEL PIT
"B" INSTEAD OF PIT "C" FOR THE MATERIALS NEEDED TO PRODUCE THE REQUIRED
AGGREGATE, AND THAT THEY FAIL TO SHOW THE AMOUNT OF SAVINGS WHICH WOULD
RESULT FROM THE SHORTENED HAUL FROM PIT "B," THE ADDED COST OF PIPING
WATER FROM PIT "C," OR ANY OTHER FACTORS THAT WOULD YIELD THE NET SAVING
REPRESENTED BY THE TELEGRAPHIC REDUCTION IN BID PRICE. IT IS ALSO
STATED THAT THE REQUIREMENTS IN PARAGRAPH TP-04 OF THE SPECIFICATIONS
ARE SPECIFIC IN DESIGNATING THE GRAVEL PIT WHICH MAY BE USED IN
PRODUCING THE REQUIRED AGGREGATE.
AFTER ALLEGING ERROR IN ITS BID, THE FORD CONSTRUCTION COMPANY, INC.,
ENTERED INTO A FORMAL CONTRACT WHEREIN IT AGREED TO PERFORM THE WORK FOR
THE PRICE SPECIFIED IN ITS BID. THE FORMAL CONTRACT SIGNED BY THE
COMPANY IS PRESUMED, IN LAW, TO HAVE EXPRESSED THE FINAL UNDERSTANDING
OF THE PARTIES. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168, 173,
WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID---
"* * * THE WRITTEN CONTRACT MERGED ALL PREVIOUS NEGOTIATIONS, AND IS
PRESUMED, IN LAW TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. IF
THE CONTRACT DID NOT EXPRESS THE TRUE AGREEMENT, IT WAS THE CLAIMANT'S
FOLLY TO HAVE SIGNED IT. * * *"
THE FACTS IN THE PRESENT CASE ARE SOMEWHAT SIMILAR TO THOSE IN THE
CASE OF THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS.
699, (CERTIORARI DENIED 325 U.S. 866) WHEREIN THE PLAINTIFF ALLEGED
ERROR IN ITS BID BY REASON OF HAVING FAILED TO INCLUDE ON THE SHEET
SUMMARIZING THE VARIOUS ESTIMATE SHEETS, THE CHARGE FOR USE OF CERTAIN
EQUIPMENT AMOUNTING TO $88,000 APPEARING ON ONE OF THE ESTIMATE SHEETS.
EVEN THOUGH THE MISTAKE WAS DISCOVERED AND BROUGHT TO THE ATTENTION OF
THE GOVERNMENT BEFORE AWARD, AND THE CONTRACT EXECUTED UNDER PROTEST,
THE COURT DENIED ANY RELIEF, SAYING (P. 717/---
"AT THE TIME THE CONTRACT WAS AWARDED TO THE PLAINTIFF, PURSUANT TO
ITS BID, AND AT THE TIME IT SIGNED THE CONTRACT, THE PLAINTIFF WAS NOT
MISTAKEN. IT HAD BECOME AWARE OF THE MISTAKE IN ITS BID, AND FACED THE
PROBLEM OF WHETHER IT WAS WILLING TO SIGN A CONTRACT FOR THE FIGURE
WHICH IT HAD, BY MISTAKE SINCE DISCOVERED, BID. THE GOVERNMENT WAS ALSO
AWARE OF THE PLAINTIFF'S CLAIM THAT IT HAD MADE A MISTAKE IN ITS BID.
THERE WAS NOT, THEN, AT THE TIME OF SIGNING THE CONTRACT, ANY LACK OF
KNOWLEDGE, EITHER MUTUAL OR UNILATERAL, WHICH CAUSED EITHER OF THEM TO
MAKE THE CONTRACT WHICH THEY DID MAKE, WHEN IN FACT THEY INTENDED TO
MAKE A DIFFERENT CONTRACT. THAT BEING SO, IF WE SHOULD REFORM THE
CONTRACT AS THE PLAINTIFF REQUESTS, WE WOULD BE MAKING FOR THE PARTIES
THE VERY CONTRACT WHICH ONE OF THEM, THE GOVERNMENT, EXPRESSLY REFUSED
TO MAKE AT THAT TIME, THOUGH REQUESTED TO DO SO BY THE PLAINTIFF.'
SEE ALSO BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V.
O. B. WILSON COMPANY, INC., 133 F.2D 399; 23 COMP. GEN. 596; 25 ID.
536; AND 31 ID. 384.
ACCORDINGLY, ON THE PRESENT RECORD, THERE IS NO LEGAL BASIS FOR
CHANGING THE PRICE SPECIFIED IN CONTRACT NO. AT/10-1/-915.
B-130396, MAR. 14, 1958
TO THE CAROLINA FREIGHT CARRIERS CORPORATION:
REFERENCE IS MADE TO YOUR CLAIM NO. 056-125, PRO. 12197, RELATIVE TO
AN OVERPAYMENT FOUND IN THE AUDIT OF YOUR BILL FOR THE TRANSPORTATION OF
A SHIPMENT OF MISCELLANEOUS FREIGHT WEIGHING 9,787 POUNDS, FROM WARNER
ROBBINS, GEORGIA, TO PORT NEWARK, NEW JERSEY, UNDER BILL OF LADING NO.
WX-8573754, IN JULY 1953.
PURSUANT TO YOUR REQUEST, THE OVERPAYMENT ON THIS SHIPMENT WAS
RECOMPUTED AS FOR A TRUCKLOAD SHIPMENT AND YOU WERE INFORMED THAT ON
THAT BASIS YOU HAD BEEN OVERPAID $231.43, WHICH AMOUNT YOU WERE
REQUESTED TO REFUND WITHIN 30 DAYS. YOU HAVE NOW QUESTIONED TWO ITEMS
IN THE RECOMPUTATION.
FIRST, YOU CLAIM 55 CENTS ADDITIONAL FOR THE TRANSPORTATION OF 24
POUNDS OF OPTICAL INSTRUMENTS BECAUSE OF ALLEGED IMPROPER PACKING. THIS
AMOUNT WILL BE ALLOWED. CONCERNING YOUR CLAIM FOR $17.68 ADDITIONAL TO
$17.62 PREVIOUSLY CLAIMED BY AND PAID TO YOU FOR PIER DELIVERY, YOU
STATE THE TOTAL WEIGHT OF THIS SHIPMENT HAS BEEN INCREASED TO 27,157
POUNDS AND THE DELIVERY CHARGE AT 13 CENTS PER 100 POUNDS ON 27,157
RESULTS IN $35.30. YOU REFER TO SOUTHERN MOTOR CARRIERS RATE
CONFERENCE, AGENT, TARIFF 14-K, MF-I.C.C. NO. 472 AS PROVIDING THE BASIS
FOR SUCH CHARGE. ITEM 300-F OF TARIFF 14-K, AS AMENDED BY SUPPLEMENT
NO. 28, PROVIDES THE RATES PER 100 POUNDS FOR STORE-DOOR DELIVERY
SERVICE WITHIN THE NEW YORK DISTRICT ON "/A) ALL FREIGHT, EXCEPT AS
PROVIDED FOR IN PARAGRAPH (B) AT ANY ADDRESS, COMMUNITY OR POINT SHOWN *
* * AS TAKING * * * ZONES 1, 2, AND 3.' PORT NEWARK IS LOCATED WITHIN
ZONE 1. COLUMNS 1 TO 4, INCLUSIVE, PROVIDE THE RATES ON SHIPMENTS OF
GRADUATED WEIGHTS. COLUMN 3 PROVIDES A RATE OF 18 CENTS PER 100 POUNDS
ON "ANY SHIPMENT WEIGHING 5,000 LBS BUT LESS THAN 15,000 LBS (SEE NOTES
3 AND 5 BELOW).' NOTE 3 PROVIDES THAT:
"IN ASSESSING THE CHARGES UNDER THIS COLUMN, THE CHARGES BASED ON
15,000 POUNDS AT THE RATE PUBLISHED IN TARIFFS MAKING REFERENCE HERETO,
FROM ORIGIN TO CARRIER'S TERMINAL PLUS THE DELIVERY RATE (IF ANY) SHOWN
IN COLUMN 4 MUST NOT BE EXCEEDED.'
NOTE 5 PROVIDES THAT:
"IF A SHIPMENT CONSISTS OF TWO OR MORE DIFFERENTLY RATED ARTICLES,
THE DEFICIT IN WEIGHT WILL BE CHARGED FOR AT THE RATE APPLICABLE TO THE
ARTICLE TAKING THE HIGHEST RATE PROVIDED IN TARIFFS MAKING REFERENCE
HERETO.'
COLUMN 4 PROVIDES A RATE OF 13 CENTS PER 100 POUNDS FOR DELIVERY TO
STEAMSHIP PIERS ON "ANY SHIPMENT WEIGHING 15,000 LBS OR OVER.' THE
SHIPMENT UNDER CONSIDERATION HERE WEIGHED 9,787 POUNDS AND NO AUTHORITY
HAS BEEN FOUND IN THE DELIVERY TARIFF FOR APPLYING THE RATE PER 100
POUNDS TO THE THEORETICAL WEIGHT OF 27,157 POUNDS USED IN ASSESSING THE
TRANSPORTATION CHARGES. THEREFORE, YOUR CLAIM FOR $17.65 ADDITIONAL FOR
THIS SERVICE IS DISALLOWED.
ACCORDINGLY, THE OVERPAYMENT TO YOU ON THIS SHIPMENT WILL BE AMENDED
TO $230.88 ($231.43 LESS 55 CENTS) WHICH, IF NOT REFUNDED WITHIN 30
DAYS, WILL BE COLLECTED BY SETOFF IN MAKING PAYMENT OF AMOUNTS OTHERWISE
DUE YOU.
B-132223, MAR. 14, 1958
TO YELLOW TRANSIT FREIGHT LINES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1958, REQUESTING
RECONSIDERATION OF OUR DECISION B-132223, DATED JANUARY 2, 1958,
PERTAINING TO YOUR CLAIM PER BILL NO. 9191-A FOR ADDITIONAL FREIGHT
CHARGES ALLOWED TO BE DUE FOR THE TRANSPORTATION OF 136 PIECES OF
MISCELLANEOUS FREIGHT AGGREGATING 35,664 POUNDS, LOADED IN THREE
TRAILERS, UNDER GOVERNMENT BILL OF LADING NO. WY-2389748, DATED JANUARY
8, 1954.
OUR SETTLEMENT SUPPORTING THE AUDIT ACTION FINDING YOU OVERPAID
$51.87 FOR THE SHIPMENT WAS SUSTAINED IN OUR DECISION OF JANUARY 2,
1958, IN WHICH THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM, AS
WELL AS THE BASIS FOR OUR ACTION, WERE FULLY SET FORTH.
RESPECTING YOUR CONTENTION THAT THE PROVISIONS OF ITEM 2130-B OF
SUPPLEMENT NO. 20 TO SOUTHWESTERN MOTOR FREIGHT BUREAU TARIFF NO. 301,
MF-I.C.C. NO. 185, HAVE NOT BEEN PROPERLY APPLIED TO THIS SHIPMENT, YOU
WERE ADVISED IN OUR DECISION THAT ITEM 1070-B OF THE CITED SUPPLEMENT
(WHICH YOU HAVE NOT MENTIONED) PROVIDES RULES FOR COMPUTING THE CHARGES
ON MIXED VOLUME OR TRUCKLOAD SHIPMENTS, AND THAT SECTION 3 OF THAT ITEM
PROVIDES THAT WHEN THE AGGREGATE CHARGE IS LESS BY USING VOLUME RATES
AND VOLUME MINIMUM WEIGHTS UPON ONE OR MORE OF THE ARTICLES AND
LESS-THAN-TRUCKLOAD RATES ON THE BALANCE, SUCH LOWER AGGREGATE CHARGE IS
APPLICABLE. YOU WERE FURTHER ADVISED THAT NO EXCEPTION OR RESTRICTION
IS FOUND PRECLUDING THE APPLICATION OF SECTION 3 OF ITEM 1070-B WHEN THE
OVERFLOW RULE OF ITEM 2130-B IS APPLIED TO PART OF A SHIPMENT. THE
CONTENTS OF YOUR LETTER HAVE BEEN CAREFULLY EXAMINED AND YOU HAVE NOT
PRESENTED ANY FACTS OR EVIDENCE THAT WERE NOT FULLY CONSIDERED IN OUR
PREVIOUS DECISION. ACCORDINGLY, THE CONCLUSION REACHED IN THAT DECISION
IS REAFFIRMED.
B-134637, MAR. 14, 1958
TO LIEUTENANT COLONEL GEORGE L. DILLAWAY, JR., AUS, RETIRED:
YOUR LETTER OF FEBRUARY 8, 1958 (ACKNOWLEDGED FEBRUARY 14, 1958),
REQUESTS RECONSIDERATION OF THE ACTION TAKEN IN GENERAL ACCOUNTING
OFFICE SETTLEMENT DATED JANUARY 10, 1958, DISALLOWING YOUR CLAIM FOR
INCREASED RETIRED PAY UNDER THE RULE OF THE TRACY DECISION OF JUNE 5,
1956, 136 C.CLS. 211.
YOU ARE ADVISED THAT INSTRUCTIONS ARE BEING ISSUED THIS DATE TO THE
CLAIMS DIVISION OF THIS OFFICE TO TAKE APPROPRIATE ACTION ON YOUR CLAIM
IN ACCORDANCE WITH THE RULE IN THE TRACY CASE AS REAFFIRMED BY THE COURT
OF CLAIMS ON JANUARY 15, 1958, IN THE LOWELL (C.CLS. NO. 361-56) AND
BUDD (C.CLS. NO. 467-56) CASES.
ACTION IN THE MATTER WILL BE EXPEDITED AND YOU WILL BE NOTIFIED IN
DUE COURSE WHEN FINAL ACTION IS TAKEN ON YOUR CLAIM.
B-134830, MAR. 14, 1958
TO COMMANDER NORMAN W. MCLEOD, U.S. NAVY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1957,
REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 18, 1951, WHICH
DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCES INCIDENT TO DUTY
PERFORMED IN ALASKA DURING THE PERIOD FROM JUNE 18, 1948, TO JUNE 28,
1949.
ORDERS OF MAY 13, 1948, ISSUED AT THE U.S. NAVAL AIR STATION,
PENSICOLA, FLORIDA, DIRECTED YOU TO PROCEED, WHEN DIRECTED, TO
FAIRBANKS, ALASKA, AND REPORT TO THE OFFICER IN CHARGE OF CONSTRUCTION
CONTRACT NOY-13360 FOR DUTY INVOLVING FLYING AS AN AVIATION TECHNICAL
ADVISOR. YOU REPORTED AT FAIRBANKS UNDER THOSE ORDERS ON JUNE 18, 1948,
AND IT APPEARS THAT YOU CONTINUED IN THE PERFORMANCE OF THAT ASSIGNMENT
UNTIL DETACHED ON JUNE 28, 1949, UNDER BUREAU OF NAVAL PERSONNEL ORDERS
DATED MARCH 22, 1949. YOU INDICATE THAT YOUR CLAIM COVERS THE
INTERVENING PERIOD, WITH CERTAIN EXCEPTIONS WHEN SUBSISTENCE AND
QUARTERS WERE FURNISHED FROM SOURCES OTHER THAN YOUR PERSONAL
EXPENDITURES. YOU REFER TO STATION ALLOWANCE PAYMENTS THAT WERE MADE TO
CERTAIN NAVAL PERSONNEL OF THE CIVIL ENGINEER CORPS ASSIGNED TO DUTY IN
ALASKA IN CONNECTION WITH CONSTRUCTION CONTRACT NOY-13360 AND STATE A
BELIEF THAT THE ALLOWANCE WAS NOT AUTHORIZED IN YOUR CASE ONLY BECAUSE
THE LOCAL OFFICIALS IMPROPERLY CONSIDERED YOUR NEED FOR SUCH ALLOWANCE
AS LACKING DUE TO THE FACT THAT YOU WERE DRAWING HAZARDOUS DUTY PAY AS
AN AVIATOR IN THE PERFORMANCE OF YOUR ASSIGNED DUTIES.
SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS
AMENDED BY SECTION 203 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 859, IN
EFFECT DURING THE PERIOD IN QUESTION, PROVIDED THAT IN ACCORDANCE WITH
REGULATIONS PRESCRIBED BY THE PRESIDENT THE HEADS OF THE DEPARTMENTS
CONCERNED COULD AUTHORIZE THE PAYMENT TO MEMBERS OF THE ARMED FORCES ON
DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT
IN A TRAVEL STATUS, OF ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN
LIEU THEREOF. PART II OF EXECUTIVE ORDER NO. 9871, DATED JULY 8, 1947,
PROMULGATED UNDER THAT AUTHORITY, PROVIDED THAT THE HEADS OF THE
DEPARTMENTS CONCERNED COULD AUTHORIZE THE PAYMENT OF THE ALLOWANCES AND
PRESCRIBE SUCH ADDITIONAL REGULATIONS AS MIGHT BE NECESSARY IN THE
MATTER. REGULATIONS ISSUED UNDER THAT AUTHORITY, IN EFFECT ON AND AFTER
JULY 1, 1947, THROUGH THE PERIOD INVOLVED IN YOUR CLAIM, APPEAR IN
APPENDIX C TO THE 1946 EDITION OF THE U.S. NAVAL TRAVEL INSTRUCTIONS.
THOSE REGULATIONS SET FORTH THE DETERMINATIONS OF THE SECRETARY OF THE
NAVY AS TO THE RATES OF PER DIEM PAYABLE AS STATION AND TRAVEL
ALLOWANCES TO NAVAL PERSONNEL ON DUTY AT VARIOUS GEOGRAPHICAL LOCATIONS
OUTSIDE THE UNITED STATES AND IN ALASKA AND PROVIDE THAT AUTHORIZATION
FOR PAYMENT MUST BE MADE EITHER BY THE CHIEF OF NAVAL PERSONNEL OR BY
THE COMMANDING OFFICER OF THE ACTIVITY WHERE THE DUTY IS PERFORMED, WITH
PAYMENTS TO BE MADE MONTHLY (AND ON DETACHMENT) ON THE BASIS OF A
BLANKET COMMANDING OFFICER'S ORDER LISTING THE NAMES OF THE OFFICERS,
THE PER DIEM RATES, AND THE PERIOD INVOLVED, THE ORDER TO BEAR A
CERTIFICATION BY THE COMMANDING OFFICER AS TO THE NON-AVAILABILITY OF
GOVERNMENT MESS AND QUARTERS FOR THE OFFICER. SUCH PROVISIONS HAVE BEEN
CONSIDERED AS REQUIRING SPECIFIC WRITTEN AUTHORIZATION FOR PER DIEM
ALLOWANCES ISSUED EITHER BY THE BUREAU OF NAVAL PERSONNEL IN ADVANCE OF
THE PERIOD OF DUTY INVOLVED, OR BY THE LOCAL COMMANDING OFFICER, BASED
ON A CONTEMPORANEOUS DETERMINATION BY THAT OFFICIAL THAT CIRCUMSTANCES
REGARDING THE AVAILABILITY OF QUARTERS AND MESSING FACILITIES ARE SUCH
THAT THE PAYMENT OF THE ALLOWANCES IS WARRANTED. B-101652, MAY 22,
1951. IN VIEW OF THE SPECIFIC REQUIREMENTS OF THOSE REGULATIONS, NO
AUTHORITY COULD BE CONSIDERED TO EXIST FOR THE PAYMENT OF STATION PER
DIEM ALLOWANCES IN THE ABSENCE OF AN EXPRESS AUTHORIZATION ISSUED EITHER
PRIOR TO OR CONTEMPORANEOUSLY WITH THE DUTY PERIOD INVOLVED, AND AN
ALLEGATION THAT EXTRANEOUS MATTERS CONTROLLED THE DETERMINATION NOT TO
ISSUE AN AUTHORIZATION IN A PARTICULAR CASE, DOES NOT WARRANT A
DIFFERENT CONCLUSION.
PAYMENTS MADE TO THE OFFICERS OF THE CIVIL ENGINEER CORPS ASSIGNED TO
DUTY IN CONNECTION WITH CONSTRUCTION CONTRACT NOY-13360 WERE SUPPORTED
BY EVIDENCE OF A CONTEMPORANEOUS DETERMINATION BY THE LOCAL COMMANDING
OFFICER THAT PAYMENT TO THOSE OFFICERS OF STATION PER DIEM ALLOWANCES
WOULD BE PROPER. IN YOUR CASE, HOWEVER, THERE APPEARS TO HAVE BEEN NO
AUTHORIZATION ISSUED EITHER IN ADVANCE BY THE BUREAU OF NAVAL PERSONNEL
OR CONTEMPORANEOUSLY BY THE LOCAL COMMANDING OFFICER TO MEET THE
REQUIREMENTS OF THE REGULATIONS. UNDER SUCH CIRCUMSTANCES, NO AUTHORITY
EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF
JANUARY 18, 1951, IS SUSTAINED.
THE ORIGINAL ORDERS, ENDORSEMENTS AND RELATED PAPERS FORWARDED WITH
YOUR LETTER ARE RETURNED HEREWITH.
B-134835, MAR. 14, 1958
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO LETTER OF FEBRUARY 24, 1958, AND ENCLOSURES,
FROM MR. DUDLEY C. SHARP, ASSISTANT SECRETARY OF THE AIR FORCE,
REQUESTING A DECISION AS TO WHETHER INVITATION FOR BIDS NO.
40-604-58-1628, DATED SEPTEMBER 16, 1957, WHICH WAS PREVIOUSLY CANCELED,
MAY BE REINSTATED AND AWARD MADE TO THE LOWEST RESPONSIBLE AND
RESPONSIVE BIDDER.
THE FILE SUBMITTED TO US FOR USE IN CONSIDERING THE MATTER DISCLOSES
THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE FOREGOING INVITATION
WHICH WERE OPENED ON OCTOBER 22, 1957. AFTER THE BIDS WERE ABSTRACTED
AND THE QUOTATIONS PUBLICIZED, THE PROCUREMENT AUTHORITIES DETERMINED
THAT THE INVITATION WAS DEFECTIVE SINCE IT FAILED TO SPECIFY THAT THE
BEARING SETS WHICH WERE BEING PROCURED MUST COME FROM A SOURCE
PREVIOUSLY APPROVED BY HUGHES AIRCRAFT COMPANY.
FOR THAT REASON ALL BIDS WERE REJECTED AND THE PROCUREMENT
READVERTISED, NOTWITHSTANDING THE ORIGINAL INVITATION INDICATED THAT THE
APPARENT LOWEST RESPONSIVE AND RESPONSIBLE BIDDER, INDUSTRIAL TECTONICS,
INCORPORATED, WHO QUOTED A UNIT PRICE OF $13.25, WAS AT THAT TIME AN
APPROVED SOURCE. IN RESPONSE TO THE SECOND INVITATION NO.
40-604-58-1834, ISSUED UNDER DATE OF DECEMBER 18, 1957, INDUSTRIAL
TECTONICS, INCORPORATED, QUOTED THE SAME UNIT PRICE OF $13.25, WHEREAS
THE MARLIN-ROCKWELL CORPORATION, ALSO AN APPARENT APPROVED SOURCE,
REDUCED ITS BID OF $20.80 EACH UNDER THE FIRST INVITATION, TO $13.05,
AND $12.92, UNDER THE READVERTISEMENT.
WE CONCUR WITH THE OPINION EXPRESSED BY THE ASSISTANT SECRETARY OF
THE AIR FORCE, IN HIS SUBMISSION OF FEBRUARY 24, 1958, THAT THE
CANCELLATION OF ALL BIDS UNDER THE FIRST INVITATION WAS UNWARRANTED.
THE CASES REFERRED TO BY THE ASSISTANT SECRETARY, REPORTED IN 34 COMP.
GEN. 535, AND 36 ID. 62, ALSO INVOLVED THE WITHDRAWAL OF THE PROCUREMENT
REQUISITION AND THE CANCELLATION OF ALL BIDS THROUGH INADVERTENCE OF
ERROR, AND IT WAS HELD UNDER THE AUTHORITIES CITED IN THOSE DECISIONS
THAT BIDS IMPROPERLY REJECTED UNDER SUCH CIRCUMSTANCES MAY BE REINSTATED
AND AWARD MADE ON THE BASIS OF THE ORIGINAL INVITATION.
THESE PRINCIPLES APPEAR TO BE FOR APPLICATION IN THIS CASE.
CONSEQUENTLY, WE PERCEIVE NO OBJECTION TO CONSIDERING THE BIDS SUBMITTED
UNDER THE FIRST INVITATION.
THE ENCLOSURES TRANSMITTED WITH THE ASSISTANT SECRETARY'S LETTER OF
FEBRUARY 24, 1958, EXCEPT THE PROTESTING LETTERS DATED JANUARY 8, 1958,
FROM CONGRESSMAN CLYDE DOYLE AND INDUSTRIAL TECTONICS, INCORPORATED, ARE
RETURNED HEREWITH.
B-134955, MAR. 14, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED JANUARY 20, 1958, WITH
ENCLOSURES, FILE NO. R11.2 L8/NT4-28, FROM THE ASSISTANT CHIEF FOR
PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO
WHETHER THERE PROPERLY MAY BE DEFINED THE RELIEF SOUGHT BY NATHAN S.
COLEN AND SON, INC., UNDER SALES CONTRACT NO. N228S-21481, DATED
NOVEMBER 14, 1957.
IN RESPONSE TO SALES INVITATION NO. B-79-58-228, ISSUED ON OCTOBER
21, 1957, BY THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND,
CALIFORNIA, NATHAN S. COLEN AND SON, INC., SUBMITTED A BID DATED
NOVEMBER 12, 1957, FOR THE PURCHASE OF ITEM NO. 20, COVERING THREE
PROPELLERS, SHIP, IB AND OB, ETC., AT $3,840 EACH, OR FOR A TOTAL PRICE
OF $11,520. IT APPEARS THAT ALL BIDS UNDER THE SALES INVITATION WERE
OPENED, AS SCHEDULED, AT ABOUT 1 P.M. ON NOVEMBER 12, 1957. AT 1:44
P.M. ON THAT DATE A WESTERN UNION TELEGRAM WAS RECEIVED AT THE OAKLAND
NAVAL SUPPLY CENTER FROM NATHAN S. COLEN AND SON, INC., AMENDING ITS
BID FOR THE THREE SHIP PROPELLERS UNDER ITEM NO. 20, FROM $3,840 EACH TO
$3,094.14 EACH. SINCE THE TELEGRAPHIC AMENDMENT WAS NOT RECEIVED AT THE
SUPPLY CENTER UNTIL AFTER THE TIME OF THE BID OPENING IT WAS NOT
CONSIDERED ACCEPTABLE AND, THEREFORE, ITEM NO. 20 WAS AWARDED BY
CONTRACT N228S-21481, ON NOVEMBER 14, 1957, TO NATHAN S. COLEN AND SON,
INC., ON THE BASIS OF ITS ORIGINAL BID OF $3,840 EACH FOR THAT ITEM. ON
NOVEMBER 13, 1957, NATHAN S. COLEN AND SON, INC., CALLED THE OFFICE OF
THE GOVERNMENT CONTRACTING OFFICER TO ASCERTAIN CERTAIN INFORMATION ON
THE BIDS RECEIVED. AT THAT TIME THE CORPORATION WAS ADVISED THAT THE
TELEGRAPHIC AMENDMENT WAS RECEIVED TOO LATE TO BE ACCEPTED. BY LETTER
DATED NOVEMBER 13, 1957, NATHAN S. COLEN AND SON, INC., ADVISED THAT THE
TELEGRAM WAS SENT IN TIME FOR IT TO HAVE BEEN RECEIVED PRIOR TO 1 P.M.
ON NOVEMBER 12, 1957, THE SCHEDULED BID OPENING TIME, AND THAT THE
MATTER WOULD BE TAKEN UP WITH THE WESTERN UNION TELEGRAPH COMPANY. IT
APPEARS THAT A BID DEPOSIT OF $7,300 HAS BEEN MADE TO THE DEPARTMENT OF
THE NAVY BUT THAT THE CORPORATION HAS NOT ACCEPTED DELIVERY OF THE
PROPELLERS AND SEEKS TO HAVE ITS BID WITHDRAWN.
SALES INVITATION NO. B-79-58-228 PROVIDES THAT "TELEGRAPHIC
AMENDMENTS WILL BE ACCEPTED IF RECEIVED PRIOR TO BID OPENING.' THE
RECORD CONTAINS A CERTIFIED COPY OF A LETTER DATED DECEMBER 24, 1957,
FROM THE WESTERN UNION TELEGRAPH COMPANY, WHICH STATES THAT THE
TELEGRAPHIC AMENDMENT WAS PLACED BY NATHAN S. COLEN AND SON, INC., WITH
ITS HUNTINGTON PART OFFICE AT 11:34 A.M. ON NOVEMBER 12, 1957, AND WAS
RECEIVED IN OAKLAND AT 11:43 A.M. THE LETTER ALSO STATES THAT AFTER THE
TELEGRAM WAS ORIGINALLY RECEIVED IN OAKLAND AN EXCHANGE OF MESSAGES
BETWEEN THAT STATION AND THE TRANSMITTING OFFICE AT HUNTINGTON PARK
BECAME NECESSARY DUE TO SOME IRREGULARITY IN THE MESSAGE BROUGHT ABOUT
BY TRANSMISSION DIFFICULTIES; THAT THE MESSAGE WAS RELEASED OVER THE
PRIVATE LINE TO THE OAKLAND NAVAL SUPPLY CENTER AT 1:44 P.M. ON NOVEMBER
12, 1957, AND THAT "* * * UNDER NORMAL CIRCUMSTANCES THE MESSAGE WOULD
HAVE BEEN TRANSMITTED INTO THE COMMUNICATIONS DIVISION AT THE NAVAL
SUPPLY CENTER IN ADVANCE OF 1:00 P.M.' IT THEREFORE APPEARS THAT NATHAN
S. COLEN AND SON, INC., FILED THE TELEGRAPHIC AMENDMENT WITH THE WESTERN
UNION TELEGRAPH COMPANY IN AMPLE TIME FOR DELIVERY TO THE OAKLAND NAVAL
SUPPLY CENTER PRIOR TO THE OPENING OF THE BIDS AND THAT THE DELAY WAS
ATTRIBUTABLE TO WESTERN UNION AND WAS NOT DUT TO THE FAULT OR NEGLIGENCE
OF THE CORPORATION.
IN A RECENT DECISION, B-135271, MARCH 10, 1958, TO THE SECRETARY OF
THE ARMY, WE HELD THAT TELEGRAPHIC BIDS WHICH ARRIVED AFTER THE TIME SET
FOR THE BID OPENING COULD NOT BE CONSIDERED IN VIEW OF THE EXPRESS
PROHIBITION AGAINST THE CONSIDERATION THEREOF CONTAINED IN THE
INVITATION FOR BIDS. THE INVITATION PROVIDED THAT "TELEGRAPHIC BIDS
MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR THE
OPENING OF BIDS.' WE POINTED OUT IN THE DECISION, HOWEVER, THAT:
"WE HAVE IN A NUMBER OF CASES HELD THAT TELEGRAPHIC MODIFICATIONS OF
BIDS RECEIVED AFTER BID OPENING COULD PROPERLY BE CONSIDERED WHERE IT
CLEARLY APPEARED THAT THE TELEGRAMS WERE FILED A SUFFICIENT TIME BEFORE
THE SCHEDULED OPENING TO BE DELIVERED ON TIME IN THE NORMAL COURSE OF
THE TELEGRAPH COMPANY'S BUSINESS; THAT THE DELAY WAS SOLELY THE FAULT
OF THE TELEGRAPH COMPANY AND WITHOUT ANY FAULT OR NEGLIGENCE ON THE PART
OF THE BIDDER; AND THAT THERE WAS NO POSSIBILITY OF PRIOR KNOWLEDGE BY
THE BIDDER OF OTHER BIDS. IN MOST, IF NOT ALL, OF THOSE CASES THE
PERTINENT INVITATION OR INSTRUCTIONS STIPULATED THAT TELEGRAPHIC
MODIFICATIONS OF BIDS WOULD BE CONSIDERED IF RECEIVED PRIOR TO THE TIME
SET FOR BID OPENING. THAT STIPULATION WAS NOT CONSIDERED AS TANTAMOUNT
TO AN EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF SUCH TELEGRAPHIC
MODIFICATIONS IF NOT RECEIVED ON TIME, WHERE THE DELAY WAS NOT
CHARGEABLE TO THE BIDDER.'
IN VIEW THEREOF, IT FOLLOWS THAT THE ABOVE QUOTED PROVISION IN THE
SALES INVITATION HERE INVOLVED LIKEWISE MAY NOT BE REGARDED AS AN
EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF A TELEGRAPHIC
MODIFICATION, AND THAT THE TELEGRAPHIC AMENDMENT HERE INVOLVED PROPERLY
SHOULD HAVE BEEN CONSIDERED. ACCORDINGLY, CONTRACT NO. N228S-21481
SHOULD BE CANCELED WITHOUT ANY LIABILITY TO THE CORPORATION.
THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS AND
RECOMMENDATIONS OF THE CONTRACTING OFFICER AND THE COPY OF THE LETTER
DATED DECEMBER 24, 1957, FROM THE WESTERN UNION TELEGRAPHIC COMPANY, ARE
RETURNED TO YOU.
B-134992, MAR. 14, 1958
TO MR. RALPH G. SWANSON:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1958, REQUESTING
REVIEW OF THE SETTLEMENT OF JANUARY 6, 1958, WHICH DISALLOWED YOUR CLAIM
FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL
MOBILE CONSTRUCTION BATTALION SEVEN, DURING THE PERIOD AUGUST 20, 1955,
TO MARCH 12, 1956.
IN YOUR REQUEST FOR REVIEW YOU AVER GENERALLY THAT OTHER MEMBERS OF
YOUR CREW WERE PAID PER DIEM FOR THE PERFORMANCE OF TEMPORARY ACTIVE
DUTY, APPARENTLY FOR THE SAME DUTY YOU PERFORMED. THE ITINERARY YOU
SUBMITTED IN SUPPORT OF YOUR CLAIM SHOWS THAT YOU DEPARTED QUONSET
POINT, RHODE ISLAND, ON AUGUST 20, 1955, AND ARRIVED AT ARGENTIA,
NEWFOUNDLAND, ON AUGUST 21, 1955, DEPARTING FROM THE LATTER DUTY STATION
ON MARCH 13, 1956. IT APPEARS THAT THESE MOVEMENTS WERE IN ACCORD WITH
VERBAL ORDERS.
SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, CLARIFIES NAVY DEPARTMENT
POLICY WITH REGARD TO THE PAYMENT OF PER DIEM WHERE PROPER WRITTEN
ORDERS WERE NOT ISSUED BECAUSE OF AN ADMINISTRATIVE CONCLUSION THAT PER
DIEM WAS NOT PAYABLE. PARAGRAPH 6 OF THE INSTRUCTIONS PROVIDES IN PART
AS FOLLOWS:
"C. MEMBERS WHO HAVE COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY
AND WHO, PRIOR TO THE 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.'
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED,
63 STAT. 813, AUTHORIZES THE PAYMENT OF TRAVEL ALLOWANCE FOR TRAVEL
PERFORMED UNDER COMPETENT ORDERS. COMPETENT ORDERS FOR PER DIEM
PURPOSES ARE DEFINED IN PARAGRAPH 3000-3003, JOINT TRAVEL REGULATIONS.
AN EXAMINATION OF THE RECORD SHOWS NO SUCH ORDERS WERE ISSUED IN YOUR
CASE. THE "ORDERS" OF JUNE 1, 1956, WHICH YOU SUBMITTED IN SUPPORT OF
YOUR CLAIM ARE NOT TRAVEL ORDERS, THEY DO NOT DIRECT YOU TO PERFORM
TEMPORARY DUTY, RETURN TO YOUR OLD STATION OR PROCEED TO YOUR NEW
STATION UPON COMPLETION OF TEMPORARY DUTY. WHERE COMPETENT ORDERS WERE
NOT ISSUED BECAUSE OF AN ADMINISTRATIVE BELIEF THAT PER DIEM WAS NOT
PAYABLE AND THE EXPENSES OF TRAVEL WERE OF MINOR NATURE BECAUSE OF THE
FACT THAT BOTH GOVERNMENT QUARTERS AND MESSING FACILITIES WERE
AVAILABLE, THE QUESTION OF WHETHER PROPER CONFIRMATORY ORDERS WILL BE
ISSUED IN AN OTHERWISE PROPER CASE IS A MATTER FOR ADMINISTRATIVE
DETERMINATION. PARAGRAPH 6D OF SECNAV INSTRUCTION 7220.19 CONSTITUTES A
NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE BESIDES PRECLUDING
THE ISSUANCE OF COMPETENT CONFIRMING TEMPORARY ADDITIONAL DUTY ORDERS
FOR THE DUTY YOU PERFORMED. MOREOVER, THE FACT THAT A NUMBER OF CLAIMS
APPARENTLY SIMILAR TO YOURS MAY HAVE BEEN PAID AFFORDS NO LEGAL BASIS
FOR THE ALLOWANCE OF YOUR CLAIMS CONTRARY TO THIS ADMINISTRATIVE
DETERMINATION.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM FOR PER DIEM WAS CORRECT
AND IS SUSTAINED.
B-135064, MAR. 14, 1958
TO THE POSTMASTER GENERAL:
ON JANUARY 28, 1958, THE DEPUTY POSTMASTER GENERAL REQUESTED OUR
ADVICE CONCERNING THE INSTALLATION OF A PAY TELEPHONE IN THE FEDERAL
BUILDING AT PECOS, TEXAS. THE DEPUTY POSTMASTER GENERAL STATED THAT THE
FEDERAL COURT, HOUSED IN THE FEDERAL BUILDING AT PECOS IN WHICH THE POST
OFFICE DEPARTMENT, HAS REQUESTED THE INSTALLATION OF A PAY TELEPHONE IN
OR NEAR THE COURT'S QUARTERS ON THE SECOND FLOOR OF THE BUILDING. THE
TELEPHONE WOULD BE FOR THE USE OF THE VARIOUS LAWYERS, JURORS, AND
MEMBERS OF THE COURT FOR OUTSIDE AND TOLL CALLS. THE DEPUTY POSTMASTER
GENERAL ADVISED THAT THE ONLY TELEPHONE PRESENTLY AVAILABLE IS LOCATED
IN THE OFFICE OF THE CLERK OF THE COURT AND ITS USE BY SUCH PERSONS
INTERRUPTS THE WORK OF THE COURT.
THE INSTALLATION OF THIS PAY TELEPHONE INVOLVES AN UNUSUAL PROBLEM IN
THAT THE COURT IS IN SESSION IN THE FEDERAL BUILDING AT PECOS ONLY ABOUT
35 DAYS EACH YEAR AND THE TELEPHONE WILL GENERATE LITTLE, IF ANY,
REVENUE DURING THE BALANCE OF THE YEAR. THUS, THE LOCAL TELEPHONE
COMPANY'S USUAL AGREEMENT FOR THE INSTALLATION OF A PAY TELEPHONE, WHICH
REQUIRES A MINIMUM CHARGE OF $15 PER MONTH, WOULD RESULT IN A LOSS TO
THE GOVERNMENT ON THIS TELEPHONE. HOWEVER, THE DEPUTY
POSTMASTER GENERAL ADVISED THAT THE TELEPHONE COMPANY IS AGREEABLE T
INSTALLING THE TELEPHONE WITHOUT REQUIRING THEIR CUSTOMARY MINIMUM
CHARGE IF THEY ARE ALLOWED TO KEEP ALL THE REVENUE EMANATING THEREFROM
AND ARE NOT REQUIRED TO PAY A COMMISSION THEREON TO THE GOVERNMENT. OUR
ADVICE IS REQUESTED AS TO WHETHER THE INSTALLATION OF THE PAY TELEPHONE
ON THE PROPOSED BASIS IS PERMISSIBLE IN THE CIRCUMSTANCES. THE DEPUTY
POSTMASTER GENERAL FURTHER STATED THAT, IF INSTALLATION ON THAT BASIS IS
APPROVED, THE SITUATION WILL BE APPRAISED FROM TIME TO TIME TO DETERMINE
WHETHER ANY MATERIAL INCREASE IN THE USE OF THE TELEPHONE HAS OCCURRED
WHICH WOULD JUSTIFY RENEGOTIATION WITH THE TELEPHONE COMPANY.
IT IS THE GENERAL PRACTICE TO REQUIRE TELEPHONE COMPANIES INSTALLING
PAY TELEPHONES IN GOVERNMENT-OWNED OR CONTROLLED PREMISES TO DO SO ON
TERMS AT LEAST AS FAVORABLE TO THE GOVERNMENT AS THOSE GRANTED FOR THE
INSTALLATION OF SUCH TELEPHONES IN NON-GOVERNMENTAL PREMISES. SUCH
PRACTICE IS BASED UPON THE THEORY THAT THE GOVERNMENT SHOULD BE
COMPENSATED FOR PERMITTING THE USE OF GOVERNMENT-OWNED OR CONTROLLED
PREMISES BY THE TELEPHONE COMPANY.
IT IS APPARENT IN THE PRESENT INSTANCE, HOWEVER, THAT INSTALLATION OF
THE PAY TELEPHONE ON THE USUAL BASIS WOULD RESULT IN A LOSS TO THE
GOVERNMENT. HENCE, INSISTENCE UPON INSTALLATION OF THE TELEPHONE IN
ACCORDANCE WITH THE GENERAL PRACTICE AS STATED ABOVE CLEARLY WOULD NOT
BE IN THE BEST INTERESTS OF THE GOVERNMENT. ON THE OTHER HAND, IT IS
EQUALLY APPARENT FROM THE INFORMATION FURNISHED BY THE DEPUTY POSTMASTER
GENERAL THAT INSTALLATION OF A PAY TELEPHONE IN OR NEAR THE COURT'S
QUARTERS WOULD RELIEVE THE EXISTING TELEPHONE IN THE OFFICE OF THE CLERK
OF THE COURT OF AN UNNECESSARY BURDEN OF CALLS AND ELIMINATE
INTERRUPTION IN THE WORK OF THE COURT CAUSED THEREBY, AS WELL AS
CONSTITUTING A GREAT CONVENIENCE TO THE LAWYERS, JURORS AND MEMBERS OF
THE COURT. MOREOVER, THESE BENEFITS WOULD ACCRUE AT NO COST TO THE
GOVERNMENT BY INSTALLATION OF A PAY TELEPHONE ON THE PROPOSED BASIS.
HENCE, WE PERCEIVE NO OBJECTION TO THE INSTALLATION OF A PAY
TELEPHONE IN OR NEAR THE QUARTERS OF THE FEDERAL COURT ON THE SECOND
FLOOR OF THE FEDERAL BUILDING IN PECOS, TEXAS, ON THE BASIS PROPOSED.
B-135122, MAR. 14, 1958
TO THE SECRETARY OF THE INTERIOR:
ON FEBRUARY 3, 1958, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED
OUR DECISION CONCERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION
EXPENSES OF STUDENT TRAINEES RECRUITED IN UNITED STATES (1) IN RETURNING
TO THE CONTINENTAL UNITED STATES FROM ALASKA WHEN FURLOUGHED AND (2) IN
RETURNING TO ALASKA AFTER FURLOUGH FOR ANOTHER PERIOD OF SERVICE. OUR
DECISIONS IS ASKED UPON THE FOLLOWING
QUESTIONS:
"/1) MAY EACH PERIOD OF SUMMER EMPLOYMENT OF STUDENT TRAINEES
TRANSPORTED TO ALASKA FROM THE UNITED STATES BE CONSIDERED AS NEW
EMPLOYMENT WITHIN THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE
EXPENSES ACT SINCE THE DURATION OF EACH PERIOD OF EMPLOYMENT IS LIMITED
TO A SPECIFIC PERIOD?
"/2) IF THE ANSWER TO QUESTION NUMBER 1 IS IN THE NEGATIVE, MAY THE
COLLEGE EACH STUDENT TRAINEE IS ATTENDING BE CONSIDERED AS A STATION
SINCE SUCH ATTENDANCE IS A REQUIREMENT OF THE STUDENT TRAINEE PROGRAM,
THUS PERMITTING THE PAYMENT OF TRAVEL EXPENSE UNDER SECTION 1 OF THE
ADMINISTRATIVE EXPENSES ACT?
"/3) IF THE QUESTIONS TO (1) AND (2) ARE IN THE NEGATIVE, IS THERE
ANY AUTHORITY THAT WOULD PERMIT PAYMENT OF THE TRAVEL EXPENSES OF SUCH
STUDENT TRAINEES? "
THE LETTER OF FEBRUARY 3 POINTS OUT THAT YOUR DEPARTMENT DESIRES TO
EMPLOY STUDENT TRAINEES (FISHERY BIOLOGY) IN ALASKA. A STUDENT TRAINEE
PROGRAM HAS BEEN DEVELOPED TO ATTRACT TO THE THE FEDERAL SERVICE COLLEGE
STUDENTS IN THE PROFESSIONAL FIELDS FOR WHICH THERE IS A SHORTAGE OF
APPLICANTS. SUCH A SHORTAGE EXISTS IN THE FISH AND WILDLIFE SERVICE IN
ALASKA AND CANNOT BE MET FROM SOURCES IN ALASKA. THEREFORE, IT HAS BEEN
DETERMINED ADMINISTRATIVELY THAT IT IS IN THE INTEREST OF THE GOVERNMENT
TO RECRUIT SUCH TRAINEES IN THE CONTINENTAL UNITED STATES. THESE
EMPLOYEES WILL BE GIVEN CAREER-CONDITIONAL APPOINTMENTS. PERSONS
APPOINTED TO SUCH POSITIONS WILL PARTICIPATE IN ON-THE-JOB TRAINING IN
ALASKA, UNDER THE FISH AND WILDLIFE SERVICE, FOR APPROXIMATELY FOUR
MONTHS EACH SUMMER. AFTER THE SUMMER ON-THE-JOB TRAINING THEY WILL BE
PLACED ON
FURLOUGH UNTIL THE FOLLOWING SUMMER TO PURSUE REGULAR SCHOLASTIC
TRAINING AT AN ACCREDITED COLLEGE OR UNIVERSITY IN THE CONTINENTAL
UNITED STATES. THE ON-THE-JOB TRAINING USUALLY WILL NOT EXCEED A TOTAL
OF THREE SUCH PERIODS. SUCCESSFUL COMPLETION OF EACH PERIOD OF
SCHOLASTIC WORK IS REQUIRED FOR PROMOTION TO THE NEXT HIGHER GRADE.
UPON FINAL SUCCESSFUL COMPLETION OF THE ON-THE-JOB TRAINING AND THE
SCHOLASTIC WORK THE EMPLOYEES WILL, UNDER THE ORIGINAL
CAREER-CONDITIONAL APPOINTMENTS, BE REASSIGNED OR PROMOTED TO
APPROPRIATE POSITIONS WITHOUT FURTHER CIVIL SERVICE EXAMINATION.
5 U.S.C. 73B-3 (SECTION 7, ADMINISTRATIVE EXPENSES ACT OF 1946, AS
AMENDED, 64 STAT. 985) PERMITS PAYMENT OF TRAVEL AND TRANSPORTATION
EXPENSES UPON NEW APPOINTMENT TO A POST OF DUTY OUTSIDE THE CONTINENTAL
LIMITS OF THE UNITED STATES AND EXPENSES OF RETURN TO PLACE OF RESIDENCE
IN THE CONTINENTAL UNITED STATES UPON SEPARATION PROVIDED THE OTHER
CONDITIONS OF THE STATUTE ARE SATISFIED. IN VIEW OF THE SPECIFIC
REQUIREMENTS OF 5 U.S.C. 73B-3, OF A NEW APPOINTMENT AND SEPARATION
WHICH, SO FAR AS THE TRAVEL AND TRANSPORTATION IN QUESTION, ARE NOT MET
BY THE FACTS ENUMERATED ABOVE, YOUR FIRST QUESTION MUST BE ANSWERED IN
THE NEGATIVE. CF. 37 COMP. GEN. 203.
5 U.S.C. 73B-1 AND THE REGULATIONS ISSUED PURSUANT THERETO---
EXECUTIVE ORDER NO. 9805, AS AMENDED--- PERMITS PAYMENT OF TRAVEL AND
TRANSPORTATION EXPENSES OF EMPLOYEES UPON TRANSFER FROM ONE OFFICIAL
STATION TO ANOTHER FOR PERMANENT DUTY. SINCE THE STUDENT TRAINEES,
WHILE IN A FURLOUGH STATUS PURSUING SCHOLASTIC WORK, AS CONTRASTED TO
THE ON-THE-JOB EMPLOYMENT, WILL BE COMPLETELY OUTSIDE THE SUPERVISION
OF, AND WILL BE PERFORMING NO SERVICE FOR, THE GOVERNMENT DURING SUCH
PERIOD, ALTHOUGH HOLDING CAREER-CONDITIONAL APPOINTMENTS, BUT INSTEAD
ACTUALLY WILL BE PURSUING SCHOLASTIC WORK FOR THEIR PERSONAL BENEFIT, WE
SEE NO PROPER BASIS FOR CONSIDERING THE COLLEGES OR UNIVERSITIES BEING
ATTENDED AS AN OFFICIAL STATION WITHIN THE PURVIEW OF THE FOREGOING
STATUTORY PROVISION AND THE APPLICABLE REGULATIONS. THEREFORE, YOUR
SECOND QUESTION IS ALSO ANSWERED IN THE NEGATIVE.
CONCERNING YOUR THIRD QUESTION, WE HAVE TO ADVISE THAT WE KNOW OF NO
EXISTING AUTHORITY THAT WOULD PERMIT PAYMENT OF TRAVEL AND
TRANSPORTATION EXPENSES HERE INVOLVED OF SUCH STUDENT TRAINEES UNDER THE
ENUMERATED FACTS.
B-135223, MAR. 14, 1958
TO CAMBEIS TRUCKING COMPANY, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1958--- WITH ENCLOSED
PHOTOSTATIC COPIES OF THE SHIPPING ORDER COPY OF GOVERNMENT BILL OF
LADING NO. N-31183174--- CONCERNING A SHIPMENT OF 75 EXHAUST TRAPS,
WEIGHING 13,500 POUNDS, WHICH WAS TRANSPORTED FROM THE MADISON MUFFLER
COMPANY, LONG ISLAND CITY, NEW YORK, TO THE NEW YORK NAVAL SHIPYARD,
BROOKLYN, NEW YORK, UNDER GOVERNMENT BILL OF LADING NO. N-31183174,
DATED JULY 2, 1953.
YOU ALLEGE THAT YOUR COMPANY PERFORMED THE TRANSPORTATION SERVICE
FROM LONG ISLAND CITY, NEW YORK, TO BROOKLYN, NEW YORK, AND TO SUPPORT
YOUR CONTENTION YOU HAVE PRESENTED PHOTOTSTATIC COPIES OF THE SHIPPING
ORDER, WHICH WAS PURPORTEDLY SIGNED BY YOUR DRIVER,"MANDELKOW.' YOU
ALLEGE ALSO THAT YOU WERE ADVISED IN A LETTER DATED APRIL 25, 1956, FROM
THE INSPECTOR OF NAVAL MATERIAL, THAT THE VICTORIA TRANSPORTATION
COMPANY, INC.,--- THE CARRIER WHICH HAD SURRENDERED THE ORIGINAL BILL OF
LADING, PROPERLY ACCOMPLISHED, AND HAD RECEIVED PAYMENT OF THE
TRANSPORTATION CHARGES--- HAD INFORMED THEM THAT THE VICTORIA
TRANSPORTATION COMPANY DID NOT HANDLE THE SHIPMENT.
OUR RECORDS SHOW THAT THE U.S. NAVY REGIONAL ACCOUNTS OFFICE,
WASHINGTON 25, D.C., IN THEIR LETTER OF JUNE 11, 1956, ADVISED YOU THAT
"AS SHOWN ON THE ENCLOSED FACSIMILE OF THE ORIGINAL BILL OF LADING
N-31183174, USED IN SUPPORT OF THE FREIGHT CHARGES PAID TO THE VICTORIA
TRANSPORTATION COMPANY, INC., PAYMENT AS MADE BY THIS OFFICE IS
CORRECT.' THIS CONCLUSION IS JUSTIFIED, SINCE THE ORIGINAL BILL OF
LADING SHOWS THAT THE SHIPMENT WAS TENDERED TO, AND ACCEPTED BY, THE
VICTORIA TRANSPORTATION COMPANY AT ORIGIN, AND THE "CONSIGNEE'S
CERTIFICATE OF DELIVERY" IS ACCOMPLISHED BY THE CONSIGNEE IN FAVOR OF
THE VICTORIA TRANSPORTATION COMPANY, THIS CARRIER BEING THE ONLY ONE
SHOWN TO HAVE PERFORMED ANY PART OF THE TRANSPORTATION SERVICE. ALSO,
THE VICTORIA TRANSPORTATION COMPANY PREPARED ITS BILL ON THE AUTHORIZED
GOVERNMENT FORM AND SUPPORTED ITS BILL WITH THE ORIGINAL BILL OF LADING.
FURTHERMORE, THE ORIGINAL BILL OF LADING BEARS REFERENCE TO ,CARRIERS
SECTION 22 QUOTATION TENDER NO. 1 DATED 20 MAR 46 AND S AND A NO. 618
APPLICABLE," BUT NO CAMBEIS TRUCKING COMPANY SECTION 22 QUOTATION HAS
BEEN LOCATED WHICH WAS IN EFFECT ON THE DATE THIS SHIPMENT MOVED.
YOUR ATTENTION IS INVITED TO ONE OF THE CONDITIONS ON THE BACK OF THE
ORIGINAL GOVERNMENT BILL OF LADING WHICH PROVIDES:
"IT IS MUTUALLY AGREED AND UNDERSTOOD BETWEEN THE UNITED STATES AND
CARRIERS WHO ARE PARTIES TO THIS BILL OF LADING THAT---
"1. * * * ON PRESENTATION OF THIS BILL OF LADING, PROPERLY
ACCOMPLISHED AND ATTACHED TO FREIGHT VOUCHER PREPARED ON THE AUTHORIZED
GOVERNMENT FORM, TO THE OFFICE INDICATED ON THE FACE HEREOF, PAYMENT
WILL BE MADE TO THE LAST CARRIER UNLESS OTHERWISE SPECIFICALLY
STIPULATED.'
THUS, ON THE BASIS OF THE PRESENT RECORD, THE PAYMENT OF CHARGES TO
THE VICTORIA TRANSPORTATION COMPANY, INC., THE ONLY CARRIER SHOWN ON THE
FACE OF THE ORIGINAL BILL OF LADING TO HAVE PERFORMED ANY SERVICE IN
CONNECTION WITH THIS SHIPMENT, WAS PROPER.
A CLAIM THAT IS PRESENTED AGAINST THE UNITED STATES MUST ESTABLISH
CLEARLY THE FACTS AND PRINCIPLES UPON WHICH THE CLAIM IS BASED, AND THE
BURDEN IMPOSED BY THE RULE MUST BE MET SQUARELY IN EACH CASE IN ORDER TO
JUSTIFY THE ACCOUNTING OFFICERS IN CERTIFYING SUCH CLAIM FOR PAYMENT
FROM APPROPRIATED MONEYS. SEE 23 COMP. GEN. 907.
THE FACTS PRESENTED BY YOU IN THIS CASE DO NOT ESTABLISH THE CLEAR
LEGAL LIABILITY OF THE UNITED STATES AND YOUR RIGHT TO PAYMENT OF THE
TRANSPORTATION CHARGES. ACCORDINGLY, ON THE BASIS OF THE PRESENT
RECORD, YOUR CLAIM MAY NOT BE ALLOWED.
B-135314, MAR. 14, 1958
TO PRIVATE FIRST CLASS RONALD T. APOSTLE, USMC:
FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR PER DIEM FOR THE PERIOD
JANUARY 26 TO JUNE 13, 1956, WHILE ON DUTY UNDER INSTRUCTION AT MARINE
BARRACKS, NAVAL STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA.
SINCE YOUR CLAIM IS A DUPLICATE OF THAT PART OF YOUR PRIOR CLAIM WHICH
WAS DISALLOWED BY OUR SETTLEMENT OF MAY 2, 1957, IT WILL BE CONSIDERED
AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.
THE DUTY FOR WHICH PER DIEM IS CLAIMED WAS PERFORMED UNDER ORDERS
ISSUED ON NOVEMBER 25, 1955, BY HEADQUARTERS MARINE CORPS RECRUIT DEPOT,
SAN DIEGO, CALIFORNIA. THE ORDERS WERE DESIGNATED AS ,PERMANENT CHANGE
OF STATION AND TEMPORARY DUTY ORDERS.' THE ORDERS DIRECTED YOU TO
PROCEED FROM SAN DIEGO TO EL TORO, CALIFORNIA, FOR TEMPORARY DUTY OF
ABOUT FIVE DAYS IN CONNECTION WITH PROCESSING FOR THE NAVAL AVIATION
CADET PROGRAM, UPON COMPLETION OF WHICH YOU WERE TO PROCEED TO CAMP
PENDLETON, CALIFORNIA, FOR TEMPORARY DUTY FOR A PERIOD OF ABOUT FOUR
WEEKS AND FOR FURTHER TRANSFER TO MARINE BARRACKS, NAVAL STATION,
TREASURE ISLAND, FOR ASSIGNMENT TO NAVAL SCHOOL (ELECTRONICS) FOR DUTY
UNDER INSTRUCTION IN THE ELECTRONICS TECHNICIAN COURSE (CLASS A),
REPORTING DATE FEBRUARY 3, 1956. NO FURTHER STATION ASSIGNMENT WAS
MENTIONED IN THE ORDERS.
THE RECORD SHOWS THAT YOU REPORTED AT TREASURE ISLAND ON JANUARY 25,
1956; PURSUANT TO SIXTH ENDORSEMENT TO YOUR BASIC ORDERS ISSUED BY YOUR
COMMANDING OFFICER, CAMP PENDLETON, ON JANUARY 20,
1956, WHICH PROVIDED THAT YOUR TEMPORARY DUTY UNDER INSTRUCTION WOUL
BE COMPLETED ON JANUARY 23, 1956, AND DIRECTED THAT YOU CARRY OUT THE
UNEXECUTED PORTION OF YOUR ORDERS AND REPORT AT TREASURE ISLAND ON A
PERMANENT CHANGE OF STATION. THE RECORD FURTHER SHOWS THAT THE COURSE
OF INSTRUCTION TO WHICH YOU WERE ASSIGNED BEGAN IN FEBRUARY 1956; THAT
YOU WERE SEPARATED FROM THE CLASS ON JUNE 14, 1956, BECAUSE OF ACADEMIC
DEFICIENCY, AND THAT YOU REMAINED AT TREASURE ISLAND UNTIL JULY 27,
1956. YOUR DEPARTURE WAS PURSUANT TO PERMANENT CHANGE OF STATION ORDERS
DATED JULY 17, 1956, DIRECTING YOU TO PROCEED TO EL TORO, CALIFORNIA,
FOR FURTHER TRANSPORTATION TO AN OVERSEAS STATION. YOUR CLAIM FOR PER
DIEM FOR THE PERIOD YOU ATTENDED SCHOOL WAS DISALLOWED BY THE SETTLEMENT
MENTIONED ABOVE FOR THE REASON STATED THEREIN. IN PRESENTING YOUR CLAIM
AGAIN YOU STATE YOU DID SO BECAUSE OF A RECENT DECISION BY THIS OFFICE
AND FOR THE FURTHER REASON THAT THE COMMANDANT OF THE MARINE CORPS
APPROVED PAYMENT OF THE PER DIEM CLAIM OF PRIVATE FIRST CLASS JAMES R.
NEAL WHO WAS IN THE SAME CLASS AND WHO WAS SEPARATED FROM THE SCHOOL ON
THE SAME DATE. THE MARINE CORPS IN TRANSMITTING YOUR PRESENT CLAIM HERE
INDICATED THAT THE PERTINENT DECISION IS B-122508, DATED JANUARY 5,
1956.
THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION
ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES UPON CHANGE OF PERMANENT
STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY
IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949,
AS AMENDED, 37 U.S.C. 253. JOINT TRAVEL REGULATIONS, PROMULGATED
PURSUANT TO THAT AUTHORITY OF LAW, PROVIDE A PER DIEM ALLOWANCE FOR DUTY
PERFORMED AT TEMPORARY STATIONS UNDER VARIOUS CIRCUMSTANCES, BUT MAKE NO
SUCH PROVISION FOR DUTY PERFORMED AT PERMANENT STATIONS. PARAGRAPH
1150-10 OF THE REGULATIONS DEFINES A PERMANENT STATION AS ONE TO WHICH A
MEMBER IS ASSIGNED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY
ADDITIONAL DUTY. IT FURTHER PROVIDES THAT WHERE A MEMBER IS TRANSFERRED
OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A SCHOOL OR
INSTALLATION TO PURSUE A COURSE OF INSTRUCTION THE DURATION OF WHICH IS
20 WEEKS OR MORE, SUCH SCHOOL OR INSTALLATION IS DEFINED AS A PERMANENT
DUTY STATION. IN YOUR CASE THE RECORD SHOWS YOU WERE ASSIGNED TO
TREASURE ISLAND UNDER PERMANENT CHANGE OF STATION ORDERS TO PURSUE A
COURSE OF INSTRUCTION AND IN VIEW OF SUCH ASSIGNMENT IT IS ASSUMED THE
DURATION OF THE COURSE WAS 20 WEEKS OR MORE. THUS, TREASURE ISLAND WAS
YOUR PERMANENT STATION NOTWITHSTANDING THE FACT THAT YOU DID NOT
COMPLETE THE COURSE. THAT BEING THE CASE, NO PER DIEM IS AUTHORIZED.
THE DECISION UPON WHICH YOU APPARENTLY RELY RELATES TO SITUATIONS WHERE
A MEMBER WHILE ON DUTY AT A TEMPORARY STATION IS IN RECEIPT OF ORDERS
DESIGNATING THAT PLACE AS HIS PERMANENT STATION. THAT DECISION SUPPORTS
THE WELL-ESTABLISHED PRINCIPLE THAT PER DIEM IS NOT PAYABLE FOR ANY
PERIOD OF DUTY AT A STATION AFTER IT HAS BEEN DESIGNATED THE MEMBER'S
PERMANENT STATION. THEREFORE, IT AFFORDS NO BASIS FOR THE ALLOWANCE OF
YOUR CLAIM. IF PRIVATE FIRST CLASS (NOW CORPORAL) JAMES R. NEAL WAS
PAID PER DIEM UNDER THE CIRCUMSTANCES INVOLVED IN YOUR CLAIM SUCH
ERRONEOUS PAYMENT WOULD NOT CONSTITUTE AUTHORITY FOR THE ALLOWANCE OF
YOUR CLAIM. ON THE CONTRARY, STEPS WILL BE TAKEN TO RECOVER ANY
ERRONEOUS PAYMENT THAT MAY HAVE BEEN MADE.
B-135319, MAR. 14, 1958
TO MR. ALFRED T. LILE:
REFERENCE IS MADE TO YOUR RECENT LETTER, POSTMARKED FEBRUARY 6, 1958,
REQUESTING REVIEW OF OUR SETTLEMENT OF DECEMBER 16, 1957, WHICH
DISALLOWED YOUR CLAIM FOR PER DIEM INCIDENT TO TRAVEL PERFORMED AS AN
ENLISTED MEMBER OF THE U.S. ARMY UNDER DEPARTMENT OF THE ARMY ORDERS
DATED APRIL 6, 1955. YOUR ORIGINAL CLAIM WAS CONSIDERED TO HAVE BEEN
INTENDED TO COVER ONLY THE PERIOD APRIL 21 TO 22, 1955. IT APPEARS NOW,
HOWEVER, THAT IT IS YOUR INTENTION THAT THE CLAIM COVER THE ENTIRE
PERIOD OF TRAVEL AND TEMPORARY DUTY PERFORMED PURSUANT TO THOSE ORDERS.
UNDER THE ORDERS OF APRIL 6, 1955, YOU AND OTHER DESIGNATED ENLISTED
AND OFFICER PERSONNEL WERE DIRECTED TO PROCEED ON OR ABOUT APRIL 21,
1955, FROM FORT EUSTIS, VIRGINIA, TO THULE, GREENLAND, ON TEMPORARY DUTY
FOR APPROXIMATELY 30 DAYS FOR THE PURPOSE OF PARTICIPATING IN
TRANSPORTATION CORPS ICECAP ACTIVITIES, UPON THE COMPLETION OF WHICH YOU
WERE TO RETURN TO YOUR PROPER STATION. THE ORDERS STATED THAT "ALL TDY
PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A TYPE CONTEMPLATED BY
JTR PARA 4250.3.' THE ITINERARY FURNISHED WITH YOUR CLAIM SHOWS THAT YOU
LEFT FORT EUSTIS UNDER THOSE ORDERS ON APRIL 21 AND THAT YOU ARRIVED AT
THULE ON APRIL 25, 1955. THE DATE OF YOUR DETACHMENT AT THULE IS NOT
SHOWN. IT IS PRESUMED THAT GOVERNMENT MESS AND QUARTERS WERE AVAILABLE
TO YOU DURING THE PERIOD INVOLVED.
PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING
THE PERIOD IN QUESTION, PROHIBITS THE PAYMENT OF PER DIEM FOR FIELD
DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES, AND
OTHER SIMILAR ACTIVITIES, PERFORMED WHERE BOTH RATIONS IN KIND AND
QUARTERS ARE FURNISHED, WHETHER OR NOT SUCH FACILITIES ARE UTILIZED.
SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY PERFORMED IN THE
UNITED STATES ARE CONTAINED IN PARAGRAPH 4201.6 OF THE REGULATIONS.
PARAGRAPH 4 OF ARMY SPECIAL REGULATIONS 35-3080-5, INTERPRETING THE
CITED PROVISIONS INSOFAR AS RELATING TO ARMY PERSONNEL, PROVIDES THAT IN
CASES WHERE PER DIEM IS NOT AUTHORIZED FOR TRAVEL AND DUTY DIRECTED
UNDER CONDITIONS CONTEMPLATED IN PARAGRAPHS 4201.6 AND 4250.3 OF THE
JOINT TRAVEL REGULATIONS THE ORDERS WILL CONTAIN THE STATEMENT THAT "ALL
TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF
A TYPE CONTEMPLATED BY PARAGRAPH 4201.6 (OR 4250.3), JOINT TRAVEL
REGULATIONS.' SUCH PROVISIONS RECOGNIZE THE AUTHORITY OF OFFICIALS
ISSUING TRAVEL ORDERS TO DETERMINE AND SPECIFY IN THE ORDERS THAT THE
TRAVEL AND TEMPORARY DUTY DIRECTED CONSTITUTES FIELD DUTY. SINCE
PROVISION TO THAT EFFECT WAS INCLUDED IN THE ORDERS OF APRIL 6, 1955,
EVIDENCING AN ADMINISTRATIVE DETERMINATION, NOT CONTROVERTED BY EVIDENCE
OTHERWISE AVAILABLE, THAT FIELD DUTY CIRCUMSTANCES WERE INVOLVED IN THE
TRAVEL AND TEMPORARY DUTY DIRECTED, IT MUST BE CONCLUDED THAT YOU WERE
IN A FIELD DUTY STATUS DURING THE PERIOD IN QUESTION WITHIN THE
CONTEMPLATION OF THE CITED REGULATIONS AND, THEREFORE, THAT NO AUTHORITY
EXISTS FOR THE PAYMENT TO YOU OF PER DIEM FOR ANY TRAVEL OR TEMPORARY
DUTY PERFORMED UNDER THE ORDERS OF APRIL 6, 1955. ACCORDINGLY, THE
SETTLEMENT OF DECEMBER 16, 1957, IS SUSTAINED.
IN SUPPORT OF YOUR CLAIM YOU REFER TO DECISIONS OF JUNE 10, 1955
(B-123853), AND MAY 16, 1956 (B-126945), INVOLVING TEMPORARY DUTY
ASSIGNMENTS OF MILITARY PERSONNEL AT THULE IN WHICH PER DIEM WAS HELD
PAYABLE. THE BASIC ORDERS IN THOSE CASES, HOWEVER, DID NOT CONTAIN A
STATEMENT OF ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY
DUTY DIRECTED WERE FIELD DUTY AS WAS DONE IN YOUR CASE. CONSEQUENTLY,
THOSE DECISIONS MAY NOT BE CONSIDERED AS AUTHORITY FOR THE PAYMENT OF
YOUR CLAIM.
B-135341, MAR. 14, 1958
TO LIEUTENANT COLONEL WILLIAM G. MCILHINEY:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 4, 1958, REQUESTING
FURTHER CONSIDERATION OF YOUR CLAIM UNDER THE DECISION OF THE UNITED
STATES SUPREME COURT IN UNITED STATES V. PLESHA, 352 U.S. 202, FOR A
REFUND OF $450 WHICH YOU STATE YOU REMITTED TO THE VETERANS
ADMINISTRATION TO APPLY UPON YOUR PURPORTED INDEBTEDNESS TO THE UNITED
STATES FOR THE AMOUNT IT WAS CALLED UPON TO PAY YOUR INSURANCE COMPANY
UNDER THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940.
IN OUR DECISION B-101126, DATED JUNE 24, 1957, 36 COMP. GEN. 825, AND
AFFIRMING DECISION B-101126, DATED MARCH 5, 1958, COPIES ENCLOSED FOR
YOUR INFORMATION, WE HELD THAT CONGRESSIONAL ACTION IS NECESSARY BEFORE
THE SOLDIERS' AND SAILORS' CIVIL RELIEF REVOLVING FUND, TREASURY SYMBOL
36 X 4135, WILL BE AVAILABLE FOR REFUNDING TO SERVICEMEN OR FORMER
SERVICEMEN SUMS COLLECTED FROM THEM ON ACCOUNT OF THEIR PURPORTED
INDEBTEDNESS TO THE UNITED STATES FOR LOSSES SUSTAINED BY IT IN
GUARANTEEING PAYMENT OF PREMIUMS ON CERTAIN COMMERCIAL LIFE INSURANCE
POLICIES AND WHICH LOSSES THE SUPREME COURT DECIDED DO NOT CONSTITUTE AN
INDEBTEDNESS OF THE SERVICEMEN OR FORMER SERVICEMEN TO THE UNITED
STATES.
APPARENTLY, YOU ARE OF THE VIEW THAT OUR OFFICE HAS A GENERAL FUND
AVAILABLE FOR THE PAYMENT OF ALL CLAIMS AGAINST THE UNITED STATES.
HOWEVER, ALL PAYMENTS MADE BY OUR OFFICE ARE MADE OUT OF FUNDS
APPROPRIATED FOR THE PURPOSE FOR WHICH PAYMENT IS MADE AND THERE EXISTS
NO APPROPRIATION FROM WHICH REFUNDS UNDER THE PLESHA DECISION PROPERLY
MAY BE MADE CURRENTLY. HOWEVER, THERE ARE PENDING BEFORE THE COMMITTEE
ON VETERANS AFFAIRS, HOUSE OF REPRESENTATIVES, H.R. 9287 AND H.R. 9369
WHICH, IF ENACTED INTO LAW, WOULD MAKE THE BALANCE IN THE SOLDIERS' AND
SAILORS' CIVIL RELIEF REVOLVING FUND AVAILABLE AND AUTHORIZE ADDITIONAL
APPROPRIATIONS FOR MAKING REFUNDS UNDER THE PLESHA DECISION.
ACCORDINGLY, NO AMOUNT BEING AVAILABLE CURRENTLY FOR PAYMENT OF
REFUNDS UNDER THE PLESH DECISION, THERE IS NO ACTION WHICH WE MAY
PROPERLY TAKE, AT THIS TIME, TO ALLOW YOUR CLAIM.
B-135407, MAR. 14, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER OF FEBRUARY 28, 1958, WITH ENCLOSURE,
FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) REFERRING TO
US FOR DETERMINATION THE QUESTION AS TO WHETHER THERE MAY BE GRANTED THE
RELIEF REQUESTED BY DORSEY TRAILERS, INCORPORATED, BECAUSE OF AN ERROR
IN THE BID IT SUBMITTED WHICH FORMED THE BASIS OF CONTRACT NO.
DA-20-113-ORD-21061, DATED JUNE 28, 1956.
A RESUME OF THE FACTS OF RECORD SHOWS THAT ITEM NO. 1 OF THE
INVITATION CALLED FOR 234 TRAILERS TO BE FURNISHED IN ACCORDANCE WITH
SCHEDULE A MADE A PART THEREOF. PARAGRAPH 9.4 OF THE SCHEDULE SPECIFIED
THAT ONE SPARE WHEEL WAS REQUIRED. THE SCHEDULE ALSO REQUIRED EACH
BIDDER TO EXECUTE A QUESTIONNAIRE ATTACHED TO THE INVITATION RELATING,
PRIMARILY, TO SIZE OR DESCRIPTION OF THE COMPONENT PARTS TO BE USED IN
THE ASSEMBLY OF THE END PRODUCT. UNDER ITEM NO. 9 OF THE QUESTIONNAIRE
THE CONTRACTOR STIPULATED THAT CAST STEEL SPOKE WHEELS WOULD BE
FURNISHED. BIDDERS WERE NOT RESTRICTED TO A PARTICULAR TYPE OF WHEEL,
OTHERWISE ACCEPTABLE.
SCHEDULE B OF THE SUBJECT CONTRACT, AS WELL AS A PRIOR CONTRACT
AWARDED TO DORSEY TRAILERS, INCORPORATED, SPECIFIED THAT ONE SPARE WHEEL
OR RIM WAS TO BE SUPPLIED FOR EACH UNIT. THE ERROR COMMITTED IN THIS
CASE WAS THE CONTRACTOR'S FAILURE TO NOTE THAT SCHEDULE A STIPULATED
THAT ONLY A SPARE WHEEL WAS TO BE FURNISHED. LIKEWISE, IT IS ADMITTED
THAT THE PROCUREMENT AUTHORITIES SHOULD HAVE DETECTED THE OVERSIGHT,
SINCE THE TYPE OF WHEEL SHOWN ON THE QUESTIONNAIRE WHICH THE CONTRACTOR
CONTEMPLATED FURNISHING WOULD BE USELESS TO THE GOVERNMENT AS A SPARE
BECAUSE A RIM IS NOT AN INTEGRAL PART OF THAT TYPE OF WHEEL ASSEMBLY.
THE OVERSIGHT ON THE PART OF BOTH PARTIES WAS NOT BROUGHT TO LIGHT
UNTIL AFTER AWARD OF THE CONTRACT AND PRODUCTION OF THE TRAILERS HAD
BEEN STARTED. BECAUSE THE WHEEL CALLED FOR UNDER THE CONTRACT REQUIRED
ONLY A RIM, ON WHICH A TIRE IS MOUNTED, AS SPARE EQUIPMENT, THE CONTRACT
WAS AMENDED ACCORDINGLY. RESPONSIBILITY FOR THE SITUATION APPEARS TO
FALL EQUALLY UPON BOTH PARTIES BECAUSE OF THE ERRONEOUS ASSUMPTION ON
THE PART OF THE CONTRACTOR THAT THE SPECIFICATIONS PERTAINING TO THE
SPARE WHEEL, INCLUDED IN THE ALTERNATE, THE FURNISHING OF A RIM, AND THE
OVERSIGHT ON THE PART OF THE CONTRACTING OFFICER THAT IN VIEW OF THE
TYPE OF WHEEL STIPULATED BY THE CONTRACTOR, ONLY A SPARE RIM WAS
ACCEPTABLE.
SINCE THE GOVERNMENT RECEIVED THE SPARE PART IT WANTED, AND SINCE THE
CONTRACTOR HAS ESTABLISHED THAT IN THE COMPUTATION OF ITS BID IT
INCLUDED ONLY THE COST OF ONE SPARE RIM PER UNIT, WE CONCUR WITH THE
CONTRACTING OFFICER AND THE OFFICE, CHIEF OF ORDNANCE, THAT THE CONTRACT
PRICE SHOULD NOT BE DISTURBED, AND THAT THE BALANCE DUE UNDER THE
CONTRACT BE PAID.
B-131183, MAR. 13, 1958
TO THE SECRETARY OF THE TREASURY:
LETTER DATED JANUARY 24, 1958, FROM THE COMMISSIONER OF INTERNAL
REVENUE (REFERENCE O:C:OM-RVE) CONCERNS THE PAYMENT BY THE AIR FORCE TO
THE INTERNAL REVENUE SERVICE OF $25,521.48, REPRESENTING THE PROCEEDS OF
TREASURY CHECK NO. 415059, DATED NOVEMBER 21, 1956, DRAWN TO THE ORDER
OF THE TREASURER OF THE UNITED STATES OR FANDERLIK-LOCKE COMPANY IN
PAYMENT FOR SERVICES PERFORMED BY THE LATTER UNDER ITS CONTRACT NO. AF
45/602/-156.
THE SECURITY-FIRST NATIONAL BANK OF LOS ANGELES CLAIMS IT IS ENTITLED
TO THE PROCEEDS OF THE CHECK BY VIRTUE OF AN ASSIGNMENT EXECUTED JULY
11, 1956, WHEREBY THE FANDERLIK-LOCKE COMPANY, FOR VALUABLE
CONSIDERATION, TRANSFERRED AND ASSIGNED TO THE SAID BANK "ALL THE MONEYS
NOW DUE AND THE MONEYS HEREAFTER TO BECOME DUE" THE ASSIGNOR UNDER THE
CITED CONTRACT, AND ALL AMENDMENTS AND SUPPLEMENTS THERETO. THIS
ASSIGNMENT WAS EFFECTED PURSUANT TO THE ASSIGNMENT OF CLAIMS ACT OF
1940, AS AMENDED, 31 U.S.C. 203, 41 U.S.C. 15, AND IT IS UNDERSTOOD THE
AIR FORCE CONTRACT REFERRED TO CONTAINED THE USUAL "NO SET-OFF" CLAUSE,
PROHIBITING THE REDUCTION OR SET-OFF FROM PAYMENTS TO BE MADE TO THE
ASSIGNEE OF TAXES, FINES OR PENALTIES OWED BY THE CONTRACTOR TO THE
GOVERNMENT.
UPON THE BASIS OF THE DATA FURNISHED IN A MEMORANDUM DATED FEBRUARY
27, 1957, FROM THE LOS ANGELES COLLECTION DIVISION, INTERNAL REVENUE
SERVICE, INDICATING A REPAYMENT ON JULY 26, 1956, OF THE $75,000
FANDERLIK LOAN, AND AN ABSENCE OF ANY INDEBTEDNESS OF THE CONTRACTOR, OR
ITS CO-VENTURER, MYERS BROTHERS, TO THE BANK AT THE TIME THE
GOVERNMENT'S TAX LIEN WAS ASSERTED AND SATISFIED IN THE MANNER ABOVE
INDICATED, WE HELD IN OUR DECISION B-131183 OF JULY 8, 1957, 37 COMP.
GEN. 9, THAT THE CLAIM OF THE GOVERNMENT WAS SUPERIOR TO THAT OF THE
BANK AND, THEREFORE, AUTHORIZED THE INTERNAL REVENUE SERVICE TO RETAIN
THE PROCEEDS OF TREASURY CHECK NO. 415059.
THE ASSIGNEE HAS CHALLENGED THE CORRECTNESS OF THE GOVERNMENT'S
POSITION, HOWEVER, ALLEGING IN ITS LETTER OF AUGUST 22, 1957, THAT THE
FANDERLIK NOTE DATED JULY 3, 1956, FOR $75,000, WAS NOT PAID ON JULY 26,
1956, AS WAS PREVIOUSLY REPORTED, BUT MERELY WAS RENEWED ON THAT DATE,
WHEN AN ADDITIONAL SUM OF $50,000 WAS ADVANCED TO THE JOINT VENTURE
CONSISTING OF THE FANDERLIK-LOCKE COMPANY AND MYERS BROTHERS, WHO
ASSISTED IN THE PERFORMANCE OF THE INSTANT AIR FORCE CONTRACT NO. AF
45/602/-156, AND SEVERAL OTHER GOVERNMENT CONSTRUCTION CONTRACTS AS
CO-VENTURERS WITH FANDERLIK. FURTHER, IT WAS POINTED OUT THAT
COMMENCING ON MARCH 6, 1956, WHEN A $125,000 LOAN WAS MADE TO THE JOINT
VENTURE, AND CONTINUING TO THE PRESENT TIME, THE SAID FIRMS, AS JOINT
VENTURERS UNDER GOVERNMENT CONTRACTS, HAVE CONTINUOUSLY--- EXCEPT FOR
POSSIBLY TWO OR THREE DAYS BETWEEN NOVEMBER 26 AND 29, 1956, BEEN
INDEBTED TO THE SECURITY-FIRST NATIONAL BANK OF LOS ANGELES FOR LOANS
VARYING IN AMOUNTS FROM $50,000 TO AS MUCH AS $400,000, WHICH WERE
UTILIZED IN THE FINANCING OF THEIR JOINT ENTERPRISES.
FURTHERMORE, IT NOW APPEARS FROM RECORDS ACCOMPANYING THE
COMMISSIONER'S LETTER OF JANUARY 24, 1958, THAT THE CONTRACTOR'S PRESENT
INDEBTEDNESS TO THE ASSIGNEE AMOUNTS TO AT LEAST $150,000, AND THAT AT
THE TIME THE GOVERNMENT'S TAX LIEN WAS FIRST ACQUIRED ON AUGUST 23,
1956, THE JOINT VENTURE HAD OUTSTANDING LOANS OF $175,000 WITH THE
ASSIGNEE BANK. ALSO, WHEN TREASURY CHECK NO. 415059, DATED NOVEMBER
21, 1956, WAS DRAWN IN PAYMENT FOR SERVICES PERFORMED BY THE CONTRACTOR
UNDER THE ASSIGNED CONTRACT NO. AF 45/602/-156, THE JOINT VENTURE OWED
$175,000 TO THE ASSIGNEE FOR LOANS MADE TO FINANCE GOVERNMENT CONTRACTS.
IT IS NOTED THE SUPPLEMENTAL REPORT DATED NOVEMBER 26, 1957, FROM THE
DISTRICT DIRECTOR OF INTERNAL REVENUE AT LOS ANGELES, QUOTED AT LENGTH
IN THE COMMISSIONER'S LETTER OF JANUARY 24, 1958, CONFIRMS MOST OF THE
ALLEGATIONS CONTAINED IN THE ASSIGNEE'S LETTER OF AUGUST 22, 1957.
IN OUR DECISION 36 COMP. GEN. 19, ON PAGES 22 AND 23, WE STATED:
"IT SEEMS TO US THAT THE PERMISSION GIVEN BY THE STATUTE TO INSERT A
"NO SET-OFF" CLAUSE IN CONTRACTS UNDER WHICH FULL PAYMENT HAS NOT BEEN
MADE, EVEN THOUGH ALL WORK REQUIRED BY THE CONTRACT MAY HAVE BEEN
COMPLETED, NEGATIVES ANY INFERENCE THAT THE "NO SET-OFF" PROTECTION IS
RESTRICTED TO ADVANCES MADE FOR PERFORMANCE OF THE PARTICULAR CONTRACT
CONTAINING SUCH CLAUSE. THIS CONCLUSION WAS REACHED BY THE COURT IN THE
CASE OF PETERMAN LUMBER COMPANY V. ADAMS, 128 F.SUPP. 6. WE REALIZE
THAT THE COURT IN THAT CASE ALSO STATED ITS OPINION THAT THE ASSIGNMENT
OF CLAIMS ACT "IMPLIEDLY" LIMITED ASSIGNMENTS TO THOSE MADE FOR THE
PURPOSE OF FINANCING GOVERNMENT CONTRACTS IN GENERAL. * * *
"* * * THE ACT, AS AMENDED, WAS FOR THE PURPOSE OF AFFORDING
PROTECTION TO FINANCIAL INSTITUTIONS WHICH LOANED MONEY ON THE SECURITY
OF GOVERNMENT CONTRACTS. WHILE THE USE MADE OF FUNDS SO LOANED MAY
AFFECT THE EQUITIES BETWEEN AN ASSIGNEE AND OTHER CLAIMANTS OF THE
CONTRACT PROCEEDS, WE DO NOT SEE THAT IT AFFECTS THE GOVERNMENT'S
LIABILITY TO COMPLY WITH THE ASSIGNMENT SO LONG AS THE ASSIGNOR REMAINS
INDEBTED TO THE ASSIGNEE.'
THE PRINCIPLE STATED ABOVE APPEARS PROPER FOR APPLICATION TO THE
FACTS REPORTED IN THE INSTANT MATTER. HERE, THE RECORD REASONABLY
ESTABLISHES THAT THE ASSIGNOR'S INDEBTEDNESS TO THE ASSIGNEE FOR
AUTHORIZED LOANS WAS VIRTUALLY CONTINUOUS FROM AS EARLY AS MARCH 6,
1956, UNTIL THE PRESENT TIME.
THEREFORE, UPON THE BASIS OF THE FACTS NOW OF RECORD, THERE EXISTS NO
PROPER OR LEGAL BASIS FOR THE CONTINUED WITHHOLDING BY THE INTERNAL
REVENUE SERVICE OF THE PROCEEDS OF TREASURY CHECK 415059, AND
ACCORDINGLY, THE AMOUNT OF $25,521.48 SHOULD BE REFUNDED TO THE
SECURITY-FIRST NATIONAL BANK OF LOS ANGELES.
B-131932, MAR. 13, 1958
TO MR. LEO M. JOHNSON, CIVILIAN DISBURSING OFFICER, DEPARTMENT OF THE
ARMY:
BY 1ST INDORSEMENT OF JANUARY 8, 1958, FILE NO. ENGCR 167 (26 SEPT
57) DA 45-108-ENG-565, THE OFFICE OF THE CHIEF OF ENGINEERS FORWARDED
HERE YOUR REQUEST FOR REVIEW OF CERTAIN NOTICES OF EXCEPTIONS ISSUED BY
OUR OFFICE CONCERNING PAYMENTS TO THE TOWN OF BRIDGEPORT, WASHINGTON,
FOR FIRE PROTECTION, SNOW REMOVAL, STREET MAINTENANCE, FOR THE PERIOD
FROM JULY 1, 1950, TO DECEMBER 31, 1956, UNDER CONTRACT NO.
DA-45-108-ENG-565, DATED JUNE 15, 1950.
THE AUDIT ACTION TAKEN WAS BASED UPON THE PREMISE THAT SINCE THE
GOVERNMENT HOUSING UNITS SERVED WITH THE ABOVE SERVICES ARE LOCATED
WITHIN THE LIMITS OF THE TOWN OF BRIDGEPORT, THE UNITED STATES IS
ENTITLED TO RECEIVE SUCH SERVICES WITHOUT CHARGE. 36 COMP. GEN. 286;
35 ID. 311; 31 ID. 405; 26 ID. 382. THEREFORE, IT WAS CONCLUDED THAT
THE CONTRACT PURPORTING TO OBLIGATE THE UNITED STATES FOR SUCH SERVICES
WAS UNAUTHORIZED.
THE REQUEST FOR REVIEW IS ON THE BASIS THAT THE ABOVE DECISIONS CITED
IN THE NOTICE OF EXCEPTION ARE DISTINGUISHABLE FROM THE PRESENT CASE.
THE PRIMARY BASIS FOR THE CLAIMED DISTINCTION APPEARS TO BE THAT CITED
DECISIONS CONCERNED CITIES HAVING POPULATIONS GREATER THAN BRIDGEPORT'S
POPULATION OF APPROXIMATELY 300; THAT ITS POPULATION WAS GREATLY
INCREASED BY THE INFLUX OF APPROXIMATELY 200 GOVERNMENT WORKERS WHO
OCCUPIED THE 40 GOVERNMENT CONSTRUCTED HOUSES AND TRAILERS WHICH WERE
LOCATED APPROXIMATELY FIVE BLOCKS FROM THE INHABITED TOWN AREA; THAT
THE INCREASE IN TAX RECEIPTS WAS NEGLIGIBLE DUE TO WORKERS OCCUPYING
GOVERNMENT HOUSING; AND THAT SINCE THE CITY DID NOT HAVE POLICE AND
FIRE PROTECTION CONSIDERED AS ADEQUATE TO MEET A STANDARD SATISFACTORY
TO THE GOVERNMENT AND SINCE THE CITY WAS NOT FINANCIALLY ABLE TO IMPROVE
THE SERVICES BEING RENDERED ACTION WAS TAKEN TO PROVIDE THESE SERVICES
AT THE LEAST COST TO THE GOVERNMENT. IT IS STATED THAT AT THE TIME THE
ABOVE CONTRACT WAS EXECUTED IT WAS BELIEVED THAT THE STATUTE AUTHORIZING
THE CONSTRUCTION OF THE CHIEF JOSEPH DAM (JULY 24, 1946, 60 STAT. 634,
637 AS IMPLEMENTED BY H.DOC. 693, 79TH CONGRESS) CONSTITUTED SUFFICIENT
AUTHORITY FOR EXECUTION OF THE CONTRACT AND THAT THE PAYMENTS UNDER THE
CONTRACT ARE NOT CONSIDERED AS A PAYMENT IN LIEU OF TAXES BUT ON THE
CONTRARY AS A REIMBURSEMENT TO THE TOWN TO PERMIT THE PURCHASE OF FIRE
EQUIPMENT AND SERVICES TO BRING PROTECTION UP TO AN ADEQUATE STANDARD.
UNDER ARTICLE I OF THE CONTRACT THE TOWN IS OBLIGATED TO FURNISH THE
ABOVE SERVICES TO THE GOVERNMENT FACILITIES ALL LOCATED WITHIN THE
CORPORATED LIMITS OF THE TOWN TO AN EXTENT AND STANDARD SATISFACTORY TO
THE GOVERNMENT "BUT IN NO EVENT TO A LESS EXTENT AND STANDARD THAN SUCH
SERVICES ARE FURNISHED ANY OTHER RESIDENTIAL AREA OF THE TOWN.' UNDER
ARTICLE III (B) THE TOWN IS
REQUIRED TO PROVIDE FIRE PROTECTION TO MEET THE NATIONAL
UNDERWRITERS' REQUIREMENTS FOR TOWNS OF SIMILAR POPULATION. IT IS
SPECIFIED THAT THE MINIMUM EQUIPMENT AND PERSONNEL TO BE PROVIDED SHALL
CONSIST OF ONE 1,000 GALLON PER MINUTE PUMPER COMPLETELY EQUIPPED,
AUXILIARY HOSE AND LADDER, TRUCK AND CHEMICAL ENGINE, ONE FIRE CHIEF,
ONE PAID FIREMAN ON 24-HOUR DUTY, AND A TRAINED VOLUNTEER FIRE
DEPARTMENT OF NOT LESS THAN 12 MEMBERS. THE TENOR OF THE CONTRACT IN
ITS ENTIRETY APPEARS TO BE THAT SO FAR AS CONCERNS THE SERVICES HERE
INVOLVED THE RESIDENTS OF THE GOVERNMENT-OWNED AREA SHALL HAVE MADE
AVAILABLE TO THEM SUCH SERVICES TO THE SAME EXTENT AS MAY BE PROVIDED
FOR ANY OTHER RESIDENTIAL AREA.
IN CONSIDERATION FOR THE FURNISHING OF THE ABOVE SERVICES ARTICLE II
OF THE CONTRACT PURPORTS TO OBLIGATE THE GOVERNMENT FOR AN ANNUAL
PAYMENT OF $2,280 TO BEGIN UPON COMPLETION OF A MAJOR PORTION OF THE
GOVERNMENT-CONTROLLED HOUSING AND OCCUPANCY THEREOF. WHILE IT IS URGED
THAT THE CONTRACT MAY NOT BE CONSIDERED AS A CONTRACT FOR PAYMENTS TO
THE TOWN "IN LIEU OF TAXES," OR THAT EITHER PARTY THERETO CONSIDERED IT
AS SUCH, THE RECORD SHOWS THAT THE STIPULATED ANNUAL PAYMENT WAS
CALCULATED BY AN APPROXIMATION OF THE TAX RATES SO THAT THE PAYMENTS
WOULD BE COMPARABLE TO THOSE WHICH PRIVATE CITIZENS WOULD PAY FOR SUCH
SERVICES FOR CORRESPONDING PROPERTY. THUS, IT APPEARS THAT THE EFFECT
OF THE ARRANGEMENT IS TANTAMOUNT TO GENERAL TAXATION TO COVER THE
OVERALL PRO RATA COST OF THE SERVICES TO BE FURNISHED UNDER THE CONTRACT
WHICH SERVICES PRESUMABLY HAVE BEEN MADE AVAILABLE TO OTHER RESIDENTS OF
THE TOWN WITHOUT SPECIAL SERVICE OR OTHER CHARGES OTHER THAN THE PAYMENT
OF GENERAL TAXES. AS SUCH, THE ANNUAL PAYMENT PROVIDED FOR UNDER THE
CONTRACT, IS NOTHING MORE OR LESS THAN A PAYMENT IN LIEU OF TAXES WHICH
IS UNAUTHORIZED IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR.
31 COMP. GEN. 405; 23 ID. 406. THAT IT WAS SO INTENDED IS EVIDENCED BY
THE FOURTH AND SIXTH INDORSEMENTS TO THE PRELIMINARY REPORT ON THE
PROPOSED HOUSING UNITS, DATED MAY 3, 1949, WHICH RECITE RESPECTIVELY,
THAT MUNICIPAL SERVICES IN CONNECTION THEREWITH ARE "TO BE EFFECTED BY
GOVERNMENT PAYMENTS IN LIEU OF TAXES" AND THAT "SERVICES FURNISHED BY
THE TOWN OF BRIDGEPORT AND GOVERNMENT PAYMENTS IN LIEU OF TAXES * * *
SHOULD BE * * * ON AN EQUITABLE BASIS.' TO THE SAME EFFECT IS A
STATEMENT IN A SUPPLEMENTAL MEMORANDUM DATED OCTOBER 20, 1949, TO DESIGN
MEMO NO. 7 COVERING THE HOUSING UNITS THAT "FINANCIAL ASSISTANCE (TO THE
TOWN OF BRIDGEPORT) FROM THE GOVERNMENT, IN THE FORM OF PAYMENTS IN LIEU
OF TAXES, WILL BE REQUIRED," TO ENABLE THE TOWN TO SUPPLY POLICE AND
FIRE PROTECTION AND INSTITUTE A GARBAGE COLLECTION SYSTEM.
OUR DECISIONS CONSISTENTLY HAVE HELD THAT CONTRACTS ENTERED INTO WITH
MUNICIPALITIES FOR FURNISHING FIRE AND POLICE PROTECTION AND OTHER
GOVERNMENTAL SERVICES TO FACILITIES OF THE FEDERAL GOVERNMENT LOCATED
WITHIN THEIR BOUNDARIES DO NOT GIVE RISE TO VALID ENFORCEABLE
OBLIGATIONS. 15 COMP. GEN. 295; 24 ID. 599; 31 ID. 405; 35 ID. 311;
36 ID. 286. THIS, IS IN ACCORDANCE WITH THE PRINCIPLE, RECOGNIZED BY
THE OVERWHELMING WEIGHT OF AUTHORITY THAT THE FURNISHING OF FIRE
PROTECTION IS A GOVERNMENTAL FUNCTION THE EXERCISE OF WHICH CARRIES WITH
IT NO POWER TO INTERPOSE CONDITIONS NOT PROVIDED BY LAW. THE RULE
APPLIES TO SMALL CITIES OR TOWNS TO THE SAME EXTENT AS TO LARGER CITIES
OR TOWNS. 26 COMP. GEN. 382; B-129013, SEPTEMBER 20, 1956.
AT THE TIME THE ABOVE CONTRACT WAS ENTERED INTO THE TOWN OF
BRIDGEPORT WAS CLASSIFIED AS A FOURTH CLASS TOWN. UNDER SECTION
35.27.370 (4) OF THE REVISED CODE OF WASHINGTON, THE COUNCIL OF EVERY
TOWN IS EMPOWERED TO ESTABLISH, IMPROVE, AND REPAIR STREETS, SIDEWALKS
AND PLACES WITHIN THE TOWN. UNDER SUBPARAGRAPH 6 OF THE ABOVE SECTION
EVERY TOWN IS AUTHORIZED TO PROVIDE FIRE ENGINES AND ALL OTHER NECESSARY
OR PROPER APPARATUS FOR THE PREVENTION AND EXTINGUISHMENT OF FIRES.
UNDER SUBPARAGRAPH 8 EVERY TOWN IS AUTHORIZED TO LEVY AND COLLECT
ANNUALLY A PROPERTY TAX FOR THE PAYMENT OF CURRENT EXPENSES AND
INDEBTEDNESS. THE DUTY TO PAY THE TAX SO LEVIED IS IN NO WAY DEPENDENT
ON OR MEASURED BY THE SERVICE RENDERED ANY PARTICULAR PROPERTY. IN THIS
CONNECTION THE 14TH AMENDMENT OF THE WASHINGTON STATE CONSTITUTION
EXPRESSLY PROVIDES THAT PROPERTY OF THE UNITED STATES SHALL BE EXEMPT
FROM TAXATION.
SINCE THE ABOVE CONTRACT WOULD HAVE THE EFFECT OF NULLIFYING THE TAX
EXEMPT STATUS OF THE GOVERNMENT PROPERTY AND SINCE NO STATUTORY
AUTHORITY HAS BEEN CITED AUTHORIZING PAYMENT OF ANY AMOUNT IN LIEU OF
TAXES IN THIS INSTANCE, THE ABOVE CONTRACT MUST BE REGARDED AS
UNAUTHORIZED AND VOID AB INITIO, AND THE EXCEPTIONS TAKEN TO THE
PAYMENTS WERE PROPER AND WILL BE CONTINUED.
B-134871, MAR. 13, 1958
TO ALASKA FREIGHT LINES, INC. :
REFERENCE IS MADE TO LETTERS OF JANUARY 6 AND JANUARY 13, 1958, FROM
YOUR ATTORNEYS PROTESTING THE ACTION OF CHIEF OF TRANSPORTATION, U.S.
ARMY (OCT), IN REFUSING TO ACCEPT YOUR RATE TENDER NO. 8-M FOR THE
MOVEMENT OF SUPPLIES DURING THE 1958 SHIPPING SEASON TO CERTAIN AIR
FORCE BASES IN ALASKA.
THE RECORD SHOWS THAT THE RESPONSIBILITY FOR TRANSPORTATION AND
DELIVERY OF THE RESUPPLY MATERIAL TO THE ABOVE BASES WAS ASSIGNED TO THE
ARMY; THAT PRIOR TO 1957 THE RESUPPLY OPERATION OF THE SITES WAS
ACCOMPLISHED BY MILITARY TASK FORCES; THAT THROUGH THE EXPERIENCE
GAINED FROM MILITARY OPERATION IT WAS DEEMED DESIRABLE, IN 1957, TO
ATTEMPT TO RESUPPLY THE MONA LISA AND KUSKOKWIM RIVER SITES BY THE USE
OF COMMERCIAL CARRIERS LEAVING THE RESUPPLY OF THE DEWLINE SITES TO A
MILITARY TASK FORCE. NEGOTIATIONS WERE CONDUCTED WITH SEVERAL
COMMERCIAL CARRIERS FOR RESUPPLYING THE MONA LISA AND KUSKOKWIM RIVER
SITES FOR THE YEAR 1957. FIRVE CARRIERS, INCLUDING YOUR COMPANY,
INDICATED A WILLINGNESS TO PARTICIPATE IN THIS OPERATION ON CONDITION
THAT A DEADLINE BE ESTABLISHED FOR SUBMISSION OF THE RATE TENDERS AND ON
THE FURTHER CONDITION THAT EACH CARRIER WOULD BE PERMITTED TO MEET THE
LOWEST RATE SO THAT EACH COULD RECEIVE A PRO RATA SHARE OF THE CARGO.
IT IS ADMINISTRATIVELY REPORTED THAT SINCE THE GOVERNMENT WAS NOT
CERTAIN OF THE ABILITY OF ANY SINGLE CARRIER TO PERFORM THE ENTIRE
RESUPPLY OPERATION AND SINCE IT WAS FACED WITH THE NECESSITY OF HAVING
THE RESUPPLY OPERATION ACCOMPLISHED BY ALTERNATE CARRIERS IF THE ONE
SELECTED DEFAULTED, THE GOVERNMENT ACCEPTED THE CARRIERS' CONDITIONS AND
PERMITTED THOSE SUBMITTING TENDERS TO MEET THE LOWEST RATE TENDERED AND
TO PARTICIPATE IN THE 1957 OPERATION. IT IS FURTHER REPORTED THAT THIS
NEGOTIATION AND RESUBMISSION OF TENDERS CONSUMED AN EXCESSIVE AMOUNT OF
TIME; THAT IT CONTRIBUTED TO THE DIFFICULTIES OF COORDINATING SUPPLY
AND TRANSPORTATION ACTIONS IN THE FIELD; AND THAT THIS EXPERIENCE
POINTED UP THE NECESSITY OF ESTABLISHING A TIMETABLE AND CERTAIN
CRITERIA FOR THE 1958 OPERATION, INCLUDING AMONG OTHERS THE FOLLOWING:
1. A SINGLE POINT AND TIME WAS TO BE ESTABLISHED FOR CARRIERS TO
SUBMIT TENDERS FOR MOVEMENT FROM OUR WEST COAST PORTS AND DUTCH HARBOR,
ALASKA.
2. TENDERS WERE TO BE STANDARD AND COMPARABLE, SO THAT CARRIERS
COULD BE SELECTED ON A COMPETITIVE BASIS.
3. RATES SUBMITTED WERE TO COVER EACH COMMODITY AS A SEPARATE ITEM.
4. CARRIERS WOULD NOT BE GUARANTEED A SPECIFIC VOLUME.
5. THE CARRIER WAS TO BE SELF-SUSTAINING.
6. THAT THE DEADLINE FOR RECEIVING TENDERS SHOULD BE NO LATER THAN
NOVEMBER 15, 1957.
7. THAT EVALUATION OF TENDERS MUST BE IN HIGHER HEADQUARTER, NO
LATER THAN DECEMBER 1, 1957, TO PERMIT AN EARLY DETERMINATION CONCERNING
COMMERCIALIZATION OF DEWLINE.
8. A RELATIVELY LONG LEAD TIME WAS NECESSARY PRIOR TO SHIPMENT IN
ORDER THAT---
(A) THE SELECTED CARRIER OR CARRIERS COULD PROCURE THE SPECIAL
EQUIPMENT REQUIRED TO AUGMENT THE STANDARD EQUIPMENT FOR THIS DIFFICULT
AND NON-STANDARD OPERATION; AND
(B) CARRIER PLANNING AND ORGANIZATION SHOULD BE ESTABLISHED TO FIT
THE OPERATIONAL CONDITIONS UNDER WHICH THE RESUPPLY WOULD BE CONDUCTED.
9. RESUPPLY TO DEWLINE SITES COULD BE HANDLED COMMERCIALLY.
10. CARRIERS TO BE NOTIFIED THAT COMPETITIVE PROCESS WOULD BE
ENFORCED IN THE 1958 RESUPPLY OPERATION AND THAT THE GOVERNMENT WAS NOT
CONTEMPLATING THE NEGOTIATION OF A COMMON SET OF RATES APPLICABLE TO ALL
CARRIERS AND ALL SITES.
BY LETTER DATED OCTOBER 30, 1957, ALL INTERESTED CARRIERS WERE
NOTIFIED THAT AN OPEN MEETING WOULD BE HELD AT FORT MASON, SAN
FRANCISCO, CALIFORNIA, FOR THE PURPOSE OF FURNISHING THEM WITH THE
NECESSARY DATA RELATIVE TO THE PROPOSED RESUPPLY OPERATION FOR 1958.
THE LETTER, TOGETHER WITH THE ENCLOSURE, REQUESTED SEALED BIDS AND
FURNISHED THE CARRIERS WITH ALL NECESSARY DATA, INFORMATION AND
INSTRUCTIONS REQUIRED FOR FORMULATING THEIR TENDERS OF SERVICE.
SPECIFICALLY, IT PUT ALL INTERESTED CARRIERS ON NOTICE THAT IN ORDER TO
BE ACCEPTABLE ALL TENDERS MUST BE SUBMITTED TO THE DIRECTOR OF
OPERATIONS, U.S. ARMY TERMINAL COMMAND, PACIFIC, FORT MASON, CALIFORNIA,
AT 1300 HOURS NOVEMBER 15, 1957. IN ADDITION TO THE ARMY PERSONNEL AND
YOUR COMPANY'S REPRESENTATIVE EIGHT OTHER INTERESTED COMPANIES ATTENDED
THE MEETING.
IT IS REPORTED THAT AT THIS OPEN MEETING THE CARRIERS WERE INFORMED
OF ALL MILITARY REQUIREMENTS; THAT THEY WERE FURNISHED WITH A SAMPLE OF
THE DESIRED TENDER FORMAT; THAT THEY WERE INFORMED THAT THE RATE
TENDERS SUBMITTED AS OF NOVEMBER 15, 1957, WOULD STAND; AND THAT THERE
WOULD BE NO REVISION OR RENEGOTIATION OF RATES AFTER THAT DATE. IT IS
FURTHER REPORTED THAT ALL VERBAL INSTRUCTIONS GIVEN TO THE CARRIERS AT
THE OCTOBER 30TH MEETING WERE CONFIRMED IN WRITING BY LETTER OF THE SAME
DATE AND THAT A COPY THEREOF WAS FURNISHED EACH REPRESENTATIVE PRESENT.
ALSO, PRIOR TO ADJOURNMENT OF THE MEETING EACH CARRIER'S REPRESENTATIVE
WAS GIVEN A SEPARATE INTERVIEW SCHEDULE FOR THE FOLLOWING DAY, OCTOBER
31, 1957, TO PERMIT DISCUSSION AND CLARIFICATION OF ANY MATTER NOT
PREVIOUSLY DEFINED. IT IS REPORTED THAT APPROXIMATELY ONE HOUR AFTER
THE MEETING HAD ADJOURNED, MR. HUNDLEY, YOUR COMPANY'S REPRESENTATIVE,
NOTIFIED THE DIRECTOR OF OPERATIONS, U.S. ARMY TRANSPORTATION TERMINAL
COMMAND, THAT HE WOULD NOT ATTEND THE MEETING ON OCTOBER 31, 1957. IT
IS REPORTED THAT AT THE SAME TIME YOUR REPRESENTATIVE CONGRATULATED THE
COMMAND FOR HAVING PRESENTED A COMPLETE PACKAGE AND STATED THAT HE HAD
ALL THE INFORMATION TO COMPLY WITH THE INSTRUCTIONS FOR SUBMISSION OF
TENDERS.
FOLLOWING REVIEW OF THE TENDERS SUBMITTED ON NOVEMBER 15, 1957,
ALASKA BARGE AND TRANSPORT WAS NOTIFIED THAT THEIR TENDER WAS LOW FOR
BULK POL AND DRY CARGO FROM DUTCH HARBOR TO DEWLINE SITES AND FOR BULK
POL FROM DUTCH HARBOR TO MONA LISA SITES. GARRISON FAST FREIGHT WAS
NOTIFIED THAT ITS TENDER WAS LOW FOR BULK POL FROM DUTCH HARBOR TO
KUSKOKWIM RIVER SITES AND DRY CARGO FROM CONUS WEST COAST TO KUSKOKWIM
RIVER SITES. ALSO, THE SAME CARRIER WAS NOTIFIED THAT ITS TENDER WAS
LOW FOR DRY CARGO FROM CONUS WEST COAST TO MONA LISA SITES AND THAT
TENDER CHANGES SUBMITTED NOVEMBER 15, 1957, WOULD NOT BE UTILIZED. AT
THE SAME TIME THE COMPANY WAS NOTIFIED THAT ITS TENDER SUBMITTED
NOVEMBER 15, 1957, NO. 7-M WAS NOT THE MOST FAVORABLE RECEIVED AND THAT
IT WOULD NOT BE UTILIZED.
THE REASONS ASSIGNED FOR REJECTION OF YOUR TENDER ARE SET FORTH IN
LETTER OF NOVEMBER 27, 1957, FROM THE PACIFIC TRANSPORTATION TERMINAL
COMMAND, AS FOLLOWS:
"ALASKA FREIGHT LINES DID NOT OFFER SERVICE FROM DUTCH HARBOR. THE
TENDER RECEIVED FROM THIS CARRIER WAS COMPLETELY UNRESPONSIVE TO THE
REQUIREMENTS UNDER RULES AND CONDITIONS. THIS CARRIER DID NOT OFFER
GENERAL CARGO RATES FROM CALIFORNIA PORTS; OFFERED RATES BY SECTOR
INSTEAD OF BY SITE WITHIN A SECTOR; RETROGRADE RATES RESTRICTIVE,
SHOULD HAVE BEEN "FREIGHT ALL KINDS; " DID NOT
OFFER RATES TO ALL KUSKOKWIM SECTOR SITES. THIS CARRIER ALSO FAILED
TO FURNISH A PROPOSED PLAN OF OPERATION, FINANCIAL RESPONSIBILITY, OR
EQUIPMENT AVAILABLE FOR THE OPERATION.
"* * * ALASKA FREIGHT LINES SUBMITTED RATES TO MONA LISA SITES EQUAL
TO THE 1957 LEVEL. THE OTHER CARRIERS WERE APPROXIMATELY 30 PERCENT
LOWER. THIS CARRIER WAS ALSO APPROXIMATELY $250,000.00 HIGH FOR
DEWLINE.'
IN MEMORANDUM OF NOVEMBER 19, 1957, SUBMITTED BY ARMY AND AIR FORCE
REPRESENTATIVES, PERTAINING TO REVIEW OF THE TENDER, IT IS STATED
THAT---
"3. AN ANALYSIS OF CARRIER CAPABILITIES AS INDICATED BY LETTERS
ACCOMPANYING TENDERS REVEALS THE FOLLOWING:
"C. ALASKA FREIGHT LINES: LETTER IS WRITTEN IN GENERAL TERMS. IT
FAILS TO LIST EQUIPMENT TO BE UTILIZED BY NAME OR NUMBER, FAILS TO LIST
REFERENCES CONCERNING FINANCIAL ABILITY OR INSURANCE COVERAGE, DOES NOT
SPECIFY EXTENT OF GOVERNMENT SUPPORT REQUIREMENT, FAILS TO SUBMIT
OPERATIONAL PLAN IN ANY FORM. THE ONLY EVIDENCE SUBMITTED TO INDICATE
ABILITY IS REFERENCE TO PREVIOUS EXPERIENCE AND PAST PERFORMANCE.
TENDERS, COUPLED WITH LETTER FROM CARRIER, INDICATE A LACK OF
RESPONSIBILITY TO REQUEST FOR TENDERS. MISSING INFORMATION SHOULD BE
FURNISHED BY CARRIER. CARRIER, BASED ON PAST EXPERIENCE, NOT ON
EVIDENCE SUBMITTED, CONSIDERED QUALIFIED FOR LIMITED PARTICIPATION IN
1958 PROGRAM. ADDITIONAL EVIDENCE REQUIRED PRIOR TO CONSIDERATION FOR
ALLOCATION OF BULK FUEL MOVEMENTS.'
THE RECORD DISCLOSES THAT SUBSEQUENT TO THE ESTABLISHED DEADLINE OF
NOVEMBER 15, 1957, GARRISON FAST FREIGHT SOUGHT TO REVISE THEIR RATE
TENDERS, IN AN APPARENT ATTEMPT TO SECURE A LARGER VOLUME OF TRAFFIC TO
THE ALASKAN AREA SITES. THE PROPOSED REVISIONS WERE ACCEPTED BY THE
PACIFIC TRANSPORTATION TERMINAL COMMAND BUT SUBSEQUENTLY THEY WERE
REJECTED BASED UPON INSTRUCTIONS FROM THE OFFICE OF THE CHIEF OF
TRANSPORTATION, WASHINGTON, D.C., FOR THE STATED REASON THAT "THE
NOVEMBER 15, 1957, DEADLINE WOULD BE ADHERED TO AND ALL CHANGES AFTER
THAT DATE WOULD BE DISREGARDED.'
YOUR ATTORNEY STATES THAT YOUR COMPANY MAKES NO OBJECTION TO THE
NONACCEPTANCE OF YOUR TENDER NO. 7-M, SINCE IT WAS HIGHER THAN THE
TENDERS OFFERED BY THE TWO CARRIERS TO WHOM THE FREIGHT WAS AWARDED. ON
DECEMBER 10, 1957, HOWEVER, YOUR COMPANY SENT A TELEGRAM TO THE OFFICE
OF THE CHIEF OF TRANSPORTATION, WASHINGTON, D.C., OFFERING TO MEET THE
RATES SUBMITTED BY ANY OF THE OTHER CARRIERS. IN REPLY THERETO, OCT
NOTIFIED YOUR COMPANY TO CONTACT THE PACIFIC TRANSPORTATION TERMINAL
COMMAND. ON DECEMBER 17, 1957, YOUR COMPANY, IN JOINT VENTURE WITH THE
DELONG CORPORATION, FILED TENDER NUMBERED 8-M, SETTING FORTH RATES
SUBSTANTIALLY LOWER THAN THOSE PREVIOUSLY OFFERED BY ANY OF THE OTHER
CARRIERS. THIS TENDER WAS REFUSED BECAUSE IT WAS RECEIVED AFTER THE
NOVEMBER 15, 1957, DEADLINE. YOUR ATTORNEYS' PROTEST IS BASED UPON SUCH
REFUSAL.
PRIMARILY, THE ABOVE PROTEST IS THAT, BASED UPON THE PRINCIPLES
STATED IN OUR DECISION REPORTED IN 35 COMP. GEN. 681, THE TENDERS
SUBMITTED IN RESPONSE TO THE INVITATION OF OCTOBER 30, 1957, ARE
MERELY CONTINUING OFFERS ON THE PART OF THE CARRIERS TO PERFORM
SERVICES PURSUANT TO THE TERMS OF SUCH TENDERS AND THAT THE ACCEPTANCE
THEREOF CONFERRED NO CONTRACTUAL RIGHTS ON THE CARRIERS SUBMITTING THE
SUCCESSFUL TENDERS NOR DID SUCH ACCEPTANCE CONSTITUTE ANY GUARANTEE BY
THE GOVERNMENT OF ANY TONNAGE. IT IS URGED THAT THE FAILURE TO ACCEPT
YOUR TENDER NO. 8-M WILL COST THE GOVERNMENT $200,000; THAT, IN EFFECT,
WHAT OCT HAS DONE IS TO ATTEMPT TO ENTER INTO AN EXCLUSIVE CONTRACTUAL
ARRANGEMENT WITH CARRIERS OTHER THAN ALASKA FREIGHT LINES UNDER THE
GUISE OF RATE TENDERS; AND THAT OCT, WHILE RECOGNIZING THAT THE RATE
TENDERS ARE MERELY CONTINUING OFFERS, ENDEAVORED TO CLOAK THEM WITH THE
RESPONSIBILITY OF A CONTRACT BY STIPULATING A DEADLINE AND CALLING FOR
SEALED BIDS. IN SUPPORT OF THE ARGUMENT THAT THE SUCCESSFUL TENDERS MAY
NOT BE REGARDED AS CONTRACTS THEY REFER TO ARTICLE 10 OF THE TENDER,
ENTITLED "ACCEPTANCE OF TENDER," AS FOLLOWS:
"THIS TENDER, WHEN ACCEPTED BY THE DEPARTMENT OF DEFENSE BY MAKING
ANY SHIPMENT UNDER THE TERMS HEREOF, OR OTHERWISE, SHALL CONSTITUTE AN
AGREEMENT BETWEEN THE PARTIES HERETO AS TO THE TRANSPORTATION SERVICES
HEREIN DESCRIBED.'
YOUR ATTORNEYS CONCLUDE THAT SINCE THERE IS NO CONTRACTUAL
ARRANGEMENT, THE OCT MUST UTILIZE THE LOWEST COST TRANSPORTATION SERVICE
AVAILABLE AT THE TIME A PARTICULAR SHIPMENT IS TO BE MADE. AS A BASIS
FOR SUCH CONCLUSION THEY QUOTE FROM OUR DECISION REPORTED IN 20 COMP.
GEN. 793.
ALSO, IT IS URGED THAT WHILE AN ATTEMPT MAY BE MADE TO JUSTIFY THE
PROCEDURE FOLLOWED IN THIS INSTANCE ON THE GROUND THAT IT REPRESENTS A
PECULIAR SITUATION RELATING TO ALASKA, THE PROCEDURE NOW OBTAINING WAS
NOT FOLLOWED LAST YEAR WHEN SIMILAR TRANSPORTATION REQUIREMENTS IN
ALASKA WERE MET AND STILL THE GOVERNMENT PAID THE LOWEST RATE.
AS JUSTIFICATION FOR QUESTIONING THE PROPRIETY OF THE PRESENT
TRANSACTION REFERENCE IS MADE ALSO TO OUR DECISION OF JUNE 3, 1952,
B-107334, WHEREIN WE STATED THAT WHILE OUR OFFICE RECOGNIZED THAT THE
FUNCTION OF PROCURING NEEDED TRANSPORTATION SERVICES AND EXECUTING THE
REQUISITE CONTRACTS IS PRIMARILY THE ADMINISTRATIVE RESPONSIBILITY OF
THE DEPARTMENT CONCERNED, IT WOULD APPEAR DEFINITELY UNDESIRABLE TO
ATTEMPT TO PREVENT OUR OFFICE FROM QUESTIONING RATES WHICH MAY BE IN
EXCESS OF THOSE OTHERWISE AVAILABLE.
IN YOUR ATTORNEYS' LETTER OF JANUARY 13, 1958, SEVERAL ALTERNATIVE
ACTIONS ARE SUGGESTED, THE PRIMARY PURPOSE, OF COURSE, BEING TO NULLIFY
THE AWARD BASED UPON THE SOLICITATION OF OCTOBER 30, 1957, TO PERMIT
YOUR COMPANY TO PARTICIPATE IN THE 1958 MOVEMENT.
THE DECISION REPORTED IN 35 COMP. GEN. 681, CITED BY YOUR ATTORNEYS
AS AUTHORITY FOR THEIR CONTENTION THAT OCT PROPERLY MAY NOT REFUSE TO
TAKE ADVANTAGE OF YOUR 8-M TENDER CONCERNS TENDERS SUBMITTED BY A MOTOR
CARRIER PURSUANT TO SECTION 322 OF THE INTERSTATE COMMERCE ACT, 49
U.S.C. 22, PROVIDING "THAT NOTHING IN THIS CHAPTER SHALL PREVENT THE
CARRIAGE, STORAGE AND HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR
THE UNITED STATES.' IN THE CITED CASE, WE REJECTED THE COMPLAINANTS'
CONTENTION THAT THE RATE TENDER WAS A CONTRACT AND STATED THAT--- "THE
CITED QUOTATION IS MERELY A CONTINUING OFFER ON THE PART OF THE CARRIERS
TO PERFORM SERVICES FOR THE UNITED STATES PURSUANT TO ITS TERMS.' WHILE
THE RATE TENDERS HERE INVOLVED WERE NOT SUBMITTED PURSUANT TO THE
PROVISIONS OF THE ABOVE STATUTORY PROVISIONS WHICH ARE NOT APPLICABLE TO
ALASKA TRAFFIC, THEY ARE SIMILAR TO THE TENDERS INVOLVED IN THE CITED
DECISION COMMONLY REFERRED TO AS ,SECTION 22 QUOTATIONS.' THUS, THE
INSTANT RATE TENDERS PROPERLY MAY BE REGARDED AS "CONTINUING OFFERS"
WHICH RIPEN INTO CONTRACTS ONLY WHEN COMBINED WITH THE BILL OF LADING
DOCUMENTS SIGNIFYING THE TENDER ACCEPTANCE AND TRANSPORTATION OF THE
SHIPMENT UNDER THE TERMS AND CONDITIONS THEREOF. THESE CONTINUING
OFFERS PROVIDE AS FOLLOWS:
"THIS TENDER, WHEN ACCEPTED BY THE DEPARTMENT OF DEFENSE BY MAKING
ANY SHIPMENT UNDER THE TERMS HEREOF, OR OTHERWISE, SHALL CONSTITUTE AN
AGREEMENT BETWEEN THE PARTIES HERETO AS TO THE TRANSPORTATION SERVICES
HEREIN DESCRIBED.'
IT IS RECOGNIZED THAT GOVERNMENT SHIPPING OFFICERS GENERALLY HAVE THE
OBLIGATION AND DUTY TO OBTAIN THE LOWEST COST TRANSPORTATION SERVICES
AVAILABLE. THIS POLICY IS CLEARLY SET FORTH IN THE ABOVE DECISION
REPORTED IN 20 COMP. GEN. 793, 795, WHEREIN IT IS STATED, AS FOLLOWS:
"* * * THERE WOULD APPEAR TO BE NO AUTHORITY FOR PROCURING
TRANSPORTATION SERVICES FROM ONE COMMON CARRIER AT A COST IN EXCESS OF
THAT FOR WHICH EQUALLY SATISFACTORY TRANSPORTATION COULD HAVE BEEN
PROCURED--- WITHOUT ADVERTISING--- FROM ANOTHER COMMON CARRIER "LAWFULLY
OPERATING IN THE TERRITORY WHERE SUCH SERVICES ARE TO BE PERFORMED.' "
IN THIS DECISION OUR OFFICE HAD TO RESOLVE THE QUESTION AS TO WHETHER
GOVERNMENT SHIPPING OFFICERS WERE REQUIRED, PRIOR TO SHIPPING GOVERNMENT
FREIGHT ON GOVERNMENT BILLS OF LADING, TO DETERMINE THE METHOD OF
SHIPPING (MOTOR OR RAIL) WHICH WOULD PRODUCE THE LOWEST TRANSPORTATION
COSTS BY USE OF THE RATE SCHEDULES AVAILABLE TO THE GENERAL PUBLIC,
WITHOUT ADVERTISING. THIS QUESTION AROSE BECAUSE OF THE TRANSPORTATION
ACT OF 1940, SECTION 321A OF PART II, TITLE III (54 STAT. 954), OF WHICH
ACT PROVIDES SPECIFIC STATUTORY AUTHORITY FOR PROCURING TRANSPORTATION
SERVICES WITHOUT ADVERTISING FOR BIDS WHEN THE SERVICES CAN BE PROCURED
FROM ANY COMMON CARRIER LAWFULLY OPERATING IN THE TERRITORY WHERE SUCH
SERVICES CAN BE PERFORMED. THE CIRCUMSTANCES IN THE INSTANT CASE,
HOWEVER, ARE UNLIKE THOSE CITED IN 20 COMP. GEN. 793 AND THE RULE IN
THAT DECISION CANNOT BE APPLIED TO THE PRESENT CASE. HERE THERE ARE NO
PUBLISHED RATES AVAILABLE TO THE GENERAL PUBLIC FOR THE INVOLVED
SERVICES BY CARRIERS LAWFULLY ENTITLED TO OPERATE IN THE TERRITORY WHERE
THE SERVICE IS REQUIRED. HENCE, IT WAS NECESSARY TO INVITE CARRIERS TO
SUBMIT RATE TENDERS FOR SUCH SERVICE. FURTHER, IT WAS DETERMINED, THAT
IN ORDER TO MAINTAIN THE COMPETITIVE NATURE OF THESE TENDERS, THE
CARRIER OR CARRIERS SUBMITTING THE TENDER WHICH PRODUCED THE LOWEST
TRANSPORTATION COST TO THE GOVERNMENT WOULD RECEIVE THE TRAFFIC.
OBVIOUSLY, IF THIS PROCEDURE WAS TO PREVAIL, A CUT-OFF DATE FOR
SUBMITTING SUCH TENDERS WAS ABSOLUTELY ESSENTIAL, PARTICULARLY IN THE
LIGHT OF THE NATURE OF THE SERVICES AND THE CONDITIONS INCIDENT TO THE
PERFORMANCE OF SAME. ALL CARRIERS WERE NOTIFIED, BOTH VERBALLY AND IN
WRITING, OF THE REQUIREMENTS AND THE REASONS THEREFOR, AND IT IS NOT
APPARENT WHY ANY CARRIER SHOULD HAVE MISCONSTRUED THESE INSTRUCTIONS.
IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT IN THE ABSENCE OF
ANY LAWFULLY AUTHORIZED, OR DULY FILED, TARIFFS MAKING SPECIFIED RATES
AVAILABLE TO THE PUBLIC WHICH COULD BE DEMANDED UNDER AUTHORITY OF LAW,
THE SITUATION WITH RESPECT TO THE PROCUREMENT OF THE TRANSPORTATION
SERVICES HERE CONTEMPLATED WOULD SEEM TO BE, IN NO ESSENTIAL RESPECT,
DIFFERENT FROM THAT WHICH WOULD OBTAIN WITH RESPECT TO THE PROCUREMENT
OF SUPPLIES AND SERVICES GENERALLY. ACCORDINGLY, ALASKA FREIGHT LINES,
IN FAILING TO COMPLY WITH THE TERMS OF SOLICITATIONS FOR TENDERS OR
BIDS, HAS NO SOUND LEGAL BASIS TO REQUIRE THAT NEGOTIATIONS WITH OTHER
CARRIERS, CONDUCTED PURSUANT TO AND IN CONFORMITY WITH THE TERMS OF
SOLICITATION, SHALL BE SET ASIDE AND THAT IT BE AWARDED ALL OR PART OF
THE SERVICES CONTEMPLATED. EVEN IF IT BE CONCEDED THAT THE COMPLYING
CARRIERS' TENDERS WERE ONLY CONTINUING OFFERS UNTIL RIPENED INTO
BILATERAL CONTRACTS THROUGH DEMAND FOR AND PERFORMANCE OF PARTICULARLY
DESIGNATED SERVICES, THERE MUST BE RECOGNIZED THE RIGHT, IF NOT INDEED
THE DUTY, OF THE ADMINISTRATIVE AGENCIES TO EXPLORE AND ASCERTAIN THE
AVAILABILITY OF REQUIRED SERVICES AND OF THE CHARGES AT WHICH THEY COULD
BE OBTAINED, AND, IN CONNECTION WITH THEIR FINDINGS, TO SET SUCH
DEADLINE DATES FOR THE FURNISHING BY INTERESTED CARRIERS OF INFORMATION
CONCERNING THE EXTENT OF THEIR POSSIBLE PARTICIPATION AND THEIR CHARGES,
AS ADMINISTRATIVE NECESSITY SHOULD DICTATE. NUMEROUS CARRIERS HAVING
COMPLIED WITH THE TERMS OF SOLICITATION, WE WOULD NOT BE JUSTIFIED IN
CONCLUDING THAT THE ADMINISTRATIVE AGENCIES MUST IGNORE THE INFORMATION
SO FURNISHED AND REFUSE TO AWARD PURSUANT THERETO SUCH TRAFFIC AS IT
CONCLUDES IS PROPERLY REQUIRED, MERELY BECAUSE ALASKA FREIGHT LINES,
WITHOUT COMPLYING WITH THE TERMS OF SOLICITATION, OFFERS AT A LATER DATE
TO PERFORM AT LOWER RATES. THE RECORD SPECIFICALLY REFLECTS THAT ALASKA
FREIGHT LINES WAS FULLY INFORMED OF THE ADMINISTRATIVE AGENCY'S
REQUIREMENT FOR SUBMISSION OF TENDERS ON OR BEFORE THE DATE SPECIFIED,
AND THE TENDERING OF LOWER RATES THEREAFTER WAS NOT RESPONSIVE TO THE
SOLICITATION OF TENDERS.
AS INDICATED ABOVE THE QUESTION OF WHETHER IT WOULD BE IN THE
INTEREST OF THE UNITED STATES, BY REASON OF THE PECULIAR CLIMATIC
CONDITIONS OR OTHERWISE, TO UTILIZE THE SERVICES OF THE CARRIERS WHICH
COMPLIED WITH THE SOLICITATION WOULD APPEAR TO BE ONE FOR DETERMINATION
BY THE ADMINISTRATIVE AGENCY, ASSUMING AS ALLEGED, THAT NO BINDING
CONTRACTUAL OBLIGATION HAD ARISEN PRIOR TO DEMAND FOR SERVICE. HOWEVER,
AS LONG AS THE OFFERS CONTINUE, WE ARE NOT JUSTIFIED IN CONCLUDING THAT
THE AGENCY CAN BE REQUIRED TO ACCEPT THE BELATED TENDER OF LOWER RATES
BY ALASKA FREIGHT LINES OR TO RENEGOTIATE THE RATES, OR THAT THE RATES
SET FORTH IN TENDERS OF CARRIERS QUALIFYING ON NOVEMBER 15, 1957, BE
EQUALIZED.
ACCORDINGLY, IT MUST BE CONCLUDED THAT THE PROTEST FILED BY YOUR
ATTORNEYS FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN
QUESTIONING THE ADMINISTRATIVE ACTION IN THIS CASE.
B-135300, MAR. 13, 1958
TO MRS. GLORIA J. BULLOCK:
REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 18, 1957, CONCERNING
YOUR INDEBTEDNESS TO THE UNITED STATES IN THE TOTAL AMOUNT OF $91.30.
THAT AMOUNT REPRESENTS AN ERRONEOUS PAYMENT OF CLASS Q ALLOTMENT MADE TO
YOU FOR THE MONTH OF NOVEMBER 1954, INCIDENT TO JOHN F. COVINGTON'S
SERVICE AS AN ENLISTED MAN IN THE ARMY, SERVICE NO. US 53 155 998.
IT APPEARS THAT THE CLASS Q ALLOTMENT WAS ADMINISTRATIVELY AUTHORIZED
ON THE BASIS OF YOUR REQUEST. PAYMENTS OF THE ALLOTMENT WERE MADE TO
YOU FOR THE PERIOD FROM MARCH 22 TO NOVEMBER 30, 1954. HOWEVER, MR.
COVINGTON WAS DISCHARGED ON OCTOBER 26, 1954, AFTER WHICH NO PAY OR
ALLOWANCES ACCRUED TO HIM AS AN ENLISTED MAN OF THE ARMY. IT FOLLOWS
THAT THE PAYMENT FOR THE MONTH OF NOVEMBER 1954, FOR WHICH NO DEDUCTION
WAS MADE FROM THE ENLISTED MAN'S PAY, WAS ERRONEOUS, RESULTING IN AN
OVERPAYMENT TO YOU OF $91.30. SINCE NO AMOUNT WAS DEDUCTED FROM HIS PAY
FOR THE NOVEMBER 1954 ALLOTMENT, THE ENTIRE AMOUNT OF THE PAYMENT
RECEIVED BY YOU FOR THAT MONTH WAS ERRONEOUS AND HENCE YOU ARE INDEBTED
TO THE GOVERNMENT IN THE AMOUNT OF $91.30 LESS PAYMENTS MADE ON THE
DEBT.
IT REPEATEDLY HAS BEEN HELD BY THE COURTS THAT MONEYS ERRONEOUSLY
DISBURSED BY THE GOVERNMENT MAY BE RECOVERED BACK. PERSONS RECEIVING
SUCH PAYMENTS ACQUIRE NO RIGHT THERETO, AND IT IS WELL ESTABLISHED THAT
THE PARTIES RECEIVING MONEYS ERRONEOUSLY PAID BY THE A GOVERNMENT
OFFICIAL OR AGENCY ARE LIABLE TO REFUND THEM. ACCORDINGLY, THE
LIABILITY TO MAKE RESTITUTION IS YOURS RATHER THAN THAT OF MR.
COVINGTON.
THERE HAS BEEN CONSIDERABLE CORRESPONDENCE WITH RESPECT TO THIS
MATTER. IT IS THE POLICY OF OUR OFFICE TO AFFORD YOU THE OPPORTUNITY TO
LIQUIDATE YOUR OBLIGATION TO THE GOVERNMENT ON THE BASIS OF THE
PRINCIPAL AMOUNT DUE--- WITHOUT ADDITIONS FOR INTEREST AND COSTS--- AND
WITHOUT ANY UNNECESSARY HARDSHIP UPON YOU. FOR THAT REASON, YOUR
ARRANGEMENT FOR REPAYMENT OF THE INDEBTEDNESS BY MONTHLY INSTALLMENT
PAYMENTS OF $10 EACH IS ACCEPTABLE HERE, PROVIDED THE PAYMENTS ARE MADE
AT REGULAR MONTHLY INTERVALS AS PROMISED IN YOUR LETTER RECEIVED IN OUR
OFFICE ON JANUARY 15, 1958.
ADDITIONAL PAYMENTS SHOULD BE MADE BY CHECK OR MONEY ORDER DRAWN
PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND ADDRESSED TO THE
U.S. GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, INDIANAPOLIS 49,
INDIANA.
B-135306, MAR. 13, 1958
TO COLONEL W. C. MEYER, U.S.A., FINANCE AND ACCOUNTING OFFICER,
DEPARTMENT OF THE ARMY:
BY FIRST ENDORSEMENT DATED FEBRUARY 14, 1958, THE OFFICE CHIEF OF
FINANCE FORWARDED TO US YOUR LETTER DATED FEBRUARY 4, 1958, WITH
ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CONTINUE
TO CREDIT CWO-2 EDWARD O. THOMAS, K-2153313, WITH A BASIC ALLOWANCE FOR
QUARTERS AS FOR AN OFFICER WITH DEPENDENTS UNDER THE CIRCUMSTANCES SET
FORTH IN THE ENCLOSURES. INCLUDED AMONG THE ENCLOSURES SUBMITTED WITH
YOUR LETTER IS A FORM DD 137, APPLICATION FOR BASIC ALLOWANCE FOR
QUARTERS FOR MEMBER WITH DEPENDENTS, EFFECTIVE DATE JULY 7, 1957, AND A
COPY OF A CERTIFIED COPY OF A DECREE OF DIVORCE ENTERED IN THE SECOND
CIVIL COURT IN AND FOR THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA,
REPUBLIC OF MEXICO, ON JUNE 28, 1957, IN THE CASE OF EDWARD O. THOMAS,
PLAINTIFF, V. ANNA T. THOMAS, DEFENDANT, DOCKET 1318-957.
IT APPEARS THAT THE OFFICER AND ANNA WERE MARRIED IN FORT MONMOUTH,
STATE OF NEW JERSEY, ON MAY 8, 1949. THREE CHILDREN, GREGORY, JEFFERY,
AND MICHAEL, RESULTED FROM THIS UNION AND WERE LISTED AS DEPENDENTS ON
FORM DD 137 FILED ON JULY 1, 1957. ON MAY 2, 1957, A COMPLAINT FOR
DIVORCE WAS FILED BY THE OFFICER AGAINST ANNA IN THE ABOVE MEXICAN COURT
ON THE GROUND OF INCOMPATIBILITY. THE DECREE OF COURT ABSOLVING THE
MARRIAGE WAS ENTERED ON JUNE 28, 1957. THE WIFE WAS ORDERED TO BE
SERVED NOTICE THROUGH SUMMONS ADDRESSED TO THE SHERIFF'S OFFICE OF
MONMOUTH COUNTY, STATE OF NEW JERSEY, BUT SHE DID NOT APPEAR OR CONTEST
THE PROCEEDINGS. RESIDENCE WAS NOT ESTABLISHED IN MEXICO BY THE
OFFICER, WHO MADE PERSONAL APPEARANCE TO RATIFY THE COMPLAINT AND
CONFIRM HIS EXPRESS SUBMISSION TO THE JURISDICTION AND COMPETENCE OF THE
COURT. THE DECREE AWARDED CUSTODY OF THE MINOR CHILDREN TO ANNA BUT
MADE NO PROVISION FOR THEIR SUPPORT AND MADE NO ADJUDICATION REGARDING
COMMUNITY PROPERTY, IT APPEARING TO THE COURT THERE WAS NONE.
BY FORM DD 137, DATED OCTOBER 18, 1957, THE OFFICER CLAIMED BASIC
ALLOWANCE FOR QUARTERS FOR DEPENDENTS ERMA E. THOMAS, WIFE, AND THE
ABOVE MINOR CHILDREN, EFFECTIVE JULY 7, 1957. THE APPLICATION CONTAINS
THE OFFICER'S STATEMENT THAT HE CONTRIBUTES $150 MONTHLY TO THE SUPPORT
OF THE CHILDREN, WHO ARE SHOWN TO BE IN CUSTODY OF THEIR MOTHER IN
EATONTOWN, NEW JERSEY.
DOMICILE IS MATERIAL WITH RESPECT TO THE VALIDITY OF AN OUT-OF-STATE
DIVORCE. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. IT IS WELL
ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD
JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA
FIDE RESIDENCE OR DOMICILE THERE OF AT LEAST ONE OF THE PARTIES, ITS
DECREE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED
IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH
FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS
COURTS TAKING JURISDICTION. SEE ANNOTATIONS IN 143 A.L.R. 1312, 157
A.L.R. 1422, 163 A.L.R. 377, AND CASES THERE CITED. IT IS NOTED THAT
THE OFFICER DID NOT ESTABLISH RESIDENCE IN MEXICO AND IT FURTHER APPEARS
THAT NEITHER OF THE PARTIES HAD A BONA FIDE DOMICILE OR RESIDENCE IN
THAT COUNTRY. AMERICAN COURTS HAVE AS A RULE SHOWN NO TENDENCY TO
RECOGNIZE THE VALIDITY OF DIVORCES UNDER THE VARIOUS MEXICAN STATE LAWS,
WHEN THE STATUS OF AMERICAN CITIZENS NOT BONA FIDE RESIDENTS OF MEXICO
IS INVOLVED. SEE 36 COMP. GEN. 121 AND CASES CITED THEREIN.
ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT UNTIL
THE MEXICAN DIVORCE DECREES OBTAINED BY THE OFFICER IS RECOGNIZED AS
VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE
OFFICER MAY NOT BE CONSIDERED TO HAVE A LAWFUL WIFE INSOFAR AS HIS
MARRIAGE FOLLOWING THE MEXICAN DIVORCE IS CONCERNED, WITHIN THE MEANING
AND SPIRIT OF THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS
PROMULGATED THEREUNDER, AUTHORIZING PAYMENT OF A BASIC ALLOWANCE FOR
QUARTERS SO AS TO ENTITLE HIM TO CREDIT OF SUCH ALLOWANCE FOR ANY PART
OF THE PERIOD COVERED BY HIS CLAIM.
WITH REGARD TO ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS ON
ACCOUNT OF THE DEPENDENT MINOR CHILDREN, IT HAS BEEN HELD THAT THE FACT
THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF THE MINOR
CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE FATHER IS
REQUIRED TO SUPPORT HIS CHILDREN DOES NOT OF ITSELF OPERATE TO DEPRIVE
AN OFFICER OF THE ALLOWANCES, REGARDLESS OF THE JURISDICTION IN WHICH
THE DECREE WAS ISSUED, OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT IS
SHOWN THAT HE IS IN FACT CONTRIBUTING TO THEIR SUPPORT. SEE 23 COMP.
GEN. 625.
SINCE IT APPEARS THAT THE OFFICER IS IN FACT CONTRIBUTING TO THE
SUPPORT OF HIS CHILDREN, PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS AS
FOR AN OFFICER WITH DEPENDENTS FOR THE PERIOD HERE INVOLVED IS
AUTHORIZED. THE ENCLOSURES SUBMITTED WITH LETTER OF FEBRUARY 4, 1958,
ARE RETURNED.
B-135312, MAR. 13, 1958
TO THE ATTORNEY GENERAL:
LETTER DATED FEBRUARY 21, 1958, FROM THE ACTING ASSISTANT ATTORNEY
GENERAL, CONCERNS THE JUDGMENT RENDERED IN THE CASE OF UNITED STATES V.
JAMES O. MCCUE, SR., CRIMINAL NO. 9476, UNITED STATES DISTRICT COURT FOR
CONNECTICUT.
IT APPEARS THAT THE DEFENDANT WAS INDICTED UNDER SECTION 145 (B) OF
THE INTERNAL REVENUE CODE OF 1939 FOR FELONIOUSLY ATTEMPTING TO DEFEAT
PAYMENT OF INCOME TAXES FOR THE YEARS 1950 AND 1951. ON APRIL 15, 1957,
THE DEFENDANT PLEADED GUILTY ON BOTH COUNTS TO A VIOLATION OF SECTION
145 (A) OF THE CODE, A MISDEMEANOR. IN ACCORDANCE WITH THE SENTENCE,
THE DEFENDANT PAID A FINE OF $10,000 ON EACH COUNT. SINCE IT
SUBSEQUENTLY APPEARED THAT THE JUDGMENT WAS NOT IN CONFORMANCE WITH THE
INDICTMENT, A MOTION WAS FILED BY THE UNITED STATES ON APRIL 22, 1957,
REQUESTING THE COURT TO VACATE THE JUDGMENT AND PLEA ON THE GROUND THAT
IT WAS WITHOUT WARRANT IN LAW AND WAS NULL AND VOID. THE MOTION WAS
ARGUED ON FEBRUARY 18, 1958, AND WAS TAKEN UNDER ADVISEMENT BY THE
COURT.
THE OPINION OF OUR OFFICE IS REQUESTED AS TO THE FOLLOWING:
"WE WOULD WISH TO BE ABLE TO STATE, SHOULD THE COURT INQUIRE OR
CONDITION ITS DECISION THEREON, THAT THE COURT MAY INCLUDE IN AN ORDER
VACATING THE JUDGMENT, A PROVISION THAT THE $20,000 PAID IN
FINES BE REFUNDED TO THE DEFENDANT. * * *"
IT HAS BEEN INFORMALLY ASCERTAINED THAT THE FINES WERE PAID BY THE
DEFENDANT ON APRIL 17, 1957, TO THE CLERK OF THE COURT; THAT THE AMOUNT
OF THE FINES WERE POSTED ON THE CERTIFICATE OF DEPOSIT AS CORPORATION
INCOME AND EXCESS PROFIT TAXES; AND THAT SUCH FINES WERE COVERED INTO
THE TREASURY AS INTERNAL REVENUE COLLECTIONS. HENCE, IT WOULD SEEM THAT
FINES COLLECTED FOR VIOLATIONS OF INTERNAL REVENUE LAWS ARE REGARDED AS
INTERNAL REVENUE COLLECTIONS AND ARE DEPOSITED AS SUCH INTO THE
TREASURY.
THE COLLECTION AND DEPOSIT OF THE AMOUNT OF THE FINES INTO THE
TREASURY IN THIS CASE WAS PROPER AT THE TIME SUCH ACTION WAS TAKEN.
THEREFORE, ANY ORDER OF THE COURT PURPORTING TO DIRECT THE REFUND OF THE
FINES WOULD BE INEFFECTIVE AS TO SUCH MONEYS SINCE, UNDER ARTICLE I,
SECTION 9, PARAGRAPH 7 OF THE CONSTITUTION, MONEYS MAY NOT BE WITHDRAWN
FROM THE TREASURY EXCEPT IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW.
HOWEVER, THERE IS AVAILABLE TO THE INTERNAL REVENUE SERVICE AN
APPROPRIATION--- "REFUNDING INTERNAL REVENUE COLLECTIONS"--- FOR THE
MAKING OF REFUNDS IN PROPER CASES.
IN THE EVENT THE JUDGMENT IS VACATED BY THE COURT, THE EFFECT THEREOF
WOULD BE AS THOUGH NO JUDGMENT, IN FACT, HAD EVER BEEN ENTERED, AND ALL
PROCEEDINGS TAKEN UNDER THE JUDGMENT ARE VACATED
ALSO. SEE 49 C.J.S. JUDGMENTS 306. HENCE, WHETHER THE ORDER OF THE
COURT VACATING THE JUDGMENT CONTAINS A PROVISIONS FOR REFUND OF THE
AMOUNT OF THE FINES TO THE DEFENDANT OR WHETHER IT IS SILENT IN THAT
RESPECT, ANY CLAIM BY THE DEFENDANT FOR REFUND THEN WOULD BE FOR
CONSIDERATION BY THE INTERNAL REVENUE SERVICE IN THE FIRST INSTANCE. OF
COURSE, IF THAT AGENCY SHOULD HAVE DOUBT AS TO THE PROPRIETY OF MAKING
REFUND IT COULD SUBMIT THE MATTER HERE FOR DECISION.
B-135410, MAR. 13, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED MARCH 3, 1958, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A
DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR FRANK TESTA
ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. O.I. (S)
30-127-58-249, IS BASED.
BY INVITATION NO. 30-127-S-58-21 THE BELLE MEAD DEPOT ACTIVITY OF
SCHENECTADY GENERAL DEPOT, UNITED STATES ARMY, SOMERVILLE, NEW JERSEY,
REQUESTED BIDS--- TO BE OPENED OCTOBER 31, 1957--- FOR THE PURCHASE AND
REMOVAL OF CERTAIN GOVERNMENT-OWNED PROPERTY. FRANK TESTA'S BID OF
$3,333 WAS THE HIGHEST RECEIVED FOR ITEM 22, COVERING A SCRAPER, AND WAS
ACCEPTED AND THE BIDDER NOTIFIED OF THE AWARD ON NOVEMBER 8, 1957. BY
LETTER OF NOVEMBER 11, 1957, THE CONTRACTOR ADVISED THE CONTRACTING
OFFICER THAT HE HAD MADE AN ERROR IN THAT HE HAD INTENDED TO BID ON ITEM
21, COVERING A TRACTOR, AND THAT NO BID WAS INTENDED FOR ITEM 22. THE
CONTRACTOR HAS FURNISHED HIS WORKSHEETS DEFINITELY ESTABLISHING HIS
INTEREST IN ITEM 21. THE NEXT HIGH BID RECEIVED ON ITEM 22 WAS $1,310
AND THE THIRD HIGH BID WAS $975. THE LOW BID WAS $210.50. FURTHERMORE,
THE CONTRACTOR'S BID OF $3,333 WAS MORE IN LINE WITH THE BIDS RECEIVED
FOR ITEM 21.
THE EVIDENCE OF RECORD LEAVES NO DOUBT BUT THAT AN ERROR, IN FACT,
WAS MADE. IN THE CIRCUMSTANCES, AND SINCE THE ERROR WAS ALLEGED
PROMPTLY AFTER AWARD, THE CONTRACT SHOULD BE CANCELED WITHOUT LIABILITY
TO THE CONTRACTOR.
B-129324, B-118764, MAR. 12, 1958
TO THE SECRETARY OF THE AIR FORCE:
ENCLOSED IS OUR REPORT ON EXAMINATION OF THE NEGOTIATIONS OF TARGET
PRICES AND THE PROPOSED FINAL PRICE UNDER DEPARTMENT OF THE AIR FORCE
CONTRACT AF 33/038/-20783 WITH STUDEBAKER-PACKARD CORPORATION, DETROIT,
MICHIGAN.
THIS MATTER HAS BEEN THE SUBJECT OF CORRESPONDENCE BETWEEN THIS
OFFICE AND THE DEPARTMENT OF THE AIR FORCE BEGINNING WITH OUR LETTER OF
SEPTEMBER 25, 1956, IN WHICH WE POINTED OUT THE NECESSITY FOR SUBMISSION
OF DATA FROM THE CONTRACTOR CONCERNING THE MATTERS QUESTIONED BY US.
AFTER REVIEW OF THE INFORMATION SUBMITTED BY THE CONTRACTOR ON DECEMBER
5, 1957, WE BELIEVE, ON THE BASIS OF THE PRESENT RECORD, THAT THE
PROPOSED SETTLEMENT FOR THE INCENTIVE PORTION OF THE CONTRACT AT 82.3
MILLION DOLLARS IS ABOUT 1.3 MILLION DOLLARS HIGHER THAN IS JUSTIFIED
BECAUSE IT (1) INCLUDES PROFIT ON A TARGET PRICE THAT WAS EXCESSIVE IN
RELATION TO THE MANNER IN WHICH THE CONTRACT WAS PERFORMED AND (2)
ALLOWS THE CONTRACTOR TO PARTICIPATE IN "COST REDUCTIONS" RESULTING
PRIMARILY FROM THE OVERSTATED TARGET COST.
WE SHALL BE GLAD TO DISCUSS THIS MATTER WITH YOU OR YOUR
REPRESENTATIVES, IF YOU SO DESIRE, AND WE SHALL APPRECIATE ADVICE AT THE
EARLIEST POSSIBLE DATE AS TO THE ACTION TAKEN OR CONTEMPLATED BY YOUR
DEPARTMENT.
B-132820, MAR. 12, 1958
TO MR. JACK D. KRAUSE:
WE HAVE RECEIVED YOUR LETTER DATED FEBRUARY 15, 1958, IN WHICH YOU
REFER TO OUR LETTER DATED AUGUST 21, 1957, TO HONORABLE JAMES B. UTT,
HOUSE OF REPRESENTATIVES, CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES
FOR 14 DAYS OF TRAINING DUTY AS AN ENSIGN, UNITED STATES NAVAL RESERVE,
AT THE SPECIAL DEVICES CENTER, SANDS POINT, PORT WASHINGTON, LONG
ISLAND, NEW YORK, UNDER ORDERS DATED JULY 14, 1948. YOU SAY THAT YOU
HAVE RECEIVED A CHECK FOR $350.70, DATED SEPTEMBER 3, 1957, IN PAYMENT
OF YOUR CLAIM AND THAT, BECAUSE OF THE DELAY IN MAKING PAYMENT, YOU FEEL
YOU SHOULD BE PAID INTEREST ON THAT AMOUNT.
THERE IS NO AUTHORITY FOR THE PAYMENT OF INTEREST IN YOUR CASE, THERE
BEING FOR APPLICATION THE TRADITIONAL RULE THAT INTEREST ON CLAIMS
AGAINST THE UNITED STATES CANNOT BE RECOVERED IN THE ABSENCE OF AN
EXPRESS PROVISION TO THE CONTRARY IN THE RELEVANT STATUTE OR CONTRACT.
UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588, AND
CASES CITED THEREIN.
B-132858, MAR. 12, 1958
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO A LETTER DATED AUGUST 6, 1957, AND ENCLOSURE,
FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PRESENTING FOR OUR
CONSIDERATION A PROPOSAL THAT THE AIR FORCE BE PERMITTED TO ESTABLISH
THE MINIMUM ACCOMMODATIONS THAT ARE TO BE CONSIDERED FIRST CLASS WHEN
PERSONNEL ASSIGNED TO MILITARY MISSIONS TRAVEL BY COMMERCIAL SURFACE
TRANSPORTATION FACILITIES. THE LETTER CONTAINS THE STATEMENT THAT THE
INABILITY OF THE DEPARTMENT OF THE AIR FORCE TO PRESCRIBE THE MINIMUM
STANDARDS ACCEPTABLE FOR THE MOVEMENT OF THESE PERSONNEL HAS, IN SOME
INSTANCES, WORKED ADVERSELY. IT IS POINTED OUT IN THE LETTER, AS A
MATTER FOR SPECIAL CONSIDERATION, THAT THE HOST GOVERNMENT TO WHICH THE
MILITARY MISSION MEMBER IS BEING ASSIGNED AGREES TO REIMBURSE THE UNITED
STATES GOVERNMENT FOR THE EXPENSES INCURRED IN THE MOVEMENT OF THE
INDIVIDUALS AND A "TYPICAL TRANSPORTATION CLAUSE" CONTAINED IN A
"MISSION CONTRACT," AS QUOTED IN THE STATEMENT FURNISHED WITH THE AIR
FORCE PROPOSAL, PROVIDES, IN PART, THAT " "EACH MEMBER OF THE MISSION
AND HIS FAMILY SHALL BE FURNISHED BY THE GOVERNMENT OF THE (HOST
GOVERNMENT) WITH FIRST CLASS ACCOMMODATIONS FOR TRAVEL * * *.' "
THE LETTER CONTAINS THE RECOMMENDATION THAT WHEN CHARGES FOR THE
MOVEMENT OF PERSONNEL TO MILITARY MISSIONS ARE PAID THROUGH
REIMBURSEMENT PROCEDURES FROM FUNDS OF THE HOST GOVERNMENT, THE
DEPARTMENT OF THE AIR FORCE BE PERMITTED TO ESTABLISH THE STANDARDS
WHICH COMPRISE MINIMUM FIRST-CLASS ACCOMMODATIONS.
IN APPLYING THE LOWEST FIRST-CLASS LIMITATION OF THE TRAVEL
REGULATIONS FOR VESSEL TRANSPORTATION, OUR OFFICE CONSISTENTLY HAS
ACCEPTED THE DETERMINATIONS OF THE VARIOUS STEAMSHIP COMPANIES AS TO
WHETHER PARTICULAR PASSENGER ACCOMMODATIONS ARE FIRST CLASS, AS
REFLECTED BY THEIR PUBLISHED TARIFFS. NO DEVIATION FROM THAT POSITION
IS DEEMED TO BE EITHER PROPER OR ADVISABLE, EXCEPT IN THOSE INSTANCES IN
WHICH IT IS ABUNDANTLY CLEAR THAT THE ACCOMMODATIONS OFFERED TO THE
PUBLIC AS FIRST CLASS ARE NOT IN FACT FIRST-CLASS ACCOMMODATIONS WITHIN
THE MEANING OF THE APPLICABLE PROVISIONS OF THE TRAVEL REGULATIONS. SEE
28 COMP. GEN. 399; 27 ID. 55.
THERE IS NO APPARENT JUSTIFICATION, UNDER APPLICABLE STATUTES,
REGULATIONS, OR OTHERWISE, FOR THE ESTABLISHMENT OF A DOUBLE STANDARD
SANCTIONING ONE FORM OF ACCOMMODATION AND CHARGE FOR AIR FORCE PERSONNEL
MOVING UNDER ORDERS AND TRAVELING AT THE EXPENSE OF THE UNITED STATES,
AND ANOTHER POSSIBLY BETTER FORM OF ACCOMMODATION AT A HIGHER CHARGE FOR
THE SAME AIR FORCE PERSONNEL MOVING UNDER ORDERS BUT TRAVELING PURSUANT
TO AN AGREEMENT BETWEEN THE UNITED STATES AND A FOREIGN
GOVERNMENT UNDER WHICH THE UNITED STATES IS TO BE REIMBURSED FOR TH
COST OF THE TRANSPORTATION.
ACCORDINGLY, NO DEVIATION FROM THE ESTABLISHED PROCEDURE IS
JUSTIFIED, AND THE PROPOSAL HERE CONCERNED IS NOT APPROVED.
B-135274, MAR. 12, 1958
TO MRS. L. P. KELLS, AUTHORIZED CERTIFYING OFFICER, PUBLIC HOUSING
ADMINISTRATION, HOUSING AND HOME FINANCE AGENCY:
YOUR LETTER OF FEBRUARY 14, 1958, REQUESTS OUR DECISION WHETHER YOU
MAY CERTIFY FOR PAYMENT A VOUCHER THEREWITH TRANSMITTED COVERING
ADDITIONAL COMPENSATION, RETROACTIVE TO MARCH 22, 1957, FOR CERTAIN WAGE
BOARD MAINTENANCE EMPLOYEES OF THE PUBLIC HOUSING ADMINISTRATION AT A
HOUSING PROJECT OWNED BY THE FEDERAL GOVERNMENT IN MINNEAPOLIS,
MINNESOTA.
YOUR LETTER STATES, IN PART, AS FOLLOWS:
"DURING THE WEEK OF JANUARY 21, 1957, A WAGE RATE SURVEY WAS
CONDUCTED BY THE PHA REGIONAL OFFICE HAVING JURISDICTION OVER THAT AREA,
AND ON FEBRUARY 8, 1957 THE REGIONAL OFFICE SENT A MEMORANDUM TO THE
SPECIAL ASSISTANT TO THE COMMISSIONER (LABOR RELATIONS/--- WHO SERVES AS
THE ,WAGE BOARD" AND FINAL WAGE-FIXING AUTHORITY FOR THE PHA---
REPORTING ON THE SURVEY AND RECOMMENDING NEW AND HIGHER RATES OF PAY FOR
ALL MAINTENANCE EMPLOYEE POSITIONS AT THE PROJECT. SEVEN CLASSES OF
POSITIONS WERE INVOLVED, INCLUDING ONE COVERING BOILER ROOM PERSONNEL
CLASSIFIED AS "OPERATING ENGINEER (STEAM ELECTRIC).' THE REGIONAL OFFICE
MEMORANDUM RECOMMENDED THAT THIS TITLE BE CHANGED TO "STATIONARY
ENGINEER" STATING THAT THIS TITLE WOULD BE MORE DESCRIPTIVE OF THE
DUTIES INVOLVED.'
THE RECORD SHOWS THAT SEVERAL QUESTIONS WHICH THE SPECIAL ASSISTANT
TO THE COMMISSIONER (LABOR RELATIONS) RAISED CONCERNING THE SURVEY WERE
SETTLED PRIOR TO MARCH 19, 1957. HOWEVER, THE SPECIAL ASSISTANT TO THE
COMMISSIONER REQUESTED THE REGIONAL LABOR RELATIONS OFFICER TO SUBMIT
ADDITIONAL INFORMATION CONCERNING THE SUGGESTED CHANGE IN TITLE OF THE
POSITIONS DESIGNATED AS ,OPERATING ENGINEER (STEAM ELECTRIC)" SINCE HE
FELT THAT IF THESE POSITIONS WERE IN THE ,STATIONARY ENGINEER" SERIES, A
DOUBT WAS RAISED AS TO WHETHER THE RATE FOUND AS A RESULT OF THE NEW
SURVEY WOULD BE APPLICABLE TO THE POSITIONS IN QUESTION. ALTHOUGH THE
REGIONAL OFFICE SOUGHT TO WITHDRAW ITS RECOMMENDATION FOR CHANGE OF
POSITION TITLE, THE SPECIAL ASSISTANT TO THE COMMISSIONER INSISTED ON A
NEW DUTY STATEMENT SINCE HE BELIEVED CLARIFICATION WAS NECESSARY AS TO
WHETHER THE SURVEY DATA SUBMITTED FOR "OPERATING ENGINEER (STEAM
ELECTRIC)" WAS ACTUALLY APPLICABLE.
THE RECORD INDICATES THAT BECAUSE OF EXTENUATING CIRCUMSTANCES,
BEYOND THE CONTROL OF THE EMPLOYEES INVOLVED, THE ISSUE WAS NOT
CLARIFIED UNTIL ABOUT NOVEMBER 20, 1957, WHEN IT WAS DETERMINED THAT THE
REGIONAL OFFICE HAD NO INFORMATION WARRANTING A CHANGE IN THE POSITION
CLASSIFICATION IN QUESTION. THEREFORE, THE SPECIAL ASSISTANT TO THE
COMMISSIONER NOTIFIED THE DIRECTOR OF PERSONNEL OF HIS APPROVAL OF THE
NEW WAGE RATES FOR ALL SEVEN JOB CLASSIFICATIONS (WHICH WERE THE SAME AS
HAD BEEN RECOMMENDED IN THE FIRST INSTANCE) ON NOVEMBER 20, 1957, AND
THE NEW RATES WERE PUT INTO EFFECT NOVEMBER 21, 1957.
YOUR LETTER STATES THAT ALTHOUGH THE ISSUE RESULTING IN DELAY HAD
DIRECTLY INVOLVED ONLY THE BOILER ROOM PERSONNEL, WAGE RATE ACTION ON
THE OTHER POSITIONS WAS ALSO DEFERRED BECAUSE OF AN ADMINISTRATIVE
JUDGMENT, BASED ON EXPERIENCE, THAT THE GRANTING OF WAGE INCREASES TO
SOME EMPLOYEES BEFORE THEY CAN BE GRANTED TO ALL IS DETRIMENTAL TO
EMPLOYEE MORALE.
YOU SAY "THE RECORD INDICATES THAT ALL THE RECOMMENDED RATES HAD
RECEIVED THE APPROVAL OF THE SPECIAL ASSISTANT TO THE COMMISSIONER BY
MARCH 19, 1957," AND "IN THE NORMAL COURSE OF EVENTS THEY WOULD HAVE
BEEN MADE EFFECTIVE BY MARCH 22, 1957.' ON THAT BASIS YOU FEEL THAT THE
INCREASE SHOULD BE MADE RETROACTIVE TO MARCH 22, 1957, AND THAT DENIAL
OF THE BENEFIT OF THE NEW WAGE RATES FOR THE PERIOD OF MARCH 22 TO
NOVEMBER 21, 1957, WOULD BE INEQUITABLE TO THE EMPLOYEES.
IN 24 COMP. GEN. 676, WE HELD, QUOTING FROM THE SYLLABUS:
"AN INCREASE IN BASIC COMPENSATION AUTHORIZED BY A WAGE BOARD OR
OTHER WAGE-FIXING AUTHORITY FOR EMPLOYEES SUBJECT TO THE FORTY-HOUR WEEK
STATUTE OF MARCH 28, 1934, MAY NOT BE MADE EFFECTIVE PRIOR TO THE DATE
OF FINAL ACTION BY COMPETENT ADMINISTRATIVE AUTHORITY, EVEN THOUGH THE
CONDITIONS JUSTIFYING THE INCREASE EXISTED PRIOR TO SUCH DATE.'
THE RECORD SHOWS THAT FINAL WAGE RATE ACTION ON ALL POSITIONS COVERED
BY THE SURVEY WAS DEFERRED UNTIL A CONCLUSIVE DETERMINATION WAS MADE
THAT THE SURVEY WAS APPLICABLE TO THE ,OPERATING ENGINEER (STEAM
ELECTRIC)" POSITION. IT ALSO APPEARS THAT SUCH APPROVAL AS THE
RECOMMENDED RATE FOR "OPERATING ENGINEER (STEAM ELECTRIC)" MAY HAVE
RECEIVED FROM THE SPECIAL ASSISTANT TO THE COMMISSIONER BY MARCH 19,
1957, WAS NOT FINAL APPROVAL SINCE, AT THAT TIME, IT HAD NOT BEEN
DETERMINED THAT THE RECOMMENDED RATE WAS APPLICABLE TO THE POSITION.
THEREFORE, SINCE FINAL ACTION TO PUT THE NEW WAGE RATES INTO EFFECT
WAS NOT TAKEN BY THE SPECIAL ASSISTANT TO THE COMMISSIONER UNTIL
NOVEMBER 19, 1957, PAYMENT OF ADDITIONAL COMPENSATION,
RETROACTIVE TO MARCH 22, 1957, MAY NOT BE MADE TO THE WAGE BOARD
EMPLOYEES IN QUESTION. HENCE, THE SUBMITTED VOUCHER MAY NOT BE
CERTIFIED FOR PAYMENT.
B-135353, MAR. 12, 1958
TO CENTRAL OF GEORGIA RAILWAY COMPANY:
CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, FILE N-31144-G-A, FOR
REVIEW OF OUR SETTLEMENT OF JUNE 15, 1955, WHICH DISALLOWED YOUR CLAIM
FOR ADDITIONAL FREIGHT CHARGES OF $73.86 STATED ON SUPPLEMENTAL BILL NO.
31144-C-G-R-1299-2.
THIS CLAIM ARISES UNDER GOVERNMENT BILLS OF LADING NOS.
DA-TPS-692866 AND DA-TPS-692867, ISSUED BY THE UNITED STATES TREASURY
DEPARTMENT, PROCUREMENT DIVISION, TO COVER SHIPMENTS OF COILED STEEL
RODS WHICH MOVED DURING MAY 1944 TO SAVANNAH, GEORGIA, FOR EXPORT TO
GREAT BRITAIN UNDER THE LEND-LEASE ACT OF MARCH 11, 1941, 55 STAT. 31.
EACH BILL OF LADING BEARS A REFERENCE TO REQUISITION NO.
BSC/19807/DA/T9, WHICH WAS ONE OF THE SERIAL NUMBERS ASSIGNED TO THE
REQUISITIONS FOR DEFENSE ARTICLES UNDER WHICH STEEL ARTICLES WERE
PROCURED BY THE BRITISH MINISTRY OF SUPPLY MISSION.
THE SAME MASTER REQUISITION, BSC/19807, WAS CONSIDERED AT LENGTH IN
OUR DECISION OF DECEMBER 2, 1957, B-132866; B-132772, ADDRESSED TO YOU,
COPY ENCLOSED, AND NO ADDITIONAL EVIDENCE HAS BEEN SUBMITTED IN THIS
CASE WHICH WOULD JUSTIFY A CONCLUSION HEREIN OTHER THAN AS STATED IN
THAT DECISION.
ACCORDINGLY, THE SETTLEMENT OF JUNE 15, 1955, WAS PROPER AND IS
SUSTAINED.
B-135357, MAR. 12, 1958
TO MRS. LOUISE BLUM:
ON JANUARY 23, 1958, MR. GEORGE W. SJOSTRAND, ATTORNEY AT LAW, WROTE
TO THE GENERAL ACCOUNTING OFFICE CONCERNING YOUR CLAIM FOR THE UNPAID
COMPENSATION OF YOUR SON, FRANK W. BLUM, WHO DIED ON APRIL 12, 1957,
WHILE SERVING AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE
IN JAPAN.
YOUR CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED SEPTEMBER 4,
1957, BECAUSE OUR RECORDS INDICATE THAT THE DECEDENT LEFT SURVIVING HIM
A WIFE OR FORMER WIFE DIVORCED, VIRGINIA AILEEN BLUM
AND A DAUGHTER, JUDYTH ANN BLUM WHO, UNDER THE APPLICABLE LAW, THE
ACT OF AUGUST 3, 1950, 64 STAT. 395, APPEARED TO HAVE A PRIOR RIGHT TO
THE COMPENSATION INVOLVED.
IN HIS LETTER MR. SJOSTRAND, IN EFFECT, ASKED WHETHER YOU WOULD BE
THE PROPER CLAIMANT OF THE COMPENSATION IF IT WERE PROVEN THAT YOUR SON
DIVORCED HIS WIFE AND THAT HIS CHILD WAS ADOPTED BY A SUBSEQUENT HUSBAND
OF VIRGINIA AILEEN BLUM.
SUBSEQUENT TO WRITING OUR LETTER TO YOU OF SEPTEMBER 4, 1957, WE WERE
ADVISED BY THE DEPARTMENT OF THE AIR FORCE THAT $2,396.41, CONTAINED IN
A CHECKING ACCOUNT OF THE DECEASED IN THE OVERSEAS AREA WAS COLLECTED BY
AIR FORCE PERSONNEL AND A TREASURY CHECK HAS BEEN ISSUED PAYABLE TO THE
ESTATE OF YOUR SON TO COVER THE AMOUNT.
WE ARE UNABLE ON THE PRESENT RECORD CATEGORICALLY TO ANSWER THE
QUESTION RAISED BY MR. SJOSTRAND. HOWEVER, THE EVIDENCE SUGGESTED BY
HIM AS WELL AS INFORMATION AS TO THE STATE AND COUNTRY OF THE DOMICILE
OF THE DECEDENT AT THE TIME OF HIS DEATH, MAY BE SIGNIFICANT TO THE
PROPER DISPOSITION OF THE AMOUNTS DUE, IT BEING NOTED IN THIS CONNECTION
THAT WHILE YOU STATED IN YOUR CLAIM THAT THE DECEDENT WAS A LEGAL
RESIDENT OF JAPAN AT THE TIME OF HIS DEATH, MR SJOSTRAND INDICATES THE
LAW OF CALIFORNIA MAY AFFECT THE MATTER.
ACCORDINGLY, IN ORDER THAT YOUR CLAIM FOR THE UNPAID SALARY AS WELL
AS FOR THE SUM OF $2,396.41 MAY RECEIVE FURTHER CONSIDERATION, IT IS
REQUESTED THAT WE BE FURNISHED ANY EVIDENCE (IN THE FORM OF LETTERS FROM
THE DECEDENT OR OTHERWISE) WHICH MAY BE AVAILABLE AS TO HIS DOMICILE AT
THE TIME OF HIS DEATH SUCH AS WHEN HE WENT TO JAPAN, WHY HE WAS THERE AT
THE TIME OF HIS DEATH, WHETHER HE INTENDED MAKING THAT COUNTRY HIS
PERMANENT PLACE OF ABODE AND IF NOT WHERE HE PREVIOUSLY RESIDED PRIOR TO
GOING TO JAPAN, AND WHERE HE INTENDED PERMANENTLY TO MAKE HIS HOME ON
HIS RETURN FROM ABROAD. IN ADDITION, THERE SHOULD BE FORWARDED EVIDENCE
ESTABLISHING WHETHER THE DECEDENT PROPERLY WAS SERVED OR APPEARED IN THE
DIVORCE ACTION AND ADOPTION PROCEEDINGS AS WELL AS CERTIFIED COPIES OF
THE FINAL DECREES ISSUED IN SUCH PROCEEDINGS.
A RECEIPTED ITEMIZED BILL SHOWING THAT THE FUNERAL EXPENSES OF THE
DECEDENT HAVE FULLY BEEN SATISFIED SHOULD ALSO BE PROVIDED AS WELL AS
INFORMATION AS TO WHOSE FUNDS WERE USED IN MAKING SUCH PAYMENT. IF THE
PROCEEDS OF INSURANCE WERE USED, THE NAME OF THE BENEFICIARY OF THE
INSURANCE POLICY SHOULD BE STATED. IN THE EVENT THAT THERE HAS BEEN
FORMAL ADMINISTRATION OF THE DECEDENT'S ESTATE, A SHORT FORM CERTIFICATE
SHOWING THE APPOINTMENT OF AN ADMINISTRATOR OR EXECUTOR SHOULD ALSO BE
FURNISHED AND IF MR. SJOSTRAND IS TO REPRESENT YOU FURTHER IN THE
MATTER, A POWER OF ATTORNEY OVER YOUR SIGNATURE AUTHORIZING HIM TO SO
ACT SHOULD BE FORWARDED.
THE INFORMATION AND EVIDENCE OUTLINED ABOVE AND ANY FURTHER
CORRESPONDENCE IN THE MATTER SHOULD BE ADDRESSED TO THE CLAIMS DIVISION
GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., REFERRING TO CLAIM NO.
Z-1844045.
B-135386, MAR. 12, 1958
TO MR. JOHN E. HINKEL:
YOUR LETTER OF FEBRUARY 10, 1958, REQUESTS RECONSIDERATION OF OFFICE
SETTLEMENT DATED FEBRUARY 4, 1958, WHEREIN IT WAS HELD THAT YOU WERE NOT
ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY YOU AFTER TRANSFER TO
THE FLEET NAVAL RESERVE, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED
AS ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS AND SUCH PAY COMPUTED
AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS.
YOU SUBMIT EXCERPT FROM "NAVAL AFFAIRS," DECEMBER 1957 ISSUE, CITING
CASES AND DECISION 26 COMP. GEN. 804, WHICH YOU STATE SUPPORT YOUR
CONTENTION, WHICH IS, IN EFFECT THAT THE ACT OF JULY 1, 1922, 42 STAT.
799, 800, PROVIDES THAT MEN TRANSFERRED UNDER ITS PROVISIONS WITH OVER
12 BUT LESS THAN 16 YEARS' SERVICE SHOULD BE DEEMED TO HAVE ACTUALLY
PERFORMED 16 YEARS' SERVICE. THE CASES REFERRED TO ARE THE SANDERS,
ABAD, AND HENRY GRISSING CASES; B-64196, APRIL 24, 1947, 26 COMP. GEN.
804, IS CITED AS AUTHORITY FOR THE PROPOSITION THAT THOSE MEN WHO
TRANSFERRED TO THE FLEET RESERVE IN JULY 1922 WITH OVER 12 AND UNDER 16
YEARS' SERVICE COULD COUNT THEIR "SERVICE" AS EXACTLY 16 YEARS.
IT APPEARS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE IN JULY
1922 WITH CREDITABLE SERVICE OF 13 YEARS, 7 MONTHS, AND 3 DAYS, AND THAT
THEREAFTER YOU SERVED ON ACTIVE DUTY FROM JUNE 23, 1941, TO NOVEMBER 4,
1945, A PERIOD OF 4 YEARS, 4 MONTHS, AND 12 DAYS, OR A TOTAL OF 17
YEARS, 11 MONTHS, AND 15 DAYS CREDITABLE SERVICE.
OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 813, SAID, IN
ANSWER TO THE QUESTION WHETHER MEN TRANSFERRED TO THE FLEET NAVAL
RESERVE UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN 15 YEARS'
ACTUAL SERVICE WERE TO BE CONSIDERED AS HAVING BEEN TRANSFERRED
"AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE CONTEMPLATION OF SECTION
208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY THE ACT OF AUGUST 10,
1946 THAT:
"UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42
STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE
THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND
ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT
"AFTER 16 YEARS' SERVICE.' WHERE IT BECOMES MATERIAL FOR PAY PURPOSES TO
DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE
FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT
IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16
YEARS' SERVICE. TO CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN
SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE
COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE
CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE.
SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS
ANSWER IN THE NEGATIVE. * * *"
THE ANSWER TO QUESTION (C) REFERRED TO IN THE ABOVE QUOTATIONS, WAS
THAT MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY 16 YEARS' SERVICE
WERE NOT TO BE CONSIDERED AS HAVING BEEN TRANSFERRED ,AFTER MORE THAN 16
YEARS' SERVICE" AS THAT TERM WAS USED IN SECTION 208.
SINCE IT WAS HELD IN THE DECISION OF APRIL 24, 1947, THAT MEN SO
TRANSFERRED TO THE FLEET NAVAL RESERVE WITH EXACTLY 16 YEARS' SERVICE
ARE NOT ELIGIBLE FOR THE BENEFITS OF SECTION 208 OF THE NAVAL RESERVE
ACT OF 1938, THERE WAS NO OCCASION TO SPECULATE AS TO WHAT SERVICE WOULD
BE CREDITABLE UNDER SECTION 208 TO A MAN TRANSFERRED UNDER THE 1922 ACT.
YOU REFER TO ABAD ET AL. V. UNITED STATES, C.CLS. NO. 49667, DECIDED
OCTOBER 2, 1956. IN THAT CASE IT WAS HELD THAT A MAN TRANSFERRED TO THE
FLEET RESERVE WITH EXACTLY 16 YEARS' SERVICE WAS TO BE CONSIDERED AS
HAVING BEEN TRANSFERRED "AFTER MORE THAN 16 YEARS' SERVICE" WITHIN THE
CONTEMPLATION OF SECTION 208. IN B-129880, FEBRUARY 6, 1957, 36 COMP.
GEN. 579, IT WAS HELD THAT WE WOULD FOLLOW THE COURT'S OPINION IN THE
ABAD CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS AND
ACCORDINGLY THE ANSWER TO QUESTION (C) IN THE DECISION OF APRIL 24,
1947, WAS OVERRULED.
IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT AN
ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER
SECTION 26 OF ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED BY
THE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938--- WITH MORE THAN 16
AND LESS THAN 20 YEARS' ACTIVE SERVICE (WITH CONSEQUENT ENTITLEMENT TO
RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS PERMANENT ADDITIONS)
AND WHO SUBSEQUENT TO SUCH TRANSFER, PERFORMED ACTIVE DUTY OF 4 YEARS,
10 MONTHS, AND 20 DAYS, WAS ENTITLED BY VIRTUE OF SECTION 208 OF THE
NAVAL RESERVE ACT OF 1938, UPON RELEASE FROM SUCH ACTIVE DUTY TO
RETAINER OR RETIRED PAY ON THE BASIS OF 20 YEARS' ACTIVE SERVICE, THAT
IS, TO ONE-HALF OF BASE PAY PLUS PERMANENT ADDITIONS. THE LANGUAGE OF
THE COURT IN THIS CASE THAT "THE INTENT OF CONGRESS APPEARS TO HAVE BEEN
TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO INACTIVE DUTY AND THEN
RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY, TO COUNT THEIR WARTIME
SERVICE IN THE COMPUTATION OF RETIREMENT PAY IN THE SAME MANNER AS IF
THEIR ACTUAL-DUTY STATUS HAD BEEN CONTINUOUS," SEEMS PARTICULARLY
APPLICABLE TO THE PRESENT CASE.
THE HOLDING IN THE CASE OF WILLIAM S. EBINGER ET AL. (HENRY GRISSING,
PLAINTIFF NO. 79) V. UNITED STATES, C.CLS. NO. 49615, DECIDED OCTOBER
9, 1957, IS NOT PERTINENT TO YOUR CLAIM. THAT CASE HELD THAT ALL
PERIODS OF EXTENDED ACTIVE DUTY PERFORMED BY FLEET RESERVISTS AFTER JULY
1, 1925, MAY BE COUNTED IN COMPUTING THEIR RETAINER OR RETIRED PAY UNDER
SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, WHETHER SUCH ADDITIONAL
EXTENDED ACTIVE DUTY IS PERFORMED DURING TIME OF NATIONAL EMERGENCY OR
DURING PEACETIME. CONSIDERATION OF EXTENDED ACTIVE DUTY PERFORMED AFTER
JULY 1, 1925, AND DURING PEACETIME, IS NOT INVOLVED IN YOUR CASE.
WE FOLLOWED BOTH THE SANDERS DECISION AND THE REASONING IN 26 COMP.
GEN. 804, 813 IN MAKING THE SETTLEMENT OF FEBRUARY 4, 1958, OF YOUR
CLAIM. WE CONCLUDED THAT A MAN TRANSFERRED TO THE FLEET NAVAL RESERVE
UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN 16 YEARS' SERVICE WAS IN
THE SAME POSITION AS A MAN TRANSFERRED UNDER SOME OTHER PROVISIONS OF
LAW WITH EXACTLY 16 YEARS' SERVICE INSOFAR AS THE DETERMINATION OF
WHETHER SECTION 208 IS APPLICABLE TO HIM AND, SINCE A MAN TRANSFERRED
WITH EXACTLY 16 YEARS' SERVICE COMES WITHIN THE SCOPE OF THAT SECTION
(ABAD CASE), IT MUST FOLLOW THAT A MAN TRANSFERRED UNDER THE 1922 ACT
WITH LESS THAN 16 YEARS' SERVICE ALSO COMES WITHIN THE SCOPE OF THAT
SECTION. IT WAS CONCLUDED ALSO, FOLLOWING THE SANDERS DECISION, THAT A
MAN WITHIN THE PROVISION OF SECTION 208 IS ENTITLED, UPON RELEASE FROM
ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, TO RETAINER OR RETIRED
PAY AS A TWENTY-YEAR MAN IF HIS TOTAL CREDITABLE SERVICE, BEFORE AND
AFTER TRANSFER, WOULD HAVE ENTITLED HIM, UPON THE DAY OF HIS RELEASE
FROM SUCH ACTIVE DUTY TO TRANSFER TO THE FLEET RESERVE UNDER SECTION 203
OF THE NAVAL RESERVE ACT AS A TWENTY-YEAR MAN. IN OTHER WORDS, THE
SETTLEMENT OF FEBRUARY 4, 1958, WAS PREDICATED UPON THE PRINCIPLE OF THE
SANDERS CASE, EQUAL BENEFITS FOR EQUAL SERVICE. SINCE YOU, UPON RELEASE
FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, HAD PERFORMED AN
AGGREGATE OF BUT 17 YEARS, 11 MONTHS, AND 15 DAYS CREDITABLE SERVICE, IT
WAS HELD THAT YOU HAD NOT MET THE REQUIREMENT FOR PAY AS A TWENTY-YEAR
MAN OF AT LEAST 19 YEARS, 6 MONTHS' SERVICE. IN CONCLUSION, IT MUST BE
POINTED OUT THAT THERE IS NOTHING IN THE ACT OF JULY 1, 1922, WHICH
PROVIDES OR EVEN INTIMATES THAT MEN TRANSFERRED UNDER ITS PROVISIONS
SHOULD BE DEEMED TO HAVE ACTUALLY PERFORMED 16 YEARS' SERVICE. THE ACT
MERELY SAID THAT MEN SO TRANSFERRED SHOULD "RECEIVE THE SAME PAY AND
ALLOWANCES AS NOW AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET
NAVAL RESERVE AT THE EXPIRATION OF ENLISTMENT AFTER 16 YEARS' SERVICE.'
IN THIS RESPECT, IT IS SIGNIFICANT THAT THE DEPARTMENT OF THE NAVY IN
REPORTING YOUR SERVICE, DID NOT CREDIT YOU WITH 16 YEARS' SERVICE AT THE
TIME OF TRANSFER TO THE FLEET RESERVE.
THERE IS FORWARDED A COPY OF B-134160, DECEMBER 4, 1957, WHICH SETS
FORTH IN DETAIL THE PERTINENT STATUTES AND DECISIONS TOGETHER WITH THE
UNDERLYING REASONING INVOLVED IN COMPUTING NAVAL SERVICE CREDITS FOR
DETERMINATION OF ENTITLEMENT TO THE BENEFITS ACCRUING UNDER SECTION 208
OF THE NAVAL RESERVE ACT OF 1938, ADDED BY THE ACT OF AUGUST 10, 1946,
60 STAT. 993, 994, 34 U.S.C. 854G. ON THE BASIS THEREOF AND ON THE
REASONING ABOVE SET FORTH, THE SETTLEMENT OF FEBRUARY 4, 1958 MUST BE,
AND HEREBY IS, SUSTAINED.
B-133416, MAR. 11, 1958
TO MR. ROBERT L. JACK:
REFERENCE IS MADE TO YOUR LETTER, FILE O:C:OM:RVE, DATED JANUARY 22,
1958, AND ENCLOSURE, RELATIVE TO A CHECK IN THE AMOUNT OF $794.60, DRAWN
IN FAVOR OF THE TREASURER, STATE OF GEORGIA, PURSUANT TO OUR CERTIFICATE
OF SETTLEMENT DATED NOVEMBER 7, 1957, ISSUED IN CONNECTION WITH THE
INDEBTEDNESS OF ANDRU CONSTRUCTION COMPANY FOR WITHHOLDING AND FEDERAL
INSURANCE CONTRIBUTION ACT TAXES FOR THE SECOND AND THIRD QUARTERS OF
1955.
THE CERTIFICATE OF SETTLEMENT WAS FORWARDED TO THE DISTRICT DIRECTOR
OF INTERNAL REVENUE, ATLANTA, GEORGIA, WITH INSTRUCTIONS FOR PROCESSING.
HE WAS ADVISED THAT THE CHECK SHOULD BE DRAWN IN FAVOR OF THE
TREASURER, STATE OF GEORGIA, AND A NOTATION ENTERED ON FORM 1166
REQUESTING THE DISBURSING OFFICER TO FORWARD THE CHECK TO WILLIAM J.
BOOKHOLT, DISTRICT DIRECTOR OF INTERNAL REVENUE SERVICE, ATLANTA,
GEORGIA. HE WAS ALSO ADVISED THAT UPON RECEIPT OF THE CHECK FROM THE
DISBURSING OFFICER A NOTICE OF LEVY, FORM 668A, COVERING THE TAY-PAYER'S
LIABILITY, BE PREPARED AND SERVED UPON THE APPROPRIATE OFFICIAL OF THE
STATE OF GEORGIA SIMULTANEOUSLY WITH THE DELIVERY OF THE CHECK.
IT APPEARS THESE INSTRUCTIONS WERE FOLLOWED. HOWEVER, THE TREASURER
OF THE STATE OF GEORGIA HAS REFUSED TO ACCEPT THE CHECK OR THE LEVY
ISSUED. YOU REQUEST TO BE ADVISED AS TO THE STEPS THAT NOW SHOULD BE
TAKEN IN THE MATTER.
IN THE CIRCUMSTANCES WE WILL TAKE NO FURTHER ACTION AT THIS TIME. IN
ORDER TO DISPOSE OF THE OUTSTANDING CHECK, THERE SHOULD BE PLACED ON THE
FACE OF THE CHECK, IMMEDIATELY BELOW THE PAYEE'S NAME, THE NOTATION "NOT
NEGOTIABLE. FOR PAYMENT AND CREDIT IN THE TREASURER'S ACCOUNT.' THE
REGULAR INTERNAL REVENUE SERVICE INDORSEMENT STAMP SHOULD BE PLACED ON
THE BACK OF THE CHECK. ALSO, AN EXPLANATION FOR THIS ACTION SHOULD BE
MADE ON THE SCHEDULE OF COLLECTION AND THE LETTER OF JANUARY 2, 1958,
FROM THE TREASURER OF GEORGIA, OR A COPY THEREOF, SHOULD BE ATTACHED TO
THE SCHEDULE. IT IS REQUESTED THAT A COPY OF THE SCHEDULE BE FORWARDED
HERE FOR OUR FILES.
B-135249, MAR. 11, 1958
TO MR. GLENN C. PARMELEE, DIRECTOR, SUPPLY SERVICE, VETERANS
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 14, 1958, WITH
ENCLOSURES, FILE 1340, SUBMITTING FOR OUR DECISION THE QUESTION AS TO
WHETHER THE FORESTON COAL COMPANY, INC., MAY BE PERMITTED TO INCREASE
ONE OF THE BID PRICES QUOTED BY THE CORPORATION UNDER VETERANS
ADMINISTRATION INVITATION NO. M9-1-58, IN VIEW OF AN ERROR ALLEGED TO
HAVE BEEN MADE IN THE BID.
IN RESPONSE TO INVITATION NO. M9-1-58, ISSUED ON JANUARY 13, 1958, BY
THE MARKETING DIVISION FOR FURLS, SUPPLY SERVICE, VETERANS
ADMINISTRATION, THE FORESTON COAL COMPANY, INC., OFFERED TO FURNISH,
AMONG OTHERS, ITEM NO. 78, COVERING AN ESTIMATED 2,200 NET TONS OF
BITUMINOUS COAL IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN
APPLICABLE SCHEDULES, ETC., ON A DELIVERED AND STORED BASIS, TO THE
VETERANS ADMINISTRATION HOSPITAL, WEST ROXBURY, MASSACHUSETTS, DURING
THE PERIOD FROM APRIL 1, 1958, THROUGH MARCH 31, 1959, AT A TOTAL UNIT
PRICE OF $11.58 PER NET TON. THE CORPORATION PROPOSED TO SHIP THE COAL
FROM THE MID PENN NO. 5 MINE AT MADERA, PENNSYLVANIA, AND THE UNIT PRICE
PER TON SHOWED A BREAKDOWN OF $5.75 A NET TON AT THE MINE PLUS A FREIGHT
RATE OF $5.83 PER NET TON. ANOTHER BID WAS SUBMITTED BY THE FORESTON
COAL COMPANY, INC., ON ITEM NO. 78 OFFERING SHIPMENT OF THE 2,200 NET
TONS FROM THE BURTON MINE, SUMMERSVILLE, WEST VIRGINIA, ON A DELIVERED
AND STORED BASIS, AT A TOTAL PRICE OF $14.18 PER NET TON. THIS BID
INCLUDED A UNIT PRICE BREAKDOWN OF $6.50 PER NET TON AT THE MINE, $5.98
PER NET TON FREIGHT RATE AND $1.70 PER NET TON FOR TRUCKING. ON
FEBRUARY 10, 1958, THE FORESTON COAL COMPANY, INC., CONTACTED THE
CONTRACTING OFFICER BY TELEPHONE AND ADVISED THAT THERE WAS OMITTED FROM
ITS BID ON THE COAL FROM THE MID PENN NO. 5 MINE A TRUCKING CHARGE OF
$1.70 PER NET TON. BY A LETTER DATED FEBRUARY 10, 1958, THE CORPORATION
AFFIRMED ITS TELEPHONE CONVERSATION AND POINTED OUT THAT THERE HAD BEEN
INCLUDED IN THE OTHER BID WHICH IT SUBMITTED FOR ITEM NO. 78 FOR
SHIPMENT FROM THE BURTON MINE AN AMOUNT OF $1.70 PER NET TON TO COVER
THE COST OF TRUCKING. THE FORESTON COAL COMPANY, INC., ALSO STATED IN
ITS LETTER, AS FOLLOWS:
"HOWEVER, IN MAKING OUR BID TO COVER THE MID PENN NO. 5 MINE COAL WE
SHOWED PRICE OF $5.75 N.T. AT THE MINE, AND WE SHOWED FREIGHT RATE OF
$5.83 N.T. WHICH, INCIDENTALLY, IS INCORRECT AND SHOULD
HAVE BEEN $5.62 N.T. THEN, BY AN OVERSIGHT ON THE PART OF ONE OF OU
CLERKS WE OMITTED TO SHOW THE TRUCKING PRICE OF $1.70 N.T., TO MEET YOUR
REQUIREMENTS ON A DELIVERED AND STORED PRICE.
"WE ARE SURE YOU WILL UNDERSTAND THAT THERE WAS NO INTENT IN
WRONGDOING BUT SIMPLY AN HONEST ERROR AND, THEREFORE, WE APPEAL TO YOU
TO EVALUATE OUR MID PENN NO. 5 BID ON A DELIVERED AND STORED BASIS,
USING PRICE OF COAL AS BID OF $5.75 N.T. AND THE TRUE FREIGHT RATE OF
$5.62, PLUS THE TRUCKING PRICE ALREADY SHOWN OF $1.70 N.T., MAKING A
DELIVERED AND STORED PRICE OF $13.07 T.'
THE SOLE QUESTION FOR CONSIDERATION HERE APPEARS TO BE WHETHER THE
RECORD ADEQUATELY SUPPORTS THE ALLEGATION THAT THE FORESTON COAL
COMPANY, INC., FULLY INTENDED TO INCLUDE A TRUCKING CHARGE OF $1.70 PER
NET TON ON ALL COAL SHIPPED FROM THE MID PENN NO. 5 MINE. IN THIS
CONNECTION IT SEEMS THAT THE CORPORATION IS RELYING ENTIRELY ON THE FACT
THAT THERE WAS INCLUDED IN ITS OTHER BID ON ITEM NO. 78 FOR COAL FROM
THE BURTON MINE A TRUCKING CHARGE OF $1.70 PER NET TON. HOWEVER, THERE
IS ALSO NOTED THE FACT THAT IN YOUR LETTER OF FEBRUARY 14, 1958, YOU
REPORT THAT THE AMOUNT OF $5.83 PER NET TON, WHICH WAS INCLUDED IN THE
BID OF THE FORESTON COAL COMPANY, INC., AS THE FREIGHT RATE, IS THE
APPLICABLE FREIGHT RATE FROM MADERA, PENNSYLVANIA, SITE OF THE MID PENN
NO. 5 MINE TO WEST ROXBURY, MASSACHUSETTS--- NOT ROXBURY,
MASSACHUSETTS--- AS SHOWN IN P.R.R. FREIGHT TARIFF 3011-B, AA-I.C.C.
2800. THERE ALSO IS NOTED THE CORPORATION'S STATEMENT IN ITS LETTER OF
FEBRUARY 10, 1958, WHICH REFERS TO THE FREIGHT RATE THAT WAS INCLUDED IN
ITS BID OF $5.83 PER NET TON--- ESTABLISHED AS THE APPLICABLE RATE FROM
MADERA TO WEST ROXBURY--- AS BEING IN ERROR AND THAT THIS RATE SHOULD
HAVE BEEN $5.62 PER NET TON, WHICH YOU REPORT IS THE APPLICABLE FREIGHT
RATE FROM MADERA TO ROXBURY.
ADMITTEDLY, THE RECORD FAILS TO REVEAL ANY REAL PLAUSIBLE BASIS AS TO
WHY THE FORESTON COAL COMPANY, INC., WOULD HAVE DIFFERENTIATED AS TO THE
TRUCKING ASPECTS OF THE TWO BIDS ON ITEM NO. 78, BUT WHEN THERE IS
CONSIDERED THE FOREGOING, TOGETHER WITH THE FACT THAT SHIPMENT FROM THE
MID PENN NO. 5 MINE IN PENNSYLVANIA WAS TO BE MADE VIA THE PENNSYLVANIA
RAILROAD, WHEREAS THE BALTIMORE AND OHIO IS DESIGNATED AS THE CARRIER
FOR THE COAL FROM THE BURTON MINE IN WEST VIRGINIA--- SCHEDULE NO. 1 OF
THE INVITATION SHOWS THE RAILROAD POINT OF DELIVERY AS WEST ROXBURY,
MASSACHUSETTS (NY, NH AND H RR/--- WHEREIN THERE VERY READILY MIGHT BE
INVOLVED CERTAIN SUBSTANTIAL SHIPPING ADVANTAGES OR DISADVANTAGES IN
TIME SCHEDULES, RATES, CONNECTIONS, ETC., WE DO NOT FEEL THAT THE RECORD
ESTABLISHES, BEYOND DOUBT, THE INTENTION OF THE FORESTON COAL COMPANY,
INC., AT THE TIME OF THE PREPARATION OF ITS BID, TO SHIP THE COAL BY
RAIL ONLY TO ROXBURY, MASSACHUSETTS, AND TO INCLUDE A TRUCKING CHARGE OF
$1.70 PER NET TON FOR DELIVERY AND STORAGE CHARGES FROM THAT POINT TO
THE HOSPITAL.
ACCORDINGLY, A CORRECTION OF THE SUBJECT BID PROPERLY MAY NOT BE
AUTHORIZED. HOWEVER, IN VIEW OF THE CIRCUMSTANCES REPORTED IN THIS
PARTICULAR CASE, THAT PART OF THE BID FOR ITEM NO. 78 MAY BE
DISREGARDED.
B-135324, MAR. 11, 1958
TO THE SECRETARY OF AGRICULTURE:
REFERENCE IS MADE TO A LETTER OF FEBRUARY 18, 1958, FROM THE
CONTRACTING OFFICER, FOREST SERVICE, NORTHERN REGION, MISSOULA, MONTANA,
REQUESTING A DECISION AS TO THE DISPOSITION OF THE ALLEGATION OF ERROR
IN BID MADE BY U.R.M. STORES, INC., SPOKANE, WASHINGTON, ON ITEM M OF
INVITATION FOR BIDS NO. 5014-58, ISSUED DECEMBER 23, 1957.
SINCE AN AWARD HAS BEEN MADE IN THIS CASE, THE DECISION IS BEING
ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; 28 ID. 401.
BY THE REFERRED-TO INVITATION BIDS WERE REQUESTED--- TO BE OPENED
JANUARY 20, 1958--- FOR FURNISHING VARIOUS ITEMS OF CANNED GOODS. IN
RESPONSE, U.R.M. STORES, INC., SUBMITTED A BID WHICH WAS ACCEPTED AS TO
ITEMS A, M, AND U ON JANUARY 27, 1958. AS TO ITEM M, THE CONTRACTOR'S
BID WAS ACCEPTED ON THE BASIS OF A BID PRICE OF $4.12 PER DOZEN NO. 2
CANS WITH NET WEIGHT CONTENTS OF 28 OZ. EACH. THE FIRM, HOWEVER,
DELIVERED 24 OZ. CANS AND WHEN THEY WERE ADVISED OF THE SHORTAGE THEY
PROTESTED VERBALLY THAT THEIR CLERK HAD ERRONEOUSLY SPECIFIED 28 OZ.
CANS INSTEAD OF 24 OZ. CANS AND THAT THEY DO NOT HANDLE A 28 OZ. SIZE.
AN EXAMINATION OF THE BID COMPARISON SHEET FOR THE ITEM IN QUESTION
SHOWS THAT THREE OTHER BIDDERS BID $4.21, $5.098 AND $6.189 PER DOZEN
CANS AND THAT EACH OF THE THREE SPECIFIED A 24 OZ. PER CAN CONTENT. IN
VIEW OF SUCH FACT, THE CONTRACTING OFFICER HAS STATED THAT HE SHOULD
HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID AS TO ITEM M
AND, THEREFORE, SHOULD NOT HAVE MADE THE AWARD WITHOUT REQUESTING U.R.M.
STORES, INC., TO VERIFY ITS BID. WE AGREE WITH THE CONCLUSION OF THE
CONTRACTING OFFICER IN THE MATTER.
IN VIEW OF THE FOREGOING, THERE IS LITTLE DOUBT THAT THE CONTRACTOR
MADE A BONA FIDE ERROR IN ITS BID AS A RESULT OF ITS DESIGNATION OF A 28
OZ. PER CAN CONTENT FOR ITEM M. ACCORDINGLY, PAYMENT THEREFOR IS
AUTHORIZED TO BE MADE FOR THE DELIVERY OF 200 DOZEN CANS OF 24 OZ. EACH
AT THE STIPULATED CONTRACT PRICE OF $4.12 PER DOZEN CANS, AS REQUESTED,
WHICH PRICE REMAINS LOWER THAN THAT OF THE NEXT LOWEST BIDDER.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING
SUCH PAYMENT.
B-132982, MAR. 10, 1958
TO THE SECRETARY OF THE NAVY:
THERE ARE TRANSMITTED HEREWITH TWO COPIES OF A REPORT OF OUR
INVESTIGATION INTO THE CIRCUMSTANCES SURROUNDING THE CONSTRUCTION OF A
PATIO APPURTENANT TO THE OFFICIAL QUARTERS OF CAPTAIN A. C. BURROWS,
USN, COMMANDANT, GREAT LAKES NAVAL TRAINING CENTER, ILLINOIS. THE
INVESTIGATION WAS BASED UPON INFORMATION THAT EXPENSIVE IMPROVEMENTS HAD
BEEN MADE TO THE AREA IN QUESTION, AND THAT THE WORK HAD BEEN ORDERED
AND ACCOUNTED FOR AS A SOIL EROSION PROJECT.
THE FINDINGS SHOW THAT THE WORK WAS DONE UNDER A LOCALLY ISSUED JOB
ORDER ENTITLED "EROSION CONTROL AND LANDSCAPING OF BLUFF ALONG LAKE
FRONT," AND WAS CHARGED TO THE APPROPRIATION "NAVAL PERSONNEL, GENERAL
EXPENSES.' THE TOTAL COST OF THE IMPROVEMENTS AS RECORDED UNDER THE
STANDING JOB ORDER WAS APPROXIMATELY $12,500.
FROM A REVIEW OF THE MATTER, IT APPEARS TO US THAT UNDER NAVY
REGULATIONS AND PROCEDURES THE WORK PROPERLY SHOULD HAVE BEEN CLASSIFIED
AS "MINOR NEW CONSTRUCTION," RATHER THAN "MAINTENANCE,"
AND SHOULD HAVE BEEN SUBMITTED TO THE BUREAU OF NAVAL PERSONNEL FOR
APPROVAL OR DISAPPROVAL. WHILE CHARGES OF EITHER NATURE OR TYPE WOULD
BE PAYABLE UNDER THE APPROPRIATION "NAVAL PERSONNEL, GENERAL EXPENSES,"
SERIOUS QUESTIONS DO ARISE AS TO WHETHER THE COST OF THE WORK REPRESENTS
AN AUTHORIZED AND APPROVED CHARGE TO THE APPROPRIATION, AND, IF NOT,
WHETHER THE MATTER WARRANTS CORRECTIVE AND DISCIPLINARY ACTION.
A STATEMENT OF THE NAVY DEPARTMENT'S POSITION ON THE MATTER AND
ADVICE OF ANY ACTION TAKEN
B-134704, MAR. 10, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED JANUARY 16, 1958, R11.1
L4-1/L4/NT4-12, FROM MR. R. A. WILLIAMS, ASSISTANT CHIEF FOR
PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, FURNISHING THE REPORT
REQUESTED IN OUR LETTER TO YOU OF DECEMBER 26, 1957, ON THE *PROTEST OF
ALBERT TURNER AND COMPANY, INC., AGAINST THE AWARD OF A CONTRACT TO
AVIATORS CLOTHING COMPANY, INC., PURSUANT TO INVITATION FOR BIDS NO.
JD-IFB-383-184-58, ISSUED OCTOBER 15, 1957, BY THE AVIATION SUPPLY
OFFICE, PHILADELPHIA, PENNSYLVANIA.
BIDS WERE REQUESTED WITH BIDS SCHEDULED FOR OPENING ON NOVEMBER 13,
1957, FOR FURNISHING 5,170 WINTER FLYING JACKETS, ITEMS 1 THROUGH 8, AND
8,231 PAIRS OF WINTER FLYING TROUSERS, ITEMS 9 THROUGH 20. THE
INVITATION CALLED FOR THE SUPPLIES TO BE DELIVERED, ALL TRANSPORTATION
CHARGES PAID, TO THE DESTINATIONS AS SPECIFIED THEREIN. EACH ITEM OF
THE BIDDING SCHEDULE INCLUDED TWO OR MORE SUBITEMS LISTING QUANTITIES TO
BE DELIVERED TO SEPARATE DESTINATIONS AND THE GOVERNMENT RESERVED THE
RIGHT TO MAKE AWARD BY SUBITEM.
AVIATORS CLOTHING COMPANY, INC., AND ALBERT TURNER AND COMPANY, INC.,
SUBMITTED THE LOWEST BIDS AND AWARDS WERE MADE ONLY TO THOSE CONCERNS.
AVIATORS CLOTHING COMPANY, INC., QUOTED THE UNIT PRICES OF $17.91 FOR
THE JACKETS AND $20.97 FOR THE TROUSERS, AND OFFERED A DISCOUNT OF
ONE-NINTH OF ONE PERCENT FOR PAYMENT WITHIN 20 DAYS. HOWEVER, ITS BID
WAS ACCOMPANIED BY LETTER OFFERING AN ADDITIONAL DISCOUNT OF FIVE-NINTHS
OF ONE PERCENT IF AWARDED ALL ITEMS, AND PROPOSING TO REDUCE ITS UNIT
PRICES BY $0.60 "IF AWARD IS MADE F.O.B. OUR PLANT.' ALBERT TURNER AND
COMPANY, INC., QUOTED UNIT PRICES RANGING FROM $18.25 TO $18.55 FOR THE
JACKETS AND FROM $19.80 TO $20.50 FOR THE TROUSERS. IT OFFERED A
DISCOUNT OF 4 PERCENT, 20 DAYS, AND AGREED TO ALLOW AN ADDITIONAL
DISCOUNT OF ONE-FOURTH OF ONE PERCENT IF AWARDED ALL ITEMS.
DISCOUNT OFFERS WERE NOT CONSIDERED IN EVALUATING THE BIDS. AVIATORS
CLOTHING COMPANY, INC., WAS AWARDED A CONTRACT IN THE TOTAL AMOUNT OF
$117,073.68 FOR DELIVERY, F.O.B. ITS PLANT, OF 5,170 JACKETS AT A PRICE
OF $17.31 EACH ($17.91 LESS $0.60), AND FOR DELIVERY, F.O.B. ITS PLANT,
OF 1,354 PAIRS OF TROUSERS AT A PRICE OF $20.37 PER PAIR ($20.97 LESS
$0.60). ALBERT TURNER AND COMPANY, INC., WAS AWARDED A CONTRACT IN THE
TOTAL AMOUNT OF $138,758.80 FOR DELIVERY OF THE REMAINING QUANTITIES OF
TROUSERS (6,877 PAIRS) LISTED UNDER ITEMS 9 THROUGH 20 OF THE INVITATION
FOR BIDS. ON THE SUBITEMS OF ITEMS 12, 13, 17 AND 18 WHICH WERE AWARDED
TO AVIATORS CLOTHING COMPANY, INC., ALBERT TURNER AND COMPANY, INC., HAD
QUOTED A PRICE OF $20.50 PER PAIR.
IT WAS CONTENDED ON BEHALF OF ALBERT TURNER AND COMPANY, INC., THAT
THE BID OF AVIATORS CLOTHING COMPANY, INC., WAS NOT RESPONSIVE TO THE
INVITATION SINCE THE INVITATION HAD REQUESTED BIDS ONLY ON THE BASIS OF
MAKING DELIVERY TO THE SPECIFIED DESTINATIONS. A SECOND CONTENTION WAS
MADE TO THE EFFECT THAT THE CONTRACTING OFFICER SHOULD HAVE CONSIDERED
THE DISCOUNT OFFERS IN EVALUATING THE BIDS, IN WHICH EVENT THE TOTAL BID
OF ALBERT TURNER AND COMPANY, INC., WOULD HAVE BEEN LESS THAN THE TOTAL
OF THE AWARDS WHICH WERE MADE TO THE TWO CONCERNS. WITH REFERENCE TO
THIS FEATURE OF THE CASE, ATTENTION WAS INVITED TO THE FACT THAT THE
INVITATION PROVIDED THAT A DISCOUNT OFFERED BY THE SUCCESSFUL BIDDER WAS
TO FORM A PART OF THE AWARD, WITH BIDDERS BEING ADVISED THAT THE
DISCOUNT WOULD BE TAKEN IF PAYMENT WERE MADE WITHIN THE DISCOUNT PERIOD.
WE ARE ADVISED THAT PARAGRAPH 7 OF THE INVITATION FOR BIDS
INCORPORATES BY REFERENCE A PROVISION FOR THE CONSIDERATION OF DISCOUNT
OFFERS IN THE EVALUATION OF BIDS. AS APPLIED TO DELIVERIES AT MULTIPLE
POINTS OF DESTINATION, HOWEVER, THE QUOTED PROVISION REQUIRED THE
CONTRACTING OFFICER TO DISREGARD DISCOUNT OFFERS WHICH DID NOT ALLOW A
MINIMUM OF 30 DAYS FOR PAYMENT. THUS, IT IS APPARENT, AS SUGGESTED IN
THE REPORT OF JANUARY 16, 1958, THAT THE CONTRACTING OFFICER WAS
JUSTIFIED IN REFUSING TO CONSIDER THE 20-DAY DISCOUNT OFFERS IN
EVALUATING THE BIDS OF THE TWO COMPANIES.
WITH RESPECT TO THE FACT THAT THE CONTRACT AWARDED TO AVIATORS
CLOTHING COMPANY, INC., WAS BASED ON THAT COMPANY'S F.O.B. PLANT PRICES,
THE REPORT OF JANUARY 16, 1958, SETS FORTH THAT IT IS THE INTENT OF THE
GOVERNMENT TO AWARD A CONTRACT WHICH IS MOST ADVANTAGEOUS TO THE
GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, AND THAT "WHENEVER FOB
ORIGIN BIDS ARE SUBMITTED, IN THE ABSENCE OF ANY PROVISIONS TO THE
CONTRARY IN THE INVITATION FOR BIDS, THE COST OF TRANSPORTATION IS
ALWAYS A MATTER FOR CONSIDERATION IN DETERMINING WHICH, IN FACT, IS THE
LOWEST BID RECEIVED.'
WE ARE OF THE OPINION THAT WHEN THE GOVERNMENT REQUESTS F.O.B.
DESTINATION BIDS FOR DELIVERIES OF SUPPLIES, WITHOUT ADVISING BIDDERS
THAT F.O.B. ORIGIN BIDS WOULD ALSO BE CONSIDERED, THERE IS ORDINARILY AN
IMPLIED OBLIGATION TO REJECT ANY BID WHICH FAILS TO QUOTE F.O.B.
DESTINATION PRICES. THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST
BE THE CONTRACT WHICH WAS SUBMITTED TO COMPETITION. SEE 16 COMP. GEN.
21, WHICH DISTINGUISHES, SO FAR AS THE MATTER OF CONSIDERING FREIGHT
COSTS IS CONCERNED, THE SITUATION WHERE ONLY F.O.B. ORIGIN BIDS HAVE
BEEN REQUESTED AND RECEIVED, AND THE SITUATION WHERE THE REQUEST IS FOR
F.O.B. ORIGIN BIDS ONLY BUT ONE OF THE BIDDERS HAS QUOTED BOTH F.O.B.
FACTORY AND F.O.B. DESTINATION PRICES.
NOWHERE IN THE PRESENT INVITATION FOR BIDS IS THERE ANY INDICATION TO
THE EFFECT THAT THE GOVERNMENT MIGHT ELECT TO ACCEPT AN F.O.B. ORIGIN
BID. BIDS WERE REQUESTED SOLELY ON THE BASIS OF MAKING DELIVERY, ALL
TRANSPORTATION CHARGES PAID, TO THE PARTICULAR DESTINATIONS. IT IS
APPARENT, THEREFORE, THAT THE F.O.B. PLANT BID OF AVIATORS CLOTHING
COMPANY, INC., WAS NOT RESPONSIVE TO THE INVITATION. THE ENTIRE BID OF
THAT COMPANY WAS NOT UNRESPONSIVE, HOWEVER, SINCE THE BIDDER ALSO QUOTED
F.O.B. DESTINATION PRICES FOR EACH OF THE ITEMS.
THERE WOULD APPEAR TO BE NO OBJECTION TO THE AWARD MADE TO AVIATORS
CLOTHING COMPANY, INC., FOR ITEMS 1 THROUGH 8 ON THE BASIS OF ITS F.O.B.
PLANT PRICES BECAUSE THIS BIDDER SUBMITTED THE LOWEST BID ON THOSE
ITEMS EVEN ON A DESTINATION BASIS. HOWEVER, THE CONCLUSION IS REQUIRED
THAT THE CONTRACTING OFFICER WAS NOT AUTHORIZED TO MAKE AN AWARD TO THAT
COMPANY FOR ANY OF THE SUBITEMS OF ITEMS 9 THROUGH 20 SINCE ITS
DESTINATION UNIT BID PRICE OF $20.97 WAS HIGHER THAN THE VARIOUS UNIT
PRICES QUOTED BY ALBERT TURNER AND COMPANY, INC., FOR ITEMS 9 THROUG
20.
THIS CONCLUSION SHOULD BE APPLIED IN FUTURE SIMILAR PROCUREMENTS BY
YOUR DEPARTMENT BUT, SINCE, AS WE ARE INFORMALLY ADVISED, SOME OF THE
TROUSERS COVERED BY THE SUBITEMS IN QUESTION HAVE ALREADY BEEN
MANUFACTURED, THE BULK OF THE MATERIAL FOR THE REMAINING TROUSERS HAS
BEEN PURCHASED BY THE CONTRACTOR, AND THE PROCUREMENT THEREOF HAS BECOME
URGENT, IT WOULD NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT TO
REQUIRE CANCELLATION OF THAT PART OF THE CONTRACT ENTERED INTO WITH
AVIATORS CLOTHING COMPANY, INC., WHICH COVERS THE DELIVERY OF 1,354
PAIRS OF TROUSERS.
B-134817, MAR. 10, 1958
TO OTIS STEEL PRODUCTS CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1958,
PROTESTING AGAINST THE AWARD OF A CONTRACT MADE BY THE KEESLER AIR FORCE
BASE, MISSISSIPPI, UNDER INVITATION TO BID NO. 22-600-57-122, OPENED ON
JUNE 22, 1957, FOR THE FURNISHING OF STEEL SHELVING.
THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 10:30 A.M.
(C.S.T.), JUNE 22, 1957, AND THAT LATE BIDS WOULD NOT BE CONSIDERED
UNLESS THEY ARE RECEIVED BEFORE AWARD AND "IT IS DETERMINED BY THE
GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE
MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'
THE RECORD DISCLOSES THAT YOU DISPATCHED YOUR BID VIA AIR MAIL FROM
ELLICOTTVILLE, NEW YORK, ON JUNE 21, 1957, AT 12:00 NOON (E.S.T.); THAT
THE BID ACTUALLY ARRIVED AT THE BILOXI, MISSISSIPPI, POST OFFICE AT 1:30
P.M. (C.S.T.) ON JUNE 22; AND THAT IT REACHED THE CONTRACTING OFFICER
AT KEESLER AIR FORCE BASE AT 10:30 A.M. (C.S.T.) ON JUNE 24. IN A
REPORT ATTACHED TO YOUR LETTER, IT IS STATED THAT, AS A RESULT OF
INQUIRY AT THE OFFICE OF THE POSTMASTER GENERAL, IT WAS ESTABLISHED
THAT A LETTER AIR MAILED FROM ELLICOTTVILLE, NEW YORK, AT 12:00 NOON
WOULD ARRIVE UNDER NORMAL AIR TRANSPORTATION AT THE BILOXI, MISSISSIPPI,
AIRPORT AT 8:25 A.M. (C.S.T.) ON THE NEXT DAY. HENCE, IT IS CONCLUDED
THAT HAD THE BID BEEN IN THE AIR MAIL POUCH ARRIVING AT 8:25 A.M. AT THE
AIRPORT, IT WOULD HAVE BEEN PICKED UP AT 10:15 A.M. BY A SPECIAL KESSLER
AIR FORCE BASE TRUCK AT THE BILOXI POST OFFICE. HOWEVER, YOUR STATEMENT
OF THE CIRCUMSTANCES RESPECTING THE MAILING OF YOUR BID DID NOT TAKE
INTO CONSIDERATION THE TIME INVOLVED IN TRANSFERRING AIR MAIL FROM THE
BILOXI AIRPORT TO THE BILOXI POST OFFICE. THE ESTIMATED TIME OF ARRIVAL
OF SUCH MAIL AT THE POST OFFICE IS 9:00 A.M., AND UNDER NORMAL OPERATING
PROCEDURES THE MAIL IS SEGREGATED, BUNDLED, AND PLACED IN VARIOUS SACKS
FOR DELIVERY TO THE SCHEDULED PICKUP TRUCK FROM THE AIR BASE AT 9:00
A.M.
UPON ARRIVAL AT THE BASE, THE MAIL IS THEN DISTRIBUTED TO THE VARIOUS
UNITS BY THE POSTAL OFFICER. ACCORDINGLY, IN THE NORMAL OPERATION OF
THE MAIL DELIVERY SCHEDULE, IT WOULD HAVE BEEN EXTREMELY UNLIKELY THAT
THE LETTER CONTAINING YOUR BID WOULD HAVE BEEN DELIVERED BY THE POST
OFFICE TO THE ROUTINE 9:00 A.M. PICKUP TRUCK EVEN IF THE BID HAD ARRIVED
ON TIME AT THE AIRPORT AND THE POST OFFICE. SINCE YOUR BID DID NOT
ARRIVE AT THE BILOXI POST OFFICE UNTIL 1:30 P.M. ON JUNE 22, THE FACT
THAT A SPECIAL 10:15 A.M. TRUCK WAS SENT BY THE BASE TO THE POST OFFICE
IS NOT SIGNIFICANT. IT WAS YOUR RESPONSIBILITY TO SEE THAT THE BID WAS
ACTUALLY DELIVERED AT THE PLACE AND PRIOR TO THE TIME SPECIFIED, OR
MAILED WITHIN TIME TO ARRIVE THERE IN THE NORMAL COURSE OF THE MAILS,
WHICH, IN THIS INSTANCE, WAS MORE THAN 24 1/2 HOURS. SEE, IN THIS
CONNECTION, 35 COMP. GEN. 432, 433.
IN VIEW OF THE FOREGOING, WE THINK THE DETERMINATION OF THE
CONTRACTING OFFICER THAT YOUR BID WAS NOT AN ACCEPTABLE LATE BID WAS
PROPER.
WHILE YOU CONTEND THAT THE INVITATION TO BID, ALTHOUGH ISSUED ON JUNE
11, 1957, DID NOT REACH YOU UNTIL THE MORNING OF JUNE 21, INFORMATION IN
THE RECORD ESTABLISHES THAT ALL INVITATIONS TO BID, INCLUDING THE ONE
SENT TO YOU, WERE DISPATCHED ON JUNE 11, THEREBY ALLOWING ALL BIDDERS
SUFFICIENT TIME TO PREPARE AND SUBMIT THEIR BIDS.
ACCORDINGLY, NO LEGAL BASIS EXISTS UPON WHICH OUR OFFICE MAY DISTURB
THE ADMINISTRATIVE ACTION TAKEN.
B-135092, MAR. 10, 1958
TO MR. NEAL J. PRICE, AUTHORIZED CERTIFYING OFFICER, INTERNATIONAL
COOPERATION ADMINISTRATION:
YOUR LETTER OF JANUARY 29, 1958, REFERENCE AUD:AAB:MA, WITH
ENCLOSURES, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING
FOR PAYMENT THE VOUCHER THEREWITH SUBMITTED COVERING A RECLAIM BY MR.
WESLEY R. C. MELYAN, IN THE AMOUNT OF $171 REPRESENTING PER DIEM
ADMINISTRATIVELY SUSPENDED FROM A PRIOR TRAVEL VOUCHER UNDER THE FACTS
AND CIRCUMSTANCES HEREINAFTER RELATED.
THE RECORD SHOWS THAT UNDER TRAVEL AUTHORIZATION ICA 7-P-3044 DATED
JUNE 11, 1957, MR. MELYAN WAS DIRECTED TO TRAVEL FROM CULVER CITY,
CALIFORNIA, VIA WASHINGTON, D.C., FOR ORIENTATION, THEN TO TAIPEI,
TAIWAN. HIS SIX DEPENDENTS WERE AUTHORIZED TO TRAVEL DIRECT FROM CULVER
CITY TO TAIPEI. UPON COMPLETION OF TEMPORARY DUTY IN WASHINGTON, D.C.,
MR. MELYAN DEPARTED THAT CITY BY AIR ON JULY 11, 1957, AT 1:00 P.M.,
FOR LOS ANGELES, CALIFORNIA, AT WHICH POINT HIS DEPENDENTS JOINED HIM
FOR ONWARD TRAVEL BY AIR TO TAIPEI AT 11:00 P.M. OF THE SAME DAY. THEY
UTILIZED SLEEPING ACCOMMODATIONS WITH THE EXCEPTION OF THE SHORTAGE OF
ONE BERTH FOR THIS PART OF THE TRAVEL, ARRIVING IN HONOLULU, HAWAII, ON
JULY 12, 1957, AT 6:30 A.M. THE TRAVEL ARRANGEMENTS OFFICE OF THE
INTERNATIONAL COOPERATION ADMINISTRATION HAD BEEN UNABLE TO OBTAIN
CONFIRMATION OF BERTH ACCOMMODATIONS FOR THE HONOLULU-TOKYO, JAPAN, LEG
OF THE JOURNEY AND THEREFORE ADVISED MR. MELYAN THAT HE SHOULD ATTEMPT
TO OBTAIN BERTH RESERVATIONS UPON ARRIVAL IN HONOLULU. MR. MELYAN
STATES THAT HE WAS UNABLE TO PROCURE BERTHS UPON ARRIVAL, AND RATHER
THAN CONTINUE ONWARD IMMEDIATELY ON THE FLIGHT WITHOUT BERTHS, WHICH HE
SAYS WOULD HAVE PROVED EXTREMELY FATIGUING WHEN
TRAVELING WITH HIS LARGE FAMILY, HE DECIDED TO REMAIN IN HONOLULU FO
A NIGHT'S REST. HE THEREFORE PROCEEDED TO HIS DESTINATION A DAY LATER,
DEPARTING HONOLULU ON A DAY FLIGHT, JULY 13, 1957, 8:30 A.M., AND
ARRIVING IN TOKYO, AFTER CROSSING THE INTERNATIONAL DATE LINE, AT 9:50
P.M., JULY 14, 1957. AFTER A LAYOVER, AWAITING TRANSPORTATION, HE
PROCEEDED TO TAIPEI, LEAVING TOKYO AT 1:00 A.M. ON JULY 16 AND ARRIVING
AT TAIPEI AT 6:20 A.M. IT DOES NOT APPEAR THAT BERTH ACCOMMODATIONS
WERE USED FOR ANY PART OF THE JOURNEY EXCEPT FROM LOS ANGELES TO
HONOLULU.
YOU SUBMIT THE FOLLOWING QUESTIONS FOR CONSIDERATION BY OUR OFFICE:
(1) SHOULD THE EMPLOYEE HAVE PROCEEDED ONWARD FROM HONOLULU BY THE
FIRST FLIGHT DEPARTING IMMEDIATELY AFTER HIS ARRIVAL ON THE MORNING OF
JULY 12, NOTWITHSTANDING THE FACT THAT HE HAD BEEN IN FLIGHT FOR
APPROXIMATELY 17 1/2 HOURS FROM THE TIME OF DEPARTURE FROM WASHINGTON
UNTIL ARRIVAL IN HONOLULU?
(2) SHOULD THE EMPLOYEE HAVE DEPARTED HONOLULU ON THE EVENING OF THE
SAME DAY OF ARRIVAL, PROVIDED BERTHS WERE AVAILABLE THEREBY OBLIGATING
THE GOVERNMENT FOR THE COST OF SIX BERTHS AT $75.00 EACH, OR A SUM OF
$450.00?
(3) WAS EMPLOYEE ENTITLED TO THE ONE NIGHT'S REST WHICH HE TOOK IN
HONOLULU, PROCEEDING ON A DAY FLIGHT THE FOLLOWING MORNING, JULY 13,
WHICH INVOLVED AN ACCRUAL OF ADDITIONAL PER DIEM IN THE AMOUNT OF
$171.00 FOR THE STOPOVER, BUT INCIDENTALLY ELIMINATED THE NECESSITY FOR
UTILIZING BERTHS AT A COST OF $450.00 ON A NIGHT FLIGHT, THEREBY
EFFECTING A SAVING OF $279.00 TO THE GOVERNMENT?
SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, PROVIDES
THAT AUTHORIZED CERTIFYING OFFICERS "SHALL HAVE THE RIGHT TO APPLY FOR
AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW
INVOLVED IN A PAYMENT ON ANY VOUCHER PRESENTED TO THEM FOR
CERTIFICATION.' ACCORDINGLY, OUR OFFICE IS WITHOUT JURISDICTION TO
RENDER A DECISION TO YOU AS AN AUTHORIZED CERTIFYING OFFICER UPON GENRAL
QUESTIONS NOT INVOLVED IN THE VOUCHER ACCOMPANYING YOUR REQUEST FOR A
DECISION. SEE 24 COMP. GEN. 546, AND 26 ID. 797. THE VOUCHER FORWARDED
BY YOU WILL BE CONSIDERED AND A DECISION RENDERED WITH RESPECT TO THE
QUESTION OF THE LAW INVOLVED THEREIN.
CONCERNING AIRPLANE ACCOMMODATIONS THE CONTROLLING INTERNATIONAL
COOPERATION ADMINISTRATION REGULATIONS ORDER NO. 560.2, SECTION III,
PARAGRAPH E 2 PROVIDES AS FOLLOWS:
"2. ACCOMMODATIONS ON PLANES
EACH AUTHORIZED TRAVELER WILL BE ALLOWED A SEAT ON AN AIRPLANE,
PROVIDED THE ACCOMMODATION IS ACTUALLY USED. WHEN OVERSEAS NIGHT TRAVEL
OF MORE THAN 6 HOURS' DURATION IS INVOLVED, ONE STANDARD BERTH WILL BE
ALLOWED FOR EACH TRAVELER 5 YEARS OF AGE OR OVER IF SUCH ACCOMMODATIONS
ARE AVAILABLE AND ARE ACTUALLY USED; ONE STANDARD BERTH WILL BE ALLOWED
FOR EACH TWO CHILDREN UNDER 5, BUT NO BERTH WILL BE ALLOWED FOR SEPARATE
OCCUPANCY BY ONE CHILD UNDER 5 WHO IS ACCOMPANIED BY A PERSON OVER 5
YEARS OF AGE TRAVELING AT GOVERNMENT EXPENSE.'
SINCE THE MORNING FLIGHT FROM HONOLULU TO TOKYO ARRIVES AT TOKYO AT
9:50 P.M., IT IS APPARENT THAT NIGHT TRAVEL OF MORE THAN SIX HOURS WAS
NOT REQUIRED FOR THAT LEG OF THE JOURNEY. THUS, UNDER THE REGULATIONS
IT DOES NOT APPEAR THAT THE EMPLOYEE WAS ENTITLED TO BERTH
ACCOMMODATIONS AND THEIR UNAVAILABILITY WOULD NOT JUSTIFY IN LAW A
STOPOVER OF TWENTY-FOUR HOURS OR MORE AT HONOLULU.
CURRENT INTERNATIONAL COOPERATION ADMINISTRATION REGULATIONS ORDER
NO. 560.2, SECTION III, PARAGRAPH G 3, CONCERNING DELAYS AND
INTERRUPTIONS EN ROUTE, READS AS FOLLOWS:
"3. DELAYS AND INTERRUPTIONS EN ROUTE
PER DIEM WILL BE ALLOWED FOR PERIODS OF DELAY OR INTERRUPTION EN
ROUTE WHEN NECESSARY IN CONNECTION WITH AUTHORIZED OR APPROVED TEMPORARY
DUTY, OR WHEN CAUSED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE
TRAVELER.'
SINCE NONE OF THE CONDITIONS SPECIFIED IN THE REGULATION WERE THE
CAUSE OF MR. MELYAN'S STOPOVER, WE FIND NO BASIS IN LAW FOR THE
ALLOWANCE OF THE PER DIEM CLAIMED.
THE VOUCHER TRANSMITTED WITH YOUR LETTER OF JANUARY 29 IS RETURNED
HEREWITH, TOGETHER WITH THE RELATED PAPERS, BUT FOR THE REASONS STATED
ABOVE IT MAY NOT PROPERLY BE CERTIFIED FOR PAYMENT.
B-135304, MAR. 10, 1958
TO JOHN P. HALLAHAN COMPANY, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1958, REQUESTING THAT
OUR CERTIFICATE OF SETTLEMENT DATED OCTOBER 21, 1957, WHICH DISALLOWED
YOUR CLAIM FOR INCREASED COSTS INCIDENT TO PERFORMANCE OF CONTRACT NO.
T2M-1460, DATED JUNE 26, 1956, BE WITHDRAWN AND THE MATTER CONSIDERED
UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT BY THE CONTRACTING OFFICER.
THE CONTRACT "DISPUTES" CLAUSE HAS REFERENCE TO QUESTIONS OF FACT
ARISING UNDER THE CONTRACT WHICH ARE FOR DETERMINATION BY THE
CONTRACTING OFFICER UNDER THE PROCEDURES PRESCRIBED BY SUCH CLAUSE. THE
QUESTION INVOLVED HERE IS ONE OF LAW AND, AS SUCH, PROPERLY IS FOR
SETTLEMENT BY OUR OFFICE UNDER THE PROVISIONS OF 31 U.S. CODE 71.
HENCE, IN ORDER TO EXPEDITE THE MATTER, YOU LETTER WILL BE CONSIDERED AS
IN THE NATURE OF A REQUEST FOR REVIEW OF THE CERTIFICATE OF SETTLEMENT
DISALLOWING YOUR CLAIM.
IT APPEARS THAT THE CONTRACT, AS MODIFIED, PROVIDED FOR THE
FURNISHING OF GENERAL INSTALLATION WORK IN CONNECTION WITH THE REVISION
AND MODERNIZATION OF MACHINERY AND EQUIPMENT OF THREE ROLLING MILL SITES
OF THE PHILADELPHIA MINT FOR A TOTAL LUMP-SUM CONSIDERATION OF $54,713.
THE CONTRACT CLEARLY INDICATED THE EXISTENCE OF OTHER SEPARATE CONTRACTS
FOR CONSTRUCTION AND SUPPLY INCIDENT TO THE MODERNIZATION PROGRAM FOR
THESE ROLLING MILL SITES AND THAT YOUR GENERAL INSTALLATION WORK WAS
DEPENDENT UPON THE PROGRESS OF THESE OTHER CONTRACTORS.
PRIOR TO AWARD, YOU ADVISED THE PHILADELPHIA MINT THAT THE WORK
CONTEMPLATED BY YOUR BID COULD BE COMPLETED WITHIN 154 CALENDAR DAYS,
PROVIDED THERE WERE NO DELAYS ON THE PART OF OTHER CONTRACTORS CAUSING
DELAY TO YOUR WORK. HOWEVER, DUE TO UNFORESEEN DELAYS ENCOUNTERED BY
OTHER CONTRACTORS BECAUSE OF UNKNOWN CONDITIONS AT THE SITE OF THE WORK
WHICH NECESSARILY POSTPONED YOUR MAJOR INSTALLATION WORK UNTIL JANUARY
10, 1957, THE PERIOD OF CONTRACT PERFORMANCE WAS EXTENDED FROM THE
ORIGINAL ESTIMATED 154 CALENDAR DAYS TO 11 MONTHS, OR FROM JULY 9, 1956,
TO MAY 15, 1957. ON THE BASIS THAT SUCH PROLONGATION OF CONTRACT
PERFORMANCE INCREASED YOUR COSTS BEYOND THOSE PROVIDED BY THE CONTRACT,
ADDITIONAL COMPENSATION IN THE AMOUNT OF $10,639.31 IS BELIEVED TO BE
DUE FROM THE GOVERNMENT. HOWEVER, IN THAT REGARD, YOU STATE IN YOUR
REQUEST FOR "CHANGE IN CONTRACT CONSIDERATION," DATED MAY 13, 1957, THAT
"BY FAR THE MAJORITY OF THESE DELAYS WERE NOT DUE TO THE ACTION OF
OURSELVES OR OF MINT PERSONNEL BUT WERE ENTIRELY BEYOND THE CONTROL OF
THIS CONTRACTOR OR OUR PRIME GOVERNMENT REPRESENTATIVE (SUPERINTENDENT
OF THE MINT).'
IT IS THE ESTABLISHED RULE THAT DELAY RESULTING FROM DELAY IN
PERFORMANCE OF ANOTHER CONTRACTOR DOES NOT CONSTITUTE A BREACH BY THE
GOVERNMENT, AND THAT THE CONTRACTOR'S RIGHT TO RELIEF IS LIMITED TO AN
EXTENSION OF TIME AND DOES NOT INCLUDE THE RIGHT TO RECOVER FROM THE
GOVERNMENT CONSEQUENTIAL DAMAGES FOR THE DELAY. CF. UNITED STATES V.
RICE, 317 U.S. 61; COOK CO. V. UNITED STATES, 270 U.S. 4; UNITED
STATES V. HOWARD P. FOLEY CO., 329 U.S. 64.
THE CONTRACT CONTAINED NO WARRANTY THAT THE GOVERNMENT WOULD ASSURE
THE TIMELY PERFORMANCE OF OTHER CONTRACTORS OR OBLIGATING ITSELF TO HAVE
THE FACILITIES READY FOR YOU AT ANY SPECIFIED TIME.
IN THE ABSENCE OF SUCH UNDERTAKINGS BY THE GOVERNMENT AND SINCE THER
IS NO SHOWING THAT THE GOVERNMENT WAS AT FAULT IN ANY WAY, THE UNITED
STATES IS NOT LIABLE FOR INCREASED COSTS, OR DAMAGES, SUSTAINED BY YOU
BECAUSE OF DELAYS OF OTHER CONTRACTORS. RAYMOND S. DAUM V. UNITED
STATES, 120 C.CLS. 192; OTIS WILLIAMS AND CO. V. UNITED STATES, 120
C.CLS. 249.
ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT DISALLOWING YOUR
CLAIM IS SUSTAINED.
B-135389, MAR. 10, 1958
TO THE ATTORNEY GENERAL:
THERE IS BEFORE OUR OFFICE FOR CONSIDERATION THE REPORTED
INDEBTEDNESS TO THE UNITED STATES OF JACK D. JONES, SAN JOAQUIN,
CALIFORNIA, IN THE AMOUNT OF $235.46, REPRESENTING LOSS SUSTAINED BY THE
UNITED STATES DUE TO THE DEBTOR'S DEFAULT UNDER A SPOT BID SALE
CONSISTING OF INVITATION NO. AVI-04-513-S-57-20 DATED MARCH 14, 1957,
OFFER DATED MARCH 18, 1957, AND ACCEPTANCE OF APRIL 15, 1957.
UNDER THE TERMS OF THE SUBJECT SALE, THE DEBTOR AGREED TO PURCHASE
ITEM NO. 94, DESCRIBED IN THE INVITATION AS ONE 2-WHEEL, 3-TON, 3/4 CU.
YD. TRAILER, FOR THE PRICE OF $309. BY NOTICE DATED APRIL 15, 1957, THE
DEBTOR WAS INFORMED THAT HIS OFFER HAD BEEN ACCEPTED, THAT THE PROPERTY
MUST BE REMOVED BY APRIL 29, 1957, AND THAT PAYMENT MUST BE MADE PRIOR
TO THE REMOVAL THEREOF, AS PROVIDED IN THE CONTRACT.
DUE TO DEBTOR'S FAILURE TO REMOVE THE PROPERTY AND MAKE PAYMENT
THEREFOR, THE PROPERTY WAS SUBSEQUENTLY READVERTISED AND SOLD TO ONE E.
BOTTIMORE, UNDER INVITATION NO. AVI-04-513-S-58-3 DATED AUGUST 19, 1957,
FOR THE PRICE OF $140. BY LETTER DATED AUGUST 21, 1957, THE DEBTOR WAS
ADVISED BY THE CONTRACTING OFFICER THAT UNDER THE TERMS OF THE CONTRACT
OF SALE HE WAS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $235.46,
REPRESENTING THE DIFFERENCE BETWEEN HIS BID AND THAT OF MR. BOTTIMORE,
OR $169, AND STORAGE CHARGES OF $66.46, FOR A TOTAL OF $235.46.
IN RESPONSE TO THE DEMAND FOR PAYMENT FROM THE ADMINISTRATIVE OFFICE,
THE DEBTOR TENDERED HIS CHECK IN THE AMOUNT OF $45, WHICH HE ESTIMATED
WOULD COVER ANY PAPER WORK CHARGES INCURRED BY THE UNITED STATES DUE TO
HIS DEFAULT. THE ADMINISTRATIVE OFFICE CONSTRUED THE TENDER AS AN OFFER
IN COMPROMISE AND FORWARDED THE MATTER TO OUR OFFICE FOR APPROPRIATE
ACTION.
UPON REQUEST, THE DEBTOR FURNISHED OUR OFFICE A FINANCIAL STATEMENT
IN SUPPORT OF HIS OFFER IN COMPROMISE. INASMUCH AS THE INFORMATION
FURNISHED THEREIN DISCLOSES THAT HE IS FINANCIALLY ABLE TO REPAY THE
ENTIRE INDEBTEDNESS, AND IN VIEW OF HIS CLEAR LIABILITY, OUR OFFICE
RECOMMENDS REJECTION OF THE OFFER.
THE DEBTOR'S OFFER IN COMPROMISE AND FINANCIAL STATEMENT ARE
TRANSMITTED HEREWITH, AND SHOULD BE RETURNED. THE REMITTANCE OF $45 IS
BEING RETAINED HERE PENDING YOUR DETERMINATION IN THE MATTER.
COPIES OF ANY ADDITIONAL DOCUMENTS OR PAPERS ON FILE HERE WILL BE
FURNISHED UPON RECEIPT OF SUCH REQUEST FROM YOUR DEPARTMENT.
B-94628, MAR. 10, 1958
TO SMITH'S TRANSFER AND STORAGE COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1957,
ACKNOWLEDGED APRIL 4, 1957, RELATIVE TO THE PACKING AND CRATING OF
OVERSEAS SHIPMENTS FOR THE DEPARTMENT OF STATE. IN THE LETTER YOU
QUESTION THE ACTION OF THE DEPARTMENT OF STATE IN RETURNING TO ITS
FORMER POLICY OF PERMITTING PERSONS BEING TRANSFERRED OVERSEAS TO MAKE
THEIR OWN ARRANGEMENTS WITH PACKING AND SHIPPING FIRMS FOR PACKING AND
SHIPPING SERVICES ALTHOUGH FOR THE FISCAL YEARS 1950, 1951 AND 1952, THE
DEPARTMENT ENTERED INTO CONTRACTS FOR SUCH SERVICES IN CERTAIN AREAS.
YOUR SUGGESTED THAT A CERTAIN PACKING AND SHIPPING FIRM WAS PERFORMING A
MAJORITY OF SUCH WORK IN THIS AREA ALTHOUGH ITS PRICES EXCEEDED THOSE OF
ITS COMPETITORS FOR SIMILAR WORK.
IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF STATE HAS RECENTLY
FURNISHED A REPORT IN THE MATTER. WITH THE REPORT THERE WAS TRANSMITTED
A COPY OF INSTRUCTION NO. CA-6281, DATED JANUARY 23, 1958, WHICH WAS
DIRECTED TO ALL AMERICAN DIPLOMATIC AND CONSULAR POSTS, SETTING OUT THE
DEPARTMENT'S POLICY WITH RESPECT TO OBTAINING COMPETITIVE BIDS FOR
PACKING, HAULING AND TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL
EFFECTS FOR SURFACE SHIPMENT FROM POINTS ABROAD.
IN THE REPORT IT IS STATED THAT SEVERAL PAST ATTEMPTS OF THE
DEPARTMENT OF STATE TO HANDLE THE MATTER OF PACKING AND CRATING ON A
CONTRACT BASIS HAVE NOT BEEN SUCCESSFUL. IT IS STATED FURTHER THAT
EXPORT PACKING IS ONLY ONE ELEMENT OF THE COST OF SHIPPING HOUSEHOLD
EFFECTS, THE PACKING COST BEING NO MORE THAN 30 PERCENT OF THE TOTAL
DOOR-TO-DOOR COSTS ON THE AVERAGE FOREIGN SERVICE SHIPMENT, BUT THAT THE
QUALITY OR METHOD OF PACKING AFFECTS THE GROSS WEIGHT AND/OR VOLUME OF
THE SHIPMENTS AND THEREFORE AFFECTS ALL RELATED COSTS SUCH AS FREIGHT,
CARTAGE, HAULING, HEAVY-LIFT CHARGES, PORT DUES, DELIVERY AND UNPACKING.
ACCORDINGLY, A LOW CONTRACT RATE FOR PACKING OFTEN PROVES TO BE
UNECONOMICAL BECAUSE OF THE RESULTING INCREASE IN RELATED COSTS.
THE REFERRED-TO INSTRUCTION NO. CA-6281 HAS BEEN ISSUED AS A RESULT
OF A COMPREHENSIVE SURVEY OF THE PROBLEM BY THE DEPARTMENT OF STATE.
THE EFFECT OF THE INSTRUCTION IS TO REQUIRE THAT EACH SHIPMENT BE
HANDLED SEPARATELY, THAT COMPETITIVE BIDS BE OBTAINED WHEREVER POSSIBLE
AND THAT CONTRACTS FOR PACKING BE AWARDED ON THE BASIS OF THE LOWEST
OVERALL COSTS CONSISTENT WITH EFFICIENT AND SATISFACTORY SERVICE. THE
INTENTION IS STATED, IN SUBSTANCE, TO BE TO RETAIN THE ADVANTAGES OF
COMPETITION WHERE POSSIBLE WHILE ALSO PROVIDING THE FLEXIBILITY NEEDED
TO MEET THE UNUSUAL CONDITIONS INHERENT IN THE PERFORMANCE OF THE TYPE
OF SERVICE INVOLVED. THE INSTRUCTION PROVIDES THAT AWARDS SHALL BE IN
WRITING.
IN THE DEPARTMENT'S REPORT, IT IS STATED THAT A PROCEDURE SIMILAR TO
THAT SET OUT IN INSTRUCTION NO. CA-6281 WILL BE ADOPTED ALSO FOR
SHIPMENTS ORIGINATING IN THE WASHINGTON AREA. IT IS HOPED THAT THE
REFERRED-TO PROCEDURE AND POLICY WILL PROVE SATISFACTORY TO EXPORT
PACKERS AS WELL AS TO THE GOVERNMENT.
B-123589, MAR. 7, 1958
TO THE SECRETARY OF THE TREASURY:
REFERENCE IS MADE TO A LETTER DATED NOVEMBER 27, 1957, FROM THE
ADMINISTRATIVE ASSISTANT SECRETARY ASKING OUR AGREEMENT TO A FURTHER
SUSPENSION OF EFFORTS BY YOUR DEPARTMENT TO COLLECT CERTAIN DUTIES DUE
UNDER SECTION 466, TARIFF ACT OF 1930, AS AMENDED, FROM THE MARITIME
ADMINISTRATION ON THE COST OF FOREIGN REPAIRS TO ITS VESSELS.
UNDER DATE OF FEBRUARY 13, 1958, THE MARITIME ADMINISTRATOR ADVISED
THAT A PROPOSAL TO RELIEVE THE MARITIME ADMINISTRATION FROM PAYMENT OF
DUTIES UNDER SECTION 466, WHICH WAS SUBMITTED TO THE CONGRESS BY THE
DEPARTMENT OF COMMERCE ON DECEMBER 27, 1956, HAS BEEN REFERRED TO THE
HOUSE COMMITTEE ON WAYS AND MEANS FOR CONSIDERATION AND THE COMMITTEE
STAFF PLANS TO SCHEDULE THE PROPOSAL FOR ATTENTION AS THE COMMITTEE
PROGRAM PERMITS.
IN VIEW THEREOF, WE HAVE NO OBJECTION TO A FURTHER SUSPENSION OF
COLLECTION ACTION ON THE DUTIES IN QUESTION UNTIL THE END OF THE 2D
SESSION OF THE 85TH CONGRESS.
B-134886, MAR. 7, 1958
TO MR. F. L. STIMPSON, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF
AGRICULTURE:
YOUR LETTER OF JANUARY 9, 1958 (TOGETHER WITH ENCLOSURES) REQUESTS A
DECISION AS TO THE PROPER PERSON TO RECEIVE THE PROCEEDS OF AN INDEMNITY
CLAIM UNDER THE FACTS AND CIRCUMSTANCES SET FORTH BELOW.
THE CLAIM INVOLVES SIX HEAD OF CATTLE DETERMINED TO BE BRUCELLOSIS
REACTORS WHICH WERE SLAUGHTERED UNDER THE PROGRAM CONDUCTED BY THE
ANIMAL DISEASE ERADICATION BRANCH OF THE AGRICULTURAL RESEARCH SERVICE.
IT APPEARS THAT UNDER THIS PROGRAM THE OWNER OF THE CATTLE MAY CLAIM
BETWEEN THE APPRAISED VALUE AND THE SALVAGE DIVIDED THREE WAYS. THE
UNITED STATES PAYS ONE-THIRD OF THE DIFFERENCE (UP TO A CERTAIN
MAXIMUM), THE STATE PAYS ONE-THIRD AND THE OWNER BEARS THE OTHER
ONE-THIRD. YOU SAY THAT IN MANY INSTANCES THERE IS A MORTGAGE AGAINST A
SPECIFIC HERD AND IN SUCH CASES UPON AN EXECUTED STATEMENT REGARDING
MORTGAGED CATTLE ATTACHED TO THE CLAIM A CHECK IS DRAWN IN FAVOR OF THE
MORTGAGOR, AND SENT IN CARE OF THE MORTGAGEE, IF SUCH AN AGREEMENT IS
MUTUALLY AGREED UPON. THE COPY OF THE CLAIM FOR INDEMNITY FOR THE
SLAUGHTERED CATTLE DISCLOSES THAT MR. A. J. BROWN CERTIFIED THAT HE
OWNED THE SLAUGHTERED CATTLE AND THAT THE CATTLE WERE MORTGAGED,
ALTHOUGH THE NAME "AMERICAN STATE BANK" IS TYPED OVER THE CAPTION "NAME
OF OWNER-CLAIMANT" APPEARING AT THE TOP OF THE CLAIM FORM.
THE AMERICAN STATE BANK APPARENTLY HELD A CHATTEL MORTGAGE ON ALL OR
MR. BROWN'S CATTLE AND EQUIPMENT, INCLUDING THE SIX REACTORS AND MR.
BROWN COULD NOT MEET HIS OBLIGATION UNDER THE MORTGAGE. IT APPEARS THAT
MR. BROWN (PRESUMABLY SUBSEQUENT TO THE DATE THE SIX CATTLE WERE
SLAUGHTERED) SIGNED AN AGREEMENT WITH THE BANK TO HOLD A SALE AND APPLY
THE PROCEEDS TO THE BALANCE OWING ON THE MORTGAGE. AFTER APPLYING THE
PROCEEDS OF THE SALE THERE WAS STILL A BALANCE OF $2,497.83 DUE ON THE
MORTGAGE. THE BANK ALLEGES THAT MR. BROWN AGREED TO CONFESS JUDGMENT IN
THIS AMOUNT BUT THEREAFTER REFUSED TO DO SO. THE BANK THEN COMMENCED
PROCEEDINGS AGAINST MR. BROWN FOR THE $2,497.83, BUT PRIOR TO THE CASE
COMING TO TRIAL, MR. BROWN FILED A PETITION IN BANKRUPTCY AND NAMED THE
BANK AS ONE OF HIS CREDITORS. SUBSEQUENTLY MR. BROWN'S DEBTS WERE
APPARENTLY DISCHARGED IN BANKRUPTCY AND THE BANKRUPTCY CASE CLOSED.
A FORM ENTITLED "STATEMENT REGARDING MORTGAGED CATTLE" EXECUTED
SEPTEMBER 30, 1957, DISCLOSES THAT THE MORGAGOR (BROWN) AND THE
MORTGAGES (THE BANK) AGREED THAT THE CHECK FOR THE FEDERAL INDEMNITY
SHOULD BE DRAWN IN FAVOR OF THE MORTGAGOR AND MAILED IN CARE OF THE
MORTGAGEE. THE CHECK, IN THE AMOUNT OF $189.97, WAS MADE PAYABLE TO---
"A. J. BROWN
C/O AMERICAN STATE BANK
(A. J. BROWN--- BANKRUPT)
WATERTOWN, MINNESOTA.'
YOU ADVISE THAT THE CHECK HAS BEEN RETURNED TO YOU BY THE BANK WITH A
STATEMENT TO THE EFFECT THAT MR. BROWN HAD REFUSED TO ENDORSE IT AND A
REQUEST THAT THE CHECK BE REISSUED PAYABLE DIRECTLY
TO THE BANK. YOU REQUEST A DECISION AS TO WHETHER YOU SHOULD CANCE
THE CHECK AND HAVE A NEW ONE PREPARED IN FAVOR OF THE BANK, OMITTING ANY
REFERENCE TO MR. A. J. BROWN AS PAYEE, OTHER THAN TO IDENTIFY THE
PAYMENT, OR WHETHER WE WILL AUTHORIZE THE PRESENT CHECK TO BE CASHED BY
THE BANK WITHOUT THE NECESSITY FOR ENDORSEMENT BY MR. BROWN.
ORDINARILY, A CERTIFYING OFFICER IS NOT ENTITLED TO AN ADVANCE
DECISION EXCEPT UPON PRESENTATION OF A VOUCHER BEFORE HIM FOR
CERTIFICATION INVOLVING THE QUESTION PRESENTED. 26 COMP. GEN. 797.
HOWEVER, SINCE IT APPEARS THAT A CLAIM HAS, IN EFFECT, BEEN SUBMITTED TO
YOU BY THE BANK, AND WITH THE UNDERSTANDING THAT PROPERLY PREPARED
VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISION, THE
REQUIREMENT FOR A VOUCHER IN THIS PARTICULAR INSTANCE WILL BE WAIVED.
THE RIGHT TO INDEMNITY IN THIS CASE ARISES SOLELY FROM THE
REGULATIONS (9 C.F.R. 51.2) OF THE SECRETARY OF AGRICULTURE ISSUED
PURSUANT TO LAW. THESE REGULATIONS PROVIDE, IN PERTINENT PART, AS
FOLLOWS (9 C.F.R. 51.8):
"SEC. 51.8 CLAIMS FOR INDEMNITY. CLAIMS FOR INDEMNITY FOR CATTLE
DESTROYED, BECAUSE OF BRUCELLOSIS, TUBERCULOSIS, OR PARATUBERCULOSIS,
SHALL BE PRESENTED ON TE FORM 23 ON WHICH THE OWNER OF THE CATTLE SHALL
CERTIFY THAT THE ANIMALS COVERED THEREBY, ARE, OR ARE NOT, SUBJECT TO
ANY MORTGAGE AS DEFINED IN THIS PART. IF THE OWNER STATES THERE IS A
MORTGAGE, TE FORM 25 SHALL BE SIGNED BY THE OWNER AND BY EACH PERSON
HOLDING A MORTGAGE ON THE ANIMALS, CONSENTING TO THE PAYMENT OF ANY
INDEMNITY ALLOWED TO THE PERSON SPECIFIED THEREON. * * *"
PURSUANT TO THIS REGULATION MR. BROWN (MORTGAGOR) AND THE BANK
(MORTGAGEE) MUTUALLY AGREED AND CONSENTED TO THE PAYMENT OF THE
INDEMNITY TO MR. BROWN (THE CHECK TO BE SENT IN CARE OF THE BANK).
HENCE, THERE IS NO AUTHORITY FOR YOU TO CANCEL THE CHECK AND ISSUE
ANOTHER ONE PAYABLE TO THE BANK OR FOR US TO AUTHORIZE THE PRESENT CHECK
TO BE CASHED BY THE BANK WITHOUT THE NECESSITY FOR ENDORSEMENT BY MR.
BROWN. THEREFORE, AND IN VIEW OF THE AGREEMENT BETWEEN MR. BROWN AND
THE BANK, IT APPEARS THAT THE CHECK SHOULD BE RETURNED TO THE BANK WITH
THE ADVICE THAT THE MATTER IS NOW ONE FOR SETTLEMENT BETWEEN THE
PARTIES.
B-135013, MAR. 7, 1958
TO MR. DOUGLAS C. ABEL:
REFERENCE IS MADE TO LETTER DATED JANUARY 7, 1958, FROM W. E.
COOMBS, ATTORNEY AT LAW, WRITTEN IN YOUR BEHALF, REQUESTING REVIEW OF
YOUR INDEBTEDNESS TO THE GOVERNMENT IN THE SUM OF $100.62. THE
INDEBTEDNESS REPRESENTS THE EXCESS MILEAGE PAYMENT YOU RECEIVED FOR LAND
TRAVEL FROM NEW YORK, NEW YORK, TO FAIRCHILD AIR FORCE BASE, WASHINGTON.
THE FACTS OF THIS CASE WERE STATED IN OUR LETTER TO YOU DATED DECEMBER
17, 1957, AND NEED NOT BE REPEATED HERE.
THE LETTER REQUESTS A CITATION TO THE STATUTE OR REGULATION WHICH
SUPPORTS THE GOVERNMENT'S CLAIM AND OUR INTERPRETATION OF THE LANGUAGE
APPEARING IN PARAGRAPH 6 OF YOUR ORDERS THAT "TPA WITHIN ZI. 5753500
C48-132 P 531.9-02, 03/07 S99-999.' THIS PROVISION IS INTERPRETED AS
FOLLOWS:
TRAVEL BY PRIVATELY OWNED CONVEYANCE IS AUTHORIZED WITHIN THE UNITE
STATES. THE NUMERALS INCLUDED IN THE PARAGRAPH REFER TO THE
APPROPRIATION AND FUNDS CHARGEABLE WITH THE EXPENSES OF THE TRAVEL.
APPLICABLE PROVISIONS OF LAW CONTAINED IN SECTION 303 (A) OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDE 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. PARAGRAPH
4159-1, JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THAT ACT, PROVIDES
AS FOLLOWS:
"1. GENERAL. EXCEPT AS SPECIFICALLY PROVIDED IN SUBPARS. 2 AND 3, A
MEMBER UNDER PERMANENT CHANGE OF STATION ORDERS TO, FROM, OR BETWEEN
POINTS OUTSIDE THE UNITED STATES, WHICH ORDERS DO NOT SPECIFY GROUP
TRAVEL OR DIRECT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION WILL BE
ENTITLED TO:
"3. THE ALLOWANCES PRESCRIBED IN PAR. 4150 OR 4154, AS APPLICABLE,
FOR THE OFFICIAL DISTANCE FROM THE APPROPRIATE AERIAL OR WATER PORT OF
DEBARKATION SERVING THE NEW STATION AND THE NEW PERMANENT STATION.'
WHILE THE FOREGOING REGULATIONS WERE NOT IN EFFECT DURING THE PERIOD
INVOLVED, THEY EMBODY THE WELL-ESTABLISHED PRINCIPLE FOLLOWED BY THE
ACCOUNTING OFFICERS OF THE GOVERNMENT FOR MANY YEARS THAT REIMBURSEMENT
OF EXPENSES OF TRAVEL IS BASED UPON TRAVEL OVER THE USUALLY TRAVELED
ROUTE AND, IF TRAVEL IS PERFORMED OVER ANOTHER ROUTE, REIMBURSEMENT OF
THE EXPENSES INCURRED IS LIMITED TO THAT WHICH WOULD HAVE BEEN PAYABLE
IF TRAVEL HAD BEEN PERFORMED VIA THE USUAL ROUTE OF TRAVEL. SEE 9 COMP.
GEN. 210. REGULATIONS IN EFFECT IN 1955 DID NOT AUTHORIZE
REIMBURSEMENT FOR TRAVEL BY ANY OTHER ROUTE. THE USUAL ROUTE OF TRAVEL
FROM JAPAN TO THE UNITED STATES IS VIA THE PACIFIC OCEAN AND IT APPEARS
THAT TRAVIS AIR FORCE BASE, CALIFORNIA, IS THE ONLY AERIAL PORT OF
DEBARKATION IN THE UNITED STATES SERVING TRAVEL FROM JAPAN BY GOVERNMENT
AIRCRAFT.
WHILE YOUR ORDERS AUTHORIZED YOU TO TRAVEL VIA VARIOUS COUNTRIES IN
ASIA AND EUROPE AND HENCE LISTED MCGUIRE AIR FORCE BASE, NEW JERSEY, AS
THE AERIAL PORT OF ENTRY IN THE UNITED STATES, THOSE ORDER PERMITTED
SUCH CIRCUITOUS TRAVEL FOR YOUR OWN CONVENIENCE AND PLEASURE AND COULD
NOT INCREASE YOUR RIGHTS TO TRAVEL AND TRANSPORTATION ALLOWANCES.
TRAVEL BY GOVERNMENT AIRCRAFT WAS CONTEMPLATED AND IT APPEARS CLEAR THAT
IF YOU HAD NOT REQUESTED PERMISSION TO TRAVEL TO SCOTLAND FOR LEAVE
PURPOSES, YOU WOULD HAVE BEEN FURNISHED TRANSPORTATION TO THE AERIAL
PORT OF DEBARKATION AT TRAVIS AIR FORCE BASE, AND YOU WERE ENTITLED TO
MILEAGE ONLY FOR THE DISTANCE FROM THAT PLACE TO YOUR NEW DUTY STATION,
FAIRCHILD AIR FORCE BASE. NO OTHER TRAVEL WAS REQUIRED TO ACCOMPLISH
THE PERMANENT CHANGE OF STATION DIRECTED IN YOUR ORDERS.
ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO INSIST THAT YOU REFUND
TO THE UNITED STATES THE SUM OF $100.62 ILLEGALLY PAID TO YOU AS MILEAGE
FOR DISTANCE IN EXCESS OF THE OFFICIAL DISTANCE BETWEEN TRAVIS AIR FORCE
BASE AND FAIRCHILD AIR FORCE BASE. YOU ARE AGAIN REQUESTED TO SEND A
CHECK OR MONEY ORDER FOR THAT AMOUNT PAYABLE TO THE "U.S. GENERAL
ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C.
B-135065, MAR. 7, 1958
TO MR. JAMES P. PEGRAM:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 8, 1958,
CONCERNING YOUR CLAIM FOR TRAVEL PAY FROM SAN FRANCISCO, CALIFORNIA, TO
CAMP GORDON, GEORGIA, INCIDENT TO TRAVEL PERFORMED UNDER PARAGRAPH 48,
SPECIAL ORDERS NO. 78, DATED APRIL 4, 1952, WHICH RELIEVED YOU FROM
ASSIGNMENT TO DETACHMENT NO. 2, 2349TH PERSONNEL PROCESSING GROUP (AIR
FORCE), YERBA BUENA ISLAND, SAN FRANCISCO, CALIFORNIA, AND REASSIGNED
YOU TO 3441ST ASU (3RD ARMY), CAMP GORDON, GEORGIA, FOR SEPARATION.
YOUR MILITARY PAY RECORD, COPIES OF WHICH ARE ON FILE HERE, SHOWS
THAT YOU WERE CREDITED WITH THE FOLLOWING ITEMS TOTALING $886.43 DURING
THE PERIOD FROM JANUARY 1, 1952, THROUGH APRIL 14, 1952, DATE OF
DISCHARGE:
UNPAID AMOUNT BROUGHT FORWARD FROM LAST ACCOUNT CLOSED DECEMBER 31,
1951, $43.88; PAY AT $102.90 PER MONTH AS PRIVATE FIRST CLASS WITH OVER
TWO YEARS' SERVICE FROM JANUARY 1, 1952, THROUGH APRIL 12, 1952,
$349.86; PAY AT $110.25 PER MONTH AS PRIVATE FIRST CLASS WITH OVER FOUR
YEARS' SERVICE FROM APRIL 13 THROUGH 14, 1952, $7.35; FOREIGN SERVICE
PAY AT $9 PER MONTH FROM JANUARY 1, 1952, THROUGH APRIL 2, 1952, $27.60;
CLOTHING MAINTENANCE ALLOWANCE (STANDARD) AT $6.60 PER MONTH FOR THE
PERIOD FROM APRIL 3, THROUGH 14, 1952, $2.64; ACCRUED LEAVE PAY AT
$110.25 PER MONTH FOR 60 DAYS, $220.50; ACCRUED BASIC ALLOWANCE FOR
SUBSISTENCE FOR 60 DAYS' LEAVE AT $0.70 PER DAY, $42.00; TRAVEL
ALLOWANCE FROM SAN FRANCISCO, CALIFORNIA, TO CAMP GORDON, GEORGIA, APRIL
5 THROUGH 9, 1952, 2,915 MILES AT $0.06 PER MILE, $174.90; AND TRAVEL
ALLOWANCE ON DISCHARGE
FOR TRAVEL FROM CAMP GORDON, GEORGIA, TO WALKERTOWN, NORTH CAROLINA,
295 MILES AT $0.06 PER MILE, $17.70. FROM THESE CREDITS THERE WAS
DEDUCTED A TOTAL OF $539.10, REPRESENTING ALLOTMENT, DEDUCTIONS FOR FOUR
MONTHS AT $75, OR $300; WITHHOLDING TAX, $42.60; SOLDIERS HOME
COLLECTIONS, $0.50; AND CASH PAYMENTS AMOUNTING TO $196 ITEMIZED AS
FOLLOWS: $43, $44, $43, $46 AND $20.
IT WILL BE SEEN FROM THE FOREGOING THAT THE $347.33 ($886.43 LESS
$539.10) DUE YOU FROM THE DEPARTMENT OF THE ARMY AT THE TIME OF YOUR
DISCHARGE ON APRIL 14, 1952, INCLUDED THE TRAVEL ALLOWANCE DUE FOR YOUR
TRAVEL FROM SAN FRANCISCO TO CAMP GORDON. HOWEVER, SINCE YOU WERE PAID
$170 FOR THAT TRAVEL BEFORE YOU LEFT SAN FRANCISCO, THAT AMOUNT WAS
DEDUCTED FROM THE $347.33 DUE YOU AND YOU WERE PAID THE BALANCE OF
$177.33 AT THE TIME OF YOUR DISCHARGE. SUCH PAYMENT INCLUDED
THE BALANCE OF $4.90 DUE ON THE TRAVEL ALLOWANCE OF $174.90 FOR YOUR
TRAVEL FROM SAN FRANCISCO TO CAMP GORDON. WHILE YOU STATE THAT THE
DISBURSING OFFICER AT CAMP GORDON TOLD YOU THAT THE $170 WAS DEDUCTED TO
REIMBURSE THE DEPARTMENT OF THE AIR FORCE FOR THE MONEY ADVANCED TO YOU
BEFORE YOUR LEFT SAN FRANCISCO AND THAT TRAVEL PAY FOR YOUR TRAVEL TO
CAMP GORDON WOULD BE PAID TO YOU IN ABOUT TWO WEEKS, IT IS READILY
APPARENT THAT SUCH ACTION COULD NOT PROPERLY HAVE BEEN TAKEN SINCE YOU
THEN WOULD HAVE BEEN PAID TWICE FOR SUCH TRAVEL. THE SETTLEMENT OF
DECEMBER 31, 1957, WAS CORRECT IN ADVISING YOU THAT NO TRAVEL ALLOWANCE
IS DUE FOR YOUR TRAVEL TO THAT PLACE AND THAT SETTLEMENT IS SUSTAINED.
UNDER THE CIRCUMSTANCES, YOUR ATTENTION AGAIN IS CALLED TO YOUR
INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $82.11 AS STATED IN
OUR LETTER OF JULY 3, 1957, TO YOU AND PRIOR CORRESPONDENCE. IN YOUR
LETTER OF JULY 5, 1957, YOU CONCEDE THAT THE AMOUNT IS CORRECTLY
COMPUTED. INASMUCH AS THERE IS NO OFFSETTING ITEM DUE YOU FROM THE
UNITED STATES, YOU AGAIN ARE REQUESTED TO MAKE PROMPT PAYMENT OF THE
FULL AMOUNT OF YOUR DEBT OR, IF THAT IS NOT POSSIBLE AT THIS TIME, YOU
SHOULD SUBMIT AN INITIAL PAYMENT WITHIN 30 DAYS FROM THE DATE OF THIS
LETTER TOGETHER WITH A DEFINITE PLAN FOR THE SETTLEMENT OF THE BALANCE
WITHIN A REASONABLE TIME.
PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S.
GENERAL ACCOUNTING OFFICE" AND FORWARDED TO U.S. GENERAL ACCOUNTING
OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., MAKING
REFERENCE TO CLAIM NO. Z-1818234, AND B-135065.
B-135118, MAR. 7, 1958
TO HARDINGE BROTHERS, INC. :
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1958, WITH
ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 6, 1958, WHICH
DISALLOWED YOUR CLAIM FOR $119.75 STATED TO BE DUE BY REASON OF AN ERROR
ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO.
30314-B57 DATED APRIL 8, 1957, WAS BASED.
THE DEPARTMENT OF THE ARMY, U.S. ORDNANCE CORPS, REDSTONE ARSENAL,
HUNTSVILLE, ALABAMA, REQUESTED YOUR PRICE FOR ONE (1) DIVIDING HEAD AND
TAILSTOCK WITH THE FOLLOWING COMPONENTS: ONE (1) UNIVERSAL JAW CHUCK,
AND FIVE (5) 5C COLLETS OF THE FOLLOWING SIZES, 1 INCH, 7/8 INCH, 3/4
INCH, 5/8 INCH, AND 1/2 INCH. SINCE THIS EQUIPMENT WAS TO BE USED ON A
TM MODEL HARDINGE MILLING MACHINE YOU WERE THE ONLY SOURCE SOLICITED.
YOU SUBMITTED A BID OFFERING TO FURNISH THE AFOREMENTIONED EQUIPMENT
FOR $792 AND YOUR BID WAS ACCEPTED BY THE PURCHASE ORDER. BY LETTER
DATED APRIL 16, 1957, WHICH WAS SUBSEQUENT TO THE AWARD, YOU ADVISED THE
CONTRACTING/ORDERING OFFICER THAT IN CHECKING THE ORDER AGAINST THE
QUOTATION IT WAS DISCOVERED THAT YOU HAD NOT NOTICED THE PRICE OF THE
DIVIDING HEAD WAS TO INCLUDE THE COST OF THE CHUCK AND COLLETS AND THE
QUOTED PRICE OF $792 COVERED ONLY THE COST OF THE DIVIDING HEAD.
ALTHOUGH YOU CONCEDE THAT YOU WERE IN ERROR IN NOT NOTING THAT THE CHUCK
AND COLLETS WERE TO BE INCLUDED IN THE COST OF THE DIVIDING HEAD YOU
REQUEST THAT YOU BE ALLOWED TO ADD $119.75 TO YOUR BID TO COVER THE COST
OF THE CHUCK AND COLLETS. THE RECORD SHOWS THAT THE EQUIPMENT WAS
SHIPPED COMPLETE ON MAY 29, 1957, AND THAT YOU HAVE BEEN PAID THE
CONTRACT PRICE OF $792 FOR THE EQUIPMENT FURNISHED. BY LETTER DATED
SEPTEMBER 4, 1957, YOU SUBMITTED AN INVOICE IN THE AMOUNT OF $119.75 TO
COVER THE COST OF THE CHUCK AND COLLETS, TOGETHER WITH A TYPICAL
QUOTATION COVERING A TM HARDINGE MILLING MACHINE WHICH SHOWS THE PRICE
OF THE DIVIDING HEAD AS WELL AS THE CHUCK AND COLLETS.
THE PRINCIPAL 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 OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID
TO INDICATE THAT THE PRICE OF $792 DID NOT INCLUDE THE COST OF THE CHUCK
AND COLLETS AND SINCE YOUR BID WAS THE ONLY ONE RECEIVED IT MAY NOT BE
PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE
OF ERROR IN YOUR BID. THE PRESENT RECORD APPEARS TO REQUIRE THE
CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING
BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH
CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE
RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN
STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN
YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR
SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V.
AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI
DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED
STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V.
UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.
THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR
THE PREPARATION OF YOUR BID WAS UPON YOU. SEE FRAZIER-DAVIS
CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE ERROR
WHICH YOU ALLEGE WAS MADE IN YOUR BID PRICE WAS DUE SOLELY TO YOUR OWN
OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH
ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND DOES
NOT ENTITLE YOU 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.
B-135331, MAR. 7, 1958
TO CAPITAL INSPECTION AND RECHARGE SERVICE, INC. :
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 21, 1958, ADVISING THAT
YOU HAVE BEEN AWARDED A CONTRACT WITH THE GENERAL SERVICES
ADMINISTRATION COVERING THE HYDROSTATIC TESTING AND RECHARGING OF CARBON
DIOXIDE FIRE EXTINGUISHERS FOR A PERIOD OF ONE YEAR FROM JANUARY 9,
1958.
IT IS STATED THAT SINCE YOU WERE AWARDED THE CONTRACT WITH THE
GENERAL SERVICES ADMINISTRATION THE GOVERNMENT PRINTING OFFICE REQUESTED
BIDS FOR THE SAME TYPE OF SERVICE; THAT YOU WERE OBLIGATED TO BID AT
THE SAME PRICE YOU HAVE IN YOUR GENERAL SERVICES ADMINISTRATION
CONTRACT; AND THAT SINCE THE INFORMATION AND PRICES IN THAT CONTRACT
ARE NOW PUBLIC, YOU WERE LEFT IN A POSITION OF BIDING AGAINST
COMPETITION WHO KNEW YOUR PRICES OR BIDDING AGAINST YOURSELF IN
SUBMITTING A BID TO THE GOVERNMENT PRINTING OFFICE. IT IS FURTHER
STATED YOU HAVE BEEN UNDERBID BY OTHERS ON THE GOVERNMENT PRINTING
OFFICE CONTRACT AND THAT UNDER THE CIRCUMSTANCES YOU WISH TO FILE A
COMPLAINT, IF THE GOVERNMENT PRINTING OFFICE CONTRACT IS AWARDED TO THE
LOW BIDDER, AS YOU BELIEVE IT WOULD BE AN ILLEGAL CONTRACT IN VIOLATION
OF SECTION 3709 REVISED STATUTES.
WE ARE NOT AWARE OF ANY REASON THAT YOU WERE OBLIGATED TO QUOTE THE
SAME PRICE TO THE GOVERNMENT PRINTING OFFICE AS IS INCLUDED IN YOUR
GENERAL SERVICES ADMINISTRATION CONTRACT. PERHAPS YOU HAVE REFERENCE TO
ARTICLE 13 OF THE GENERAL PROVISIONS FOR FEDERAL SUPPLY SCHEDULE
CONTRACTS (MARCH 1951), WHICH PROVIDES AS FOLLOWS:
"PRICE REDUCTIONS.--- IF AT ANY TIME AFTER THE DATE OF THE BID, THE
CONTRACTOR REDUCES THE COMPARABLE PRICE OF ANY ARTICLE OR SERVICE
COVERED BY THE CONTRACT TO CUSTOMERS OTHER THAN THE FEDERAL GOVERNMENT,
THE PRICE TO THE GOVERNMENT FOR SUCH ARTICLE OR SERVICE SHALL BE REDUCED
PROPORTIONATELY. SUCH REDUCTION SHALL BE EFFECTIVE AT THE SAME TIME AND
IN THE SAME MANNER AS THE REDUCTION IN THE PRICE TO CUSTOMERS OTHER THAN
THE GOVERNMENT. * * *"
EVEN IF THE ABOVE-QUOTED CLAUSE IS A PART OF YOUR CONTRACT WITH THE
GENERAL SERVICES ADMINISTRATION IT WOULD APPEAR THAT THERE WAS NOTHING
TO PREVENT YOU FROM QUOTING A LOWER PRICE TO THE GOVERNMENT PRINTING
OFFICE, WHICH IS A PART OF THE FEDERAL GOVERNMENT, WITHOUT REQUIRING A
CORRESPONDING PRICE REDUCTION IN YOUR GENERAL SERVICES ADMINISTRATION
CONTRACT.
HOWEVER THAT MAY BE, THE PROCUREMENT STATUTES GENERALLY REQUIRE IN
CONNECTION WITH THE GOVERNMENT'S PROCUREMENT OF PROPERTY AND SERVICES,
ADVERTISING, PUBLIC OPENING OF BIDS INCLUDING THE DISCLOSURE OF BID
PRICES, AND THE AWARD TO BE MADE TO THE LOWEST RESPONSIBLE BIDDER.
ALTHOUGH IT MAY BE THAT YOU WERE UNDERBID ON THE GOVERNMENT PRINTING
OFFICE CONTRACT DUE TO THE DISCLOSURE OF YOUR BID PRICE ON THE GENERAL
SERVICES ADMINISTRATION CONTRACT, MANY OTHER BIDDERS UNDOUBTEDLY FIND
THEMSELVES IN THE SAME POSITION. THE FACT THAT YOU WERE LOW ON THE
GENERAL SERVICES ADMINISTRATION CONTRACT DOES NOT GIVE YOU THE RIGHT TO
ALL FURTHER GOVERNMENT CONTRACTS FOR THE SAME SUPPLIES FOR ANY FUTURE
PERIOD WITHOUT BEING REQUIRED TO COMPETE THEREFOR.
THERE APPEARS TO BE NOTHING IN YOUR LETTER REQUIRING FURTHER ACTION
BY US.
B-129696, MAR. 6, 1958
TO MR. A. T. RADIGAN:
YOUR LETTER OF JANUARY 29, 1958, WITH ENCLOSURES, REQUESTS
RECONSIDERATION OF OUR DECISION DATED DECEMBER 13, 1956, B-129696, TO
MR. CONRAD N. SWINDELL, AUTHORIZED CERTIFYING OFFICER, WHEREIN WE HELD
THAT SINCE YOU HAD BEEN ALLOWED THE MAXIMUM PER DIEM PLUS THE DIFFERENCE
BETWEEN THE AMOUNTS YOU ACTUALLY PAID FOR HOTEL ACCOMMODATIONS AND THE
AMOUNTS YOU WOULD HAVE BEEN CHARGED FOR A MINIMUM RATE SINGLE ROOM AT
THE SAME HOTEL DURING THE SAME SEASON, YOU HAD BEEN PAID THE MAXIMUM
AMOUNT THAT MAY BE ALLOWED UNDER THE APPLICABLE LAW, STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS, AND OUR DECISION OF JUNE 29, 1943,
B-35306.
THE RECORD SHOWS THAT DURING THE PERIOD SEPTEMBER 1954 TO FEBRUARY
1956, WHILE TRAVELING ON OFFICIAL BUSINESS YOUR HOTEL ROOMS WERE USED
FOR OFFICIAL BUSINESS DURING THE DAY AND OCCUPANCY BY YOU AT NIGHT AS
SLEEPING QUARTERS. YOU WERE AUTHORIZED AND PAID THE MAXIMUM PER DIEM
DURING THE PERIOD AND BECAUSE OF THE HIGHER PRICED ACCOMMODATIONS MADE
NECESSARY BY THEIR USE FOR OFFICIAL BUSINESS YOU HAVE BEEN ALLOWED THE
AMOUNTS PAID FOR HOTEL ACCOMMODATIONS LESS SUCH AMOUNTS AS WOULD HAVE
BEEN CHARGED FOR "MINIMUM RATE" SINGLE ROOMS AT THE SAME HOTEL DURING
THE SAME SEASON.
YOUR CONTENTION IS THAT YOU ARE ENTITLED TO REIMBURSEMENT FROM THE
GOVERNMENT FOR ONE-HALF OF THE COST OF THE HOTEL ROOMS WHEN USED IN A
DUAL CAPACITY. IT IS STATED BY YOU THAT IN NOVEMBER 1952 WHILE
DISCUSSING TRAVELING EXPENSES WITH AN OFFICIAL OF YOUR OFFICE IT WAS
POINTED OUT BY YOU THAT IT WAS A WASTE OF FEDERAL FUNDS TO REQUIRE A
PERSON TRAVELING ON GOVERNMENT BUSINESS TO RENT OFFICE SPACE AT THE FULL
RENTAL CHARGED BY THE HOTELS AND AT THE SAME TIME RENT SEPARATE SLEEPING
QUARTERS FOR THE TRAVELER'S PERSONAL USE. YOU WERE OF THE OPINION,
WHICH YOU THOUGHT WAS CONCURRED IN BY THE ADMINISTRATIVE OFFICIALS WITH
WHOM THE MATTER WAS DISCUSSED, THAT IT WOULD BE EQUITABLE FOR THE
TRAVELER TO BE ALLOWED THE FULL PER DIEM AND PAID ONE-HALF OF THE COST
OF THE HOTEL ROOM WHEN USED BOTH AS OFFICE SPACE AND AS SLEEPING
QUARTERS.
REIMBURSEMENT OF TRAVELING EXPENSES TO CIVILIAN OFFICERS AND
EMPLOYEES OF THE GOVERNMENT WHILE TRAVELING ON OFFICIAL BUSINESS IS
CONTROLLED BY STATUTE AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROMULGATED BY THE PRESIDENT. THE STATUTE AND SECTIONS OF THE
REGULATIONS APPLICABLE TO YOUR SITUATION ARE STATED IN THE DECISION OF
DECEMBER 13, 1956, TO THE AUTHORIZED CERTIFYING OFFICER. IT IS EVIDENT
FROM THE RECORD THAT YOU HAVE BEEN FURNISHED A COPY OF THAT DECISION AND
IT DOES NOT APPEAR NECESSARY TO RESTATE THE MATTER IN DETAIL HEREIN.
YOUR LETTER OF JANUARY 29, 1958, WITH ENCLOSURES, CONTAINS NO FACTS
WHICH WERE NOT GIVEN MOST CAREFUL CONSIDERATION IN ARRIVING AT THE
CONCLUSION IN THE DECISION OF DECEMBER 13, 1956. YOU MERELY REITERATE
THE CONTENTIONS PREVIOUSLY CONSIDERED. IT SHOULD BE POINTED OUT THAT
WHENEVER PRACTICABLE AND ECONOMICAL, AS USUALLY WOULD BE THE CASE, THE
TRAVELER WHO FINDS IT NECESSARY TO USE A HOTEL ROOM FOR OFFICIAL
PURPOSES SHOULD ENGAGE THE SAME ROOM FOR OFFICIAL PURPOSES AND SLEEPING
QUARTERS. THIS CARRIES OUT THE INTENT OF SECTION 1.1 OF THE TRAVEL
REGULATIONS. ADDITIONALLY, THE INTENT OF
SECTIONS 6.1 AND 6.2 OF THE TRAVEL REGULATIONS SHOULD BE SATISFIED.
TO ALLOW THE TRAVELER THE FULL PER DIEM PLUS ONE-HALF OF THE COST OF THE
HOTEL ROOM ORDINARILY WOULD CONFLICT WITH SECTIONS 6.1 AND 6.2. UPON
THE PRESENT RECORD WE FIND NO PROPER BASIS FOR MODIFICATION OF THE
DECISION OF
B-130906, MAR. 6, 1958
TO MR. JOSEPH F. O-BRIEN:
ON JANUARY 20, 1958, YOU REQUESTED REVIEW OF OUR DECISION OF JULY 25,
1957, B-130906 (37 COMP. GEN. 55), WHICH CONCERNED YOUR CLAIM FOR
ADDITIONAL LUMP-SUM PAYMENT INCIDENT TO THE TERMINATION OF YOUR
EMPLOYMENT WITH THE DEPARTMENT OF JUSTICE ON JANUARY 8, 1954. YOU ALSO
NOW CLAIM PAYMENT FOR UNUSED SICK LEAVE FOR WHICH YOU SAY YOU HAD
APPLIED PRIOR TO SEPARATION. YOU COMMUNICATED WITH US FURTHER
CONCERNING THIS CLAIM ON FEBRUARY 7, 1958.
THE RECORD SHOWS THAT YOU WERE PAID IN FULL--- BUT CHARGED ANNUAL
LEAVE--- FOR SEPTEMBER 8, 9, 10, AND 11, 1953, AND OCTOBER 8, 9, 12, AND
13, 1953, THE DAYS FOR WHICH YOU NOW CLAIM AN ADDITIONAL LUMP-SUM
PAYMENT.
UNDER 5 U.S.C. 61B, LUMP-SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE IN
SEPARATIONS AFTER AUGUST 31, 1953, ARE LIMITED TO 30 DAYS OR THE
ACCUMULATION BROUGHT FORWARD AT THE BEGINNING OF THE YEAR, WHICHEVER IS
GREATER. YOU HAVE ALREADY RECEIVED A LUMP-SUM PAYMENT FOR YOUR LEAVE
CEILING OF 261 HOURS. THEREFORE, EVEN IF YOU COULD BE RECREDITED WITH
ANNUAL LEAVE FOR THE EIGHT DAYS CLAIMED, THE FOREGOING PROVISION OF LAW
WOULD PRECLUDE ANY FURTHER LUMP-SUM PAYMENT BEING MADE ON THAT ACCOUNT.
SEE, GENERALLY, 35 COMP. GEN. 520.
REGARDING YOUR CLAIM FOR UNUSED SICK LEAVE FOR WHICH YOU HAD APPLIED
PRIOR TO SEPARATION, YOU ARE INFORMED THAT THE AMOUNT OF SICK LEAVE TO
BE GRANTED UPON TERMINATION OF YOUR SERVICES WAS WITHIN THE DISCRETION
OF THE DEPARTMENT OF JUSTICE. THE RULE IS WELL ESTABLISHED THAT WHEN
THE DATE OF SEPARATION IS SET INTENTIONALLY AND THE SEPARATION BECOMES
AN ACCOMPLISHED FACT AN EMPLOYEE MAY NOT BE RESTORED TO A PAY STATUS FOR
ANY PERIOD SUBSEQUENT TO THE DATE OF SEPARATION FOR THE PURPOSE OF
GRANTING SICK LEAVE. THE RECORD SHOWS THAT YOU WERE SEPARATED EFFECTIVE
JANUARY 8, 1954, AND FAILS TO ESTABLISH THE EXISTENCE OF AN
ADMINISTRATIVE INTENTION TO SEPARATE YOU AT A LATER DATE.
THEREFORE, NO PROPER BASIS EXISTS FOR ALLOWANCE OF YOUR CLAIM FOR THE
ADDITIONAL SICK LEAVE PAYMENT.
B-134550, MAR. 6, 1958
TO STERLING CIDER CO., INC. :
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 30, 1958, REQUESTING
REVIEW OF SETTLEMENT DATED JANUARY 16, 1958, WHICH DISALLOWED YOUR CLAIM
FOR AN ADDITIONAL AMOUNT ALLEGED TO BE DUE ON ACCOUNT OF AN ERROR IN BID
IN CONNECTION WITH TYPE I CIDER VINEGAR FURNISHED THE DEPARTMENT OF THE
ARMY UNDER CONTRACT NO. DA-30-079-QM-17323.
ON MARCH 14, 1955, YOU WERE AWARDED THE SUBJECT CONTRACT. ON MARCH
31, 1955, THE CONTRACT EXECUTED BY YOUR FIRM WAS RETURNED TO THE NEW
YORK QUARTERMASTER MARKET CENTER. BY CHANGE ORDER DATED APRIL 11, 1955,
THE DELIVERY DESTINATION WAS CHANGED FROM BAINBRIDGE, COLORA, MARYLAND,
TO BAYONNE, NEW JERSEY, BUT THE CONTRACT PRICE WAS LEFT UNCHANGED. ON
APRIL 14, 1955, ORALLY AND THEN BY WRITTEN CONFIRMATION, YOU ALLEGED AN
ERROR IN YOUR BID FOR THE FIRST TIME. BY LETTER DATED AUGUST 24, 1955,
ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, BUT SUBMITTED THROUGH
ADMINISTRATIVE CHANNELS, YOU MADE A CLAIM IN THE AMOUNT OF $576.50
ALLEGED TO BE DUE BECAUSE OF THE ERROR IN BID. HOWEVER, THERE WAS AN
ADMINISTRATIVE DELAY IN FORWARDING YOUR CLAIM TO OUR OFFICE AND DURING
THAT PERIOD, BY LETTER DATED JULY 22, 1957, YOU CONSENTED TO REDUCE YOUR
CLAIM BY $73.70 SINCE IT WAS DETERMINED ADMINISTRATIVELY THAT YOU SAVED
THAT AMOUNT AS A RESULT OF THE CHANGE IN THE ORIGINAL DESTINATION. BY
THE SETTLEMENT OF JANUARY 16, 1958, YOUR CLAIM WAS DISALLOWED ON THE
BASIS THAT THE LOW BID YOU SUBMITTED WAS NOT SO FAR OUT OF LINE WITH THE
OTHER BIDS RECEIVED AS TO IMPUTE KNOWLEDGE OF ERROR TO THE CONTRACTING
OFFICER.
IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT YOU COULD HAVE
REFUSED TO PERFORM UNDER THE CONTRACT AFTER THE CHANGE ORDER WAS ISSUED,
PRESUMABLY ON THE BASIS THAT THIS WAS NOT THE SAME CONTRACT AS THE ONE
THAT WAS AWARDED TO YOU. HOWEVER, PARAGRAPH 3 OF THE GENERAL
PROVISIONS, INCORPORATED BY REFERENCE AS A PART OF THE CONTRACT WHICH
YOU EXECUTED, PROVIDES THAT THE CONTRACTING OFFICER MAY CHANGE THE PLACE
OF DELIVERY AT ANY TIME BY ISSUING A WRITTEN ORDER. THEREFORE, UNDER
THE TERMS OF THE CONTRACT YOU WERE REQUIRED TO PERFORM PURSUANT TO THE
TERMS OF THE CHANGE ORDER.
YOU CONTEND FURTHER THAT YOU WERE TOLD BY OFFICIALS IN THE
CONTRACTING OFFICE THAT AN ADJUSTMENT OF YOUR CLAIM WOULD BE MADE.
HOWEVER, IT IS A WELL-ESTABLISHED RULE THAT NO OFFICER OF THE GOVERNMENT
HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED
BY THE GOVERNMENT UNDER A CONTRACT. BAUSCH AND LOMB OPTICAL COMPANY V.
UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645;
UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D
141, CERTIORARI DENIED 280 U.S. 574; AND PACIFIC HARDWARE AND STEEL
COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.
YOU STATE THAT YOU HAVE INCURRED CONSIDERABLE LOSS BY YOUR
PERFORMANCE. IN FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES,
100 C.CLS. 120, 163, THE COURT SAID THAT IT IS THE RESPONSIBILITY OF
THE BIDDER ALONE TO ESTIMATE THE PRICE AT WHICH HE WILL PERFORM, AND THE
GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS FROM AN IMPROVIDENT
BID.
B-134662, MAR. 6, 1958
TO MATTHEWS MEDICAL BOOKS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1957, AS
SUPPLEMENTED BY YOUR LETTER OF DECEMBER 26, WHEREIN YOU ALLEGE THAT AN
ERROR WAS MADE IN YOUR BID FOR FURNISHING COPIES OF TABER'S CYCLOPEDIC
MEDICAL DICTIONARY WITHOUT THUMB INDEX, ON WHICH CONTRACT NO.
GS-OOS-16914 WAS AWARDED.
THE NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICE, WASHINGTON,
D.C., BY INVITATION ISSUED ON AUGUST 19, 1957, REQUESTED BIDS--- TO BE
OPENED SEPTEMBER 9, 1957--- FOR FURNISHING BOOKS, MAPS AND OTHER
PUBLICATIONS, FSC GROUP 76, AS REQUIRED BY GOVERNMENT AGENCIES DURING
THE PERIOD DECEMBER 1, 1957, THROUGH NOVEMBER 30, 1958. ITEM
7610-527-2838 COVERS THE FURNISHING OF COPIES OF TABER'S CYCLOPEDIC
MEDICAL DICTIONARY WITHOUT THUMB INDEX, PUBLISHED BY F. A. DAVIS
COMPANY. YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHERS, THE
MEDICAL DICTIONARY COVERED BY ITEM 7610-527-2838 AT A PRICE OF $3 EACH.
YOUR BID WAS ACCEPTED AS TO ITEM 7610-527-2838, TOGETHER WITH OTHER
ITEMS, AND ON NOVEMBER 22, 1957, A COPY OF YOUR ACCEPTED BID WAS
RETURNED TO YOU.
IN YOUR LETTER OF DECEMBER 12, 1957, YOU REQUESTED THAT THE CONTRACT
UNIT PRICE OF THE MEDICAL DICTIONARIES COVERED BY ITEM 7610-527-2838 BE
INCREASED FROM $3 EACH TO $4.40 EACH TO COVER A TYPOGRAPHICAL ERROR MADE
BY YOUR CLERK IN YOUR ORIGINAL BID PRICE AND TO COVER A PRICE INCREASE
MADE BY THE PUBLISHER OF THE DICTIONARY AFTER THE SUBMISSION OF YOUR BID
AND THE ACCEPTANCE THEREOF. YOU ALSO REQUESTED THAT, IN THE EVENT THE
UNIT PRICE OF ITEM 7610-527-2838 COULD NOT BE CORRECTED, SUCH ITEM OF
THE CONTRACT BE CANCELED. ALSO, YOU STATED THAT BEFORE THE PUBLISHER OF
THE DICTIONARY ANNOUNCED HIS PRICE INCREASE ON THE ITEM IN QUESTION, IT
WAS YOUR INTENTION TO QUOTE A PRICE OF $3.80 EACH FOR THE DICTIONARY
COVERED BY ITEM 7610-527-2838; THAT THE AMOUNT OF $3.80 IS THE NET
PRICE OBTAINED AFTER A DISCOUNT OF 20 PERCENT IS APPLIED TO THE LIST
PRICE OF $4.75; THAT SINCE THE PUBLISHER GRANTS YOU A DISCOUNT OF 33
1/3 PERCENT FROM THE LIST PRICE FOR THE DICTIONARIES, THE COST PER COPY
WOULD HAVE BEEN $3.17 EACH--- 17 CENTS ABOVE THE AMOUNT OF YOUR ORIGINAL
BID PRICE; AND THAT DURING THE COURSE OF CORRESPONDENCE WITH THE
FEDERAL SUPPLY SERVICE IN REGARD TO YOUR REQUEST FOR RELIEF UNDER THE
CONTRACT, THE PUBLISHER OF TABER'S CYCLOPEDIC MEDICAL DICTIONARY
ANNOUNCED THAT EFFECTIVE DECEMBER 2, 1957, THE LIST PRICE OF THAT
DICTIONARY WITHOUT A THUMB INDEX (ITEM 76-527-2838 OF THE INVITATION)
WOULD BE $5.50.
THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE AN ERROR
THEREIN. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDDERS ON
ITEM 7610-527-2838 QUOTED UNIT PRICES OF $3.80 (TWO BIDS) AND $4.27.
THE CONTRACTING OFFICER HAS REPORTED THAT THE DIFFERENCE BETWEEN YOUR
BID PRICE ON ITEM 7610-527-2838 AND THE OTHER BIDS THEREON DID NOT PLACE
HIM ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID BECAUSE THERE ALSO
APPEARED A SIMILAR DIFFERENCE BETWEEN YOUR BID PRICES ON OTHER ITEMS
AWARDED TO YOU AND THE PRICES QUOTED BY THE OTHER BIDDERS THEREON. THE
DIFFERENCE BETWEEN YOUR BID PRICE ON ITEM 7610-527-2838 AND THE PRICES
QUOTED BY THE OTHER BIDDERS ON THAT ITEM IS NOT SO GREAT AS TO WARRANT
THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID,
PARTICULARLY IN VIEW OF THE PRICES QUOTED BY YOU ON OTHER ITEMS. SO FAR
AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD
FAITH--- NO ERROR HAVING BEEN BROUGHT TO THE ATTENTION OF THE
CONTRACTING OFFICER UNTIL AFTER AWARD--- AND, THEREFORE, THE ACCEPTANCE
OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE
RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V.
PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING
CO. V. UNITED STATES, 259 U.S. 75.
MOREOVER, THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN
RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION
CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED, YOU MADE A
CLERICAL ERROR, SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR
OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.
SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE
IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT
ENTITLE YOU TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56
F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS.
249, 259. ALSO, SEE 20 COMP. GEN. 652; AND 26 ID. 415.
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE PRICE
SPECIFIED IN CONTRACT NO. GS-OOS-16914 FOR ITEM 7610-527-2838, OR FOR
CANCELING THAT ITEM OF THE CONTRACT.
YOU ALSO REQUESTED THAT THE CONTRACT PRICE OF ITEM 7610-527-2838 BE
INCREASED TO COVER THE INCREASE IN THE PUBLISHER'S LIST PRICE OF THAT
ITEM, WHICH OCCURRED AFTER THE SUBMISSION OF YOUR BID AND THE ACCEPTANCE
THEREOF. IT IS WELL SETTLED THAT WHERE A CONTRACT CONTAINS AN EXPRESS
STIPULATION AS TO THE AMOUNT OF COMPENSATION TO BE PAID AND NO PROVISION
IS MADE FOR ANY INCREASE IN THE EVENT PERFORMANCE BECOMES MORE EXPENSIVE
OR DIFFICULT, THE FACT THAT THE COST OF PERFORMANCE IS INCREASED DOES
NOT ENTITLE THE CONTRACTOR TO ADDITIONAL COMPENSATION. SEE COLUMBUS
RAILWAY AND POWER COMPANY V. COLUMBUS, 249 U.S. 399; AND BLAUNER
CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503. ALSO, SEE 19
COMP. GEN. 903; AND 15 ID. 861. INCREASED COST OF PERFORMANCE, WHETHER
FORESEEN OR UNFORESEEN, IS ONE OF THE HAZARDS OF THE CONTRACT WHICH
NEITHER EXCUSES PERFORMANCE NOR ENTITLES A CONTRACTOR TO ADDITIONAL
COMPENSATION. SEE SATTERLEE, ADMINISTRATRIX V. UNITED STATES, 30 C.CLS.
31; AND CHOUTEAU V. UNITED STATES, 95 C.CLS. 62, 68. IT WAS STATED IN
THE CASE OF FARMERS' FERTILIZER COMPANY V. LILLIE, 18 F.2D 197, 199,
THAT AN ABNORMAL RISE IN THE PRICE OF GOODS, OR IN THE TRANSPORTATION
CHARGES, DUE TO THE EXISTENCE OF WAR, OR UNUSUAL TRADE CONDITIONS, SUCH
THAT THE DEFENDANT COULD NOT PERFORM ITS CONTRACT WITHOUT GREATER
EXPENSE THAN ANTICIPATED, IS NOT SUCH AN IMPOSSIBILITY AS WILL EXCUSE
PERFORMANCE.
ACCORDINGLY, SINCE AN EXAMINATION OF THE CONTRACT FAILS TO DISCLOSE A
PROVISION FOR AN ADJUSTMENT IN PRICE IN THE EVENT OF AN INCREASE IN
COST, THERE IS NO RELIEF WHICH THIS OFFICE MAY GRANT YOU IN THE MATTER.
B-134760, MAR. 6, 1958
TO MR. RUDY E. JOHNSON:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1957, REQUESTING
REVIEW OF OUR SETTLEMENT DATED JULY 16, 1957, WHICH DISALLOWED YOUR
CLAIM FOR PER DIEM INCIDENT TO DUTY PERFORMED AS A MEMBER OF U.S. NAVAL
MOBILE CONSTRUCTION BATTALION ONE, AT PORT LYAUTEY, FRENCH MOROCCO,
DURING THE PERIOD FROM NOVEMBER 15, 1955, TO JULY 27, 1956.
IN YOUR REQUEST FOR REVIEW YOU STATE THAT MR. KENNETH JACOBS, A
MEMBER OF U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE,"RECEIVED HIS
CLAIM" SEVERAL MONTHS AGO FOR THIS PERIOD. NO RECORD HAS BEEN FOUND OF
A CLAIM HAVING BEEN FILED BY MR. JACOBS WITH THE GENERAL ACCOUNTING
OFFICE, AND WE HAVE NO KNOWLEDGE AS TO ANY FACTS IN HIS CASE.
YOUR CLAIM WAS DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT
TEMPORARY DUTY ORDERS WITHIN THE CONTEMPLATION OF THE JOINT TRAVEL
REGULATIONS. PURSUANT TO THE INFORMATION FURNISHED IN YOUR LETTER, IT
APPEARS THAT THE OFFICERS OF YOUR FORMER OUTFIT HAVE ADVISED YOU THAT
THEY CANNOT FURNISH COMPETENT ORIGINAL TEMPORARY DUTY ORDERS, AND THAT
THEY ARE NOW PROHIBITED FROM WRITING CONFIRMING ORDERS. WHERE COMPETENT
TEMPORARY DUTY ORDERS WERE NOT FURNISHED THE QUESTION WHETHER PROPER
CONFIRMATORY ORDERS MAY BE ISSUED IS A MATTER PRIMARILY FOR
ADMINISTRATIVE CONSIDERATION. THE ADVICE FURNISHED YOU IS UNDERSTOOD TO
CONSTITUTE A NEGATIVE ADMINISTRATIVE DETERMINATION IN YOUR CASE.
PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS AUTHORIZED THE PAYMENT
OF PER DIEM ONLY FOR PERIODS A MEMBER WAS IN A TRAVEL STATUS AWAY FROM
THE PERMANENT DUTY STATION. A PERMANENT DUTY STATION IS DEFINED IN
PARAGRAPH 1150-10 OF THE REGULATIONS AS THE RESERVATION, STATION OR
ESTABLISHED AREA TO WHICH THE MEMBER IS ATTACHED FOR DUTY, OTHER THAN
TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. THE TERM "TEMPORARY DUTY,"
OF WHICH TEMPORARY ADDITIONAL DUTY IS A FORM, IS DEFINED IN PARAGRAPH
3003-2 AS DUTY AT A LOCATION, OTHER THAN THE PERMANENT STATION, TO WHICH
A MEMBER IS ORDERED FOR TEMPORARY DUTY "UNDER ORDERS WHICH PROVIDE FOR
FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR RETURN TO THE OLD
PERMANENT DUTY STATION.'
AS DIRECTED BY THE COMMANDING OFFICER'S VERBAL INSTRUCTIONS,
DETACHMENT JIG, U.S. NAVAL MOBILE CONSTRUCTION BATTALION ONE, OF WHICH
YOU WERE A MEMBER, DEPARTED FROM DAVISVILLE, RHODE ISLAND, ON
NOVEMBER 15, 1955, AND ARRIVED AT PORT LYAUTEY, FRENCH MOROCCO, ON
NOVEMBER 30, 1955. IN THIS CONNECTION, IF IN FACT IT WAS CONTEMPLATED
THAT YOU SHOULD BE ASSIGNED TO PORT LYAUTEY FOR TEMPORARY DUTY, ORDERS
SHOULD HAVE BEEN ISSUED SO PROVIDING AND, ALSO, FOR YOUR FURTHER
ASSIGNMENT TO A NEW PERMANENT DUTY STATION OR FOR RETURN TO YOUR FORMER
PERMANENT DUTY STATION UPON COMPLETION OF THE PERIOD OF TEMPORARY DUTY.
IN THE ABSENCE OF SUCH COMPETENT TEMPORARY DUTY ORDERS, PORT LYAUTEY
BECAME YOUR PERMANENT DUTY STATION, AND YOU COULD NOT ENTER A TRAVEL
STATUS THEREAFTER UNLESS YOU LEFT THAT PLACE.
ON MAY 15, 1956, YOU WERE TRANSFERRED TO DETACHMENT LIMA AND ON JULY
27, 1956, TO DETACHMENT MIKE, U.S. NAVAL MOBILE CONSTRUCTION BATTALION
ONE, PURPORTEDLY FOR ADDITIONAL TEMPORARY DUTY AT PORT LYAUTEY.
HOWEVER, FOR THE REASON HEREINBEFORE STATED, THESE ORDERS DID NOT
CONSTITUTE COMPETENT TEMPORARY DUTY ORDERS, FOR PER DIEM PURPOSES,
WITHIN THE PURVIEW OF THE JOINT TRAVEL REGULATIONS. SEE, IN THIS
CONNECTION, PARAGRAPH 6450 OF THE JOINT TRAVEL REGULATIONS.
THE FACT THAT A CLAIM APPARENTLY SIMILAR TO YOURS MAY HAVE BEEN PAID
ADMINISTRATIVELY AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM
CONTRARY TO THE JOINT TRAVEL REGULATIONS. THE FACTS IN YOUR CASE DO NOT
ESTABLISH THAT YOU WERE ON TEMPORARY DUTY AT PORT LYAUTEY DURING THE
PERIOD IN QUESTION AND, THEREFORE, NO AUTHORITY EXISTS FOR THE PAYMENT
OF YOUR CLAIM.
B-134777, MAR. 6, 1958
TO THE LEHIGH VALLEY RAILROAD:
CONSIDERATION HAS BEEN GIVEN YOUR REQUEST FOR REVIEW OF THE
SETTLEMENT OF MARCH 4, 1957 (TK-628321), WHICH DISALLOWED YOUR CLAIM, ON
SUPPLEMENTAL BILL NO. 1796-A, FOR $750.70. THE CLAIM WAS FOR
ADDITIONAL TRANSPORTATION CHARGES ALLEGED TO BE DUE THE LEHIGH VALLEY
RAILROAD COMPANY FOR TRANSPORTING UNITED STATES MILITARY PERSONNEL FROM
CAMP KILMER, NEW JERSEY, TO FORT SAM HOUSTON AND EL PASO, TEXAS, ON
TRANSPORTATION REQUESTS WQ-21701331 AND WQ-21701333, DURING AUGUST 1945.
IN AUGUST 1945, THE WAR DEPARTMENT TENDERED TO THE LEHIGH VALLEY
RAILROAD COMPANY AND THE PULLMAN COMPANY SEVERAL TRANSPORTATION REQUESTS
WHICH CALLED FOR TRANSPORTATION AND ACCOMMODATIONS FOR A MOVEMENT OF
TROOPS IN THREE GROUPS FROM CAMP KILMER, NEW JERSEY, TO FORT SAM HOUSTON
AND EL PASO, TEXAS, AND TO SAN PEDRO, CALIFORNIA. THE TROOP MOVEMENT
WAS DESIGNATED "MAIN 30705," AND THE TRANSPORTATION REQUESTS ISSUED TO
THE LEHIGH VALLEY RAILROAD COMPANY CONTAINED REFERENCES TO THOSE ISSUED
TO THE PULLMAN COMPANY AND VICE VERSA.
ORIGINALLY, ON BILL NO. 1796, YOU WERE PAID FOR TRANSPORTING 339
PERSONS ON TRANSPORTATION REQUESTS WQ-21701331 AND 57 PERSONS ON
TRANSPORTATION REQUEST WQ-21701333. AN EXAMINATION OF PULLMAN COMPANY
TRANSPORTATION REQUESTS WQ-210701332 AND WQ-2170134--- ASSOCIATED IN OUR
AUDIT WITH THE CARRIER'S TRANSPORTATION REQUESTS--- SHOWED THAT THE
PULLMAN COMPANY WAS PAID TRANSPORTATION CHARGES FOR THE CARRIAGE OF ONLY
326 PERSONS AND 55 PERSONS, RESPECTIVELY. AS A RESULT, THE
TRANSPORTATION CHARGES PAID THE CARRIER ON TRANSPORTATION REQUESTS
WQ-21701331 AND WQ-21701333 WERE ADJUSTED TO THOSE APPLICABLE FOR THE
TRANSPORTATION OF THE NUMBER OF PERSONS FOR WHICH THE PULLMAN COMPANY
WAS PAID, AND THE TOTAL OVERPAYMENT OF $750.70--- REPRESENTING
TRANSPORTATION CHARGES FOR THE 15 EXCESS PERSONS--- WAS SUBSEQUENTLY
RECOVERED BY DEDUCTIONS FROM AMOUNTS OTHERWISE DUE THE LEHIGH VALLEY
RAILROAD COMPANY.
YOU THEN FILED SUPPLEMENTAL BILL 1796-A CLAIMING $750.70, THE AMOUNT
COLLECTED BY DEDUCTION FOR THE OVERPAYMENTS ON TRANSPORTATION REQUESTS
WQ-21701331 AND WQ-21701333. THE CLAIM WAS DISALLOWED BECAUSE, OTHER
THAN THE SHOWING OF A CONFLICT BETWEEN THE CARRIER BILLINGS AND THE
PULLMAN COMPANY BILLINGS ON THE SEVERAL TRANSPORTATION REQUESTS INVOLVED
IN "MAIN 30705," NO EVIDENCE WAS PRESENTED WHICH SHOWED THAT THE
ADJUSTED PAYMENT BASIS ON TRANSPORTATION REQUESTS WQ-21701331 AND
WQ-21701333 WAS INCORRECT. THEREAFTER, WITH YOUR LETTER OF APRIL 30,
1957, FILE 711-1796, YOU SUBMITTED PHOTOSTATIC COPIES OF PULLMAN COMPANY
FORMS 93,1267,"CERTIFICATE OF PULLMAN ACCOMMODATIONS FURNISHED," WHICH
SHOW THE ACCOMMODATIONS FURNISHED ON THE PULLMAN TRANSPORTATION REQUESTS
ISSUED FOR "MAIN 30705.' HOWEVER, THESE FORMS SHOW THAT 326 PERSONS (NOT
339 PERSONS) AND 55 PERSONS (NOT 57 PERSONS), RESPECTIVELY, WERE
FURNISHED ACCOMMODATIONS ON PULLMAN TRANSPORTATION REQUESTS WQ-21701332
AND WQ-21701334. SINCE THE ADJUSTMENT OF THE RAIL TRANSPORTATION
CHARGES PAID TO YOU ON RELATED TRANSPORTATION REQUESTS WQ-21701331 AND
WQ-21701333 ALREADY HAD BEEN MADE ON THAT BASIS, OUR TRANSPORTATION
DIVISION INFORMED YOU THAT THE DISALLOWANCE OF YOUR CLAIM WAS PROPER.
IN YOUR REQUEST FOR REVIEW, YOU CONTEND, IN EFFECT, THAT THE PULLMAN
COMPANY, IN SOME MANNER, HAS INCLUDED THE 15 EXCESS PERSONS IN A GROUP
OF 153 PERSONS TRANSPORTED TO SAN PEDRO, CALIFORNIA, UNDER PULLMAN
COMPANY TRANSPORTATION REQUEST WQ-21701321 (CROSS REFERENCED TO THE
CARRIER'S TRANSPORTATION REQUEST WQ-21701320). THESE TRANSPORTATION
REQUESTS WERE AMONG THOSE ISSUED FOR ,MAIN 30705.'
YOU REPORT THAT THE INTERESTED RAIL LINES ALL AGREE THAT 339 PERSONS
WERE CARRIED ON THE CARRIER'S TRANSPORTATION REQUEST WQ-21701331 AND 57
PERSONS ON THE CARRIER'S TRANSPORTATION REQUEST WQ-21701333, BUT THAT
ONLY 134 PERSONS WERE TRANSPORTED ON THE CARRIER'S TRANSPORTATION
REQUEST WQ-21701320. ON THE OTHER HAND, THE PRESENT RECORD SHOWS THAT
THE PULLMAN COMPANY BILLED AND RECEIVED PAYMENT FOR TRANSPORTING 326
PERSONS IN TRANSPORTATION REQUEST WQ-21701332, 55 PERSONS ON
TRANSPORTATION REQUEST WQ-21701334, AND 153 PERSONS ON TRANSPORTATION
REQUEST WQ-21701321. THE LATTER FIGURES ARE SUPPORTED BY COPIES OF THE
PULLMAN COMPANY'S "CERTIFICATE OF PULLMAN ACCOMMODATIONS FURNISHED,"
WHICH EVIDENCE WAS FURNISHED BY YOU.
OTHER THAN YOUR ASSERTIONS OF BILLING ERROR BY THE PULLMAN COMPANY,
YOU HAVE NOT PRESENTED ANY EVIDENCE WHICH SUSTAINS YOUR CONTENTIONS THAT
15 MORE PERSONS ACTUALLY TRAVELED ON LEHIGH VALLEY RAILROAD COMPANY'S
TRANSPORTATION REQUEST WQ-21701321. THE BURDEN IS ON THE CLAIMANT TO
ESTABLISH CLEARLY THE LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S
RIGHT TO PAYMENT (23 COMP. GEN. 907, 908; 18 ID. 980; 4 C.F.R. 54.5
(22 FR 10905) ( AND, ON THE BASIS OF THE EVIDENCE NOW WITH THE RECORD,
YOU HAVE NOT MET THIS BURDEN. ANY ADDITIONAL EVIDENCE YOU HAVE WHICH
SUPPORTS YOUR CONTENTIONS WILL BE GIVEN PROMPT CONSIDERATION UPON ITS
RECEIPT HERE.
FOR THE REASONS GIVEN ABOVE, THE DISALLOWANCE OF YOUR CLAIM WAS
PROPER AND IT IS, THEREFORE,
B-134785, MAR. 6, 1958
TO MR. STANLEY Z. HARRIS:
REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 11, 1957, CONCERNING
YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $176, ARISING
OUT OF THE NONDEDUCTION FROM YOUR PAY, AS AN ENLISTED MAN, ARMY OF THE
UNITED STATES, OF YOUR CONTRIBUTION TOWARD FAMILY ALLOWANCE PAID TO YOUR
MOTHER, MRS. ELIZABETH HARRIS, FOR THE PERIOD OCTOBER 1, 1945, THROUGH
MAY 31, 1946, AT $22 A MONTH.
IT APPEARS THAT WHILE YOU WERE SERVING AS AN ENLISTED MEMBER OF THE
ARMY OF THE UNITED STATES YOU APPLIED FOR FAMILY ALLOWANCES IN BEHALF OF
YOUR MOTHER ON FEBRUARY 8, 1944, BUT THE APPLICATION WAS REJECTED ON THE
BASIS THAT DEPENDENCY WAS NOT ESTABLISHED. YOU AGAIN APPLIED FOR FAMILY
ALLOWANCES IN BEHALF OF YOUR MOTHER ON OCTOBER 19, 1945. THIS
APPLICATION WAS APPROVED, AND PAYMENT OF THE ALLOWANCE IN THE AMOUNT OF
$37 A MONTH WAS AUTHORIZED AND PAID TO YOUR MOTHER EFFECTIVE OCTOBER 1,
1945. PAYMENTS WERE MADE MONTHLY THROUGH MAY 1946, WHEN DISCONTINUED
UPON YOUR SEPARATION FROM THE SERVICE. AN EXAMINATION OF YOUR PAY
ACCOUNT FOR THE PERIOD OF PAYMENTS OF THE ALLOWANCES SHOWS THAT NO
DEDUCTIONS WERE MADE FROM YOUR PAY AS YOUR CONTRIBUTION TO THE
ALLOWANCE, ALTHOUGH CONTRIBUTIONS BY MEANS OF A PAYROLL DEDUCTION WERE
REQUIRED BY SECTION 106 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF
1942, AS AMENDED, 37 U.S.C. (1946 EDITION) 206.
YOU DO NOT APPEAR TO QUESTION THE FACT THAT YOU APPLIED FOR THE
ALLOWANCE OR THAT YOUR MOTHER RECEIVED THE ALLOWANCE. YOU CONTEND THAT
AT THE TIME THE ALLOWANCE WAS INITIATED YOU WERE OVERSEAS AND THAT YOUR
PAY WAS "SUBSTANTIALLY LESS AFTER THE ALLOTMENT STARTED," AND YOU
QUESTION THE ACCURACY OF THE STATEMENT THAT NO DEDUCTION WAS MADE FROM
YOUR PAY AS YOUR STATUTORY CONTRIBUTION TOWARD THE FAMILY ALLOWANCE.
IN THE EXAMINATION OF YOUR PAY ACCOUNT AND YOUR ALLOTMENT RECORDS IT
HAS BEEN NOTED THAT IN FEBRUARY 1945 YOU INITIATED A CLASS E (VOLUNTARY)
ALLOTMENT IN THE AMOUNT OF $30 A MONTH, WHICH WAS DISCONTINUED APRIL 30,
1946. THIS ALLOTMENT WAS PAID AND PROPER DEDUCTIONS WERE MADE FROM YOUR
PAY. IT IS POSSIBLE THAT THESE CLASS E ALLOTMENT DEDUCTIONS HAVE BEEN
CONFUSED BY YOU WITH THE CLASS F (FAMILY ALLOWANCE) DEDUCTIONS, WHICH
SHOULD HAVE BEEN MADE IN ADDITION TO THE CLASS E DEDUCTIONS FOR THE
PERIOD BEGINNING OCTOBER 1, 1945, UNTIL YOUR DISCHARGE.
YOU FURTHER CONTEND THAT IT IS UNFAIR AND UNJUST FOR THE GOVERNMENT
TO ATTEMPT COLLECTION SO MANY YEARS AFTER THE EVENT, AND THAT THE DEBT
AROSE THROUGH NO FAULT OF YOUR OWN.
WHILE WE CAN APPRECIATE YOUR POSITION, IT MUST BE POINTED OUT THAT
YOU APPLIED FOR THE ALLOWANCE, IT WAS AUTHORIZED AND PAID TO YOUR
DEPENDENT MOTHER, BUT THAT YOUR STATUTORY CONTRIBUTION TO THE ALLOWANCE
WAS NOT DEDUCTED FROM YOUR PAY, AND IRRESPECTIVE OF THE PLACING OF
FAULT, YOU ARE INDEBTED TO THE GOVERNMENT FOR THE $22 MONTHLY
CONTRIBUTION FOR 8 MONTHS. IN REEXAMINING THE RECORD, IT HAS BEEN NOTED
THAT DEMAND WAS MADE UPON YOU FOR PAYMENT OF THE INDEBTEDNESS AS EARLY
AS AUGUST 12, 1948, BY THE DEPARTMENT OF THE ARMY. THE MATTER WAS
THEREAFTER REFERRED TO OUR OFFICE FOR APPROPRIATE ACTION. IT APPEARS
THAT EACH TIME DEMAND IS MADE UPON YOU, YOU PROTEST THAT DEDUCTIONS WERE
MADE; EACH TIME A NEW EXAMINATION OF THE RECORD IS MADE IN ORDER TO
GIVE YOU EVERY BENEFIT OF A POSSIBLE ERROR, HOWEVER, THE DEBT IS
VERIFIED.
YOUR PROTEST THAT IT IS UNFAIR AND UNJUST TO REQUIRE YOU TO PAY THE
INDEBTEDNESS IS WITHOUT MERIT. AS INDICATED ABOVE, YOU REQUESTED THE
ALLOWANCE AND THE GOVERNMENT PAID YOUR MOTHER $37 A MONTH FOR 8 MONTHS,
OF WHICH ONLY $22 A MONTH WAS REQUIRED TO BE CONTRIBUTED BY DEDUCTION
FROM YOUR PAY, HENCE, YOU ARE INDEBTED IN THE AMOUNT OF $176.
ACCORDINGLY, UPON REVIEW, THE INDEBTEDNESS HAS BEEN VERIFIED, AND
ARRANGEMENTS SHOULD BE MADE TO PAY IT WITHOUT FURTHER DELAY.
B-134808, MAR. 6, 1958
TO MR. GEORGE W. HAYMAN:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1957, IN
EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 29, 1957, WHICH
DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES.
ACCORDING TO THE RECORD, YOU ENLISTED ON APRIL 12, 1951, FOR THREE
YEARS; ABSENTED YOURSELF FROM DUTY ON JULY 20, 1953; AND WERE DECLARED
A DESERTER ON SEPTEMBER 9, 1953, AS OF JULY 20, 1953. AFTER
APPREHENSION BY CIVIL AUTHORITIES ON FEBRUARY 24, 1955, YOU WERE
RETURNED TO MILITARY CONTROL ON FEBRUARY 28, 1955. ON THE DATE WHEN
YOUR ENLISTMENT CONTRACT TERMINATED (APRIL 11, 1954), YOU WERE IN A
DESERTION STATUS, AND THERE IS NO INDICATION THAT YOUR ABSENCE WAS
EXCUSED AS UNAVOIDABLE.
SECTION 4B OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION
1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33B, PROVIDES IN
PERTINENT PART AS FOLLOWS:
"WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE
ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE,
UNLESS SUCH ABSENCE IS EXCUSED AS AVOIDABLE.'
PURSUANT TO THE STATUTE, THEREFORE, YOU ARE NOT ENTITLED TO PAY AND
ALLOWANCES WHILE IN A DESERTION STATUS FOR THE PERIOD JULY 20, 1953, TO
FEBRUARY 28, 1955.
SUBSEQUENT TO YOUR RETURN TO MILITARY CONTROL ON FEBRUARY 28, 1955,
YOU WERE ADMITTED TO A NAVAL HOSPITAL FOR MEDICAL TREATMENT AND THEN
TRANSFERRED TO A VETERANS HOSPITAL AT LITTLE ROCK, ARKANSAS. DURING THE
COURSE OF YOUR TREATMENT, A PHYSICAL EVALUATION BOARD CONVENED ON TWO
OCCASIONS TO CONSIDER YOUR CASE. ON THE SECOND OCCASION, NOVEMBER 15,
1956, THE BOARD MADE RECOMMENDED FINDINGS, A COPY OF WHICH WAS FORWARDED
BY YOU IN THE LETTER OF DECEMBER 16, 1957, TO THE EFFECT THAT YOUR
DISABILITY WAS AN INCIDENT OF YOUR SERVICE. THE PHYSICAL REVIEW COUNCIL
PROPOSED SUBSTITUTE FINDINGS, HOWEVER, AND TRANSMITTED THIS INFORMATION
TO YOU, OR YOUR REPRESENTATIVE, BY A SPEEDLETTER DATED DECEMBER 27,
1956. ON FEBRUARY 14, 1957, THE PHYSICAL DISABILITY APPEAL BOARD
(MARINE CORPS) SUBMITTED TO THE SECRETARY OF NAVY AN ADVISORY OPINION
RECOMMENDING THAT THE PROPOSED SUBSTITUTE FINDINGS OF THE PHYSICAL
REVIEW COUNCIL BE APPROVED. WE HAVE BEEN INFORMED THAT THE SUBSTITUTE
FINDINGS DETERMINED THAT YOUR DISABILITY WAS NOT AN INCIDENT OF SERVICE.
YOU WERE DISCHARGED ON APRIL 12, 1957, BY REASON OF PHYSICAL DISABILITY
BUT WITHOUT DISABILITY BENEFITS.
SINCE YOUR TERM OF ENLISTMENT EXPIRED PRIOR TO THE MEDICAL CARE AND
HOSPITALIZATION FURNISHED YOU, THERE ARE FOR APPLICATION THE TERMS OF OF
10 U.S.C. 5537 WHICH PROVIDE:
"AN ENLISTED MEMBER OF THE NAVAL SERVICE ON ACTIVE DUTY WHOSE TERM OF
ENLISTMENT EXPIRES WHILE HE IS SUFFERING FROM DISEASE OR INJURY INCIDENT
TO SERVICE AND NOT DUE TO HIS MISCONDUCT, AND WHO NEEDS MEDICAL CARE OR
HOSPITALIZATION, MAY BE RETAINED ON ACTIVE DUTY, WITH HIS CONSENT, UNTIL
HE RECOVERS TO THE EXTENT THAT HE IS ABLE TO MEET THE PHYSICAL
REQUIREMENTS FOR REENLISTMENT OR UNTIL IT IS DETERMINED THAT RECOVERY TO
THAT EXTENT IS IMPOSSIBLE.
WHILE THE BENEFITS PROVIDED BY THIS STATUTE ARE BROAD ENOUGH TO
INCLUDE CASES IN WHICH THE CONDITION CALLING FOR MEDICAL OR HOSPITAL
CARE IS DISCOVERED AFTER THE EXPIRATION OF THE ENLISTMENT BUT PRIOR TO
DISCHARGE, 35 COMP. GEN. 366, 368, THEY ARE NOT AVAILABLE, UNDER THE
PLAIN TERMS OF THE STATUTE QUOTED ABOVE, TO INDIVIDUALS WHOSE DISEASE OR
INJURY WAS NOT INCIDENT TO SERVICE. IN VIEW OF THE DECISION OF THE
SECRETARY OF THE NAVY THAT YOUR DISABILITY WAS NOT AN INCIDENT OF
SERVICE, YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD MARCH
1, 1955, TO APRIL 12, 1957, WHEN YOU WERE UNDERGOING MEDICAL TREATMENT
AND WERE RETAINED IN THE SERVICE AFTER THE EXPIRATION OF YOUR
ENLISTMENT.
B-134934, MAR. 6, 1958
TO MR. SERVILLANO P. LAZARTE:
YOUR LETTER OF DECEMBER 26, 1957, IN EFFECT REQUESTS REVIEW OF
SETTLEMENT DATED NOVEMBER 15, 1957, WHICH DISALLOWED YOUR CLAIM FOR
ADDITIONAL COMPENSATION FOR THE PERIOD MAY 13, 1949, TO MARCH 28, 1956,
AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, MANILA, PHILIPPINES.
THE RECORD SHOWS THAT YOU ARE A NATURALIZED CITIZEN AND HAVE BEEN
EMPLOYED AS A CIVILIAN GUARD SINCE MAY 13, 1949. ON MARCH 28, 1956,
YOUR RATE OF COMPENSATION WAS CHANGED FROM LOCAL WAGE BOARD PHILIPPINE
RATE TO UNITED STATES RATE BECAUSE OF YOUR AMERICAN CITIZENSHIP. THIS,
YOU INDICATE, WAS ACQUIRED BY REASON OF YOUR SERVICE IN THE UNITED
STATES ARMY AND YOU MAINTAIN THAT AS AN AMERICAN CITIZEN YOU ARE
ENTITLED TO AN ADJUSTMENT OF YOUR COMPENSATION AT THE UNITED STATES
RATE RETROACTIVE TO THE BEGINNING DATE OF YOUR EMPLOYMENT, MAY 13,
1949. ON NOVEMBER 10, 1955, YOU ADVISED THE THIRTEENTH AIR FORCE
(PACAF) COMMAND THAT "I DESIRE OF MY OWN FREE WILL TO REMAIN IN MY
PRESENT POSITION AT MY PRESENT RATE OF PAY UNTIL U.S. SPACES ARE
AVAILABLE.'
IT IS APPARENT THAT YOU ACCEPTED EMPLOYMENT AT THE NATIVE RATE OF
COMPENSATION AND SPECIFICALLY INDICATED A WILLINGNESS TO REMAIN IN YOUR
NATIVE RATE POSITION UNTIL "U.S. SPACES ARE AVAILABLE" FOR CITIZENS OF
THE UNITED STATES. THE RECORD DOES NOT SHOW THAT THERE WERE ANY
AVAILABLE POSITIONS AT THE CLASSIFIED RATE UNTIL MARCH 28, 1956, WHICH
IS THE EFFECTIVE DATE UPON WHICH YOUR RATE OF COMPENSATION WAS CHANGED.
IN THE ABSENCE OF U.S. SPACES YOU COULD HAVE BEEN SEPARATED, BUT
APPARENTLY YOU WERE RETAINED AT THE LOCAL RATE AT YOUR REQUEST.
THERE IS NO BASIS OF RECORD FOR APPROVAL OF YOUR CLAIM FOR ADDITIONAL
COMPENSATION BASED SOLELY UPON THE FACT OF CITIZENSHIP. AS YOU WERE
ADVISED IN SETTLEMENT DATED NOVEMBER 15, 1957, THE MERE FACT THAT YOU
QUALIFIED FOR A POSITION TO WHICH THE UNITED STATES RATE APPLIED DOES
NOT ENTITLE YOU TO THE COMPENSATION FOR THAT POSITION PRIOR TO THE DATE
APPROPRIATE ACTION IS TAKEN BY THE PROPER ADMINISTRATIVE OFFICER.
THEREFORE, THE SETTLEMENT DATED NOVEMBER 15, 1957, IS SUSTAINED.
B-134957, MAR. 6, 1958
TO MR. RUSSELL W. DEAN, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF
INTERIOR:
YOUR LETTER OF DECEMBER 17, 1957, WITH ENCLOSURES, REQUESTS OUR
DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH
TRANSMITTED IN FAVOR OF CARMAN W. DUNN FOR $258.70, REPRESENTING $5 PER
DIEM, $17.50 MILEAGE, AND $236.20 AS COMMUTED REIMBURSEMENT FOR
TRANSPORTATION OF HIS HOUSEHOLD EFFECTS BETWEEN GRAND JUNCTION,
COLORADO, AND DURANGO, COLORADO, UPON AN OFFICIAL CHANGE OF STATION.
THE RECORD SHOWS THAT THE EMPLOYEE INCIDENT TO HIS CHANGE OF STATION
UNDER ORDERS DATED SEPTEMBER 9, 1957, MOVED HIS HOUSEHOLD EFFECTS BY
RENTED TRUCK ON SEPTEMBER 30, 1957, LEAVING GRAND JUNCTION AT 5:00 P.M.,
WHICH WAS TOO LATE IN THE DAY TO OBTAIN THE WEIGHT OF HIS LOADED TRUCK.
UPON ARRIVING AT DURANGO, THE EMPLOYEE HAD THE LOADED TRUCK WEIGHED AND
UPON RETURNING TO GRAND JUNCTION HAD THE EMPTY TRUCK WEIGHED BEFORE
RETURNING THE TRUCK TO THE LESSOR. IT IS FURTHER REVEALED THAT THE
EMPLOYEE CHOSE, UPON HIS OWN VOLITION AND NOT BY DIRECTION OR CONSENT OF
THE GOVERNMENT, TO MOVE HIS GOODS SO THAT IT WAS IMPOSSIBLE TO OBTAIN
WEIGHT OF THE LOADED TRUCK PRIOR TO THE EMPLOYEE'S DEPARTURE FROM GRAND
JUNCTION.
YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM THE FACT THAT THE
WEIGHT OF THE GOODS WHICH WERE TRANSPORTED IN A RENTED TRUCK IS
EVIDENCED BY THE DIFFERENCE BETWEEN THE WEIGHT OF THE LOADED TRUCK
OBTAINED AT THE DESTINATION OF THE SHIPMENT AND THE WEIGHT OF THE EMPTY
TRUCK OBTAINED AT THE ORIGIN OF THE SHIPMENT INSTEAD OF OBTAINING THE
WEIGHT OF THE HOUSEHOLD EFFECTS AT THE POINT OF ORIGIN OF THE SHIPMENT.
IN 29 COMP. GEN. 273, IT WAS HELD, QUOTING FROM THE SYLLABUS:
"A TRANSFERRED EMPLOYEE WHO FURNISHED A WEIGHT CERTIFICATE COVERING
TRANSPORTATION OF HIS HOUSEHOLD EFFECTS MAY BE REIMBURSED FOR HIS
EXPENSES INCIDENT TO THE SHIPMENT UNDER EXECUTIVE ORDER NO. 9805, EVEN
THOUGH THE CERTIFICATE WAS ISSUED AT A POINT EN ROUTE MORE THAN 10 MILES
FROM THE POINT OF ORIGIN, THE PRIMARY PURPOSE OF SECTION 14 OF THE
ORDER, AUTHORIZING THE USE OF CONSTRUCTIVE WEIGHT WHERE NO ADEQUATE
SCALE IS LOCATED WITHIN SUCH 10-MILE RADIUS, BEING TO REQUIRE THAT
ACCEPTABLE EVIDENCE OF WEIGHT BE FURNISHED, AND NOT TO REQUIRE THAT
SHIPMENTS BE WEIGHED WITHIN SAID 10 MILES.'
IN LINE WITH THAT DECISION AND AS THE AMENDMENTS MADE TO SECTION 14
OF THE EXECUTIVE ORDER SINCE THAT TIME ARE NOT SUCH AS TO REQUIRE A
DIFFERENT CONCLUSION YOU ARE INFORMED THAT IN THE PRESENT CASE THE
EMPLOYEE WOULD BE ENTITLED TO REIMBURSEMENT ON A COMMUTED BASIS FOR THE
TRANSPORTATION OF HIS HOUSEHOLD EFFECTS.
ACCORDINGLY, THE VOUCHER AND RELATED CORRESPONDENCE IS RETURNED
HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.
B-135015, MAR. 6, 1958
TO MASTER SERGEANT LUIS MULLER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1958,
REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED MARCH 15, 1957, WHICH
DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF COMMERCIAL AIR
TRAVEL PERFORMED BY YOUR DEPENDENTS (WIFE AND FOUR CHILDREN), FROM NEW
YORK, NEW YORK, TO SAN JUAN, PUERTO RICO, IN AUGUST 1956.
THE RECORD SHOWS THAT WHILE YOU WERE SERVING AS CHIEF WARRANT OFFICER
ASSIGNED TO HEADQUARTERS COMPANY, 124TH ARMORED ORDNANCE BATTALION, U.S.
ARMY, APO 42 (BAD KREUZNACH, GERMANY), LETTER ORDERS DATED JULY 12,
1956, AUTHORIZED YOUR DEPENDENTS TO PROCEED FROM BAD KREUZNACH, GERMANY,
TO THE U.S. ARMY AIR PASSENGER CENTER, RHEIN MAIN AIR FORCE BASE,
FRANKFURT, GERMANY, FOR PROCESSING AND MOVEMENT BY MILITARY AIRCRAFT TO
A DEBARKATION POINT IN THE CONTINENTAL UNITED STATES. THESE ORDERS
CONTAINED THE STATEMENT "TRAVEL IS AUTH TO PORT OF DEBARKATION IN CONUS
ONLY.' AFTER YOUR DEPENDENTS COMPLETED TRAVEL TO NEW YORK CITY BY
MILITARY PLANE ON AUGUST 16, 1956, THEY PROCEEDED TO SAN JUAN, PUERTO
RICO, BY COMMERCIAL AIRCRAFT, PRIOR TO THE ISSUANCE OF PERMANENT CHANGE
OF STATION ORDERS DATED NOVEMBER 7, 1956, WHICH RELIEVED YOU FROM
FURTHER DUTY IN GERMANY, AND ASSIGNED YOU TO DUTY AT FORT BUCHANAN,
PUERTO RICO.
THE JOINT TRAVEL REGULATIONS (CHAPTER 7) ISSUED PURSUANT TO THE
PROVISIONS OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 814, PROVIDE THAT MEMBERS OF THE UNIFORMED SERVICES (WITH CERTAIN
EXCEPTIONS NOT HERE MATERIAL) SHALL BE ENTITLED TO TRANSPORTATION IN
KIND (OR TO A MONETARY ALLOWANCE IN LIEU THEREOF) FOR AUTHORIZED TRAVEL
OF THEIR DEPENDENTS, UPON A PERMANENT CHANGE OF STATION. PARAGRAPH
7009-3 OF SUCH REGULATIONS PROVIDES THAT IN CERTAIN UNUSUAL OR EMERGENCY
SITUATIONS A MEMBER ON PERMANENT DUTY OUTSIDE THE UNITED STATES MAY
REQUEST AND BE ISSUED ORDERS AUTHORIZING ADVANCE RETURN TRAVEL FOR SUCH
DEPENDENTS TO THE UNITED STATES PROVIDED THE ORDERS SPECIFICALLY LIMIT
THE TRANSPORTATION TO BE FURNISHED TO A PORT OF DEBARKATION IN THE
UNITED STATES. NO AUTHORITY EXISTS FOR THE FURTHER MOVEMENT OF
DEPENDENTS FROM SUCH PORT OF DEBARKATION AT GOVERNMENT EXPENSE, IN THE
ABSENCE OF COMPETENT ORDERS EFFECTING A PERMANENT CHANGE OF THE MEMBER'S
DUTY STATION. AFTER RECEIVING GOVERNMENT TRANSPORTATION FOR YOUR
DEPENDENTS TO NEW YORK CITY, NO ADDITIONAL RIGHT TO TRANSPORTATION OF
DEPENDENTS ACCRUED IN YOUR BEHALF UNTIL OR ON AFTER NOVEMBER 7, 1956,
THE DATE YOU WERE ORDERED TO PERMANENT DUTY IN PUERTO RICO. APPARENTLY,
YOUR DEPENDENTS WERE LIVING IN SAN JUAN AT THAT TIME.
THE FACT THAT GOVERNMENT MEANS OF TRANSPORTATION MAY OR MAY NOT HAVE
BEEN AVAILABLE FOR TRAVEL OF YOUR DEPENDENTS FROM NEW YORK CITY TO YOUR
HOME IN SAN JUAN IS OF NO IMPORTANCE IN CONNECTION WITH YOUR CLAIM,
SINCE SUCH TRAVEL AT GOVERNMENT EXPENSE WAS NEITHER AUTHORIZED NOR
CONTEMPLATED BY THE ORDERS DATED JULY 21, 1956, AND PAYMENT THEREFOR IS
SPECIFICALLY PRECLUDED BY THE ABOVE-CITED REGULATIONS.
ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF MARCH 15, 1957, IS FOUND
CORRECT AND IS SUSTAINED.
B-135057, MAR. 6, 1958
TO MRS. MAE H. BEACH, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS
UNITED STATES AIR FORCE:
ON JANUARY 28, 1958, YOU REQUESTED OUR DECISION ON WHETHER COLLECTION
OF AN OVERPAYMENT OF SALARY TO MRS. GRACE C. REAM, AN EMPLOYEE AT YOUR
HEADQUARTERS, MAY BE WAIVED IN LINE WITH OUR DECISION IN 28 COMP. GEN.
514 ON THE BASIS THAT NO MISREPRESENTATION OR FRAUD WAS INVOLVED.
THE RECORD SHOWS THAT MRS. REAM WAS EMPLOYED IN A CLASSIFIED POSITION
IN YOUR DEPARTMENT ON OCTOBER 22, 1956, AFTER HAVING SERVED FROM JUNE 1,
1955, TO SEPTEMBER 30, 1956, AS A SECRETARY TO A SENATOR AND, PRIOR TO
THAT, AS A CLASSIFIED EMPLOYEE IN ANOTHER AGENCY. HER SALARY WAS
INITIALLY ESTABLISHED IN THE DEPARTMENT AT $3,670 PER ANNUM, THE MINIMUM
RATE OF GRADE GS-5. ON MARCH 21, 1957, HOWEVER, USING HER SALARY OF
$4,398 PER ANNUM IN THE LEGISLATIVE POSITION AS THE ,HIGHEST PREVIOUS
RATE," HER SALARY WAS ADJUSTED RETROACTIVELY TO $4,345 PER ANNUM, THE
FIFTH STEP IN GRADE GS-5. SINCE THIS ACTION WAS CONTRARY TO SECTIONS
25.102 (J) AND 25.103 (1) OF THE CIVIL SERVICE REGULATIONS, MRS. REAM'S
PAY WAS LATER READJUSTED TO THE PROPER RATE, EFFECTIVE JANUARY 12, 1958.
AN OVERPAYMENT TOTALING $651.96 REMAINS OUTSTANDING AND YOU REQUESTED
THAT SHE BE PERMITTED TO RETAIN THIS AMOUNT ON THE GROUNDS THAT, AS IN
THE CASES CONSIDERED IN 28 COMP. GEN. 514, SHE WAS OVERPAID THROUGH NO
FAULT OF HER OWN AND SHE SHOULD BE CONSIDERED AS HAVING BEEN A DE FACTO
EMPLOYEE AT THE HIGHER RATE OF PAY.
THE DECISION IN 28 COMP. GEN. 514 RELATED TO EMPLOYEES WHO WERE
APPOINTED, PROMOTED OR REINSTATED UNDER AUTHORITY DELEGATED BY THE CIVIL
SERVICE COMMISSION TO THE VARIOUS AGENCIES OF THE GOVERNMENT AND WHOSE
APPOINTMENTS, UPON POST AUDIT BY THE COMMISSION, WERE FOUND TO BE
ERRONEOUS IN THAT THE EMPLOYEE'S QUALIFICATIONS FAILED IN SOME RESPECTS
TO MEET THE QUALIFICATION STANDARDS PRESCRIBED BY CIVIL SERVICE
REGULATIONS. WE HELD IN THAT DECISIONS THAT WHERE APPOINTMENTS WERE
MADE IN GOOD FAITH, BOTH ON THE PART OF THE EMPLOYEE AND THE
ADMINISTRATIVE OFFICE, THE EMPLOYEE INVOLVED COULD BE CONSIDERED AS
HAVING SERVED IN A DE FACTO STATUS AND AS BEING ENTITLED TO RETAIN
COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE
ATTENTION OF ADMINISTRATIVE OFFICIALS. SUCH CASES, HOWEVER, ARE CLEARLY
DISTINGUISHABLE FROM A CASE SUCH AS THIS WHERE THE SALARY AT A HIGHER
RATE IS PAID TO AN EMPLOYEE CONTRARY TO SPECIFIC PROVISIONS OF STATUTORY
REGULATIONS HAVING THE SAME FORCE AND EFFECT AS LAW (SEE 29 COMP. GEN.
75; 36 ID. 230).
IN THIS CIRCUMSTANCE OUR OFFICE HAS NO AUTHORITY TO WAIVE COLLECTION
OF THE AMOUNT OF OVERPAYMENT WHICH CONSTITUTES A VALID DEBT AGAINST THE
EMPLOYEE.
B-135085, MAR. 6, 1958
TO LIEUTENANT COLONEL A. W. NORSE:
YOUR LETTER DATED SEPTEMBER 5, 1957, REQUESTS AN ADVANCE DECISION ON
THE LEGALITY OF PAYING TWO VOUCHERS REPRESENTING TRAVELING EXPENSES OF
TWO CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE ARMY, MARGARET C.
FILBERT AND ALFRED L. FRAHM.
BOTH TRAVELERS WERE AUTHORIZED TO TRAVEL FROM ARMY CHEMICAL CENTER
(EDGEWOOD), MARYLAND, TO POINTS NORTH OF EDGEWOOD, NAMELY, PHILADELPHIA,
PENNSYLVANIA, AND U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK,
RESPECTIVELY. BOTH TRAVELERS INCURRED ADDITIONAL TRAVELING EXPENSES BY
DEPARTING FROM THEIR RESIDENCES LOCATED SOUTH OF EDGEWOOD AND ROUTING
THEIR JOURNEY VIS BALTIMORE.
YOU SAY THAT "PAYMENT OVER A CIRCUITOUS ROUTE IS NOT AUTHORIZED" AND,
SINCE BOTH VOUCHERS INCLUDE ADDITIONAL AMOUNTS INCURRED BY REASON OF
TRAVEL OVER CIRCUITOUS ROUTES, YOU DOUBT THAT THEY SHOULD BE PAID IN
FULL. YOU DO OBSERVE, HOWEVER, THAT IF NORTHBOUND ARMY DEPARTMENT
EMPLOYEES WERE PERMITTED TO TRAVEL DIRECTLY FROM THEIR HOMES IN THE
BALTIMORE AREA INSTEAD OF VIA ARMY CHEMICAL CENTER, MARYLAND, THE TRAVEL
COULD BE ACCOMPLISHED IN A SHORTER TIME AND THE SLIGHTLY GREATER FARE
WOULD BE MORE THAN OFFSET BY A SAVINGS IN PER DIEM AND BY ENABLING THE
EMPLOYEES TO SPEND MORE OF THEIR DUTY TIME IN PRODUCTIVE WORK AND LESS
IN A TRAVEL STATUS.
SECTION 3.2 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROVIDES,"ALL TRAVEL MUST BE BY A USUALLY TRAVELED ROUTE. TRAVEL BY
OTHER ROUTES MAY BE ALLOWED WHEN THE OFFICIAL NECESSITY THEREFOR IS
SATISFACTORILY ESTABLISHED.' IN 32 COMP. GEN. 438 IT WAS HELD THAT THIS
OFFICE WOULD NOT OBJECT TO REIMBURSEMENT TO A TRAVELER OF ADDITIONAL
COSTS INCURRED IN TAKING A LONGER ROUTE ON
TRIP FROM ARMY CHEMICAL CENTER, MARYLAND, AND NORTH PHILADELPHIA,
PENNSYLVANIA, WHEN BY SO DOING, THE TRAVELER AVOIDED SEVERAL CONGESTED
URBAN AREAS TRANSECTED BY THE ALTERNATE SHORTER ROUTE AND, THEREBY,
SAVED TWO HOURS OF DRIVING TIME EACH WAY. HOWEVER, IN THAT CASE WE
CONDITIONED OUR NONOBJECTION UPON SPECIFIC AUTHORIZATION OR APPROVAL, BY
AN OFFICIAL HAVING AUTHORITY TO AUTHORIZE THE TRAVEL, OF THE ROUTE
UTILIZED. IT WAS SAID THAT SUCH AN ADMINISTRATIVE DETERMINATION WOULD
BE ACCEPTED AS A FINDING THAT THERE EXISTED AN OFFICIAL NECESSITY FOR
THE USE OF THE LONGER ROUTE, AND THAT, UNLESS CLEARLY UNREASONABLE, SAID
DETERMINATION WOULD NOT BE QUESTIONED BY THIS OFFICE.
THE DECISION IN 32 COMP. GEN. 438 IS APPLICABLE IN THE CASES OF M.
G. FILBERT AND A. L. FRAHM. THE VOUCHERS ARE RETURNED HEREWITH AND, IF
APPROVED IN ACCORDANCE WITH THE FOREGOING, PROPERLY MAY BE CERTIFIED FOR
PAYMENT.
B-135113, MAR. 6, 1958
TO THE VICTOR ENGINEERING CORPORATION:
REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 27, 1957, FORWARDING
CHECK FOR $65.32 IN PAYMENT OF YOUR INDEBTEDNESS TO THE UNITED STATES
DUE TO YOUR DEFAULT IN THE PERFORMANCE OF PURCHASE ORDER NO. 1451, AND
PROTESTING THE ACTION OF THE VETERANS ADMINISTRATION CENTER, WACO,
TEXAS, IN REJECTING THE EQUIPMENT FURNISHED BY YOU THEREUNDER.
BY INVITATION NO. 57-56, ISSUED NOVEMBER 14, 1956, VETERANS
ADMINISTRATION CENTER, WACO, TEXAS, REQUESTED BIDS FOR FURNISHING ONE
EACH OF TWO ITEMS OF EQUIPMENT IN ACCORDANCE WITH THE GOVERNMENT'S
SPECIFICATIONS SET OUT IN THE INVITATION. THE EQUIPMENT WAS DESCRIBED
AS FOLLOWS:
ITEM NO. 1. SAW, MASONRY, TO BE USED WITH 14 INCH BLADES;
1 1/2 HP MOTOR TOTALLY ENCLOSED; BALLBEARING
CART 24 INCHES WIDE; FINGERTIP VOLTAGE CONTROL
TO CHANGE MOTOR FROM 115 TO 230 VOLTS OR VICE
VERSA; COMPLETE WITH WET CUTTING ATTACHMENT;
"ANGLE-SET" FOR INSTANT ADJUSTMENT; CUTTING
HEAD ANCHORED TO SAW FRAME WITH TOGGLE PINS;
BUILT-IN BELT ADJUSTMENT AND ADJUSTABLE
GUIDE STOP FOR 45 DEGREE AND 90 DEGREE CUTS;
SELF PRIMING FREEZE PROOF PUMP, AND SAW
HEAD ELEVATING MECHANISM; TARGET
"HOLL-O-NATIE" OR EQUAL
ITEM NO. 2. BLADE. WET CUT, 14 INCHES, BLACK CARBON
DIAMOND, BLUE, NO. 3 TARGET OR EQUAL
(FOR USE ON ABOVE SAW).
IN RESPONSE TO THE INVITATION, YOU SUBMITTED AN UNQUALIFIED BID IN
THE TOTAL AMOUNT OF $425, F.O.B. WACO, TEXAS, OFFERING TO FURNISH
EQUIPMENT MANUFACTURED BY YOU, INCLUDING ONE "VALOR MODEL II" SAW AT
$325. A BROCHURE COVERING THE EQUIPMENT ACCOMPANIED YOUR BID. FOUR
OTHER BIDS WERE RECEIVED, RANGING IN THE AGGREGATE FOR THE TWO ITEMS
FROM $436.55 TO $584. AS YOUR EQUIPMENT APPARENTLY MET SPECIFICATIONS,
YOUR BID, BEING THE LOWEST, WAS ACCEPTED AND AWARD WAS ISSUED TO YOU ON
PURCHASE ORDER NO. 1451, DATED NOVEMBER 28, 1956. THE PURCHASE ORDER
SET FORTH THE SAME DESCRIPTIONS FOR THE SAW AND BLADE AS CONTAINED IN
THE INVITATIONS, EXCEPT "VALOR MODEL II" WAS SUBSTITUTED FOR "TARGET
"TOLL-O-MATIC" OR EQUAL" AS TO THE SAW.
THE RECORD SHOWS THAT UPON DELIVERY OF YOUR VALOR MODEL II SAW, ON
DECEMBER 18, 1956, THE VETERANS ADMINISTRATION CENTER ENGINEERING
OFFICER FOUND UPON INSPECTION THAT THE SAW DID NOT MEET THE ADVERTISED
SPECIFICATIONS AND THAT IT DEVIATED MATERIALLY THEREFROM IN THE
FOLLOWING ESPECTS:
THE SAW HAD NO FINGERTIP VOLTAGE CONTROL TO CHANGE THE MOTOR VOLTAGE
FROM 115 TO 230 VOLTS, OR VICE VERSA. THE MOTOR WAS WIRED FOR 115 VOLTS
WITH A START AND STOP SWITCH. WITH THIS ARRANGEMENT, WIRING CHANGES
WOULD BE NECESSARY IN THE ELECTRICAL BOX EACH TIME VOLTAGE WAS CHANGED.
THERE WAS NO SAW HEAD ELEVATING MECHANISM.
THE SAW HAD NO "ANGLE-SET" FOR INSTANT ADJUSTMENT.
THE GUIDE STOP WAS FOR 90 DEGREE CUTS ONLY, RATHER THAN FOR 45 DEGREE
AND 90 DEGREE CUTS.
THE PUMP DID NOT APPEAR TO BE FREEZE PROOF.
ALSO, NO BLADE WAS RECEIVED WITH THE SHIPMENT.
BY LETTER DATED DECEMBER 18, 1957, YOU WERE ADVISED BY THE CHIEF,
PROCUREMENT SECTION, SUPPLY DIVISION, OF THE VETERANS ADMINISTRATION
CENTER, THAT THE SAW WAS BEING REJECTED SINCE IT DID NOT MEET THE
SPECIFICATIONS AS SET OUT IN THE INVITATION AND THE PURCHASE ORDER, AND
YOU WERE REQUESTED TO FURNISH A SAW MEETING SPECIFICATIONS. IN LETTER
DATED DECEMBER 27, 1956, YOU PROTESTED THE ACTION OF THE PROCUREMENT
OFFICE IN REJECTING THE SAW AND STATED THAT THE VALOR MODEL II SAW WAS
EQUAL TO THE TARGET MACHINE SPECIFIED IN THE INVITATION. BY LETTER
DATED JANUARY 7, 1957, YOU WERE AGAIN REQUESTED TO FURNISH A MASONRY SAW
IN ACCORDANCE WITH SPECIFICATIONS IN THE BID INVITATION AND THE PURCHASE
ORDER, AND YOU WERE ADVISED THAT IF THE SAW WAS NOT RECEIVED BY JANUARY
22, IN ACCORDANCE WITH THE TERMS OF THE BID INVITATION YOUR RIGHT TO
EFFECT DELIVERY WOULD BE CANCELED AND A SAW WOULD BE PURCHASED IN THE
OPEN MARKET AND ANY ADDITIONAL COSTS OCCASIONED THEREBY CHARGED TO YOUR
ACCOUNT.
THE RECORD DOES NOT INDICATE THAT YOU MADE ANY ATTEMPT TO FURNISH AN
ACCEPTABLE SUBSTITUTE SAW.
ACCORDINGLY, BY LETTER DATED JANUARY 24, 1957, THE SUPPLY OFFICER,
VETERANS ADMINISTRATION CENTER, WACO, TEXAS, ADVISED YOU THAT, SINCE A
REPLACEMENT HAD NOT BEEN RECEIVED, YOU HAD BEEN DECLARED IN DEFAULT AND
PURCHASE ORDER NO. 1451 HAD BEEN CANCELED. YOU WERE AGAIN ADVISED THAT
A MASONRY SAW MEETING THE ADVERTISED SPECIFICATIONS WOULD BE PURCHASED
IN THE OPEN MARKET AND ANY ADDITIONAL COST OCCASIONED THEREBY WOULD BE
CHARGED TO YOUR ACCOUNT AS THE GOVERNMENT DID NOT WAIVE ITS RIGHTS UNDER
THE TERMS AND CONDITIONS OF THE CONTRACT. THE VALOR MODEL II SAW WAS
RETURNED TO YOU, FREIGHT COLLECT, ON JANUARY 24, 1957.
A MASONRY SAW AND BLADE MEETING THE ADVERTISED SPECIFICATIONS WERE
SUBSEQUENTLY PURCHASED IN THE OPEN MARKET AT AN ADDITIONAL COST TO THE
GOVERNMENT OF $65.32 ABOVE YOUR BID PRICE, AND THIS AMOUNT WAS CHARGED
TO YOUR ACCOUNT. THE DEBT WAS REFERRED BY THE VETERANS ADMINISTRATION
TO OUR OFFICE FOR COLLECTION ACTION. IN RESPONSE TO OUR DEMANDS FOR
PAYMENT YOU REMITTED BY CHECK THE AMOUNT OF $65.32 UNDER PROTEST.
YOUR PROTEST APPEARS TO BE BASED ON THE CONTENTIONS THAT THE
SPECIFICATIONS IN BID INVITATION NO. 57-56 WERE SO DRAFTED AS TO FIT
ONLY THE TARGET MACHINE AND THUS RESTRICTED COMPETITIVE BIDDING BY
PROHIBITING ALL OTHER MANUFACTURERS FROM BIDDING; THAT THE VALOR MODEL
II SAW MANUFACTURED BY YOU AND DELIVERED BY YOU TO VETERANS
ADMINISTRATION CENTER, WACO, TEXAS, PURSUANT TO PURCHASE ORDER NO.
1451, ALTHOUGH ADMITTEDLY NOT COMPLYING WITH THE SPECIFICATIONS SET
FORTH IN THE BID INVITATION, IS EQUAL TO THE TARGET MACHINE AND IS
CAPABLE OF PERFORMING EFFICIENTLY THE JOB OF CUTTING MASONRY REQUIRED BY
THE VETERANS ADMINISTRATION CENTER; AND THAT THE BROCHURE TRANSMITTED
WITH YOUR BID DESCRIBED YOUR SAW AND, SINCE THE PURCHASE ORDER SPECIFIED
A VALOR MODEL II SAW, YOUR EQUIPMENT SHOULD HAVE BEEN ACCEPTED.
YOUR CONTENTION THAT THE BID SPECIFICATIONS WERE SO RESTRICTIVE AS TO
PREVENT COMPETITIVE BIDDING WILL BE CONSIDERED FIRST. THE PURPOSE OF
STATUTES REQUIRING THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE
BIDDER AFTER ADVERTISING IS TO GIVE ALL PERSONS AN EQUAL RIGHT TO
COMPETE FOR GOVERNMENT CONTRACTS, TO PREVENT UNJUST FAVORITISM,
COLLUSION, OR FRAUD IN AWARDING GOVERNMENT CONTRACTS, AND TO SECURE FOR
THE GOVERNMENT THE BENEFITS WHICH FLOW FROM FREE AND UNRESTRICTED
COMPETITION. 36 COMP. GEN. 380, 384.
IT IS HARDLY OPEN TO QUESTION, HOWEVER, THAT THE GOVERNMENT ENGINEERS
AND OFFICERS FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT IS TO BE
USED AND WITH RESULTS PREVIOUSLY OBTAINED IN THE USE OF SIMILAR
EQUIPMENT ARE, OR SHOULD BE, BETTER QUALIFIED TO DETERMINE WHAT IS
NEEDED THAN ANY REPRESENTATIVE OF A PARTICULAR MANUFACTURER WHOSE ONLY
INTEREST IS TO SELL HIS PRODUCT TO THE GOVERNMENT. THE DECISIONS OF OUR
OFFICE ARE, WITHOUT EXCEPTION, TO THE EFFECT THAT THE UNITED STATES IS
NOT TO BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS
REQUIREMENTS, OR DEMAND THAT HIS PRODUCT BE ACCEPTED WITHOUT REGARD TO
ACTUAL CONDITIONS.
WE HAVE HELD THAT IT IS WITHIN THE PROVINCE OF ADMINISTRATIVE
OFFICERS, FIRST, TO DRAFT SPECIFICATIONS WHICH WILL REFLECT THE NEEDS OF
THE GOVERNMENT AND INSURE FAIR COMPETITIVE BIDDING AND, SECOND, TO
DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THOSE SPECIFICATIONS.
SEE 17 COMP. GEN. 554; 557; 36 ID. 376, 378.
THE QUESTION WHETHER SUCH SPECIFICATIONS ARE SO RESTRICTIVE AS TO
PROHIBIT COMPETITIVE BIDDING WITHIN THE REASONABLE REQUIREMENTS OF THE
STATUTE IS ONE WHICH GOES TO LEGALITY OF THE CONTRACT AND USES OF
APPROPRIATED MONEYS AND IS NOT FOR DETERMINATION BY THE PURCHASING
AGENCY, BUT IS FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE. 13
COMP. GEN. 318; 17 ID. 554; 20 ID. 903, 912, AND CASES CITED THEREIN;
21 ID. 1132, 1136.
IN THE INSTANT CASE, IT WAS THE RESPONSIBILITY OF THE VETERANS
ADMINISTRATION CENTER, WACO, TEXAS, TO DETERMINE THE EQUIPMENT NEEDS OF
THAT FACILITY, AND TO DRAFT SPECIFICATIONS FOR SUCH EQUIPMENT. BID
INVITATION NO. 57-56 CLEARLY SET FORTH THE SPECIFICATIONS OF THE
EQUIPMENT REQUIRED TO BE FURNISHED. THE ENGINEERING OFFICER WHO MADE
THE INSPECTION OF YOUR EQUIPMENT UPON DELIVERY AT THE FACILITY STATED IN
HIS REPORT THAT THERE ARE AT LEAST TWO MASONRY SAWS ON THE MARKET WHICH
HAVE THE SAME FEATURES AS THOSE SPECIFIED IN THE BID INVITATION. THE
RECORD SHOWS THAT FOUR OTHER BIDS, IN ADDITION TO YOURS, WERE RECEIVED
IN RESPONSE TO THE INVITATION. IN THESE CIRCUMSTANCES, AND IN THE
ABSENCE OF A SHOWING THAT THE SPECIFICATIONS WERE SO DRAFTED AS TO
REQUIRE PARTICULAR FEATURES IN THE EQUIPMENT TO BE FURNISHED BUT NOT
NECESSARY TO THE ACTUAL NEEDS FOR WHICH THE EQUIPMENT WAS TO BE USED AND
THUS RESTRICT BIDDING TO AN ITEM OF A PARTICULAR MANUFACTURER, IT MUST
BE CONCLUDED THAT THE SPECIFICATIONS CONTAINED IN INVITATION TO BID NO.
57-56 WERE NOT IN FACT RESTRICTIVE WITHIN THE REASONABLE REQUIREMENTS OF
THE STATUTES.
ALSO, IT MAY BE POINTED OUT THAT UNDER THE TERMS AND CONDITIONS OF
THE INVITATION TO BID AND THE SPECIAL CONDITIONS CONTAINED IN THE
INVITATION, AS WELL AS PROVISIONS APPLICABLE TO FEDERAL SUPPLY CONTRACTS
GENERALLY, PROSPECTIVE BIDDERS WERE CAUTIONED, IN THE PREPARATION OF
BIDS, TO EXAMINE THE DRAWINGS, SPECIFICATIONS, SCHEDULES AND ALL
INSTRUCTIONS, AND THAT FAILURE TO DO SO WOULD BE AT THE BIDDER'S RISK.
PROSPECTIVE BIDDERS WERE ON NOTICE THAT, IN CASE ANY SUPPLIES OR LOTS
OF SUPPLIES WERE NOT IN CONFORMITY WITH THE REQUIREMENTS OF THE
CONTRACT, THE GOVERNMENT WOULD HAVE THE RIGHT EITHER TO REJECT THEM OR
TO REQUIRE THEIR CORRECTION, AND THAT IF THE CONTRACTOR FAILED, WHEN
REQUESTED BY THE CONTRACTING OFFICER, TO PROCEED WITHIN TEN DAYS OR SUCH
EXTENSION OF TIME AS THE CONTRACTING OFFICER MIGHT AUTHORIZE IN WRITING
WITH THE REPLACEMENT OR CORRECTION THEREOF, THE GOVERNMENT EITHER MIGHT
BY CONTRACT OR OTHERWISE REPLACE OR CORRECT SUCH SUPPLIES AND CHARGE TO
THE CONTRACTOR THE COST OCCASIONED THE GOVERNMENT THEREBY, OR TERMINATE
THE CONTRACT FOR DEFAULT. IF THE GOVERNMENT TERMINATED THE CONTRACT IN
WHOLE OR IN PART, AFTER WRITTEN NOTICE TO THE CONTRACTOR OF TERMINATION
FOR DEFAULT, THE GOVERNMENT MIGHT PROCURE, UPON SUCH TERMS AND IN SUCH
MANNER AS THE CONTRACTING OFFICER MIGHT DEEM APPROPRIATE, SUPPLIES OR
SERVICES, SIMILAR TO THOSE TERMINATED, AND THE CONTRACTOR WOULD BE
LIABLE TO THE GOVERNMENT FOR ANY EXCESS COSTS FOR SUCH SIMILAR SUPPLIES
OR SERVICES.
IN SUBMITTING YOUR BID, YOU DID NOT INDICATE ANY CHANGES FROM THE BID
SPECIFICATIONS OR OTHERWISE QUALIFY YOUR BID AND, SINCE THE BROCHURE
ACCOMPANYING YOUR BID CONTAINED NO DETAILED PERTINENT SPECIFICATIONS OF
THE VALOR MODEL II SAW WHICH YOU PROPOSED TO FURNISH, THE PURCHASING
OFFICER HAD A RIGHT TO ASSUME THAT THE VALOR MODEL II SAW MET THE BID
SPECIFICATIONS AND WAS EQUAL TO THE ITEM FOR WHICH THE VETERANS
ADMINISTRATION CENTER HAD ADVERTISED. THE DEVIATIONS IN YOUR SAW FROM
THE ADVERTISED SPECIFICATIONS DID NOT BECOME APPARENT TO THE PURCHASING
OFFICER UNTIL AFTER AWARD TO YOU OF THE PURCHASE ORDER, AND AFTER THE
SAW WAS INSPECTED BY THE VETERANS ADMINISTRATION ENGINEERING OFFICER
UPON ITS DELIVERY.
THUS, IT APPEARS THAT YOUR BID WAS ACCEPTED WITHOUT NOTICE THAT THE
SAW YOU PROPOSED TO FURNISH DID NOT MEET THE SPECIFICATIONS, AND
THEREFORE, SUCH ACCEPTANCE MUST BE REGARDED AS RESULTING IN A VALID AND
BINDING CONTRACT. 36 COMP. GEN. 377.
SINCE YOU FAILED TO COMPLY WITH THE CONTRACTUAL OBLIGATIONS IMPOSED
UPON YOU BY YOUR BID AND PURCHASE ORDER NO. 1451, THE PURCHASING OFFICER
HAD NO ALTERNATIVE BUT TO REJECT YOUR SAW, CANCEL THE PURCHASE ORDER AND
DECLARE YOU IN DEFAULT, PURCHASE THE EQUIPMENT ELSEWHERE, AND CHARGE TO
YOUR ACCOUNT $65.32, THE AMOUNT OF EXCESS COSTS INCURRED BY THE
GOVERNMENT IN PROCURING EQUIPMENT FROM ANOTHER SOURCE. ACCORDINGLY, THE
ACTION TAKEN IN THIS MATTER IS SUSTAINED.
B-135148, MAR. 6, 1958
TO MR. HARRY KANE:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 20, FEBRUARY 10,
16 AND 23, 1958, RELATING TO YOUR CLAIM IN THE AMOUNT OF $2,480,
REPRESENTING AN ALLOTMENT OF $80 PER MONTH IN FAVOR OF YOUR MOTHER, MRS.
ALFRED KANE, WHICH YOU BELIEVE WAS DEDUCTED FROM YOUR PAY FOR 31 MONTHS
DURING YOUR SERVICE IN THE UNITED STATES ARMY FROM SEPTEMBER 28, 1946,
TO SEPTEMBER 27, 1949--- DATE OF DISCHARGE--- BUT WHICH, YOU ALLEGE,
WERE NEVER RECEIVED BY HER. ALSO, YOU QUESTION THE PAYMENT OF FAMILY
ALLOWANCE TO YOUR FORMER WIFE, ANN LOUISE KANE, ON ACCOUNT OF YOUR
DEPENDENT DAUGHTER, BARBARA A. KANE.
YOUR LETTERS ARE THE LAST OF A SERIES OF LETTERS ADDRESSED TO OUR
OFFICE IN WHICH YOU HAVE STATED, IN SUBSTANCE, THAT YOU MADE AN
ALLOTMENT OF $80 PER MONTH IN FAVOR OF YOUR MOTHER FOR THE INDICATED
PERIOD OF 36 MONTHS, BUT THAT SHE RECEIVED ONLY FIVE CHECKS DURING SUCH
PERIOD. YOUR CLAIM APPEARS TO BE BASED UPON YOUR BELIEF THAT A
DEDUCTION OF $80 PER MONTH WAS MADE FROM YOUR PAY DURING THE PERIOD
SEPTEMBER 28, 1946, TO SEPTEMBER 27, 1949, BUT THAT SINCE YOUR MOTHER
RECEIVED ONLY FIVE CHECKS AMOUNTING TO $400, YOU ARE ENTITLED TO BE PAID
THE DIFFERENCE OF $2,480, COVERING THE 31 CHECKS ALLEGED NOT TO HAVE
BEEN RECEIVED.
IT SEEMS CLEAR THAT YOU ARE UNDER SOME MISAPPREHENSION AS TO THE
FACTS IN THIS CASE. OUR RECORDS SHOW THAT CLASS E ALLOTMENT CHECKS
(WHICH INCLUDE NO GOVERNMENT CONTRIBUTIONS) WERE ISSUED IN FAVOR OF YOUR
MOTHER AT $80 EACH FOR THE MONTHS OF MARCH AND APRIL 1947, AT $70 PER
MONTH FROM NOVEMBER 1947, THROUGH JULY 1948, AND AT $50 PER MONTH FROM
AUGUST THROUGH DECEMBER 1948. DEDUCTIONS WERE MADE FROM YOUR PAY
ACCOUNT FOR NO OTHER CLASS E ALLOTMENT CHECKS. THE RECORDS INDICATE
THAT THE CHECKS WERE NEGOTIATED IN DUE COURSE, PRESUMABLY BY YOUR
MOTHER, AND WERE PAID BY THE TREASURER OF THE UNITED STATES.
UNDER DATE OF DECEMBER 26, 1957, OUR CLAIMS DIVISION CERTIFIED FOR
PAYMENT TO YOU THE SUM OF $56.21, REPRESENTING THE TOTAL AMOUNT OF PAY
FOUND TO BE DUE YOU AFTER A CAREFUL REVIEW OF YOUR PAY RECORDS, AND IN
CONNECTION THEREWITH INVITED YOUR ATTENTION TO SECTION 2 OF THE ACT OF
JUNE 22, 1926, 44 STAT. 761, AS FOLLOWS:
"SEC. 2. ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR
WARRANTS APPEARING TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO
THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS OF THE DATE OF ISSUANCE
OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED.'
SINCE THE RECORD SHOWS THAT THE ABOVE-MENTIONED CHECKS WERE DULY
ISSUED IN FAVOR OF YOUR MOTHER AND THE AMOUNTS OF SUCH CHECKS DEDUCTED
FROM YOUR PAY MORE THAN SIX YEARS BEFORE YOU FILED YOUR CLAIM, AND SINCE
IT APPEARS THAT SUCH CHECKS WERE NEGOTIATED IN DUE COURSE AND PAID BY
THE TREASURER OF THE UNITED STATES, IT SEEMS CLEAR THAT YOUR CLAIM COMES
WITHIN THE PROVISIONS OF THE CITED ACT OF JUNE 22, 1926, AND IS NOW
BARRED. THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DENYING YOUR CLAIM
WAS CORRECT AND IS SUSTAINED. FURTHER CORRESPONDENCE WITH OUR OFFICE
CONCERNING THE ALLEGED NONRECEIPT OF SUCH CHECKS WILL SERVE NO USEFUL
PURPOSE.
WITH REFERENCE TO THE PAYMENT TO YOUR FORMER WIFE OF FAMILY ALLOWANCE
ON ACCOUNT OF YOUR DEPENDENT DAUGHTER, YOU STATE THAT THE COURTS OF THE
STATE OF PENNSYLVANIA HAVE NEVER HELD THAT YOU ARE REQUIRED TO SUPPORT
YOUR DEPENDENT CHILD AND THEREFORE, YOU ARE OF THE OPINION THAT THERE IS
NO LEGAL BASIS FOR THE DEDUCTIONS MADE FROM YOUR PAY ON ACCOUNT OF THE
DEPENDENT DAUGHTER. YOU HAVE HERETOFORE BEEN ADVISED THAT YOUR FORMER
WIFE MADE APPLICATION FOR FAMILY ALLOWANCE ON BEHALF OF YOUR MINOR
DAUGHTER AND THAT SUCH APPLICATION WAS APPROVED BY THE DEPARTMENT OF THE
ARMY. THE RECORD SHOWS THAT THE SUM OF $22 PER MONTH (YOUR CONTRIBUTION
TO FAMILY ALLOWANCE) WAS WITHHELD FROM YOUR PAY FOR THE PERIOD MARCH
1947, THROUGH SEPTEMBER 1949, ON ACCOUNT OF THE FAMILY ALLOWANCE
PAYMENTS MADE TO YOUR FORMER WIFE FOR THE BENEFIT OF YOUR DEPENDENT
DAUGHTER.
SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942,
APPROVED JUNE 23, 1942, AS AMENDED, 37 U.S.C. 201 (1946 EDITION),
PROVIDES THAT THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN IN THE
ARMY OF THE UNITED STATES SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY
ALLOWANCE FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN IS IN THE ACTIVE
MILITARY SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, DURING
THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND THE SIX MONTHS
IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR. SECTION 104 OF THE
SAME ACT, AS AMENDED, PROVIDES THAT A MONTHLY FAMILY ALLOWANCE SHALL BE
GRANTED AND PAID BY THE UNITED STATES TO CLASS A DEPENDENT OR DEPENDENTS
OF ANY SUCH ENLISTED MAN--- A CHILD IS A CLASS A DEPENDENT--- UPON
WRITTEN
APPLICATION TO THE DEPARTMENT CONCERNED MADE BY SUCH ENLISTED MAN OR
"MADE BY OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS.' UNDER THAT
PROVISION, YOUR FORMER WIFE WAS AUTHORIZED TO MAKE APPLICATION FOR THE
FAMILY ALLOWANCE ON BEHALF OF YOUR DAUGHTER. SECTION 206 OF THAT ACT,
AS AMENDED, PROVIDES THAT FOR ANY MONTH FOR WHICH A FAMILY ALLOWANCE IS
PAID TO THE DEPENDENT OR DEPENDENTS OF ANY SUCH ENLISTED MAN THE MONTHLY
PAY OF SUCH ENLISTED MAN SHALL BE REDUCED BY, OR CHARGED WITH, THE
AMOUNT OF $22. SUCH DEDUCTION IS AUTHORIZED FOR FAMILY ALLOWANCE
PAYABLE FOR A DEPENDENT CHILD WITHOUT REGARD TO ANY PROVISION FOR THE
CHILD'S SUPPORT WHICH MAY BE MADE IN A DECREE OF DIVORCE AFFECTING THE
PARENTS.
IT WILL BE SEEN FROM THE FOREGOING THAT AN APPLICATION WAS PROPERLY
MADE FOR FAMILY ALLOWANCE FOR YOUR DEPENDENT DAUGHTER AND THE SAME WAS
ADMINISTRATIVELY APPROVED. THE PAYMENT OF FAMILY ALLOWANCE WAS
AUTHORIZED UNDER THE FACTS OF THIS CASE AND THE DEDUCTION OF $22 PER
MONTH WAS REQUIRED TO BE MADE FROM YOUR PAY. ACCORDINGLY, THERE IS NO
LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND THE ACTION OF OUR CLAIMS
DIVISION IN DENYING THE SAME IS SUSTAINED.
B-135233, MAR. 6, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 12, 1958, FILE R11.2 L8)
L8/NT4-15, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES
AND ACCOUNTS, REQUESTING A DECISION AS TO WHETHER CONTRACT NO.
N665S-34618, ENTERED INTO BY THE NAVAL SUPPLY DEPOT CLEARFIELD, OGDEN,
UTAH, WITH UNITED MERCHANDISING CORPORATION, BURBANK, CALIFORNIA, FOR
THE SALE OF PORTABLE DECONTAMINATING APPARATUS, MAY BE CANCELLED WITH
RESPECT TO ITEM NO. 7 AND THE CONTRACTOR REIMBURSED FOR EXPENDITURES
CLAIMED, IN VIEW OF THE FACT THAT THE GOODS SOLD WERE NOT AS ADVERTISED.
ADVICE IS ALSO REQUESTED AS TO WHETHER THE DECISION MAY BE APPLIED TO
CONTRACTS NOS. N665S-34613 WITH S AND M SALES OF PORTLAND, OREGON, AND
N665S-34619 WITH VICTOR HOFFMAN COMPANY OF PORTLAND, OREGON, INVOLVING
SIMILAR FACTS IN CONNECTION WITH THE SALE OF GOODS UNDER ITEM NO. 7.
BY INVITATION NO. B-61-58-665 ISSUED OCTOBER 11, 1957, THE NAVAL
SUPPLY DEPOT CLEARFIELD, OFFERED FOR SALE CERTAIN QUANTITIES OF SURPLUS
PROPERTY LOCATED AT UTAH GENERAL DEPOT, OGDEN, UTAH, BIDS TO BE OPENED
OCTOBER 29, 1957. ITEMS NOS. 5, 6, AND 7 OF THE INVITATION COVERED
PORTABLE DECONTAMINATING APPARATUS DESCRIBED IN THE RESPECTIVE ITEMS AS
16,219 "UNUSED, GOOD," 1,600 "UNUSED FAIR," AND 4,407 "UNUSED, FAIR.'
EACH OF THE SAID ITEMS INCLUDED A PROVISION AS FOLLOWS:
"BIDS SHALL BE MADE FOR A MINIMUM OF 20 EA. OR ANY MULTIPLE OF 20 EA.
AWARDS WILL BE MADE TO THE HIGHEST ACCEPTABLE BIDDER FOR THE QUANTITY
BID, THE BALANCE AVAILABLE TO THE NEXT HIGHEST ACCEPTABLE BIDDER AND SO
ON. * * * BIDDERS WILL NOT BE PERMITTED TO SELECT INDIVIDUAL UNITS IN
AN ITEM SO AS TO HAVE A BETTER CHOICE THAN OTHER BIDDERS. BIDS MUST BE
FOR ALL OR ANY PART IN MULTIPLES OF 20 EA.'
IT IS REPORTED THAT THE MATERIAL WAS LEFT IN STORAGE IN CERTAIN
WAREHOUSES, SAMPLES BEING DISPLAYED IN ANOTHER WAREHOUSE.
THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS
AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, THE
GOVERNMENT DISCLAIMED ALL WARRANTIES "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. PARAGRAPH 1 OF
THE GENERAL SALE TERMS AND CONDITIONS URGED BIDDERS TO INSPECT THE
PROPERTY BEFORE BIDDING THEREON AND CAUTIONED THEM THAT IN NO CASE WOULD
FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM AGAINST THE
GOVERNMENT. APPARENTLY, UNITED MERCHANDISING CORPORATION INSPECTED THE
SAMPLES BEFORE BIDDING.
ON THE BASIS OF BIDS RECEIVED, UNITED MERCHANDISING CORPORATION WAS
AWARDED CONTRACT NO. N665S-34618 ON OCTOBER 31, 1957, COVERING CERTAIN
QUANTITIES UNDER ITEMS NOS. 5 AND 6 AND 500 EACH AT $2.2648, 600 EACH AT
$2.0648, 600 EACH AT $1.8648 AND 1,667 AT $1.6348 UNDER ITEM NO. 7. IT
IS REPORTED THAT THE PROPERTY SOLD UNDER ITEMS NOS. 5 AND 6 CONFORMED
TO THE DISPLAY AND INVITATION AND HAS BEEN DELIVERED. HOWEVER, AFTER
RECEIPT OF 518 UNITS UNDER ITEM NO. 7, UNITED MERCHANDISING CORPORATION
REPORTED BY TELEPHONE ON NOVEMBER 13, 1957, THAT THE PROPERTY RECEIVED
WAS USED AND IN POOR CONDITION. IT IS REPORTED BY THE PROPERTY DISPOSAL
OFFICER THAT INVESTIGATION
REVEALED THAT THE CONDITION OF MOST OF THE PROPERTY SOLD UNDER ITEM
NO. 7 WAS NOT AS ADVERTISED. DELIVERY OF THE 518 UNITS WAS MADE AT UTAH
GENERAL DEPOT, OGDEN, UTAH, IN ACCORDANCE WITH THE CONTRACT PROVISIONS,
AND IT APPEARS THAT THE UNITS WERE TRANSPORTED FROM OGDEN, UTAH, TO
BURBANK, CALIFORNIA, BY A TRUCKING FIRM EMPLOYED BY THE CONTRACTOR.
IN THE CONTRACTING OFFICER'S STATEMENT DATED JANUARY 22, 1958, IT IS
STATED:
"THE DECONTAMINATING APPARATUS WERE BOXED AND THE GOVERNMENT, AS WELL
AS THE BUYERS, WERE NOT ABLE TO DETERMINE THE CONDITION WITHOUT OPENING
THE BOXES AND REMOVING THE CARTONS. THE PACK OF MATERIAL WOULD HAVE
PREVENTED THE BIDDERS FROM PERFORMING A THOROUGH INSPECTION OTHER THAN
THE SAMPLE DISPLAYED AS THE MATERIAL WAS IN ANOTHER WAREHOUSE AND WAS IN
WOODEN BOXES CONTAINING TWO EACH APPARATUS, PACKED INDIVIDUALLY IN
CARDBOARD BOXES. FURTHER, IT WAS ASSUMED THAT THE MATERIAL DISPLAYED BY
THE UTAH GENERAL DEPOT FOR SALE WAS A FAIR REPRESENTATIVE SAMPLE,
CAREFULLY SELECTED FROM THE BULK OF MATERIAL OFFERED. THE BIDDERS,
THEREFORE, WOULD HAVE INSPECTED AS FAR AS WAS POSSIBLE. AFTER CLAIMANT
REPORTED THE DIFFERENCE IN CONDITION UPON RECEIPT OF THE FIRST TRUCK
LOAD, THE REMAINING UNDELIVERED BOXES ON ITEM 7 WERE OPENED BY THE UTAH
GENERAL DEPOT, WHICH REVEALED THAT THE MATERIAL WAS NOT AS ADVERTISED
AND FURTHER, THAT A CONSIDERABLE QUANTITY WAS IN VERY POOR CONDITION
THAT WOULD HAVE LITTLE VALUE OTHER THAN AS SCRAP. AS A RESULT OF THESE
FINDINGS, THE DISPOSAL OFFICER IN CONJUNCTION WITH THE CONTRACTING
OFFICER STOPPED ALL SHIPMENTS ON ITEM 7, WHICH INVOLVED TWO ADDITIONAL
CONTRACTS, N665S-34613 WITH S AND M SALES OF PORTLAND, OREGON AND
N665S-34619 WITH THE VICTOR HOFFMAN COMPANY OF PORTLAND, OREGON.'
UNDER DATE OF NOVEMBER 5, 1957, UNITED MERCHANDISING CORPORATION
COMPLETED PAYMENT OF THE CONTRACT PRICE TOTALING $11,220.41. HOWEVER,
BY LETTER DATED JANUARY 7, 1958, TO THE CONTRACTING OFFICER, THE
CORPORATION SUBMITTED ITS CLAIM IN THE AMOUNT OF $1,655.35 ITEMIZED AS
FOLLOWS:
CHART
518 UNITS AT $2.2648 $1,173.17
HAULAGE FROM OGDEN, UTAH, TO BURBANK, CALIFORNIA 400.00
ROUND TRIP AIR FARE FROM BURBANK, CALIFORNIA, TO
SALT LAKE CITY 82.18
---------
$1,655.35
THE CONTRACTING OFFICER RECOMMENDS THAT RELIEF BE GRANTED TO UNITED
MERCHANDISING CORPORATION.
DESPITE THE EXPRESS DISCLAIMER BY THE GOVERNMENT OF ANY WARRANTY AS
TO THE "DESCRIPTION" OF THE PROPERTY OFFERED FOR SALE, THE LAW
NEVERTHELESS RECOGNIZES A DISTINCTION BETWEEN SALES BY LOT AND SALES OF
PARTICULAR QUANTITIES TO BE TAKEN FROM A LARGER STOCK, SO THAT, AS HERE,
THE PARTICULAR UNITS PURCHASED MAY NOT BE SPECIFICALLY IDENTIFIABLE AT
THE TIME THE SALE IS MADE. SEE B-130448, FEBRUARY 4, 1957 (36 COMP.
GEN. 572), AND B-131586, MAY 24, 1957, TO YOU. IN THIS SITUATION, THE
LANGUAGE OF THE DESCRIPTION HAS BEEN HELD TO RELATE MORE TO THE IDENTIFY
OF THE ITEMS THAN TO A DESCRIPTION OF THEIR CONDITION AND THERE IS
IMPOSED UPON THE SELLER IN SUCH CASES THE UNEQUIVOCAL OBLIGATION TO
DELIVER ITEMS WHICH CONFORM TO THE PROVISIONS OF THE CONTRACT
IDENTIFYING THE SUBJECT MATTER.
IN VIEW OF THE FOREGOING, AND CONSIDERING THE FACT THAT THE THREE
CONTRACTORS CONCERNED COULD NOT HAVE ASCERTAINED THE TRUE CONDITION OF
THE ADVERTISED PROPERTY BY SUCH AN INSPECTION AS WAS REASONABLY
CONTEMPLATED WITH RESPECT TO ITEM NO. 7 OF THE INVITATION, WE WOULD
INTERPOSE NO OBJECTION TO CANCELLATION OF THE CONTRACTS.
WITH RESPECT TO THE CLAIM OF UNITED MERCHANDISING CORPORATION, THERE
SHOULD BE REFUNDED TO THE CORPORATION THE AMOUNT PAID BY IT UNDER ITEM
NO. 7, PLUS ITS ACTUAL AND REASONABLE TRANSPORTATION EXPENSES FOR THE
DELIVERED ITEMS, LESS SUCH AMOUNT AS DETERMINED TO BE THE VALUE AT ITS
PLACE OF BUSINESS IN BURBANK OF THE 518 UNITS DELIVERED. UNITED STATES
V. KOPLIN, 24 F.2D 840.
THE AMOUNT CLAIMED FOR ROUND TRIP AIR FARE FROM BURBANK, CALIFORNIA,
TO SALT LAKE CITY AND RETURN IS NOT FOR ALLOWANCE. IN COMMENT NO. 1,
DATED JANUARY 17, 1958, BY THE PROPERTY DISPOSAL OFFICER, IT IS STATED:
"6. IN TELEPHONE CONVERSATION OF 15 NOVEMBER 1957, MR. MILLER (VICE
PRESIDENT OF UNITED MERCHANDISING CORPORATION) REQUESTED THAT HE BE
CONTACTED BY PHONE AND INFORMED AS TO WHAT ACTION HE SHOULD TAKE.
HOWEVER, PRIOR TO SUCH CALL, MR. MILLER ARRIVED AT THE DEPOT EARLY ON
THE MORNING OF 18 NOVEMBER 1957.'
THEREFORE, IT DOES NOT APPEAR THAT THE TRAVEL EXPENSE INCURRED BY MR.
MILLER WAS NECESSARY OR THAT IT WAS INCURRED AS A RESULT OF A REQUEST
OR AUTHORIZATION BY ANY GOVERNMENT AGENT. SEE 5 COMP. GEN. 187.
THE PAPERS TRANSMITTED WITH THE LETTER OF FEBRUARY 12, 1958, ARE
RETURNED HEREWITH.
B-135288, MAR. 6, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 14, 1958, FROM THE
ASSISTANT SECRETARY (LOGISTICS), FORWARDING AN ALLEGATION OF ERROR IN
THE BID SUBMITTED BY BELL TRANSFER AND STORAGE COMPANY, LAWTON,
OKLAHOMA, AFTER AWARD OF CONTRACT NO. DA-34-031-AIV-1376, DATED
SEPTEMBER 30, 1957.
THE FILE SUBMITTED WITH THE ASSISTANT SECRETARY'S LETTER INDICATES
THAT, IN RESPONSE TO THE SOLICITATION OF BIDS FOR THE DRAYAGE OF
HOUSEHOLD EFFECTS WITHIN AND BEYOND A FIFTEEN MILE RADIUS OF FORT SILL,
OKLAHOMA (ITEMS 1 AND 2), QUOTATIONS WERE RECEIVED FROM SEVEN FIRMS.
BELL TRANSFER AND STORAGE COMPANY OFFERED TO PERFORM THE SERVICES
COVERED BY ITEMS 1 AND 2 FOR $1,00 CWT AND $1.25 CWT, RESPECTIVELY. THE
SIX OTHER RESPONSIVE BIDS RANGED FROM $1.20 AND $1.48 PER HUNDRED WEIGHT
FOR THE TWO ITEMS TO $3.60 AND $3.80.
IN HIS REPORT OF DECEMBER 30, 1957, THE CONTRACTING OFFICER STATES
THAT, BECAUSE OF THE WIDE DIVERGENCE AMONG THE BIDS RECEIVED, THE BELL
TRANSFER AND STORAGE COMPANY WAS REQUESTED TO VERIFY ITS BID. THE BID
AS SUBMITTED WAS VERIFIED BY THE CONTRACTOR, WHEREUPON AWARD WAS MADE ON
SEPTEMBER 30, 1957. ON OR ABOUT NOVEMBER 8, 1957, THE CONTRACTOR ORALLY
ADVISED THE CONTRACTING OFFICER THAT ITS FIRM WAS LOSING MONEY ON THE
CONTRACT BY REASON OF THE PERFORMANCE OF CERTAIN SERVICES NOT REQUIRED
BY THE TERMS OF THE AGREEMENT. BY LETTER OF DECEMBER 11, 1957, THE
CONTRACTOR, IN EFFECT, ALLEGED AN ERROR IN ITS BID AND FURNISHED AN
ANALYSIS OF INCOME AND EXPENSE REGARDING THE WORK ORDERS HANDLED WITH
THE REQUEST THAT A RETROACTIVE ADJUSTMENT IN THE PRICES QUOTED BE MADE
SO AS TO AUTHORIZE PAYMENT ON THE BASIS OF $1.65 PER CWT.
THE BASIC QUESTION INVOLVED IN CASES SUCH AS THIS IS WHETHER A VALID
AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. 36
COMP. GEN. 27. OBVIOUSLY, AN EXAMINATION OF THE ABSTRACT OF BIDS
RECEIVED DOES NOT INDICATE THAT THE PRICE DIFFERENCES WERE SO GREAT THAT
THE LOW BID PRICE NECESSARILY MUST HAVE BEEN ERRONEOUS. ON THE OTHER
HAND, THE CONTRACTING OFFICER, BY REASON OF THE COMPARATIVE PRICES,
DEEMED IT HIS DUTY PRIOR TO AWARD TO VERIFY WHETHER THE BIDDER INTENDED
TO SUBMIT A BID OF $1.00 AND $1.25 FOR THE TWO ITEMS INVOLVED AND
INTENDED TO BE BOUND BY THE CONTRACTING OFFICER'S ACCEPTANCE THEREOF.
SUCH DUTY WAS COMPLETELY DISCHARGED WHEN, UPON BEING REQUESTED TO VERIFY
ITS BID, BELL TRANSFER AND STORAGE COMPANY VERIFIED THE PRICES QUOTED AS
CORRECT AND INDICATED THAT THEY SHOULD STAND. THE RULE IS WELL SETTLED
THAT WHERE A BIDDER IS AFFORDED A PROPER OPPORTUNITY TO VERIFY ITS BID
PRICE PRIOR TO AWARD, THE CONTRACTING OFFICER IS UNDER NO OBLIGATION TO
MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE CARNEGIE
STEEL COMPANY V. CONNELLY, 97A. 774; SHRIMPTON MFG. COMPANY V. BRIN,
125 S.W. 942.
ON THE BASIS OF THE PRESENT RECORD IT MUST THEREFORE BE CONCLUDED
THAT ANY ERROR WHICH WAS DISCOVERED IN THE BID PRICE AFTER VERIFICATION
WAS UNILATERAL--- NOT MUTUAL--- SALIGMAN ET AL. V. UNITED STATES, 56
F.SUPP. 505, 507; OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS.
249, 259, AND THAT ACCEPTANCE OF THE VERIFIED BID CONSUMMATED A VALID
AND BINDING 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. 75.
IN FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120,
163, THE COURT SAID THAT IT IS THE RESPONSIBILITY OF THE BIDDER ALONE TO
ESTIMATE THE PRICE AT WHICH HE WILL PERFORM, AND THE GOVERNMENT IS NOT
LIABLE FOR ANY LOSS WHICH RESULTS FROM AN IMPROVIDENT BID.
IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS ON WHICH PAYMENT IN
EXCESS OF THE CONTRACT PRICE MAY BE MADE TO THE CONTRACTOR. THE FACT
THAT THE CONTRACTOR, APPARENTLY OF ITS OWN VOLITION, PERFORMED CERTAIN
SERVICES NOT REQUIRED BY THE TERMS OF THE CONTRACT HAS NO BEARING ON THE
MATTER.
ONE SET OF PAPERS IN THE CASE IS BEING RETAINED. THE OTHER PAPERS
ARE RETURNED.
B-135293, MAR. 6, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 21, 1958, WITH
ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES
AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR WEST COAST WIRE ROPE AND RIGGING, INC., ALLEGES IT
MADE IN ITS BID ON WHICH CONTRACT NO. N246S-8872, DATED JANUARY 31,
1958, IS BASED.
BY SALES LETTER NO. SL-6-58-246 THE U.S. NAVAL AIR STATION, NORTH
ISLAND, SAN DIEGO, CALIFORNIA, REQUESTED BIDS--- TO BE OPENED JANUARY
28, 1958--- FOR THE PURCHASE OF MISCELLANEOUS MATERIAL. THE COMPANY'S
BID OF $616.66 WAS THE HIGHEST RECEIVED FOR ITEM 55, STEEL STAIRS AND I
BEAMS, AND WAS ACCEPTED BY THE CONTRACT DATED JANUARY 31, 1958. BY
LETTER DATED FEBRUARY 5, 1958, THE CONTRACTOR ADVISED THE CONTRACTING
OFFICER THAT HE HAD MADE AN ERROR IN THAT HE HAD INTENDED TO BID ON ITEM
54, STEEL LINK ANCHOR CHAINS, AND THAT NO BID WAS INTENDED FOR ITEM 55.
THE CONTRACTOR HAD FURNISHED HIS WORKSHEETS ESTABLISHING HIS INTEREST IN
ITEM 54. THE NEXT HIGH BID RECEIVED ON ITEM 55 WAS $150 AND OF THE 15
OTHER BIDS RECEIVED ON THIS ITEM ONLY FOUR WERE MORE THAN $50.
FURTHERMORE, THE CONTRACTOR'S BID OF $616.66 ALLEGES THAT ON THE DAY THE
BIDS WERE OPENED, BUT PRIOR TO AWARD, HE INDICATED TO THE CONTRACTING
OFFICER THAT HE WAS INTERESTED IN THE ANCHOR CHAIN LISTED UNDER ITEM 54.
THE EVIDENCE OF RECORD INDICATES THAT AN ERROR, IN FACT, WAS MADE,
AND SINCE THE VERY WIDE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE
OTHER BIDS ON ITEM 54 APPEARS SUFFICIENT TO HAVE INDICATED THE
PROBABILITY OF AN ERROR IN THE BID, IT SHOULD NOT HAVE BEEN ACCEPTED
WITHOUT REQUESTING VERIFICATION.
ACCORDINGLY, THE CONTRACT SHOULD BE CANCELED WITHOUT LIABILITY TO THE
COMPANY. THE PAPERS ARE RETURNED.
B-135342, MAR. 6, 1958
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 26, 1958, WITH
ENCLOSURES, REQUESTING A DECISION WHETHER THE BID OF THE GOODYEAR TIRE
AND RUBBER COMPANY, AKRON, OHIO, DATED FEBRUARY 7, 1958, SHOULD BE
DISREGARDED IN MAKING AWARD BECAUSE OF AN ERROR ALLEGED AFTER THE DATE
OF OPENING OF BIDS.
IN RESPONSE TO THE GOVERNMENT PRINTING OFFICE INVITATION SOLICITING
BIDS TO SUPPLY 60 RUBBER BLANKETS FOR USE ON PARTICULAR OFFSET PRESSES,
THE GOODYEAR TIRE AND RUBBER COMPANY BID $2.64 PER UNIT. THE SEVEN
OTHER BIDS RECEIVED RANGED FROM $3.30 TO $6.99 PER UNIT. SUBSEQUENTLY,
GOODYEAR ADVISED THAT, IN TRANSFERRING ITS PRICE FROM ITS WORKING PAPER
TO ITS BID, AN INADVERTENT TYPOGRAPHICAL ERROR RESULTED IN ITS UNIT
PRICE BEING STATED AS $2.64 INSTEAD OF $5.64. THE PHOTOSTAT OF THE
WORKING PAPER SUBMITTED BY GOODYEAR IN ONE PLACE SHOWS A PRICE OF "$5.76
EACH-NET" AND IN ANOTHER PLACE SHOWS "TERMS * * * 2 PERCENT-10TH PROX
EQUALS $5.64/NET AFTER 2 PERCENT.'
THE CONTRACTING OFFICER STATES THAT THESE BLANKETS WERE PURCHASED
LAST IN APRIL 1957 AT A PRICE OF $3.70 EACH AND THAT THE BIDDER HAS
EXPLAINED THE ERROR IN BID TO HIS SATISFACTION.
IN THE CIRCUMSTANCES, SINCE THERE IS EVIDENCE THAT THE GOODYEAR TIRE
AND RUBBER COMPANY DID MAKE AN ERROR AS ALLEGED AND SINCE THE
CONTRACTING OFFICER BELIEVES THAT THE BID IS ERRONEOUS, THE BID SHOULD
BE DISREGARDED IN AWARDING A CONTRACT FOR THE SUBJECT BLANKETS.
B-135345, MAR. 6, 1958
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1958, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR ELBE FILE AND BINDER COMPANY, INC., ALLEGES IT MADE
IN ITS BID DATED FEBRUARY 5, 1958.
THE GOVERNMENT PRINTING OFFICE, UNDER JACKET NO. 453271, REQUESTED
BIDS FOR THE PRODUCTION AND FURNISHING OF 200,000 FOLDERS. IN RESPONSE
THERETO ELBE FILE AND BINDER COMPANY, INC., SUBMITTED A BID DATED
FEBRUARY 5, 1958, OF $0.013 EACH NET, OR A TOTAL PRICE OF $6,200. TWO
OTHER BIDS RECEIVED WERE FOR $5,100 AND $5,594.
YOU STATE THAT WHEN EVALUATING THE BIDS THE CONTRACTING OFFICER NOTED
THAT THE UNIT PRICE OF .013 ENTERED ON THE BID FORM BY THE ELBE FILE AND
BINDER COMPANY, INC., WAS PROBABLY IN ERROR BECAUSE IT DID NOT AGREE
WITH THE NET AMOUNT OF $6,200 WHEN THE UNIT PRICE WAS EXTENDED BY THE
NUMBER OF COPIES AND THAT THE EXTENSION BASED ON 200,000 COPIES AT ?013
RESULTS IN AN AMOUNT OF $2,600. IT IS FURTHER STATED THAT THE
CONTRACTING OFFICER DISCUSSED THE PROBABLE ERROR WITH THE BIDDER AND IT
WAS EXPLAINED THAT THE UNIT PRICE WAS IN ERROR SINCE THE FIGURES HAD
BEEN TRANSPOSED WHEN TRANSFERRED FROM THE ORIGINAL ESTIMATE SHEET AND
THAT THE BIDDER STATED THE UNIT PRICE SHOULD BE $0.031 WHICH WHEN
EXTENDED WOULD RESULT IN A TOTAL OF $6,200, THE AMOUNT SHOWN IN THE NET
AMOUNT COLUMN.
YOU ALSO STATE THAT THE BIDDER CONFIRMED THE ERROR IN BID IN A LETTER
OF FEBRUARY 18, 1958, AND SUBMITTED A PHOTOSTAT OF ITS ORIGINAL BID,
WHICH SUBSTANTIATES ITS CLAIM; THAT THE CONTRACTING OFFICER STATES THAT
AT THE OPENING OF THE BIDS IT WAS NOTICED THAT ON THE BID FORM UNDER
DESCRIPTION THE FOLLOWING WORDS WERE "X-ED" OUT ".031 EACH NET," AND
THAT IT WOULD APPEAR THE BIDDER ENTERED THIS INFORMATION IN THE
DESCRIPTION COLUMN AND WHEN MOVING IT OVER TO THE UNIT PRICE COLUMN, THE
FIGURES WERE TRANSPOSED. THE CONTRACTING OFFICER HAS STATED HE BELIEVES
THE BID TO BE ERRONEOUS SINCE THE UNIT RATE OF ?013 IS NOT A FAIR AND
REASONABLE PRICE FOR A FOLDER.
ERROR IS APPARENT ON THE FACE OF THE BID SINCE THE UNIT PRICE OF
$0.013 MULTIPLIED BY THE QUANTITY OF 200,000 DOES NOT EQUAL THE AMOUNT
OF $6,200 INSERTED IN THE NET AMOUNT COLUMN. IF THE UNIT PRICE FOR THE
FOLDER BE CORRECTED TO $0.031 THE TOTAL WILL EQUAL $6,200. THUS, THERE
APPEARS NO ROOM FOR DOUBT THAT THE BIDDER MADE AN ERROR IN ITS BID AS
ALLEGED. ACCORDINGLY, THE BID OF THE ELBE FILE AND BINDER COMPANY,
INC., MAY BE DISREGARDED.
THE PAPERS, EXCEPT THE LETTER FROM THE BIDDER DATED FEBRUARY 18,
1958, ARE RETURNED.
B-134580, MAR. 5, 1958
TO REILLY, WELLS AND RHODES:
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 14, 1958, REQUESTING
RECONSIDERATION OF OUR DECISION OF JANUARY 10, 1958 (B-134580), IN WHICH
WE HELD THAT FAILURE OF ROBERTS E. LATIMER, JR., INC., TO REQUEST A
WRITTEN INTERPRETATION FROM THE CONTRACTING OFFICER WITH RESPECT TO THE
SPECIFICATION REQUIREMENTS ON BORROW MATERIAL, DID NOT REQUIRE REJECTION
OF A LOW BID, SUBMITTED BY THAT COMPANY, WHICH EXCLUDED THE BIDDER FROM
LIABILITY FOR BORROWED MATERIAL.
YOUR ORIGINAL PROTEST WAS BASED UPON A PROVISION IN THE INVITATION
FOR BIDS ON DISTRICT OF COLUMBIA PROJECT NO. C12-C-56A WHICH READS AS
FOLLOWS:
"REQUESTS FOR INTERPRETATIONS OF SPECIFICATIONS, RECEIVED IN WRITING
BY THE OFFICE OF DESIGN AND ENGINEERING NOT LATER THAN FIVE (5) DAYS
PRIOR TO THE DATE OF OPENING OF BIDS WILL BE ANSWERED IN THE FORM OF
ADDENDA TO THE SPECIFICATIONS, COPIES OF WHICH WILL BE MAILED TO ALL
BIDDERS NOT LATER THAN THREE (3) DAYS BEFORE DATE OF OPENING OF BIDS.
"VERBAL REQUEST FOR INTERPRETATIONS CANNOT BE ANSWERED.'
YOUR PRESENT REQUEST, IN EFFECT, REITERATES YOUR ORIGINAL CONTENTION
THAT SUCH PROVISION REQUIRED EACH BIDDER TO EITHER SUBMIT A WRITTEN
REQUEST FOR INTERPRETATIONS OR TO SUBMIT A BID WHICH WAS FREE OF ANY
INTERPRETATION OF THE SPECIFICATIONS. ADDITIONALLY, YOU CONTEND THAT
AGREEMENT BY THE CONTRACTING OFFICER, AND BY THIS OFFICE, WITH THE
BIDDER'S INTERPRETATION IS IMMATERIAL, AND THAT THE CONCEPT OF
COMPETITIVE BIDDING, WHICH IS BASED UPON UNIFORMITY IN BIDS, WILL BE
DESTROYED BY PERMITTING SUCH INTERPRETATIONS SINCE BIDDERS WOULD BE
ENTITLED TO BE RELEASED FROM THEIR BIDS IN THE EVENT THE CONTRACTING
OFFICER DOES NOT AGREE WITH THE BIDDER'S INTERPRETATION.
A LITERAL INTERPRETATION OF THE ABOVE-QUOTED PROVISION OF THE
INVITATION DOES NO MORE THAN TO ESTABLISH A PROCEDURE WHICH A BIDDER
MUST FOLLOW IN THE EVENT HE DESIRES CLARIFICATION OF THE EXTENT OF
PERFORMANCE WHICH THE CONTRACTING OFFICER INTENDS TO REQUIRE UNDER THE
SPECIFICATIONS. WHILE COMPLIANCE WITH SUCH PROCEDURE MAY WELL BE
DESIRABLE, WE ARE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE
PROVISION PLACES AN OBLIGATION UPON A BIDDER TO EITHER REQUEST AN
INTERPRETATION OR TO FORFEIT ALL RIGHT TO CONSIDERATION OF A BID WHICH
IS SUBJECT TO AN INTERPRETATION OF THE SPECIFICATIONS.
THE CONCEPT OF COMPETITIVE BIDDING REQUIRES THAT ALL BIDDERS BE GIVEN
AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS, AND THE RULE IS SETTLED
THAT A BID IS NOT COMPETITIVE, AND THUS CANNOT BE CONSIDERED FOR AWARD,
WHEN IT IS SUBJECT TO QUALIFICATIONS WHICH REDUCE THE BIDDER'S OFFER OF
PERFORMANCE TO LESS THAN THAT REQUESTED IN THE INVITATION. HOWEVER, THE
QUESTION OF WHETHER BIDS ARE COMPETITIVE DEPENDS UPON WHETHER THE
BIDDERS ARE OFFERING TO ENTER INTO IDENTICAL LEGAL OBLIGATIONS WITH THE
UNITED STATES. THUS, IN THE INSTANT CASE, THE QUESTION OF WHETHER THE
BID SUBMITTED BY ROBERTS E. LATIMER, JR., INC., WAS COMPETITIVE DEPENDED
UPON WHETHER THE INTERPRETATION TO WHICH THE BID WAS SUBJECT WOULD LIMIT
THE PERFORMANCE OBLIGATION OF THE BIDDER TO LESS THAN THAT WHICH WOULD
BE REQUIRED OF A BIDDER WHO SUBMITTED A BID NOT CONTAINING SUCH
INTERPRETATION. SEE 36 COMP. GEN. 725; 16 ID. 824; 15 ID. 201. AS
STATED IN OUR DECISION OF JANUARY 10, 1958, THE INVITATION MADE NO
REFERENCE TO BORROW MATERIAL AND WE ARE OF THE OPINION THAT THE LEGAL
OBLIGATIONS CREATED BY THE ACCEPTANCE OF ANY OTHER BID SUBMITTED BY
ROBERTS E. LATIMER, JR., INC., OR BY THE ACCEPTANCE OF ANY OTHER BID
WHICH DID NOT SPECIFICALLY EXCLUDE LIABILITY FOR BORROW MATERIAL, WOULD
HAVE BEEN IDENTICAL. THE DISTRICT OF COLUMBIA THEREFORE WOULD NOT HAVE
BEEN JUSTIFIED, UNDER THE COMPETITIVE BIDDING STATUTES, IN REJECTING THE
LOW BID ON THE GROUND THAT IT WAS NOT COMPETITIVE. B-100576, MARCH 20,
1951.
WHILE WE APPRECIATE THE FORCE OF YOUR ARGUMENT THAT THE BENEFITS TO
BE DERIVED FROM UNIFORMITY IN THE BASES UPON WHICH BIDS ARE SUBMITTED
PRECLUDE DETERMINATIONS OF THIS NATURE PREDICATED SOLELY UPON THE
INTERPRETATION INTENDED BY THE CONTRACTING OFFICER, WE BELIEVE THE
INTERESTS OF BOTH THE BIDDERS AND THE UNITED STATES WILL BE ADEQUATELY
PROTECTED BY DETERMINATIONS OF THIS OFFICE RELATIVE TO THE EXTENT OF
PERFORMANCE WHICH MAY LEGALLY BE REQUIRED UNDER BOTH THE INVITATION AND
THE BIDS SUBMITTED THEREUNDER.
B-134850, MAR. 5, 1958
TO ROBERT G. HENRY, 388 27 96, PN1, USN:
REFERENCE IS MADE TO YOUR REQUEST OF NOVEMBER 21, 1957, FOR REVIEW OF
THE SETTLEMENT DATED MARCH 11, 1957, WHICH DISALLOWED YOUR CLAIM FOR
STATION PER DIEM ALLOWANCE AT THE TRAVEL PER DIEM RATE FOR THE PERIOD
JULY 14 TO AUGUST 13, 1954, INCIDENT TO YOUR ASSIGNMENT TO DUTY AT THE
FLEET TRAINING CENTER, PEARL HARBOR, TERRITORY OF HAWAII.
SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
814, 37 U.S.C. 253, PROVIDES THAT THE SECRETARIES OF THE UNIFORMED
SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES
ON DUTY OUTSIDE THE UNITED STATES, WHETHER OR NOT IN A TRAVEL STATUS, OF
A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND
THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE AND OTHER
NECESSARY INCIDENTAL EXPENSES. REGULATIONS PROMULGATED UNDER THAT
AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH
4303-2A, CHANGE 22, APRIL 1, 1954, OF THOSE REGULATIONS ON WHICH YOU
APPARENTLY BASE YOUR CLAIM, PROVIDES IN PERTINENT PART AS FOLLOWS:
"* * * UPON INITIAL ASSIGNMENT TO A PERMANENT STATION OUTSIDE THE
UNITED STATES AND UPON SUBSEQUENT TRANSFER FROM ONE PERMANENT STATION
OUTSIDE THE UNITED STATES TO ANOTHER PERMANENT STATION OUTSIDE THE
UNITED STATES REQUIRING A CHANGE IN RESIDENCE, A MEMBER WHO IS NOT
FURNISHED GOVERNMENT QUARTERS FOR HIMSELF OR FOR HIMSELF AND HIS
DEPENDENTS, IF WITH DEPENDENTS, AT HIS NEW DUTY STATION AND WHO IS
REQUIRED TO SECURE TEMPORARY LODGINGS FOR HIMSELF OR FOR HIMSELF AND/OR
HIS DEPENDENTS, IF WITH DEPENDENTS, FOR ANY PERIOD DURING THE FIRST 45
DAYS AFTER ARRIVAL THEREAT SHALL BE ENTITLED TO A STATION PER DIEM
ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE PRESCRIBED FOR THAT
AREA, SUBJECT TO THE DEDUCTIONS PRESCRIBED IN PAR. 4254 WHERE GOVERNMENT
MESS IS AVAILABLE FOR THE MEMBER OR FOR THE MEMBER AND HIS DEPENDENTS,
IF WITH DEPENDENTS. * * *"
AS WAS STATED IN 33 COMP. GEN. 451, THE APPARENT PURPOSE OF THE
REGULATIONS IN ALLOWING PAYMENT OF STATION PER DIEM ALLOWANCE AT THE
TRAVEL RATE FOR PERIODS UP TO 45 DAYS AFTER ARRIVAL AT A STATION OUTSIDE
THE UNITED STATES IS TO PROVIDE REIMBURSEMENT FOR THE MORE THAN NORMAL
EXPENSES INCURRED AT HOTELS AND RESTAURANTS PENDING ASSIGNMENT OF
GOVERNMENT QUARTERS, OR WHILE THE MEMBER CONCERNED MAKES ARRANGEMENTS
FOR SECURING OTHER PERMANENT LIVING ACCOMMODATIONS. THE CERTIFICATION
WHICH ACCOMPANIED YOUR ORIGINAL CLAIM "THAT GOVERNMENT QUARTERS WERE NOT
FURNISHED FOR MYSELF AND SAID DEPENDENTS FROM 13 JULY 1954 TO 13 AUGUST
1954; THAT I RESIDED WITH SAID DEPENDENTS AT 1609 ALA WAI BOULEVARD,
APT. B., HONOLULU, T.H. DURING THE ABOVE DATES * * *" TOGETHER WITH THE
ADMINISTRATIVE REPORT THAT GOVERNMENT QUARTERS AND MESSING FACILITIES
WERE NOT AVAILABLE DURING THIS PERIOD, INDICATES THAT IT IS ON THE BASIS
OF UNAVAILABILITY OF GOVERNMENT QUARTERS AND MESS ALONE THAT YOUR CLAIM
FOR STATION PER DIEM ALLOWANCES IS PREMISED.
THE MERE FACT THAT YOU WERE NOT ASSIGNED GOVERNMENT QUARTERS DURING
THIS PERIOD, OR THAT SUCH QUARTERS SUBSEQUENTLY MAY HAVE BEEN ASSIGNED
YOU, IS NOT DETERMINATIVE OF YOUR RIGHT TO TEMPORARY STATION PER DIEM
ALLOWANCES. AS INDICATED ABOVE, YOUR ENTITLEMENT TO SUCH ALLOWANCES IS
DEPENDENT UPON WHETHER YOU NECESSARILY OCCUPIED HOUSING OF THE TYPE
USUALLY OCCUPIED BY TRANSIENTS AT A COST GREATER THAN THAT WHICH
ORDINARILY WOULD BE INCURRED IN OCCUPYING HOUSING ON A LONG-TERM BASIS.
THERE IS NOTHING IN THE RECORD TO SHOW THAT THE QUARTERS OCCUPIED BY
YOU WERE OF A TYPE DIFFERENT FROM THAT GENERALLY OCCUPIED BY OTHERS IN
HONOLULU ON A PERMANENT BASIS. IF, AS YOU STATE, OTHER PERSONNEL
SIMILARLY SITUATED HAVE RECEIVED THE TEMPORARY STATION ALLOWANCES SUCH
PAYMENTS WERE ERRONEOUS AND AFFORD NO LEGAL BASIS FOR THE PAYMENT OF
SUCH ALLOWANCES IN YOUR CASE.
ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF MARCH 11, 1957,
MUST BE, AND IS, SUSTAINED.
B-134994, MAR. 5, 1958
TO SERGEANT CHARLES A. FISHER:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1958, IN
EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 13, 1957, WHICH
DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM NEW
YORK, NEW YORK, TO ULM, GERMANY.
THE 8TH INFANTRY DIVISION, OF WHICH YOU WERE A MEMBER, WAS
TRANSFERRED FROM FORT CARSON, COLORADO, TO BREMERHAVEN, GERMANY, BY
MOVEMENT ORDER NO. 1, DATED FEBRUARY 29, 1956. WHILE IT APPEARS YOU DID
NOT HAVE A DEPENDENT ON THAT DATE, THE RECORD INDICATES YOU WERE MARRIED
PRIOR TO THE DATE ON WHICH YOU WERE REQUIRED TO PROCEED TO YOUR NEW
STATION. CONCURRENT TRAVEL OF YOUR DEPENDENT WAS NOT AUTHORIZED. UPON
YOUR ARRIVAL IN GERMANY YOU OBTAINED PRIVATE HOUSING FOR YOUR WIFE,
GOVERNMENT QUARTERS NOT BEING AVAILABLE. PRESUMABLY YOU APPLIED FOR
TRANSPORTATION FOR YOUR WIFE TO YOUR OVERSEAS STATION. HOWEVER, PRIOR
TO THE ISSUANCE OF ORDERS AUTHORIZING HER TRANSPORTATION YOU ARRANGED
FOR HER TRAVEL AT PERSONAL EXPENSE. SHE TRAVELED FROM COLORADO SPRINGS,
COLORADO, TO ULM, GERMANY, BETWEEN THE DATES OF AUGUST 15 AND DECEMBER
7, 1956. REIMBURSEMENT FOR THE LAND TRAVEL IN THE UNITED STATES WAS
EFFECTED BY THE DEPARTMENT OF THE ARMY.
YOUR CLAIM FOR REIMBURSEMENT FOR THE OCEAN TRAVEL WAS DISALLOWED BY
THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. YOUR
PRESENT LETTER FURNISHES NO INFORMATION OR EVIDENCE NOT PREVIOUSLY
CONSIDERED. IT EVIDENTLY IS YOUR BELIEF, HOWEVER, THAT THERE MAY BE
SOME BASIS FOR THE ALLOWANCE OF YOUR CLAIM.
THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE
ADMINISTRATIVELY RESTRICTED, SUSPENDED OR DENIED FOR REASONS OF MILITARY
NECESSITY OR EXPEDIENCY. CULP V. UNITED STATES, 76 C.CLS. 507. THE
STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT
EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE
UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR
RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES MAY
PRESCRIBE. WHEN A MEMBER IS ORDERED TO DUTY OVERSEAS AND HIS DEPENDENTS
ARE NOT AUTHORIZED TO TRAVEL TO THE NEW STATION AT THE SAME TIME, JOINT
TRAVEL REGULATIONS PROVIDE THAT THE DEPENDENTS MAY TRAVEL FROM THE OLD
STATION TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE AND
SUBSEQUENTLY FROM THAT PLACE TO THE MEMBER'S CURRENT DUTY STATION.
THOSE REGULATIONS FURTHER PROVIDE THAT TRAVEL OF DEPENDENTS TO OVERSEAS
STATIONS MUST BE BY GOVERNMENT TRANSPORTATION IF AVAILABLE.
AT THE TIME HERE INVOLVED TRANSPORTATION OF DEPENDENTS TO OVERSEAS
STATIONS TO WHICH, IN GENERAL COORDINATED TRAVEL OF THE MEMBER AND HIS
DEPENDENTS WAS NOT AUTHORIZED, WAS GOVERNED BY A PRIORITY SYSTEM AS
PUBLISHED IN SPECIAL REGULATIONS 55-765-5, THE PURPOSE OF WHICH WAS TO
ESTABLISH A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY
OVERSEAS SERVICE. THE EFFECT OF THE REGULATIONS WAS TO RESTRICT
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UNTIL THEIR
TRANSPORTATION, ON A PRIORITY BASIS, WAS AUTHORIZED BY THE OVERSEAS
COMMANDER CONCERNED. SINCE NO AUTHORIZATION WAS ISSUED FOR YOUR WIFE'S
TRAVEL, THERE IS NO LEGAL BASIS FOR REIMBURSING YOU FOR HER OCEAN
TRAVEL. FURTHER, THE RECORD SHOWS THAT HAD YOUR WIFE'S TRAVEL BEEN
AUTHORIZED, GOVERNMENT TRANSPORTATION WAS AVAILABLE AND WOULD HAVE BEEN
FURNISHED.
ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 13, 1957, WAS CORRECT AND IS
SUSTAINED. COPIES OF THE
B-135028, MAR. 5, 1958
TO THE SECRETARY OF THE NAVY:
THE QUESTION OF THE PROPRIETY OF A PROVISION IN NAVY CIVILIAN
PERSONNEL INSTRUCTIONS HAS BEEN DIRECTED TO MY ATTENTION. THE PROVISION
IN QUESTION IS NCPI 225.4-3-K.
"K. RATE OF SUBSISTENCE.--- THE ANNUAL RATE FOR FULL SUBSISTENCE
WILL BE ESTABLISHED ON THE BASIS OF THE COMPLETE AGGREGATE COST OF THREE
MEALS A DAY, SEVEN DAYS A WEEK, FOR ELEVEN MONTHS, INCLUDING THE COST OF
PREPARATION AND SERVING OF THE MEALS. A PROPORTIONATE CHARGE WILL BE
MADE WHEN EMPLOYEES TAKE LESS THAN FULL SUBSISTENCE ON A PAYROLL
DEDUCTION BASIS. NO REFUND OR CREDIT FOR MEALS NOT TAKEN DURING PERIODS
OF ANNUAL AND SICK LEAVE WILL BE ALLOWED EXCEPT WHEN AN EMPLOYEE IS ON
SICK LEAVE FOR MORE THAN TEN CONSECUTIVE WORKING DAYS. IN CASE OF
REFUND OR CREDIT FOR MEALS NOT TAKEN DURING A SINGLE PERIOD OF ILLNESS,
SUCH REFUND OR CREDIT SHALL BEGIN WITH THE ELEVENTH CONSECUTIVE WORKING
DAY.
(1) "ANNUAL LEAVE" AS USED ABOVE, INCLUDES THE PERIOD OF TIME FOR
WHICH LUMP SUM LEAVE PAYMENT IS MADE (COMP. GEN. B-92441 OF 24 APRIL
1950 TO SECNAV - UNPUBLISHED)"
UNDER BUREAU OF THE BUDGET CIRCULAR A-29, JULY 16, 1952, THE ANNUAL
CHARGE FOR FULL SUBSISTENCE (THREE MEALS A DAY, SEVEN DAYS A WEEK) IS
BASED UPON THE COMPLETE AGGREGATE COST OF MEALS FOR 11 MONTHS ONLY.
HENCE, IN A CASE WHERE THE EMPLOYEE FAILS TO TAKE ANNUAL LEAVE DURING A
YEAR HE WILL HAVE PAID ONLY ELEVEN-TWELFTHS OF THE COST OF SUCH MEALS,
AND IF AT THE END OF THAT YEAR HE IS SEPARATED AND PAID A FULL LUMP-SUM
PAYMENT, THE GOVERNMENT WILL NOT HAVE BEEN REIMBURSED THE ADDITIONAL
ONE-TWELFTH COST OF MEALS FURNISHED THE EMPLOYEE FOR WHICH NO PAYROLL
DEDUCTIONS WERE MADE.
THE EFFECT OF THE LANGUAGE IN OUR DECISION OF APRIL 24, 1950,
B-92441--- "IN SIMILAR CASES ARISING IN THE FUTURE, WHEN THE ABOVE
REFERRED-TO POLICY IS STILL IN EFFECT, LUMP-SUM PAYMENTS SHOULD BE
REDUCED IN THE AMOUNT OF SUBSISTENCE FURNISHED TO THE EMPLOYEE PRIOR TO
SEPARATION AND FOR WHICH CORRESPONDING PAYROLL DEDUCTIONS HAVE NOT BEEN
MADE"--- IS MERELY TO REQUIRE THAT THE ADDITIONAL ONE-TWELFTH COST OF
MEALS OWING BY AN EMPLOYEE BE DEDUCTED FROM ANY LUMP-SUM LEAVE PAYMENT
TO WHICH HE IS ENTITLED. HOWEVER, CONTRARY TO THE NCPI PROVISION QUOTED
ABOVE, THAT DECISION DOES NOT REQUIRE THAT AN EMPLOYEE'S LUMP-SUM LEAVE
PAYMENT BE REDUCED BY THE DETERMINED VALUE OF SUBSISTENCE FOR EVERY DAY
INCLUDED IN THE PERIOD COVERED BY SUCH LUMP-SUM PAYMENT. IN THAT
CONNECTION, WE NOTE THAT THE NORMAL PERIOD COVERED BY A LEAVE BALANCE AT
26 DAYS IS 38 DAYS (EXCLUDING HOLIDAYS). A LITERAL APPLICATION OF THE
NCPI PROVISION WOULD RESULT IN A REDUCTION OF THE EMPLOYEE'S LUMP-SUM
LEAVE PAYMENT BY MORE THAN ONE-TWELFTH OF THE COST OF THE MEALS
FURNISHED BECAUSE THE CHARGE WOULD BE COMPUTED UPON A 38 RATHER THAN
30-DAY BASIS. MOREOVER, SITUATIONS MAY ARISE WHERE EMPLOYEES WHO
TRANSFER TO A POSITION SUBJECT TO THE NCPI INSTRUCTION INVOLVED WOULD
HAVE TO THEIR CREDIT SUBSTANTIAL AMOUNTS OF ACCUMULATED LEAVE WHICH
THEREAFTER MIGHT FORM THE BASIS OF A LUMP-SUM LEAVE PAYMENT. THE
IMPROPRIETY OF A LITERAL APPLICATION OF THE INSTRUCTION IN SUCH A
SITUATION IS APPARENT.
IN VIEW THEREOF, WE REQUEST THAT CONSIDERATION BE GIVEN TO
MODIFICATION OF THE NCPI PROVISION IN QUESTION TO PRECLUDE OVERCHARGES
TO EMPLOYEES. WE SHOULD APPRECIATE YOUR ADVISING US OF THE
B-135047, MAR. 5, 1958
TO AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF THE INTERIOR:
YOUR LETTER OF JANUARY 22, 1958, REQUESTS A DECISION ON THE LEGALITY
OF PAYMENT OF AN ATTACHED PAYROLL WHICH IS STATED IN FAVOR OF WILLIAM P.
CADY FOR A GROSS AMOUNT OF $137.17.
THE PERTINENT FACTS REPORTED BY YOU ARE THAT MR. CADY RECEIVED
COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT FROM MARCH 1
TO SEPTEMBER 1, 1957, BECAUSE OF AN INJURY SUSTAINED ON JUNE 19, 1956,
WHILE PERFORMING OFFICIAL DUTIES AS A PLUMBER-PIPEFITTER. AS OF
SEPTEMBER 1, 1957, THE BUREAU OF EMPLOYEES' COMPENSATION TERMINATED THE
COMPENSATION PAYMENTS AND APPROVED A SCHEDULED AWARD OF $84.22 PER WEEK
TO BE PAID UNTIL JUNE 17, 1959. THE PROPOSED PAYMENT WOULD REPRESENT
ANNUAL LEAVE COMPUTED OVER THE PERIOD DECEMBER 27, 1957, THROUGH JANUARY
3, 1958, AND INCLUDES 12 HOURS' PAY FOR THE HOLIDAYS, DECEMBER 31, 1957,
AND JANUARY 1, 1958.
SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED,
5 U.S.C. 757, PROVIDES IN EFFECT THAT AS LONG AS AN EMPLOYEE IS IN
RECEIPT OF DISABILITY COMPENSATION UNDER THE ACT OR, IF HE HAS BEEN PAID
A LUMP-SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION
OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE
CONTINUED, HE SHALL NOT BE ENTITLED TO RECEIVE FROM THE UNITED STATES
ANY OTHER SALARY, PAY, OR REMUNERATION WHATSOEVER, EXCEPT IN RETURN FOR
SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSION FOR SERVICES IN THE ARMY
OR NAVY OF THE UNITED STATES. SECTION 8 OF THE COMPENSATION ACT, AS
AMENDED, 5 U.S.C. 758, PROVIDES THAT IF AT THE TIME THE DISABILITY
BEGINS THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT HE MAY USE
SUCH LEAVE UNTIL IT IS EXHAUSTED, IN WHICH CASE HIS DISABILITY
COMPENSATION SHALL NOT BEGIN TO RUN UNTIL THE ANNUAL OR SICK LEAVE HAS
CEASED.
PAYMENTS FOR ANNUAL LEAVE IN A CERTAIN SENSE REPRESENT COMPENSATION
FOR SERVICES PREVIOUSLY RENDERED. HOWEVER, CONSIDERING THE INHIBITION
AGAINST PAYMENTS OF DISABILITY COMPENSATION WHERE THERE IS AN ELECTION
TO USE ANNUAL AND SICK LEAVE UNTIL SUCH LEAVE IS EXHAUSTED IN SECTION 8
OF THE ACT AND THE PROHIBITION OF CONCURRENT PAYMENTS OF DISABILITY
COMPENSATION AND OTHER REMUNERATION IN SECTION 7 (A) "EXCEPT IN RETURN
FOR SERVICES ACTUALLY PERFORMED," WE CONCLUDE THAT THE CONGRESS DID NOT
AUTHORIZE THE PAYMENT OF LEAVE FOR PERIODS FOR WHICH THE EMPLOYEE ALSO
WAS IN RECEIPT OF DISABILITY COMPENSATION, THAT IS, FOR THIS PURPOSE THE
CONGRESS DID NOT REGARD PAYMENT FOR ANNUAL LEAVE AS SYNONYMOUS WITH
REMUNERATION FOR SERVICES ACTUALLY PERFORMED. ACCORDINGLY, THE PAYROLL,
WHICH IS RETURNED, MAY NOT LEGALLY BE CERTIFIED FOR PAYMENT. SEE, IN
THIS CONNECTION, 29 COMP. GEN. 73, ID. 296.
B-135053, MAR. 5, 1958
TO MR. COY LEE ROY SHUMATE:
LETTER OF DECEMBER 2, 1957, WRITTEN IN YOUR BEHALF BY KING AND KING,
YOUR ATTORNEYS, REQUESTS RECONSIDERATION OF THAT PORTION OF OFFICE
SETTLEMENTS OF DECEMBER 9, 1955, WHICH DENIED ADJUSTED RETIRED PAY FOR
THE PERIOD APRIL 1, 1932, THROUGH OCTOBER 31, 1940, BASED ON THE SANDERS
FORMULA (SANDERS V. UNITED STATES, 120 C.CLS. 501) FOR THE REASON THAT
ACTIVE DUTY PERFORMED OTHER THAN DURING A WAR EMERGENCY PERIOD MAY NOT
BE COUNTED TO INCREASE RETAINER OR RETIRED PAY. RECONSIDERATION IS
REQUESTED FOR THIS PORTION OF YOUR CLAIM ON THE BASIS OF THE DECISION OF
THE COURT OF CLAIMS IN THE CASE OF WILLIAM SEBASTIAN EBINGER, ET AL.
(HENRY GRISSING, PLAINTIFF NO. 79) V. THE UNITED STATES, C.CLS. NO.
49615, DECIDED OCTOBER 9, 1957, WHEREIN THE COURT HELD THAT ALL PERIODS
OF EXTENDED ACTIVE DUTY PERFORMED BY SIXTEEN-YEAR FLEET RESERVISTS AFTER
JULY 1, 1925, MAY BE COUNTED IN COMPUTING THEIR RETAINER OR RETIRED PAY
UNDER SECTION 208 OF THE 1946 AMENDMENT TO THE NAVAL RESERVE ACT OF
1938, WHETHER SUCH ADDITIONAL EXTENDED ACTIVE DUTY IS PERFORMED DURING
TIME OF NATIONAL EMERGENCY OR DURING PEACE TIME. IN THE LETTER OF
DECEMBER 2, 1957, YOUR ATTORNEYS ALSO REQUEST THAT YOUR CLAIM BE AMENDED
TO COVER CONSIDERATION OF THE PERIOD FROM AUGUST 10, 1946, THROUGH
SEPTEMBER 30, 1949, IN ACCORDANCE WITH THE TWO AND ONE-HALF PERCENT
FORMULA PROVIDED FOR IN SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, AS
AMENDED, 60 STAT. 993, 34 U.S.C. 854C, THE USE OF WHICH WAS AUTHORIZED
BY THE DECISION OF THE COURT OF CLAIMS IN HULSE V. UNITED STATES, 133
C.CLS. 848, DECIDED JANUARY 21, 1956.
SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C.
71A, PROVIDES:
"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.'
YOUR CLAIMS FOR INCREASED RETAINER AND RETIRED PAY FOR THE PERIOD
APRIL 1, 1932, THROUGH OCTOBER 30, 1940, AND NOVEMBER 17, 1945, THROUGH
AUGUST 9, 1946, BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE
FLEET RESERVE ACCRUED ON AUGUST 10, 1946, THE DATE OF APPROVAL OF THE
STATUTE GRANTING RETROACTIVE AND PROSPECTIVE INCREASES IN RETAINER AND
RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE
FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE PERIOD
AUGUST 10, 1946, THROUGH DECEMBER 31, 1948, ACCRUED DAY TO DAY FROM
AUGUST 10, 1946, TO DECEMBER 31, 1948. ALL YOUR CLAIMS FOR INCREASED
RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE SANDERS FORMULA
WERE FILED WITH US WITHIN TEN YEARS AFTER AUGUST 10, 1946, AND THUS WERE
NOT AFFECTED BY THE TEN-YEAR STATUTE OF LIMITATIONS QUOTED ABOVE.
HOWEVER, YOUR AMENDED CLAIM FOR INCREASED RETIRED PAY ON THE HULSE
FORMULA FOR THE PERIOD AUGUST 10, 1946, THROUGH SEPTEMBER 30, 1949, WAS
NOT FILED WITH US UNTIL DECEMBER 3, 1957. AN AMENDMENT TO A CLAIM IS A
NEW CLAIM INSOFAR AS THE ACT OF OCTOBER 9, 1940, IS CONCERNED. SEE OUR
DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED.
HENCE, THE PORTION OF YOUR AMENDED CLAIM UNDER THE HULSE DECISION
COVERING THE PERIOD PRIOR TO DECEMBER 3, 1947, IS BARRED FROM
CONSIDERATION BY THAT ACT.
THIS OFFICE LIKEWISE IS PRECLUDED FROM TAKING ANY ACTION WITH RESPECT
TO THE PERIOD OF THE CLAIM FROM JANUARY 1 TO SEPTEMBER 30, 1949,
INCLUSIVE, BY REASON OF THE PROVISIONS OF 28 U.S.C. 2517, AS FOLLOWS:
"/A) EVERY FINAL JUDGMENT RENDERED BY THE COURT OF CLAIMS AGAINST THE
UNITED STATES SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION THEREFOR,
ON PRESENTATION TO THE GENERAL ACCOUNTING OFFICE OF A CERTIFICATION OF
THE JUDGMENT BY THE CLERK AND CHIEF JUDGE OF THE COURT.
"/B) PAYMENT OF ANY SUCH JUDGMENT AND OF INTEREST THEREON SHALL BE A
FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND DEMANDS ARISING
OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'
THE RECORD DISCLOSES THAT YOU WERE ONE OF THE PLAINTIFFS ON COURT OF
CLAIMS PETITION NO. 490-54 (18) (CLARENCE PAUL BOQUET V. UNITED
STATES), AND THAT THE COURT OF CLAIMS ENTERED AN ORDER OF JUDGMENT ON
NOVEMBER 8, 1955, IN HIS FAVOR IN THE AMOUNT OF $1,216.63. THE ORDER OF
JUDGMENT WAS BASED ON A STIPULATION AGREEMENT DATED NOVEMBER 8, 1955,
BASED ON THE SANDERS DECISION, 120 C.CLS.
501, AND THE AMOUNT OF THE JUDGMENT, $318.06 REPRESENTED ADDITIONAL
RETIRED PAY AS THE DIFFERENCE BETWEEN ONE-HALF AND ONE-THIRD BASE PAY
FORMULA FOR THE PERIOD FROM JANUARY 1 TO SEPTEMBER 30, 1949, INCLUSIVE.
THE ORDER OF JUDGMENT ENTERED BY THE COURT OF CLAIMS ON NOVEMBER 8,
1955, CONSTITUTES A FINAL JUDGMENT AGAINST THE UNITED STATES WITHIN THE
PURVIEW OF SUBSECTION (A) AND THE PAYMENT OF THAT JUDGMENT ON THE
CERTIFICATION OF THE GENERAL ACCOUNTING OFFICE DATED APRIL 9, 1956, IS
REQUIRED, UNDER THE PROVISIONS OF SUBSECTION (B), ABOVE QUOTED, TO BE
CONSIDERED AS "A FULL DISCHARGE TO THE UNITED STATES OF ALL CLAIMS AND
DEMANDS ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.'
THEREFORE, SINCE THAT PART OF THE PRESENT CLAIM FOR AN ADDITIONAL AMOUNT
OF RETIRED PAY COVERING THE PERIOD JANUARY 1 TO SEPTEMBER 30, 1949,
INCLUSIVE, WAS INCLUDED IN THE PERIOD COVERED BY THE ORDER OF JUDGMENT
DATED NOVEMBER 8, 1955, AND SINCE THE JUDGMENT HAS BEEN PAID, THE
PROVISIONS OF 28 U.S.C. 2517 OPERATE AS A BAR TO THE CONSIDERATION BY
THE GENERAL ACCOUNTING OFFICE TO THAT PART OF THE PRESENT CLAIM FOR AN
AMOUNT IN ADDITION TO THAT ALLOWED BY THE ORDER OF JUDGMENT. SEE 30
COMP. GEN. 178.
IN THE HULSE CASE THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE
SANDERS CASE THAT INCREASES FOR GOOD CONDUCT MARKS COULD BE INCLUDED IN
THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE
DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. ACCORDINGLY, THE
ALLOWANCE OF YOUR CLAIMS AS OUTLINED BELOW WILL NOT INCLUDE ANY
INCREASES FOR GOOD CONDUCT. IF OTHERWISE CORRECT, YOUR CLAIMS WILL BE
ALLOWED ON THE BASIS OF THE EBINGER CASE FOR THE PERIOD FROM APRIL 1,
1932 TO OCTOBER 31, 1940, ON THE SANDERS FORMULA (ONE-HALF OF BASE PAY
PLUS PERMANENT ADDITIONS) AND FOR THE PERIOD DECEMBER 3, 1947, TO
DECEMBER 31, 1948, ON THE HULSE FORMULA (TWO AND ONE-HALF PERCENT FOR
EACH YEAR OF ACTIVE SERVICE).
B-135067, MAR. 5, 1958
TO MR. DAVID L. WIESEN:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1958, IN
WHICH YOU REQUEST A REVIEW OF OUR SETTLEMENT OF JANUARY 15, 1958, WHICH
DISALLOWED YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY PERFORMED AT
THULE, GREENLAND, DURING THE PERIOD MAY 30 TO SEPTEMBER 20, 1956, AS AN
OFFICER ATTACHED TO THE 1ST ENGINEER ARCTIC TASK FORCE.
YOU STATE THAT YOU WERE ORDERED TO TEMPORARY DUTY WITH THE 1ST
ENGINEER ARCTIC TASK FORCE AT FORT BELVOIR, VIRGINIA, BY L0 98 OF
HEADQUARTERS, 69TH SIGNAL BATTALION, FORT MEADE, MARYLAND, DATED MAY 17,
1956, AND THAT YOU WERE ON TEMPORARY DUTY FROM THE SIGNAL CORPS DURING
THE ENTIRE PERIOD WHILE SERVING WITH THAT ORGANIZATION. UNDER ORDERS OF
HEADQUARTERS, THE ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR,
VIRGINIA, DATED JANUARY 30, 1956, THE 1ST ENGINEER ARCTIC TASK FORCE WAS
DIRECTED TO PROCEED FROM FORT BELVOIR TO MCGUIRE AIR FORCE BASE, NEW
JERSEY, AND THENCE TO THULE ON TEMPORARY CHANGE OF STATION FOR A PERIOD
OF APPROXIMATELY NINE MONTHS (THE INCREMENT TO WHICH YOU WERE ASSIGNED
BEING DIRECTED TO PROCEED FROM FORT BELVOIR ON OR ABOUT MAY 25, 1956)
UPON THE COMPLETION OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH
ORDERS CONTAINED THE PROVISION ,TRAVEL AND TEMPORARY DUTY PERFORMED IS
FIELD DUTY AS CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT
AUTHORIZED.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON MAY 25 AND
ARRIVED AT THULE ON MAY 29, 1956. THE RETURN OF THE TASK FORCE TO FORT
BELVOIR WAS DIRECTED BY ORDERS OF HEADQUARTERS, 1ST ENGINEER ARCTIC TASK
FORCE, DATED SEPTEMBER 9, 1956. THOSE ORDERS ALSO STATED THAT THE
TRAVEL AND TEMPORARY DUTY PERFORMED "IS FIELD DUTY AS CONTEMPLATED BY
JOINT TRAVEL REGULATIONS.' YOU LEFT THULE ON SEPTEMBER 21 AND RETURNED
TO FORT BELVOIR ON SEPTEMBER 22, 1956. CHANGE 6 OF JULY 24, 1957, TO
THE BASIC ORDERS OF JANUARY 30, 1956, PURPORTS TO AMEND THAT PART OF
SUCH BASIC ORDERS PROVIDING "PER DIEM IS NOT AUTHORIZED" TO READ "PER
DIEM IS AUTHORIZED.'
REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED
SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE
JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS
PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE
CONTINENTAL UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES
"WHILE PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES,
TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS
TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS
OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS)
AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES
ARE UTILIZED.' SIMILAR RESTRICTIONS COVERING TRAVEL AND TEMPORARY DUTY
PERFORMED IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201-6 OF THE
REGULATIONS. SINCE YOUR DUTY ASSIGNMENT WHILE SERVING WITH THE 1ST
ENGINEER ARCTIC TASK FORCE WAS PERFORMED PURSUANT TO ORDERS DESIGNATING
SUCH DUTY ASSIGNMENT AS FIELD DUTY AS CONTEMPLATED BY THOSE REGULATIONS,
NO AUTHORITY EXISTS FOR THE PAYMENT TO YOU OF PER DIEM IRRESPECTIVE OF
WHETHER OR NOT YOUR ACTIVITIES WITH THE TASK FORCE WERE COVERED BY
SIGNAL CORPS TEMPORARY DUTY ORDERS AS YOU CONTEND.
IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT
THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE
OF THE REGULATIONS CITED ABOVE IS ONE OF FACT, DETERMINED USUALLY ON THE
BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE
ASSIGNMENT BECAUSE OF THE PROXIMITY OF THE ADMINISTRATIVE PERSONNEL TO
THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST, AND THAT IF
THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO
MUST BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR
DUTY ASSIGNMENT. TO BE EFFECTIVE, SUCH SECOND DETERMINATION MUST OF
NECESSITY HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH
THAT THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.
THE PURPORTED AMENDMENT OF JULY 24, 1957, TO THE ORDERS OF JANUARY
30, 1956, DID NOT DELETE THE FIELD DUTY DESIGNATION CONTAINED IN THE
LATTER ORDERS AND NO INFORMATION HAS BEEN FURNISHED AS TO THE BASIS FOR
THE CHANGED CONCLUSION THAT PER DIEM WAS PAYABLE. IN SUCH CIRCUMSTANCES
THE AMENDATORY ORDERS DO NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THE
FIELD DUTY RESTRICTIONS OF THE BASIC ORDERS WHICH CONSTITUTED AN
ADMINISTRATIVE DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY ASSIGNED
WERE OF THE TYPE CONTEMPLATED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE
JOINT TRAVEL REGULATIONS. IT MUST BE CONCLUDED, THEREFORE, THAT NO
PROPER BASIS EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED. IF,
AS YOU SUGGEST, OTHER SIGNAL CORPS OFFICERS HAVE RECEIVED PER DIEM
PAYMENTS UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE,
SUCH PAYMENTS WERE IMPROPER AND MAY NOT SERVE AS AUTHORITY FOR THE
ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF JANUARY 15,
1958, IS SUSTAINED.
B-135106, MAR. 5, 1958
TO AUTHORIZED CERTIFYING OFFICER, HANFORD OPERATIONS OFFICE:
YOUR LETTER OF JANUARY 28, 1958, WITH ENCLOSURES, REFERENCE PAC:PAC,
REQUEST OUR DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES
HEREINAFTER SET FORTH, THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR.
H. GERALD HICKS, AN EMPLOYEE OF THE ATOMIC ENERGY COMMISSION, FOR
MILEAGE AND PER DIEM INCIDENT TO OFFICIAL TRAVEL FROM KENNEWICK,
WASHINGTON, TO ALBUQUERQUE, NEW MEXICO, AND RETURN, MAY BE CERTIFIED FOR
PAYMENT.
BY ATOMIC ENERGY COMMISSION TRAVEL AUTHORIZATION, MR. HICKS WAS
AUTHORIZED TO TRAVEL FROM KENNEWICK TO ALBUQUERQUE AND RETURN, BEGINNING
ON OR ABOUT OCTOBER 12, 1957, AND ENDING ON OR ABOUT OCTOBER 21, 1957.
THE TRAVEL AUTHORIZATION AUTHORIZED A PER DIEM OF $12 AND TRAVEL BY
PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS OF SEVEN CENTS PER MILE,
BUT NOT TO EXCEED THE COST OF TRAVEL BY COMMON CARRIER.
THE EMPLOYEE IS CLAIMING CONSTRUCTIVE COST OF RAIL TRAVEL PLUS
CONSTRUCTIVE PER DIEM APPLICABLE TO THAT MODE OF TRAVEL, WHICH EXCEEDS
BY $59.80 THE CONSTRUCTIVE COST OF PER DIEM AND AIR TRAVEL.
YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT IN FIVE PREVIOUS
TRIPS IN THE LAST YEAR BY THE EMPLOYEE TRAVELING ON OFFICIAL BUSINESS HE
HAS USED AIR TRAVEL INCLUDING ONE TRIP TO ALBUQUERQUE BY AIR. YOUR
CONTENTION APPEARS TO BE THAT IN COMPUTING THE CONSTRUCTIVE COST OF THE
TRAVEL OF THE EMPLOYEE IN THIS CASE THERE SHOULD BE USED THE
CONSTRUCTIVE AIR TRAVEL AND THE APPLICABLE PER DIEM WHICH WOULD BE
CHEAPER THAN CONSTRUCTIVE RAIL TRAVEL AND APPLICABLE PER DIEM. NO
ADMINISTRATIVE POLICY OR REGULATIONS ARE CITED BY YOU RESTRICTING THE
CONSTRUCTIVE COSTS TO THE MODE OF COMMON CARRIER (RAIL, BUS, AIR) WHICH
IS THE LEAST EXPENSIVE.
UNDER THE TRAVEL AUTHORITY ISSUED IN THIS CASE MR. HICKS WAS
AUTHORIZED TRANSPORTATION ON A MILEAGE BASIS BY PRIVATELY OWNED
AUTOMOBILE AT NOT TO EXCEED THE CONSTRUCTIVE COST BY COMMON CARRIER,
WHICH INCLUDES ALL THE NECESSARY OFFICIAL TRAVEL ON RAILROADS, AIRLINES,
ETC., AS TABULATED IN PARAGRAPH 3.1 OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS.
INASMUCH AS EXPRESS AUTHORITY WAS GRANTED MR. HICKS IN THE TRAVEL
AUTHORIZATION TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE ON A MILEAGE BASIS
NOT TO EXCEED THE COST BY COMMON CARRIER, IT MAY BE PRESUMED THAT THE
LIMITATION ON MILEAGE TO AN AMOUNT EQUAL TO THE CONSTRUCTIVE COMMON
CARRIER COST WAS INTENDED TO MEAN THE CONSTRUCTIVE COST OF TRAVEL BY ANY
ONE OF THE COMMON CARRIERS AUTHORIZED TO BE UTILIZED AND THAT, IF IT HAD
BEEN INTENDED ADMINISTRATIVELY TO LIMIT MILEAGE REIMBURSEMENT TO THE
CONSTRUCTIVE COST OF TRAVEL BY AIR, APPROPRIATE LANGUAGE WOULD HAVE BEEN
INCLUDED IN THE TRAVEL AUTHORIZATION TO THAT EFFECT. IN VIEW OF THE
FOREGOING COMMENTS, THE CONCLUSION IS WARRANTED THAT, SINCE THE
CONSTRUCTIVE COST OF TRAVEL BY RAIL PLUS APPLICABLE PER DIEM IS LESS
THAN MILEAGE PLUS APPLICABLE PER DIEM, THE AMOUNT REPRESENTING
CONSTRUCTIVE RAIL TRAVEL PLUS APPLICABLE PER DIEM IS DUE THE EMPLOYEE.
THEREFORE, THE VOUCHER, WHICH TOGETHER WITH THE RELATED PAPERS, IS
RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.
B-135308, MAR. 5, 1958
TO PUBLIC PRINTER, UNITED STATES GOVERNMENT PRINTING OFFICE:
I HAVE YOUR LETTER OF FEBRUARY 24, 1958, WITH ENCLOSURES, REQUESTING
A DECISION AS TO WHETHER A BID DATED FEBRUARY 5, 1958, SUBMITTED BY O.
L. SCHILFFARTH AND COMPANY, MILWAUKEE, WISCONSIN, MAY BE DISREGARDED IN
VIEW OF THE BIDDER'S ALLEGATION OF ERROR.
ON JANUARY 28, 1958, AN INVITATION TO BID, IDENTIFIED BY GPO JACKET
NUMBER 453153, SOLICITED PRICES FOR PRODUCTION OF 5,000 PADS (PLUS OR
MINUS TEN PERCENT) OF A SPECIALLY TREATED CARBON FORM WHICH WILL PERMIT
DUPLICATION WITHOUT THE USE OF SEPARATE CARBON PAPER. BIDS WERE OPENED
FEBRUARY 10, 1958. THE LOW BID, WHICH WAS SUBMITTED BY O. L.
SCHILFFARTH AND COMPANY, OFFERED TO FURNISH 5,000 PADS, IN PROPER FORMAT
AND STYLE, AT A PRICE OF $475. THREE ADDITIONAL BIDS WERE RECEIVED IN
THE AMOUNTS OF $2,159, $2,225 AND $2,350. AT THE TIME OF EXAMINATION OF
BIDS THE CONTRACTING OFFICER NOTED THE WIDE DISPARITY BETWEEN THE
SCHILFFARTH BID AS OPPOSED TO THE THREE OTHERS SUBMITTED, AND ON
FEBRUARY 11, 1958, BASED UPON HIS OBSERVATIONS, THE COMPANY WAS
REQUESTED BY TELEGRAM TO REVIEW THE SPECIFICATIONS AND CONFIRM THE BID
PRICE. ON FEBRUARY 14, 1958, THE BIDDER TELEPHONED STATING THAT HIS BID
WAS ERRONEOUS BECAUSE THE COST OF PAPER HAD BEEN OMITTED FROM THE
QUOTATIONS. THE ERROR WAS FORMALLY CONFIRMED BY MR. SCHILFFARTH IN HIS
LETTER TO YOU OF FEBRUARY 15, 1958. AN ESTIMATE SHEET ENCLOSED WITH HIS
LETTER APPEARS TO SUPPORT THE CONTENTION THAT THE COST OF PAPER WAS NOT
INCLUDED IN THE BID QUOTATION.
BASED UPON THE FACTS AND EVIDENCE OF RECORD, THERE IS NO DOUBT THAT A
BONA FIDE ERROR WAS MADE AS ALLEGED BY THE BIDDER. THE CONTRACTING
OFFICER BELIEVED THE SCHILFFARTH BID TO BE IN ERROR AFTER HE COMPARED
THAT QUOTATION WITH THE THREE OTHER BIDS AT THE TIME ALL WERE OPENED.
THE ACTION OF YOUR AGENCY IN TELEGRAPHING THE COMPANY FOR VERIFICATION
WAS PREDICATED UPON THE ASSUMPTION THAT THE SCHILFFARTH BID WAS
MANIFESTLY DEFECTIVE; THIS, IN TURN, WAS AFFIRMED BY THE COMPANY PRIOR
TO AWARD. NOTICE OF ERROR SATISFACTORILY EXPLAINED BY THE BIDDER BEFORE
AWARD PRECLUDES THE GOVERNMENT FROM ACCEPTING THE BID AND FORECLOSES
ESTABLISHMENT OF ANY CONTRACTUAL RELATIONSHIP WITH THE BIDDER. THE
SCHILFFARTH BID MUST THEREFORE BE DISREGARDED.
THE PAPERS SPECIFIED IN YOUR LETTER OF FEBRUARY 24, 1958, ARE
RETURNED AS REQUESTED.
B-134805, MAR. 4, 1958
TO MAJOR OLIVER W. LEONARD, JR., C.E. :
BY LETTER OF HEADQUARTERS, U.S. ARMY ENGINEER CENTER AND FORT
BELVOIR, FORT BELVOIR, VIRGINIA, DATED DECEMBER 4, 1957, YOUR CLAIM FOR
PER DIEM AND FOR REIMBURSEMENT FOR A TAXICAB FARE FROM FORT BELVOIR TO
WASHINGTON, D.C., ARISING INCIDENT TO TRAVEL AND TEMPORARY DUTY
PERFORMED DURING THE PERIOD JULY 15 TO OCTOBER 9, 1956, WAS FORWARDED
HERE FOR DIRECT SETTLEMENT. SINCE A SIMILAR CLAIM PREVIOUSLY FILED BY
YOU WAS DISALLOWED IN OUR SETTLEMENT OF JULY 22, 1957, YOUR CLAIM WILL
BE CONSIDERED AS A REQUEST FOR THE REVIEW OF THAT SETTLEMENT.
UNDER DEPARTMENT OF THE ARMY ORDERS DATED JULY 12, 1956, YOU WERE
DIRECTED TO PROCEED ON OR ABOUT JULY 16, 1956, ON TEMPORARY DUTY FOR
APPROXIMATELY 150 DAYS TO THULE, GREENLAND, UPON THE COMPLETION OF WHICH
YOU WERE TO RETURN TO YOUR PROPER STATION. SPECIAL INSTRUCTIONS IN THE
ORDERS PROVIDED THAT "ALL TVL FROM THULE, GREENLAND AND TEMPORARY DY
PERFORMED UNDER THIS ORDER CONSTITUTE DY OF A TYPE CONTEMPLATED BY PARA
4250.3, JTR.' YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON JULY 15 AND
ARRIVED AT THULE ON JULY 17, 1956. UPON THE COMPLETION OF THE TEMPORARY
ASSIGNMENT THERE YOU LEFT THULE ON OCTOBER 8 AND RETURNED TO FORT
BELVOIR ON OCTOBER 9, 1956. IN A DEPARTMENT OF THE ARMY COMMUNICATION
DATED OCTOBER 18, 1957, IT WAS STATED THAT YOUR ORDERS OF JULY 12, 1956,
WERE AMENDED TO DELETE THE ABOVE-QUOTED PROVISIONS WHICH DESCRIBE THE
TRAVEL AND TEMPORARY DUTY DIRECTED AS BEING OF THE TYPE CONTEMPLATED BY
PARAGRAPH 4250.3 OF THE JOINT TRAVEL REGULATIONS. THE REASON FOR THAT
ACTION WAS NOT STATED.
REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE ARMED FORCES
TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE JOINT
TRAVEL REGULATIONS. PARAGRAPH 4250.3 OF THOSE REGULATIONS PROVIDES THAT
MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE THE CONTINENTAL
UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "WHILE
PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES,
TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS
TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS
OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS)
AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES
ARE UTILIZED.' SIMILAR INSTRUCTIONS COVERING TRAVEL AND TEMPORARY DUTY
IN THE UNITED STATES ARE CONTAINED IN PARAGRAPH 4201.6 OF THE
REGULATIONS. IN DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS
STATED THAT THE QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN
THE SCOPE OF THOSE PROVISIONS IS ONE OF FACT, FOR DETERMINATION USUALLY
ON THE BASIS OF AN ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING
THE ASSIGNMENT BECAUSE OF KNOWLEDGE OF THE ADMINISTRATIVE PERSONNEL
INVOLVED AS TO THE LOCAL CIRCUMSTANCES UPON WHICH THE EVALUATION MUST
REST, AND THAT IF THAT DETERMINATION LATER IS TO BE CHANGED, THE SECOND
DETERMINATION ALSO MUST BE BASED ON AN EVALUATION OF THE FACTS
SURROUNDING THE PARTICULAR DUTY ASSIGNMENT. TO BE EFFECTIVE, SUCH
SECOND DETERMINATION MUST BE OF NECESSITY HAVE AS ITS BASIS SUFFICIENT
INFORMATION OR FACTS TO ESTABLISH THAT THE FIRST DETERMINATION CLEARLY
WAS ERRONEOUS.
SINCE THE PURPORTED AMENDMENT IN THE COMMUNICATION OF OCTOBER 18,
1957, OF YOUR ORDERS OF JULY 12, 1956, FURNISHES NO INFORMATION AS TO
THE BASIS FOR THE ACTION TAKEN, IT DOES NOT PROVIDE GROUNDS SUFFICIENT
TO OVERCOME THE ADMINISTRATIVELY DETERMINED FIELD DUTY RESTRICTIONS OF
THOSE ORDERS. IT MUST BE CONCLUDED, THEREFORE, THAT NO PROPER BASIS
EXISTS FOR THE PAYMENT TO YOU OF THE PER DIEM CLAIMED. IT APPEARS,
HOWEVER, THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR THE $5 PAID AS A
TAXICAB FARE IN PROCEEDING FROM FORT BELVOIR TO WASHINGTON, D.C., IN
CONNECTION WITH THE TRAVEL IN QUESTION. ACCORDINGLY, YOU WILL BE
ALLOWED THAT AMOUNT IN A SETTLEMENT WHICH WILL ISSUE IN DUE COURSE.
OTHERWISE, THE SETTLEMENT OF JULY 22, 1957, IS SUSTAINED.
B-134848, MAR. 4, 1958
TO THE BRAD HARRISON CO. :
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1957, REQUESTING
REVIEW OF THE SETTLEMENT DATED NOVEMBER 29, 1957, WHICH DISALLOWED YOUR
CLAIM FOR REMISSION OF LIQUIDATED DAMAGES ASSESSED ON ACCOUNT OF DELAYS
IN THE DELIVERY OF EXTENSION CORDS AND ADAPTERS UNDER CONTRACTS NOS.
DA-36-109-ENG-4593, DA-36-109-ENG-4682 AND DA-36-109-ENG-4736, DATED
APRIL 29, MAY 27, AND JUNE 5, 1953, RESPECTIVELY.
UNDER THE TERMS OF THE CONTRACTS YOU AGREED TO FURNISH AND DELIVER
CERTAIN QUANTITIES OF CORDS AND ADAPTERS FOR THE PRICES SPECIFIED IN THE
CONTRACTS, DELIVERY TO BE MADE ON OR BEFORE THE DATES SPECIFIED IN THE
SEVERAL CONTRACTS. EACH CONTRACT PROVIDED AS FOLLOWS:
"LIQUIDATED DAMAGES: IN CASE OF FAILURE ON THE PART OF THE
CONTRACTOR TO MAKE DELIVERY OF THE ITEMS COVERED BY THIS CONTRACT WITHIN
THE TIME FIXED IN THE CONTRACT OR ANY EXTENSIONS THEREOF, THE CONTRACTOR
SHALL PAY THE GOVERNMENT LIQUIDATED DAMAGES AT THE RATE OF 1/10 OF 1
PERCENT PER CALENDAR DAY OF THE DOLLAR VALUE OF ITEMS NOT DELIVERED IN
ACCORDANCE WITH CONTRACT SCHEDULE. FOR THE PURPOSE OF THIS PARAGRAPH
ONLY, THE TERM "DELIVERY" SHALL MEAN DELIVERY TO CARRIER AT POINT OF
ORIGIN.'
THE CLAUSE ENTITLED "11. DEFAULT" OF GENERAL PROVISIONS, STANDARD
FORM NO. 32, NOVEMBER 1949, EDITION, MADE A PART OF EACH CONTRACT, WAS
AMENDED BY DELETING THEREFROM PARAGRAPH (F) AND ADDING THE FOLLOWING:
"* * * THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES
WHEN THE DELAY ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE
FAULT OR NEGLIGENCE OF THE CONTRACTOR, AS DEFINED IN PARAGRAPH (B)
ABOVE, AND IN SUCH EVENT, SUBJECT TO THE CLAUSE OF THIS CONTRACT
ENTITLED SPUTES," THE CONTRACTING OFFICER SHALL ASCERTAIN THE FACTS AND
EXTENT OF THE DELAY AND SHALL EXTEND THE TIME FOR PERFORMANCE WHEN IN
HIS JUDGMENT AND FINDINGS OF FACT JUSTIFY AN EXTENSION.'
THE RECORD SHOWS THAT YOU WERE DELINQUENT IN DELIVERY OF THE INVOLVED
SUPPLIES AND YOU WERE ASSESSED LIQUIDATED DAMAGES. THE RECORD FURTHER
SHOWS THAT BEFORE THE TIME STIPULATED FOR DELIVERY OF THE FINAL
INSTALLMENT UNDER EACH CONTRACT, OR BY LETTER OF SEPTEMBER 12, 1953, YOU
REQUESTED AN EXTENSION OF TIME ALLEGING THAT THE DELAY IN DELIVERY WAS
DUE IN PART TO THE LATE APPROVAL OF THE COMPOUND BY THE GOVERNMENT AND
IN PART TO YOUR DIFFICULTY IN OBTAINING THE SOCKETS. THE CONTRACTING
OFFICER, IN HIS REPORT OF JUNE 27, 1956, STATES THAT ADDITIONAL REQUESTS
FOR EXTENSION OF TIME WERE RECEIVED FROM YOU BUT THAT THE RECORD DOES
NOT DISCLOSE ANY RESPONSE BY THE GOVERNMENT TO THESE REQUESTS NOR DOES
IT DISCLOSE THAT YOU MADE ANY INQUIRY THEREAFTER ABOUT YOUR REQUESTS.
AS TO THE MERITS OF YOUR CLAIM GENERALLY, THE CONTRACTING OFFICER IN
HIS REPORT STATES THAT YOU HAD DIFFICULTY IN SECURING THE SOCKETS AND
THAT YOU PRESSED YOUR SUPPLIER TO EXPEDITE DELIVERY AFTER A FIRM ORDER
WAS PLACED. HE POINTED OUT THAT WHILE YOU STATED IN YOUR LETTER OF
SEPTEMBER 12, 1953, THAT YOU ANTICIPATED TROUBLE IN THE PROCUREMENT OF
THE SOCKETS, WHICH WAS AN IMPORTANT COMPONENT AT THE TIME OF THE
SUBMISSION OF YOUR BID, YOU FAILED TO PLACE YOUR FIRM ORDER FOR SUCH
COMPONENTS UNTIL FOUR MONTHS AFTER THE SUBMISSION OF YOUR BID.
WITH REGARD TO YOUR STATEMENT THAT BRYANT ELECTRIC COMPANY WAS THE
ONLY MANUFACTURER OF SOCKETS MEETING SPECIFICATION REQUIREMENTS, THE
SUCCESSOR CONTRACTING OFFICER HAS STATED IN HIS REPORT OF DECEMBER 3,
1956, THAT HE IS UNABLE TO AFFIRM OR DENY THIS ALLEGATION, BUT HE STATES
THAT THE SOCKET SPECIFICATIONS WERE NOT RESTRICTIVE AND THE SOCKETS
COULD HAVE BEEN PRODUCED BY ANY COMPETENT MANUFACTURER OF ELECTRICAL
FITTINGS.
WITH REGARD TO YOUR CONTENTION THAT A PART OF THE DELAY WAS DUE TO
THE LATE APPROVAL OF COMPOUND, THE CONTRACTING OFFICER HAS STATED THAT
THE DELAY IN APPROVAL OF COMPOUND DID NOT AFFECT PRODUCTION BECAUSE YOU
STARTED PRODUCTION IMMEDIATELY UPON THE RECEIPT OF THE SOCKETS AND THE
THREE WEEK LEAD TIME REQUIRED WENT BEYOND THE DATE OF OCTOBER 13, 1953,
WHEN YOU RECEIVED APPROVAL OF COMPOUND, AND THAT SHIPMENT OF THE UNITS
WAS NOT DELAYED FOR LACK OF APPROVAL. IT APPEARS THAT YOU MERELY
EXPERIENCED SUCH DIFFICULTIES IN OBTAINING SOCKETS AS REASONABLY MIGHT
HAVE BEEN EXPECTED DUE TO THE NATURE OF THE UNITS TO BE MANUFACTURED.
THE FACT THAT THIS MADE THE PERFORMANCE OF THE CONTRACT AND DELIVERY OF
THE ITEM MORE BURDENSOME OR LESS PROFITABLE THAN EXPECTED IS NOT
SUFFICIENT TO ENTITLE YOU TO A REMISSION OF THE LIQUIDATED DAMAGES SINCE
VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN. SEE
COLUMBUS RY. POWER AND LIGHT COMPANY, 249 U.S. 399; BLAUNER
CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503, 511; SATTERLEE,
DMX., ET AL. V. UNITED STATES, 30 C.CLS. 31. IN THE CASE OF DAY V.
UNITED STATES, 245 U.S. 159, THE COURT SAID:
"ONE WHO MAKES A CONTRACT NEVER CAN BE ABSOLUTELY CERTAIN THAT HE
WILL BE ABLE TO PERFORM IT WHEN THE TIME COMES, AND THE VERY ESSENCE OF
IT IS THAT HE TAKES THE RISK WITHIN THE LIMITS OF HIS
B-134895, MAR. 4, 1958
TO MR. CLIFFORD L. TUTTLE:
REFERENCE IS MADE TO LETTER OF DECEMBER 11, 1957, FROM KING AND KING,
YOUR ATTORNEYS, IN REGARD TO YOUR CLAIM FOR INCREASED RETIRED PAY BY
REASON OF ACTIVE DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE.
ORIGINALLY, BY LETTER DATED DECEMBER 4, 1953, CLAIM WAS PRESENTED
HERE ON YOUR BEHALF BY YOUR ATTORNEYS, FOR THE DIFFERENCE BETWEEN
RETAINER OR RETIRED PAY COMPUTED ON THE BASIS OF ONE-HALF OF BASE PAY,
PLUS PERMANENT ADDITIONS THERETO, PLUS A TEN PERCENT ALLOWANCE FOR GOOD
CONDUCT, AND RETAINER OR RETIRED PAY ACTUALLY RECEIVED BY YOU COMPUTED
ON THE BASIS OF ONE-THIRD OF YOUR BASE PAY PLUS PERMANENT ADDITIONS
THERETO FOR THE PERIOD JULY 1, 1935 (1936) (THE DAY FOLLOWING YOUR
RELEASE FROM ACTIVE DUTY) THROUGH JUNE 10, 1940; AND MAY 16, 1945,
THROUGH NOVEMBER 29, 1947, ALL DATES INCLUSIVE. THE CLAIM WAS MADE
PURSUANT TO THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1175, AS
AMENDED BY THE ACT OF AUGUST 10, 1946, 60 STAT. 993, 34 U.S.C. 854G, AND
PURSUANT TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF
CHRISTOPHER C. SANDERS V. UNITED STATES, 120 C.CLS. 501.
THE CLAIM WAS ALLOWED IN PART ON APRIL 28, 1955, AND SETTLEMENT FOR
$777.08, ISSUED IN DUE COURSE FOR ADJUSTMENT OF RETIRED PAY FOR THE
PERIOD MAY 16, 1945, TO NOVEMBER 29, 1947. DISALLOWANCE OF THAT PORTION
OF YOUR CLAIM COVERING TEN PERCENT INCREASE BASED ON GOOD CONDUCT WAS
MADE ON THE BASIS THAT THE LAWS IN EFFECT AUTHORIZED AN INCREASE OF TEN
PERCENT ONLY FOR EXTRAORDINARY HEROISM, AND THE RECORDS DID NOT SHOW
THAT YOU WERE CREDITED WITH EXTRAORDINARY HEROISM.
YOUR CLAIM FOR THE PERIOD JULY 1, 1935 (1936), TO JUNE 10, 1940, WAS
DISALLOWED BY OUR SETTLEMENT OF JUNE 29, 1955, ON THE GROUND THAT ACTIVE
DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE, OTHER THAN ACTIVE
DUTY PERFORMED DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE
PRESIDENT, WAS NOT CREDITABLE FOR INCREASED RETIRED PAY UNDER SECTION
208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED BY SECTION 3 OF THE ACT
OF AUGUST 10, 1946, 60 STAT. 994, 34 U.S.C. 854G.
IN THE LETTER OF DECEMBER 11, 1957, RECEIVED BY US DECEMBER 12, 1957,
YOUR ATTORNEYS REQUEST RECONSIDERATION OF THE ABOVE DISALLOWANCE ON THE
BASIS OF EBINGER ET AL., V. UNITED STATES, C.CLS. NO. 49615, DECIDED
OCTOBER 9, 1957, WHEREIN IT WAS HELD THAT, WITH CERTAIN EXCEPTIONS NOT
MATERIAL HERE, ALL ACTIVE DUTY PERFORMED AFTER JULY 1, 1925, AND AFTER
TRANSFER TO THE FLEET NAVAL RESERVE WAS CREDITABLE UNDER SECTION 208 OF
THE NAVAL RESERVE ACT OF 1938 FOR INCREASED RETAINER AND RETIRED PAY.
IN THE LETTER OF DECEMBER 11, 1957, YOUR ATTORNEYS ALSO ASK THAT
CONSIDERATION BE GIVEN TO COMPUTING YOUR RETIRED PAY FOR THE PERIOD FROM
AUGUST 10, 1946, THROUGH NOVEMBER 29, 1947, ON THE BASIS OF TWO AND
ONE-HALF PERCENTUM FOR EACH YEAR OF ACTIVE SERVICE. (HULSE V. UNITED
STATES, 133 C.CLS. 848, DECIDED JANUARY 21, 1956).
SECTION 1 OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C.
237, PROVIDES:
"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 AGENCY 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.'
YOUR CLAIM FOR INCREASED RETAINER AND RETIRED PAY BY REASON OF ACTIVE
DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE FOR THE PERIOD JULY
1, 1936, TO JUNE 10, 1940, AND FROM MAY 16, 1945, THROUGH AUGUST 9,
1945, SECURED ON AUGUST 9, 1946, ACCRUED ON AUGUST 10, 1946, THE DATE OF
APPROVAL OF THE STATUTE GRANTING RETROACTIVE AND PROSPECTIVE INCREASES
IN RETAINER AND RETIRED PAY BY REASON OF ACTIVE DUTY PERFORMED AFTER
TRANSFER TO FLEET RESERVE. YOUR CLAIM FOR INCREASED RETIRED PAY FOR THE
PERIOD AUGUST 10, 1946, TO NOVEMBER 29, 1947, BASED ON THE SANDERS
FORMULA AND INCLUDED IN THE APRIL 1955 ALLOWANCE BY THIS OFFICE, ACCRUED
DAY TO DAY FROM AUGUST 10, 1946, TO NOVEMBER 29, 1947. ALL YOUR CLAIMS
FOR INCREASED RETAINER AND RETIRED PAY AS ORIGINALLY PRESENTED ON THE
SANDERS FORMULA WERE FILED WITHIN TEN YEARS AFTER AUGUST 10, 1946, AND
THUS ARE NOT AFFECTED BY THE TEN-YEAR STATUTE OF LIMITATIONS, QUOTED
ABOVE. HOWEVER, YOUR AMENDED CLAIM FOR INCREASED RETIRED PAY ON THE
HULSE FORMULA FOR THE PERIOD AUGUST 10, 1946, TO NOVEMBER 29, 1947, WAS
NOT FILED WITH US UNTIL DECEMBER 12, 1957. AN AMENDMENT TO A CLAIM IS A
NEW CLAIM INSOFAR AS THE ACT OF NOVEMBER 9, 1940, IS CONCERNED. SEE OUR
DECISION OF NOVEMBER 24, 1950, B-62443, AND AUTHORITIES THERE CITED.
HENCE, YOUR AMENDED CLAIM UNDER THE HULSE DECISION IS BARRED FROM
CONSIDERATION BY THAT ACT.
IN THE HULSE CASE THE COURT OF CLAIMS REVERSED ITS HOLDING IN THE
SANDERS CASE THAT INCREASES FOR GOOD CONDUCT MARKS COULD BE INCLUDED IN
THE COMPUTATION OF RETAINER OR RETIRED PAY INCREASED BY REASON OF ACTIVE
DUTY PERFORMED AFTER TRANSFER TO THE FLEET RESERVE. ACCORDINGLY, THE
ALLOWANCE OF YOUR CLAIM AS OUTLINED BELOW WILL NOT INCLUDE ANY INCREASES
FOR GOOD CONDUCT. IF OTHERWISE CORRECT, YOUR CLAIM WILL BE ALLOWED ON
THE BASIS OF THE EBINGER CASE, FOR THE PERIOD JULY 1, 1936, THROUGH JUNE
10, 1940, ON THE SANDERS FORMULA (ONE-HALF OF BASE PAY PLUS PERMANENT
ADDITIONS).
B-134928, MAR. 4, 1958
TO MR. JAMES G. MACNEIL, ASN O-326301:
REFERENCE IS MADE TO YOUR LETTER, POSTMARKED JANUARY 3, 1958,
REQUESTING A REVIEW, ON THE BASIS OF THE CASE OF AXUP V. UNITED STATES,
C.CLS. NO. 56-53, OF OUR SETTLEMENT OF JULY 11, 1952, WHICH DISALLOWED
YOUR CLAIM FOR STATION PER DIEM ALLOWANCES FOR THE PERIOD AUGUST 14,
1948, TO FEBRUARY 28, 1951, WHILE YOU WERE ASSIGNED TO DUTY IN THE FREE
TERRITORY OF TRIESTE.
ALTHOUGH, AS STATED IN YOUR LETTER, A JUDGMENT WAS GIVEN IN FAVOR OF
THE CLAIMANTS IN THE CASE OF ROY W. AXUP, ET AL. V. UNITED STATES,
C.CLS. NO. 56-53, SUCH ACTION IN THE FORM OF AN ORDER BASED ON A
STIPULATION OF THE PARTIES IS BINDING ONLY UPON THE PARTIES TO THAT
ACTION AND NOT UPON THE UNITED STATES GENERAL ACCOUNTING OFFICE. HENCE,
IT FORMS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.
IN YOUR COMMUNICATION OF APRIL 12, 1951, YOU CERTIFIED THAT
GOVERNMENT QUARTERS WERE NOT AVAILABLE DURING THE PERIOD OF YOUR CLAIM
EXCEPT FOR THE PERIODS AUGUST 19, 1948, TO MAY 31, 1949; NOVEMBER 28,
1949, TO DECEMBER 1, 1949, AND DECEMBER 11, 1950, TO DECEMBER 15, 1950,
AND THAT NO GOVERNMENT MESS WAS AVAILABLE EXCEPT DURING CERTAIN BRIEF
PERIODS OF HOSPITALIZATION. YOU CERTIFIED ALSO THAT YOUR DEPENDENTS
RESIDED IN TRIESTE FROM JUNE 2, 1949, TO THE DATE OF YOUR CLAIM, APRIL
12, 1951.
PARAGRAPH 7A WAR DEPARTMENT CIRCULAR 196, DATED JULY 25, 1947,
PROVIDED THAT STATION ALLOWANCES WILL BE PAID ONLY WHERE GOVERNMENT
QUARTERS AND GOVERNMENT MESSES ARE NOT AVAILABLE. THIS REGULATION WAS
SUPERSEDED BY PARAGRAPH 4A SPECIAL ARMY REGULATIONS 35-3080-1, DATED MAY
23, 1949, WHICH PROVIDED THAT STATION PER DIEM ALLOWANCE IS AUTHORIZED
WHEN GOVERNMENT QUARTERS AND/OR GOVERNMENT MEALS ARE NOT AVAILABLE.
PARAGRAPH 2 F (1), WAR DEPARTMENT CIRCULAR 196, JULY 25, 1947, AS
AMENDED BY DEPARTMENT OF THE ARMY CIRCULAR NO. 80, DECEMBER 30, 1947,
DEFINES "GOVERNMENT ESS" AS FOLLOWS:
"FOR OFFICERS--- "GOVERNMENT MESS" IS DEEMED TO BE AVAILABLE AT ANY
MILITARY OR NAVAL INSTALLATION WHICH OPERATES AN OFFICERS' MESS. ANY
ORGANIZATIONAL MESS OPERATED FOR ARMY OR NAVY ENLISTED PERSONNEL WILL BE
CONSTRUCTED AS A "GOVERNMENT MESS, FOR THE PURPOSE OF THIS CIRCULAR.
RESTAURANTS AND CAFETERIAS OPERATED BY ARMY EXCHANGES OR OFFICERS' CLUBS
ARE NOT CONSIDERED TO BE "GOVERNMENT MESS.' "
PARAGRAPH 2F (1), SPECIAL ARMY REGULATIONS 35-3080-1 DEFINES
"GOVERNMENT MESS" IN SIMILAR LANGUAGE, THE DIFFERENCE BEING THAT THE
DEFINITION INCLUDES ORGANIZATION MESSES OPERATED FOR AIR FORCE ENLISTED
PERSONNEL.
THE FOREGOING REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A STATION
SUBSISTENCE PER DIEM ALLOWANCE TO AN OFFICER STATIONED AT AN OVERSEAS
INSTALLATION, IF EITHER AN OFFICERS' MESS OR ORGANIZATION MESS FOR
ENLISTED PERSONNEL WAS OPERATED THEREAT. THE INFORMATION FURNISHED FROM
OFFICIAL SOURCES AS TO THE MESSING FACILITIES WHICH WERE AVAILABLE AT
TRIESTE DURING THE PERIOD OF YOUR CLAIM WAS NOT COMPLETE AND HENCE, AN
INVESTIGATION WAS CONDUCTED BY REPRESENTATIVES OF THIS OFFICE IN AN
ATTEMPT TO LEARN THE FACTS WITH RESPECT THERETO. SUCH INVESTIGATION
INCLUDED A REPORT AS TO THE EXISTENCE OF OFFICERS' MESS OR MESSES, AND
WHILE IT IS INDICATED THAT SOME OFFICERS' MESSES WERE IN OPERATION AT
ONE TIME, IT IS NOT NOW POSSIBLE TO DETERMINE WITH ANY DEGREE OF
ACCURACY WHEN AND FOR WHAT OFFICERS SUCH MESSES WERE AVAILABLE. IT IS
CLEAR, HOWEVER, THAT ORGANIZATION MESSES FOR ENLISTED PERSONNEL WERE IN
OPERATION AT TRIESTE DURING THE ENTIRE PERIOD OF YOUR CLAIM. SEE
B-111431 DATED MARCH 17, 1953. UNDER THESE CIRCUMSTANCES, IT WOULD
APPEAR THAT A "GOVERNMENT MESS," AS DEFINED IN THE GOVERNING
REGULATIONS, WAS AVAILABLE TO YOU DURING THE PERIOD OF YOUR CLAIM AND
THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE.
ACCORDINGLY, AS TO STATION SUBSISTENCE PER DIEM THE SETTLEMENT OF JULY
11, 1952, IS SUSTAINED.
THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS PORTION OF THE
STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY, PRIOR TO THE ENACTMENT OF
SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
815, WAS GOVERNED BY THE NONAVAILABILITY OF GOVERNMENT QUARTERS TO THEM
INDIVIDUALLY AND DEPENDENTS WERE NOT CONSIDERED. SEE PARAGRAPHS 2E AND
7A, WAR DEPARTMENT CIRCULAR NO. 196, AND PARAGRAPHS 2E AND 4A, SPECIAL
REGULATIONS 35-3080-1. INFORMATION FURNISHED THIS OFFICE INDICATES THAT
BACHELOR QUARTERS WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED
TO OCCUPY THEM.
SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949 PERMITTED
CONSIDERATION BY THE SECRETARIES CONCERNED OF ALL ELEMENTS OF COST OF
LIVING TO MEMBERS "AND THEIR DEPENDENTS" IN FIXING RATES OF PER DIEM
PAYABLE FOR DUTY IN FOREIGN COUNTRIES. ON JUNE 30, 1950, REGULATIONS
REQUIRED BY SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 815, FIRST WERE ISSUED. THE REGULATIONS AMENDED PARAGRAPH 2E,
SPECIAL ARMY REGULATIONS 35-3080-1, AND PROVIDED THAT FOR PERSONNEL IN A
NON-TRAVEL STATUS WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF THEIR
PERMANENT STATION,"GOVERNMENT QUARTERS" SHALL INCLUDE ANY GOVERNMENT
QUARTERS ADEQUATE FOR ASSIGNMENT TO MILITARY MEMBERS TOGETHER WITH THEIR
DEPENDENTS, OR GOVERNMENT QUARTERS OF ANY TYPE WHICH ARE IN FACT
OCCUPIED BY THE MILITARY MEMBERS TOGETHER WITH THEIR DEPENDENTS.
PARAGRAPH 4A OF SPECIAL ARMY REGULATIONS 35-3080-1 WAS ALSO AMENDED AND
PROVIDED IN PART THAT OFFICERS WHO WERE RECEIVING AN ALLOWANCE FOR
QUARTERS UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 812, SHALL BE ENTITLED, IN ADDITION THERETO, TO THE QUARTERS
PORTION OF THE STATION PER DIEM ALLOWANCE PROVIDED FOR OFFICERS WHICH
WILL BE IN LIEU OF ANY OTHER STATION ALLOWANCE FOR QUARTERS. IT FURTHER
PROVIDED IN PART THAT THIS ALLOWANCE SHALL NOT BE CREDITED TO MEMBERS
WHEN THEIR DEPENDENTS ARE NOT RESIDING IN THE VICINITY OF THEIR
PERMANENT STATION UNLESS GOVERNMENT QUARTERS ARE NOT AVAILABLE TO THEM
AT THEIR PERMANENT STATION AS MEMBERS WITHOUT DEPENDENTS. THE STATION
QUARTERS RATE PRESCRIBED FOR OFFICERS ON DUTY AT TRIESTE WAS $1 A DAY.
SEE SECTION II, SPECIAL ARMY REGULATIONS 35-3080-1.
SINCE THERE IS INFORMATION AVAILABLE TO US THAT BACHELOR QUARTERS
WERE AVAILABLE AT TRIESTE FOR ALL OFFICERS WHO WISHED TO OCCUPY THEM,
THERE IS NO PROPER BASIS, UNDER THE REGULATIONS GOVERNING STATION
QUARTERS ALLOWANCE, FOR THE ALLOWANCE OF YOUR CLAIM FOR THE PERIODS
AUGUST 14, 1948, TO JUNE 29, 1950. YOUR CLAIM FOR STATION QUARTERS
ALLOWANCE FOR THE PERIOD JUNE 30, 1950, TO FEBRUARY 28, 1951, IS
GOVERNED BY THE REGULATIONS ISSUED JUNE 30, 1950, WHICH AMENDED
PARAGRAPH 2E SPECIAL ARMY REGULATIONS 35-3080-1. SEE THE PROVISIONS OF
THIS REGULATION THAT ARE REFERRED TO ABOVE. THIS PORTION OF YOUR CLAIM
HAS BEEN TRANSMITTED TO OUR CLAIMS DIVISION FOR FURTHER
B-135043, MAR. 4, 1958
TO MR. R. H. LABONTE, AUTHORIZED CERTIFYING OFFICER, PUBLIC HEALTH
SERVICE:
IN THE AUDIT OF THE AUGUST 1956 ACCOUNT OF J. F. CANNON DISBURSING
OFFICER, SYMBOL 9000, WE ISSUED A REVISED NOTICE OF EXCEPTION IN THE
AMOUNT OF $12 AGAINST VOUCHER NO. 25496, CERTIFIED FOR PAYMENT BY YOU.
THE EXCEPTION WAS TAKEN TO PER DIEM PAID TO EDWARD F. KROHN, SPECIAL
CONSULTANT, EMPLOYED ON A WAE BASIS BY THE DIVISION OF SPECIAL HEALTH
SERVICES IN CONNECTION WITH TWO TRIPS FROM BALTIMORE, MARYLAND, TO
WASHINGTON, D.C., MAY 31 AND JUNE 15, 1956, BETWEEN THE HOURS OF 8 A.M.
AND 6 P.M.
THE EXCEPTION WAS TAKEN BECAUSE OF THE PROVISO IN PARAGRAPH 51 (NOW
6.11), STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH READS, IN
PERTINENT PART, AS FOLLOWS:
"PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE DEPARTURE IS AT
OR AFTER 8 A.M., AND A RETURN ON THE SAME DAY IS AT OR PRIOR TO 6 P.M.
* * *.'
IN RESPONSE TO THE EXCEPTION F. N. HEARN, FISCAL OFFICER, REPLIED
UNDER DATE OF DECEMBER 2, 1957, WHICH REPLY WAS INITIALED BY YOU, AS
FOLLOWS:
"IN REPLY TO THE ABOVE REVISED EXCEPTION, YOU ARE ADVISED THAT THIS
OFFICE HAS LONG SINCE BEEN OF THE OPINION THAT IT WAS THE INTENT OF
CONGRESS THAT CONSULTANTS AND EXPERTS EMPLOYED INTERMITTENTLY ON A PER
DIEM WHEN "ACTUALLY EMPLOYED" BASIS ARE CONSIDERED IN A PER DIEM STATUS
WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS REGARDLESS OF
THE LENGTH OF TIME OR THE HOURS OF DUTY. SEC. 5 OF P.L. 600 READS IN
PART AS FOLLOWS: "PERSONS IN THE GOVERNMENT SERVICE EMPLOYED
INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A
PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES
WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER
DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN
ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS,
SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE
ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT.' .. SEE, ALSO, CG DEC.
B-63000, FEB. 4, 1947 WHICH INDICATES THAT WHERE AN INCONSISTENCY ARISES
BETWEEN THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND SEC. 5, P.L.
600, THE REGULATIONS MUST YIELD TO THE STATUTE.
"IT IS, THEREFORE, REQUESTED THAT THE EXCEPTION BE REMOVED AND THIS
OFFICE SO NOTIFIED.'
THE FISCAL OFFICER CITES OUR DECISION 26 COMP. GEN. 564 (B-63000),
FEBRUARY 4, 1947, AS A BASIS FOR REMOVAL OF THE EXCEPTION. THAT
DECISION CONCERNED SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806,
5 U.S.C. 73B-2 AND PARAGRAPH 46 (NOW 6.8) OF THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS. SECTION 5 READS, IN PERTINENT PART, AS FOLLOWS:
"PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS
CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN
ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM
THEIR HOMES OR REGULAR PLACE OF BUSINESS, INCLUDING PER DIEM IN LIEU OF
SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS * * *.'
PARAGRAPH 46 OF THE FOREGOING REGULATIONS READS AS FOLLOWS:
"NO ALLOWANCE AT OFFICIAL STATION--- UNDER NO CIRCUMSTANCES WILL PER
DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN EMPLOYEE AT HIS OFFICIAL
STATION.'
SINCE THE LANGUAGE OF PARAGRAPH 46 PROHIBITING PAYMENT OF PER DIEM AT
THE OFFICIAL STATION APPEARED TO BE INCONSISTENT WITH THE EXPRESS
PROVISIONS OF SECTION 5 OF THE ACT OF AUGUST 2, 1946 PERMITTING PAYMENT
OF PER DIEM WHILE AT SUCH STATION--- PROVIDED THE CONSULTANTS EMPLOYED
INTERMITTENTLY WERE AWAY FROM THEIR HOMES OR REGULAR PLACES OF
BUSINESS--- WE HELD IN 26 COMP. GEN. 564 THAT THE LANGUAGE OF THE
REGULATION MUST YIELD TO THE STATUTE. BUT THERE IS NO INCONSISTENCY
BETWEEN SECTION 5 AND THE ABOVE QUOTED PROVISO OF PARAGRAPH 51 (NOW
6.11), OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE LANGUAGE
OF THE STATUTE SPECIFICALLY AUTHORIZES PER DIEM,"IN ACCORDANCE WITH THE
STANDARDIZED GOVERNMENT REGULATIONS" AND REQUIRES THAT PAYMENTS UNDER
THE STATUTE BE GOVERNED THEREBY. ACCORDINGLY, NO BASIS EXISTS FOR THE
APPLICATION OF OUR DECISION 26 COMP. GEN. 564 TO THE FACTS OF THIS CASE.
THE RECORD SHOWS THAT MR. KROHN'S OFFICIAL DUTY STATION WAS
BALTIMORE, MARYLAND. PRESUMABLY, BALTIMORE WAS ALSO HIS PLACE OF
RESIDENCE OR REGULAR PLACE OF BUSINESS AS TAXI FARE IS CLAIMED AND WAS
ALLOWED FROM STATION TO HIS HOME ON HIS ARRIVAL IN BALTIMORE ON JUNE 28,
1956.
THEREFORE AND IN VIEW OF THE REQUIREMENTS OF SECTION 5, WE MUST
CONCLUDE ON THE PRESENT RECORD THAT PAYMENT OF PER DIEM FOR THE
TEMPORARY DUTY PERFORMED ON MAY 31 AND JUNE 15, 1956, BETWEEN THE HOURS
OF 8 A.M. AND 6 P.M., WAS IMPROPER UNDER PARAGRAPH 51 (NOW 6.11)
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. YOUR OWN REGULATIONS
COVERING PER DIEM AND SUBSISTENCE ALLOWANCES, 6-10-60A 2 (A) (1) (A)
CONTAIN SIMILAR LANGUAGE PRECLUDING SUCH PER DIEM PAYMENTS.
ACCORDINGLY, THE EXCEPTION APPEARS TO HAVE BEEN PROPERLY TAKEN AND
WILL BE CONTINUED PENDING
B-135063, MAR. 4, 1958
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO A LETTER DATED JANUARY 28, 1958, FROM THE
ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A
DECISION AS TO WHETHER THERE IS AUTHORIZED THE AMENDMENT OF CONTRACT NO.
14-02-001-754, DATED SEPTEMBER 4, 1956, BETWEEN THE GOVERNMENT,
REPRESENTED BY THE SOUTHWESTERN POWER ADMINISTRATION (HEREINAFTER
REFERRED TO AS SPA), AND THE M AND A ELECTRIC POWER COOPERATIVE
(HEREINAFTER REFERRED TO AS M AND A), A GENERATING AND TRANSMISSION
COOPERATIVE OF POPLAR BLUFF, MISSOURI, SO AS TO INCREASE THE
COMPENSATION OF M AND A FOR THE SERVICES RENDERED BY IT UNDER THE
CONTRACT.
UNDER THE TERMS OF THE CONTRACT, M AND A IS OBLIGATED--- SUBJECT TO
SPECIFIED CONDITIONS--- TO PURCHASE FROM THE GOVERNMENT CERTAIN AMOUNTS
OF ELECTRIC POWER AND ENERGY AT RATES SET OUT IN THE CONTRACT; TO
TRANSMIT THE PURCHASED POWER AND ENERGY FROM THE POINTS OF
INTERCONNECTION WITH ITS TRANSMISSION LINES TO ITS OWN SUBSTATIONS
DESIGNATED AS POINTS OF DELIVERY; TO TRANSMIT CERTAIN POWER AND ENERGY
FROM THE POINTS OF INTER-CONNECTION TO OTHER CUSTOMERS OF THE
GOVERNMENT; AND TO TRANSMIT SUCH AMOUNTS OF THERMAL ELECTRIC POWER AND
ENERGY AS THE GOVERNMENT MAY PURCHASE FROM M AND A. SECTION 8 OF
ARTICLE II OF THE CONTRACT PROVIDES THAT THE GOVERNMENT WILL PAY MONTHLY
AT THE RATE OF $0.00125 PER KILOWATT-HOUR FOR THE TRANSMISSION OF POWER
AND ENERGY DELIVERED BY THE GOVERNMENT INTO THE SYSTEM OF M AND A AND
FOR THE TRANSMISSION OF POWER AND ENERGY PURCHASED BY THE GOVERNMENT
FROM M AND A. THE CONTRACT IS TO REMAIN IN EFFECT UNTIL JUNE 30, 1976,
UNLESS SOONER TERMINATED AS PROVIDED THEREIN. BY SECTION 3 OF ARTICLE
VI, TWO PRIOR CONTRACTS (NOS. ISPA-479 AND ISPA-480, EACH DATED OCTOBER
5, 1951) WERE CANCELLED.
THE SPECIFIC QUESTION PRESENTED IS STATED AS FOLLOWS IN THE ASSISTANT
SECRETARY'S LETTER:
"IS SPA AUTHORIZED TO AMEND THE CONTRACT WITH M AND A TO INCREASE THE
TRANSMISSION SERVICE CHARGE PAID TO M AND A SO THAT POWER AND ENERGY
WILL BE DELIVERED TO M AND A'S LOAD CENTERS AT A RATE WHICH MORE NEARLY
APPROXIMATES SPA'S BASIC RATE? "
IT IS UNDERSTOOD THAT M AND A HAS REQUESTED AMENDMENT OF THE CONTRACT
SO AS TO PROVIDE ADDITIONAL COMPENSATION TO IT FOR TRANSMITTING FROM THE
POINTS OF INTERCONNECTION TO ITS LOAD CENTERS THE POWER AND ENERGY
PURCHASED BY IT FROM SPA (POSSIBLY, ALSO, FOR TRANSMITTING POWER AND
ENERGY FROM POINTS OF INTERCONNECTION TO OTHER CUSTOMERS OF THE
GOVERNMENT AND FOR TRANSMITTING THE THERMAL ELECTRIC POWER AND ENERGY
PURCHASED BY THE GOVERNMENT FROM M AND A), SO THAT THE ACTUAL COST TO M
AND A FOR THE POWER DELIVERED AT ITS LOAD CENTERS WILL BE CLOSER TO
SPA'S BASIC RATE. IT IS STATED, IN SUBSTANCE, IN THE ASSISTANT
SECRETARY'S LETTER AND IN THE SOLICITOR'S MEMORANDUM DATED NOVEMBER 18,
1957, COPY OF WHICH WAS TRANSMITTED WITH THE LETTER, THAT THE REQUEST OF
M AND A FOR AMENDMENT OF THE CONTRACT IS BASED ON ITS CONTENTION THAT
CERTAIN EXPRESSIONS OF CONGRESSIONAL INTENT FOUND IN THE LEGISLATIVE
HISTORY OF H.R. 6766, 84TH CONGRESS, WHICH BECAME THE PUBLIC WORKS
APPROPRIATION ACT, 1956 (PUBLIC LAW 163, 84TH CONGRESS, APPROVED JULY
15, 1955), AUTHORIZE AND REQUIRE AMENDMENT OF THE CONTRACT AS REQUESTED,
BEING APPLICABLE TO ALL CONTRACTS BETWEEN SPA AND GENERATING AND
TRANSMITTING COOPERATIVES.
IN SUPPORT OF ITS CONTENTION, M AND A APPARENTLY RELIES ESPECIALLY ON
THE FOLLOWING LANGUAGE FROM PAGE 6 OF HOUSE REPORT NO. 747, 84TH
CONGRESS, ACCOMPANYING H.R. 6766:
"IN REACTIVATING THE CONTRACTS WITH THE G. AND T. COOPERATIVES, THE
DEPARTMENT OF THE INTERIOR IS INSTRUCTED TO DELETE ANY PROVISIONS
PROVIDING FOR THE OPTION TO PURCHASE G. AND T. TRANSMISSION LINES OR
OTHER FACILITIES BY THE SOUTHWESTERN POWER ADMINISTRATION. THE
CONTRACTS ARE ALSO TO PROVIDE: (1) THAT THE G. AND T. COOPERATIVES WILL
OPERATE AND MAINTAIN THEIR OWN TRANSMISSION SYSTEMS UNDER LEASE TO THE
SPA; (2) THAT THE SPA AND THE G. AND T. COOPERATIVES WILL SETTLE
ACCOUNTS FOR POWER PURCHASED AND SOLD ON THE BASIS OF NET-BALANCE AS IS
DONE UNDER EXISTING CONTRACTS TO WHICH SPA AND PRIVATE UTILITIES ARE
PARTIES; AND (3) THAT POWER AND ENERGY WILL BE DELIVERED TO THE LOAD
CENTERS OF ALL G. AND T. CONTRACTING SYSTEMS AT THE BASIC SPA RATE.'
SEE, ALSO, HOUSE REPORT NO. 1085, 84TH CONGRESS (THE CONFERENCE
REPORT), WHERE IT IS STATED (PAGE 4):
"THE CONFEREES ARE IN AGREEMENT THAT IF NOT ALREADY INCLUDED IN
EXISTING CONTRACTS PROVISIONS ARE TO BE INSERTED TO REQUIRE THAT POWER
AND ENERGY BE DELIVERED TO THE LOAD CENTERS OF ALL GENERATING AND
TRANSMISSION CONTRACTING SYSTEMS, IF PRACTICAL, AT THE BASIC
SOUTHWESTERN POWER ADMINISTRATION RATE.'
THE PERTINENT APPROPRIATION IN PUBLIC LAW 163 IS AS FOLLOWS:
"CONTINUING FUND, SOUTHWESTERN POWER ADMINISTRATION
"NOT TO EXCEED $6,000,000 SHALL BE AVAILABLE DURING THE CURRENT
FISCAL YEAR FROM THE CONTINUING FUND FOR ALL COSTS IN CONNECTION WITH
THE PURCHASE OF ELECTRIC POWER AND ENERGY, AND RENTALS FOR THE USE OF
TRANSMISSION FACILITIES.'
IN ADDITION TO THE FACT THAT THE ABOVE-QUOTED EXCERPT FROM HOUSE
REPORT NO. 747 SPECIFICALLY REFERS TO "REACTIVATING THE CONTRACTS," IT
IS BELIEVED THAT THE ENTIRE LEGISLATIVE HISTORY OF THE APPROPRIATION IN
QUESTION INDICATES THAT ANY COMMENTS OR INSTRUCTIONS PERTAINING TO IT
WERE INTENDED TO APPLY ONLY TO CERTAIN CONTRACTS BETWEEN SPA AND FIVE
GENERATING AND TRANSMISSION COOPERATIVES WHICH HAD BEEN INOPERATIVE
DURING THE FISCAL YEARS 1954 AND 1955 BECAUSE THE CONGRESS HAD NOT
PROVIDED FUNDS TO KEEP THEM OPERATIVE.
THE TWO CONTRACTS OF M AND A DATED OCTOBER 5, 1951, WHICH WERE
CANCELLED BY CONTRACT NO. 14-02-001-754, DATED SEPTEMBER 4, 1956, AS
ABOVE STATED, WERE OPERATIVE DURING THE ENTIRE PERIOD FROM THEIR
EFFECTIVE DATE TO THE DATE OF CANCELLATION AND THEREFORE WERE NOT AMONG
THOSE CLEARLY INTENDED TO BE AFFECTED BY THE CONGRESSIONAL STATEMENTS IN
QUESTION. CONTRACT NO. 14-02-001-754, HAVING BEEN ENTERED INTO NEARLY
14 MONTHS AFTER APPROVAL OF PUBLIC LAW 163, CANNOT BE REGARDED AS
AFFECTED BY THAT STATUTE IN THE ABSENCE OF A CLEAR EXPRESSION OF
CONGRESSIONAL INTENT SO REQUIRING.
WITHOUT QUOTING EXTENSIVELY FROM THE LEGISLATIVE HISTORY OF THE
APPROPRIATION ACT, IT IS TO BE OBSERVED THAT THERE HAS NOT BEEN FOUND
ANY INDICATION IN THE LEGISLATIVE HISTORY THAT THE STATEMENTS CONCERNING
THE APPROPRIATION WERE INTENDED TO APPLY TO THE M AND A CONTRACT IN
QUESTION OR TO ANY CONTRACT OTHER THAN THOSE WHICH HAD BEEN INOPERATIVE
DURING THE FISCAL YEARS 1954 AND 1955. FOR EXAMPLE, IN HOUSE REPORT NO.
747 ABOVE REFERRED TO, THE FIRST PARAGRAPH RELATIVE TO THE CONTINUING
FUND IS AS FOLLOWS:
"THE CONTINUING FUND LANGUAGE HAS BEEN INSERTED IN THE BILL IN THE
SAME MANNER IN WHICH IT LAST APPEARED IN THE APPROPRIATION BILL FOR THE
DEPARTMENT OF THE INTERIOR FOR THE FISCAL YEAR 1953. IT PROVIDES THAT
THE SPA SHALL HAVE AUTHORITY TO USE POWER SALES REVENUES, SUBJECT TO AN
ANNUAL LIMITATION PLACED IN THE APPROPRIATION BILL, TO PAY FOR EMERGENCY
EXPENDITURES, PURCHASE OF ELECTRIC POWER AND ENERGY, AND RENTALS FOR THE
USE OF TRANSMISSION FACILITIES. THIS ACTION MAKES IT POSSIBLE TO
REACTIVATE VALID AND LEGAL CONTRACTS WHICH CERTAIN G AND T (GENERATING
AND TRANSMISSION) COOPERATIVES HAVE WITH SPA. THESE CONTRACTS AT THEIR
INCEPTION WERE EXAMINED BY THE CONGRESS AND FUNDS WERE AVAILABLE TO
CARRY THEM OUT THRU THE CONTINUING FUND FOR FISCAL YEARS 1950 THRU
1953.'
THE LAST PARAGRAPH OF THE STATEMENT ON SPA IN THAT REPORT READS:
"THE AMOUNTS PROVIDED IN THE BILL FOR BOTH OPERATION AND MAINTENANCE
AND THE CONTINUING FUND ARE BASED ON INFORMATION AT HAND. HOWEVER,
SINCE THERE WAS CONSIDERABLE VARIATION IN THE INFORMAL ESTIMATES OFFERED
DURING THE HEARINGS AS TO SPA COSTS UNDER THE REACTIVATED CONTRACTS AND
SINCE THE NATURE OF THE AMENDMENTS TO THE CONTRACT COULD AFFECT THE
AMOUNTS REQUIRED, IT IS RECOGNIZED THAT SOME ADJUSTMENT MAY BE NECESSARY
AT A LATER DATE.'
SIMILARLY, IN SENATE REPORT NO. 700, 84TH CONGRESS, ACCOMPANYING H.R.
6766, THE FIRST STATEMENTS RELATIVE TO THE CONTINUING FUND, SPA, ARE AS
FOLLOWS:
"THE COMMITTEE RECOMMENDS THAT THE SENATE CONCUR IN THE ACTION OF THE
HOUSE IN PROVIDING $6 MILLION FROM THE SALE OF POWER AND ENERGY IN THE
CONTINUING FUND. FUNDS MADE AVAILABLE IN THE CONTINUING FUND ARE FOR
THE PURCHASE OF ENERGY AND RENTAL OF FACILITIES.
"IT IS THE DESIRE OF THE COMMITTEE THAT THE EXISTING CONTRACTS
BETWEEN THE SOUTHWESTERN POWER ADMINISTRATION AND THE G. AND T.
COOPERATIVES BECOME OPERATIVE IMMEDIATELY UPON APPROVAL OF THIS ACT.
"IT IS THE OPINION OF THE COMMITTEE THAT THE SECRETARY SHOULD GIVE
CONSIDERATION TO AMENDING THE CONTRACTS AS FOLLOWS: * * *"
THE LAST PARAGRAPH OF THE SAID REPORT OF SPA READS:
"THE ACTION OF THE COMMITTEE IS NOT TO BE CONSIDERED A CONGRESSIONAL
INTERPRETATION OF THE LEGALITY OF THE CONTRACTS INVOLVED.'
IN SENATE REPORT NO. 700, NO MENTION IS MADE OF THE MATTER OF
DELIVERING POWER AND ENERGY TO THE LOAD CENTERS AT THE BASIC SPA RATE.
NEITHER IS THERE FOUND IN THE DISCUSSION OF THIS APPROPRIATION ON THE
FLOOR OF THE SENATE OR THE HOUSE OF REPRESENTATIVES ANY MENTION OF ANY
CONTRACTS OTHER THAN THOSE ABOVE REFERRED TO AS INOPERATIVE DURING THE
FISCAL YEARS 1954 AND 1955, NOR DO THE HEARINGS INDICATE THAT ANY OTHER
CONTRACTS WERE UNDER CONSIDERATION BY THE COMMITTEES.
FOR THE REASONS ABOVE SET OUT AND PARTICULARLY IN VIEW OF THE FACT
THAT CONTRACT NO. 14-02-001-754 WAS ENTERED INTO LONG AFTER THE
APPROVAL OF PUBLIC LAW 163, THERE IS NOT PERCEIVED ANY VALID GROUND FOR
CONSIDERING THE CITED EXPRESSIONS OF LEGISLATIVE INTENT AS JUSTIFYING
THE AMENDMENT OF THE CONTRACT AS REQUESTED WITHOUT OTHER CONSIDERATION.
ACCORDINGLY, THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE
NEGATIVE.
B-135091, MAR. 4, 1958
TO MR. R. R. SPEARS, DISBURSING OFFICER, CORPS OF ENGINEERS:
YOUR LETTER OF DECEMBER 31, 1957, REFERENCE SALVF/SEC, REQUESTS OUR
DECISION AS TO WHETHER YOU MAY MAKE PAYMENT ON A VOUCHER TRANSMITTED
THEREWITH IN THE AMOUNT OF $206.25. THE VOUCHER REPRESENTS A CLAIM BY
MR. NACE E. MASON, AN EMPLOYEE OF THE CORPS OF ENGINEERS, FOR ADDITIONAL
REIMBURSEMENT ON ACCOUNT OF TRANSPORTATION EXPENSES AND SHIPMENT OF HIS
HOUSEHOLD EFFECTS FROM BUTAW, ALABAMA, TO MOBILE, ALABAMA, INCIDENT TO A
PERMANENT CHANGE OF STATION.
THE RECORD DISCLOSES THAT ON AUGUST 26, 1957, TRAVEL ORDER NO. 1442
WAS ISSUED TO THE CLAIMANT FOR PERMANENT CHANGE OF STATION. THE ORDER
STATED THE EMPLOYEE HAD DEPENDENTS AND AUTHORIZED MOVEMENT OF THE
DEPENDENTS, AND THE MOVEMENT OF HOUSEHOLD EFFECTS NOT IN EXCESS OF 7,000
LBS. UNCRATED, OR 8,750 LBS. CRATED. AT THE TIME OF ISSUANCE OF THE
TRAVEL ORDER, IT IS DISCLOSED, THAT THE EMPLOYEE'S HOUSEHOLD CONSISTED
OF HIMSELF, HIS DEPENDENT DAUGHTER-IN-LAW, AND HER THREE CHILDREN. ON
AUGUST 29, 1957, THE EMPLOYEE SHIPPED HOUSEHOLD GOODS WEIGHING 7,280
POUNDS. SUBSEQUENT REIMBURSEMENT WAS MADE AT THE COMMUTED RATE FOR
2,500 POUNDS.
EXECUTIVE ORDER NO. 9805, NOVEMBER 25, 1946, AS AMENDED, PROVIDES IN
SUBSTANCE THAT AN EMPLOYEE HAVING AN IMMEDIATE FAMILY MAY BE
ADMINISTRATIVELY AUTHORIZED TO TRANSPORT HOUSEHOLD GOODS AND PERSONAL
EFFECTS NOT IN EXCESS OF 7,000 POUNDS UNCRATED. AN EMPLOYEE WITHOUT AN
IMMEDIATE FAMILY IS SUBJECT TO A LIMITATION OF 2,500 POUNDS FOR AN
UNCRATED SHIPMENT. TRANSPORTATION EXPENSES OF THE "IMMEDIATE FAMILY"
MAY BE AUTHORIZED. SECTION 2 (D) OF THAT ORDER DEFINES AN IMMEDIATE
FAMILY AS FOLLOWS:
" "IMMEDIATE FAMILY" MEANS ANY OF THE FOLLOWING-NAMED MEMBERS OF THE
EMPLOYEE'S HOUSEHOLD: SPOUSE, CHILDREN (INCLUDING STEPCHILDREN AND
ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE OR
PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF
AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE (BUT NOT OF THE SPOUSE).'
SINCE NEITHER MR. MASON'S DAUGHTER-IN-LAW NOR HER CHILDREN ARE
EMBRACED WITHIN THE TERM ,IMMEDIATE FAMILY" AS DEFINED IN THE SAID
ORDER, IT APPEARS THAT HE WAS PROPERLY RESTRICTED TO THE MAXIMUM WEIGHT
ALLOWABLE TO AN EMPLOYEE WHO HAS NO IMMEDIATE FAMILY. ADDITIONALLY,
THEIR TRANSPORTATION EXPENSES ACTUAL OR CONSTRUCTIVE ARE NOT FOR
CONSIDERATION.
B-135123, MAR. 4, 1958
TO MR. ROBERT V. BROOK:
REFERENCE IS MADE TO LETTER DATED JANUARY 16, 1958, WRITTEN ON YOUR
BEHALF BY MR. J. FRANK SHEPHERD, RELATIVE TO YOUR INDEBTEDNESS TO THE
UNITED STATES AMOUNTING TO $322, REPRESENTING OVERPAYMENT OF FAMILY
ALLOWANCE PAID TO YOUR FORMER WIFE AMOUNTING TO $190, AND NON-DEDUCTION
OF $22 MONTHLY AS YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE PAID TO HER
ON ACCOUNT OF YOUR CHILD AMOUNTING TO $132. EACH OF THESE ITEMS WAS
FULLY EXPLAINED TO YOU IN LETTER OF OUR CLAIMS DIVISION DATED DECEMBER
30, 1957.
WITH RESPECT TO THE PAYMENT OF A FAMILY ALLOWANCE TO A WIFE SEPARATED
OR DIVORCED FROM HER HUSBAND, SECTION 106 (C) OF THE SERVICEMEN'S
DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED BY SECTION 6 (C) OF THE ACT
OF OCTOBER 26, 1943, 37 U.S. CODE 206 (C) (1946 EDITION), PROVIDED:
"/C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, IN ANY
CASE IN WHICH A FAMILY ALLOWANCE IS GRANTED UNDER THIS CHAPTER---
"/1) TO A WIFE LIVING SEPARATE AND APART FROM THE ENLISTED MAN UNDER
A PERMANENT OR TEMPORARY COURT ORDER OR DECREE OR WRITTEN AGREEMENT, THE
AMOUNT OF THE FAMILY ALLOWANCE PAYABLE TO SUCH WIFE SHALL NOT EXCEED THE
AMOUNT PROVIDED IN SUCH ORDER, DECREE, OR WRITTEN AGREEMENT TO BE PAID
TO SUCH WIFE, AND IF SUCH ORDER, DECREE, OR WRITTEN AGREEMENT PROVIDES
NO AMOUNT TO BE PAID TO SUCH WIFE, NO FAMILY ALLOWANCE SHALL BE PAYABLE
TO HER; OR
"/2) TO A FORMER WIFE DIVORCED, THE FAMILY ALLOWANCE PAYABLE TO SUCH
FORMER WIFE DIVORCED SHALL NOT EXCEED THE AMOUNT FIXED IN THE COURT
ORDER OR DECREE AS THE AMOUNT TO BE PAID TO SUCH FORMER WIFE DIVORCED.'
SECTION 106 (A) OF THE 1942 ACT PROVIDED THAT THE MONTHLY PAY OF AN
ENLISTED MAN SHOULD BE REDUCED BY OR CHARGED WITH $22 FOR ANY MONTH FOR
WHICH A FAMILY ALLOWANCE WAS PAID TO THE DEPENDENT OF SUCH ENLISTED MAN.
SECTION 105 OF THAT ACT PROVIDED THAT THE AMOUNT OF THE MONTHLY FAMILY
ALLOWANCE PAYABLE TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN
SHOULD BE $80 FOR A WIFE AND ONE CHILD OR $42 FOR A CHILD BUT NO WIFE.
IT APPEARS TO BE YOUR ATTORNEY'S CONTENTION THAT THE REPEAL OF THE
SERVICEMEN'S DEPENDENTS ALLOWANCE ACT BY SECTION 531 (D) OF THE CAREER
COMPENSATION ACT OF 1949, 63 STAT. 841, BARS RECOVERY FROM YOU AFTER
OCTOBER 1, 1949, OF THE ERRONEOUS PAYMENTS MADE TO YOU UNDER THE EARLIER
STATUTE. NO AUTHORITY WAS CITED FOR THAT CONCLUSION AND WE KNOW OF NONE
WHICH SUPPORTS THAT POINT OF VIEW. THAT REPEAL MERELY PUT AN END TO
FURTHER PAYMENTS OF FAMILY ALLOWANCES EXCEPT IN CASES OF "SAVED PAY"
AUTHORIZED UNDER THE CAREER COMPENSATION ACT. SUCH REPEAL FORMS NO
BASIS FOR PERMITTING IMPROPER PAYMENTS OF FAMILY ALLOWANCE TO GO
UNQUESTIONED.
THE RECORD SHOWS THAT BY AN ORDER ENTERED FEBRUARY 12, 1946, IN THE
CIRCUIT COURT FOR THE CITY OF LYNCHBURG, VIRGINIA, IN THE CASE OF ROBERT
VERNON BROOK V. LAURA VIRGINIA BROOK, A DIVORCE "A MENSA ET THORO" WAS
GRANTED TO YOU. BY AN ORDER ENTERED JUNE 1, 1946, IN THE SAME COURT
INVOLVING THE SAME PARTIES, THE DECREE OF DIVORCE "A MENSA ET THORO" WAS
MERGED INTO A FINAL DECREE OF DIVORCE AND THE MARRIAGE DISSOLVED.
NEITHER OF THOSE ORDERS MADE ANY PROVISION FOR THE SUPPORT OF LAURA
VIRGINIA BROOK, BUT THE ORDER OF FEBRUARY 12, 1946, GRANTED HER THE
LEGAL CUSTODY OF YOUR MINOR CHILD, GLORIA JEAN BROOK. THE RECORD SHOWS
FURTHER, THAT YOU DID NOT NOTIFY YOUR DISBURSING OFFICER AND THE OFFICE
OF DEPENDENCY BENEFITS OF ANY CHANGE IN YOUR MARITAL STATUS UNTIL THE
LATTER PART OF JULY 1946 WHEN YOU REPORTED THAT YOU WERE DIVORCED ON
JUNE 1, 1946. THIS DELAY ON YOUR PART RESULTED IN OVERPAYMENT TO LAURA
VIRGINIA BROOK FOR THE PERIOD FROM MARCH 1, 1946, THROUGH JULY 31, 1946,
OF THE DIFFERENCE BETWEEN $80 MONTHLY, AS PAID, AND $42 MONTHLY, AS
ENTITLED FOR YOUR CHILD, GLORIA JEAN BROOK, OR $38 MONTHLY FOR FIVE
MONTHS AMOUNTING TO $190.
IN ADDITION TO THE FOREGOING, OUR RECORDS SHOW THAT YOUR FORMER WIFE
WAS ENTITLED TO AND WAS PAID THE SUM OF $42 MONTHLY FOR YOUR CHILD,
GLORIA, FOR THE PERIOD FROM AUGUST 1, 1946, THROUGH DECEMBER 31, 1946.
HOWEVER, YOUR MILITARY PAY ACCOUNT FAILS TO SHOW THAT DEDUCTIONS OF $22
MONTHLY WERE DEDUCTED FROM YOUR PAY FOR THE PERIOD FROM JULY 1, 1946,
THROUGH DECEMBER 31, 1946, AS REQUIRED BY THE ABOVE-CITED PROVISIONS OF
LAW. THE RESULT WAS THAT YOU WERE OVERPAID AT THE RATE OF $22 MONTHLY
FOR THAT PERIOD OF SIX MONTHS, OR $132. THUS, THE OVERPAYMENTS MADE
TOTAL $322.
IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID
BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE
COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND
GOOD CONSCIENCE TO MAKE RESTITUTION. ACCORDINGLY, WE SEE NO REASON WHY
YOU SHOULD NOT REPAY THE AMOUNT OF THE OVERPAYMENTS. SEE UNITED STATES
V. BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL RAILROAD CO., V. UNITED
STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382; AND THE
CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL
COMPANY, 11 F.2D 24, AND IN 63 A.L.R. 1346. THOSE IMPROPER PAYMENTS
CONSTITUTE A DEBT DUE TO THE UNITED STATES FROM YOU. 33 COMP. GEN. 309.
SINCE IT APPEARS FROM RECORDS AVAILABLE TO US THAT YOU ARE
FINANCIALLY ABLE TO MAKE MONTHLY REMITTANCES TO REDUCE THIS DEBT OF
$322, IT IS REQUESTED THAT COMMENCING WITHIN 30 DAYS FROM THE DATE OF
THIS LETTER YOU BEGIN TO MAKE MONTHLY PAYMENTS, SUBMITTING WITH THE
FIRST PAYMENT A PLAN FOR SETTLEMENT SO THAT THE BALANCE MAY BE
LIQUIDATED WITHIN A REASONABLE TIME.
YOUR PAYMENTS SHOULD BE MADE PAYABLE TO THE UNITED STATES GENERAL
ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C.
B-135181, MAR. 4, 1958
TO MR. ALLEN E. CASPERSON:
REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 12, 1958, REQUESTING
REVIEW OF OUR SETTLEMENT DATED MARCH 6, 1951. IN THAT SETTLEMENT THERE
WAS FOUND DUE YOU THE SUM OF $75 REPRESENTING EXCESS FAMILY ALLOWANCE
DEDUCTIONS AT THE RATE OF $5 A MONTH MADE FROM YOUR ARMY PAY ($60 FOR
THE PERIOD FROM JULY 1, 1948, THROUGH JUNE 30, 1949, AND $15 FOR THE
PERIOD FROM JULY 1 TO SEPTEMBER 30, 1949). THERE WAS ALSO FOUND DUE YOU
THE SUM OF $8.70, REPRESENTING CLOTHING ALLOWANCE FOR THE
PERIOD FROM JULY 1 TO DECEMBER 15, 1949, EXCLUSIVE OF PERIODS OF
ABSENCE WITHOUT LEAVE. FROM THE TOTAL OF $83.70 THUS FOUND DUE YOU
THERE WAS WITHHELD THE SUM OF $7.37 TO LIQUIDATE AN INDEBTEDNESS IN THAT
AMOUNT, COMPRISING (1) $6.49, AS LAUNDRY CHARGES NOT DEDUCTED FROM YOUR
PAY CURRENTLY, AND (2) $0.88, AS THE UNSATISFIED BALANCE, AT DATE OF
DISCHARGE, OF A COURT-MARTIAL FORFEITURE IN THE AMOUNT OF $44. THE
AMOUNT OF $76.33 WAS ACCORDINGLY CERTIFIED FOR PAYMENT TO YOU ($60 FOR
THE PERIOD ENDING JUNE 30, 1949, AND THE NET AMOUNT OF $16.33 FOR THE
PERIOD FROM JULY 1 TO DECEMBER 15, 1949).
YOU SAY THAT YOU RECEIVED ONLY $1 AS PAY IN SEPTEMBER 1949; THAT IN
OCTOBER, NOVEMBER, AND DECEMBER 1949, YOU RECEIVED ONLY A PARTIAL
PAYMENT OF $10 AT BREMERHAVEN IN NOVEMBER 1949; THAT YOU SIGNED UP FOR
A "DEFENSE BOND" IN JULY 1949 BUT NEVER RECEIVED ANY BONDS ALTHOUGH
DEDUCTIONS THEREFOR WERE MADE FROM YOUR PAY; AND THAT A SUM WAS
DEDUCTED, WITHOUT YOUR CONSENT, FOR MEMBERSHIP IN THE FIRST DIVISION
SOCIETY. ON SUCH BASIS YOU BELIEVE THERE IS DUE YOU AT LEAST THE
AMOUNT OF $200.
IN VIEW OF YOUR PROTESTS, YOUR PAY ACCOUNT FOR THE PERIOD FROM JULY 1
TO DECEMBER 15, 1949, HAS BEEN CAREFULLY REVIEWED. DURING SUCH PERIOD
THE FAMILY ALLOWANCE AT THE RATE OF $42 A MONTH WAS PAID IN BEHALF OF
YOUR MINOR CHILD AND UNDER THE APPLICABLE STATUTORY PROVISIONS YOUR
REQUIRED CONTRIBUTION TO SUCH ALLOWANCE WAS $22 A MONTH. THE DEPARTMENT
OF THE ARMY HAS REPORTED THAT YOUR APPLICATION, DATED JUNE 23, 1948, FOR
THE FAMILY ALLOWANCE FOR YOUR MOTHER WAS DISAPPROVED BECAUSE THE
REQUESTED EVIDENCE WAS NEVER RECEIVED. HENCE ALL ADDITIONAL FAMILY
ALLOWANCE DEDUCTIONS MADE FROM YOUR PAY AT THE RATE OF $5 A MONTH WERE
ERRONEOUS. YOU WERE ABSENT WITHOUT LEAVE FROM JULY 21 TO 30, 1949, AND
FROM OCTOBER 29 TO NOVEMBER 8, 1949, AND YOUR MILITARY PAY RECORD FOR
THE PERIOD FROM JULY 1 TO DECEMBER 15, 1949, SHOWS CHECKAGES OF YOUR PAY
AND ALLOWANCES FOR THE PERIODS OF ABSENCE WITHOUT LEAVE. THESE
CHECKAGES WERE MADE UNDER THE PROVISIONS OF SECTION 4 OF THE ARMED
FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4,
1947, 61 STAT. 748, WHICH PROVIDES THAT MEMBERS OF THE ARMED FORCES,
WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, UNLESS SUCH ABSENCE IS
EXCUSED AS UNAVOIDABLE. YOUR MILITARY PAY RECORD FOR THE PERIOD
INVOLVED ALSO SHOWS A CHECKAGE OF $44 AS FORFEITURE UNDER COURT-MARTIAL
SENTENCE APPROVED AUGUST 4, 1949. THE PAY RECORD SHOWS NO DEDUCTIONS
FOR THE PURCHASE OF BONDS OR FOR MEMBERSHIP IN THE FIRST DIVISION
SOCIETY.
UNDER THE SAVINGS PROVISIONS OF SUBSECTION (B) OF SECTION 515 OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 831, EFFECTIVE OCTOBER 1,
1949, AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WAS NOT TO SUFFER ANY
REDUCTION, BY REASON OF SUCH ACT, IN THE TOTAL COMPENSATION WHICH HE WAS
ENTITLED TO RECEIVE UNDER ANY PROVISION OF LAW IN EFFECT ON SEPTEMBER
30, 1949. THE SAID SUBSECTION (B) FURTHER PROVIDES THAT THE SAVINGS
PROVISIONS CONTAINED THEREIN SHALL CEASE TO APPLY TO ANY PART OF SUCH
TOTAL COMPENSATION UPON THE FAILURE OF SUCH MEMBER OR HIS DEPENDENTS TO
QUALIFY THEREFOR OR TO BE ENTITLED THERETO.
THE RECORDS SHOW THAT AS OF SEPTEMBER 30, 1949, YOU WERE CREDITED
WITH A TOTAL MONTHLY COMPENSATION OF $113.75 (CONSISTING OF $78.75 AS
PAY OF RECRUIT WITH OVER 3 YEARS OF SERVICE, $15 AS FOREIGN SERVICE PAY
AND $20 AS THE GOVERNMENT'S CONTRIBUTION TOWARD FAMILY ALLOWANCE
PAYMENTS TO YOUR DEPENDENT). YOUR TOTAL COMPENSATION EFFECTIVE OCTOBER
1, 1949, AT THE RATES PRESCRIBED IN THE CAREER COMPENSATION ACT OF 1949
($87.50 A MONTH AS THE PAY OF A RECRUIT WITH OVER 2 YEARS OF SERVICE AND
$8 A MONTH AS FOREIGN SERVICE PAY), AMOUNTING TO ONLY $95.50 A MONTH,
YOU CONTINUED TO BE ENTITLED TO RECEIVE THE HIGHER COMPENSATION OF
$113.75 A MONTH AND YOUR DEPENDENT CONTINUED TO BE ENTITLED TO RECEIVE
MONTHLY FAMILY ALLOWANCE BENEFITS. AN EXAMINATION OF YOUR PAY RECORD
FOR THE PERIOD INVOLVED SHOWS THAT THE DEPARTMENT OF THE ARMY CONSIDERED
THAT YOUR RIGHT TO SAVED PAY TERMINATED WHEN YOU ABSENTED YOURSELF
WITHOUT LEAVE ON OCTOBER 29, 1949, AND THAT YOU WERE NOT
THEREAFTER CREDITED WITH SAVED PAY.
IT IS OUR VIEW, HOWEVER, THAT SECTION 4 (B) OF THE ARMED FORCES LEAVE
ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61
STAT. 748--- WHILE REQUIRING THAT MEMBERS OF THE ARMED FORCES WHO ARE
ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE SHALL FORFEIT ALL PAY AND
ALLOWANCES DURING SUCH ABSENCE UNLESS THE ABSENCE IS EXCUSED AS
UNAVOIDABLE--- PLAINLY CONTEMPLATES THAT ENLISTED MEN OF THE ARMED
FORCES SHALL CONTINUE IN A PAY STATUS DURING PERIODS OF ABSENCE WITHOUT
LEAVE. THAT BEING THE CASE AND IN THE ABSENCE OF A SPECIFIC PROVISION
OF LAW OR REGULATION REQUIRING THAT ABSENCE WITHOUT LEAVE OR ABSENCE
OVER LEAVE SHALL TERMINATE ENTITLEMENT TO SAVED PAY, THE BASIC
ENTITLEMENT OF ANY INDIVIDUAL TO SUCH PAY MUST BE VIEWED AS CONTINUING
IN FULL FORCE AND EFFECT. ON SUCH BASIS YOU SHOULD HAVE BEEN CREDITED
WITH SAVED PAY TO THE DATE OF YOUR DISCHARGE, IT APPEARING THAT YOUR
ENTITLEMENT TO SUCH PAY CONTINUED EVEN AFTER YOU CEASED TO BE ENTITLED
TO FOREIGN SERVICE PAY.
A REVISED STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD FROM JULY 1 TO
DECEMBER 15, 1949, IS AS FOLLOWS:
TABLE
CREDITS BASE, LONGEVITY AND FOREIGN SERVICE PAY AS A PRIV
FIRST CLASS, WITH OVER 3 YEARS OF SERVICE, JULY 1 TO AUGUST 3, 1949, AT
$112.50 A MONTH $123.75 BASE, LONGEVITY AND FOREIGN SERVICE PAY AS A
RECRUIT WITH OVER 3 YEARS OF SERVICE, AUGUST
4 TO SEPTEMBER 30, 1949, AT $93.75 A MONTH 178.13
SERVICE PAY AS A RECRUIT WITH OVER 3 YEARS OF SERVICE, OCTOBER 1 TO
DECEMBER 7, 1949, AT $93.75 A
MONTH 209.38 BASE AND LONGEVITY PAY AS A RECRUIT WIT
DECEMBER 8 TO 15, 1949, AT $78.75 A MONTH
RATIONS, JULY 5 TO 20, 1949, AT $1.10 A DAY 17.60 CLOTHING ALL
JULY 1 TO DECEMBER 15, 1949 (EXCLUSIVE OF PERIODS OF ABSENCE WITHOUT
LEAVE), AT $1.80 A MONTH
8.70 $558.56
CHARGES CLASS N. ALLOTMENT, JULY THROUGH DECEMBER 1949, A
$3.30 A MONTH $ 19.80 FAMILY AL
THROUGH DECEMBER 1949, AT $22 A MONTH
FORFEITURE, APPROVED AUGUST 4, 1949 44.00 FORFEITURE OF PAY FO
JULY 21 TO 30, 1949, AT $112.50 A MONTH 37.50 FORFEI
WITHOUT LEAVE FROM OCTOBER 29 TO NOVEMBER 8, 1949, AT $93.75 A MONTH
GOVERNMENT PROPERTY LOST OR DAMAGED 4.15 LAUNDRY AND DRY CLE
9.01 SOLDIER'S HOME DEDUCTIONS 0.55
OFFICERS 154.00 ALLOWED BY SETTLEMENT DATED MA
16.33 $448.59
------- ------- BALANCE DUE
$109.97
THE PERTINENT PAYROLL VOUCHERS FOR THE PERIOD INVOLVED HAVE BEEN
WITHDRAWN FROM THE FILES AND EXAMINED. DURING SUCH PERIOD YOU RECEIVED
PAYMENTS AS FOLLOWS: $82 ON AUGUST 1, 1949, VOUCHER NO. 1253, AUGUST
1949 ACCOUNTS OF JOHN M. LYDICK, APO 1; $1 ON AUGUST 31, 1949, VOUCHER
NO. 2437, SEPTEMBER 1949 ACCOUNTS OF THE SAME DISBURSING OFFICER; $61
ON SEPTEMBER 30, 1949, VOUCHER NO. 3183, OCTOBER 1949 ACCOUNTS OF THE
SAME DISBURSING OFFICER; AND $10 ON NOVEMBER 25, 1949, VOUCHER NO.
241, NOVEMBER 1949 ACCOUNTS OF H. A. GORDON, APO 69. THESE VOUCHERS
BEAR THE SIGNATURE OF ,ALLEN E. CASPERSON" IN THE COLUMN PROVIDED FOR
THE PAYEES TO SIGN FOR THE AMOUNTS RECEIVED.
B-135236, MAR. 4, 1958
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 10, 1958, FILE PERS-B3A,
FROM THE DIRECTOR, TRANSPORTATION DIVISION, BUREAU OF NAVAL PERSONNEL,
DEPARTMENT OF THE NAVY, REQUESTING AN EXCEPTION TO PARAGRAPH (24) OF
APPENDIX A TO OUR GENERAL REGULATIONS NO. 123 (CHAPTER 2000, TITLE 5 OF
OUR POLICY AND PROCEDURES MANUAL), COVERING PASSENGER TRANSPORTATION
SERVICES.
PARAGRAPH (24) REQUIRES THAT THE WRITTEN SIGNATURE OF THE TRAVELER BE
PLACED IN THE SPACE PROVIDED THEREFOR ON STANDARD FORM NO. 1169, THE
UNITED STATES OF AMERICA TRANSPORTATION REQUEST, BEFORE THAT DOCUMENT IS
VALID FOR SERVICE. WE ARE ASKED TO GRANT AN EXCEPTION THAT WOULD PERMIT
THE "TRAVELER'S REPRESENTATIVE" TO SIGN BOTH HIS NAME AND THE TRAVELER'S
NAME ON THE TRANSPORTATION REQUEST, THEREBY VALIDATING THAT DOCUMENT FOR
SERVICE. IT IS NOT STATED WHETHER THE TRAVELER'S REPRESENTATIVE IS
SOMEONE SPECIFICALLY DESIGNATED IN ADVANCE TO ACT FOR VARIOUS TRAVELERS
AS THE OCCASION ARISES OR WHETHER SUCH REPRESENTATIVE IS CHOSEN WITHOUT
PRIOR ARRANGEMENT AT THE TIME TRAVELERS ARE PREPARED TO OBTAIN
TRANSPORTATION. THE PROPOSAL APPARENTLY IS INTENDED TO BE APPLIED TO
THE PROCUREMENT OF ALL TICKETS FOR TRANSPORTATION AND ACCOMMODATIONS FOR
TEMPORARY DUTY TRAVEL OF CIVILIAN AND MILITARY PERSONNEL IN THE NAVY
DEPARTMENT.
IT IS STATED THAT PRESENT NAVY PROCEDURES AS TO TEMPORARY DUTY TRAVEL
REQUIRE A TRAVELER'S REPRESENTATIVE TO DELIVER THE ORDERS (NOT OTHERWISE
IDENTIFIED), THEN RETURN FOR THE TRANSPORTATION REQUEST, AND RETURN TO
THE TRAVELER'S OFFICE TO OBTAIN HIS SIGNATURE AFTER WHICH THE
REPRESENTATIVE PICKS UP THE CARRIER'S TICKET. IT IS FURTHER STATED THAT
THE REQUESTED EXCEPTION TO OUR REGULATIONS FOR THE CONTEMPLATED PURPOSE
IS BASED ON THE TIME LAG BETWEEN ISSUING
TRANSPORTATION REQUEST AND OBTAINING THE TRAVELER'S SIGNATURE.
OUR GENERAL REGULATIONS NO. 123 WERE FORMULATED AFTER CONSIDERABLE
DISCUSSION WITH THE GOVERNMENT AGENCIES AND REPRESENTATIVES OF THE
TRANSPORTATION INDUSTRY, AS BEING BEST DESIGNED TO PROTECT THE INTEREST
OF THE GOVERNMENT, THE TRAVELERS, AND THE CARRIERS. UNLESS UNUSUAL
SITUATIONS OR EMERGENCIES ARISE WHICH ARE PRODUCTIVE OF DISADVANTAGEOUS
AND UNECONOMICAL OPERATIONS BECAUSE OF ADHERENCE TO THE SPECIFIED
REQUIREMENTS OF THE REGULATIONS, WE ARE RELUCTANT TO APPROVE REQUESTS
FOR EXCEPTIONS TO THEM. WHILE WE RECOGNIZE, IN APPROPRIATE SITUATIONS,
THE DESIRABILITY OF CONCURRING IN THE ESTABLISHMENT OF ANY EFFECTIVE
MEASURES WHICH CONTRIBUTE TO MORE EFFICIENT AND ECONOMICAL
ADMINISTRATIVE OPERATIONS WITHOUT DETRIMENT TO THE GOVERNMENT'S OVERALL
INTEREST, A BLANKET EXCEPTION TO THE REQUIREMENT OF PARAGRAPH (24) AS
REQUESTED, DOES NOT APPEAR JUSTIFIED. THE SUBMITTED PROPOSAL IS NOT
PRESENTED IN SUFFICIENT DETAIL AS TO, FOR EXAMPLE, WHY IT IS NECESSARY
FOR A TRAVELER'S REPRESENTATIVE TO DELIVER "THE ORDERS" AND "THEN RETURN
FOR THE T/RS.' WE ARE NOT INFORMED OF THE BASIS FOR SELECTING
REPRESENTATIVES AND OF ANY LIMITATION UPON THEIR NUMBER; THE LOCATION
OF THE TRAVELERS IN RELATION TO THE OFFICE AUTHORIZING TRAVEL AND
ISSUING TRANSPORTATION REQUESTS; HOW MANY TRAVELERS WOULD BE AFFECTED;
AND THE IMPORTANCE OF THE TIME ELEMENT INSOFAR AS THE NECESSITIES OF THE
PARTICULAR TRAVEL ARE CONCERNED.
UNDER THE CIRCUMSTANCES, WE CANNOT PROPERLY APPROVE THE PROPOSAL AS
SUBMITTED.
B-135303, MAR. 4, 1958
TO MR. R. E. PODOLAK, CHIEF:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1958, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE
TO AN ERROR THAT BALES LUMBER COMPANY, CALDWELL, IDAHO, ALLEGES IT MADE
IN ITS BID OPENED JANUARY 28, 1958.
BY INVITATION NO. SFW1-57, DATED JANUARY 9, 1958, THE FISH AND
WILDLIFE SERVICE, BUREAU OF SPORT FISHERIES AND WILDLIFE, PORTLAND,
OREGON, REQUESTED BIDS FOR FURNISHING, AMONG OTHER ITEMS, SECTIONAL
OVERHEAD DOORS,"ROLL UP" TYPE UNDER ITEM 6. IN RESPONSE BALES LUMBER
COMPANY SUBMITTED AN UNDATED BID, OFFERING TO FURNISH, AMONG OTHERS, THE
OVERHEAD DOORS UNDER ITEM 6 FOR THE PRICE OF $225. FOUR OTHER BIDS
RANGED IN PRICE FROM $470 TO $583.50.
UPON BEING REQUESTED, BY LETTER DATED JANUARY 30, 1958, TO CONFIRM
ITS BID ON ITEM 6, THE COMPANY ADVISED THAT ITS SUPPLIER HAD QUOTED ON
SPECIFICATIONS DIFFERING FROM THOSE SET FORTH IN THE BID INVITATION AND
REQUESTED PERMISSION TO CORRECT ITS BID FROM $225 TO $339.50. THE
CORRECTED BID IF PERMITTED WOULD STILL BE THE LOWEST RECEIVED.
THERE APPEARS NO ROOM FOR DOUBT THAT BALES LUMBER COMPANY MADE AN
ERROR IN ITS BID AS ALLEGED. HOWEVER, SINCE THE COMPANY IS UNABLE TO
SATISFACTORILY EXPLAIN THE BASIS OF THE ERROR, IT CANNOT BE SAID THAT
ITS INTENDED PRICE AT THE TIME OF BIDDING IS CONCLUSIVELY ESTABLISHED SO
AS TO WARRANT A DEPARTURE FROM THE BASIC RULE THAT BIDS MAY NOT BE
CHANGED OR CORRECTED AFTER THE BIDS HAVE BEEN OPENED. SEE 17 COMP. GEN.
575.
ACCORDINGLY, THE BID OF BALES LUMBER COMPANY, AS TO ITEM 6 SHOULD BE
DISREGARDED IN MAKING THE AWARD.
B-134036, MAR. 3, 1958
TO LIEUTENANT COLONEL PAUL D. PARKER, USMC:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1957, RELATIVE TO
YOUR CLAIM FOR PER DIEM FOR TEMPORARY ADDITIONAL DUTY AT THE NAVAL AIR
STATION, CUBI POINT, PHILIPPINE ISLANDS, FOR THE PERIOD MARCH 14 THROUGH
APRIL 1, 1957.
THE DUTY WAS PERFORMED UNDER GROUP TRAVEL ORDERS WHICH REQUIRED YOU
TO OBTAIN THE NECESSARY ENDORSEMENTS OR CERTIFICATES INDICATING THE
AVAILABILITY AND UTILIZATION OF GOVERNMENT QUARTERS AND MESSING
FACILITIES, AND PERIODS OF FIELD DUTY WITHIN THE MEANING OF PARAGRAPH
4250-3, JOINT TRAVEL REGULATIONS. YOUR CLAIM SUPPORTED BY YOUR
STATEMENT DATED JUNE 10, 1957, WAS PRESENTED TO THE DISBURSING OFFICER
OF YOUR ORGANIZATION WHO, FINDING NO BASIS UNDER THE REGULATIONS TO DO
SO, REFUSED TO PAY IT. ON JUNE 21, 1957, YOU AMENDED YOUR CLAIM WITH A
SUPPLEMENTARY STATEMENT. THE CLAIM, TOGETHER WITH BOTH STATEMENTS, THE
REQUIRED ENDORSEMENTS AND ADMINISTRATIVE STATEMENTS, WAS FORWARDED TO US
BY HEADQUARTERS, U.S. MARINE CORPS WITH THE ADVICE THAT PAYMENT WOULD
NOT BE MADE BY THE MARINE CORPS. THE DISALLOWANCE OF YOUR CLAIM WAS
SUSTAINED IN OUR DECISION B-134036, DATED NOVEMBER 19, 1957, FOR THE
REASON THAT YOU WERE IN EITHER A GROUP TRAVEL OR A FIELD DUTY STATUS
DURING THE PERIOD INVOLVED AND, SINCE BOTH GOVERNMENT QUARTERS AND
MESSING FACILITIES WERE AVAILABLE, THERE WAS NO AUTHORITY UNDER
APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS FOR THE ALLOWANCE
OF YOUR CLAIM.
YOU EXPRESS THE BELIEF THAT THERE ARE THREE PERTINENT ISSUES INVOLVED
IN YOUR CLAIM. THE FIRST IS WHETHER YOU SHOULD BE ALLOWED $1.50 FOR THE
EVENING MEAL AT NAVAL AIR STATION, CUBI POINT, ON MARCH 14, 1957, IT
BEING YOUR CONTENTION THAT THE FLIGHT WAS PLANNED TO CONTINUE OVER ONE
MEAL HOUR AND ACTUALLY CONTINUED OVER TWO MEAL HOURS, AND THAT BOX
LUNCHES AT GOVERNMENT EXPENSE WERE AVAILABLE FOR ONLY ONE MEAL PER
PASSENGER. YOU STATE THAT YOU WERE REQUIRED TO SECURE THE EVENING MEAL
AT AN OPEN MESS AT CUBI POINT. IN A REPORT DATED JUNE 27, 1957, THE
DISBURSING OFFICER STATED THAT "BOX LUNCHES WERE AVAILABLE TO LIEUTENANT
COLONEL PARKER ON 14 MARCH 1957.' TO THE EXTENT THAT YOUR CLAIM
CONTROVERTS SUCH OFFICIAL REPORT, THIS OFFICE NECESSARILY MUST BASE ITS
ACTION ON THE ADMINISTRATIVE REPORT IN THE ABSENCE OF EVIDENCE CLEARLY
ESTABLISHING THE LATTER TO BE ERRONEOUS. IN ANY EVENT, IT IS CLEAR THAT
GOVERNMENT MESSING FACILITIES WERE AVAILABLE AT CUBI POINT AND IN SUCH
CIRCUMSTANCES A RIGHT TO PER DIEM COULD NOT ACCRUE BY VIRTUE OF THE
PURCHASE OF A MEAL AT AN OPEN MESS AT THAT PLACE.
CONCERNING THE SECOND ISSUE YOU HAVE RAISED, THE TERM "RATIONS IN
KIND" AS USED IN PARAGRAPH 4250-3 OF THE JOINT TRAVEL REGULATIONS MEANS
MEALS FURNISHED AT A GOVERNMENT MESS OF ANY KIND WHICH IS IN OPERATION
DURING A PERIOD OF MANEUVERS, FIELD EXERCISES, ETC. NORMALLY, OFFICERS
ARE REQUIRED TO PAY FOR SUCH MEALS AT A RATE WHICH IS COMMENSURATE WITH
THE BASIC ALLOWANCE FOR SUBSISTENCE WHICH IS PAYABLE TO AN OFFICER AT
ALL TIMES. IT IS NOT REQUIRED THAT OFFICERS BE FURNISHED MEALS FREE OF
CHARGE IN ORDER FOR SUCH MEALS TO BE VIEWED AS "RATIONS IN KIND" WITHIN
THE MEANING OF THAT TERM AS USED IN THE CITED REGULATIONS. AS TO THE
PROVISIONS OF PARAGRAPH 4451-3 OF THE JOINT TRAVEL REGULATIONS WHICH YOU
CITE, YOU ARE ADVISED THAT SUCH REGULATIONS APPLY TO ORDINARY TEMPORARY
DUTY, NOT DUTY OF THE MANEUVER-FIELD EXERCISE TYPE COVERED BY PARAGRAPH
4250-3, WHICH WAS PERFORMED BY YOU DURING THE PERIOD OF YOUR CLAIM.
SINCE RATIONS IN KIND WERE AVAILABLE TO YOU AT THAT TIME, NO RIGHT TO
PER DIEM ACCRUED TO YOU.
WITH RESPECT TO YOUR CONTENTION THAT SINCE TWO OF THE FOUR MEMBERS
COVERED BY YOUR GROUP TRAVEL ORDERS DID NOT RETURN WITH YOU TO YOUR
PERMANENT STATION IN JAPAN, YOU WERE NOT IN A GROUP TRAVEL STATUS ON THE
DAY OF SUCH TRAVEL--- GROUP TRAVEL INVOLVES TRAVEL OF THREE OR MORE
MEMBERS--- THE REPORT OF JUNE 27, 1957, STATED THAT YOU TRAVELED WITH
OTHER MEMBERS OF YOUR UNIT WHO WERE BEING AIRLIFTED AT VARIOUS DATES
FROM THE PHILIPPINES. IN THE CIRCUMSTANCES, AND SINCE IT APPEARS THAT
SUCH TRAVEL WAS ACCOMPLISHED AT NO EXPENSE TO YOU, THERE APPEARS TO BE
NO BASIS TO QUESTION YOUR GROUP TRAVEL STATUS AT THAT TIME.
YOUR LETTER FURNISHES NO EVIDENCE OR MATERIAL INFORMATION NOT
PREVIOUSLY CONSIDERED AND, HENCE, AFFORDS NO BASIS FOR MODIFICATION OF
OUR PRIOR ACTION IN THE MATTER.
B-134289, MAR. 3, 1958
TO MR. A. PHILIP WALKER:
ON OCTOBER 22, 1957, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF JULY
17, 1956, WHICH DISALLOWED YOUR CLAIM AS AN EMPLOYEE OF THE UNITED
STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE,
NOGALES, ARIZONA, FOR 15 PERCENT PREMIUM COMPENSATION FOR THE PERIODS
JUNE 26 TO JULY 16, 1955, AND OCTOBER 9, 1955, TO FEBRUARY 11, 1956. ON
SEPTEMBER 19, 1957, YOU MADE CLAIM FOR COMPENSATION FOR OVERTIME
SERVICES AS AN EMPLOYEE OF THE SERVICE FOR THE PERIOD JULY 1, 1945, TO
APRIL 23, 1955.
THE IMMIGRATION AND NATURALIZATION SERVICE HAS REPORTED THAT UNDER
THEIR REGULATIONS YOU WERE CERTIFIED INELIGIBLE TO RECEIVE THE 15
PERCENT PREMIUM COMPENSATION FOR THE PERIODS CLAIMED. YOU CONTEND THAT
THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND THE IMMIGRATION AND
NATURALIZATION SERVICE WHICH ADMINISTRATIVELY PRESCRIBE MINIMUM
STANDARDS TO BE MET BY THE EMPLOYEE FOR ELIGIBILITY TO DERIVE THE
BENEFIT OF THE STATUTE PROVIDING FOR THE PREMIUM COMPENSATION DENY THE
SUBSTANCE OF THE STATUTE SINCE THE STATUTE IS CONCERNED WITH HOURS OF
DUTY THAT CANNOT BE ADMINISTRATIVELY CONTROLLED, AND THE EFFECT OF THE
REGULATIONS IS TO PLACE ADMINISTRATIVE CONTROL OVER AN EMPLOYEE'S
OTHERWISE UNSCHEDULED HOURS.
SECTION 208 (A) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111,
PROVIDES THAT THE HEAD OF ANY DEPARTMENT OR AGENCY MAY WITH THE APPROVAL
OF THE CIVIL SERVICE COMMISSION PROVIDE THAT ANY EMPLOYEE IN A POSITION
IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY AND
WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED OVERTIME
DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING
RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH
REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM COMPENSATION FOR
SUCH DUTY ON AN ANNUAL BASIS. THE USE OF THE OVERTIME PROVIDED BY
SECTION 208 (A) IS DISCRETIONARY WITH EACH DEPARTMENT OR AGENCY AND MAY
BE ADOPTED ONLY WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION. IF
SECTION 208 (A) BE ADOPTED, IT BECOMES NECESSARY TO DETERMINE WHAT ARE
SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT
NIGHT AND HOLIDAYS WITHIN THE PURVIEW OF THE STATUTE AND IT IS AN
APPROPRIATE FIELD FOR REGULATION BY THE CIVIL SERVICE COMMISSION TO
ESTABLISH MINIMUM STANDARDS OF PRACTICE FOR THE DEPARTMENTS AND AGENCIES
OPERATING UNDER THE STATUTORY SECTION CONCERNED, TO THE EXTENT THAT
OVERTIME REQUIREMENTS IN THE DEPARTMENTS AND AGENCIES WHICH ARE
FOLLOWING SECTION 208 (A) MAY VARY. EACH DEPARTMENT OR AGENCY MAY
PRESCRIBE ADMINISTRATIVE REGULATIONS WITHIN THE PURVIEW OF THE
COMMISSION'S REGULATIONS TO MEET ITS PECULIAR NEEDS. THUS, EACH
EMPLOYING DEPARTMENT OR AGENCY MUST MAKE ITS OWN DETERMINATION OF
ELIGIBILITY ON THE BASIS OF ITS EXPERIENCE IN REGARD TO OVERTIME
SERVICES OF ITS EMPLOYEES. CONSEQUENTLY, SINCE YOU WERE CERTIFIED
INELIGIBLE FOR 15 PERCENT PREMIUM COMPENSATION FOR THE PERIODS JUNE 26
TO JULY 16, 1955, AND OCTOBER 9, 1955, TO FEBRUARY 11, 1956, IN
ACCORDANCE WITH LAW AND REGULATION, THE SETTLEMENT DISALLOWING YOUR
CLAIM THEREFOR MUST BE SUSTAINED.
REGARDING YOUR CLAIM FOR OVERTIME FOR THE PERIOD JULY 1, 1945, TO
APRIL 23, 1955, SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59
STAT. 296, AS AMENDED, 68 STAT. 1109, REQUIRES PAYMENT OF OVERTIME
COMPENSATION TO CERTAIN EMPLOYEES FOR ALL HOURS OF WORK "OFFICIALLY
ORDERED OR
APPROVED" IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK AT
THE RATES SET FORTH THEREIN.
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 MUST 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. THE SERVICE ALSO ADVISES THAT ITS RECORDS INDICATE
THERE WERE NO HOURS OF WORK IN EXCESS OF FORTY HOURS IN ANY
ADMINISTRATIVE WORKWEEK WHICH WERE OFFICIALLY ORDERED OR APPROVED BY
COMPETENT AUTHORITY FOR WHICH YOU HAVE NOT BEEN PAID.
THE COURT CASES CITED BY YOU ARE NOT APPLICABLE TO YOUR CLAIM. IN
FARLEY V. UNITED STATES, 131 C.CLS. 776, THE CLAIMANT WAS REQUIRED TO
REMAIN ON DUTY OR TO PERFORM EXTRA DUTY AS A CONDITION OF HER
EMPLOYMENT. THE IMMIGRATION AND NATURALIZATION SERVICE ADVISES THAT
THERE IS NO RECORD OF ANY ORDER DIRECTING YOU TO REMAIN ON DUTY OR TO
PERFORM EXTRA DUTY AS A CONDITION OF YOUR EMPLOYMENT.
IN SCHAIBLE, SANDERSON, AND HANDLEY ET AL. V. UNITED STATES, 135
C.CLS. 890, THE COURT HELD THAT ACCEPTABLE BY A GOVERNMENT EMPLOYEE OF
LESS THAN THE LAWFUL COMPENSATION UNDER A MISTAKE OF LAW DOES NOT BAR
THE CLAIM FOR THE DIFFERENCE AT A LATER DATE. AS INDICATED ABOVE, YOU
WERE PAID ALL THE COMPENSATION LAWFULLY DUE YOU FOR OVERTIME.
MOREOVER, 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 TO BE THE CASE IN ANDERSON ET
AL. V. UNITED STATES, C.CLS. NO. 50303, DECIDED JULY 12, 1956.
IN VIEW OF THE ADMINISTRATIVE REPORT THAT THERE IS NO OVERTIME IN
YOUR CASE OFFICIALLY ORDERED OR APPROVED BY COMPETENT AUTHORITY FOR
WHICH YOU HAVE NOT BEEN PAID, YOUR CLAIM FOR OVERTIME COMPENSATION FOR
THE PERIOD JULY 1, 1945, TO APRIL 23, 1955, MUST BE DISALLOWED.
WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO THE PROPER ACTION
NECESSARY TO SECURE A REVIEW OF YOUR CLAIMS BY HIGHER AUTHORITY, YOU MAY
BE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED
STATES ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OR EMPLOYEES IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT AND ARE NOT APPEALABLE TO ANY OFFICER
OF THE GOVERNMENT. OF COURSE, THIS DOES NOT PRECLUDE RESORT TO A COURT
OF COMPETENT JURISDICTION, IF YOU WISH TO PURSUE THAT COURSE.
B-134809, MAR. 3, 1958
TO FIRST LIEUTENANT WILLIAM J. RUDY:
REFERENCE IS MADE TO YOUR LETTER WITH ENCLOSURES ADDRESSED TO THE
FINANCE OFFICER, KIRTLAND AIR FORCE BASE, NEW MEXICO, CONCERNING YOUR
CLAIM FOR TRAVEL ALLOWANCE FROM KIRTLAND AIR FORCE BASE, NEW MEXICO, TO
DES MOINES, IOWA, AND RETURN TO LOS ALAMOS, NEW MEXICO, WHICH WAS
DISALLOWED BY OUR SETTLEMENT DATED FEBRUARY 19, 1957. YOUR LETTER HAS
BEEN REFERRED TO OUR OFFICE FOR REPLY.
BY CHANGE OF STATION ORDERS DATED MAY 5, 1956, YOU WERE RELIEVED FROM
YOUR DUTY STATION AT PURDUE UNIVERSITY, LAFAYETTE, INDIANA, AND DIRECTED
TO REPORT AT HEADQUARTERS, AFSWP, KIRTLAND AIR FORCE BASE, NEW MEXICO,
NOT LATER THAN JULY 11, 1956. THESE ORDERS WERE AMENDED BY ORDERS OF
JUNE 4 AND 22, AND JULY 4, 1956, TO DIRECT A PERMANENT CHANGE OF STATION
TO LOS ALAMOS SCIENTIFIC LABORATORY, ALAMOGORDO, NEW MEXICO, WITH
TEMPORARY DUTY EN ROUTE AT KIRTLAND AIR FORCE BASE. IT SEEMS APPARENT
FROM THE RECORD BEFORE US THAT YOU UNDERSTOOD THAT UNDER THOSE ORDERS
YOU WERE TO TRAVEL TO KIRTLAND AIR FORCE BASE FOR TEMPORARY DUTY AND
THAT YOU WOULD BE PERMITTED TO RETURN TO YOUR HOME AT DES MOINES IN A
LEAVE STATUS BEFORE YOU WERE REQUIRED TO REPORT FOR DUTY AT YOUR NEW
PERMANENT STATION. YOU TRAVELED FROM LAFAYETTE, INDIANA, TO KIRTLAND
AIR FORCE BASE FOR TEMPORARY DUTY, RETURNED TO DES MOINES FOR LEAVE, AND
THEN TRAVELED TO ALAMOGORDO FOR DUTY. YOU WERE REIMBURSED FOR YOUR
TRAVEL TO KIRTLAND AIR FORCE BASE AND THENCE TO ALAMOGORDO. YOU WERE
ALSO PAID DISLOCATION ALLOWANCE AUTHORIZED FOR A PERMANENT CHANGE OF
STATION. YOUR CLAIM FOR AN ALLOWANCE FOR TRAVEL TO DES MOINES AND FROM
THERE TO ALAMOGORDO WAS DISALLOWED BY OUR SETTLEMENT FOR THE REASON THAT
THIS TRAVEL WAS PERFORMED WHILE YOU WERE ON LEAVE AND WAS NOT OFFICIAL
TRAVEL REQUIRED BY YOUR ORDERS.
WITH YOUR LETTER YOU HAVE FURNISHED A COPY OF SPECIAL ORDER NO. 184
DATED SEPTEMBER 12, 1957, WHICH PROVIDES THAT SPECIAL ORDER 90, DATED
MAY 5, 1956, AS AMENDED, WHICH ASSIGNED YOU TO KIRTLAND AIR FORCE BASE,
NEW MEXICO, WITH PERMANENT DUTY STATION AT LOS ALAMOS SCIENTIFIC
LABORATORY IS FURTHER AMENDED TO INCLUDE CONFIRMATORY VERBAL ORDERS OF
THE COMMANDANT, WRIGHT PATTERSON AIR FORCE BASE, OHIO, ISSUED ON JUNE
10, 1956. THESE ORDERS PURPORTEDLY DIRECTED YOU TO PROCEED FROM DES
MOINES, IOWA, TO KIRTLAND AIR FORCE BASE AND LOS ALAMOS SCIENTIFIC
LABORATORY ON TEMPORARY DUTY FOR APPROXIMATELY FIVE DAYS FOR THE PURPOSE
OF AN INTERVIEW FOR SPECIAL DUTY ASSIGNMENT AND UPON COMPLETION TO
RETURN TO LEAVE ADDRESS AND STATUS. YOU NOW CLAIM REIMBURSEMENT OF YOUR
TRAVEL EXPENSES ON THE BASIS THAT YOU WERE VERBALLY DIRECTED TO PERFORM
THE TRAVEL AS EVIDENCED BY THE ABOVE-CITED ORDERS.
SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37
U.S.C. 253, PROVIDES FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION
ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES TRAVELING UNDER
COMPETENT ORDERS AWAY FROM THEIR DESIGNATED POSTS OF DUTY, UNDER
REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. REGULATIONS ISSUED
UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.
PARAGRAPH 3050 OF THOSE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED
TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHILE IN A TRAVEL STATUS,
AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS "WHILE PERFORMING
TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS,
PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE
INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR
TEMPORARY ADDITIONAL DUTY.' THE PHRASE "PUBLIC BUSINESS, AS SO USED
RELATES TO THE ACTIVITIES OR FUNCTIONS OF THE SERVICE TO WHICH THE
TRAVELER IS ATTACHED, AND THE TRAVEL AND TEMPORARY DUTY CONTEMPLATED IS
THAT WHICH REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED IN THE
ACCOMPLISHMENT OF THE PURPOSES AND REQUIREMENTS OF SUCH ACTIVITIES OR
FUNCTIONS. EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS
WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.
SINCE YOUR TRAVEL FROM KIRTLAND AIR FORCE BASE TO DES MOINES WAS
INCIDENT TO LEAVE, THE CONCLUSION IS REQUIRED THAT SUCH TRAVEL WAS FOR
YOUR PERSONAL CONVENIENCE AND NOT FOR PUBLIC BUSINESS. THEREFORE, SUCH
TRAVEL MAY NOT BE PERFORMED AT THE EXPENSE OF THE GOVERNMENT.
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM
AND THE SETTLEMENT OF FEBRUARY 19, 1957, WAS CORRECT AND IS SUSTAINED.
B-134880, MAR. 3, 1958
TO MR. SIDNEY WALDMAN:
BY LETTERS DATED DECEMBER 18, 1957, AND JANUARY 14, 1958, YOU ADVISE
THAT YOUR OFFICE REPRESENTS MR. WILEY SIMS, 740 POPLAR GROVE STREET,
BALTIMORE 16, MARYLAND, IN THE MATTER OF HIS CLAIM FOR THE PROCEEDS OF
CIVIL SERVICE RETIREMENT CHECK NO. 19,995,428, DATED FEBRUARY 28, 1946,
FOR $291.23, DRAWN TO THE ORDER OF WILEY SIMS BY E. J. BRENNAN, SYMBOL
NO. 200.
THE CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED MAY 12,
1955, FOR THE REASON THAT THE RECORDS INDICATE THE CHECK WAS NEGOTIATED
AND PAID BY THE TREASURER OF THE UNITED STATES AND MR. SIMS' CLAIM FOR
ITS AMOUNT WAS NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE WITHIN SIX
YEARS FROM THE DATE OF ISSUANCE OF THE CHECK AND THUS WAS BARRED UNDER
THE PROVISIONS OF THE ACT OF JUNE 22, 1926, AS AMENDED, 31 U.S.C., 1952
ED., 122. YOUR LETTERS CONSTITUTE A REQUEST FOR RECONSIDERATION OF THE
CLAIM ON THE STATED PREMISE THAT MR. SIMS HAS NEVER RECEIVED THE
ABOVE-DESCRIBED CHECK OR ANY OTHER CHECK.
IF A CLAIMANT WISHES TO BE REPRESENTED IN MATTERS BEFORE THE GENERAL
ACCOUNTING OFFICER, OUR PROCEDURES GENERALLY REQUIRE THAT A PROPER POWER
OF ATTORNEY, EXECUTED BY THE CLAIMANT IN FAVOR OF THE NAMED ATTORNEY, BE
FILED HERE BEFORE RECOGNITION WILL BE EXTENDED TO SUCH ATTORNEY.
HOWEVER, THIS REQUIREMENT WILL BE WAIVED IN THE INSTANT CASE.
INFORMAL ADVICE RECEIVED FROM THE CIVIL SERVICE COMMISSION DISCLOSES
THAT THE ABOVE-DESCRIBED CHECK WAS ISSUED PURSUANT TO THE CLAIMANT'S
APPLICATION DATED JANUARY 18, 1946. HIS ALLEGATION OF NONRECEIPT AND
CLAIM FOR THE PROCEEDS OF THE CHECK, ON THE REVERSE SIDE OF UNITED
STATES CIVIL SERVICE COMMISSION LETTER TO HIM DATED DECEMBER 14, 1954,
WAS NOT RECEIVED IN THIS OFFICE UNTIL FEBRUARY 10, 1955. THAT WAS MORE
THAN SIX YEARS AFTER THE DATE ON WHICH THE CHECK WAS ISSUED AND MAILED
TO THE CLAIMANT. ALSO, THE RECORDS OF THIS OFFICE SHOW THAT THE CHECK
HAD BEEN NEGOTIATED IN DUE COURSE AND PAID BY THE TREASURER OF THE
UNITED STATES.
SECTION 2 OF THE ACT OF JUNE 22, 1926, AS AMENDED AND IN EFFECT AT
THE TIME HIS CLAIM WAS RECEIVED IN OUR OFFICE, 31 U.S.C. 1952 ED., 122,
PROVIDES AS FOLLOWS:
"ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS
APPEARING TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO THE
GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF
THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED.'
SINCE THE CHECK WAS ISSUED MORE THAN SIX YEARS BEFORE THE CLAIM WAS
RECEIVED IN THE GENERAL ACCOUNTING OFFICE AND IT APPEARING TO HAVE BEEN
PAID, THE CLAIM CLEARLY WAS BARRED UNDER THE STATUTE QUOTED. THE CHECK
HAS BEEN DESTROYED PURSUANT TO LAW AND IS, THEREFORE, NOT AVAILABLE FOR
EXAMINATION OF THE ENDORSEMENT THEREON. IN ANY EVENT, THE ENDORSEMENTS
THEREON ARE IMMATERIAL SINCE THE PROVISIONS OF LAW QUOTED CLEARLY ARE
APPLICABLE TO HIS CLAIM AND WOULD BAR PAYMENT THEREOF. OUR OFFICE HAS
NO AUTHORITY TO WAIVE THE REQUIREMENT OF THE STATUTE. THEREFORE, THE
DISALLOWANCE OF THE CLAIM DATED MAY 16, 1955, APPEARS CORRECT AND IS
SUSTAINED UPON REVIEW.
B-135068, MAR. 3, 1958
TO FIRST LIEUTENANT RUFUS R. HART:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1958, IN
EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 10, 1958, WHICH
DISALLOWED YOUR CLAIM FOR PARTIAL REFUND OF THE AMOUNT COLLECTED FROM
YOU AS THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD GOODS BY VAN FROM FORT
BENNING, GEORGIA, TO CAMP GARY, TEXAS.
THE SHIPMENT, WEIGHING 1,210 POUNDS, WAS MADE INCIDENT TO TEMPORARY
DUTY ORDERS DATED JUNE 21, 1957. SINCE THE SHIPMENT EXCEEDED YOUR
AUTHORIZED WEIGHT ALLOWANCE OF 630 POUNDS YOU WERE CHARGED WITH THE
EXCESS COST OF $59.85, AND THAT AMOUNT WAS COLLECTED FROM YOU. YOUR
CLAIM FOR PARTIAL REFUND IS BASED ON YOUR UNSUPPORTED STATEMENT THAT THE
SHIPMENT INCLUDED 330 POUNDS OF PROFESSIONAL BOOKS. IN THE SETTLEMENT
MENTIONED ABOVE YOU WERE ADVISED THAT UNDER APPLICABLE REGULATIONS
PROFESSIONAL BOOKS MAY BE INCLUDED IN SHIPMENTS OF HOUSEHOLD GOODS
WITHOUT A CHARGE AGAINST THE PRESCRIBED WEIGHT ALLOWANCE PROVIDED THAT
SUCH BOOKS ARE PACKED SEPARATELY IN CONTAINERS MARKED "PROFESSIONAL
BOOKS" AND THE WEIGHT OF THE CONTAINERS SHOWN SEPARATELY ON THE BILL OF
LADING OR OTHER SHIPPING DOCUMENT. YOU WERE FURTHER ADVISED THAT YOUR
APPLICATION FOR SHIPMENT OF HOUSEHOLD EFFECTS DID NOT SHOW, IN THE SPACE
SPECIFICALLY PROVIDED FOR SUCH INFORMATION, THAT ANY PROFESSIONAL BOOKS
WERE TO BE INCLUDED IN THE SHIPMENT; THAT IT APPEARS THAT YOUR
PROFESSIONAL BOOKS WERE NOT PACKED SEPARATELY AND SO MARKED, AND THAT
THE WEIGHT OF PROFESSIONAL BOOKS WAS NOT SHOWN SEPARATELY ON THE BILL OF
LADING. IN YOUR PRESENT LETTER YOU STATE THAT YOUR PROFESSIONAL BOOKS
WERE PACKED SEPARATELY; THAT 200 POUNDS OF THE BOOKS WERE PACKED IN
"BOOK BOXES" FURNISHED TO YOU BY THE ARMY; THAT IN THE PAST THOSE BOXES
WERE RECOGNIZED AS CONTAINING ONLY PROFESSIONAL BOOKS WITHOUT THE
NECESSITY OF LABELING, AND THAT YOU WERE ASSURED THEY WOULD BE WEIGHED
SEPARATELY AND NOT CHARGED AGAINST YOUR WEIGHT ALLOWANCE.
THE STATUTORY AUTHORITY FOR TRANSPORTATION OF HOUSEHOLD EFFECTS OF
MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE
CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 237. THAT
SECTION PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH
RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS MAY BE
PRESCRIBED BY THE SECRETARIES CONCERNED, 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 OF LAW, PROVIDE THAT UPON
TEMPORARY CHANGE OF STATION A LIEUTENANT MAY SHIP 600 POUNDS OF
HOUSEHOLD EFFECTS PLUS AN INCREASE OF FIVE PERCENT TO ALLOW FOR PACKING
WHEN SHIPMENT IS MADE BY VAN. PARAGRAPH 8002 OF SUCH REGULATIONS
PRESCRIBES THE CONDITIONS UNDER WHICH PROFESSIONAL BOOKS MAY BE INCLUDED
IN A SHIPMENT OF HOUSEHOLD EFFECTS WITHOUT A CHARGE AGAINST THE
WEIGHT ALLOWANCE OF THE OWNER. THOSE CONDITIONS MAKE IT MANDATORY
THAT THE WEIGHT OF THE BOOKS BE SEPARATELY ESTABLISHED AND THAT
DOCUMENTARY EVIDENCE OF SUCH WEIGHT BE FURNISHED. IN THE ABSENCE OF
SOME EVIDENCE FROM AN OFFICIAL SOURCE ESTABLISHING THAT PROFESSIONAL
BOOKS WERE SHIPPED AND THE EXACT WEIGHT OF THOSE BOOKS, THERE IS NO
LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. YOUR FAILURE TO LIST AN
APPROXIMATE WEIGHT OF PROFESSIONAL BOOKS IN THE APPROPRIATE SPACE
PROVIDED FOR SUCH INFORMATION IN THE APPLICATION FOR SHIPMENT OF
HOUSEHOLD GOODS CONSTITUTES A NEGATIVE INDICATION THAT SUCH BOOKS WERE
INCLUDED IN THE SHIPMENT AND YOUR STATEMENT THAT 200 POUNDS OF THOSE
BOOKS WERE PACKED IN BOOK BOXES MAY NOT BE ACCEPTED IN LIEU OF PROOF OF
THE ACTUAL WEIGHT OF THE BOXES TO WHICH YOU REFER.
B-135205, MAR. 3, 1958
TO MR. F. G. JENNINGS, CHIEF, PROCUREMENT BRANCH, CIVIL AERONAUTICS
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7, 1958, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR WHICH DEL GUZZI, INC., PORT ANGELES, WASHINGTON,
ALLEGES IT MADE IN ITS BID ON WHICH PURCHASE ORDER NO. 458-7645 DATED
JANUARY 23, 1958, IS BASED.
SINCE THE FORMAL NOTICE OF ACCEPTANCE OF A BID CONSTITUTES AN AWARD
OF A CONTRACT, THE PROCEDURE AUTHORIZED BY OUR DECISION OF JANUARY 17,
1957, B-130302, IS NOT STRICTLY APPLICABLE. HOWEVER, IN VIEW OF YOUR
REPRESENTATIONS AS TO THE URGENCY OF THE MATTER REPLY IS BEING ADDRESSED
TO YOU, AND A COPY TRANSMITTED TO THE ADMINISTRATOR HERE.
THE CIVIL AERONAUTICS ADMINISTRATION, LOS ANGELES, CALIFORNIA, BY
PROPOSAL NO. 4-58-959, AS AMENDED BY RIDERS NOS. 1, 2, AND 3, REQUESTED
BIDS--- TO BE OPENED ON DECEMBER 27, 1957--- FOR FURNISHING LABOR AND
MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF A
UHF/VHF AIR TO GROUND COMMUNICATION FACILITY AT A SITE APPROXIMATELY
EIGHT MILES SOUTHEAST OF NEAH BAY, WASHINGTON. THE WORK TO BE PERFORMED
WAS DIVIDED INTO VARIOUS ITEMS FOR PURPOSES OF SUBMITTING BIDS AND
MAKING PAYMENT FOR THE WORK. PROSPECTIVE BIDDERS WERE REQUESTED TO
SUBMIT A BASIC BID AND AN ALTERNATE BID ON THE WORK. IN RESPONSE DEL
GUZZI, INC., SUBMITTED A BASIC BID AND AN ALTERNATE BID IN WHICH IT
QUOTED TOTAL AGGREGATE BID PRICES OF $43,375 AND $46,620, RESPECTIVELY,
FOR THE VARIOUS ITEMS OF WORK. BY TELEGRAM DATED DECEMBER 27, 1957,
WHICH IT IS REPORTED WAS RECEIVED PRIOR TO BID OPENING TIME, DEL GUZZI,
INC., REVISED SOME OF THE UNIT PRICES IN ITS BASIC AND ALTERNATE BIDS
AND SUCH REVISIONS ESTABLISHED NEW BASIC AND ALTERNATE TOTAL AGGREGATE
BID PRICES OF $37,851 AND $39,364, RESPECTIVELY. BY THE REFERRED-TO
REVISION, THE UNIT PRICE FOR ITEM 2--- GRAVEL--- IN BOTH THE BASIC AND
ALTERNATE BIDS WAS CHANGED FROM $2.50 PER CUBIC YARD TO $2.10
PER CUBIC YARD.
IT IS REPORTED THAT DEL GUZZI, INC., DID NOT RETURN SIGNED COPIES OF
THE THREE RIDERS APPLICABLE TO THE PROPOSAL WITH ITS BIDS; THAT SINCE
THE CORPORATION HAD NOT SUBMITTED ANY PREVIOUS BIDS TO THE CONTRACTING
OFFICE, IT WAS REQUESTED TO SUBMIT A QUALIFICATION DATA SHEET; THAT IN
EVALUATING THE BID OF DEL GUZZI, INC., IT WAS NOTED THAT THE AMOUNT
QUOTED BY THE CORPORATION FOR ITEM 12,"INSTALL AIR CONDITION, 28,000
BTU," WAS EXCESSIVELY HIGH; AND THAT BY TELEGRAM DATED JANUARY 20,
1958, THE CORPORATION WAS PLACED ON NOTICE OF THE POSSIBILITY OF A
MISPLACED DECIMAL POINT IN THE UNIT PRICE FOR ITEM 12 AND WAS REQUESTED
TO CONFIRM ITS BID PRICE ON THAT ITEM. BY TELEGRAM DATED JANUARY 21,
1958, THE CORPORATION ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID
WITH RESPECT TO ITEM 12 IN THAT THE UNIT PRICE FOR THAT ITEM SHOULD HAVE
BEEN $644.05. CORRECTION OF THE UNIT PRICE FOR ITEM 12 ESTABLISHED A
NEW TOTAL AGGREGATE BASIC BID PRICE OF $32,039.10. THE ABSTRACT OF BIDS
SHOWS THAT THE TWO OTHER BIDDERS WHO SUBMITTED BASIC BIDS QUOTED TOTAL
AGGREGATE BID PRICES OF $61,455 AND $72,530, AND THAT THE GOVERNMENT'S
ESTIMATE WAS IN THE AMOUNT OF $52,122 FOR THE BASIC WORK. BY LETTER
DATED JANUARY 23, 1958, DEL GUZZI, C., WAS NOTIFIED THAT ITS BID OF
$32,039.10 FOR THE BASIC WORK HAD BEEN ACCEPTED; THAT IT SHOULD EXECUTE
AND RETURN THE ENCLOSED CONTRACT FORMS; AND THAT IT SHOULD EXECUTE AND
RETURN THE ENCLOSED COPIES OF THE THREE RIDERS TO THE PROPOSAL, WHICH IT
HAD FAILED TO SUBMIT WITH ITS ORIGINAL BIDS.
BY LETTER DATED FEBRUARY 3, 1958, DEL GUZZI, INC., ADVISED THAT AN
ERROR OF $7.55 PER CUBIC YARD HAD BEEN MADE BY THE CORPORATION WHEN
QUOTING ITS UNIT PRICE FOR ITEM 2, COVERING THE FURNISHING OF GRAVEL FOR
THE EXISTING ACCESS ROAD AND PLOT; THAT IT HAD FAILED TO INCLUDE IN ITS
BID PRICE THE COST OF CARTING THE GRAVEL FROM PORT ANGELES TO THE JOB
SITE BY BARGE AND TRUCK; AND THAT THE CORRECT UNIT PRICE FOR ITEM 2 IS
$9.65 PER CUBIC YARD INSTEAD OF $2.10 PER CUBIC YARD DELIVERED TO THE
JOB SITE. IN ITS LETTER THE CORPORATION GAVE A BREAKDOWN OF ITS
ORIGINAL AND INTENDED BID PRICES FOR ITEM 2 AND IT REQUESTED THAT ITS
BID PRICE FOR THAT ITEM BE CORRECTED ACCORDINGLY, OR IN THE ALTERNATIVE,
THE AWARD TO IT BE CANCELLED. THE CORPORATION DID NOT SUBMIT ANY OTHER
EVIDENCE WHICH WOULD ESTABLISH ITS INTENDED BID PRICE FOR ITEM 2.
THE CORPORATION'S QUOTATION OF $2.10 PER CUBIC YARD FOR ITEM 2, ON
WHICH ITEM ERROR IS ALLEGED, IS SUBSTANTIALLY BELOW THE NEXT LOW BID OF
$9 PER CUBIC YARD AND THE GOVERNMENT'S ESTIMATE OF $8 PER CUBIC YARD FOR
THAT ITEM. ALSO, THE CORPORATION'S TOTAL AGGREGATE BASIC BID PRICE OF
$32,039.10 IS APPROXIMATELY ONE-HALF OF THE PRICE QUOTED BY THE NEXT
LOWEST BIDDER AND APPROXIMATELY 60 PERCENT OF THE AMOUNT OF THE
GOVERNMENT'S ESTIMATE. IN HIS LETTER OF FEBRUARY 7, 1958, THE CHIEF,
PROCUREMENT BRANCH, CIVIL AERONAUTICS ADMINISTRATION, STATES THAT THE
DIFFERENCE BETWEEN THE CORPORATION'S UNIT PRICE FOR ITEM 2 AND THE UNIT
PRICE QUOTED BY THE NEXT LOWEST BIDDER AND THE GOVERNMENT ENGINEER'S
ESTIMATE FOR THIS ITEM WAS NOT NOTICED AT THE TIME OF EVALUATION OF THE
BIDS BECAUSE THE CORPORATION HAD QUOTED LOW PRICES ON ALMOST ALL OF THE
OTHER ITEMS BID UPON. SINCE THE CORPORATION WAS REQUESTED TO CONFIRM
ITS HIGH BID PRICE ON ITEM 12, IT APPEARS THAT IT WOULD HAVE BEEN PROPER
AT THAT TIME TO HAVE ALSO REQUESTED THE CORPORATION TO CONFIRM ITS
OVERALL BID AND SPECIFICALLY ITS UNIT BIDS ON OTHER ITEMS AS TO WHICH
THE PRICES APPEARED TO BE COMPLETELY OUT OF LINE WITH THE BID PRICES
QUOTED BY THE TWO OTHER BIDDERS AND WITH THE GOVERNMENT'S ESTIMATE.
IN THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE ACCEPTANCE OF
THE BID WAS IMPROPER AND DID NOT GIVE RISE TO AN ENFORCEABLE CONTRACT.
THE AWARD MADE TO DEL GUZZI, INC., ON JANUARY 23, 1958, SHOULD THEREFORE
BE CANCELLED AND THE CORPORATION RELIEVED OF ALL LIABILITY UNDER ITS
BID.
THE PAPERS SUBMITTED WITH THE LETTER OF FEBRUARY 7, 1958, ARE
RETURNED.
B-135222, MAR. 3, 1958
TO MR. JESSE FORTON:
YOUR LETTER OF JANUARY 29, 1958, REQUESTS RECONSIDERATION OF OFFICE
SETTLEMENT DATED JANUARY 17, 1958, WHEREIN IT WAS HELD THAT YOU WERE NOT
ENTITLED, BY REASON OF ACTIVE DUTY PERFORMED BY YOU AFTER TRANSFER TO
THE FLEET NAVAL RESERVE, TO THE DIFFERENCE BETWEEN RETIRED PAY COMPUTED
AS ONE-THIRD OF BASE PAY PLUS LONGEVITY. YOU STATE THAT SUCH HOLDING IS
INCONSISTENT WITH PRIOR DECISIONS OF THIS OFFICE IN 26 COMP. GEN. 804;
32 COMP. GEN. 159; 36 COMP. GEN. 579, WHICH YOU CITE AS SUPPORTING THE
BASIS OF YOUR CLAIM.
OUR DECISION OF APRIL 24, 1947, 26 COMP. GEN. 804, 813, SAID, IN
ANSWER TO THE QUESTION WHETHER MEN TRANSFERRED TO THE FLEET NAVAL
RESERVE UNDER THE ACT OF JULY 1, 1922, 42 STAT, 799, 800, WITH LESS THAN
FIFTEEN YEARS' ACTUAL SERVICE WERE TO BE CONSIDERED AS HAVING BEEN
TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE" WITHIN THE
CONTEMPLATION OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, AS ADDED
BY THE ACT OF AUGUST 10, 1946, THAT:
"UNDER THE QUOTED PROVISION OF THE NAVAL APPROPRIATION ACT, 1923, 42
STAT. 799, ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE IN ACCORDANCE
THEREWITH ARE PLACED IN THE SAME STATUS WITH RESPECT TO PAY AND
ALLOWANCES AS ENLISTED MEN TRANSFERRED AT THE EXPIRATION OF ENLISTMENT
"AFTER 16 YEARS" SERVICE.' WHERE IT BECOMES MATERIAL FOR PAY PURPOSES,
TO DETERMINE THE NUMBER OF YEARS WHICH SUCH TRANSFERRED MEMBERS OF THE
FLEET RESERVE MAY BE CONSIDERED TO HAVE HAD AT THE TIME OF TRANSFER, IT
IS OBVIOUS THAT THEY CANNOT BE CONSIDERED TO HAVE HAD MORE THAN 16
YEARS' SERVICE. TO CONSIDER THEIR SERVICE OTHERWISE WOULD RESULT IN
SUCH UNCERTAINTY AS TO THEIR LENGTH OF SERVICE AS TO MAKE THE
COMPUTATION OF THEIR PAY IMPOSSIBLE. THEREFORE, THEY MAY NOT BE
CONSIDERED TO HAVE BEEN TRANSFERRED AFTER "MORE" THAN 16 YEARS' SERVICE.
SEE THE ANSWER TO QUESTION (C) ABOVE. ACCORDINGLY, QUESTION (J) IS
ANSWERED IN THE NEGATIVE. * * *"
THE ANSWER TO QUESTION (C), REFERRED TO IN THE ABOVE QUOTATION, WAS
THAT MEN TRANSFERRED TO THE FLEET RESERVE WITH EXACTLY SIXTEEN YEARS'
SERVICE WERE NOT TO BE CONSIDERED AS HAVING BEEN TRANSFERRED "AFTER MORE
THAN SIXTEEN YEARS' SERVICE" AS THAT TERM WAS USED IN SECTION 208.
SINCE IT WAS HELD IN THE DECISION OF APRIL 24, 1947, THAT MEN SO
TRANSFERRED TO THE FLEET NAVAL RESERVE WITH EXACTLY SIXTEEN YEARS'
SERVICE WERE NOT ELIGIBLE FOR THE BENEFITS OF SECTION 208 OF THE NAVAL
RESERVE ACT OF 1938, THERE WAS NO OCCASION TO SPECULATE AS TO WHAT
SERVICE WOULD BE CREDITABLE UNDER SECTION 208, TO A MAN TRANSFERRED
UNDER THE 1922 ACT.
YOU REFER TO ABAD ET AL. V. UNITED STATES, C.CLS. NO. 49667, DECIDED
OCTOBER 2, 1956. IN THAT CASE IT WAS HELD THAT A MAN TRANSFERRED TO THE
FLEET RESERVE WITH EXACTLY SIXTEEN YEARS' SERVICE WAS TO BE CONSIDERED
AS HAVING BEEN TRANSFERRED "AFTER MORE THAN SIXTEEN YEARS' SERVICE"
WITHIN THE CONTEMPLATION OF SECTION 208. IN B-129880, FEBRUARY 6, 1957,
36 COMP. GEN. 579, IT WAS HELD THAT WE WOULD FOLLOW THE COURT'S OPINION
IN THE ABAD CASE AS A PRECEDENT IN THE SETTLEMENT OF SIMILAR CLAIMS AND
ACCORDINGLY, THE ANSWER TO QUESTION (C) IN THE DECISION OF APRIL 24,
1947, WAS OVERRULED.
IT WAS HELD IN SANDERS V. UNITED STATES, 120 C.CLS. 501, THAT AN
ENLISTED MAN WHO HAD BEEN TRANSFERRED TO THE FLEET NAVAL RESERVE UNDER
SECTION 26 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1087--- SUPERSEDED
BY THE SECTION 203 OF THE NAVAL RESERVE ACT OF 1938--- WITH MORE THAN
SIXTEEN AND LESS THAN TWENTY YEARS' ACTIVE SERVICE (WITH CONSEQUENT
ENTITLEMENT TO RETAINER PAY COMPUTED AS ONE-THIRD OF BASE PAY PLUS
PERMANENT ADDITIONS) AND WHO, SUBSEQUENT TO SUCH TRANSFER, PERFORMED
ACTIVE DUTY OF 4 YEARS, 10 MONTHS, AND 20 DAYS, WAS ENTITLED BY
VIRTUE OF SECTION 208 OF THE NAVAL RESERVE ACT OF 1938, UPON RELEASE
FROM SUCH ACTIVE DUTY, TO RETAINER OR RETIRED PAY ON THE BASIS OF TWENTY
YEARS' ACTIVE SERVICE, THAT IS, TO ONE-HALF OF BASE PAY PLUS PERMANENT
ADDITIONS.
THE LANGUAGE OF THE COURT IN THIS CASE THAT "THE INTENT OF CONGRESS
APPEARS TO HAVE BEEN TO ALLOW ENLISTED MEN RETIRED OR RELEASED TO
INACTIVE DUTY AND THEN RECALLED FOR AN EXTENDED PERIOD OF ACTIVE DUTY,
TO COUNT THEIR WARTIME SERVICES IN THE COMPUTATION OF RETIREMENT PAY IN
THE SAME MANNER AS IF THEIR ACTUAL-DUTY STATUS HAD BEEN CONTINUOUS,"
SEEMS PARTICULARLY APPLICABLE TO THE PRESENT CASE.
WE FOLLOWED BOTH THE SANDERS DECISION AND THE REASONING IN 26 COMP.
GEN. 804, 813, IN MAKING THE SETTLEMENT OF JANUARY 17, 1958, IN YOUR
CLAIM. WE CONCLUDED THAT A MAN TRANSFERRED TO THE FLEET NAVAL RESERVE
UNDER THE ACT OF JULY 1, 1922, WITH LESS THAN SIXTEEN YEARS' SERVICE WAS
IN THE SAME POSITION AS A MAN TRANSFERRED UNDER SOME OTHER PROVISIONS OF
LAW WITH EXACTLY SIXTEEN YEARS' SERVICE INSOFAR AS THE DETERMINATION OF
WHETHER SECTION 208 IS APPLICABLE TO HIM AND THAT SINCE A MAN
TRANSFERRED WITH EXACTLY 16 YEARS' SERVICE COMES WITHIN THE SCOPE OF
THAT SECTION (ABAD CASE) IT MUST FOLLOW THAT A MAN TRANSFERRED UNDER THE
1922 ACT WITH LESS THAN SIXTEEN YEARS' SERVICE ALSO COMES WITHIN THE
SCOPE OF THAT SECTION. IT WAS CONCLUDED ALSO, FOLLOWING THE SANDERS
DECISION, THAT A MAN WITHIN THE PROVISIONS OF SECTION 208 IS ENTITLED,
UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET RESERVE, TO
RETAINER OR RETIRED PAY AS A TWENTY-YEAR MAN IF HIS TOTAL CREDITABLE
SERVICE, BEFORE AND AFTER TRANSFER, WOULD HAVE ENTITLED HIM, UPON THE
DAY OF HIS RELEASE FROM SUCH ACTIVE DUTY, TO TRANSFER TO THE FLEET
RESERVE UNDER SECTION 203 OF THE NAVAL RESERVE ACT OF 1938 AS A
TWENTY-YEAR MAN. IN OTHER WORDS, THE SETTLEMENT OF JANUARY 17, 1958,
WAS PREDICATED UPON THE PRINCIPLE OF THE SANDERS CASE, EQUAL BENEFITS
FOR EQUAL SERVICE.
SINCE YOU, UPON RELEASE FROM ACTIVE DUTY AFTER TRANSFER TO THE FLEET
RESERVE, HAD PERFORMED AN AGGREGATE OF BUT 18 YEARS, 2 MONTHS, AND 17
DAYS' CREDITABLE SERVICE, IT WAS HELD THAT YOU HAD NOT MET THE
REQUIREMENT FOR PAY AS A TWENTY-YEAR MAN OF AT LEAST 19 YEARS' AND 6
MONTHS' SERVICE. YOUR SERVICE FROM JUNE 18, 1923 TO AUGUST 26, 1924,
WAS NOT REPORTED TO THIS OFFICE BY NAVY DEPARTMENT RESPONSE TO OUR
REQUEST FOR YOUR COMPLETE NAVAL SERVICE HISTORY. REGARDLESS OF THIS
FACT, SUCH SERVICE WOULD NOT BE CREDITABLE UNDER 34 U.S.C. 845G, WHICH
AUTHORIZES CREDITING ONLY POST-TRANSFER ACTIVE DUTY PERFORMED AFTER JULY
1, 1925.
THERE IS NOTHING IN OUR DECISION 32 COMP. GEN. 159, WHICH INDICATES
THAT MEN WITH CREDITABLE SERVICE OF LESS THAN 19 YEARS AND 6 MONTHS ARE
ELIGIBLE UNDER THE SANDERS RULE TO BE PAID AS TWENTY-YEAR MEN OR THAT
MEMBERS TRANSFERRED TO THE FLEET RESERVE UNDER THE ACT OF JULY 1, 1922,
WHO HAD SERVED LESS THAN 16 YEARS PRIOR TO TRANSFER SHOULD BE CREDITED
WITH 16 YEARS' SERVICE ON ACCOUNT OF ACTIVE DUTY PERFORMED PRIOR TO
TRANSFER FOR THE PURPOSES OF THE ACT OF AUGUST 10, 1946.
IN CONCLUSION, IT MUST BE POINTED OUT THAT THERE IS NOTHING IN THE
ACT OF JULY 1, 1922, WHICH PROVIDES OR EVEN INTIMATES THAT MEN
TRANSFERRED UNDER ITS PROVISIONS SHOULD BE DEEMED TO HAVE ACTUALLY
PERFORMED SIXTEEN YEARS' SERVICE. THE ACT MERELY SAID THAT MEN SO
TRANSFERRED SHOULD ,RECEIVE THE SAME PAY AND ALLOWANCES AS NOW
AUTHORIZED BY LAW FOR MEN TRANSFERRED TO THE FLEET NAVAL RESERVE AT THE
EXPIRATION OF ENLISTMENT AFTER SIXTEEN YEARS' SERVICE.' IN THIS RESPECT,
IT IS SIGNIFICANT THAT THE DEPARTMENT OF THE NAVY, IN REPORTING YOUR
SERVICE, DID NOT CREDIT YOU WITH SIXTEEN YEARS' SERVICE AT TIME OF
TRANSFER TO THE FLEET RESERVE.
UNDER THE THEORY ADVANCED BY YOU, A MAN TRANSFERRED UNDER THE 1922
ACT WITH SERVICE OF 13 YEARS, 8 MONTHS, AND 23 DAYS, WHO PERFORMED
ACTIVE DUTY OF 4 YEARS, 5 MONTHS, AND 24 DAYS, ENDING JANUARY 18, 1946,
BECAME ENTITLED TO RETIRED PAY AS A TWENTY-YEAR MAN FROM JANUARY 19,
1946, WHEREAS A MAN SERVING IN THE NAVY WITH THE SAME TOTAL SERVICE, 18
YEARS, 2 MONTHS, AND 17 DAYS, ON JANUARY 18, 1946, WOULD BE REQUIRED TO
SERVE FOR AN ADDITIONAL PERIOD OF ONE YEAR, 3 MONTHS AND 13 DAYS BEFORE
BECOMING ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE AS A TWENTY-YEAR
MAN. WE DO NOT BELIEVE THAT THE CONGRESS, IN PROVIDING A BENEFIT FOR
ACTIVE DUTY PERFORMED PRIOR TO AUGUST 10, 1946, INTENDED SUCH A
DISCRIMINATION.
THERE IS FORWARDED A COPY OF B-134160, DECEMBER 4, 1957, WHICH SETS
FORTH IN DETAIL THE PERTINENT STATUTES AND DECISIONS TOGETHER WITH THE
UNDERLYING REASONING INVOLVED IN COMPUTING NAVAL SERVICE CREDITS FOR
DETERMINATION OF ENTITLEMENT TO THE BENEFITS ACCRUING UNDER SECTION 218
OF THE NAVAL RESERVE ACT OF 1938, ADDED BY THE ACT OF AUGUST 10, 1946,
60 STAT. 993, 994, 34 U.S.C. 854G. ON THE BASIS THEREOF AND ON THE
REASONING ABOVE SET FORTH, THE SETTLEMENT OF JANUARY 17, 1958, MUST BE,
AND HEREBY IS, SUSTAINED.
B-135290, MAR. 3, 1958
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED FEBRUARY 14, 1958, WITH
ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS),
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
MARTIN TIMBER COMPANY, INC., ALLEGES IT MADE IN THE BID ON WHICH
CONTRACT NO. DA-09-026-ENG-58437, DATED NOVEMBER 6, 1957, IS BASED.
BY INVITATION NO. ENG-09-026-58-92, DATED OCTOBER 22, 1957, THE
PROCUREMENT BRANCH, U.S. ARMY ENGINEER DIVISION, ATLANTA, GEORGIA,
REQUESTED BIDS FOR FURNISHING CERTAIN LUMBER CONSISTING OF 50,000 FBM
UNDER EACH OF LOTS 1 AND 2. LOT NO. 1 COVERS 5/4 INCH (THICK) STOCK,
RESAWN TO 7/16 INCH AND LOT 2 COVERS 6/4 INCH (THICK) STOCK RESAWN TO
9/16 INCH. THE INVITATION SPECIFIED THAT AWARD ON EACH LOT WOULD BE
MADE AS A WHOLE TO THE LOWEST BIDDER IN THE AGGREGATE FOR ALL ITEMS
CONTAINED IN THE LOT. BIDS WERE REQUESTED ON THE BASIS OF THOUSAND FOOT
BOARD MEASURE. MARTIN TIMBER COMPANY, INC., BID ON LOTS 1 AND 2 IN THE
AGGREGATE AMOUNT OF $4,540 EACH LOT, OR AN AVERAGE OF $90.80 PER MBM.
AS THE COMPANY'S BID WAS THE LOWEST RECEIVED MEETING SPECIFICATIONS, IT
WAS NOTIFIED ON NOVEMBER 6, 1957, THAT ITS BID ON LOTS 1 AND 2 WAS
ACCEPTED. THE COMPANY RETURNED THE NOTICE OF AWARD BY UNSIGNED LETTER
DATED NOVEMBER 8, 1957, STATING THAT SINCE THE BID
HAD BEEN COMPUTED ON THE BASIS OF SURFACE MEASURE, RATHER THAN BOAR
MEASURE AS SPECIFIED, THE BID PRICES WERE "CONSIDERABLY TOO LOW.' BY
LETTER DATED NOVEMBER 12, 1957, THE CONTRACTING OFFICER RETURNED THE
NOTICE OF AWARD TO THE COMPANY AND ADVISED THAT ITS AVERAGE BID OF
$99.80 WAS APPROXIMATELY $15 IN EXCESS OF OTHER RECENT PRICES PAID BY
THAT PURCHASING AGENCY ON A SURFACE MEASURE BASIS FOR 7/16 INCH AND 9/16
INCH MATERIAL DELIVERED TO THE SAME DESTINATION AND THAT THE BID WAS NOT
OUT OF LINE WITH OTHER RECENT PRICES PAID FOR 5/4 INCH AND 6/4 INCH
STOCK ON BOARD MEASURE BASIS. ON NOVEMBER 12, 1957, THREE COPIES OF THE
CONTRACT WERE MAILED TO THE COMPANY WITH THE REQUEST THAT THEY BE
SIGNED. BY LETTER OF NOVEMBER 20, 1957, THE COMPANY AGAIN RETURNED THE
NOTICE OF AWARD, TOGETHER WITH ONE COPY OF THE DEFINITIVE CONTRACT WHICH
HAD NOT BEEN SIGNED AS REQUESTED, STATING THAT THE PRICES WERE BASED ON
SURFACE MEASURE AND THAT IT FELT IT SHOULD NOT BE HELD TO THE QUOTATION.
THE CONTRACTING OFFICER, BY LETTER OF NOVEMBER 26, 1957, RETURNED THE
CONTRACT AND NOTICE OF AWARD TO THE COMPANY, AGAIN ADVISING THAT A
CONTRACT EXISTED BETWEEN THE COMPANY AND THE GOVERNMENT AND THAT IN THE
EVENT OF FAILURE TO PERFORM, IT WOULD BE NECESSARY TO TERMINATE ITS
RIGHT TO PROCEED AND TO REPURCHASE THE MATERIAL FROM OTHER SOURCES FOR
ITS ACCOUNT.
ALSO, THE COMPANY WAS REQUESTED TO FURNISH EVIDENCE IN SUPPORT OF THE
ALLEGED ERROR IN BID. THE COMPANY REPLIED BY LETTER OF DECEMBER 2,
1957, ENCLOSING A COPY OF THE WORKSHEET USED IN PREPARING THE BID AND A
LUMBER PRICE SHEET PRINTED ON ITS LETTERHEAD. THE COMPANY REQUESTED
THAT IT BE ALLOWED TO WITHDRAW THE BID OR TO RAISE THE AMOUNT THEREOF AN
AVERAGE OF $27.45 PER MBM ON THE CONTRACT QUANTITY, OR AN AGGREGATE
INCREASE OF $2,745. AS NO DELIVERIES WERE MADE UNDER THE CONTRACT, BY
NOTICE OF DECEMBER 16, 1957, THE CONTRACTOR'S RIGHT TO PROCEED WITH
PERFORMANCE WAS TERMINATED PURSUANT TO THE "DEFAULTS" ARTICLE OF THE
CONTRACT.
THE CONTRACTING OFFICER STATED IN HIS FINDINGS DATED DECEMBER 23,
1957, THAT FROM THE WORKSHEET AND PRICE LIST SUBMITTED BY THE CONTRACTOR
HE WAS UNABLE TO DETERMINE HOW THE COMPANY ARRIVED AT THE HIGHER AMOUNTS
CLAIMED. ALSO, HE STATED THAT THERE HAS BEEN A DOWNWARD TREND IN THE
PRICES OF LUMBER PURCHASED BY HIS AGENCY SINCE JANUARY 1957, AND
FURNISHED REPORTS WHICH REFLECTED AVERAGE PRICES PAID BY THE PURCHASING
AGENCY OF $97.50 PER MBM IN JANUARY 1957, $92.25 IN JUNE 1957, $88 IN
SEPTEMBER 1957. FURTHER, THE CONTRACTING OFFICER STATED THAT THE
CONTRACTOR'S BID ON WHICH THE
CONTRACT WAS AWARDED, EXCEEDED THE SEPTEMBER AVERAGE PRICE BY $2.80.
THE ABSTRACT OF BIDS SHOWS THAT A TOTAL OF 11 BIDS WERE RECEIVED ON
LOT 1. THE CONTRACTOR'S BID ON THAT LOT WAS AN AGGREGATE OF $4,540, OR
AN AVERAGE OF $90.80 PER MBM AND THE NEXT LOW BID WAS $4,696, AN AVERAGE
PRICE OF $93.93. ON LOT 2, 10 BIDS WERE RECEIVED, THE NEXT LOW BID WAS
$4,540 OR $90.80 PER MBM AVERAGE.
THUS, IT APPEARS THAT THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND
THE OTHER BIDS WAS NOT SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE
CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABILITY OF ERROR.
IT FOLLOWS THAT THE ACCEPTANCE OF THE BID OF MARTIN TIMBER COMPANY,
INC., WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER
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 PROPERLY MAY BE
ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR
UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL,
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, 507.
THE PAPERS, WITH THE EXCEPTION OF THE ADMINISTRATIVE REPORT DATED
DECEMBER 23, 1957, ARE RETURNED.
B-134614, MAR. 3. 1958
TO THE SECRETARY OF STATE:
ON DECEMBER 6, 1957, THE ASSISTANT SECRETARY FOR ADMINISTRATION
REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE SALARY RATE,
LEAVE, RETIREMENT, TRAVEL, AND BACK SALARY IN THE CASE OF MR. JOHN S.
SERVICE UPON HIS RESTORATION.
MR. SERVICE, A FOREIGN SERVICE OFFICER, CLASS 2, WAS SEPARATED FROM
THE FOREIGN SERVICE EFFECTIVE AT THE CLOSE OF BUSINESS DECEMBER 14,
1951, PURPORTEDLY UNDER AUTHORITY OF EXECUTIVE ORDER NO. 9835, AS
AMENDED, AND SECTION 103 OF PUBLIC LAW 188, 82D CONGRESS, 65 STAT. 581,
COMMONLY KNOWN AS THE MCCARRAN RIDER. THE SUPREME COURT OF THE UNITED
STATES HELD ON JUNE 17, 1957, THAT THE SEPARATION WAS INVALID, AND
REMANDED THE CASE TO THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR
FURTHER PROCEEDINGS. SERVICE V. DULLES, 354 U.S. 363. ON JULY 3, 1957,
THE DISTRICT COURT ENTERED AN ORDER READING IN PERTINENT PART AS
FOLLOWS:
"3. THE ACTION OF THE SECRETARY OF STATE AND HIS SUBORDINATES
PURPORTING TO TERMINATE PLAINTIFF'S APPOINTMENT AS A CAREER OFFICER OF
THE FOREIGN SERVICE WITH RETIREMENT RIGHTS, EFFECTIVE AT THE CLOSE OF
BUSINESS ON DECEMBER 14, 1951, WAS INVALID AND WITHOUT LEGAL EFFECT AND
PLAINTIFF SHALL BE DEEMED SINCE THE DATE OF SUCH ACTION TO HAVE BEEN A
FOREIGN SERVICE OFFICER-CLASS 2, AND NOW TO BE SUCH AN OFFICER.
"4. THE SECRETARY OF STATE SHALL TAKE OR CAUSE TO BE TAKEN ALL
ACTION NECESSARY OR APPROPRIATE TO GIVE EFFECT TO THE DECLARATORY
JUDGMENT CONTAINED IN PARAGRAPH 3. HEREOF INCLUDING, BUT WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, (1) RESTORATION, EFFECTIVE
AT THE CLOSE OF BUSINESS ON DECEMBER 14, 1951, OF PLAINTIFF AS A FOREIGN
SERVICE OFFICER--- CLASS 2, OR A POSITION OF LIKE GRADE AND CHARACTER,
WITH THE BENEFIT OF ALL RIGHTS, EMOLUMENTS AND PRIVILEGES FLOWING FROM A
CONTINUITY OF SERVICE AS A FOREIGN SERVICE OFFICER--- CLASS 2, FROM THE
TIME OF HIS WRONGFUL DISCHARGE FROM THE DEPARTMENT OF STATE ON DECEMBER
14, 1951, TO THE DATE OF THIS ORDER, PROVIDED THAT PLAINTIFF'S CLAIM FOR
BACK PAY IS DENIED FOR LACK OF JURISDICTION, (2) EXPUNGING FROM THE
RECORDS OF THE DEPARTMENT OF STATE ALL EVIDENCE OF THE INVALID ACTION OF
THE SECRETARY OF STATE REFERRED TO IN PARAGRAPH 3. HEREOF, AND (3)
CORRECTING THE RECORDS OF THE DEPARTMENT OF STATE TO REFLECT THE
RESTORATION OF PLAINTIFF AS ORDERED IN THIS PARAGRAPH.'
PURSUANT TO THAT ORDER, THE DEPARTMENT OF STATE ISSUED A NOTIFICATION
OF PERSONNEL ACTION (FORM DS-1032) DATED JULY 9, 1957, CANCELING THE
TERMINATION ACTION AND ASSIGNING MR. SERVICE, UNDER AUTHORITY OF SECTION
571 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 961, TO A
POSITION IN THE DEPARTMENT EFFECTIVE JULY 9, 1957. HIS SALARY AS A
FOREIGN SERVICE OFFICER, CLASS 2, WAS TENTATIVELY SET AT $12,900, A RATE
DERIVED THROUGH THE ADJUSTMENT OF THE SALARY RATE IN EFFECT AT DATE OF
TERMINATION, $11,850, BY SECTION 7 OF THE ACT OF JUNE 28, 1955 (PUBLIC
LAW 94), 69 STAT. 178, TO $12,740 AND FURTHER ADJUSTED BY SECTION 3 OF
THE ACT OF JULY 28, 1956 (PUBLIC LAW 828), 70 STAT. 704. IN-CLASS
SALARY INCREASES AUTHORIZED BY SECTION 625 OF THE FOREIGN SERVICE ACT OF
1946, AS AMENDED, 22 U.S.C. 995, AND THE FOREIGN SERVICE REGULATIONS
HAVE NOT BEEN REFLECTED IN THE SALARY RATE.
ON JANUARY 10, 1958, SUBSEQUENT TO THE RECEIPT OF YOUR DEPARTMENT'S
LETTER, THE ASSISTANT ATTORNEY GENERAL TRANSMITTED TO US A COPY OF A
PETITION FILED DECEMBER 9, 1957, IN THE UNITED STATES COURT OF CLAIMS---
JOHN S. SERVICE V. THE UNITED STATES, C.CLS. NO. 562-57--- WHEREIN THE
PLAINTIFF SEEKS TO RECOVER BACK SALARY FOR THE ENTIRE PERIOD OF ILLEGAL
REMOVAL. SINCE MR. SERVICE'S STATUS DURING THE PERIOD OF REMOVAL FOR
SALARY PAYMENT PURPOSES AFFECTS THE ANSWERS TO SEVERAL ITEMS CONTAINED
IN YOUR DEPARTMENT'S REQUEST FOR DECISION, AND SINCE OUR POLICY IS NOT
TO RENDER DECISIONS ON MATTERS WHICH ARE THE SUBJECT OF ACTIVE
LITIGATION, OUR REPLY AT THIS TIME WILL BE CONFINED TO THOSE ITEMS NOT
INVOLVED IN THE PENDING COURT ACTION.
CONCERNING THE LUMP-SUM LEAVE PAYMENT OF $5,742.84, REPRESENTING 178
CALENDAR DAYS, TO MR. SERVICE, HE IS OBLIGATED AS AN INCIDENT TO THE
INVALIDATION OF HIS SEPARATION TO REFUND THE GROSS AMOUNT OF THE
LUMP-SUM PAYMENT. SUBJECT TO THE MAXIMUM LIMITATION AND LEAVE CEILING
HE IS ENTITLED TO BE RECREDITED WITH THE ANNUAL LEAVE EQUIVALENT WHEN
THE ENTIRE REFUND HAS BEEN MADE. LEVERETTE V. UNITED STATES, 135 C.CLS.
207, 212; 32 COMP. GEN. 22; 34 ID. 17. WE ARE REPORTING THE LUMP-SUM
PAYMENT TO THE ATTORNEY GENERAL AS A POSSIBLE OFFSET AGAINST ANY RECOVER
ALLOWED IN THE PENDING SUIT; THEREFORE, YOUR DEPARTMENT SHOULD
IMMEDIATELY INFORM THAT OFFICIAL IF AND WHEN A DIRECT REFUND OF THE
LUMP-SUM PAYMENT IS MADE.
AS TO THE LEAVE WITHOUT PAY GRANTED AT THE REQUEST OF MR. SERVICE
FROM JULY 10 TO AUGUST 30, 1957, THE DEPARTMENTAL REGULATIONS, 1 FSM IV
471.33, PERMIT THE GRANTING OF LEAVE WITHOUT PAY REGARDLESS OF WHETHER
THE EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT. IN THIS CASE, OUR OFFICE
WOULD NOT OBJECT TO THE DEPARTMENTAL PROPOSAL THAT UPON REFUND OF THE
LUMP-SUM PAYMENT THAT A PART OF THE RESULTING LEAVE CREDIT BE USED TO
MAKE A RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE FOR THE LEAVE WITHOUT
PAY. WE MAY OBSERVE THAT THE RESULT OF THIS SUBSTITUTION WOULD BE A
REDUCTION OF MR. SERVICE'S ANNUAL LEAVE CEILING.
WE CONCUR WITH YOUR DEPARTMENT'S PROPOSAL TO REACTIVATE THE SICK
LEAVE BALANCE AS OF DECEMBER 14, 1951.
THE MATTER OF ANNUAL AND SICK LEAVE ACCRUALS DURING THE PERIOD OF
SEPARATION WILL BE FOR DETERMINATION AFTER THE BACK PAY ISSUE HAS BEEN
DECIDED.
CONCERNING RETIREMENT FUNDS, WE CONCUR WITH THE DEPARTMENTAL PROPOSAL
TO RECREDIT MR. SERVICE FOR THE PERIOD OF SERVICE PRIOR TO DECEMBER 15,
1951, UPON HIS REDEPOSIT INTO THE FUND OF THE TOTAL AMOUNT WITHDRAWN.
APPROPRIATIONS FOR THE EXPENSES OF TRAVEL OF FOREIGN SERVICE OFFICERS
AND THEIR FAMILIES AND OF TRANSPORTATION OF EFFECTS ARE AVAILABLE IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 911 OF THE FOREIGN SERVICE ACT
OF 1946, AS AMENDED, 22 U.S.C. 1136, AND REGULATIONS PROMULGATED BY THE
SECRETARY OF STATE PURSUANT THERETO. NONE OF THE PROVISIONS OF THE LAW
OR THE FOREIGN SERVICE TRAVEL REGULATIONS (1 FSM III 180) AUTHORIZES THE
PAYMENT OF EXPENSES OF TRAVEL AND TRANSPORTATION FROM PLACE OF RESIDENCE
TO POST OF DUTY UPON RESTORATION TO DUTY UNDER THE CIRCUMSTANCES
PRESENTED. IN THE ABSENCE OF SUCH AUTHORITY, APPROPRIATED FUNDS MAY NOT
BE CONSIDERED AS AVAILABLE FOR THE EXPENSES IN QUESTION.
WHILE THE MATTER IS NOT DISCUSSED IN THE ASSISTANT SECRETARY'S
LETTER, THE QUESTION ARISES WHETHER MR. SERVICE IS NOT OBLIGATED TO
REPAY THE AMOUNTS EXPENDED FROM APPROPRIATED FUNDS FOR TRAVEL AND
TRANSPORTATION FROM WASHINGTON TO NEW YORK UPON REMOVAL. THE
AUTHORIZATION DATED DECEMBER 14, 1951, FOR TRAVEL AND TRANSPORTATION
BECAUSE OF "TERMINATION" PRESUMABLY WAS ISSUED PURSUANT TO THE
PROVISIONS OF SECTION 103. 607 (K) (III) OF THE FOREIGN SERVICE TRAVEL
REGULATIONS IN EFFECT AT THE TIME (APPARENTLY THOSE PROMULGATED UNDER TM
349, DATED JULY 21, 1950) APPLICABLE IN THE CASE OF AN OFFICER WHO "IS
SEPARATED FROM THE SERVICE.' SINCE THE ORDER OF THE DISTRICT COURT
ISSUED IN PURSUANCE OF THE DECISION OF THE SUPREME COURT HAS ABROGATED
THE SEPARATION, THE BASIS FOR THE PAYMENT IN THE FIRST INSTANCE, THAT
IS, A SEPARATION FROM SERVICE, APPEARS TO HAVE BEEN NULLIFIED; AND NO
OTHER PROVISIONS OF LAW OR REGULATIONS SEEMS TO COVER THE CIRCUMSTANCES
OF THIS CASE. IN VIEW OF THE QUESTION THUS ARISING WE ARE DIRECTING THE
MATTER TO THE ATTENTION OF THE ATTORNEY GENERAL AS A POSSIBLE
COUNTERCLAIM IN THE PENDING SUIT.
B-109776, FEB. 28, 1958
TO MR. JACOB SEIDENBERG, EXECUTIVE DIRECTOR, THE PRESIDENT'S
COMMITTEE ON GOVERNMENT CONTRACTS:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 27, 1957,
FURNISHING A COPY OF A LETTER DATED DECEMBER 20, 1957, FROM THE
DEPARTMENT OF DEFENSE, ADDRESSED TO YOU, CONCERNING THE QUESTION OF THE
INCLUSION OF THE STANDARD NONDISCRIMINATION CLAUSE AS PROVIDED IN
EXECUTIVE ORDER NO. 10557 IN ALL GOVERNMENT BILLS OF LADING.
WE NOTE THAT THE DEPARTMENT OF DEFENSE HAS CONCLUDED THAT IT WOULD
NOT BE APPROPRIATE TO INCLUDE THE NONDISCRIMINATION CLAUSE IN GOVERNMENT
BILLS OF LADING USED BY THE DEPARTMENT UNLESS SIMILAR PROVISIONS ARE
CONTAINED IN THE BILLS OF LADING USED BY OTHER DEPARTMENTS AND AGENCIES
OF THE FEDERAL GOVERNMENT. WE CONCUR IN THE VIEW THAT UNIFORMITY IS
DESIRABLE. THE LETTER FROM THE DEPARTMENT OF DEFENSE THEN REFERS TO THE
FACT THAT FOR YEARS THE COMPTROLLER GENERAL HAS PRESCRIBED THE CONTENTS
OF THE GOVERNMENT BILL OF LADING, AND STATES THAT "WITHOUT HIS APPROVAL
THIS DEPARTMENT WOULD BE UNABLE TO VARY THE TERMS AND CONDITIONS OF THE
BILLS IT USES.' THERE FOLLOWS A SUGGESTION THAT THIS MATTER BE REFERRED
TO THE COMPTROLLER GENERAL, WITH THE VIEW TO THE ESTABLISHMENT OF A
GOVERNMENT-WIDE POLICY FOR THE INCLUSION OF THE STANDARD
NONDISCRIMINATION CLAUSE IN THE GOVERNMENT BILL OF LADING.
OUR AUTHORITY TO PRESCRIBE STANDARD FORMS FOR USE BY THE EXECUTIVE
DEPARTMENTS AND AGENCIES OF THE GOVERNMENT STEMS PRIMARILY FROM THE
BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 25, 31 U.S.C. 49,
AS SUBSEQUENTLY AMENDED BY THE PROVISIONS OF THE BUDGET AND ACCOUNTING
PROCEDURES ACT OF 1950, APPROVED SEPTEMBER 12, 1950, 64 STAT. 834, ET
SEQ. SEE PARTICULARLY, TITLE 1, PART II, SECTION 112 OF THAT ACT, 64
STAT. 836, 31 U.S.C. 66A. IN ADDITION, THE COMPTROLLER GENERAL SHALL
MAKE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY FOR CARRYING ON THE
WORK OF THE GENERAL ACCOUNTING OFFICE. 31 U.S.C. 52 (F). THIS
AUTHORITY TO PRESCRIBE STANDARD FORMS, PRACTICES, PROCEDURES, AND
REGULATIONS CONCERNING ADMINISTRATIVE APPROPRIATION AND FUND ACCOUNTING,
HOWEVER, IS NOT INTENDED TO LIMIT THE AUTHORITY VESTED IN OTHER OFFICERS
OF THE GOVERNMENT TO MAKE LAWFUL CONTRACTS IN ITS BEHALF. SEE 36
OP.ATTY.GEN. 289. THE AUTHORITY TO CONTRACT WITH COMMON CARRIERS OF
PROPERTY FOR TRANSPORTATION SERVICES AND TO NEGOTIATE THE TERMS AND
CONDITIONS UNDER WHICH SUCH SERVICES WILL BE PERFORMED FOR THE UNITED
STATES BELONGS TO THE GENERAL SERVICES ADMINISTRATION AND THE DEPARTMENT
OF DEFENSE, AMONG OTHER GOVERNMENT AGENCIES AND DEPARTMENTS. SEE, FOR
EXAMPLE, SECTION 201 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES
ACT OF 1949, 63 STAT. 383, 40 U.S.C. 481.
ACCORDINGLY, WHILE WE HAVE EXERCISED OUR AUTHORITY TO PRESCRIBE
STANDARD FORMS FOR THE PROCUREMENT OF TRANSPORTATION SERVICES, AND HAVE
ISSUED GENERAL REGULATIONS FOR THE GUIDANCE OF THE EXECUTIVE DEPARTMENTS
AND AGENCIES IN THE USE OF SUCH FORMS, SUCH AS OUR GENERAL REGULATIONS
NO. 97-REVISED, DATED JANUARY 21, 1946, 25 COMP. GEN. 924, CONCERNING
THE GOVERNMENT BILL OF LADING AND RELATED FORMS, THE TERMS AND
CONDITIONS GOVERNING THE FURNISHING OF SUCH SERVICES ARE PRIMARILY
DETERMINED BY THE DEPARTMENTS AND AGENCIES TO THE EXTENT THAT THOSE
TERMS AND CONDITIONS
ARE NOT IN CONFLICT WITH APPROPRIATION LIMITATIONS AND OUR AUDITING
AND ACCOUNTING REQUIREMENTS. THE UNDERLYING CONTRACTUAL DOCUMENT IN
MANY CASES IS A SPECIAL QUOTATION OR TENDER SUBMITTED BY THE CARRIERS
PURSUANT TO SECTION 22 (49 U.S.C. 22) AND COMPARABLE PROVISIONS OF THE
INTERSTATE COMMERCE ACT.
THEREFORE, WHILE WE APPRECIATE THE PROBLEMS BEFORE YOUR COMMITTEE IN
ITS EFFORTS TO ATTAIN ITS OBJECTIVES, WE ARE NOT, BY REASON OF OUR
FUNCTIONS AND DUTIES UNDER THE LAW, IN A POSITION TO REQUIRE,
UNILATERALLY, THE INCLUSION OF THE NONDISCRIMINATION CLAUSE IN THE
GOVERNMENT BILL OF LADING OR TO ARRANGE FOR THE CONCURRENCE OF THE MANY
INTERESTED CARRIERS IN A MATTER THAT IS ESSENTIALLY ADMINISTRATIVE IN
CHARACTER.
IF YOU SO DESIRE, WE SHALL JOIN, IN THE CAPACITY OF OBSERVERS, IN ANY
DISCUSSIONS THAT MAY BE ARRANGED FOR THE PURPOSE OF ESTABLISHING THE
ACCEPTABILITY AND INCLUSION OF THE NONDISCRIMINATION CLAUSE IN
GOVERNMENT BILLS OF LADING.
B-125352, FEB. 28, 1958
TO NAVAJO FREIGHT LINES, INC. :
REFERENCE IS MADE TO YOUR SEVERAL LETTERS PERTAINING TO YOUR CLAIMS
2052-4, 1212-3, 1531-3, AND 1544-3, INVOLVING YOUR BILLS NUMBERED
28A-2-11, 28A-8-8, 28A-10-22, AND 28A-10-3, RESPECTIVELY. THESE FILES
COVER SHIPMENTS FOR WHICH THROUGH RATES ARE PUBLISHED WHICH ARE IN
EXCESS OF THE CONTEMPORANEOUS AGGREGATES OF INTERMEDIATE RATES. THE
INTERSTATE COMMERCE COMMISSION HAS CONSISTENTLY HELD THAT SUCH THROUGH
RATES ARE PRIMA FACIE UNREASONABLE TO THE EXTENT THEY EXCEED SUCH
AGGREGATES OF INTERMEDIATE RATES. IN THESE CIRCUMSTANCES, WE ARE UNABLE
TO APPROVE PAYMENT OF PUBLIC FUNDS FOR FREIGHT CHARGES BASED ON RATES
WHICH ARE PRESUMPTIVELY UNREASONABLE AND IT IS OUR PRACTICE TO SEEK
COLLECTION OF THE DIFFERENCE BETWEEN THE THROUGH AND THE AGGREGATE OF
THE INTERMEDIATE RATES, LEAVING TO THE CARRIER THE EXERCISE OF ITS LEGAL
REMEDIES IN INSTANCES WHERE IT BELIEVES THE PRESUMPTION OF
UNREASONABLENESS CAN BE OVERCOME AND DESIRES AN ADMINISTRATIVE FINDING
BY THE COMMISSION.
OUR POSITION WITH RESPECT TO SITUATIONS OF THIS KIND IS MORE FULLY
EXPLAINED IN OUR DECISION B-109190 (COPY ENCLOSED FOR YOUR CONVENIENCE),
REPORTED IN 32 COMP. GEN. 1. IN THAT CASE, THE CARRIER REFUNDED THE
EXCESS AMOUNT AND FILED SUIT IN THE COURT OF CLAIMS TO RECOVER THE
REFUND. THE COMMISSION'S FINDING OF UNREASONABLENESS OF THE THROUGH
RATE INVOLVED IS REPORTED IN THE CASE OF UNITED STATES V. NEW YORK AND
NEW BRUNSWICK AUTO EXPRESS CO., INC., 62 N.C.C. 767, AND THE COURT OF
CLAIMS OPINION DENYING RECOVERY IS REPORTED AS NEW YORK AND NEW
BRUNSWICK AUTO EXPRESS CO., INC. V. UNITED STATES, 126 F.SUPP. 215.
THE AMOUNTS DETERMINED TO HAVE BEEN OVERPAID FOR THE SUBJECT
TRANSPORTATION SERVICES SHOULD BE REFUNDED PROMPTLY IN ORDER TO PRECLUDE
COLLECTION BY SETOFF OR OTHER MEANS.
B-130586, FEB. 28, 1958
TO ILLINOIS CENTRAL RAILROAD:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 2, 1958, FILE
G-N-4620-GANDSI-WAG, IN WHICH YOU REQUEST AUTHORITY FOR THE LAND-GRANT
ROUTE VIA CHICAGO AND CAIRO, ILLINOIS, WHICH WAS USED IN THE COMPUTATION
OF THE OVERPAYMENT OF $1,558.95 ON YOUR BILL N-4620-GANDSI, IN
CONNECTION WITH CERTAIN SHIPMENTS FROM CARNEGIE, PENNSYLVANIA, TO
GULFPORT, MISSISSIPPI, IN FEBRUARY AND MARCH 1945.
CENTRAL FREIGHT ASSOCIATION TARIFF BUREAU TARIFF NO. 619, AGENT B.
T. JONES' I.C.C. NO. 3873, CONTAINS, IN SUPPLEMENT NO. 6, EFFECTIVE
SEPTEMBER 20, 1944, ROUTE NO. 60 FROM CARNEGIE, PENNSYLVANIA, WHICH IS
APPLICABLE VIA THE PITTSBURGH, CHARTIERS AND YOUGHIOGHENY RAILWAY TO
MCKEES ROCKS, THE PITTSBURGH AND LAKE ERIE RAILROAD TO YOUNGSTOWN, THE
NEW YORK CENTRAL (WESTERN LINES) RAILROAD TO CHICAGO, AND THE ILLINOIS
CENTRAL RAILROAD TO CAIRO. ALTHOUGH THE PENNSYLVANIA RAILROAD
APPARENTLY DOES NOT PUBLISH A ROUTE IN TARIFF NO. 619 FROM CARNEGIE,
PENNSYLVANIA, APPLICABLE VIA CHICAGO AND CAIRO, NEVERTHELESS, THE ABOVE
ROUTE IS AVAILABLE FOR THE PURPOSE OF COMPUTING LAND-GRANT DEDUCTIONS
UNDER THE TERMS OF THE CARRIERS' FREIGHT LAND-GRANT EQUALIZATION
AGREEMENT. ACCORDINGLY, THE OVERPAYMENT ON THESE SHIPMENTS WAS
DETERMINED UPON THE BASIS OF AN AVAILABLE LAND-GRANT ROUTE, AND THE
AMOUNT OF $1,558.95 SHOULD BE REFUNDED PROMPTLY; OTHERWISE COLLECTION
WILL BE MADE BY DEDUCTION FROM AN UNPAID BILL.
B-134566, FEB. 28, 1958
TO LIEUTENANT COLONEL C. W. GRIFFIN:
BY LETTER RECEIVED HERE DECEMBER 4, 1957, THE OFFICE OF THE
DIRECTORATE OF ACCOUNTING AND FINANCE, FORWARDED YOUR LETTER OF OCTOBER
30, 1957, WITH ENCLOSURES, PRESENTING FOR DECISION A VOUCHER STATED IN
FAVOR OF MURRAY M. JONES, RETIRED ENLISTED MAN OF THE UNITED STATES AIR
FORCE, FOR THE DIFFERENCE BETWEEN RETIRED PAY AS A TECHNICAL SERGEANT
AND RETIRED PAY AS A STAFF SERGEANT FOR THE PERIOD OCTOBER 1 TO 31,
1957.
IT APPEARS THAT SERGEANT JONES WAS PLACED ON THE TEMPORARY DISABILITY
RETIRED LIST IN THE RANK OF STAFF SERGEANT EFFECTIVE SEPTEMBER 23, 1957,
UNDER THE PROVISIONS OF 10 U.S.C. 1202, BY REASON OF 30 PERCENT
TEMPORARY DISABILITY AFTER COMPLETING 10 YEARS, 5 MONTHS, 11 DAYS
SERVICE, OF WHICH 10 YEARS, 3 MONTHS, 24 DAYS WERE SERVED ON ACTIVE
DUTY. UPON A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE,
UNDER THE PROVISIONS OF 10 U.S.C. 1372, THAT THE AIRMAN HELD THE GRADE
OF TECHNICAL SERGEANT SATISFACTORILY FOR THE PERIOD JUNE 13, 1944, TO
OCTOBER 21, 1945, WHILE SERVING WITH THE CAVALRY, ARMY OF THE UNITED
STATES, THE ENLISTED MAN WAS CERTIFIED AS BEING ELIGIBLE TO RECEIVE
RETIRED PAY IN THE GRADE OF TECHNICAL SERGEANT EFFECTIVE ON THE DATE OF
HIS RETIREMENT, SEPTEMBER 23, 1957. YOU SAY THAT THE AIRMAN WAS PAID
RETIRED PAY AS A TECHNICAL SERGEANT FOR THE PERIOD SEPTEMBER 24 TO 30,
1957, BUT DUE TO DOUBT IN THE MATTER, PARTICULARLY SINCE THE HIGHER
TEMPORARY GRADE WAS HELD WHILE SERVING IN THE ARMY OF THE UNITED STATES,
HIS RETIRED PAY AS TECHNICAL SERGEANT WAS REDUCED TO THAT OF A STAFF
SERGEANT EFFECTIVE OCTOBER 1, 1957. IN THE EVENT THE PAYMENT ON THE
VOUCHER IS DETERMINED TO BE IMPROPER, YOU ASK WHETHER IT WOULD LIKEWISE
BE IMPROPER IF SERGEANT JONES HAD SERVED IN THE AIR CORPS, ARMY OF THE
UNITED STATES, IN THE HIGHER TEMPORARY GRADE RATHER THAN IN THE CAVALRY,
ARMY OF THE UNITED STATES.
ACCOMPANYING THE SUBMISSION IS A RESUME OF SERVICE OF MURRAY M.
JONES SHOWING, AMONG OTHER THINGS, THAT FOLLOWING HIS RECALL TO ACTIVE
DUTY (JANUARY 13, 1942) AS A PRIVATE IN THE ARMY OF THE UNITED STATES,
HE WAS ASSIGNED TO THE 8TH CAVALRY; THAT HE WAS SUBSEQUENTLY PROMOTED
TO THE TEMPORARY GRADE OF TECHNICAL SERGEANT ON JUNE 13, 1944; AND THAT
HE SERVED IN THE GRADE OF TECHNICAL SERGEANT UNTIL HE WAS HONORABLY
DISCHARGED FROM THE ARMY ON OCTOBER 21, 1945. THEREAFTER, ON NOVEMBER
1, 1951, HE ENLISTED IN THE UNITED STATES AIR FORCE AS A PRIVATE FIRST
CLASS; HE WAS SUBSEQUENTLY PROMOTED TO STAFF SERGEANT (TEMPORARY) ON
DECEMBER 9, 1954; AND HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED
LIST EFFECTIVE SEPTEMBER 23, 1957, IN THE GRADE OF TECHNICAL SERGEANT
BASED UPON A DETERMINATION THAT HE SATISFACTORILY SERVED IN SUCH HIGHER
GRADE.
IN TRANSMITTING YOUR REQUEST FOR A DECISION, THE OFFICE OF THE
DIRECTORATE OF ACCOUNTING AND FINANCE STATES THAT THE QUESTION INVOLVED
IS WHETHER A DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE, THAT
THE AIRMAN SATISFACTORILY SERVED IN THE HIGHER GRADE, MADE ON THE BASIS
OF THE MEMBER'S SERVICE RECORD AND HONORABLE DISCHARGE CERTIFICATE MAY
BE ACCEPTED, OR WHETHER SUCH DETERMINATION MUST BE MADE BY THE SECRETARY
OF THE ARMY, THE ARMY BEING THE SERVICE IN WHICH THE MEMBER ATTAINED THE
GRADE OF TECHNICAL SERGEANT.
THE DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE THAT
SERGEANT JONES HELD THE TEMPORARY GRADE OF TECHNICAL SERGEANT WHILE
SERVING IN THE ARMY OF THE UNITED STATES WAS BASED ON THE PROVISIONS OF
10 U.S.C. 1372, WHICH PROVIDE, IN PERTINENT 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.
(2) THE HIGHEST TEMPORARY GRADE OR RANK IN WHICH HE SERVED
SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE ARMED FORCE FROM
WHICH HE IS RETIRED.'
PROVISIONS SUBSTANTIALLY THE SAME AS THE ABOVE STATUTORY PROVISIONS
WERE CONTAINED IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF
1949, 63 STAT. 818, AND WERE REPLACED BY THE ABOVE PROVISIONS WHICH WERE
ENACTED BY THE ACT OF AUGUST 10, 1956, 70A STAT. 105, 10 U.S.C. 1372.
AT THE REQUEST OF THE SECRETARY OF THE NAVY, AS SET OUT IN OUR
DECISION OF JULY 8, 1953, B-115121, 33 COMP. GEN. 10, THERE WAS
CONSIDERED THE QUESTION WHETHER A MEMBER RETIRED UNDER THE PROVISIONS OF
SECTION 402 (D) OF THE 1949 ACT AND DETERMINED BY THE SECRETARY
CONCERNED TO HAVE SERVED SATISFACTORILY IN A HIGHER TEMPORARY RANK,
GRADE, OR RATING IN A BRANCH OF THE UNIFORMED SERVICES OTHER THAN THAT
FROM WHICH RETIRED WOULD BE ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON
THE BASIS OF SUCH HIGHER RANK, GRADE, OR RATING. WE CONCLUDED, IN THAT
DECISION, THAT SUCH PROVISIONS HAD REFERENCE ONLY TO THE ARMED FORCE
FROM WHICH RETIRED AND THAT AN INDIVIDUAL WHO HAD SERVED IN A HIGHER
RANK, GRADE, OR RATING IN A FORCE OTHER THAN THAT FROM WHICH RETIRED IS
NOT ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY OF SUCH
HIGHER RANK, GRADE, OR RATING.
SINCE SERGEANT JONES WAS RETIRED FROM THE AIR FORCE RATHER THAN THE
ARMY, AND SINCE THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED IN THE
AIR FORCE WAS THAT OF A STAFF SERGEANT, IT FOLLOWS THAT THE
DETERMINATION MADE BY THE SECRETARY OF THE AIR FORCE THAT JONES SERVED
SATISFACTORILY IN THE TEMPORARY GRADE OF TECHNICAL SERGEANT WHILE
SERVING IN THE ARMY OF THE UNITED STATES MAY NOT BE ACCEPTED AS
AUTHORIZING INCREASED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C.
1372. FURTHER, IF THE SECRETARY OF THE ARMY SHOULD NOW MAKE A
DETERMINATION THAT JONES SERVED IN THE HIGHER TEMPORARY GRADE IN THE
ARMY, THERE WOULD BE NO AUTHORITY TO PAY THE INCREASED RETIRED PAY TO
HIM IN VIEW OF THE RULE SET FORTH IN THE ABOVE-CITED DECISION OF JULY 8,
1953, AND HELD APPLICABLE IN HIS CASE.
ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH IS BEING
RETAINED HERE.
CONCERNING YOUR QUESTION WHETHER PAYMENT STILL WOULD BE IMPROPER, IF
JONES HAD SERVED IN THE AIR CORPS, ARMY OF THE UNITED STATES, IN THE
HIGHER TEMPORARY GRADE RATHER THAN IN THE CAVALRY, ARMY OF THE UNITED
STATES, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTIONS 208 (C)
AND (D) OF THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, 5 U.S.C. 626C
(C) AND (D). UNDER THOSE PROVISIONS, INSOFAR AS HERE APPLICABLE, ALL
ENLISTED MEN ENLISTED IN THE AIR CORPS, UNITED STATES ARMY, OR THE ARMY
AIR FORCE WERE TRANSFERRED IN BRANCH TO THE UNITED STATES AIR FORCE, AND
ALL RECORDS, ETC., WERE PLACED UNDER THE JURISDICTION OF THE CHIEF OF
STAFF, UNITED STATES AIR FORCE. SECTION 305 OF THE ACT, 5 U.S.C.
171-1, STATES THAT ALL LAWS, ORDERS, REGULATIONS, AND OTHER ACTIONS
APPLICABLE WITH RESPECT TO ANY FUNCTIONS, ACTIVITIES, PERSONNEL,
PROPERTY, RECORDS, OR OTHER THINGS TRANSFERRED UNDER SECTIONS 626-626D
OF THIS TITLE OR WITH RESPECT TO ANY OFFICER, DEPARTMENT, OR AGENCY,
FROM WHICH SUCH TRANSFER IS MADE, SHALL, EXCEPT TO THE EXTENT RESCINDED,
MODIFIED, SUPERSEDED, TERMINATED, OR MADE INAPPLICABLE BY OR UNDER
AUTHORITY OF LAW, HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN
MADE; BUT, AFTER ANY SUCH TRANSFER ANY SUCH LAW, TC., SHALL BE DEEMED
TO HAVE VESTED SUCH FUNCTION IN OR RELATE TO THE OFFICER, DEPARTMENT, OR
AGENCY, TO WHICH THE TRANSFER WAS MADE. IT IS OUR VIEW THAT SUCH
STATUTORY PROVISIONS, WHEN READ IN CONJUNCTION WITH 10 U.S.C. 1372,
REQUIRE THE CONCLUSION THAT IF THE PRIOR SERVICE PERFORMED BY JONES HAD
BEEN SERVED IN A HIGHER TEMPORARY GRADE IN THE AIR CORPS, ARMY OF THE
UNITED STATES, IT PROPERLY COULD BE CONSIDERED AS TANTAMOUNT TO SERVICE
IN THE UNITED STATES AIR FORCE AND THAT A DETERMINATION OF SATISFACTORY
SERVICE IN THE HIGHER GRADE MADE BY THE SECRETARY OF THE AIR FORCE THEN
WOULD HAVE BEEN ACCEPTABLE AS AUTHORIZING THE INCREASED RETIRED PAY
UNDER THE PROVISIONS OF 10 U.S.C. 1372. COMPARE THE ANSWER TO QUESTION
2 IN OUR DECISION OF JULY 23, 1957, B-131943, 37 COMP. GEN. 45.
B-134852, FEB. 28, 1958
TO BALFRE GEAR AND MANUFACTURING CO. :
REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30, 1957, WITH
ENCLOSURES, RELATIVE TO YOUR INDEBTEDNESS IN THE AMOUNT OF $23,970.94,
REPRESENTING RENTAL, AND CHARGES FOR PACKING, HANDLING AND PREPARATION
FOR STORAGE OF GOVERNMENT-OWNED EQUIPMENT LEASED TO YOU UNDER CONTRACT
NO. DA-11-184-ENG-10862, DATED MARCH 12, 1952, AND SUPPLEMENTS THERETO.
UNDER THE SUBJECT CONTRACT AND SUBSEQUENT SUPPLEMENTAL AGREEMENTS,
YOU WERE LEASED 10 ITEMS OF GOVERNMENT-OWNED EQUIPMENT AT A MONTHLY RATE
OF ONE PERCENT OF THEIR "AGREED VALUATION.' ARTICLE 2 OF THE CONTRACT
PROVIDES THAT THE EQUIPMENT IS LEASED "IN ITS PRESENT CONDITION, AS IS,
WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED ON THE PART OF THE GOVERNMENT
AS TO CONDITION OR SERVICEABILITY.'
ARTICLE 10 PROVIDES THAT UPON RETURN OF THE EQUIPMENT TO THE
GOVERNMENT AND PRESENTATION OF A STATEMENT, YOU WILL REIMBURSE THE
GOVERNMENT FOR ALL PACKING, HANDLING AND PREPARATION FOR LONG-TERM
STORAGE COSTS INCURRED. AFTER YOU DECLARED THE LEASED ITEMS SURPLUS AND
RETURNED THEM TO THE GOVERNMENT, YOU EXECUTED SUPPLEMENTAL AGREEMENTS
WHICH PROVIDED THE DATE OF TERMINATION OF THE RENTAL CHARGE FOR EACH
ITEM.
YOU STATE THAT (1) THE 1952 AGREED VALUATION OF CERTAIN EQUIPMENT WAS
IN EXCESS OF THE ORIGINAL ACQUISITION COST AND IS IN EXCESS OF THE 1957
USED MARKET PRICE, (2) YOU HAD TO SPEND CONSIDERABLE TIME AND MONEY TO
MAKE CERTAIN EQUIPMENT OPERABLE AND, IN ONE INSTANCE, A MACHINE WAS
ENTIRELY UNSUITABLE, (3) YOU WERE OVERCHARGED RENT, AND (4) UNREASONABLE
AND EXORBITANT CHARGES WERE ASSESSED FOR THE PREPARATION OF THE
EQUIPMENT FOR STORAGE. ON THE BASIS OF THESE CONTENTIONS, YOU REQUEST
THAT YOUR INDEBTEDNESS BE REDUCED.
THE TERM "AGREED VALUATION" IS NOT SYNONYMOUS WITH "ACQUISITION COST"
OR "MARKET VALUE OF EQUIPMENT FIVE YEARS AFTER IT IS LEASED.' IN A
DECISION OF THIS OFFICE, 28 COMP. GEN. 686, WE CONSIDERED A SITUATION
SIMILAR TO THAT THERE INVOLVED, WHEREIN A LESSEE UNEQUIVOCALLY AGREED TO
PAY FOR GOVERNMENT-OWNED EQUIPMENT AT SPECIFIED RENTAL BASED ON A
PERCENTAGE OF A STATED VALUATION. SUBSEQUENT TO EXECUTION OF THE LEASE,
THE LESSEE ASCERTAINED THAT THE ORIGINAL PRICE TO THE GOVERNMENT HAD
BEEN SUBSTANTIALLY LESS THAN THE VALUATION USED IN PREPARING THE LEASE.
WE HELD THAT, NOTWITHSTANDING THIS FACT, THE LESSEE WAS NOT ENTITLED TO
ANY REDRESS AGAINST THE GOVERNMENT.
IN REGARD TO YOUR SECOND CONTENTION, SINCE UNDER ARTICLE 2 OF THE
CONTRACT YOU ASSUMED THE RISK OF THE CONDITION OF THE EQUIPMENT, YOU ARE
PRECLUDED FROM RECOVERING FOR ANY OF ITS DEFICIENCIES.
YOU STATE THAT YOU WERE OVERCHARGED RENT BECAUSE, IN CERTAIN
INSTANCES, THE TIME LAPSE BETWEEN THE DATE YOU DECLARED THE EQUIPMENT
SURPLUS AND THE DATE OF TERMINATION IS TWO AND THREE MONTHS. HOWEVER,
YOU SPECIFICALLY AGREED TO THE LEASE TERMINATION DATES WHEN YOU EXECUTED
THE TERMINATION AGREEMENTS, AND YOU KNEW THAT THE RENT WOULD BE BASED ON
THE TERMINATION DATES. THEREFORE, THERE IS NO MERIT TO THIS CONTENTION.
THERE IS NOTHING OF RECORD HERE TO INDICATE THAT THE CHARGES ASSESSED
FOR THE PREPARATION OF THE EQUIPMENT FOR STORAGE WERE UNREASONABLE OR
EXORBITANT, AND YOU HAVE SUBMITTED NO EVIDENCE TO SUPPORT YOUR
ALLEGATION IN THAT REGARD.
FOR THE FOREGOING REASONS, IT MUST BE CONCLUDED THAT NO BASIS EXISTS
FOR ANY REDUCTION IN THE AMOUNT OF YOUR INDEBTEDNESS. ACCORDINGLY, AND
SINCE THE GOVERNMENT'S CLAIM HAS BEEN LONG OUTSTANDING, YOU ARE ADVISED
THAT UNLESS SATISFACTORY ARRANGEMENTS FOR SETTLEMENT ARE MADE PROMPTLY,
THE MATTER WILL BE REPORTED TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE
LEGAL ACTION.
B-134860, FEB. 28, 1958
TO COLONEL ERNEST W. POSSE:
YOUR LETTER DATED DECEMBER 19, 1957, REQUESTS REVIEW OF OUR
SETTLEMENT DATED DECEMBER 12, 1957, WHICH DISALLOWED YOUR CLAIM FOR PER
DIEM FOR THE PERIOD FEBRUARY 28 TO MARCH 26, 1957, AND FROM APRIL 16 TO
18, 1957, WHILE YOU WERE AT FORT POLK, LOUISIANA.
BY ORDERS ISSUED AT ABERDEEN PROVING GROUND, MARYLAND, ON FEBRUARY 1,
1957, YOU WERE DIRECTED TO PROCEED ON OR ABOUT FEBRUARY 3, 1957, TO FORT
HOOD, TEXAS, FORT POLK, LOUISIANA, AND RETURN TO FORT HOOD, ON TEMPORARY
DUTY FOR APPROXIMATELY 117 DAYS IN CONNECTION WITH OPERATION KING COLE.
UPON COMPLETION OF THIS TEMPORARY DUTY YOU WERE TO RETURN TO YOUR PROPER
STATION. SUCH ORDERS WERE AMENDED BY ORDERS OF MARCH 4, 1957, TO ADD
"TDY PERFORMED SUBSEQUENT TO 26 FEB 57 WILL BE CONSIDERED FIELD DUTY OF
A TYPE CONTEMPLATED IN PARA 4201.6 JTR.' APPARENTLY, THAT ACTION WAS
TAKEN PURSUANT TO INSTRUCTIONS TO THAT EFFECT CONTAINED IN A MESSAGE
DATED FEBRUARY 21, 1957, ANNOUNCING A POLICY APPLICABLE TO CERTAIN
PERSONNEL INCLUDING THOSE ASSIGNED OR ATTACHED TO HEKC AT FORT POLK,
THAT AFTER FEBRUARY 26, 1957, DUTY IN EXERCISE KING COLE WOULD BE
CONSIDERED TO BE FIELD DUTY OF A TYPE CONTEMPLATED BY PARAGRAPH 4201.6
OF THE JOINT TRAVEL REGULATIONS FOR DUTY PERFORMED IN CONNECTION WITH
THE ESTABLISHMENT AND OPERATION OF THAT EXERCISE. YOUR CLAIM WAS
DISALLOWED BECAUSE OF THAT PROVISION IN YOUR ORDERS. YOU CONTEND THAT
YOUR ORDERS ARE INEFFECTIVE TO BAR PER DIEM SINCE PARAGRAPH 4201.6 (2),
JOINT TRAVEL REGULATIONS, PROVIDES THAT THE PROHIBITION AGAINST THE
PAYMENT OF PER DIEM WHILE PARTICIPATING IN MANEUVERS DOES NOT APPLY
,DURING THE PERIOD A MEMBER IS ACTUALLY ENGAGED IN THE ADVANCE PLANNING
OR CRITIQUE PHASES OF THE OPERATION" AND YOUR DUTY IN EXERCISE KING COLE
WAS ENTIRELY CONCERNED WITH PLANNING FOR THE EXERCISE AND WRITING A
CRITIQUE AFTERWARD.
A MEMBER'S RIGHT TO PER DIEM FOR TEMPORARY DUTY TRAVEL AWAY FROM HIS
DESIGNATED POST OF DUTY IS FIXED BY THE JOINT TRAVEL REGULATIONS.
PARAGRAPH 4201.6 BARS PAYMENT OF PER DIEM TO MEMBERS FOR FIELD DUTY AND
RELATED ACTIVITIES, EXCEPT (2) DURING THE PERIOD THEY ARE ENGAGED IN THE
ADVANCE PLANNING OR CRITIQUE PHASES OF THE OPERATION.
ARMY REGULATIONS 35-3080, DATED MAY 15, 1956, IMPLEMENTS PARAGRAPH
4201.6, JOINT TRAVEL REGULATIONS, AND CONTAINS CERTAIN PROCEDURES
RELATIVE TO PAYMENT OF PER DIEM ALLOWANCES TO MEMBERS WHILE
PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES AND
OTHER SIMILAR ACTIVITIES. PARAGRAPH 5A (2) OF SUCH REGULATIONS PROVIDES
FOR PAYMENT OF PER DIEM TO MEMBERS FOR PERIODS OF TEMPORARY DUTY FOR THE
ADVANCE PLANNING AND CRITIQUE PHASES OF ACTUAL MANEUVERS, EXERCISES,
ETC. PARAGRAPH 6 PROVIDES, IN PART, AS FOLLOWS:
"6. TRAVEL ORDERS. * * *
"B. MEMBER TRAVELING AS AN INDIVIDUAL. * * * ORDERS DIRECTING AN
INDIVIDUAL (PAR. 5A (2) ( WHO WILL BE REQUIRED TO PERFORM DUTY FOR
ADVANCE PLANNING OR CRITIQUE PHASES OF THE TYPE DUTY CONTEMPLATED IN
PARAGRAPH 1 WILL STATE---
" "TEMPORARY DUTY PERFORMED UNDER THIS ORDER CONSTITUTES DUTY OF A
TYPE CONTEMPLATED BY PAR. 4201.6 (OR 4250.3), JOINT TRAVEL REGULATIONS,
EXCEPT FOR PERIOD OF CRITIQUE PHASE (OR ADVANCE PLANNING).' "
YOUR ORDERS OF FEBRUARY 1, 1957, AS AMENDED BY THE ORDERS OF MARCH 4,
1957, DO NOT MENTION EITHER THE ADVANCE PLANNING OR CRITIQUE PHASES OF
EXERCISE KING COLE AND YOU HAVE FURNISHED NO INFORMATION FROM AN
ADMINISTRATIVE SOURCE WHICH SHOWS THAT YOU WERE NOT ENGAGED IN DUTY OF A
FIELD EXERCISE TYPE DURING THE PERIODS OF YOUR CLAIM. WHILE THE
EXERCISE PHASE OF THE OPERATION WAS ANNOUNCED IN MEMORANDUM NO. 5,
HEADQUARTERS EXERCISE KING COLE, FORT HOOD, TEXAS, DECEMBER 19, 1956, AS
COMMENCING MARCH 27 AND ENDING APRIL 15, 1957, THE POLICY ANNOUNCED IN
THE MESSAGE OF FEBRUARY 21, 1957 (PUBLISHED IN WEEKLY MEMORANDUM NO. 9,
HEADQUARTERS, FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, MARCH
1, 1957), HAD THE EFFECT OF ADVANCING THE COMMENCEMENT DATE OF THE
EXERCISE TO FEBRUARY 27, 1957, AS FAR AS YOU WERE CONCERNED, AND THE
RECORD INDICATES THAT THE EXERCISE ACTUALLY TERMINATED AT MIDNIGHT APRIL
18, 1957.
IN VIEW OF THE FOREGOING REGULATIONS AND THE ADMINISTRATIVE ACTION
TAKEN SHOWING THAT THE ORDERED DUTY CONSTITUTED FIELD DUTY AS
CONTEMPLATED BY THE JOINT TRAVEL REGULATIONS, THERE IS NO LEGAL BASIS TO
ALLOW YOU PER DIEM FOR SUCH DUTY.
ACCORDINGLY, THE SETTLEMENT OF DECEMBER 12, 1957, WAS CORRECT AND IS
SUSTAINED.
B-134914, FEB. 28, 1958
TO THE SECRETARY OF THE INTERIOR:
ON JANUARY 15, 1958, YOUR ADMINISTRATIVE ASSISTANT SECRETARY
REQUESTED OUR ADVICE UPON TWO QUESTIONS CONCERNING THE ANNUAL LEAVE RATE
CATEGORY OF MR. JAMES V. NASH, FORMERLY AN EMPLOYEE OF THE ALASKA
RAILROAD.
MR. NASH BEGAN HIS FIRST CIVILIAN GOVERNMENT SERVICE ON APRIL 26,
1949, WITH THE ALASKA RAILROAD. ON THAT DATE HE WAS RECEIVING RETIRED
PAY BASED UPON TWENTY YEARS OF SERVICE WITH THE UNITED STATES ARMY. ON
JANUARY 6, 1952, THE EFFECTIVE DATE OF THE GRADUATED LEAVE SYSTEM, YOUR
DEPARTMENT DETERMINED THAT ONLY HIS CIVILIAN SERVICE WAS CREDITABLE FOR
LEAVE PURPOSES. UPON THAT DETERMINATION, HE WAS ALLOWED AN ACCRUAL OF
FOUR HOURS OF ANNUAL LEAVE PER PAY PERIOD FOR A PERIOD OF THREE YEARS,
AND, THEREAFTER, HIS LEAVE ACCRUAL WAS INCREASED TO SIX HOURS PER PAY
PERIOD UPON THE BASIS OF HIS COMPLETION OF THREE YEARS OF CIVILIAN
SERVICE WITH THE GOVERNMENT. THE FIRST QUESTION UPON WHICH OUR ADVICE
IS REQUESTED IS WHETHER MR. NASH'S PRIOR MILITARY SERVICE IS CREDITABLE
FOR LEAVE PURPOSES, NOTWITHSTANDING HE RECEIVED RETIRED PAY FOR SUCH
SERVICE.
IN OUR DECISION, 31 COMP. GEN. 215, WE HELD IN ANSWER TO QUESTION 2,
AT PAGE 218, THAT THE CONGRESS IN USING THE WORDS "ALL SERVICE
CREDITABLE UNDER THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE
RETIREMENT ACT * * * FOR THE PURPOSES OF AN ANNUITY UNDER SUCH ACT"
APPEARING IN SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951,
65 STAT. 679, DID NOT INTEND THAT THAT SERVICE BE ACTUALLY CREDITABLE AT
THE TIME FOR ANNUITY PURPOSES BEFORE ITS BEING USED TO DETERMINE AN
EMPLOYEE'S LEAVE SCALE, BUT RATHER IT HAD REFERENCE TO POTENTIALLY
CREDITABLE SERVICE, THAT IS, SERVICE WHICH COULD FORM THE BASIS FOR AN
ANNUITY AT SOME FUTURE DATE. ONE OF THE EXAMPLES OF POTENTIALLY
CREDITABLE SERVICE FOR CIVILIAN RETIREMENT INVOLVED IN THAT DECISION WAS
AN EMPLOYEE WHO WAS RECEIVING MILITARY RETIRED PAY. IN OTHER WORDS,
ALTHOUGH CREDIT FOR MILITARY SERVICE TOWARDS CIVILIAN RETIREMENT
ORDINARILY IS NOT PERMITTED WHEN SUCH SERVICE FORMS THE BASIS FOR
MILITARY RETIREMENT PAY, IT IS CONCEIVABLE THAT AN EMPLOYEE MAY ELECT TO
FOREGO HIS MILITARY RETIREMENT PAY IN ORDER TO HAVE SUCH SERVICE
CREDITED UNDER THE CIVILIAN RETIREMENT ACT TO OBTAIN A HIGHER RATE OF
PAY. IN THAT CONNECTION, SEE CHAPTERS R-5-19 AND Z1-55, SECTION 3 (B),
OF THE FEDERAL PERSONNEL MANUAL. HENCE, IN ANSWER TO YOUR FIRST
QUESTION, OUR VIEW IS THAT THE POTENTIALLY CREDITABLE MILITARY SERVICE
OF MR. NASH IS CREDITABLE FOR CIVILIAN LEAVE PURPOSES. THIS VIEW
THEREFORE RESULTS IN ADDITIONAL LEAVE CREDITS TO HIM.
THE SECOND QUESTION IS WHETHER AN EMPLOYEE'S RESIGNATION MAY BE
PROCESSED TO TAKE EFFECT AT THE END OF HIS ACCRUED OR ACCUMULATED ANNUAL
LEAVE OR WHETHER THE ADMINISTRATIVE OFFICE IS REQUIRED TO TERMINATE THE
SERVICES OF AN EMPLOYEE ON ANNUAL LEAVE AND MAKE AN APPROPRIATE LUMP-SUM
PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT, WHEN IT BECOMES KNOWN THAT
HE WILL NOT RETURN TO ACTIVE DUTY. THE DOUBT IN THE MATTER ARISES FROM
OUR DECISION, 32 COMP. GEN. 111, WHICH HELD THAT THE RESIGNATION OF A
GOVERNMENT EMPLOYEE MUST BE PROCESSED IN ACCORDANCE WITH ITS TERMS AS
TENDERED (AS WAS DONE IN THIS CASE), AND ALSO OUR DECISION, 24 COMP.
GEN. 511, WHICH HELD THAT TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE
GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE
WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM
THE SERVICE (BUT WHICH WAS ACTUALLY GRANTED IN THIS CASE CONTRARY TO
SUCH HOLDING).
YOUR ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT ON NOVEMBER 13,
1956, MR. NASH REQUESTED AND WAS GRANTED ANNUAL LEAVE EXTENDING THROUGH
FEBRUARY 1, 1957. HOWEVER, ON DECEMBER 15, 1956, MR. NASH SUBMITTED
HIS RESIGNATION REQUESTING THAT IT BECOME EFFECTIVE ON OR ABOUT JANUARY
30, 1957. PURSUANT TO THAT REQUEST HIS RESIGNATION WAS PROCESSED TO
BECOME EFFECTIVE AS OF THE FIFTH HOUR ON JANUARY 25, 1957--- AT THE
EXPIRATION OF HIS ANNUAL LEAVE CREDIT. IN THAT SITUATION NO LUMP-SUM
LEAVE PAYMENT WAS MADE.
IN OUR DECISION, 34 COMP. GEN. 61, WE HELD, QUOTING FROM THE
SYLLABUS, THAT:
"ADMINISTRATIVE AUTHORITY TO GRANT AN EMPLOYEE TERMINAL, ANNUAL OR
VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT
IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS LIMITED TO
CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION; HOWEVER,
AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT
TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. GEN. 511, TO THE
EFFECT THAT AN EMPLOYEE MUST BE SEPARATED AND PAID A LUMP SUM FOR THE
ANNUAL LEAVE TO HIS CREDIT AS OF THE LAST DATE OF ACTIVE SERVICE.'
WE ALSO SAID CERTAIN EXCEPTIONS TO THE GENERAL RULE IN 24 COMP. GEN.
511--- BASED UPON STATUTORY PROVISIONS AND STATUTORY REGULATIONS---
HAVE BEEN RECOGNIZED IN SUBSEQUENT OFFICE DECISIONS. SEE 25 COMP. GEN.
82; 26 ID. 331; 31 ID. 581; 33 ID. 85. SINCE YOUR ADMINISTRATIVE
ASSISTANT SECRETARY SAYS THAT IN THE INSTANT CASE IT DOES NOT APPEAR
THAT THE EXIGENCIES OF THE SERVICE REQUIRED THE RETENTION OF THE
EMPLOYEE IN AN ANNUAL LEAVE STATUS, THE EMPLOYEE'S ANNUAL LEAVE STATUS
SHOULD HAVE BEEN TERMINATED ON DECEMBER 15, 1956, THE DATE HE SUBMITTED
HIS RESIGNATION AND HE SHOULD HAVE BEEN SEPARATED FROM THE SERVICE ON
THAT DATE AND PAID A LUMP SUM FOR THE REMAINING ANNUAL LEAVE TO HIS
CREDIT. THIS ACTION WOULD BE IN ACCORDANCE WITH THE LUMP-SUM PAYMENT
STATUTORY EXCEPTION TO THE GENERAL RULE AS STATED IN 24 COMP. GEN. 511.
THEREFORE, THE RECONSTRUCTED LEAVE ACCOUNT SET OUT IN THE STATEMENT
ACCOMPANYING THE SUBMISSION SHOWING THE ADDITIONAL AMOUNT OF LEAVE DUE
BASED UPON THE HIGHER LEAVE CATEGORY RATE AND SHOWING THE DATE OF
SEPARATION AS C.O.B. DECEMBER 15, 1956, IS FOR ADOPTION HERE--- SUBJECT
TO CORRECT COMPUTATION OF LEAVE AS SHOWN BY THE OFFICIAL LEAVE RECORDS.
CONCERNING THE MATTER OF SUBMITTING CLAIMS FOR ADDITIONAL AMOUNTS DUE
SEPARATED OR DISCHARGED GOVERNMENT EMPLOYEES TO THE CLAIMS DIVISION OF
THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, SEE OUR CIRCULAR LETTER OF
NOVEMBER 21, 1952, B-112891, 32 COMP. GEN. 675, IN WHICH WE SAID THAT
SUCH CLAIMS ARE PROPERLY FOR ADMINISTRATIVE HANDLING AND PAYMENT, IN THE
EVENT (1) APPROPRIATIONS THEREFOR ARE AVAILABLE TO THE ADMINISTRATIVE
OFFICE, (2) SUCH CLAIMS ARE OTHERWISE FREE FROM ANY DOUBTFUL QUESTION OF
LAW OR FACT, AND (3) ENTITLEMENT THERETO IS CLEARLY APPARENT. ONLY SUCH
CLAIMS CONTAINING DOUBTFUL QUESTIONS OF LAW OR FACT NEED BE FORWARDED TO
OUR CLAIMS DIVISION FOR SETTLEMENT.
B-134990, FEB. 28, 1958
TO MR. LAWRENCE F. PETKOVSEK:
IN LETTER OF AUGUST 15, 1957, FORWARDED TO US BY THE FINANCE CENTER,
U.S. ARMY, INDIANAPOLIS, INDIANA, YOU MAKE CLAIM FOR PER DIEM INCIDENT
TO TEMPORARY DUTY PERFORMED IN GREENLAND AS AN ENLISTED MEMBER OF THE
1ST ENGINEER ARCTIC TASK FORCE UNDER ORDERS OF HEADQUARTERS, THE
ENGINEER CENTER AND FORT BELVOIR, FORT BELVOIR, VIRGINIA, DATED JANUARY
30, 1956. SINCE A SIMILAR CLAIM PREVIOUSLY FILED BY YOU WAS DISALLOWED
IN OUR SETTLEMENT OF APRIL 18, 1956, YOUR LETTER WILL BE CONSIDERED AS
REQUESTING REVIEW OF THAT SETTLEMENT.
UNDER THE ORDERS OF JANUARY 30, 1956, THE 1ST ENGINEER ARCTIC TASK
FORCE WAS DIRECTED TO PROCEED FROM FORT BELVOIR TO MCGUIRE AIR FORCE
BASE, NEW JERSEY, AND THENCE TO THULE, GREENLAND, ON TEMPORARY CHANGE OF
STATION FOR A PERIOD OF APPROXIMATELY NINE MONTHS, UPON THE COMPLETION
OF WHICH IT WAS TO RETURN TO FORT BELVOIR. SUCH ORDERS CONTAINED THE
PROVISION "TRAVEL AND TEMPORARY DUTY PERFORMED IS FIELD DUTY AS
CONTEMPLATED BY JOINT TRAVEL REGULATIONS. PER DIEM IS NOT AUTHORIZED.'
YOU LEFT FORT BELVOIR UNDER THOSE ORDERS ON MAY 1 AND ARRIVED AT THULE
ON MAY 4, 1956. THE RETURN OF THE TASK FORCE TO FORT BELVOIR WAS
DIRECTED BY ORDERS OF HEADQUARTERS, 1ST ENGINEER ARCTIC TASK FORCE,
DATED SEPTEMBER 9, 1956. THOSE ORDERS ALSO STATED THAT THE TRAVEL AND
TEMPORARY DUTY PERFORMED "IS FIELD DUTY AS CONTEMPLATED BY JOINT
TRAVEL REGULATIONS.' YOU LEFT THULE UNDER THE ORDERS ON OCTOBER 9, AND
ARRIVED AT FORT BELVOIR ON OCTOBER 11, 1956. CHANGE 6 OF JULY 24, 1957,
TO THE BASIC ORDERS OF JANUARY 30, 1956, PURPORTS TO AMEND THAT PART OF
SUCH BASIC ORDERS PROVIDING "PER DIEM IS NOT AUTHORIZED" TO READ "PER
DIEM IS AUTHORIZED.'
REGULATIONS GOVERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED
SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONTAINED IN THE
JOINT TRAVEL REGULATIONS. PARAGRAPH 4250-3 OF THOSE REGULATIONS
PROVIDES THAT MEMBERS TRAVELING OR PERFORMING TEMPORARY DUTY OUTSIDE
CONTINENTAL
UNITED STATES ARE NOT ENTITLED TO TRAVEL PER DIEM ALLOWANCES "WHILE
PARTICIPATING IN MANEUVERS, FIELD EXERCISES, SIMULATED WAR GAMES,
TRAINING ENCAMPMENTS FOR THE RESERVE COMPONENTS OR RESERVE OFFICERS
TRAINING CORPS STUDENTS, AND OTHER SIMILAR ACTIVITIES (INCLUDING DUTY AS
OBSERVER OR UMPIRE) WHERE BOTH RATIONS IN KIND (INCLUDING FIELD RATIONS)
AND QUARTERS ARE AVAILABLE OR FURNISHED, WHETHER OR NOT SUCH FACILITIES
ARE UTILIZED.' SIMILAR RESTRICTIONS COVERING TRAVEL PERFORMED IN THE
UNITED STATES ARE CONTAINED IN PARAGRAPH 4201-6 OF THE REGULATIONS. IN
DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 126, IT WAS STATED THAT THE
QUESTION OF WHETHER A PARTICULAR ASSIGNMENT FALLS WITHIN THE SCOPE OF
THOSE PROVISIONS IS ONE OF FACT, DETERMINED USUALLY ON THE BASIS OF AN
ADMINISTRATIVE EVALUATION OF THE FACTS SURROUNDING THE ASSIGNMENT
BECAUSE OF THE PROXIMITY OF THE ADMINISTRATIVE PERSONNEL TO THE LOCAL
CIRCUMSTANCES UPON WHICH THE EVALUATION MUST REST, AND THAT IF THAT
DETERMINATION LATER IS TO BE CHANGED, THE SECOND DETERMINATION ALSO MUST
BE BASED ON AN EVALUATION OF THE FACTS SURROUNDING THE PARTICULAR DUTY
ASSIGNMENT. TO BE EFFECTIVE, SUCH SECOND DETERMINATION OF NECESSITY
MUST HAVE AS ITS BASIS SUFFICIENT INFORMATION OR FACTS TO ESTABLISH THAT
THE FIRST DETERMINATION CLEARLY WAS ERRONEOUS.
THE PURPORTED AMENDMENT OF JULY 24, 1957, TO THE ORDERS OF JANUARY
30, 1956, DOES NOT PROVIDE GROUNDS SUFFICIENT TO OVERCOME THE FIELD DUTY
RESTRICTIONS OF THOSE ORDERS WHICH CONSTITUTED AN ADMINISTRATIVE
DETERMINATION THAT THE TRAVEL AND TEMPORARY DUTY ASSIGNED WERE OF THE
TYPE CONTEMPLATED BY PARAGRAPHS 4201-6 AND 4250-3 OF THE JOINT TRAVEL
REGULATIONS. IT MUST BE CONCLUDED, THEREFORE, THAT NO PROPER BASIS
EXISTS FOR THE ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF
APRIL 18, 1957, IS SUSTAINED.
B-135041, FEB. 28, 1958
TO MR. FREDERICK WILLIAM PROSSER, 32215:
WE HAVE RECEIVED FROM THE U.S. NAVY FINANCE CENTER, CLEVELAND 14,
OHIO, YOUR LETTER DATED NOVEMBER 10, 1957, CONCERNING YOUR CLAIM FOR (1)
PAY AND ALLOWANCES BELIEVED DUE YOU FROM DECEMBER 1943 UP TO THE TIME OF
YOUR DISCHARGE FROM THE NAVY IN JUNE 1944; (2) A CLOTHING ALLOWANCE OF
30; AND (3) "DISCHARGE PAY" OF $25. YOU SAY THAT YOU WERE LAST PAID IN
NOVEMBER OR DECEMBER 1943, AND THAT YOU WERE NOT PAID $80 IN JANUARY
1944 AS REPORTED BY THE DEPARTMENT OF THE NAVY.
YOUR CLAIM FOR A $30 GRATUITOUS CIVILIAN CLOTHING ALLOWANCE AS OF THE
DATE OF YOUR DISCHARGE WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER
29, 1945, WHICH WAS SENT TO YOU AT BOX G, CHESHIRE, CONNECTICUT. BY OUR
SETTLEMENT DATED NOVEMBER 5, 1951, YOU WERE ALLOWED THE SUM OF $13.28,
WHICH INCLUDED THE AMOUNT OF $10.03 DUE YOU AS PAY AT THE TIME OF YOUR
DISCHARGE AND THE AMOUNT OF $3.25 DUE FROM THE SALE OF YOUR EFFECTS.
CHECK NO. 14,171,134, DATED NOVEMBER 14, 1951, FOR $13.28, DRAWN TO YOUR
ORDER BY PAUL D. BANNING, WAS ISSUED UNDER THAT SETTLEMENT AND SENT TO
YOU AT DRAWER N, TRENTON, NEW JERSEY. THE CHECK, WHICH WAS NEGOTIATED
IN DUE COURSE AND PAID BY THE TREASURER OF THE UNITED STATES ON NOVEMBER
26, 1951, IS NOW ON FILE IN OUR OFFICE.
IT APPEARS THAT YOU ENLISTED ON JULY 16, 1943. YOU WERE ABSENT OVER
LEAVE FROM DECEMBER 2 TO 10, 1943, ABSENT WITHOUT LEAVE FROM JANUARY 16
TO 19, 1944, AND ON MARCH 8, 1944, YOU ABSENTED YOURSELF FROM THE NAVAL
SERVICE WITHOUT PROPER AUTHORITY. IT FURTHER APPEARS THAT YOU DID NOT
THEREAFTER RETURN TO NAVAL JURISDICTION. YOU WERE DISCHARGED ON JUNE
20, 1944, WITH AN UNDESIRABLE DISCHARGE DUE TO YOUR CONVICTION BY THE
CIVIL AUTHORITIES AND YOUR DISCHARGE CERTIFICATE WAS MAILED TO YOU AT
THE PLACE WHERE YOU WERE THEN CONFINED. BY A COURT-MARTIAL SENTENCE
APPROVED JANUARY 1, 1944, YOU WERE TO LOSE PAY AT THE RATE OF $27 A
MONTH FOR 6 MONTHS AND BY COURT-MARTIAL SENTENCE APPROVED FEBRUARY 2,
1944, YOU WERE TO LOSE PAY AT THE RATE OF $27 A MONTH FOR 4 MONTHS.
YOU WERE NOT ENTITLED TO PAY OR ALLOWANCES FOR THE PERIODS YOU WERE
ABSENT WITHOUT LEAVE, ABSENT OVER LEAVE OR ABSENT IN THE HANDS OF CIVIL
AUTHORITIES ON A CRIMINAL CHARGE WHICH RESULTED IN YOUR CONVICTION. A
STATEMENT OF YOUR PAY ACCOUNT FOR THE PERIOD INVOLVED, OMITTING PAY FOR
THE PERIODS YOU WERE SO ABSENT, IS AS FOLLOWS:
TABLE
CREDITS BALANCE DUE FROM PRIOR PERIOD $ 19.23 PAY
AS SEAMAN, SECOND CLASS, FROM
DECEMBER 11, 1943, TO JANUARY 15, 1944,
AND FROM JANUARY 20 TO MARCH 8, 1944,
AT $54 A MONTH 151.20 $170.43
CHARGES CLASS N ALLOTMENT FOR JANUARY, FEBRUARY
AND MARCH 1944, AT $6.40 A MONTH 19.20 COURT-MARTIAL
APPROVED JANUARY 1, 1944 (PRORATED TO
MARCH 8, 1944) 61.20 VALUE OF MONE
80.00 ALLOWED BY OUR SETTLEMENT DATED
NOVEMBER 5, 1951 10.03 $170.43
SINCE THE NAVY PAY RECEIPTS FOR THE PERIOD INVOLVED HAVE BEEN
DESTROYED PURSUANT TO LAW BECAUSE OF THEIR AGE, WE ARE UNABLE TO VERIFY
THE PAYMENT OF $80 AND TO DETERMINE EXACTLY WHEN IT WAS MADE. 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 A LONG PERIOD, DURING WHICH PERIOD THE RECORDS NECESSARY
EITHER TO JUSTIFY OR REFUTE HIS CLAIM HAVE BEEN DESTROYED PURSUANT TO
LAW OR OTHERWISE HAVE BECOME UNAVAILABLE. CONSEQUENTLY, NO FURTHER
ACTION APPEARS WARRANTED ON THE BASIS OF YOUR ALLEGATION OF NONRECEIPT
OF THE AMOUNT OF $80.
SECTION 10 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1274, 34 U.S.C.
197, IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED---
"THAT HEREAFTER PERSONS DISCHARGED FROM THE NAVAL SERVICE BY
DISHONORABLE DISCHARGE, BAD-CONDUCT DISCHARGE, OR ANY OTHER DISCHARGE
FOR THE GOOD OF THE SERVICE, MAY, UPON DISCHARGE, BE PAID A SUM NOT TO
EXCEED $25: PROVIDED, THAT THE SAID SUM SHALL BE FIXED BY, AND IN THE
DISCRETION OF, THE SECRETARY OF THE NAVY, AND SHALL BE PAID ONLY IN
CASES WHERE THE PERSON SO DISCHARGED WOULD OTHERWISE BE WITHOUT FUNDS TO
MEET HIS IMMEDIATE NEEDS * * *.'
THAT PART OF THE ACT OF JUNE 26, 1943, 57 STAT. 202, MAKING PROVISION
FOR PAY AND ALLOWANCES FOR NAVAL PERSONNEL FOR THE FISCAL YEAR ENDING
JUNE 30, 1944, PROVIDED FOR THE FURNISHING OF CIVILIAN CLOTHING,
INCLUDING AN OVERCOAT WHEN NECESSARY, THE COST OF ALL NOT TO EXCEED $25
PER PERSON, TO ENLISTED PERSONNEL GIVEN DISCHARGES FOR BAD CONDUCT,
UNDESIRABILITY, UNSUITABILITY, OR INAPTITUDE. THE ACT OF DECEMBER 23,
1943, 57 STAT. 628, PROVIDED THAT ON AND AFTER JULY 1, 1943, THE
LIMITATION ON THE COST OF CIVILIAN CLOTHING PER PERSON, INCLUDING AN
OVERCOAT WHEN NECESSARY, FOR ENLISTED PERSONNEL OF THE NAVY, MARINE
CORPS AND COAST GUARD GIVEN DISCHARGES FOR BAD CONDUCT, UNDESIRABILITY,
UNSUITABILITY OR INAPTITUDE WAS INCREASED TO $30.
WE LONG HAVE HELD THAT THE PAYMENT AS AUTHORIZED BY SECTION 10 OF THE
ACT OF MARCH 4, 1925, TO PERSONS DISCHARGED FROM THE NAVAL SERVICE BY
DISHONORABLE DISCHARGE, BAD-CONDUCT DISCHARGE OR ANY OTHER DISCHARGE FOR
THE GOOD OF THE SERVICE, IN AN AMOUNT NOT TO EXCEED $25, WAS NOT A
REWARD FOR SUCH A DISCHARGE BUT WAS FOR PAYMENT UNDER THE ACT AND THE
REGULATIONS PROMULGATED THEREUNDER WHEN PAYMENT WAS DEEMED NECESSARY FOR
THE MAN'S IMMEDIATE NEEDS, AND THAT IF HE WAS DISCHARGED WITHOUT PAYMENT
HAVING BEEN MADE TO HIM, A CLAIM THEREFOR COULD NOT BE ASSERTED BY HIM.
WE HAVE ALSO HELD THAT THE AUTHORIZATION TO FURNISH "CIVILIAN CLOTHING,
INCLUDING AN OVERCOAT WHEN NECESSARY," THE COST OF ALL NOT TO EXCEED $30
PER PERSON, TO ENLISTED PERSONNEL GIVEN DISCHARGES FOR BAD CONDUCT,
UNDESIRABILITY, UNSUITABILITY, OR INAPTITUDE, WAS FOR ACTUAL PURCHASE OF
CLOTHING NECESSARY FOR WEAR BY THE ENLISTED MAN WHEN GIVEN HIS
DISCHARGE. IF NO PURCHASE WAS NECESSARY THERE WAS NO AUTHORITY TO PAY
THE GRATUITY IN CASH AT A LATER DATE. 5 COMP. GEN. 607. IT APPEARS
THAT AT THE TIME OF YOUR DISCHARGE, YOU WERE IN A CIVILIAN JAIL.
IT IS BELIEVED THAT THE FOREGOING WILL SUFFICIENTLY EXPLAIN WHY NO
FURTHER AMOUNT IS DUE ON YOUR CLAIM.