TO THE HONORABLE PHILIP YOUNG, CHAIRMAN, UNITED STATES CIVIL SERVICE
COMMISSION:
YOUR LETTER OF OCTOBER 1, 1956, STATES THAT YOU HAVE A REQUEST FROM A
MEMBER OF CONGRESS THAT PUBLIC LAW 594, APPROVED JUNE 18, 1956, COMMONLY
KNOWN AS THE "SALARY RETENTION STATUTE," BE HELD TO APPLY TO EMPLOYEES
WHO WERE DOWNGRADED WHILE HOLDING CPC GRADE POSITIONS PRIOR TO THEIR
CONVERSION TO WAGE-BOARD POSITIONS UNDER PUBLIC LAW 763, APPROVED
SEPTEMBER 1, 1954. YOU SAY THAT SUCH A RULING, IF PERMISSIBLE, WOULD
ENTITLE THEM TO AN INCREASE IN THE WAGES SAVED TO THEM UNDER SECTION 114
OF PUBLIC LAW 763, AND YOU REQUEST OUR INTERPRETATION WHETHER SUCH A
RULING IS LEGALLY PERMISSIBLE UNDER THE "SALARY RETENTION" STATUTE.
PUBLIC LAW 594, 70 STAT. 291, PROVIDES IN PERTINENT PART AS FOLLOWS:
"* * * THAT TITLE V OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, IS
AMENDED BY ADDING AT THE END THEREOF THE FOLLOWING NEW SECTION:
"/B) EACH OFFICER OR EMPLOYEE SUBJECT TO THIS ACT---
"/1) WHO, DURING THE PERIOD BEGINNING ON JULY 1, 1954, AND ENDING
IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS SECTION CONTINUOUSLY
HELD A POSITION (A) WHICH WAS IN ANY GRADE OF A BASIC COMPENSATION
SCHEDULE OF THIS ACT (OTHER THAN GRADE 16, 17, OR 18 OF THE GENERAL
SCHEDULE) AND (B) WHICH WAS PLACED, AT ANY TIME DURING SUCH PERIOD, IN A
LOWER GRADE OF SUCH SCHEDULE UNDER ONE OR MORE RECLASSIFICATIONS OF SUCH
POSITION PURSUANT TO THIS ACT;
"/2) WHO HOLDS SUCH POSITION ON THE DATE OF ENACTMENT OF THIS
SECTION;
"/3) WHO HAS HELD SUCH POSITION FOR A CONTINUOUS PERIOD OF NOT LESS
THAN TWO YEARS ENDING IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS
SECTION; AND
"/4) WHOSE PERFORMANCE OF THE WORK OF SUCH POSITION AT ALL TIMES
DURING SUCH PERIOD OF TWO YEARS SPECIFIED IN PARAGRAPH (3) OF THIS
SUBSECTION AND ALSO ON THE DATE OF ENACTMENT OF THIS SECTION WAS
SATISFACTORY OR BETTER THAN SATISFACTORY,
SHALL BE GRANTED, EFFECTIVE AS OF THE FIRST DAY OF THE FIRST PAY
PERIOD WHICH BEGINS AFTER THE DATE OF ENACTMENT OF THIS SECTION (IF HE
CONTINUES TO HOLD SUCH POSITION ON SUCH FIRST DAY OF SUCH FIRST PAY
PERIOD), THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED
IMMEDIATELY PRIOR TO SUCH RECLASSIFICATION OF HIS POSITION (OR, IN THE
CASE OF MORE THAN ONE RECLASSIFICATION OF SUCH POSITION, THE DATE OF THE
FIRST OF ANY SUCH RECLASSIFICATIONS), INCLUDING ANY INCREASES IN SUCH
RATE OF BASIC COMPENSATION PROVIDED BY LAW AT ANY TIME WHILE SUCH
OFFICER OR EMPLOYEE IS IN SUCH POSITION, UNTIL (I) HE LEAVES SUCH
POSITION OR (II) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A
HIGHER RATE BY REASON OF THE OPERATION OF THIS ACT; BUT, WHENEVER SUCH
POSITION BECOMES VACANT, THE RATE OF BASIC COMPENSATION OF ANY
INDIVIDUAL SUBSEQUENTLY APPOINTED TO SUCH POSITION SHALL BE FIXED IN
ACCORDANCE WITH THIS ACT. NO OFFICER OR EMPLOYEE SHALL BE ENTITLED BY
REASON OF THIS SUBSECTION TO BASIC COMPENSATION FOR ANY PERIOD PRIOR TO
THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE DATE OF
ENACTMENT OF THIS SECTION.'
IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT PROVISIONS
ADDED TO A PRIOR ACT BY AMENDMENT WILL NOT BE CONSTRUED TO APPLY TO
TRANSACTIONS AND EVENTS COMPLETED PRIOR TO THE ENACTMENT OF THE
AMENDMENT. 29 COMP. GEN. 11. IN LINE WITH THAT CONSTRUCTION, THE
PHRASE "EACH OFFICER OR EMPLOYEE SUBJECT TO THIS ACT" MUST BE HELD TO
SPEAK AS OF THE DATE OF THE AMENDMENT, AND SINCE "THIS ACT," OF
NECESSITY, REFERS TO THE CLASSIFICATION ACT OF 1949, AND SINCE, ALSO,
SECTION 202 (7) OF THAT ACT, AS AMENDED, EXCLUDES WAGE-BOARD EMPLOYEES
FROM ITS PROVISIONS, WE WOULD BE REQUIRED TO HOLD THAT THE AMENDMENT OF
JUNE 18, 1956, IS FOR APPLICATION ONLY TO THOSE EMPLOYEES SUBJECT TO THE
CLASSIFICATION ACT ON THAT DATE. THEREFORE, THE "SALARY RETENTION" ACT
OF JUNE 18, 1956, WOULD NOT JUSTIFY ANY SAVING OF COMPENSATION BY REASON
OF A RECLASSIFICATION ACTION TAKEN WITHIN THE PERIOD COVERED BY THE ACT
IF PRIOR TO THE DATE OF THE ACT THE EMPLOYEES WERE REMOVED FROM THE
CLASSIFICATION ACT SCHEDULES.
B-126838, OCT. 12, 1956
ILLINOIS CENTRAL RAILROAD:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE WQ-75047-B-WAG-R, FOR
REVIEW OF THE ACTION TAKEN IN CONNECTION WITH YOUR CLAIM FOR AN
ADDITIONAL ALLOWANCE OF $37.26 FOR THE TRANSPORTATION OF 44,436 POUNDS
OF FROZEN POULTRY FROM NASHVILLE, TENNESSEE, TO NEW ORLEANS, LOUISIANA,
UNDER BILL OF LADING NO. WW-992373, DATED MAY 15, 1945. THIS OUTBOUND
SHIPMENT CONSISTED OF 32,194 POUNDS WHICH ORIGINATED AT ATLANTA,
GEORGIA, AND 7,145 POUNDS WHICH ORIGINATED AT CHATTANOOGA, TENNESSEE,
THE BALANCE OF 5,097 POUNDS BEING NON-TRANSIT TONNAGE WHICH WAS ADDED AT
NASHVILLE.
THE SETTLEMENT OF THIS TRANSPORTATION WAS BASED ON THE TARIFF RATE OF
87 CENTS PER 100 POUNDS. DEDUCTIONS FOR LAND GRANT WERE APPLIED VIA AN
EQUALIZATION ROUTE THROUGH MERIDIAN, MISSISSIPPI, AND MOBILE, ALABAMA,
ON THE TONNAGE ORIGINATING AT CHATTANOOGA; THROUGH AKRON, ALABAMA,
MERIDIAN, MISSISSIPPI, AND JACKSON, MISSISSIPPI, ON THE ATLANTA TONNAGE;
AND VIA THE LOUISVILLE AND NASHVILLE RAILROAD DIRECT FOR THE
NON-TRANSIT TONNAGE.
IN REQUESTING REVIEW OF THE MATTER YOU URGE THAT THE LAND-GRANT
ROUTES EMPLOYED IN OUR COMPUTATION OF CHARGES MAY NOT BE USED BECAUSE
THE COMMERCIAL TARIFF GRANTING THE TRANSIT PRIVILEGE DOES NOT NAME A
POINT ON THE LAND-GRANT ROUTES FOR WHICH A TRANSIT PRIVILEGE IS
AVAILABLE AND, ACCORDINGLY, THOSE ROUTES MAY NOT BE USED UNDER THE TERMS
OF YOUR EQUALIZATION AGREEMENT FOR THE PURPOSE OF CONSTRUCTING A NET
LAND-GRANT RATE ON SHIPMENTS TRANSMITTED AT NASHVILLE, TENNESSEE.
AS INDICATED IN OUR DECISION OF JULY 27, 1954, B-118118, CONCERNING
YOUR FILE WQ-27365-WAG-R, ON A QUESTION SIMILAR TO THAT INVOLVED HERE,
IT WAS HELD THAT THERE IS NOTHING IN YOUR EQUALIZATION AGREEMENT THAT
REQUIRES THAT A SHIPMENT GIVEN TRANSIT EN ROUTE UNDER APPROPRIATE TARIFF
AUTHORITY SHOULD BE ACCORDED A DIFFERENT BASIS OF COMPUTING NET
LAND-GRANT RATES THAN A THROUGH SHIPMENT WHICH HAS NOT BEEN ACCORDED A
TRANSIT PRIVILEGE AND THAT THE HOLDING OUT UNDER THE AGREEMENT IS TO
APPLY THE LOWEST NET RATES LAWFULLY AVAILABLE FROM ORIGIN TO
DESTINATION.
ACCORDINGLY, THE DISPOSITION OF THIS MATTER IN ACCORDANCE WITH THIS
PRINCIPLE WAS PROPER AND THE ACTION TAKEN IS SUSTAINED.
B-127141, OCT. 12, 1956
TO MR. JAMES N. KERRIGAN:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1956, REQUESTING
REVIEW OF OUR SETTLEMENT OF APRIL 20, 1956, WHICH DISALLOWED YOUR CLAIM
FOR PER DIEM INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY AT EDWARDS
AIR FORCE BASE, CALIFORNIA, DURING THE PERIOD FROM FEBRUARY 26 TO JUNE
29, 1953.
UNDER ORDERS ISSUED BY HEADQUARTERS, 820TH ENGINEER AVIATION
BATTALION, BEALE AIR FORCE BASE, CALIFORNIA, DATED FEBRUARY 17, 1953,
YOU AND OTHER DESIGNATED MEMBERS OF THE 820TH ENGINEER AVIATION
BATTALION WERE PLACED ON TEMPORARY DUTY OF NOT TO EXCEED 120 DAYS AT THE
EDWARDS AIR FORCE BASE AND DIRECTED TO PROCEED THERE ON OR ABOUT
FEBRUARY 25, 1953. SUCH ASSIGNMENT WAS MADE IN CONNECTION WITH THE
MOVEMENT OF THAT BATTALION TO THE EDWARDS AIR FORCE BASE TO ACCOMPLISH A
CONSTRUCTION PROJECT. ORDERS OF HEADQUARTERS, 304TH ENGINEER GROUP,
BEALE AIR FORCE BASE, DATED JUNE 4, 1953, IN EFFECT EXTENDED THE
TEMPORARY DUTY PERIOD AUTHORIZED BY 23 DAYS. THE PERSONNEL INVOLVED
APPEAR TO HAVE BEEN SPECIAL CATEGORY ARMY PERSONNEL ON DUTY WITH THE AIR
FORCE. YOU PROCEEDED FROM BEALE AIR FORCE BASE TO EDWARDS AIR FORCE
BASE ON FEBRUARY 25 AND, WITH THE EXCEPTION OF THE DAYS OF JUNE 4 AND
JUNE 5 WHEN YOU WERE TRAVELING, YOU REMAINED THERE UNTIL YOUR RETURN TO
BEALE AIR FORCE BASE ON JUNE 29, 1953. GOVERNMENT QUARTERS AND MESSING
FACILITIES APPEAR TO HAVE BEEN AVAILABLE AT THE TEMPORARY STATION.
REGULATIONS GOVERNING THE PAYMENT OF PER DIEM AND OTHER TRAVEL
ALLOWANCES TO MILITARY PERSONNEL ARE CONTAINED IN THE JOINT TRAVEL
REGULATIONS. PARAGRAPH 4201 OF THOSE REGULATIONS SETS FORTH VARIOUS
CONDITIONS AND CIRCUMSTANCES UNDER WHICH TEMPORARY DUTY PER DIEM
ALLOWANCES ARE NOT PAYABLE. SUBPARAGRAPH 4201-7 PROHIBITS THE PAYMENT
OF THE ALLOWANCE---
"FOR FIELD DUTY, INCLUDING MANEUVERS, FIELD EXERCISES, SIMULATED WAR
GAMES, TRAINING ENCAMPMENTS FOR CIVILIAN COMPONENTS, AND DUTY AS
OBSERVER, UMPIRE, AND OTHER SIMILAR ACTIVITIES, WHERE BOTH RATIONS IN
KIND (INCLUDING FIELD RATIONS) AND QUARTERS ARE AVAILABLE OR FURNISHED
WHETHER OR NOT SUCH FACILITIES ARE UTILIZED. * * *"
DEPARTMENT OF THE ARMY SPECIAL REGULATIONS NO. 35-3080-5, DATED
AUGUST 26, 1952, IN EFFECT DURING THE PERIOD IN QUESTION, WERE ISSUED
FOR USE AS GUIDANCE IN THE PROPER INTERPRETATION OF THE INTENT AND
MEANING OF THE QUOTED PROVISIONS OF THE JOINT TRAVEL REGULATIONS.
PARAGRAPH 2B OF SUCH REGULATIONS OF AUGUST 26, IN FURTHER ELABORATION OF
THE TYPES OF DUTY CONTEMPLATED BY THE QUOTED PART OF THE JOINT TRAVEL
REGULATIONS, INCLUDED "ANY PERIOD OF TRAVEL AND TEMPORARY DUTY AS A
MEMBER OF A UNIT PERFORMING DUTY IN CONNECTION WITH CONSTRUCTION
ACTIVITIES, CARGO LOADING AND UNLOADING, TRANSPORTING AMMUNITION, ETC.'
IN VIEW OF SUCH PROVISIONS IT NECESSARILY FOLLOWS THAT YOUR DUTY AT
EDWARDS AIR FORCE BASE, PERFORMED IN CONNECTION WITH CONSTRUCTION
ACTIVITIES, MUST BE
CONSIDERED FIELD DUTY, AS CONTEMPLATED IN PARAGRAPH 4201 OF THE JOIN
TRAVEL REGULATIONS, FOR WHICH THE PAYMENT OF PER DIEM IS NOT AUTHORIZED.
IT IS CONCLUDED, THEREFORE, THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF
YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1956, IS
SUSTAINED.
YOU REFER TO PER DIEM PAYMENTS THAT WERE MADE TO MARTIN W. MILOT,
JOHN D. MOORE, AND JAMES FRANCOIS, INCIDENT TO THEIR SERVICE AS OFFICERS
UNDER CIRCUMSTANCES SIMILAR TO YOURS AND REQUEST AN EXPLANATION OF THE
APPARENT DISCRIMINATION IN THE MATTER. THE RECORDS SHOW THAT SUCH
PAYMENTS WERE MADE TO MARTIN W. MILOT AND JAMES FRANCOIS UNDER AUTHORITY
OF SETTLEMENTS OF THIS OFFICE. IF PAYMENT WAS ALSO RECEIVED BY JOHN D.
MOORE, IT PRESUMABLY WAS AUTHORIZED AND PAID BY THE ADMINISTRATIVE
OFFICE INVOLVED. ON THE BASIS OF THE COMPLETE SHOWING NOW MADE, SUCH
PAYMENTS CLEARLY WERE ERRONEOUSLY MADE AND UNAUTHORIZED BY THE
CONTROLLING REGULATIONS, AS INDICATED ABOVE, AND SO MAY NOT SERVE AS
AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. APPROPRIATE INSTRUCTIONS HAVE
BEEN ISSUED TO INSTITUTE COLLECTION PROCEEDINGS FOR THE RECOVERY, FROM
THE RECIPIENTS, OF THE AMOUNTS REPRESENTED BY SUCH ERRONEOUS PAYMENTS.
B-127844, OCT. 12, 1956
TO ILLINOIS CENTRAL RAILROAD, ACCOUNTING DEPARTMENT:
REFERENCE IS MADE TO YOUR LETTER, DATED AUGUST 24, 1956, REQUESTING
RECONSIDERATION OF OUR DECISION, B-127844, DATED AUGUST 6, 1956, WHICH
DISALLOWED YOUR CLAIM, PER FILE G-WQ-951-BG, FOR ADDITIONAL FREIGHT
CHARGES IN THE AMOUNT OF $260.45, BEING THE DIFFERENCE BETWEEN THE
CHARGES COMPUTED AT THE NET LAND-GRANT RATE AND THE GROSS COMMERCIAL
RATE.
IT IS YOUR CONTENTION THAT THE LAND-GRANT ROUTE USED BY THE
GOVERNMENT FOR THE COMPUTATION OF THE NET LAND-GRANT RATE CANNOT BE
RECOGNIZED AS A VALID CONSTRUCTION OF YOUR TARIFF FOR THE REASON THAT
THE PERCENTAGE OF CIRCUITY EXCEEDS THE 50 PERCENT STANDARD PERCENTAGE OF
CIRCUITY ADOPTED BY THE INTERSTATE COMMERCE COMMISSION WHERE THE SHORT
ROUTE IS MORE THAN 170 MILES BUT NOT OVER 1,000 MILES. YOU FURTHER
STATE THAT THE SEVERAL COMMISSION RULINGS CITED IN OUR PREVIOUS
DECISION, MENTIONED ABOVE, DID NOT INVOLVE TARIFFS PROVIDING SPECIFIC
RESTRICTED ROUTING. APPARENTLY, IT IS YOUR CONTENTION THAT THESE
RULINGS HAVE NO APPLICATION TO TARIFFS, SUCH AS THE ONE INVOLVED HERE,
WHICH PROVIDE DETAILED RESTRICTED ROUTING.
THE CASES CITED IN OUR PREVIOUS DECISION STAND FOR THE PRINCIPLE THAT
IF THE CARRIER UNDERTAKES TO PROVIDE ROUTING IN THE TARIFF, AS
DISTINGUISHED FROM AN OPEN ROUTED TARIFF, THE ROUTES WILL APPLY STRICTLY
AS THUS PROVIDED IN THE TARIFF WITHOUT REGARD TO CIRCUITY, OR
REASONABLENESS. THIS PRINCIPLE IS BASED UPON THE RULE THAT TARIFFS ARE
CONSTRUED STRICTLY AGAINST THE CARRIERS WHICH COMPOSED THEM SINCE
SHIPPERS ARE BOUND BY LAW TO RELY UPON THE TARIFFS AS WRITTEN. SEE
SAMUEL P. MANDELL CO. V. PENNSYLVANIA R. CO., 289 I.C.C. 244, 247 ET
SEQ. ALTHOUGH THE CASES CITED IN THE PREVIOUS DECISION INVOLVED TARIFFS
WHICH PROVIDED FOR THE APPLICATION OF RATES VIA ALL ROUTES MADE BY THE
USE OF LINES OF ANY CARRIERS PARTY TO THE TARIFF, THE RULE ANNOUNCED HAS
EQUAL APPLICATION TO TARIFFS PROVIDING SPECIFIC RESTRICTED ROUTING. SEE
COLORADO INTERSTATE GAS CO. V. ATCHISON, T. AND S.F.RY. CO., 298 I.C.C.
350.
ALL RESTRICTIONS PROVIDED BY THE TARIFF GOVERNING THESE SHIPMENTS
WERE COMPLIED WITH BY THE GOVERNMENT IN USING A ROUTE VIA CHICAGO AND
CAIRO, ILLINOIS, FOR THE COMPUTATION OF LAND-GRANT DEDUCTIONS PURSUANT
TO THE CARRIERS LAND-GRANT EQUALIZATION AGREEMENT.
THE STANDARD PERCENTAGES OF CIRCUITY, MENTIONED IN YOUR LETTER,
APPEAR TO HAVE BEEN ADOPTED BY THE INTERSTATE COMMERCE COMMISSION AS
LIMITATIONS ON THE COMMISSION'S APPROVAL OF APPLICATIONS BY CARRIERS FOR
DEVIATIONS FROM APPLICATION OF SECTION 4 OF THE INTERSTATE COMMERCE ACT
IN ORDER TO COMPLY WITH THE PROVISION OF SECTION 4 WHICH PROHIBITS
APPROVAL OF DEVIATIONS WHICH ARE NOT REASONABLY COMPENSATORY FOR THE
SERVICE PERFORMED. AS INDICATED BY DECISION IN PURE OIL CO. V. ALTON
AND S.R., 284 I.C.C. 461, IN WHICH THE COMMISSION APPROVED THE USE OF A
ROUTE 155 PERCENT CIRCUITOUS, THESE STANDARDS OF CIRCUITY DO NOT LIMIT
THE USE BY A SHIPPER OF A CIRCUITOUS ROUTE ALREADY PROVIDED BY THE PLAIN
TERMS OF THE TARIFF.
SINCE NO ADEQUATE REASON HAS BEEN GIVEN FOR AMENDING OUR PREVIOUS
DECISION, IT IS, ACCORDINGLY, SUSTAINED.
B-127930, OCT. 12, 1956
TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1956, WITH ENCLOSURES,
REPLYING TO OUR LETTER OF JUNE 8, 1956, TO YOU, CONCERNING PROCEDURES
FOR EFFECTING REPAIRS, ALTERATIONS AND IMPROVEMENTS TO LEASED PREMISES
WITHOUT REGARD TO THE ADVERTISING REQUIREMENTS OF SECTION 303 OF THE
FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C.
253.
THERE WAS TRANSMITTED WITH YOUR LETTER A DRAFT OF PROPOSED
MODIFICATIONS OF ADMINISTRATIVE REGULATIONS AS CONTAINED IN CHAPTER 111,
MANUAL GS-6-3, WHICH MODIFICATIONS YOU SUGGEST WILL EFFECTIVELY SATISFY
THE POINTS RAISED IN OUR LETTER OF JUNE 8, 1956, CONCERNING THE
PROCEDURES OBTAINING IN YOUR ATLANTA REGIONAL OFFICE FOR ACCOMPLISHING
SUCH REPAIRS, ALTERATIONS AND IMPROVEMENTS. THE REGULATIONS ARE
INTENDED PRIMARILY TO SAFEGUARD THE GOVERNMENT'S INTERESTS WHERE THE
WORK IS TO BE PERFORMED BY THE LESSOR UNDER A SUPPLEMENTAL AGREEMENT
WITHOUT STRICT COMPLIANCE WITH THE ABOVE STATUTORY REQUIREMENTS FOR
ADVERTISING.
FOR THE REASONS STATED IN YOUR LETTER, THE PROCEDURES AS OUTLINED
THEREIN AND AS IMPLEMENTED BY THE PROPOSED MODIFICATION OF THE
REGULATIONS AS CONTAINED IN CHAPTER 111, MANUAL GS-6, MAY BE ACCEPTED AS
ESSENTIALLY IN CONFORMANCE WITH THE ADVERTISING REQUIREMENTS OF SECTION
303 OF THE STATUTE EXCEPT AS HEREINAFTER NOTED. WHERE THE ESTIMATED
COST EXCEEDS $1,000, AND IT IS NECESSARY TO RESORT TO AN INDEPENDENT
CONTRACTOR FOR THE PERFORMANCE OF THE WORK, THE FACTORS FOR
CONSIDERATION IN CONNECTION WITH AN AWARD TO THE LESSOR ARE NOT PRESENT.
IN SUCH SITUATIONS, WE BELIEVE THAT THERE IS NO JUSTIFICATION FOR
FAILURE TO COMPLY WITH THE ADVERTISING REQUIREMENTS OF SECTION 303 AND
THAT THE INFORMAL SOLICITATION OF BIDS MAY NOT BE REGARDED AS MEETING
SUCH REQUIREMENTS. IT IS REPORTED INFORMALLY THAT YOUR ADMINISTRATION
IS IN ACCORD WITH THAT VIEW. ACCORDINGLY, IT IS SUGGESTED THAT AFTER
THE WORD "APPROPRIATE" IN THE NINTH LINE, PAGE TWO, OF THE PROPOSED
REGULATION THE PERIOD BE OMITTED, AND THAT THERE BE ADDED LANGUAGE
SUBSTANTIALLY AS FOLLOWS: "PURSUANT TO THE ADVERTISING REQUIREMENTS OF
SECTION 303 OF THE ACT.' ALSO, WE BELIEVE IT WOULD BE DESIRABLE AND
HELPFUL THAT THERE BE INCLUDED IN THE RECORD A STATEMENT BY THE
CONTRACTING OFFICER SHOWING THE BASIS--- INCLUDING THE FACTORS
CONSIDERED--- FOR SELECTION OF THE PARTICULAR METHOD FOR ACCOMPLISHMENT
OF THE WORK. OTHER THAN THE FOREGOING WE SEE NO OBJECTION TO ISSUANCE
OF THE PROPOSED REVISION.
B-128889, OCT. 12, 1956
TO THE SECRETARY OF THE TREASURY, THE DIRECTOR OF THE BUREAU OF THE
BUDGET:
IN HIS LETTER DATED AUGUST 2, 1956, TO THE SECRETARY OF THE TREASURY,
THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) STATED THERE HAS BEEN
INADEQUATE COORDINATION OF REPORTING REQUIREMENTS BETWEEN THE BUREAU OF
THE BUDGET, TREASURY DEPARTMENT, AND THE GENERAL ACCOUNTING OFFICE. HE
EXPRESSED HIS CONCERN THAT THERE WAS AN ABSENCE OF AN ADEQUATE PROGRAM
FOR DEVELOPING FINANCIAL REPORTS FOR APPROPRIATIONS AND A GENERAL LACK
OF INTEGRATION OF EXISTING REPORTS. THE LETTER AT ONE POINT MAKES
REFERENCE TO THE REPORTS SUBMITTED TO THE GENERAL ACCOUNTING OFFICE
PURSUANT TO THE REQUIREMENTS OF SECTION 1311 OF THE SUPPLEMENTAL
APPROPRIATION ACT, 1955.
THE REQUIREMENTS RELATING TO THE SECTION 1311 REPORTS WERE DEVELOPED
ONLY AFTER FULL AND COMPLETE COORDINATION WITH THE BUREAU OF THE BUDGET,
THE TREASURY DEPARTMENT, AND THE EXECUTIVE AGENCIES. THE NECESSITY FOR
SUCH COMPLETE COORDINATION WAS SIGNIFICANT IN THE LIGHT OF THE EXPRESSED
ANNOYANCE OF THE HOUSE APPROPRIATIONS COMMITTEE OVER THE DISPARITIES,
INCONSISTENCIES, AND APPARENT CONTRADICTIONS BETWEEN THE VARIOUS REPORTS
REQUIRED BY THE TREASURY, BUREAU OF THE BUDGET, AND THE GENERAL
ACCOUNTING OFFICE AND FINANCIAL REPORTS OF THE DEPARTMENT OF DEFENSE.
IN FACT, THE RELEASE OF THE MOST RECENT INSTRUCTIONS FOR THE SECTION
1311 REPORTS (GENERAL REGULATIONS NO. 127, DATED JUNE 28, 1956) WAS
DELAYED IN OUR ENDEAVOR TO CONSTRUCTIVELY RESOLVE THE DIVERGENT VIEWS OF
INTERESTED AGENCIES IN THE REGULATION, PARTICULARLY THE VIEWS OF THE
OFFICE OF THE SECRETARY OF DEFENSE (COMPTROLLER).
THE GENERAL ACCOUNTING OFFICE HAS BEEN AND IS COLLABORATING WITH THE
BUREAU OF THE BUDGET, THE TREASURY DEPARTMENT, AND THE EXECUTIVE
AGENCIES AS REQUIRED BY THE BUDGET AND ACCOUNTING PROCEDURES ACT OF
1950. THIS IS DONE ON A JOINT AND COOPERATIVE BASIS UNDER THE JOINT
ACCOUNTING IMPROVEMENT PROGRAM. ONE OF THE JOINT PROJECTS UNDER THIS
PROGRAM IS A COMPREHENSIVE STUDY BY THE BUREAU OF THE BUDGET, THE
TREASURY DEPARTMENT, AND THE GENERAL ACCOUNTING OFFICE OF THE REPORTS
WHICH THE EXECUTIVE AGENCIES ARE REQUIRED TO SUBMIT TO THE CENTRAL
AGENCIES. THE SCOPE OF THIS STUDY INCLUDES FINANCIAL REPORTS FOR
APPROPRIATIONS, MENTIONED IN THE ASSISTANT SECRETARY'S LETTER OF AUGUST
2, AS WELL AS OTHER TYPES OF FINANCIAL REPORTS. THE COOPERATIVE
PARTICIPATION OF THE DEPARTMENT OF DEFENSE AND OTHER EXECUTIVE AGENCIES
WILL BE REQUIRED AND SOLICITED SO THAT REPORTING REQUIREMENTS DEVELOPED
UNDER THIS PROJECT WILL BE, TO THE EXTENT PRACTICABLE, WITHIN THE
FRAMEWORK OF AN INTEGRATED FINANCIAL REPORTING SYSTEM.
THE DEVELOPMENT OF A COMPREHENSIVE AND WELL INTEGRATED FINANCIAL
REPORTING SYSTEM IN GOVERNMENT WILL DEPEND, TO A GREAT EXTENT, ON THE
ABILITY OF THE AGENCY FINANCIAL MANAGEMENT FUNCTIONS TO PROVIDE ADEQUATE
AND APPROPRIATE FINANCIAL FACTS ON A CONSISTENT AND ACCURATE BASIS FROM
INTEGRATED SYSTEMS OF PROGRAMMING, BUDGETING, AND ACCOUNTING. THE STAFF
OF MY OFFICE ASSIGNED TO THE DEPARTMENT OF DEFENSE IS AVAILABLE, TO THE
FULLEST EXTENT APPROPRIATE, TO ASSIST THE DEPARTMENT IN DEVELOPING ANY
NECESSARY IMPROVEMENTS REQUIRED.
B-129119, OCT. 12, 1956
TO LEO L. MIMNO, LIEUTENANT (JG), USCOR, U.S. NAVAL RETRAINING
COMMAND:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, REQUESTING
FURTHER CONSIDERATION OF YOUR CLAIM FOR PER DIEM FOR THE PERIOD FROM
NOVEMBER 17, 1955, TO JANUARY 21, 1956, INCIDENT TO YOUR SERVICE AS A
COMMISSIONED OFFICER OF THE U.S. COAST GUARD RESERVE, WHICH WAS
DISALLOWED IN OUR SETTLEMENT DATED JUNE 21, 1956.
AT YOUR REQUEST THE SETTLEMENT OF JUNE 21, 1956, WAS REVIEWED AND IN
DECISION OF SEPTEMBER 14, 1956, B-129119, YOU WERE ADVISED THAT THE
DISALLOWANCE OF YOUR CLAIM WAS SUSTAINED ON THE BASIS THAT IT WAS NOT
CONSIDERED THAT DURING THE PERIOD IN QUESTION YOU WERE IN THE STATUS OF
A PERSON PERFORMING TRAVEL OR TEMPORARY DUTY ON OFFICIAL BUSINESS AWAY
FROM YOUR PERMANENT DUTY STATION--- THE ONLY CIRCUMSTANCE UNDER WHICH
THE CLAIMED ALLOWANCE LEGALLY COULD BE PAID. IT APPEARS TO BE YOUR
BELIEF, HOWEVER, THAT THAT CONCLUSION, BASED ON THE PREMISE THAT THE
ORDERS OF NOVEMBER 17, 1955, EFFECTED A COMPLETE DETACHMENT FROM YOUR
DUTY STATION AT THE COAST GUARD AIR STATION, SOUTH SAN FRANCISCO,
CALIFORNIA, WAS IN ERROR SINCE SUCH ORDERS DID NOT AFFIRMATIVELY STATE
THAT YOU WERE NOT TO RETURN THERE AND SINCE YOU WERE CARRIED ON THE
ROLLS OF SUCH STATION AND PAID BY ITS DISBURSING OFFICER THROUGH THE
PERIOD IN QUESTION.
UNDER THE PROVISIONS OF PARAGRAPH 3003 OF THE JOINT TRAVEL
REGULATIONS, CITED IN THE DECISION OF SEPTEMBER 14, 1956, THE TERM
"TEMPORARY DUTY" IS DEFINED TO MEAN "DUTY AT A LOCATION OTHER THAN
PERMANENT STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED
TO TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A
NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.' FOR
PURPOSES OF ESTABLISHING A RIGHT TO PER DIEM THE REGULATIONS ANTICIPATE
AND REQUIRE THAT SUCH PROVISIONS, AS APPLICABLE, BE EXPRESSLY INCLUDED N
THE ORDERS TO INDICATE THE TEMPORARY NATURE OF THE DUTY ASSIGNMENT. IN
THEIR ABSENCE ONLY THE CLEAREST EVIDENCE THAT AN ASSIGNMENT WAS IN FACT
TEMPORARY IN NATURE AND FOR PERFORMANCE AWAY FROM THE PERSON'S PERMANENT
DUTY STATION COULD BE CONSIDERED TO ESTABLISH A PER DIEM STATUS.
THE ORDERS OF NOVEMBER 17, 1955, DID NOT PROVIDE EITHER A FURTHER
PERMANENT ASSIGNMENT OR FOR YOUR RETURN TO YOUR OLD STATION AT SOUTH SAN
FRANCISCO, BUT DIRECTED ONLY THAT YOU REPORT TO THE COMMANDANT, TWELFTH
NAVAL DISTRICT, WHICH OFFICIAL, IT WAS CONTEMPLATED, THEN WOULD ASSIGN
YOU TO THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY. PARAGRAPH 3003-3
OF THE JOINT TRAVEL REGULATIONS DEFINES TEMPORARY ADDITIONAL DUTY AS
INVOLVING ONE JOURNEY AWAY FROM THE INDIVIDUAL'S DUTY STATION, IN THE
PERFORMANCE OF PRESCRIBED DUTIES AND DIRECT RETURN TO THE STARTING POINT
UPON THE COMPLETION OF SUCH DUTIES. SINCE TEMPORARY ADDITIONAL DUTY
UNDER THOSE REGULATIONS ORIGINATES ONLY AT THE PERMANENT DUTY STATION,
IT SEEMS APPARENT THAT HEADQUARTERS, TWELFTH NAVAL DISTRICT, THE PLACE
FROM WHICH YOU WERE TO BE DIRECTED TO TEMPORARY ADDITIONAL DUTY, WAS
YOUR DUTY STATION UPON YOUR REPORTING THERE UNDER THE ORDERS OF NOVEMBER
17, 1955. PRESUMABLY, THE RETENTION OF YOUR RECORDS AT THE COAST GUARD
AIR STATION AT SOUTH SAN FRANCISCO WAS DONE AS A MATTER OF
ADMINISTRATIVE CONVENIENCE IN VIEW OF THE FACT THAT YOUR DUTY ASSIGNMENT
UNDER THE ORDERS WAS AT A NAVAL INSTALLATION. SUCH FACTOR COULD,
HOWEVER, HAVE NO BEARING ON A DETERMINATION OF YOUR DUTY STATUS.
THE CONCLUSION IN THE DECISION OF SEPTEMBER 14, 1956, APPEARS TO HAVE
BEEN CORRECT AND REQUIRED UNDER THE LAW AND CONSEQUENTLY UPON FURTHER
CONSIDERATION IT IS AFFIRMED.
YOUR ORIGINAL ORDERS OF NOVEMBER 17, 1955, WITH ENDORSEMENTS, ARE
RETURNED.
B-129195, OCT. 12, 1956
TO THE SECRETARY OF THE NAVY:
FURTHER REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 6, 1956, FROM
THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES),
REQUESTING A DECISION AS TO THE LEGALITY OF PROPOSED AMENDMENTS TO THE
JOINT TRAVEL REGULATIONS THAT WOULD AUTHORIZE TRANSPORTATION OF
DEPENDENTS AND HOUSEHOLD EFFECTS FROM AN OLD STATION IN THE UNITED
STATES TO A NEW STATION OVERSEAS VIA A POINT IN THE UNITED STATES,
DESIGNATED BY THE MEMBER CONCERNED, UNDER ORDERS TO AN OVERSEAS STATION
TO WHICH TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS NOT
RESTRICTED IF THE PROPOSED REGULATIONS PROVIDE THAT THE DEPENDENTS
REMAIN AT THE INTERMEDIATE POINT FOR A PERIOD OF NOT LESS THAN 20 WEEKS.
THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO PAYMENT FOR THE
COST OF TRANSPORTING HIS DEPENDENTS ON PERMANENT CHANGE OF STATION UNDER
ORDERS THAT DO NOT RESTRICT TRAVEL OF DEPENDENTS TO THE NEW STATION IS
BASED ON, AND IS NO GREATER THAN THE RIGHTS SECURED TO HIM UNDER SUCH
ORDERS INCIDENT TO HIS OWN TRAVEL, UNLESS APPLICABLE PROVISONS OF LAW
SPECIFICALLY PROVIDE OTHERWISE. ASIDE FROM QUESTIONS OF MOVEMENT TO
STORAGE, WHICH, IT IS UNDERSTOOD, ARE NOT HERE INVOLVED, THE SAME
LIMITATIONS WOULD APPEAR TO APPLY TO TRANSPORTATION OF HOUSEHOLD
EFFECTS.
EARLIER PROVISIONS OF LAW IN EFFECT PRIOR TO ENACTMENT OF SECTION 303
(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813 (SEE SECTION 12
OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND SECTION 12 OF THE PAY
READJUSTMENT ACT OF 1942, 56 STAT. 364), EXPRESSLY LIMITED THE
FURNISHING OF TRANSPORTATION FOR DEPENDENTS OF ELIGIBLE PERSONNEL
ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO TRANSPORTATION "TO HIS
NEW STATION" AND IT WAS PROVIDED THAT, IF THE COST OF SUCH
TRANSPORTATION EXCEEDED THAT FROM THE OLD TO THE NEW STATION, THE EXCESS
COSTS MUST BE BORNE BY THE MEMBER CONCERNED. UNLESS SECTION 303 (C) OF
THE CAREER COMPENSATION ACT CLEARLY CHANGED THE LAW AND AUTHORIZED
TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OVER A CIRCUITOUS
ROUTE, VIA A THIRD POINT, FROM THE OLD TO THE NEW STATION, THE FACT,
THAT PERSONAL CIRCUMSTANCES, AS DISTINGUISHED FROM MILITARY
REQUIREMENTS, MAKE TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD
EFFECTS TO A THIRD POINT FOR A MORE OR LESS LIMITED PERIOD OF TIME
ADVANTAGEOUS FROM THE MEMBER'S POINT OF VIEW, FURNISHES NO BASIS FOR
THEIR MOVEMENT AT GOVERNMENT EXPENSE TO SUCH PLACE BEFORE BEING MOVED TO
THE NEW STATION OVERSEAS. A PROVISION IN ADMINISTRATIVE REGULATIONS
THAT THE DEPENDENTS AND HOUSEHOLD EFFECTS REMAIN AT SUCH PLACE AT LEAST
20 WEEKS, BEFORE PROCEEDING TO THE NEW STATION, WOULD HAVE NO BEARING ON
THE MEMBER'S RIGHTS TO HAVE THEM MOVED TO HIS NEW STATION VIA THAT
PLACE, SINCE HIS RIGHTS TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD
EFFECTS ARE BASED ON HIS PERMANENT CHANGE OF STATION ORDERS, NOT ON THE
LENGTH OF TIME THEY MIGHT REMAIN AT ANY PARTICULAR PLACE EN ROUTE TO THE
NEW STATION.
WHILE SECTION 303 (C) OF THE CAREER COMPENSATION ACT CONTAINS
LANGUAGE DIFFERING FROM THAT USED IN PRIOR LEGISLATION RELATING TO
TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE
AND AUTHORIZES THE FURNISHING OF TRANSPORTATION "TO AND FROM SUCH
LOCATIONS" AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, NOTHING
HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THAT ACT WHICH INDICATES IN
ANY WAY AN INTENT TO GRANT A MEMBER RIGHTS TO TRANSPORTATION OF
DEPENDENTS AND HOUSEHOLD EFFECTS ON A BROADER BASIS THAN THAT WHICH
ACCRUES FOR HIS PERSONAL TRAVEL TO HIS NEW STATION WHEN CONCURRENT
TRAVEL AND SHIPMENT ARE NOT RESTRICTED. WHEN GENERAL DAHLQUIST WAS
ASKED TO COMMENT ON THE PROVISIONS OF SECTION 303 (C) OF THE THEN
PROPOSED LEGISLATION HE STATED ,THAT IS SUBSTANTIALLY WHAT WE HAVE IN
THE PRESENT LAW.' SEE PAGE 1712 OF THE HOUSE HEARINGS ON SUCH
LEGISLATION. SIMILARLY, IN THE HEARINGS BEFORE THE SENATE COMMITTEE ON
ARMED SERVICES, ADMIRAL FECHTELER, IN REPLY TO A QUESTION AS TO WHAT
CHANGES THE PROPOSED LEGISLATION MADE IN EXISTING TRAVEL AND
TRANSPORTATION ALLOWANCES, STATED "WELL, IT IS ESSENTIALLY PRESENT LAW
WITH NEW RATES.' SEE PAGE 281 OF SUCH HEARINGS. APPARENTLY, THE
AUTHORITY TO MOVE DEPENDENTS AND HOUSEHOLD EFFECTS "TO AND FROM SUCH
LOCATIONS" AS MIGHT BE PRESCRIBED BY THE SECRETARIES CONCERNED WAS TO BE
EXERCISED WITHIN THE LIMITATION OF TRANSPORTATION FROM THE OLD TO THE
NEW STATION.
THE CURRENT PROVISIONS OF THE JOINT TRAVEL REGULATIONS LIMIT
TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE
ON THE BASIS OF ENTITLEMENT ONLY FROM THE OLD TO THE NEW STATION WHEN
TRANSPORTATION TO THE NEW STATION IS NOT RESTRICTED. IT IS BELIEVED
THAT SUCH REGULATIONS EXPRESS THE INTENT OF CONGRESS AS TO THIS MATTER.
IT IS CONCLUDED, THEREFORE, THAT THE STATUTE DOES NOT AUTHORIZE THE
SUGGESTED AMENDMENT OF THE REGULATIONS.
B-129201, OCT. 12, 1956
TO THE SECRETARY OF THE NAVY:
FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 6, 1956, FROM THE
ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES),
CONCERNING A PROBLEM WHICH HAS ARISEN IN CONNECTION WITH THE PRESCRIBING
OF REGULATIONS TO IMPLEMENT THE ACT OF AUGUST 5, 1955, 69 STAT. 532,
CONCERNING NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS.
SPECIFICALLY, IT IS STATED THAT THERE ARE INSTANCES IN WHICH A
MEMBER, UPON RECEIPT OF PERMANENT CHANGE OF STATION ORDERS WHICH CARRY
WITH THEM ENTITLEMENT TO STORAGE AND SHIPMENT OF A MEMBER'S HOUSEHOLD
GOODS, WILL REQUIRE CONSECUTIVE STORAGE AND SHIPMENT. AN EXAMPLE IS
CITED OF A MEMBER TRANSFERRED OVERSEAS, WHEN IT MAY BE NECESSARY TO
STORE HIS EFFECTS FOR VARYING PERIODS OF TIME PRIOR TO SHIPMENT
OVERSEAS. IT IS STATED FURTHER THAT, WHERE STORAGE HAS BEEN IN
AVAILABLE GOVERNMENT FACILITIES, THE SERVICES HAVE, FOR SOME YEARS,
GRANTED THE RIGHT TO CONSECUTIVE STORAGE AND SHIPMENT, BUT THAT SOME
DOUBT IS CAST UPON THE AUTHORITY OF THE SECRETARIES TO PRESCRIBE SUCH
ENTITLEMENT UNDER THE ACT OF AUGUST 5, 1955, AMENDING SECTION 303 (C) OF
THE CAREER
COMPENSATION ACT OF 1949, BY THE PROVISION IN THAT ACT AS FOLLOWS:
"* * * THAT IN NO INSTANCE SHALL THE WEIGHT STORED PLUS THE WEIGHT
TRANSPORTED IN CONNECTION WITH A CHANGE OF STATION EXCEED THE MAXIMUM
WEIGHT LIMITATION FIXED BY REGULATIONS PROMULGATED BY THE RESPECTIVE
SECRETARIES WHERE NOT OTHERWISE FIXED BY LAW: * * *"
AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 5,
1955, SHOWS THAT SUCH LEGISLATION WAS PROPOSED AS AN ECONOMY MEASURE.
THE ECONOMIES WERE TO BE ACCOMPLISHED BY SAVINGS IN PACKING AND SHIPPING
COSTS. EXAMPLES WERE CITED OF ASSIGNMENTS OF MEMBERS TO DUTY OVERSEAS.
UNDER THE PROVISIONS OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT
OF 1949 PRIOR TO ITS AMENDMENT BY THE ACT OF AUGUST 5, 1955,
NONTEMPORARY STORAGE OF EFFECTS WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE
IN COMMERCIAL FACILITIES. HOWEVER, SUCH STORAGE WAS PERMITTED AT AN
INSTALLATION OF THE SERVICE CONCERNED TO THE EXTENT THAT FACILITIES WERE
AVAILABLE, AS PROVIDED IN PARAGRAPH 8006-2 OF THE JOINT TRAVEL
REGULATIONS. IT IS UNDERSTOOD THAT IN SUCH CASES HOUSEHOLD EFFECTS ARE
COMPLETELY PACKED AND CRATED IN ORDER TO WITHSTAND TRANSPORTATION TO THE
GOVERNMENT STORAGE DEPOT--- OFTEN LOCATED AT PLACES SOME DISTANCE FROM
THE MEMBER'S STATION--- AND TO FACILITATE PROPER STORAGE AND FULL USE OF
STORAGE SPACE AT THE DEPOT. A LARGE PART OF THE COST OF SUCH EXPENSES
OF PACKING AND CRATING WAS EXPECTED TO BE SAVED IN AUTHORIZING
NONTEMPORARY STORAGE IN COMMERCIAL FACILITIES LOCATED AT OR NEAR THE
MEMBER'S OLD STATION, SINCE ONLY A MINOR AMOUNT OF PACKING AND CRATING
IS REQUIRED FOR HAULING TO LOCAL COMMERCIAL STORAGE. FURTHER SAVINGS IN
TRANSPORTATION COSTS WERE EXPECTED TO ACCRUE IN CASES WHERE THE
GOVERNMENT STORAGE DEPOT WAS NOT LOCATED IN A DIRECT LINE BETWEEN THE
OLD STATION AND THE NEW STATION IN THE UNITED STATES TO WHICH THE MEMBER
WOULD BE ASSIGNED AFTER TERMINATION OF HIS DUTY OVERSEAS, SINCE ULTIMATE
SHIPMENT WOULD BE MADE ONLY FROM THE OLD TO THE NEW STATION. IF
REGULATIONS WERE PROMULGATED UNDER THE ACT OF AUGUST 5, 1955, WHICH
WOULD PERMIT A MEMBER TO STORE HIS FULL WEIGHT LIMITATION OF HOUSEHOLD
EFFECTS IN COMMERCIAL STORAGE FACILITIES AND LATER SHIP SUCH EFFECTS AT
GOVERNMENT EXPENSE TO A NEW STATION OVERSEAS, HIS EFFECTS WOULD HAVE TO
BE COMPLETELY PACKED AND CRATED AND NOT ONLY WOULD THE ANTICIPATED
SAVINGS IN PACKING AND CRATING COSTS BE LOST, BUT THE GOVERNMENT ALSO
WOULD HAVE TO BEAR THE COSTS OF COMMERCIAL STORAGE AND OF THE MINOR
PACKING AND CRATING REQUIRED AS AN INCIDENT OF SUCH COMMERCIAL STORAGE.
IN VIEW OF THE LEGISLATIVE HISTORY AND THE LANGUAGE OF THE STATUTE
EXPRESSLY PROVIDING THAT IN NO INSTANCE SHALL THE WEIGHT STORED PLUS THE
WEIGHT TRANSPORTED IN CONNECTION WITH A CHANGE OF STATION EXCEED THE
MAXIMUM WEIGHT LIMITATION, THE CONCLUSION SEEMS REQUIRED THAT THE
STATUTE PERMITS CONSECUTIVE STORAGE AND SHIPMENT OF THE SAME EFFECTS
ONLY WHEN THE WEIGHT ORIGINALLY STORED PLUS THE WEIGHT SHIPPED DOES NOT
EXCEED THE MAXIMUM WEIGHT LIMITATION FOR THE MEMBER CONCERNED.
IN HIS LETTER OF MAY 11, 1955, TO THE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, THE SECRETARY OF THE ARMY MENTIONED THAT NONTEMPORARY
STORAGE OF HOUSEHOLD GOODS IS NECESSARY WHEN MILITARY PERSONNEL ARE
ASSIGNED TO DUTY OVERSEAS, PARTICULARLY IN THOSE CASES WHERE MOVEMENT OF
HOUSEHOLD GOODS TO THE OVERSEAS STATION IS PROHIBITED (TEMPORARILY) FOR
MILITARY OR OTHER REASONS, AND HE REFERRED PARTICULARLY TO THE SITUATION
WHERE OVERSEAS SHIPMENTS ARE NOT MADE UNTIL THERE HAS BEEN A
DETERMINATION AS TO WHAT FURNITURE WILL BE NEEDED AT THE OVERSEAS
STATION. IN PERMITTING NONTEMPORARY STORAGE, THE 1955 ACT WILL SAVE---
AS STATED BY THE ASSISTANT SECRETARY--- THE COSTS OF SHIPPING
UNNECESSARY ITEMS WHERE PARTIALLY FURNISHED QUARTERS ARE AVAILABLE AT
THE OVERSEAS STATION. SIMILARLY, IN THE HEARINGS ON H.R. 6277--- LATER
ENACTED INTO LAW AS THE ACT OF AUGUST 5, 1955--- BEFORE SUBCOMMITTEE NO.
2 OF THE COMMITTEE ON ARMED FORCES, HOUSE OF REPRESENTATIVES, THERE WAS
DISCUSSED (PAGES 4167, 4168, 4170 AND 4171) THE EXAMPLE OF A MEMBER
ASSIGNED TO DUTY OVERSEAS WHO COULD NOT TAKE HIS DEPENDENTS WITH HIM DUE
TO THE FACT THAT NO QUARTERS WERE AVAILABLE. IT APPARENTLY WAS AGREED
THAT IF THE MEMBER ELECTED TO STORE HIS EFFECTS IN COMMERCIAL FACILITIES
AT HIS OLD STATION UNDER THE THEN PROPOSED LEGISLATION, AND HIS WIFE
WENT TO CALIFORNIA TO STAY WITH HER MOTHER UNTIL SHE COULD JOIN HIM
OVERSEAS, UPON PROCEEDING TO HIS NEW STATION SHE COULD WITHDRAW FROM
SUCH COMMERCIAL STORAGE FOR SHIPMENT OVERSEAS ONLY THAT PART OF THE
STORED HOUSEHOLD EFFECTS AS WAS NEEDED AT THE NEW STATION, AND THAT SUCH
PROCEDURE WOULD BE IMPRACTICAL IF SUCH EFFECTS WERE STORED IN A
GOVERNMENT FACILITY. HOWEVER, IN NEITHER THE SECRETARY'S LETTER NOR IN
THE ABOVE DISCUSSION WAS THE EFFECT OF THE WEIGHT LIMITATION PROVISION
OF THE PROPOSED LEGISLATION ON THE EXAMPLES INVOLVED DISCUSSED OR
CONSIDERED. IT IS OUR VIEW THAT SO FAR AS THE 1955 ACT IS CONCERNED,
SUCH STORAGE AND SHIPMENT OVERSEAS WOULD HAVE TO BE WITHIN THE
APPLICABLE WEIGHT LIMITATIONS.
THIS DOES NOT MEAN THAT THE COMBINED WEIGHT OF EFFECTS STORED AND
SHIPPED IN CONNECTION WITH CONSECUTIVE STORAGE AND SHIPMENT OF THE SAME
EFFECTS MUST BE WITHIN THE MAXIMUM WEIGHT LIMITATIONS IN ALL INSTANCES.
THE RIGHT TO TRANSPORTATION OF HOUSEHOLD EFFECTS ON CHANGE OF STATION
INCLUDES A RIGHT UNDER SECTION 303 (C) OF THE CAREER COMPENSATION ACT TO
TEMPORARY STORAGE FOR A MAXIMUM PERIOD FIXED BY REGULATIONS AS SIX
MONTHS, AND THE SAME EFFECTS, WITHIN THE PRESCRIBED WEIGHT LIMITATIONS,
MAY BE BOTH STORED AND SHIPPED. THE 1955 AMENDATORY ACT DID NOT AFFECT
SUCH RIGHTS.
TEMPORARY STORAGE OF HOUSEHOLD EFFECTS IN COMMERCIAL FACILITIES AT
THE OLD STATION IS AUTHORIZED UNDER PARAGRAPH 8006-1 OF THE JOINT TRAVEL
REGULATIONS, WHEN MORE ADVANTAGEOUS TO THE GOVERNMENT THAN STORAGE IN
GOVERNMENT FACILITIES, IN CASES WHERE SUCH STORAGE IS NECESSARY BECAUSE
OF CONDITIONS BEYOND THE CONTROL OF THE MEMBER, INCLUDING CASES WHERE
SHIPMENT OF EFFECTS IS PROHIBITED FOR A LIMITED TIME TO OVERSEAS
STATIONS. THE SAME EFFECTS MAY BE SHIPPED TO THE NEW STATION WHEN
CONDITIONS SO CHANGE AS TO PERMIT SUCH SHIPMENT. SINCE THE 1955 ACT
PERMITS NONTEMPORARY STORAGE IN COMMERCIAL FACILITIES AT THE OLD
STATIONS WHEN SUCH STORAGE IS CONSIDERED TO BE MORE ECONOMICAL TO THE
GOVERNMENT, IT APPEARS THAT RIGHTS TO TEMPORARY AND NONTEMPORARY STORAGE
PARALLEL EACH OTHER TO SOME EXTENT. IN THE EXAMPLES CITED IN THE
SECRETARY'S LETTER OF MAY 11, 1955, AND IN THE SUBCOMMITTEE DISCUSSION,
AND IN ALL CASES WHEN CONCURRENT SHIPMENT OF HOUSEHOLD EFFECTS IS NOT
AUTHORIZED, IT APPEARS THAT THE CONDITIONS WHICH NECESSITATE STORAGE AT
THE OLD STATION WOULD BE BEYOND THE CONTROL OF THE MEMBER CONCERNED.
WHEN SUCH CONDITIONS SUBSEQUENTLY CHANGE AND SHIPMENT IS AUTHORIZED, NO
REASON IS PERCEIVED WHY SUCH HOUSEHOLD EFFECTS AS ARE ACTUALLY SHIPPED
OVERSEAS WITHIN SIX MONTHS AFTER THEY WERE PLACED IN STORAGE--- WHICH WE
BELIEVE REASONABLY MAY BE REGARDED AS AMPLE TIME IN WHICH TO DETERMINE A
MEMBER'S FURNITURE NEEDS AT HIS OVERSEAS STATION--- COULD NOT BE
REGARDED AS STORED UNDER THE TEMPORARY STORAGE PROVISIONS OF SECTION 303
(C) OF THE CAREER COMPENSATION ACT.
B-129214, OCT. 12, 1956
TO P. V. MOFFAT, JR., DISBURSING OFFICER, DEPARTMENT OF THE NAVY:
BY LETTER OF SEPTEMBER 11, 1956, THE DEPUTY JUDGE ADVOCATE GENERAL OF
THE NAVY FORWARDED YOUR LETTER OF AUGUST 7, 1956, SUBMITTING FOR ADVANCE
DECISION A VOUCHER STATED IN FAVOR OF JOHNATHAN J. PEDEN, SN, USN, FOR
MILEAGE FOR HIS TRAVEL FROM PATUXENT RIVER, MARYLAND TO MCGUIRE AIR
FORCE BASE, NEW JERSEY, IN THE CIRCUMSTANCES SHOWN.
BY ORDERS DATED AUGUST 15, 1955, THE MEMBER WAS AUTHORIZED TO TRAVEL
BY GOVERNMENT AIRCRAFT FROM HIS OVERSEAS DUTY STATION TO THE CONTINENTAL
UNITED STATES FOR EMERGENCY LEAVE PURPOSES, HIS LEAVE ADDRESS BEING
SHOWN AS WICHITA, KANSAS. SUCH ORDERS PROVIDED THAT UPON EXPIRATION OF
THE LEAVE GRANTED HE WOULD REPORT TO THE AIR TRANSPORT OFFICER, PATUXENT
RIVER, MARYLAND, NOT LATER THAN SEPTEMBER 8, 1955. A MEMORANDUM
ENDORSEMENT DATED SEPTEMBER 8, 1955, FROM THE COMMANDING OFFICER, U.S.
NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, STATES THAT THE MEMBER
REPORTED THERE ON SEPTEMBER 7, 1955. SUCH ENDORSEMENT DIRECTED HIM TO
REPORT TO MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR FURTHER TRANSPORTATION
TO HIS OVERSEAS STATION, IT BEING FURTHER STATED THAT NO GOVERNMENT
TRANSPORTATION WAS AVAILABLE FOR HIS TRAVEL FROM PATUXENT RIVER TO
MCGUIRE AIR FORCE BASE. IT APPEARS THAT HE TRAVELED AT PERSONAL EXPENSE
BETWEEN THOSE PLACES ON SEPTEMBER 10, 1955.
HIS CLAIM IS FOR MILEAGE COMPUTED ON THE DISTANCE FROM PATUXENT RIVER
TO MCGUIRE AIR FORCE BASE.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRAVEL
AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT
ORDERS, WHICH PRESUPPOSES TRAVEL ON PUBLIC BUSINESS. PARAGRAPH 3050-1,
JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THAT ACT, PROVIDES THAT
MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS
AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS ONLY WHILE ACTUALLY
IN A "TRAVEL STATUS" AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL
STATUS WHILE PERFORMING TRAVEL UPON PUBLIC BUSINESS, PURSUANT TO
COMPETENT TRAVEL ORDERS. PARAGRAPH 6455 OF THE SAME REGULATIONS
PROVIDES THAT PERSONNEL ATTACHED TO ACTIVITIES BEYOND CONTINENTAL UNITED
STATES SHOULD MAKE DEFINITE PLANS BEFORE THEY REQUEST LEAVE AS TO WHEN
AND HOW THEY CAN RETURN AT THE EXPIRATION OF THE LEAVE. IT IS FURTHER
PROVIDED THAT THE GOVERNMENT CANNOT GUARANTEE RETURN TRANSPORTATION BY
GOVERNMENT CONVEYANCE AND WILL NOT AUTHORIZE TRANSPORTATION BY
COMMERCIAL CONVEYANCES AT GOVERNMENT EXPENSE. PARAGRAPH 6454 OF THE
REGULATIONS PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL
UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE
GOVERNMENT.
IT SEEMS CLEAR THAT THE TRAVEL OF THE MEMBER HERE INVOLVED FROM HIS
OVERSEAS STATION TO THE UNITED STATES AND RETURN WAS NOT TRAVEL ON
PUBLIC BUSINESS, BUT WAS FOR HIS OWN CONVENIENCE FOR THE SOLE PURPOSE OF
TAKING LEAVE. HENCE, THERE IS NO BASIS UNDER APPLICABLE LAW AND
REGULATIONS FOR REIMBURSING HIM FOR HIS TRAVEL FROM PATUXENT RIVER,
MARYLAND, TO MCGUIRE AIR FORCE BASE, NEW JERSEY. ACCORDINGLY, PAYMENT
ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.
THE ORIGINAL ORDERS DATED AUGUST 15, 1955, AND MEMORANDUM ENDORSEMENT
DATED SEPTEMBER 8, 1955, ARE HEREWITH RETURNED.
B-129232, OCT. 12, 1956
TO MR. VINCENT T. BARRY:
THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 1, 1956, WITH
ENCLOSURES, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN
SETTLEMENT DATED JULY 27, 1956, WHICH DISALLOWED YOUR CLAIM FOR
ADDITIONAL LONGEVITY PAY AND CUMULATIVE SERVICE PAY FOR THE PERIOD JUNE
1, 1942, TO JUNE 30, 1952, INCIDENT TO YOUR ALLEGED SERVICE IN THE NEW
YORK NATIONAL GUARD FROM JUNE 15, 1933, TO JANUARY 12, 1936.
THE RECORD CONTAINS A CERTIFICATE OF YOUR NATIONAL GUARD SERVICE
FURNISHED BY THE ADJUTANT GENERAL OF THE STATE OF NEW YORK DATED MAY 7,
1956, CERTIFYING THAT ON JANUARY 13, 1933, YOU ENLISTED IN BATTERY A,
104TH FIELD ARTILLERY, NEW YORK NATIONAL GUARD; THAT ON JUNE 5, 1933,
YOU WERE TRANSFERRED TO THE NATIONAL GUARD RESERVE; AND THAT ON JANUARY
12, 1936, YOU WERE HONORABLY DISCHARGED AS A PRIVATE BY REASON OF
EXPIRATION OF THE TERM OF YOUR SERVICE.
SINCE YOU TRANSFERRED TO THE NATIONAL GUARD RESERVE ON JUNE 5, 1933,
AND SINCE THAT ORGANIZATION WAS DISCONTINUED BY THE ACT OF JUNE 15,
1933, 48 STAT. 153, THE ADJUTANT GENERAL OF THE STATE OF NEW YORK, IN
RESPONSE TO A REQUEST FROM OUR CLAIMS DIVISION, REPORTED THAT "RECORDS
OF THIS OFFICE INDICATE THAT INDIVIDUALS WHO WERE TRANSFERRED TO THE
NATIONAL GUARD RESERVE PRIOR TO 14 JUNE 1933 AND WHO WERE NOT
TRANSFERRED BACK TO AN ACTIVE STATUS, DID NOT SUBSCRIBE TO THE DUAL
OATH.' ON THE BASIS OF THAT REPORT AND SINCE YOU DID NOT SUBSCRIBE TO
THE DUAL OATH AS REQUIRED BY THE ACT OF JUNE 15, 1933, YOUR CLAIM WAS
DISALLOWED.
IN SUPPORT OF YOUR CLAIM YOU REFER TO AN AFFIDAVIT OF A BRIGADIER
GENERAL CHARLES F. STANTON, RETIRED, FORMERLY COMMANDING OFFICER OF THE
ORGANIZATION TO WHICH YOU WERE ATTACHED ON JANUARY 13, 1933. THE BUREAU
OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, HAS NOW FURNISHED US WITH A
COPY OF THAT AFFIDAVIT WHICH READS AS FOLLOWS:
"MAY 3, 1955.
TO WHOM IT MAY CONCERN:
BARRY, VINCENT T., ENLISTED IN BATTERY A, 104TH F.A., N.G.N.Y. ON 13
JANUARY 1933: AT WHICH TIME HE TOOK DUAL OATH THE GOVERNOR OF STATE OF
NEW YORK AND THE PRESIDENT OF THE UNITED STATES. UPON BEING TRANSFERRED
TO THE N.G. RESERVE THIS OATH WAS NOT CHANGED.
CHARLES F. STANTON
BRIGADIER GENERAL, RETIRED
FORMERLY CAPTAIN
BATTERY A. 104 F.A.'
IN RESPONSE TO A REQUEST FROM THE CHIEF OF NAVAL PERSONNEL CONCERNING
THE AFFIDAVIT OF GENERAL STANTON, THE ADJUTANT GENERAL OF THE STATE OF
NEW YORK BY FIRST INDORSEMENT DATED MAY 18, 1955, REPORTED THAT
"ALTHOUGH RECORDS OF THIS OFFICE DO NOT VERIFY THE SIGNING OF THE DUAL
OATH, IT IS THE OPINION OF THIS OFFICE THAT INCLOSED AFFIDAVIT IS
SUFFICIENT PROOF THAT THE DUAL OATH WAS SIGNED BY VINCENT T. BARRY.'
SECTION 3A OF THE PAY READJUSTMENT ACT OF 1942 AS ADDED BY SECTION 3
OF THE ACT OF DECEMBER 2, 1942, 56 STAT. 1037, AND AMENDED BY SECTION 1
OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 729, PROVIDED THAT, EFFECTIVE
JUNE 1, 1942, ENLISTED MEN WOULD BE ENTITLED TO LONGEVITY CREDIT FOR
ENLISTED SERVICE IN THE NATIONAL GUARD, THE NATIONAL GUARD RESERVE, AND
THE NATIONAL GUARD OF THE UNITED STATES. SIMILAR AUTHORITY IS PRESENTLY
CONTAINED IN SECTION 202 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 807, 37 U.S.C. 233. YOUR CLAIM IS PRESENTED ON THE BASIS OF
CREDIT FOR THE COMPLETION OF 9 YEARS OF CUMULATIVE SERVICE ON MAY 26,
1942, 12 YEARS ON MAY 26, 1945, 15 YEARS ON JUNE 3, 1948, 16 YEARS ON
JUNE 23, 1949, AND 18 YEARS ON JUNE 23, 1951. THIS SERVICE INCLUDES
CREDIT FOR THE PERIOD JANUARY 13, 1933, TO JANUARY 12, 1936, AS A MEMBER
OF THE NEW YORK NATIONAL GUARD.
ON JUNE 14, 1933, YOU WERE A MEMBER OF THE NATIONAL GUARD RESERVE.
ON JUNE 15, 1933, THE NATIONAL GUARD RESERVE WAS DISCONTINUED AND
MEMBERS THEREOF BECAME MEMBERS OF THE INACTIVE NATIONAL GUARD. 23 COMP.
GEN. 755, 757. ALSO, ON JUNE 15, 1933, THE NATIONAL GUARD OF THE UNITED
STATES WAS ESTABLISHED. SEE SECTION 5 OF THE ACT OF JUNE 15, 1933, 48
STAT. 155. SECTION 7 OF THAT ACT, 48 STAT. 156, PROVIDES, AMONG OTHER
THINGS, THAT: "ALL ENLISTED MEN OF THE NATIONAL GUARD ON THE DATE OF
APPROVAL OF THIS ACT MAY, UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY
THE SECRETARY OF WAR, BE ENLISTED IN GRADE, RATING AND BRANCH IN THE
NATIONAL GUARD OF THE UNITED STATES FOR THE REMAINING UNEXPIRED PORTIONS
OF THEIR ENLISTMENTS IN THE NATIONAL GUARD.'
YOU ARE NOT ENTITLED TO CREDIT FOR SERVICE IN THE NATIONAL GUARD
RESERVE SUBSEQUENT TO JUNE 14, 1933, SINCE THAT ORGANIZATION WAS
DISCONTINUED ON JUNE 15, 1933, AND YOU ARE NOT ENTITLED TO CREDIT FOR
SERVICE AS A MEMBER OF THE INACTIVE NATIONAL GUARD ON AND AFTER JUNE 15,
1933, BECAUSE A STATUS IN THAT ORGANIZATION IS NOT CREDITABLE FOR
LONGEVITY PAY PURPOSES. 23 COMP. GEN. 755. THE ONLY APPARENT BASIS
UPON WHICH YOU MIGHT BE ENTITLED TO LONGEVITY CREDIT FOR THE PERIOD JUNE
15, 1933, TO JANUARY 12, 1936, WOULD BE UPON AN ACCEPTABLE SHOWING THAT
YOU WERE A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES DURING THAT
PERIOD.
ENLISTED MEN IN THE NATIONAL GUARD ON JUNE 15, 1933, DID NOT
AUTOMATICALLY BECOME MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES,
ESTABLISHED ON THAT DAY, IT BEING REQUIRED UNDER THE PROVISIONS OF
SECTION 7 OF THE ACT OF JUNE 15, 1933, THAT SUCH MEN EXECUTE A NEW
ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE LATTER ORGANIZATION. WHILE
YOU SUBSCRIBED TO THE DUAL OATH WHEN YOU ENLISTED IN THE NEW YORK
NATIONAL GUARD ON JANUARY 13, 1933, AND THEREAFTER TRANSFERRED TO THE
NATIONAL GUARD RESERVE ON JUNE 5, 1933, THAT ENLISTMENT AND DUAL OATH
HAD NO EFFECT AFTER JUNE 14, 1933, WHEN THE NATIONAL GUARD RESERVE WAS
DISCONTINUED, UNLESS, OF COURSE, YOU EXECUTED A NEW ENLISTMENT CONTRACT
FOR MEMBERSHIP IN THE NATIONAL GUARD OF THE UNITED STATES ON AND AFTER
JUNE 15, 1933, AS REQUIRED BY SECTION 7 OF THE 1933 ACT.
NOTWITHSTANDING THE OPINION OF THE ADJUTANT GENERAL OF THE STATE OF NEW
YORK, YOUR STATUS ON AND AFTER JUNE 15, 1933, WAS MERELY THAT OF A
MEMBER OF THE INACTIVE NATIONAL GUARD FOR WHICH SERVICE IN THAT
ORGANIZATION, AS POINTED OUT ABOVE, IS NOT CREDITABLE FOR LONGEVITY AND
CUMULATIVE SERVICE PAY PURPOSES. NO EVIDENCE HAS BEEN FURNISHED TO SHOW
THAT YOU EXECUTED A NEW ENLISTMENT CONTRACT FOR MEMBERSHIP IN THE
NATIONAL GUARD OF THE UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO
JANUARY 12, 1936. B-104495, NOVEMBER 20, 1951.
IT FOLLOWS THAT YOU WERE NOT A MEMBER OF THE NATIONAL GUARD OF THE
UNITED STATES DURING THE PERIOD JUNE 15, 1933, TO JANUARY 12, 1936, AND
HENCE THE SETTLEMENT OF JULY 27, 1956, MUST BE AND IS SUSTAINED.
IN ADDITION, YOUR PAY RECORDS WILL BE FURTHER EXAMINED BY OUR DEFENSE
ACCOUNTING AND AUDITING DIVISION TO ASCERTAIN WHETHER YOU WERE CORRECTLY
PAID BASIC PAY AFTER JULY 1, 1952, COMPUTED ON THE SERVICE PROPERLY
CREDITABLE, SINCE YOU WERE NOT ENTITLED TO CREDIT FOR SERVICE IN THE
INACTIVE NATIONAL GUARD DURING THE PERIOD JUNE 15, 1933, TO JANUARY 12,
1936.
THE ENCLOSURES SUBMITTED WITH YOUR LETTER OF SEPTEMBER 1, 1956, ARE
RETURNED AS REQUESTED.
B-129272, OCT. 12, 1956
TO DR. GEORGE G. BROWNING:
REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1956, CONCERNING
YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF
$2,404.30, REPRESENTING THE BALANCE OF THE AMOUNT RECEIVED BY YOU FROM
THE WAYNE COUNTY GENERAL HOSPITAL AND INFIRMARY, ELOISE, MICHIGAN, WHILE
ON ACTIVE DUTY IN THE NAVAL RESERVE.
THE RECORD SHOWS THAT DURING YOUR TOUR OF DUTY AS AN INTERN AT THE
WAYNE COUNTY GENERAL HOSPITAL AND INFIRMARY, ELOISE, MICHIGAN, FROM JULY
13, 1949, TO JUNE 30, 1950, THE HOSPITAL FURNISHED YOU SUBSISTENCE IN
KIND AND, IN ADDITION, PAID YOU A STIPEND OF $2,467.88. UPON YOUR
RELEASE FROM ACTIVE DUTY AND ARRIVAL HOME, YOU FILED CLAIM FOR AND WERE
ENTITLED TO PAY AND ALLOWANCES FOR THREE DAYS' TRAVEL TIME IN THE SUM OF
$63.58. THIS AMOUNT WAS APPLIED TO YOUR INDEBTEDNESS OF $2,467.88,
LEAVING A BALANCE OF $2,404.30 DUE THE UNITED STATES.
IT APPEARS TO BE YOUR CONTENTION THAT SINCE YOU WERE PAID BY A
HOSPITAL WHICH WAS SUPPORTED BY MUNICIPAL FUNDS YOUR CASE COMES WITHIN
THE EXCEPTION TO THE PROVISIONS OF 18 U.S.C., SUPP. 11, 1914 (ACT OF
JUNE 25, 1948, 62 STAT. 793). THIS STATUTE MAKES IT A CRIMINAL OFFENSE
FOR AN EMPLOYEE TO RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES
FROM ANY SOURCE OTHER THAN THE UNITED STATES GOVERNMENT EXCEPT AS MAY BE
CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY OR MUNICIPALITY.
SINCE YOU WERE PAID FROM COUNTY FUNDS YOUR CASE WOULD APPEAR TO COME
WITHIN THE EXCEPTION IN THE STATUTE. THAT MEANS SIMPLY THAT YOU ARE NOT
SUBJECT TO CRIMINAL PROSECUTION. HOWEVER, THAT STATUTE OR ITS
APPLICABILITY TO YOUR CASE DOES NOT AFFECT THE RIGHT OF THE UNITED
STATES TO COLLECT IN A CIVIL ACTION MONEYS WHICH YOU RECEIVED FROM THE
HOSPITAL WHILE YOU WERE AN OFFICER OF THE UNITED STATES AND RECEIVED PAY
AND ALLOWANCES AS SUCH AN OFFICER. THE AMOUNTS WHICH YOU RECEIVED FROM
THE HOSPITAL WERE, IN EFFECT, RECEIVED FOR THE UNITED STATES. THIS IS
BASED ON THE WELL ESTABLISHED PRINCIPLE OF LAW THAT THE EARNINGS OF AN
EMPLOYEE IN EXCESS OF HIS REGULAR COMPENSATION GAINED IN THE COURSE OF,
OR IN CONNECTION WITH, HIS SERVICES BELONG TO THE EMPLOYER. SEE VAN MOY
V. WILLIS, 14 SO.2D 185; CONNELLY V. SPECIAL ROAD AND BRIDGE DISTRICT
NO. 5, 126 SO. 794.
YOU ALSO CONTEND THAT THE NAVY ADVISED YOU THAT YOU COULD DRAW PAY
FROM BOTH THE HOSPITAL AND THE GOVERNMENT AND THAT, THEREFORE, THE
LIABILITY FOR SUCH PAYMENT RESTS WITH THE GOVERNMENT. WHILE WE DO NOT
QUESTION THAT YOU MAY HAVE RECEIVED SUCH INFORMATION FROM A GOVERNMENT
OFFICER, THE GOVERNMENT CANNOT BE BOUND BY THE NEGLIGENT OR ERRONEOUS
ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING.
SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. ACCORDINGLY, YOU ARE
AGAIN REQUESTED TO MAKE PROMPT PAYMENT OF YOUR DEBT BY CHECK OR MONEY
ORDERS PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST
OFFICE BOX 2610, WASHINGTON, D.C.
B-129304, OCT. 12, 1956
TO CAPTAIN R. A. MOERKE, USAF, FINANCE OFFICER:
BY LETTER DATED SEPTEMBER 21, 1956, THE COMMANDER, HEADQUARTERS,
329TH FIGHTER GROUP (AD), UNITED STATES AIR FORCE, STEWART AIR FORCE
BASE, NEWBURGH, NEW YORK, FORWARDED YOUR LETTER OF SEPTEMBER 17, 1956,
SUBMITTING FOR ADVANCE DECISION A DEPENDENCY CERTIFICATE (DD FORM 137)
SIGNED BY COLONEL WILLIAM R. GROHS, USAF, 1228A, TO SUPPORT HIS CLAIM
FOR BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS (WIFE
AND CHILDREN).
IN YOUR LETTER YOU INDICATE THAT COLONEL GROHS MADE A PERMANENT
CHANGE OF STATION FROM ALBROOK AIR FORCE BASE, PANAMA CANAL ZONE TO
HEADQUARTERS EASTERN AIR DEFENSE FORCE, STEWART AIR FORCE BASE,
NEWBURGH, NEW YORK; THAT, UPON HIS ARRIVAL, HE AND HIS FAMILY WERE
PERMITTED TO RESIDE TEMPORARILY IN THE VISITING OFFICERS' QUARTERS
(GUEST HOUSE) FROM AUGUST 14 TO 26, 1954, WHILE LOOKING FOR SUITABLE OFF
BASE QUARTERS; THAT COLONEL GROHS PAID A SERVICE CHARGE OF $1.50 PER
DAY FOR EACH MEMBER OF HIS FAMILY; AND THAT HIS BASIC ALLOWANCE FOR
QUARTERS WAS STOPPED DURING THAT PERIOD. YOU STATE THAT DOUBT EXISTS AS
TO WHETHER THE WITHHOLDING OF SUCH ALLOWANCE WAS PROPER, CITING
PARAGRAPH 20402, AFM 173-20, AND OUR DECISION OF JANUARY 6, 1956,
B-124875.
SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812,
PROVIDES THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE
FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES "ASSIGNED
TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF
THE UNIFORMED SERVICES," APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND
ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS. EXECUTIVE
ORDER NO. 10204, DATED JANUARY 15, 1951, ISSUED PURSUANT TO SECTION 302
OF THE 1949 ACT, PROVIDES THAT ANY QUARTERS OR HOUSING FACILITIES UNDER
THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES "IN FACT OCCUPIED
WITHOUT PAYMENT OF RENTAL CHARGES" BY A MEMBER AND HIS DEPENDENTS "SHALL
BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND
ADEQUATE QUARTERS," AND THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL
ACCRUE TO THE MEMBER IN SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS
BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE. PARAGRAPH 20402, AFM
173-20, CONTAINS SIMILAR PROVISIONS.
IN THE DECISION OF JANUARY 6, 1956, B-124875, TO WHICH YOU REFER, IT
WAS HELD THAT SINCE THE OFFICER AND HIS DEPENDENT IN FACT OCCUPIED
PUBLIC QUARTERS WITHOUT THE PAYMENT OF RENTAL CHARGES--- THE CHARGE MADE
BEING A "SERVICE CHARGE" AND NOT RENT--- HE WAS, UNDER THE LAW AND
REGULATIONS, ASSIGNED QUARTERS APPROPRIATE TO HIS GRADE AND ADEQUATE FOR
HIM AND HIS DEPENDENT AND, THEREFORE, THAT HE WAS NOT ENTITLED TO BASIC
ALLOWANCE FOR QUARTERS DURING SUCH OCCUPANCY.
FROM THE STATEMENTS MADE IN YOUR LETTER IT APPEARS THAT THE OFFICER
AND HIS DEPENDENTS OCCUPIED ACCOMMODATIONS IN THE GUEST HOUSE SOLELY FOR
THEIR OWN CONVENIENCE WHILE MAKING ARRANGEMENTS FOR PRIVATE QUARTERS OFF
THE BASE. SINCE THE OFFICER AND HIS DEPENDENTS TRAVELED TO STEWART AIR
FORCE BASE ON PERMANENT CHANGE OF STATION, IT REASONABLY APPEARS THAT HE
AND HIS DEPENDENTS INTENDED TO STAY AT THE NEW STATION INDEFINITELY AND
THAT THERE WAS NO INTENTION OF MAKING SUCH STAY THERE A SOCIAL VISIT OF
A TEMPORARY NATURE WITHIN THE MEANING OF THAT PHRASE AS USED IN THE
EXECUTIVE ORDER AND THE CITED REGULATIONS.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, IT IS CONCLUDED THAT
THE TEMPORARY OCCUPANCY OF THE GUEST HOUSE BY THE OFFICER AND HIS
DEPENDENTS DURING THE PERIOD FROM AUGUST 14 TO 26, 1954, WAS NOT A
"SOCIAL VISIT" SO AS TO ENTITLE HIM TO BASIC ALLOWANCE FOR QUARTERS WITH
DEPENDENTS.
THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE RETAINED HERE. COMPARE
34 COMP. GEN. 515.
B-129325, OCT. 12, 1956
TO MR. JOHN D. LEATHERMAN:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1956, WRITTEN ON THE
REVERSE OF A LETTER DATED AUGUST 30 FROM OUR CLAIMS DIVISION SUSTAINING
AND FURTHER EXPLAINING OUR SETTLEMENT OF JULY 19, WHICH DISALLOWED YOUR
CLAIM FOR THE PROCEEDS OF TREASURY CHECK NO. 67,731,823 FOR $1,202.34,
DRAWN JUNE 3, 1948, TO YOUR ORDER BY PAUL D. BANNING, SYMBOL 300. YOU,
IN EFFECT, REQUEST FURTHER RECONSIDERATION OF THE MATTER. ALSO, THERE
HAS BEEN RECEIVED BY REFERENCE FROM THE TREASURER OF THE UNITED STATES
SENATOR J. GLENN BEALL'S LETTER OF SEPTEMBER 10, 1956, TO THE CHIEF
DISBURSING OFFICER, TREASURY DEPARTMENT URGING PROMPT SETTLEMENT OF YOUR
CLAIM.
YOU STATE IN YOUR LETTER OF SEPTEMBER 1, 1956, THAT YOU HAVE BEEN
TRYING FOR SIX YEARS TO GET THIS PAYMENT, AND THAT YOU WERE CONSTANTLY
DIRECTED TO WRITE THE CIVIL SERVICE COMMISSION WITH REGARD THERETO. IN
VIEW THEREOF, THE UNITED STATES CIVIL SERVICE COMMISSION HAS BEEN
CONTACTED INFORMALLY TO ASCERTAIN WHAT ITS RECORDS SHOWED IN THE MATTER.
WE HAVE BEEN ADVISED THAT THE COMMISSION'S RECORDS SHOW THAT YOUR
APPLICATION FOR THE AMOUNT DUE FROM THE CIVIL SERVICE RETIREMENT AND
DISABILITY FUND WAS FILED ON APRIL 12, 1948, AND THAT PAYMENT THEREOF
WAS MADE BY THE ABOVE DESCRIBED CHECK, WHICH WAS MAILED TO YOU AT
THURMONT, MARYLAND. NO FURTHER CORRESPONDENCE FROM YOU APPEARS IN ITS
RECORDS OTHER THAN YOUR LETTER OF APRIL 8, 1956, IN RESPONSE TO WHICH
THE COMMISSION SENT YOU ITS LETTER OF APRIL 30, 1956, FILE REFERENCE
CSR-4821979, ADVISING YOU OF THE PRIOR ISSUANCE OF SAID CHECK AND
FURNISHING ITS DESCRIPTION, AND AN UNDATED POST CARD FROM YOU RECEIVED
AUGUST 7, 1956, IN REPLY TO WHICH THE CIVIL SERVICE COMMISSION FORWARDED
TO YOU UNDER DATE OF AUGUST 16, 1956, A DUPLICATE OF ITS LETTER OF APRIL
30.
THE FIRST CLAIM RECEIVED FROM YOU IN THE GENERAL ACCOUNTING OFFICE
CONSISTED OF THE FORM ON THE REVERSE SIDE OF THE CIVIL SERVICE
COMMISSION'S LETTER OF APRIL 30, EXECUTED BY YOU UNDER DATE OF MAY 3,
1956, WHICH WAS RECEIVED HERE ON MAY 28, 1956, THROUGH THE TREASURY
DEPARTMENT ALMOST EIGHT YEARS AFTER DATE OF ISSUANCE OF THE CHECK.
AS YOU WERE ADVISED BY PRIOR CORRESPONDENCE FROM OUR CLAIMS DIVISION,
SECTION 2 OF THE ACT OF JUNE 22, 1926, 44 STAT. 761, 31 U.S.C. 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.'
IT WILL BE NOTED FROM THE ABOVE THAT, INSOFAR AS THE RECORDS OF THE
CIVIL SERVICE COMMISSION AND OUR OFFICE DISCLOSE, THE FIRST CLAIM MADE
BY YOU IN THIS MATTER SUBSEQUENT TO YOUR ORIGINAL APPLICATION FOR REFUND
OF RETIREMENT DEDUCTIONS DATED APRIL 12, 1948, CONSISTED OF YOUR LETTER
OF APRIL 8, 1956, TO THE CIVIL SERVICE COMMISSION NEARLY EIGHT YEARS
AFTER DATE OF ISSUANCE OF THE CHECK. WHILE THAT LETTER STATES THAT YOU
HAD RECEIVED A PRIOR LETTER FROM THE CIVIL SERVICE COMMISSION GIVING YOU
THE CHECK DESCRIPTION, THE DATE OF SUCH LETTER IS NOT SHOWN, NOR IS
THERE ANY RECORD OF SUCH LETTER IN THE FILES OF THE CIVIL SERVICE
COMMISSION. MOREOVER, REGARDLESS OF WHETHER A PRIOR CLAIM HAD BEEN
PRESENTED TO THE CIVIL SERVICE COMMISSION OR SOME OTHER GOVERNMENT
AGENCY, SECTION 2 OF THE ACT OF JUNE 22, 1926, AS QUOTED ABOVE CLEARLY
AND UNEQUIVOCALLY REQUIRES THAT A CLAIM ON ACCOUNT OF ANY CHECK
APPEARING TO HAVE BEEN PAID MUST BE PRESENTED TO THE GENERAL ACCOUNTING
OFFICE WITHIN SIX YEARS OF THE DATE OF THE CHECK, AND THE PRESENTATION
OF SUCH A CLAIM TO ANY OTHER AGENCY OF THE GOVERNMENT, EVEN IF MADE
WITHIN THE SIX YEAR PERIOD, DOES NOT SATISFY THE REQUIREMENTS OF THE
STATUTE.
ACCORDINGLY, SINCE OUR RECORDS ESTABLISH THAT THE CHECK WAS MAILED TO
YOU AT THE ADDRESS THEN OF RECORD, WHERE YOU STILL LIVE; THAT THE CHECK
WAS NEGOTIATED IN DUE COURSE AND PAID BY THE TREASURER OF THE UNITED
STATES; AND THAT YOUR CLAIM THEREFOR WAS NOT PRESENTED TO OUR OFFICE
UNTIL CLOSE TO EIGHT YEARS AFTER THE DATE OF ISSUANCE THEREOF, YOUR
CLAIM IS CLEARLY BARRED BY THE MANDATORY PROVISIONS OF SECTION 2 OF THE
ACT OF JUNE 22, 1926, WHICH WE HAVE NO AUTHORITY TO WAIVE, AND THE PRIOR
ACTION DISALLOWING YOUR CLAIM MUST BE SUSTAINED.
B-129334, OCT. 12, 1956
TO LIEUTENANT COLONEL J. L. RYAN, FC, DEPARTMENT OF THE ARMY:
BY INDORSEMENT OF SEPTEMBER 24, 1956, THE CHIEF OF FINANCE,
DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JULY 9, 1956,
SUBMITTING FOR ADVANCE DECISION A VOUCHER IN FAVOR OF CAPTAIN HERBERT W.
HAYES, JR., FOR PER DIEM AT THE RATE OF $6 PER DAY FOR THE PERIOD OF
DUTY PERFORMED BY HIM AT FORT GEORGE G. MEADE, MARYLAND, DURING THE
PERIOD JUNE 23 TO JULY 9, 1956.
TRAVEL ORDERS OF MAY 29, 1956, DIRECTED CAPTAIN HAYES TO PROCEED AND
REPORT TO THE CAMP COMMANDER, ROTC SUMMER CAMP, FORT GEORGE G. MEADE,
MARYLAND, IN CONNECTION WITH ROTC AFFAIRS, UPON COMPLETION OF WHICH HE
WAS TO RETURN TO HIS PROPER STATION. IT WAS STATED IN SUCH ORDERS THAT
THE DIRECTED DUTY WAS OF A TYPE CONTEMPLATED BY PARAGRAPH 4201-6, JOINT
TRAVEL REGULATIONS, AND THAT UNDER THE PROVISIONS OF ARMY REGULATIONS
35-3080 PER DIEM WAS AUTHORIZED ONLY FOR THE ADVANCE AND CRITIQUE PHASE
OF THE OPERATION. THE PERIOD FOR WHICH PER DIEM IS CLAIMED FOLLOWED THE
ADVANCE PLANNING PHASE. APPARENTLY BOTH GOVERNMENT QUARTERS AND MESS
WERE AVAILABLE FOR ALL PERSONNEL, BUT THE OFFICER CERTIFIES THAT HE DID
NOT UTILIZE THE MESS. THE COMMANDING OFFICER AT FORT MEADE, PURSUANT TO
PARAGRAPH 5C (2) (A), ARMY REGULATIONS 35-3080, MAY 15, 1956, HAS
CERTIFIED THAT ALL OFFICERS AND ENLISTED MEN ON TEMPORARY DUTY AT THAT
STATION IN SUPPORT OF ROTC WERE AUTHORIZED TO BE QUARTERED SEPARATELY
FROM OTHER PERSONS PARTICIPATING IN THE ROTC SUMMER CAMP AND ACTUALLY
WERE SO QUARTERED.
PARAGRAPH 4201-6, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER DIEM
TO MEMBERS WHILE PARTICIPATING IN CERTAIN ACTIVITIES, INCLUDING TRAINING
ENCAMPMENTS FOR ROTC STUDENTS, WHEN BOTH RATIONS IN KIND AND QUARTERS
ARE AVAILABLE, EXCEPT WHEN PARTICIPATION IN SUCH DUTY INVOLVES TEMPORARY
DUTY AT AN INSTALLATION OF THE UNIFORMED SERVICES AND PER DIEM IS
AUTHORIZED IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SECRETARY
CONCERNED. PARAGRAPH 1, ARMY REGULATIONS 35-3080, MAY 15, 1956, STATES
THAT SUCH ACTIVITIES ARE DESIGNED FOR THE PRIMARY PURPOSE OF TRAINING
PERSONNEL UNDER COMBAT CONDITIONS AND PERSONS SO ENGAGED SHOULD BE
PROVIDED WITH SUCH QUARTERS AND MESS AS WOULD BE AVAILABLE UNDER COMBAT
CONDITIONS, AND THAT, SINCE QUARTERS AND SUBSISTENCE ARE FURNISHED, PER
DIEM ALLOWANCES ARE NOT PAYABLE, EXCEPT UNDER CERTAIN CONDITIONS SET
FORTH IN SUCH REGULATIONS. PARAGRAPH 5C (1) (A) PROVIDES THAT THE PER
DIEM PRESCRIBED FOR ORDINARY TEMPORARY DUTY IS PAYABLE TO A MEMBER
PERFORMING TEMPORARY DUTY OF THE TYPE CONTEMPLATED IN PARAGRAPH 1 WHEN
SUCH TEMPORARY DUTY IS PERFORMED AT AN INSTALLATION OF THE UNIFORMED
SERVICES AND THE MEMBER IS AUTHORIZED TO BE QUARTERED SEPARATELY FROM
THE MEMBERS PARTICIPATING IN THE EXERCISE OR TRAINING ENCAMPMENT FOR
ROTC STUDENTS.
WHILE PARAGRAPH 4201, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF PER
DIEM FOR FIELD DUTY, ENCAMPMENTS FOR ROTC STUDENTS, OR OTHER SIMILAR
ACTIVITIES, WHERE BOTH RATIONS IN KIND AND QUARTERS ARE FURNISHED, IT
APPARENTLY WAS CONTEMPLATED THAT IF SUCH ACTIVITIES ARE CONDUCTED AT AN
INSTALLATION OF THE UNIFORMED SERVICES UNDER CIRCUMSTANCES WHERE THE
PERSONS CONCERNED WOULD HAVE TO MEET THE SAME LIVING EXPENSES AS
CONFRONT OTHER PERSONNEL ON ORDINARY TEMPORARY DUTY AT THAT PLACE, PER
DIEM IS PAYABLE IF AUTHORIZED UNDER THE REGULATIONS ISSUED BY THE
SECRETARY CONCERNED.
THE ORDERS OF MAY 29, 1956, APPEAR TO HAVE BEEN ISSUED WITHOUT
KNOWLEDGE OF THE CONTENTS OF ARMY REGULATIONS 35-3080, DATED MAY 15,
1956. WHILE FIRST INDORSEMENT OF AUGUST 30, 1956, FROM HEADQUARTERS
SECOND ARMY, FORT MEADE, STATES THAT THE REGULATIONS WERE PUBLISHED
SUBSEQUENT TO THE ISSUANCE OF THE TRAVEL ORDERS, IT IS ASSUMED THAT THE
INDORSEMENT REFERS TO THE TIME OF RECEIPT OF THE REGULATIONS, RATHER
THAN THE DATE OF PUBLICATION, SINCE THEY ACTUALLY WERE PUBLISHED ON MAY
15, 1956, PRIOR TO THE ISSUANCE OF THE TRAVEL ORDERS. SINCE THE
REGULATIONS WERE IN EFFECT DURING THE PERIOD INVOLVED, THEY ARE
APPLICABLE IN DETERMINING THE OFFICER'S RIGHTS IN THE PREMISES.
IT APPEARS THAT CAPTAIN HAYES COULD HAVE SECURED HIS MEALS AT THE
FIELD RATION RATE BY UTILIZING THE MESS PROVIDED THE ROTC STUDENTS AND
STILL WOULD HAVE BEEN ENTITLED TO PER DIEM UNDER ARMY REGULATIONS
35-3080. WHILE IT MAY BE DOUBTFUL THAT PARAGRAPH 4201-6 OF THE JOINT
TRAVEL REGULATIONS CONTEMPLATES THE PAYMENT OF A PER DIEM OF $6 IF MEALS
ARE PROCURED AT THE FIELD RATION RATE, MERELY BECAUSE A MEMBER IS
ALLOWED TO OCCUPY DIFFERENT QUARTERS THAN ARE PROVIDED FOR THE ROTC
STUDENTS, SINCE THIS OFFICER HAS CERTIFIED THAT HE DID NOT UTILIZE
GOVERNMENT MESS, IT APPEARS THAT HIS EXPENSES WERE THE SAME AS OTHER
OFFICERS ON ORDINARY TEMPORARY DUTY AT FORT MEADE WHO HAD NO CONNECTION
WITH THE ROTC CAMP, AND HE IS ENTITLED TO THE PER DIEM PRESCRIBED IN
PARAGRAPH 4205-5C (2) OF THE JOINT TRAVEL REGULATIONS.
ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-129350, OCT. 12, 1956
TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, REQUESTING A
DECISION AS TO WHETHER SUPPLY CONTRACT NO. GS-00S-2935, WITH RUSSELL
ERNEST BAUM, INC., PHILADELPHIA, PENNSYLVANIA, FOR FURNISHING CERTAIN
OFFICE EQUIPMENT LISTED IN THE FEDERAL SUPPLY SCHEDULE FOR THE YEAR
ENDING JUNE 30, 1957, MAY BE AMENDED AS RECOMMENDED BY THE BOARD OF
REVIEW OF YOUR ADMINISTRATION.
THE FACTS AS FOUND BY THE BOARD OF REVIEW ARE THAT FOLLOWING RECEIPT
OF AWARD OF THE CONTRACT THE CONTRACTOR ALLEGED THAT A MISTAKE HAD BEEN
MADE IN THAT PRICE LIST ACCEPTED BY THE CONTRACTING OFFICER WAS THE
PRICE LIST APPLICABLE TO CONTRACT GS-03S-17100 FOR THE PRECEDING YEAR
CLOSING JUNE 30, 1956, AS INDICATED BY THE LEGEND PRINTED THEREON,
WHEREAS A NEW AND DIFFERENT PRICE LIST HAD BEEN SPECIALLY PRINTED AND
SUBMITTED WITH ITS BID FOR THE YEAR ENDING JUNE 30, 1957, WHICH DID NOT
BEAR SUCH A LEGEND AS THE CONTRACT NUMBER TO BE ASSIGNED WAS NOT KNOWN.
VARIOUS DISCREPANCIES BETWEEN THE TWO PRICE LISTS WERE CALLED TO THE
ATTENTION OF THE CONTRACTING OFFICER WITH THE REQUEST THAT THE PROPER
LIST BE SUBSTITUTED FOR THE ONE ACCEPTED. THIS REQUEST WAS DENIED BY
THE CONTRACTING OFFICER ON THE GROUND THAT THE LIST ACCEPTED WAS THE
LIST SUBMITTED; THAT IT WAS NOT UNUSUAL FOR CONTRACTORS TO RESUBMIT
LISTS ON THIS SCHEDULE; THAT THEREFORE NO QUESTION EXISTED AT THE TIME
THE AWARD WAS MADE AND, CONSEQUENTLY, THERE WAS NO AUTHORITY TO ALLOW
THE SUBMISSION OF A NEW LIST. THE CONTRACTOR THEREAFTER FILED ITS
APPEAL PURSUANT TO THE PROVISIONS OF THE STANDARD "DISPUTES" CLAUSE
CONTAINED IN THE CONTRACT, WHICH WAS DULY HEARD AND CONSIDERED BY THE
BOARD OF REVIEW.
AT THE HEARING ON THE APPEAL THE APPELLANT ADVANCED SEVERAL
CONTENTIONS, THE PRIMARY ONE BEING THAT THE SAME PROCEDURE EMPLOYED BY
IT FOR AT LEAST THE LAST NINE YEARS IN SUBMITTING BIDS ON THIS EQUIPMENT
HAD BEEN FOLLOWED IN THIS INSTANCE AND THAT NO MISTAKE HAD BEEN MADE BY
IT IN THE SUBMISSION OF THE PRICE LIST; THAT IS, THAT A SPECIALLY
PRINTED PRICE LIST HAD BEEN SUBMITTED, AND NOT THE ONE ACCEPTED BY THE
FEDERAL SUPPLY SERVICE. ON THE OTHER HAND, THE FEDERAL SUPPLY SERVICE
CONTENDED THAT THE HANDLING OF BIDS AND ACCOMPANYING DOCUMENTS IN ITS
OFFICE HAD BEEN SUCH AS TO PRECLUDE THE POSSIBILITY OF MISHANDLING OF
THE PRICE LISTS ACCOMPANYING THE APPELLANT'S BID; THAT THE APPELLANT
DID SEND IN THE PRICE LIST FOR THE PRIOR YEAR WHICH WAS NOT REGARDED AS
UNUSUAL AS MANY BIDDERS UNDER THIS SAME SCHEDULE FOLLOWED THE SAME
PRACTICE. FOLLOWING EXAMINATION AND CONSIDERATION OF THE EVIDENCE
PRESENTED BY THE APPELLANT AND THE APPLICABLE FILES OF THE FEDERAL
SUPPLY SERVICE, THE BOARD FOUND THAT THE APPELLANT INTENDED TO SUBMIT
THE SPECIALLY PRINTED PRICE LIST WITH PRICES CORRESPONDING TO ITS
COMMERCIAL PRICE LIST; THAT A MISTAKE HAD BEEN MADE IN THE HANDLING OF
THE SPECIALLY PRINTED PRICE LIST; AND THAT THE WEIGHT OF THE EVIDENCE,
WHICH WAS CONTRADICTORY AND NECESSARILY INCONCLUSIVE, FAVORED THE
POSITION TAKEN BY THE FEDERAL SUPPLY SERVICE. THE BOARD CONCLUDED THAT
THE MISTAKE WAS UNILATERAL IN CHARACTER AND THAT IT WAS ATTRIBUTABLE TO
THE APPELLANT.
A FURTHER CONTENTION PRESENTED BY THE APPELLANT BEFORE THE BOARD
RELATED TO THE APPARENT CONFLICT BETWEEN THE ACCEPTED PRICE LIST AND THE
INFORMATION FURNISHED IN RESPONSE TO A REQUIREMENT IN THE BID INVITATION
FOR THE SUBMISSION OF REPLIES TO THE QUESTIONS LISTED IN PARAGRAPH 3,
STATEMENT OF PRICE SCHEDULE, OF THE SPECIAL PROVISIONS OF THE SCHEDULE.
THE APPELLANT URGED THAT THE CONTRACTING OFFICER SHOULD HAVE NOTICED
THIS CONFLICT AND REQUESTED CLARIFICATION IN WHICH EVENT THE MISTAKE
MADE COULD HAVE BEEN CORRECTED BEFORE AWARD.
PARAGRAPH 3 OF THE SPECIAL PROVISIONS PROVIDED, AS FOLLOWS:
"3. STATEMENT OF PRICE SCHEDULE.--- OFFEROR SHALL SUBMIT WITH HIS
OFFER, AS A SEPARATE ATTACHMENT, THE FOLLOWING OR EQUIVALENT
INFORMATION:
"/A) COPY OF COMMERCIAL PRICE LIST.
(B) DISCOUNT THEREFROM OFFERED THE GOVERNMENT.
(C) THE HIGHEST DISCOUNT ACCORDED TO HIS MOST FAVORED CUSTOMER OTHER
THAN THE GOVERNMENT.
(D) DISCOUNTS EXTENDED TO SELLERS SUCH AS DISTRIBUTORS, WHOLESALERS,
DEALERS, ETC.
"THE GOVERNMENT WILL KEEP ALL SUCH INFORMATION IN STRICT CONFIDENCE.'
IN RESPONSE TO QUESTION 3 (A) THE APPELLANT HAD INSERTED "/SEE
ATTACHED).' THE ATTACHMENT CONSISTED OF A FACE SHEET AND A COPY OF THE
APPELLANT'S COMMERCIAL PRICE LIST DATED NOVEMBER 1, 1955. THE FOLLOWING
ANSWERS TO QUESTIONS 3 (B), (C) AND (D) WERE TYPED ON THE FACE SHEET:
"/B) .... 2 PERCENT - 30 DAYS AFTER DELIVERY FREIGHT PREPAID WITHIN
LIMITS OF CONTINENTAL UNITED STATES
"/C) .... NO SPECIAL DISCOUNTS TO ANYONE
"/D) .... NO DEALERS. WE ARE SOLE DISTRIBUTOR FOR FACTORY (LIBERTY
FOLDER CO., SIDNEY, OHIO) OWNED BY US ENTIRELY"
IT APPEARS TO BE UNCONTROVERTED THAT THE PRICES SET OUT IN THE
APPELLANT'S COMMERCIAL PRICE LIST WERE FROM 8 TO 13 PERCENT HIGHER THAN
THE PRICES IN THE ACCEPTED PRICE LIST, AND THAT THE APPELLANT INTENDED
TO OFFER THE GOVERNMENT--- AS INDICATED BY ITS ANSWER TO QUESTION 3 (B),
QUOTED ABOVE--- A DISCOUNT FROM ITS COMMERCIAL PRICE LIST OF 2 PERCENT -
30 DAYS AFTER DELIVERY FREIGHT PREPAID WITHIN THE CONTINENTAL LIMITS OF
THE UNITED STATES, AS COMPARED WITH A DISCOUNT OF 3 PERCENT - 20 DAYS
STATED ON THE ACCEPTED PRICE LIST. THE APPELLANT ARGUED THAT HAD IT
INTENDED TO OFFER THE GOVERNMENT A REDUCTION IN THE FORM OF A SPECIAL
TRADE DISCOUNT OF FROM 8 TO 13 PERCENT IT WAS ONLY REASONABLE TO ASSUME
THAT SUCH INTENTION WOULD HAVE BEEN INDICATED IN ITS RESPONSE TO
QUESTION 3 (B). THERE WAS NO DIFFERENCE BETWEEN THE PRICES LISTED IN
THE APPELLANT'S COMMERCIAL PRICE LIST AND THE PRICES LISTED IN THE PRICE
LIST WHICH THE APPELLANT REPRESENTED WAS SPECIALLY PRINTED AND SUBMITTED
FOR THE INVITATION, AND THE DISCOUNT TERMS INDICATED FOR THESE TWO LISTS
WERE IDENTICAL.
IT ALSO APPEARS TO BE CONCLUDED THAT THE OBVIOUS DISCREPANCIES
BETWEEN THE DATA ON THE ATTACHMENT FURNISHED BY THE APPELLANT AND THE
ACCEPTED PRICE LIST WERE KNOWN TO THE FEDERAL SUPPLY SERVICE PRIOR TO
AWARD, AS EVIDENCED BY A PENCILED NOTATION--- "NOT CORRECT. SEE GOV-T
PRICES 3 PERCENT 30 DAYS PLUS SUBSTANTIAL PRICE REDUCTION"--- WHICH HAD
BEEN PLACED ON THE ATTACHMENT. THE BOARD WAS OF THE OPINION THAT THE
DISCREPANCIES WERE OF SUCH SUBSTANTIAL CHARACTER THAT THE CONTRACTING
OFFICER SHOULD HAVE REQUESTED A CLARIFICATION; THAT HAD HE DONE SO THE
MISTAKE IN THE SUBMISSION OF THE PRICE LIST WOULD HAVE BEEN DISCOVERED
AND A CORRECTION UNDOUBTEDLY COULD HAVE BEEN EFFECTED PRIOR TO AWARD OF
THE CONTRACT. IN VIEW THEREOF, IT WAS THE BOARD'S RECOMMENDATION, WHICH
YOU HAVE APPROVED,"THAT CONSIDERATION SHOULD BE GIVEN TO AMENDING THE
CONTRACT, INSOFAR AS IS STILL EXECUTORY, TO PROVIDE FOR THE SUBSTITUTION
OF THE INTENDED PRICE LIST FOR THAT ACCEPTED BY THE FEDERAL SUPPLY
SERVICE.' THE BOARD RECOGNIZED, HOWEVER, THAT UNDER THE ESTABLISHED
PROCEDURE APPLICABLE TO SUCH CASES THE MATTER SHOULD BE SUBMITTED WITH
APPROPRIATE RECOMMENDATIONS TO THE COMPTROLLER GENERAL FOR
CONSIDERATION.
THE BOARD'S FINDINGS OF FACT PRESENT A PLAIN CASE OF MISTAKE IN BID
ALLEGED AFTER AWARD. SINCE WE AGREE THAT THE CONTRACTING OFFICER WAS ON
NOTICE OF FACTS CLEARLY INDICATING THE PROBABILITY OF SOME MISTAKE, WE
AGREE WITH THE BOARD'S CONCLUSION THAT THE AWARD WAS ERRONEOUSLY MADE.
IT FURTHER APPEARING THAT THE INTENDED BID--- AS SET OUT IN THE NEWLY
PRINTED SCHEDULE--- IS FULLY ESTABLISHED, WE MAKE NO OBJECTION TO
RETROACTIVE AMENDMENT OF THE CONTRACT TO INCORPORATE THE INTENDED PRICE
SCHEDULE.
B-129362, OCT. 12, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR ALLEGED BY MR. J. C. HUNGERFORD, RICHMOND,
VIRGINIA, TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO.
DA-44-035-AII-227 WAS AWARDED.
THE PURCHASING AND CONTRACTING BRANCH, CAMP A. P. HILL, VIRGINIA, BY
INVITATION NO. 44-035-16-56, REQUESTED BIDS--- TO BE OPENED AT 9:00
A.M. ON JUNE 29, 1956--- FOR FURNISHING LABOR AND MATERIALS AND
PERFORMING ALL WORK REQUIRED FOR THE EXTERIOR PAINTING OF 31 BUILDINGS,
INCLUDING METAL ROOFS, AT THE CAMP. IN RESPONSE MR. J. C. HUNGERFORD
SUBMITTED A BID DATED JUNE 27, 1956, OFFERING TO PERFORM THE WORK FOR
THE LUMP SUM OF $8,146. THE FOUR OTHER BIDS ON THE JOB RANGED FROM
$9,850 TO $17,820.
IN HIS REPORT DATED AUGUST 2, 1956, THE CONTRACTING OFFICER STATES
THAT AT APPROXIMATELY 10:30 A.M. ON JUNE 29, 1956, THE DATE OF THE BID
OPENING, HE MADE A PERSONAL TELEPHONE CALL TO MR. HUNGERFORD REQUESTING
INFORMATION AS TO THE NUMBER OF BUILDINGS ON WHICH HIS BID WAS BASED;
THAT MR. HUNGERFORD REPLIED HE HAD BID ON 31 BUILDINGS TO BE PAINTED AND
THAT HE HAD INSPECTED THE BUILDINGS BEFORE COMPUTING HIS BID; AND THAT
THE BID OF MR. HUNGERFORD WAS ACCEPTED ON JUNE 29, 1956. THE
CONTRACTING OFFICER ALSO STATED THAT ON JULY 18, 1956, MR. HUNGERFORD
VISITED HIS OFFICE ALLEGING THAT AN ERROR HAD BEEN MADE IN HIS BID IN
THAT HE HAD FAILED TO INCLUDE ON THE SHEET SUMMARIZING THE VARIOUS
ESTIMATE SHEETS, THE CHARGES FOR PAINTING 10 OF THE 31 BUILDINGS
APPEARING ON ONE OF FOUR ESTIMATE SHEETS WHICH HE HAD PREPARED FROM HIS
INSPECTION OF THE BUILDINGS.
BY CONFIRMING LETTERS DATED JULY 25 AND 26, 1956, MR. HUNGERFORD
REQUESTED THAT THE CONTRACT PRICE OF THE JOB BE INCREASED BY $2,389.30
TO $10,535.30 TO COVER THE OMITTED PAINTING WORK. IN HIS LETTER OF JULY
26, 1956, MR. HUNGERFORD STATED THAT, PRIOR TO SUBMITTING HIS BID, HE
VISITED THE JOB SITE TO MEASURE EACH OF THE BUILDINGS TO BE PAINTED;
THAT DURING THE PROCESS OF MEASURING THESE BUILDINGS, FOUR SHEETS OF A
LEGAL PAD WERE USED AND THAT AS EACH SHEET WAS FILLED, IT WAS SLIPPED
INTO THE BODY OF THE PAD AND A NEW SHEET STARTED; THAT ON RETURN TO HIS
OFFICE FOR THE PRICING OF THE WORK, ONE OF THE SHEETS WAS LEFT IN THE
BODY OF THE PAD AND WAS NOT TAKEN INTO CONSIDERATION IN PRICING THE JOB;
AND THAT THE OMITTED SHEET WAS DISCOVERED WHEN THE LEGAL PAD WAS
USED AGAIN FOR COMPUTING ANOTHER JOB. IN SUPPORT OF HIS ALLEGATION
OF ERROR, MR. HUNGERFORD SUBMITTED THE THREE ESTIMATE SHEETS ON WHICH
HIS BID PRICE OF $8,146 WAS BASED AND THE ESTIMATE SHEET WHICH WAS
OVERLOOKED WHILE PREPARING THE SUMMARY ESTIMATE SHEET. FROM THESE
SHEETS IT APPEARS THAT ONLY THE MOST CURSORY CHECK WOULD HAVE BEEN
REQUIRED TO SEE THAT THE THREE SHEETS USED DID NOT LIST 31 BUILDINGS.
THE PRIMARY QUESTION IS NOT WHETHER MR. HUNGERFORD MADE AN ERROR IN
HIS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE
ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID
SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE
FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120,
163, WHEREIN IT WAS STATED BY THE COURT OF CLAIMS OF THE UNITED STATES
AS FOLLOWS:
"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE
PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM
THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS
PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE
HELD FOR THE RESULTING LOSS.'
IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF MR. HUNGERFORD
WAS DUE SOLELY TO HIS OWN NEGLIGENCE OR OVERSIGHT--- AS ADMITTED BY
HIM--- AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.
SEE GRYMES V. SANDERS ET AL., 93 U.S. 56, 61, WHEREIN THE SUPREME COURT
OF THE UNITED STATES SAID:
"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM
NEGLIGENCE, WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE
PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE
"WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.' "
ANY ERROR THAT WAS MADE IN THE BID OF MR. HUNGERFORD WAS
UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE HIM TO
RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249;
SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; AND THE MASSMAN
CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, CERTIORARI
DENIED, 325 U.S. 866. ALSO, SEE 20 COMP. GEN. 652, AND 26 ID. 415.
AT THE TIME THE BIDS IN THIS CASE WERE OPENED, THERE WAS SOME DOUBT
ON THE PART OF THE CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE BID
SUBMITTED BY MR. HUNGERFORD AND HE WAS REQUESTED BY TELEPHONE TO VERIFY
HIS BID. AFTER AN UNEQUIVOCAL VERIFICATION OF THE BID, THE CONTRACTING
OFFICER WAS JUSTIFIED IN AWARDING THE CONTRACT ON MR. HUNGERFORD'S BID
AS THE LOWEST RECEIVED. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89
N.J.L. 1, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 59 TEX. CIV.
APP. 352, 125 S.W. 942. THE FACT THAT MR. HUNGERFORD'S BID WAS NOT
ACCEPTED UNTIL HE WAS OFFERED AN OPPORTUNITY TO, AND DID, VERIFY HIS BID
PRICE, PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED
BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF MR. HUNGERFORD.
SEE 27 COMP. GEN. 17. SO FAR AS THE PRESENT RECORD SHOWS, THE
ACCEPTANCE OF MR. HUNGERFORD'S BID WAS IN GOOD FAITH--- NO ERROR HAVING
BEEN ALLEGED UNTIL AFTER AWARD--- AND IN SUCH CIRCUMSTANCES 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; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES,
259 U.S. 75.
ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE
PRICE SPECIFIED IN CONTRACT NO. DA-44-035-AII-227.
THE PAPERS, WITH THE EXCEPTION OF THE ABSTRACT OF BIDS AND THE
CONTRACTING OFFICER'S STATEMENT DATED AUGUST 2, 1956, ARE RETURNED.
B-124656, OCT. 11, 1956
TO GULF, MOBILE AND OHIO RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, UNDER FILE GOVT. 52180-CL 26, FOR
REVIEW OF OUR SETTLEMENT CERTIFICATE DATED AUGUST 16, 1954, WHICH
DISALLOWED YOUR CLAIM PER BILL NO. 52180-A FOR $51.90, ALLEGED TO BE THE
BALANCE DUE ON YOUR BILL NO. 52180 IN CONNECTION WITH BILL OF LADING NO.
N 850649. THAT BILL OF LADING COVERED A SHIPMENT DESCRIBED THEREON AS
"12 BOXES ELECTRICAL SCIENTIFIC INSTRUMENTS, N.O.I.B.N., GYRO COMPASS
AND PARTS," WEIGHING 2,646 POUNDS, TRANSPORTED FROM DETROIT, MICHIGAN,
TO SLIDELL, LOUISIANA, ON MARCH 11, 1943.
FOR THIS SERVICE YOU CLAIMED ORIGINALLY, AND WERE PAID ON YOUR BILL
NO. 52180, THE AMOUNT OF $103.98, COMPUTED ON THE BASIS OF A WEIGHT OF
2,646 POUNDS AT A DOUBLE FIRST-CLASS RATE OF $5.51 PER HUNDRED POUNDS,
REDUCED TO $3.92968 BY DEDUCTIONS FOR LAND GRANT. IN THE AUDIT OF THE
PAYMENT VOUCHER OUR TRANSPORTATION DIVISION FOUND THAT THE ALLOWABLE
CHARGES SHOULD HAVE BEEN $52.08, COMPUTED ON THE BASIS OF A
LESS-THAN-CARLOAD FIRST-CLASS RATING NAMED IN ITEM 15895 OF CONSOLIDATED
FREIGHT CLASSIFICATION NO. 15 FOR "ELECTRICAL APPLIANCES OR INSTRUMENTS,
NOIBN.'
IN REQUESTING REVIEW OF THE MATTER YOU TAKE THE POSITION THAT THE
SHIPMENT SHOULD BE RATED AS SCIENTIFIC INSTRUMENTS AND NOT AS ELECTRICAL
INSTRUMENTS. YOU STATE THAT THE "GYRO COMPASS, IS IN FACT A GYRO-STATIC
COMPASS," AND "IN NO SENSE CAN THIS ARTICLE BE CONSTRUED MERELY AS AN
ELECTRICAL INSTRUMENT.'
THE BILL OF LADING INDICATES THAT THE SHIPMENT IS A MARK XIV, MOD.
1, GYRO-COMPASS EQUIPMENT FOR XN 91. THE INSTRUCTION BOOK FOR THIS
PARTICULAR TYPE OF GYRO-COMPASS, PREPARED BY THE SPERRY GYROSCOPE
COMPANY, INDICATES THAT IT CONSISTS OF THE FOLLOWING GROUPS OF UNITS:
(A) MASTER COMPASS, BY WHICH THE TRUE NORTH READING IS GYROSCOPICALLY
DISCOVERED AND MAINTAINED; (B) REPEATER COMPASSES, WHICH RECEIVE AND
INDICATE THE TRUE HEADING TRANSMITTED ELECTRICALLY FROM THE MASTER
COMPASS; (C) COURSE RECORDER, WHICH ALSO RECEIVES THE TRUE HEADING
ELECTRICALLY FROM THE MASTER COMPASS, AND MAKES A CONTINUOUS RECORD OF
THE HEADING ON A MOVING STRIP OF PAPER; (D) CONTROL PANEL, FOR
GOVERNING THE ELECTRICAL OPERATION OF THE SYSTEM AND FOR ASCERTAINING
THE RUNNING CONDITION BY MEANS OF A SUITABLE METER; (E) VOLTAGE
REGULATOR, TO MAINTAIN CONSTANT THE SHIP'S SUPPLY TO THE
MOTOR-GENERATOR; (F) ALARM UNIT, FOR INDICATING FAILURE OF THE SHIP'S
SUPPLY; (G) AMPLIFIER PANEL, FOR CONTROLLING THE FOLLOW-UP SYSTEM; AND
(H) MOTOR-GENERATOR, WHICH CONVERTS THE SHIP'S D-C SUPPLY TO A-C FOR
ENERGIZING THE COMPASS EQUIPMENT. IT IS ALSO STATED IN THE INSTRUCTION
BOOK THAT "THE COMPASS GYRO WHEEL IS DRIVEN BY A 3-PHASE INDUCTION
MOTOR; " THAT THE ,ROTOR OF THE INDUCTION MOTOR IS A PART OF THE GYRO
WHEEL, WHILE THE STATOR IS ATTACHED TO THE GYRO CASE; " AND THAT "THIS
MOTOR IS ENERGIZED BY A 3-PHASE, 210 CYCLE, 50 VOLT A-C SUPPLY.' IT IS
APPARENT FROM THE ABOVE INFORMATION THAT THE MARK XIV CYRO-COMPASS IS
COMPOSED OF NUMEROUS PARTS WHICH MUST BE OPERATED BY AN ELECTRIC
CURRENT.
THE NAVY DEPARTMENT ADVISED OUR OFFICE IN AUGUST 1950, THAT ITS
TRANSPORTATION DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, DETERMINED
THAT THE PROPER CLASSIFICATION DESCRIPTION FOR GYRO-COMPASS WAS
ELECTRICAL INSTRUMENTS NOIBN, AS DESCRIBED IN ITEM 15895 OF THE
CONSOLIDATED FREIGHT CLASSIFICATION. THE DEPARTMENT REPORTED LATER TO
AN INTERESTED CARRIER THAT A SPERRY GYRO-COMPASS IS ENERGIZED BY
ELECTRICITY AND WITHOUT THIS FORCE WOULD BE INERT AND USELESS. IN THAT
REPORT IT WAS STATED THAT THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
REQUESTED THE NAVY DEPARTMENT TO SETTLE THEIR ACCOUNT INVOLVING
SHIPMENTS OF GYRO-COMPASSES, ON THE BASIS OF "ELECTRICAL INSTRUMENTS,
I," AND THAT "THE SOUTHERN WEIGHING AND INSPECTION BUREAU TAKES THE
POSITION THAT THIS SHIPMENT SHOULD BE RATED AS ELECTRICAL INSTRUMENTS,
NOI, AS DESCRIBED IN ITEM NUMBER 15895 OF CONSOLIDATED FREIGHT
CLASSIFICATION.'
IT IS FUNDAMENTAL THAT ARTICLES SHIPPED ARE TO BE CLASSIFIED
ACCORDING TO THEIR ESSENTIAL CHARACTER AT THE TIME OF SHIPMENT. THE
QUESTION OF THE ESSENTIAL CHARACTER OF THE PROPERTY SHIPPED IS ONE OF
FACT PECULIARLY WITHIN THE KNOWLEDGE OF THE ADMINISTRATIVE OFFICE
CONCERNED, WHOSE DETERMINATION IS CONTROLLING IN THE ABSENCE, AS HERE,
OF COMPETENT EVIDENCE TO REFUTE THE CORRECTNESS OF THAT DETERMINATION,
AS SUPPORTED BY THE POSITION OF THE SOUTHERN WEIGHING AND INSPECTION
BUREAU. SEE 16 COMP. GEN. 325. SINCE THE CLASSIFICATION BASIS APPLIED
IN THIS INSTANCE WAS CONSISTENT WITH THIS PRINCIPLE, IT IS SUSTAINED.
OUR TRANSPORTATION DIVISION HAS NOW DETERMINED THAT A
LESS-THAN-CARLOAD CLASS-70 RATING, NAMED IN ITEM 6970 OF CENTRAL FREIGHT
ASSOCIATION TARIFF NO. 604, AGENT B. T. JONES' I.C.S. NO. 3635,
PUBLISHING EXCEPTIONS TO THE SOUTHERN CLASSIFICATION, FOR "ELECTRICAL
APPLIANCES OR INSTRUMENTS, NOIBN," PROVIDES THE PROPER BASIS FOR THE
ALLOWABLE CHARGES. THE APPLICABLE RATE ON THIS BASIS IS $1.93 PER
HUNDRED POUNDS, REDUCED BY LAND-GRANT DEDUCTIONS TO $1.37646 PER HUNDRED
POUNDS, MAKING THE FREIGHT CHARGES ON THIS SHIPMENT $36.42. THIS
RESULTS IN AN ADDITIONAL OVERPAYMENT OF $15.66, WHICH SHOULD BE REFUNDED
WITHIN A REASONABLE TIME TO PRECLUDE ADJUSTMENT BY SETOFF IN THE
B-128454, OCT. 11, 1956
TO LYNCOACH AND TRUCK COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1956, PROTESTING
THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS
NO. ORD-20-113-56-1157, ISSUED BY THE DETROIT ORDNANCE DISTRICT,
DEPARTMENT OF THE ARMY.
THE INVITATION REQUESTED BIDS TO BE OPENED ON MAY 17, 1956, FOR
FURNISHING 382 TRAILERS, CARGO, 3/4 TON, M101 WITH EQUIPMENT, WITH A
DESIRED DELIVERY SCHEDULE OF 32 TRAILERS DURING THE MONTH OF OCTOBER
1956, AND 50 PER MONTH THEREAFTER THROUGH MAY 1957. ARTICLE 7 OF THE
GENERAL PROVISIONS OF THE INVITATION ENTITLED "PAYMENTS" PROVIDED AS
FOLLOWS:
"THE CONTRACTOR SHALL BE PAID, UPON THE SUBMISSION OF PROPERLY
CERTIFIED INVOICES OR VOUCHERS, THE PRICES STIPULATED HEREIN FOR
SUPPLIES DELIVERED AND ACCEPTED OR SERVICES RENDERED AND ACCEPTED, LESS
DEDUCTIONS, IF ANY, AS HEREIN PROVIDED. UNLESS OTHERWISE SPECIFIED,
PAYMENT WILL BE MADE ON PARTIAL DELIVERIES ACCEPTED BY THE GOVERNMENT
WHEN THE AMOUNT DUE ON SUCH DELIVERIES SO WARRANTS; OR, WHEN REQUESTED
BY THE CONTRACTOR, PAYMENT FOR ACCEPTED PARTIAL DELIVERIES SHALL BE MADE
WHENEVER SUCH PAYMENT WOULD EQUAL OR EXCEED EITHER $1,000 OR 50 PERCENT
OF THE TOTAL AMOUNT OF THIS CONTRACT.'
THERE WAS NO PROVISION IN THE INVITATION AUTHORIZING PAYMENT ON ANY
BASIS OTHER THAN FOR SUPPLIES DELIVERED AND ACCEPTED BY THE GOVERNMENT
AS PROVIDED IN THE QUOTED ARTICLE.
IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OFFERING TO
FURNISH THE TRAILERS AT A PRICE OF $735.69 EACH, OR A TOTAL OF
$281,033.58, F.O.B. ONEONTA, NEW YORK. THERE WAS INCLUDED IN YOUR BID
THE FOLLOWING STATEMENT: "PARTIAL PAYMENTS OF 75 PERCENT ON ALL
MATERIAL, LABOR AND BURDEN WILL BE REQUIRED ON THIS CONTRACT.' SEVEN
OTHER BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION.
ALTHOUGH YOUR BID WAS THE LOWEST RECEIVED AS TO PRICE, SINCE IT WAS
CONDITIONED ON A METHOD OF PAYMENT NOT PROVIDED FOR IN THE INVITATION,
IT WAS CONSIDERED BY THE CONTRACTING AGENCY AS NOT BEING RESPONSIVE TO
THE TERMS AND CONDITIONS OF THE INVITATION AND WAS REJECTED. THE AWARD
WAS MADE TO THE NEXT-LOWEST BIDDER WHO TOOK NO EXCEPTIONS TO THE TERMS
AND CONDITIONS OF THE INVITATION.
IN YOUR LETTER PROTESTING THE REJECTION OF THE BID IT IS STATED THAT
YOU HAVE INCLUDED THE SAME CLAUSE IN YOUR BIDS FOR THE PAST TEN YEARS
AND, WHEN YOU WERE THE LOW BIDDER, YOU HAVE ALWAYS RECEIVED THE
CONTRACT; AND THAT IF PARTIAL PAYMENTS, PRIOR TO DELIVERY, WERE NOT TO
BE ALLOWED, WHEN THEY HAD BEEN GIVEN SO FREELY IN THE PAST, A PROVISION
SHOULD HAVE BEEN CONTAINED IN THE INVITATION NOTIFYING THE BIDDERS OF
THE CHANGE. IT IS ALSO STATED THAT HAD YOU BEEN ADVISED THAT PARTIAL
PAYMENTS, PRIOR TO DELIVERY, WERE NOT PERMISSIBLE, YOU WOULD NOT HAVE
INSERTED THE CONDITION IN YOUR BID OR, HAD THE BID ALREADY BEEN PLACED,
YOU WOULD HAVE REQUESTED ITS WITHDRAWAL.
IT IS A WELL-ESTABLISHED RULE THAT A PUBLIC OFFICER GIVEN POWER BY
STATUTE TO ENTER INTO A CONTRACT ON BEHALF OF THE GOVERNMENT WITH THE
MOST ADVANTAGEOUS BIDDER, HAS NO POWER TO GRANT THAT BIDDER ANY TERM
MATERIALLY BENEFICIAL TO HIM WHICH WAS NOT ANNOUNCED IN THE INVITATION.
ALTHOUGH THE INVITATION RESERVED TO THE GOVERNMENT THE RIGHT TO WAIVE
ANY MINOR INFORMALITIES OR IRREGULARITIES IN THE BIDS RECEIVED, IT HAS
BEEN HELD THAT THE CONTRACTING OFFICER MAY NOT WAIVE NOR MAY A BIDDER BE
PERMITTED TO WITHDRAW, AFTER THE BID OPENING, A CONDITION OR
QUALIFICATION WHICH IS MATERIAL AND IN ANY WAY AFFECTS THE PRICE,
QUALITY, QUANTITY OR LIMITS THE BIDDER'S LIABILITY IN ANY MANNER. IT
HAS ALSO BEEN HELD THAT A BID CONDITIONED UPON RECEIVING PROGRESS
PAYMENTS, WHEN NOT AUTHORIZED IN THE INVITATION, IS A MATERIAL
QUALIFICATION WHICH MAY NOT BE WAIVED BY THE CONTRACTING OFFICER OR
WHICH MAY NOT BE WITHDRAWN BY A BIDDER AFTER THE BID OPENING.
IN CONNECTION WITH YOUR STATEMENT THAT ALL OF YOUR BIDS FOR THE PAST
TEN YEARS HAVE CONTAINED THE SAME CLAUSE AND YOU HAVE ALWAYS RECEIVED
THE AWARD WHEN YOU WERE THE LOW BIDDER, THE DEPARTMENT OF THE ARMY HAS
REPORTED THAT A REVIEW OF ITS CONTRACTUAL RELATIONSHIPS WITH YOU, AND
YOUR PREDECESSOR, LYNCOACH AND TRUCK DIVISION, GREAT AMERICAN
INDUSTRIES, DISCLOSED THE EXISTENCE OF THE FOLLOWING CONTRACTS AND THE
CIRCUMSTANCES PERTAINING TO THEIR EXECUTION:
(A) DA-20-113-ORD-11797. THIS CONTRACT WAS AWARDED IN JUNE 1952 AS A
RESULT OF AN INVITATION FOR BIDS WHICH PERMITTED ALL BIDDERS TO BID ON
THE BASIS OF PROGRESS PAYMENTS.
(B) DA-20-089-ORD-9398FS. THIS CONTRACT WAS AWARDED IN DECEMBER
1950. THE INVITATION FOR BIDS DID NOT CONTAIN A PROVISION FOR PROGRESS
PAYMENTS. A PROGRESS PAYMENT PROVISION WAS NOT REQUESTED BY ANY BIDDER
AND NO PROVISION FOR PROGRESS PAYMENTS WAS INCLUDED IN THE CONTRACT.
(C) DA-20-089-ORD-15805S. THIS CONTRACT WAS NOT FORMALLY ADVERTISED.
IT WAS AWARDED IN JUNE 1951 ON THE BASIS OF AUTHORITY TO NEGOTIATE.
DURING THE COURSE OF THE NEGOTIATIONS, LYNCOACH AND TRUCK DIVISION
REQUESTED THAT A PROGRESS PAYMENT PROVISION BE INCLUDED IN THE CONTRACT
AND SUCH PROVISION WAS SO INCLUDED.
(D) DA-20-113-ORD-11562. THE INVITATION DID NOT CONTAIN A PROVISION
FOR PROGRESS PAYMENTS BUT YOU CONDITIONED YOUR BID ON RECEIVING PROGRESS
PAYMENTS AND AWARD WAS MADE TO YOU ON THAT BASIS. A SUBSEQUENT REVIEW
BY THE DEPARTMENT OF THE ARMY INSPECTION PERSONNEL INDICATED, HOWEVER,
THAT SUCH ACTION WAS NOT NECESSARILY PREJUDICIAL TO OTHER BIDDERS SINCE
YOUR BID WAS THE ONLY ONE RECEIVED.
THEREFORE, THE ACTION IN THESE CASES MAY NOT BE CONSIDERED AS
PRECEDENTS HERE AND YOU ARE ADVISED THAT THERE IS NO BASIS UPON WHICH WE
WOULD BE WARRANTED IN QUESTIONING THE ACTION TAKEN BY THE DEPARTMENT OF
THE ARMY IN REJECTION YOUR BID AS BEING NON-RESPONSIVE TO THE
INVITATION.
B-128840, OCT. 11, 1956
TO WESTINGHOUSE ELECTRIC CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1956, WITH
ENCLOSURES, RELATING TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR
PROPOSAL FOR REPAIRING FIVE ITEMS OF TRANSFORMERS, ON WHICH NEGOTIATED
CONTRACT NO. AF-30/635/-6689, DATED JUNE 1, 1956, WAS AWARDED BY THE
GRIFFISS AIR FORCE BASE, ROME, NEW YORK. IN CONNECTION WITH THE ALLEGED
ERROR, YOU STATED THAT YOU TRANSPOSED THE FIGURES IN THE UNIT PRICE ON
ITEM 5, IN THAT YOU QUOTED A PRICE OF $124.25 EACH AS TO SUCH ITEM
WHEREAS THE CORRECT PRICE SHOULD HAVE BEEN $214.25 EACH.
BY LETTER OF AUGUST 10, 1956, WE ADVISED YOU THAT THE MATTER WOULD BE
GIVEN CONSIDERATION IF YOU SUBMITTED ADDITIONAL EVIDENCE IN SUPPORT OF
YOUR ALLEGATION OF ERROR, SUCH EVIDENCE TO CONSIST OF YOUR ORIGINAL
WORKSHEET ON WHICH YOU COMPUTED YOUR BID, SWORN TO AS SUCH, AND ANY
OTHER EVIDENCE WHICH YOU MIGHT HAVE TENDING TO ESTABLISH THE ALLEGED
ERROR. YOU WERE FURTHER ADVISED THAT A REPORT OF THE FACTS IN THIS CASE
WAS BEING REQUESTED FROM THE AIR FORCE FINANCE CENTER AT DENVER,
COLORADO.
THERE APPEARS TO HAVE BEEN NO RESPONSE TO THE SUGGESTION CONTAINED IN
OUR LETTER OF AUGUST 10, 1956, THAT YOU SUBMIT TO THIS OFFICE ADDITIONAL
EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR. HOWEVER, A REPORT HAS
BEEN RECEIVED FROM THE AIR FORCE FINANCE CENTER, DATED SEPTEMBER 20,
1956, TRANSMITTING AN ENDORSEMENT DATED SEPTEMBER 12, 1956, FROM THE
CONTRACTING OFFICER, GRIFFISS AIR FORCE BASE, NEW YORK, READING IN PART
AS FOLLOWS:
"2. WESTINGHOUSE ELECTRIC CORPORATION SUBMITTED ITS BID AFTER
PHYSICAL EXAMINATION OF THE TRANSFORMERS BY ITS MAINTENANCE SALES
ENGINEER, MR. A. W. SILL. UPON EXAMINATION OF THE BID, IT WAS FOUND
THAT THE EXTENSION OF THE PRICE ON ITEM 5 CONTAINED AN ERROR. MR. SILL
CORRECTED THE PRICE EXTENSION BUT DID NOT QUESTION THE UNIT PRICE.
"3. THERE WAS NO REASON TO SUSPECT AN ERROR HAD BEEN MADE BY THE
CONTRACTOR IN THE UNIT PRICE QUOTED ON THIS ITEM.'
IT APPEARS THAT YOUR PROPOSAL DATED MAY 4, 1956, WAS THE ONLY ONE
RECEIVED, AND THE CONTRACTING OFFICER WAS THEREFORE IN NO POSITION TO
MAKE ANY COMPARISON OF BIDS. NO GROUNDS ARE FOUND IN THE RECORD FOR
CHARGING THE CONTRACTING OFFICER WITH NOTICE OF POSSIBLE ERROR. INSOFAR
AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID IN THIS CASE WAS
IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD.
ACCORDINGLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING
CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE
UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, 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 YOUR BID, AS ALLEGED, IT
MAY PROPERLY BE ATTRIBUTED SOLELY TO YOUR NEGLIGENCE AND SINCE THE ERROR
HEREIN WAS UNILATERAL, NOT MUTUAL, YOU ARE NOT ENTITLED TO RELIEF. SEE
OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN,
ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.
ACCORDINGLY, THERE IS NO LEGAL BASIS FOR ALLOWING AN ADDITIONAL
AMOUNT OR FOR MODIFICATION OF THE CONTRACT BECAUSE OF THE ALLEGED
MISTAKE IN BID.
B-129162, OCT. 11, 1956
TO MR. OAKLEY O. WARREN:
THERE HAS BEEN FURTHER CONSIDERED YOUR CLAIM FOR COMPENSATION LOST AS
A RESULT OF YOUR REDUCTION, EFFECTIVE MARCH 31, 1950, FROM LEADINGMAN
MACHINIST, $4,576 PER ANNUM, TO MACHINIST, $14 PER DAY, WHILE AN
EMPLOYEE OF THE NAVY DEPARTMENT, NAVAL ORDNANCE PLANT, ALEXANDRIA,
VIRGINIA.
THE REDUCTION OF YOUR GRADE AND COMPENSATION WAS INCIDENT TO THE
DISESTABLISHMENT OF THE NAVAL ORDNANCE PLANT AS A SEPARATE COMMAND. YOU
CONTEND THE PERSONNEL ACTION VIOLATED YOUR RIGHTS UNDER THE VETERANS'
PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 851, ET SEQ.
BY LETTER OF FEBRUARY 28, 1950, THE NAVAL ORDNANCE PLANT ADVISED YOU
OF THE PROPOSED CHANGE IN YOUR GRADE. IN A LETTER DATED MARCH 3, 1950,
TO THE COMMANDING OFFICER, YOU PROTESTED THE CONTEMPLATED ACTION WITHOUT
SUCCESS. EFFECTIVE MARCH 31, 1950, YOU WERE REDUCED IN GRADE AND
COMPENSATION. IN NOVEMBER 1953 YOU APPEALED TO THE CIVIL SERVICE
COMMISSION. THAT APPEAL, HOWEVER, WAS DISMISSED AS NOT HAVING BEEN
TIMELY TAKEN.
FAVORABLE CONSIDERATION BY OUR OFFICE MAY NOT BE GIVEN YOUR CLAIM FOR
COMPENSATION IN THE ABSENCE OF A DETERMINATION BY PROPER AUTHORITY THAT
THE PERSONNEL ACTION INVOLVED WAS IN CONTRAVENTION OF THE VETERANS'
PREFERENCE ACT OF 1944. THE LATTER ACT PROVIDES FOR AN APPEAL FROM AN
ADVERSE ADMINISTRATIVE ACTION TO THE CIVIL SERVICE COMMISSION. IT DOES
NOT PROVIDE FOR AN APPEAL TO THIS OFFICE. IN YOUR CASE THE CIVIL
SERVICE COMMISSION REFUSED TO CONSIDER YOUR APPEAL FOR RESTORATION TO
YOUR POSITION ON THE GROUND THAT IT WAS NOT TIMELY FILED.
B-129282, OCT. 11, 1956
TO MR. RUSSELL W. WINGATE:
YOUR LETTER OF SEPTEMBER 8, 1956, REQUESTS REVIEW OF OUR SETTLEMENT
DATED MAY 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR BACK COMPENSATION
COVERING THE PERIOD OF YOUR ALLEGED IMPROPER SEPARATION FROM THE SERVICE
AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FROM JUNE 30, 1954, TO
JULY 12, 1955.
IT APPEARS THAT ON JUNE 30, 1954, YOU WERE SEPARATED FROM THE SERVICE
PURSUANT TO A REDUCTION-IN-FORCE ACTION, AND YOUR NAME WAS PLACED ON THE
REEMPLOYMENT PRIORITY LIST IN ACCORDANCE WITH APPLICABLE REGULATIONS OF
THE CIVIL SERVICE COMMISSION. AT THE TIME YOU WERE SEPARATED YOU HELD
THE POSITION OF FIREFIGHTER, GRADE CPC-6. SUBSEQUENT TO YOUR REMOVAL
THERE WERE FILLED TWO SUCH PERMANENT POSITIONS ON THE FIREFIGHTER STAFF
BY THE EMPLOYMENT OF EMPLOYEES, EACH WITH LESS RETENTION CREDIT THAN
YOU. YOU APPEALED THIS ACTION BUT RECEIVED NO SATISFACTORY
ADMINISTRATIVE EXPLANATION OF YOUR FAILURE TO RECEIVE A NEW APPOINTMENT.
UPON YOUR APPEAL TO THE CIVIL SERVICE COMMISSION IT RECOMMENDED THAT
YOUR NAME BE RESTORED TO THE REEMPLOYMENT PRIORITY LIST AND REMAIN
THEREON UNTIL YOU HAD ONE YEAR ON THE LIST OR RECEIVED EMPLOYMENT FROM
THE LIST PRIOR TO THAT DATE. IT FURTHER APPEARS THAT YOU WERE
REEMPLOYED EFFECTIVE JULY 12, 1955.
IT IS AN ESTABLISHED RULE, IN THE ABSENCE OF A STATUTE OTHERWISE
PROVIDING, THAT NO COMPENSATION MAY BE PAID FOR WORK DAYS UNLESS ONE
PERFORMS DUTY OR IS IN A LEAVE WITH PAY STATUS. THE ACT OF JUNE 10,
1948, 62 STAT. 354, PROVIDES THAT ANY PERSON REMOVED IN A REDUCTION IN
FORCE WHO, AFTER AN APPEAL TO PROPER AUTHORITY, IS REINSTATED OR
RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR
UNWARRANTED, SHALL BE PAID COMPENSATION FOR THE PERIOD HE RECEIVED NO
COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED.
HOWEVER, A RIGHT TO COMPENSATION, UNDER THAT STATUTE, IS CONTINGENT UPON
WHETHER THE REINSTATEMENT OR RESTORATION TO THE POSITION IN QUESTION IS
ON THE GROUND THAT THE REMOVAL THEREFROM WAS UNJUSTIFIED OR UNWARRANTED.
AS HEREINBEFORE INDICATED, BY LETTER DATED SEPTEMBER 30, 1955, THE
CIVIL SERVICE COMMISSION, IN ACTING ON YOUR APPEAL, RECOMMENDED THAT
YOUR NAME BE RESTORED TO THE REEMPLOYMENT PRIORITY LIST AND REMAIN
THEREON UNTIL YOU HAD ONE YEAR ON THE LIST OR RECEIVED EMPLOYMENT FROM
THE LIST PRIOR TO THAT DATE. THE COMMISSION FURTHER DIRECTED THAT NO
VACANCY IN YOUR FORMER STATION FOR WHICH YOU COULD QUALIFY AND TO WHICH
YOU HAD EMPLOYMENT RIGHTS SHOULD BE FILLED BY THE DEPARTMENT WHILE YOU
WERE ON THE REEMPLOYMENT LIST, UNLESS YOU DECLINED SUCH EMPLOYMENT IN
WRITING. HOWEVER, THE CIVIL SERVICE COMMISSION DID NOT FIND THAT YOUR
REMOVAL WAS UNJUSTIFIED OR UNWARRANTED NOR DID IT DIRECT YOUR
RESTORATION. SINCE YOU WERE NOT RESTORED TO DUTY BECAUSE YOUR REMOVAL
FROM THE SERVICE WAS UNJUSTIFIED OR UNWARRANTED, THERE IS NO AUTHORITY
UNDER THAT LAW FOR ALLOWING YOUR CLAIM AND WE ARE UNAWARE OF ANY OTHER
STATUTE THAT WOULD PERMIT ITS FAVORABLE CONSIDERATION. IN THAT REGARD
WE WOULD LIKE TO POINT OUT THAT THE CIVIL SERVICE COMMISSION AND THE
EMPLOYING AGENCY,
RATHER THAN THE GENERAL ACCOUNTING OFFICE, ARE CHARGED WITH THE DUTY
OF DETERMINING WHETHER REMOVALS ARE UNJUSTIFIED OR UNWARRANTED AND OF
DIRECTING RESTORATIONS.
ACCORDINGLY, OUR SETTLEMENT OF MAY 24, 1956, WAS CORRECT AND UPON
REVIEW IT MUST BE AND IS
B-129292, OCT. 11, 1956
TO S. F. LEADER, DISBURSING OFFICER, U.S. MARINE CORPS:
BY FIRST ENDORSEMENT OF SEPTEMBER 19, 1956, THE COMMANDANT OF THE
MARINE CORPS FORWARDED YOUR LETTER OF SEPTEMBER 11, 1956, SUBMITTING FOR
ADVANCE DECISION A VOUCHER COVERING PAYMENT TO TECHNICAL SERGEANT GEORGE
DECELIS, USMC, OF A DISLOCATION ALLOWANCE IN CONNECTION WITH THE TRAVEL
PERFORMED BY HIS WIFE UNDER THE FOLLOWING CIRCUMSTANCES.
PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 22, 1955, DIRECTED
THE ENLISTED MAN TO PROCEED FROM CAMP PENDLETON, CALIFORNIA, AND REPORT
NOT LATER THAN MIDNIGHT NOVEMBER 1, 1955, TO THE COMMANDING OFFICER,
MARINE BARRACKS, NAVAL STATION, TREASURE ISLAND, SAN FRANCISCO,
CALIFORNIA, FOR FURTHER TRANSFER TO HIS NEW STATION OVERSEAS, 30 DAYS
DELAY EN ROUTE BEING GRANTED. WHILE THE REPORTING DATE WAS EXTENDED TO
NOVEMBER 8, 1955, BY WESTERN UNION MESSAGE, IT IS SHOWN THAT HE REPORTED
ON NOVEMBER 3, 1955. ENDORSEMENT OF NOVEMBER 10, 1955, GRANTED
ADDITIONAL LEAVE FROM NOVEMBER 12 TO 24, 1955. IT IS REPORTED THAT HE
WAS MARRIED ON NOVEMBER 20, 1955, AT SEATTLE, WASHINGTON, AND THAT HIS
WIFE LEFT THAT PLACE TWO DAYS LATER AND ARRIVED AT HIS OVERSEAS STATION
IN HAWAII ON NOVEMBER 29, 1955, THE TRAVEL APPARENTLY HAVING BEEN
PERFORMED WITH THE ENLISTED MAN VIA TRAVIS AIR FORCE BASE, FAIRFIELD,
SUISUN, CALIFORNIA.
PARAGRAPH 9002-I, JOINT TRAVEL REGULATIONS, AUTHORIZES PAYMENT OF A
DISLOCATION ALLOWANCE WHEN DEPENDENTS HAVE COMPLETED TRAVEL IN
CONNECTION WITH A PERMANENT CHANGE OF STATION "IF TRANSPORTATION OF
DEPENDENTS IS AUTHORIZED TO BE FURNISHED OR TRAVEL ALLOWANCES ARE
AUTHORIZED TO BE PAID.' PARAGRAPH 7060-1 OF THE REGULATIONS AUTHORIZES
TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IF THE MARRIAGE DATE
WAS PRIOR TO THE EFFECTIVE DATE OF ORDERS DIRECTING A PERMANENT CHANGE
OF STATION. PARAGRAPH 3003-1B OF THE REGULATIONS PROVIDES THAT WHEN
LEAVE OR DELAY IN REPORTING TO THE NEW STATION IS AUTHORIZED IN THE
BASIC ORDER, THE AMOUNT OF SUCH LEAVE OR DELAY WILL BE ADDED TO THE DATE
OF RELIEF FROM THE OLD STATION (DETACHMENT) TO DETERMINE THE EFFECTIVE
DATE OF ORDERS.
THE EFFECTIVE DATE OF ORDERS FOR PURPOSES OF A MEMBER'S TRAVEL AND
FOR THAT OF HIS DEPENDENTS, ARE NOT THE SAME IN ALL CASES. IT HAS BEEN
RECOGNIZED THAT WHEN A MEMBER IS DETACHED FROM A PERMANENT DUTY STATION
OVERSEAS AND IS ORDERED TO A TEMPORARY DUTY STATION IN THE UNITED STATES
FOR PROCESSING AND DISPOSITION, A WIFE ACQUIRED BY MARRIAGE BEFORE
ORDERS ARE ISSUED DIRECTING TRAVEL TO A NEW PERMANENT STATION MAY BE
TRANSPORTED TO SUCH STATION AT GOVERNMENT EXPENSE AT NOT TO EXCEED THE
COST FROM THE TEMPORARY STATION TO THE NEW STATION. 26 COMP. GEN. 339,
32 COMP. GEN. 543, PARAGRAPH 7060-3, JOINT TRAVEL REGULATIONS. ALSO,
IT HAS BEEN HELD THAT WHERE PERMANENT CHANGE OF STATION ORDERS DIRECT
THE PERFORMANCE OF TEMPORARY DUTY EN ROUTE TO THE NEW STATION AND SUCH
ORDERS ARE AMENDED PRIOR TO THE COMPLETION OF TEMPORARY DUTY, SO AS TO
CHANGE THE PLACE OF THE NEW PERMANENT CHANGE OF STATION, TRAVEL OF
DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE ONLY ON THE BASIS OF THE
DISTANCE FROM THE OLD TO THE ULTIMATE NEW STATION. SEE B-112851, MARCH
11, 1953. IN SUCH CIRCUMSTANCES, IT APPEARS THAT THE EFFECTIVE DATE OF
THE PERMANENT CHANGE OF STATION ORDERS FOR PURPOSES OF DEPENDENTS'
TRAVEL IS THE DATE TRAVEL IS REQUIRED FROM THE TEMPORARY DUTY STATION
AND PARAGRAPH 7005-3A OF THE NAVY TRAVEL INSTRUCTIONS SO PROVIDES.
DECELIS WAS ORDERED TO REPORT AT TREASURE ISLAND FOR FURTHER TRANSFER
TO HIS OVERSEAS STATION. IF THOSE ORDERS HAD BEEN CANCELLED BEFORE HIS
DEPARTURE FROM THE UNITED STATES, NO RIGHT TO TRANSPORTATION OF HIS
NEWLY ACQUIRED WIFE TO CAMP PENDLETON WOULD HAVE ACCRUED TO HIM.
HOWEVER, SINCE SUCH ORDERS WERE NOT AMENDED OR CANCELLED AND HE MARRIED
BEFORE HE WAS ORDERED TO REPORT FOR TRANSPORTATION AT TRAVIS AIR FORCE
BASE, TRANSPORTATION OF HIS DEPENDENT WIFE TO HIS OVERSEAS STATION WAS
AUTHORIZED FROM TREASURE ISLAND.
ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-129299, OCT. 11, 1956
TO ADMINISTRATOR VETERANS ADMINISTRATION:
IN LETTER DATED JULY 20, 1956, FILE VBC3A, ADDRESSED TO OUR CLAIMS
DIVISION, YOUR CONTROLLER REQUESTS OUR COMMENTS UPON THE CHECK
IDENTIFICATION CERTIFICATE PROCEDURE USED BY YOUR MANILA OFFICE TO
FACILITATE THE CASHING OF VETERANS ADMINISTRATION CHECKS BY THE PAYEES
AT MANILA BANKS.
OUR COMMENTS ARE REQUESTED AS THE RESULT OF OUR DECISION TO ABANDON
RECLAMATION PROCEEDINGS ON CHECK NO. 1,104,503, DATED MAY 31, 1953,
DRAWN TO THE ORDER OF MAXIMA ABELLO VDA DE NAVA, XC-6,192,048, IN THE
AMOUNT OF 4327.20 PESOS. OUR DECISION WAS BASED ON THE FACT THAT THE
MANILA BANK WHERE THE CHECK WAS NEGOTIATED, RESISTED TREASURY DEPARTMENT
RECLAMATION PROCEEDINGS ON THE BASIS THAT IT RELIED ON THE CHECK
IDENTIFICATION CERTIFICATE ISSUED BY THE MANILA VETERANS ADMINISTRATION
OFFICE FOR IDENTIFICATION PURPOSES. ACCORDINGLY, AND IN VIEW OF THE
CIRCUMSTANCES SURROUNDING THE NEGOTIATION OF THE CHECK, IT WAS DOUBTFUL
WHETHER THE UNITED STATES WOULD BE SUCCESSFUL IN RECLAMATION THROUGH
JUDICIAL PROCEEDINGS.
THE CONTROLLER STATES THAT THE CHECK IDENTIFICATION CERTIFICATE WAS
ADOPTED BY YOUR REGIONAL OFFICE, MANILA, AT THE REQUEST OF SEVERAL BANKS
AND WAS INTENDED ONLY TO IDENTIFY A CHECK PAYMENT AND NOT TO IDENTIFY A
PERSON. HE STATES FURTHER THAT THE BANKS WERE WELL AWARE OF THE INTENT
OF THE SERVICE AND, PRIOR TO THE ADOPTION OF IT, THE MANILA BANKS
REPORTED LOSSES OF THOUSANDS OF DOLLARS AS A RESULT OF CASHING CHECKS OF
PERSONS OTHER THAN THE RIGHTFUL PAYEE. ALSO, THE PAYEES, ON THE OTHER
HAND, OFTEN FOUND IT EXTREMELY DIFFICULT TO PROPERLY IDENTIFY
THEMSELVES. AS A RESULT, AND IN A SPIRIT OF COOPERATION, IT WAS AGREED
THAT THE VETERANS ADMINISTRATION, MANILA OFFICE, WOULD ISSUE A CHECK
IDENTIFICATION CERTIFICATE WITH THE UNDERSTANDING THAT IT WOULD NOT BE
BINDING UPON THE VETERANS ADMINISTRATION AND WOULD MERELY SERVE AS A
ACCOMMODATION TO THE PARTIES CONCERNED. THE BANKS REALIZED THAT THIS
PROCEDURE WAS NOT AN ABSOLUTE PROTECTION BUT FELT THAT ITS USE WOULD
DISCOURAGE MANY PERSONS FROM ATTEMPTING TO CASH CHECKS TO WHICH THEY
WERE NOT ENTITLED. THE CHECK IDENTIFICATION CERTIFICATION HAS SERVED
ITS PURPOSE AND HAS UNDOUBTEDLY PREVENTED MANY FRAUDS. THE CONTROLLER
FURTHER STATES THAT BEFORE RELEASING THE CERTIFICATE TO THE ALLEGED
BENEFICIARY IT WAS THE POLICY TO REVIEW THE RECORDS AVAILABLE IN THE
MANILA OFFICE AND ASK QUESTIONS WHICH COULD ONLY BE ANSWERED PROPERLY BY
A CLOSE RELATIVE OR ONE CLOSELY ASSOCIATED WITH THE DECEASED VETERAN.
THIS SERVICE WAS PERIODIC FOR EACH CLAIMANT AND COMMENCED SHORTLY AFTER
THE REOPENING OF YOUR MANILA REGIONAL OFFICE FOLLOWING LIBERATION.
HOWEVER, EFFECTIVE AUGUST 16, 1952, IT WAS RESTRICTED TO INITIAL PAYMENT
CHECKS ONLY.
WHILE THE ORIGINAL UNDERSTANDING BETWEEN THE BANKS AND THE VETERANS
ADMINISTRATION WAS THAT THE CHECK IDENTIFICATION CERTIFICATE WAS ISSUED
ONLY TO IDENTIFY A CHECK PAYMENT AND NOT TO IDENTIFY A PERSON OR TO MAKE
THE VETERANS ADMINISTRATION RESPONSIBLE FOR CHECKS NEGOTIATED
FRAUDULENTLY THROUGH USE OF THE CERTIFICATE, IT IS CLEAR FROM THE ACTION
OF THE BANK IN THIS CHECK CASE THAT THE BANKS ARE NOW RELYING ON THE
CERTIFICATES AS A DEFENSE FOR CHECKS FRAUDULENTLY NEGOTIATED THROUGH
THEIR USE.
THE STATEMENT THAT PRIOR TO THE ADOPTION OF THE CHECK IDENTIFICATION
CERTIFICATE THE BANKS REPORTED LOSSES OF THOUSANDS OF DOLLARS AS A
RESULT OF CASHING CHECKS FOR PERSONS OTHER THAN THE RIGHTFUL PAYEES
WARRANTS THE INFERENCE THAT THE USE THEREOF HAS BEEN BENEFICIAL TO THE
GOVERNMENT AS WELL AS TO THE BANKS. THAT BEING THE CASE, AN
ADMINISTRATIVE DETERMINATION TO CONTINUE ITS USE WOULD APPEAR JUSTIFIED.
HOWEVER, IF IT SHOULD BE SO ADMINISTRATIVELY DETERMINED, AND IN ORDER
TO PREVENT ITS USE BEING DETRIMENTAL TO THE INTERESTS OF THE GOVERNMENT,
THE CERTIFICATE SHOULD BE REVISED TO PLACE THE BANKS ON NOTICE THAT ITS
USE IS NOT INTENDED AS AN IDENTIFICATION OF THE PAYEE OF THE CHECK AND
THAT THE VETERANS ADMINISTRATION DISCLAIMS ANY LIABILITY FOR CHECKS
FRAUDULENTLY NEGOTIATED THROUGH ITS USE FOR PAYEE IDENTIFICATION
PURPOSES.
B-129356, OCT. 11, 1956
TO MR. FORREST L. GIBSON:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1956
REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 26, 1956, WHICH DISALLOWED
YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SHIPMENT OF HOUSEHOLD
EFFECTS, IN JUNE 1951, FROM SIERRA ORDNANCE DEPOT, HERLONG, CALIFORNIA,
TO CAMP COOKE, CALIFORNIA, AS AN EMPLOYEE OF THE ORDNANCE CORPS,
DEPARTMENT OF THE ARMY.
YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO RECORD OF
AN ADMINISTRATIVE AUTHORIZATION OR APPROVAL OF THE SHIPMENT OF YOUR
HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE.
YOU STATE THAT YOU SUBMITTED THE CLAIM AT THE SUGGESTION OF A FELLOW
EMPLOYEE WHO IS OF THE OPINION THAT YOU ARE ENTITLED TO REIMBURSEMENT
FOR COSTS INCURRED IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS, INASMUCH
AS THAT PORTION OF THE JOINT TRAVEL REGULATIONS WHICH PRECLUDED
REIMBURSEMENT HAS BEEN OVERRULED BY THE UNITED STATES SUPREME COURT, AND
ALSO, SINCE IN CERTAIN SIMILAR SITUATIONS EMPLOYEES HAVE BEEN REIMBURSED
FOR SUCH COSTS. YOU ALSO ASK TO BE INFORMED AS TO WHETHER THE
ADMINISTRATIVE AGENCY WHICH ORDERED YOUR MOVE TO CAMP COOKE, CALIFORNIA,
COULD HAVE AUTHORIZED PAYMENT OF THE EXPENSES INVOLVED.
IT IS NOT UNDERSTOOD HOW THE JOINT TRAVEL REGULATIONS MAY BE
CONSIDERED IN YOUR CASE SINCE THEY APPLY ONLY TO MILITARY PERSONNEL,
WHEREAS THE RECORD SHOWS THAT YOU WERE A CIVILIAN EMPLOYEE OF THE
DEPARTMENT OF THE ARMY AT THE TIME OF YOUR MOVE. FURTHER, YOU ARE
ADVISED THAT ANY PAYMENTS WHICH MAY HAVE BEEN MADE IN OTHER CASES AFFORD
NO GROUNDS FOR ALLOWANCE IN YOUR CASE.
PAYMENT OF THE EXPENSES OF TRANSPORTATION OF YOUR HOUSEHOLD GOODS IS
GOVERNED BY THE PROVISIONS OF SECTION 1 (A) OF THE ACT OF AUGUST 2,
1946, 60 STAT. 806, AS AMENDED, AND THE REGULATIONS ISSUED PURSUANT
THERETO AS CONTAINED IN EXECUTIVE ORDER NO. 10196, DATED DECEMBER 20,
1950. UNDER THE SAID ACT AND REGULATION PAYMENT MAY BE MADE ONLY "WHEN
AUTHORIZED OR APPROVED.' IT DOES NOT APPEAR FROM THE RECORD THAT THERE
WAS ANY AUTHORITY GIVEN FOR THE SHIPMENT OF YOUR HOUSEHOLD GOODS, NOR
DOES IT APPEAR THAT SUCH SHIPMENT ON YOUR OWN INITIATIVE HAS BEEN
ADMINISTRATIVELY APPROVED. THE DISCRETION TO AUTHORIZE OR APPROVE
TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD GOODS ON TRANSFER OF STATION
RESTS WITH THE DEPARTMENT OF THE ARMY, BUT THAT AUTHORITY DOES NOT
EXTEND TO AN EMPLOYEE REPORTING TO HIS FIRST PERMANENT DUTY STATION
WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.
THEREFORE, OUR SETTLEMENT OF JULY 26, 1956, DISALLOWING YOUR CLAIM IS
CORRECT AND MUST BE SUSTAINED.
REGARDING YOUR REQUEST THAT THE CORRESPONDENCE FORWARDED TO OUR
OFFICE IN SUPPORT OF YOUR CLAIM BE RETURNED, YOU ARE ADVISED THAT
ORIGINAL DOCUMENTS SUBMITTED IN SUPPORT OF A CLAIM BECOME A PART OF THE
PERMANENT FILES OF OUR OFFICE AND CANNOT BE RETURNED.
B-129358, OCT. 11, 1956
TO CAPTAIN J. N. BOHANNON, JR., FC, DEPARTMENT OF THE ARMY:
YOUR LETTER OF SEPTEMBER 11, 1956, SUBMITTED FOR DECISION A VOUCHER
STATED IN FAVOR OF LIEUTENANT COLONEL HAROLD I. DRINKAUS, 0 1 934 168,
MC, USAR, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HIS
UNMARRIED LEGITIMATE DAUGHTER, BARBARA M. DRINKAUS, AGE 22, FROM
DARMSTADT, GERMANY, TO FORT RILEY, KANSAS, THE TRAVEL HAVING BEEN
PERFORMED BETWEEN JUNE 5 AND JULY 19, 1956, INCIDENT TO PERMANENT CHANGE
OF STATION ORDERS DATED APRIL 2, 1956.
IT APPEARS FROM THE EVIDENCE SUBMITTED THAT DURING THE PERIOD THE
TRAVEL WAS PERFORMED THE OFFICER'S DAUGHTER WAS HIS "DEPENDENT" WITHIN
THAT PART OF THE DEFINITION CONTAINED IN SUBSECTION 102 (G) OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, WHICH PROVIDES THAT SUCH
TERM SHALL INCLUDE UNMARRIED LEGITIMATE CHILDREN OVER TWENTY-ONE YEARS
OF AGE WHO ARE INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING PHYSICALLY
INCAPACITATED AND WHO ARE IN FACT DEPENDENT ON THE MEMBER FOR OVER HALF
OF HIS OR HER SUPPORT.
ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED. PAYMENT
ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT.
B-121160, OCT. 10, 1956
TO CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:
THE CHIEF OF SPECIAL CLAIMS DIVISION, SETTLEMENT OPERATIONS, ARMY
FINANCE CENTER, IN LETTER DATED JULY 13, 1956, FILE FINCT-E-1-201 ST.
JOHN, WILLIAM T. (CIV.), REQUESTS OUR RECONSIDERATION OF NOTICES OF
EXCEPTION NOS. 509946 AND 509947 WHICH WERE STATED AGAINST LT. COL. R.
J. CLYNES AND MAJOR J. M. HEREDIA, RESPECTIVELY, ON ACCOUNT OF THEIR
PAYMENTS OF NIGHT DIFFERENTIAL TO CERTAIN PHYSICIANS (CIVILIAN
EMPLOYEES), INCLUDING DR. ST. JOHN, WHO APPEARS TO HAVE SERVED ON A
WHEN-ACTUALLY-EMPLOYED BASIS AT THE FORT BELVOIR (VIRGINIA) HOSPITAL
UNDER THE FACTS AND CIRCUMSTANCES INDICATED BELOW. THIS MATTER ALSO
RELATES TO OUR LETTER OF SEPTEMBER 21, 1954, TO THE DIRECTOR OF CIVILIAN
PERSONNEL, AND HIS REPLY DATED NOVEMBER 30, 1954, CONCERNING THE CASE OF
DR. JAMES M. FRAWLEY.
THE ABOVE REQUEST FOR REVIEW OF OUR AUDIT EXCEPTIONS HAVING BEEN
RECEIVED FROM AN OFFICER OTHER THAN THE DISBURSING OFFICERS INVOLVED AND
IN THE OTHER CIRCUMSTANCES OF THE MATTER WE DEEM IT PROPER TO ADDRESS
OUR REPLY TO YOU.
AUTHORITY FOR THE PAYMENT OF PREMIUM PAY--- SUCH AS NIGHT
DIFFERENTIAL--- TO PER ANNUM FULL-TIME CIVILIAN EMPLOYEES IS PROVIDED IN
THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. IN ACCORDANCE WITH
THAT ACT AS AMENDED SEPTEMBER 1, 1954, 68 STAT. 1109 TO 1112, AN
ENTITLEMENT TO SUCH PREMIUM COMPENSATION DEPENDS UPON WHETHER THE
CIVILIAN OFFICER OR EMPLOYEE GENERALLY RENDERS ,FULL-TIME" SERVICE. THE
TERM "FULL-TIME SERVICE" CONSISTENTLY HAS BEEN CONSIDERED TO MEAN THE
DUTY WHICH IS OFFICIALLY PRESCRIBED BY THE SUPERIOR OF THE OFFICER OR
EMPLOYEE INVOLVED AND IS REQUIRED TO BE PERFORMED DURING THE BASIC
40-HOUR WORKWEEKS ADMINISTRATIVELY SCHEDULED IN ADVANCE IN THE MANNER
PRESCRIBED IN SUBSECTIONS 604 (A) (1) AND (2) OF THE 1945 PAY ACT, AS
AMENDED SEPTEMBER 1, 1954, 68 STAT. 1112, 5 U.S.C. 944. PERMISSIBLE
VARIATIONS OF THE BASIC WORKWEEKS OF FULL-TIME EMPLOYEES ARE DESCRIBED
IN THE CIVIL SERVICE REGULATIONS, 5 C.F.R. 25.211.
THE AUDIT EXCEPTIONS HERE INVOLVED ARE PREDICATED UPON THE RULES OF
OUR DECISIONS AT 28 COMP. GEN. 328 (B-79779), AND 34 COMP. GEN. 471
(B-121978), AND ALSO, UPON THE FACT THAT NO OFFICIAL EVIDENCE HAS BEEN
FURNISHED ADMINISTRATIVELY TO SHOW UNEQUIVOCALLY THAT REGULAR 40-HOUR
WORKWEEKS OR FULL-TIME TOURS OF DUTY HAD BEEN OFFICIALLY PRESCRIBED (FOR
THE PHYSICIANS HERE IN QUESTION) AS CONTEMPLATED BY THE ABOVE-CITED ACT
AND REGULATIONS. THE RECORD HERE INDICATES THAT FOR PRACTICAL REASONS
THESE PHYSICIANS WERE NOT ASSIGNED REGULAR 40-HOUR TOURS OF DUTY, AND
THAT THEY WERE PERMITTED ADMINISTRATIVELY TO ARRANGE THEIR OWN SERVICE
PERIODS AND HOURS OF DUTY--- LARGELY AS AN EXPEDIENCY TO OBTAIN THEIR
PROFESSIONAL SERVICES. THEREFORE, IN THE ABSENCE OF A CONTRACT SO
PROVIDING, WE DO NOT REGARD SUCH CIRCUMSTANCES AS VALID EXCEPTIONS FROM
THE RESTRICTION THAT THE PREMIUM COMPENSATION PROVISIONS OF THE 1945 PAY
ACT MAY BE GRANTED TO ONLY THOSE EMPLOYEES WHO PERFORM THE DUTIES OF
FULL-TIME POSITIONS WHICH OTHERWISE COME WITHIN THE PURVIEW OF THE OTHER
CONTROLLING PROVISIONS OF THE 1945 PAY ACT OR THE REGULATIONS
THEREUNDER, AS AMENDED. THE PRINCIPLES STATED AT 34 COMP. GEN. 471
REGARDING OVERTIME PAY UNDER THE 1945 ACT ALSO ARE APPLICABLE TO THE
NIGHT DIFFERENTIAL PROVISIONS OF THE SAID ACT. COMPARE 25 COMP. GEN.
102 (SECOND HEADNOTE), AND 33 COMP. GEN. 4, BOTH OF WHICH DEAL WITH
INSTANCES WHERE AN EMPLOYEE TEMPORARILY IS ASSIGNED TO PERFORM THE
SCHEDULED NIGHT WORK OF A REGULARLY SCHEDULED 40-HOUR OR FULL-TIME
POSITION OTHER THAN HIS OWN REGULARLY SCHEDULED TOUR OF DUTY.
ACCORDINGLY, OUR VIEW IN THIS CASE IS THAT THESE PHYSICIANS WHOSE
SERVICES WERE OR ARE ENGAGED ON A "WHEN ACTUALLY EMPLOYED" BASIS ARE
ENTITLED ONLY TO STRAIGHT TIME COMPENSATION FOR THE HOURS THEY WORKED IN
A PARTICULAR BIWEEKLY PAY PERIOD, IRRESPECTIVE OF THE DAY OR NIGHT HOURS
INVOLVED AND REGARDLESS OF WHETHER THEY PERFORMED SERVICES IN EXCESS OF
40 HOURS IN ANY WEEK. SIMILARLY, SINCE THE BASIC COMPENSATION RATES OF
THESE PHYSICIANS ARE NOT PAYABLE "BY REASON OF THE NACTMENT" OF THE 1945
PAY ACT, AS AMENDED, THEIR AGGREGATE COMPENSATION FOR ANY BIWEEKLY PAY
PERIOD IS NOT SUBJECT TO THE AGGREGATE COMPENSATION LIMITATIONS
CONTAINED IN SECTION 603 OF THE 1945 ACT, 68 STAT. 1112, 5 U.S.C. 943.
ON THE OTHER HAND, IF--- AS IS NOW URGED BY THE CHIEF, PROCEDURES AND
REGULATIONS DIVISION, IN HIS MEMORANDUM OF JUNE 28, 1956, TO YOUR
OFFICE--- THESE PHYSICIANS SHOULD BE REGARDED AS PERFORMING
ADMINISTRATIVELY PRESCRIBED FULL-TIME TOURS OF DUTY WITHIN THE PURVIEW
OF ANY PROVISION OF THE 1945 PAY ACT, THEIR COMPENSATION RATES AND
AGGREGATE PAY THEREBY WOULD BECOME SUBJECT TO THE OTHER LIMITATIONS AND
REQUIREMENTS OF THAT ACT--- SUCH AS THE PRORATA OVERTIME LIMITATION
PRESCRIBED IN SECTION 201 (B), AND THE AGGREGATE COMPENSATION LIMITATION
CONTAINED IN SECTION 603 (B) THEREOF. HOWEVER, IN THE ABSENCE OF
APPROPRIATE OFFICIAL EVIDENCE CLEARLY SHOWING THAT SUCH IS THE CASE, WE
HAVE NO ALTERNATIVE BUT TO HOLD THAT THE PHYSICIANS IN QUESTION ARE NOT
ENTITLED TO NIGHT DIFFERENTIAL PAY UNDER THE FEDERAL EMPLOYEES PAY ACT
OF 1945, AS AMENDED.
ACCORDINGLY, BASED UPON THE PRESENT RECORD, THE AUDIT EXCEPTIONS NOS.
509946 AND 509947 APPEAR
B-128318, OCT. 10, 1956
TO MISSOURI PACIFIC RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 15, 1956, REQUESTING
REVIEW OF SETTLEMENT CERTIFICATE IN CLAIM TK 531894, DATED MAY 10, 1956,
WHICH DISALLOWED YOUR CLAIM FOR $676.61, PER BILL NO. S 24189-A, AS AN
ADDITIONAL ALLOWANCE FOR A SHIPMENT MOVING UNDER BILL OF LADING
WT-8183510, DATED SEPTEMBER 18, 1943, WHICH WAS ORIGINALLY CONSIGNED TO
BENICIA ARSENAL, ARMY POINT, CALIFORNIA, AND SUBSEQUENTLY DIVERTED AT
ROPER, UTAH, TO AVONDALE, COLORADO, FOR TRANSIT.
THE RECORD SHOWS THAT THE ENTIRE TONNAGE (62,376 POUNDS), INVOLVED IN
THE SUBJECT SHIPMENT INTO AVONDALE, COLORADO, WAS SUBSEQUENTLY RESHIPPED
TO SAN FRANCISCO, CALIFORNIA, ON GOVERNMENT BILL OF LADING WV-4276952,
DATED MAY 26, 1944, FOR OVERSEAS MOVEMENT.
FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND
WERE PAID AT A NET RATE OF $3.31623 PER 100 POUNDS FOR THE INBOUND
MOVEMENT INTO AVONDALE, COLORADO. IN THE AUDIT OF THE PAYMENT VOUCHER
COVERING THE INBOUND MOVEMENT TO AVONDALE, ON BILL OF LADING WT-8183510,
OUR OFFICE ISSUED A NOTICE OF OVERPAYMENT FORM 1003 AGAINST YOU AS
DESTINATION CARRIER FOR $676.61, ON THE BASIS OF A COMBINATION OF LOCAL
RATES TO THE POINT OF DIVERSION AT ROPER, UTAH, AND BACK TO AVONDALE,
COLORADO. THIS ACTION WAS PREDICATED ON THE FACT THAT THE MOVEMENT TO
ROPER, UTAH, AND BACK TO AVONDALE, CONSTITUTED A BACK-HAUL SERVICE WHICH
CANCELLED THE GOVERNMENT'S PRIVILEGE TO APPLY THIS TONNAGE AGAINST AN
OUTBOUND SHIPMENT, AND BECAUSE OF THIS DIVERSION AND BACK-HAUL, IT WAS
FOUND THAT THE TERMS OF THE SECTION 22 QUOTATION AUTHORIZING TRANSIT
WERE INAPPLICABLE. IN DECEMBER 1953, THE AMOUNT OF $676.61 WAS DEDUCTED
FROM YOUR BILL NO. 71177. IT IS NOTED THAT THE SOUTHERN PACIFIC
COMPANY ALLOWED 66.207 CENTS PER 100 POUNDS, NOT $3.31623, AS YOU STATE
IN YOUR LETTER, AS A CREDIT AGAINST THE CHARGES BILLED ON BILL OF LADING
WV-4276952.
FROM THE FOREGOING IT WOULD APPEAR THAT THERE WAS NO THROUGH SHIPMENT
SUBJECT TO TRANSMIT UNDER THE TARIFF OR SECTION 22 QUOTATION, SO THAT AS
FAR AS YOU ARE CONCERNED THE TRANSPORTATION SERVICE WAS TERMINATED AT
AVONDALE, COLORADO. CONSEQUENTLY, THE APPLICABLE BASIS TO BE ASSESSED
FOR ENTIRE TRANSPORTATION TO THE WEST COAST WAS A COMBINATION OF RATES
TO AND BEYOND AVONDALE, LESS DEDUCTIONS FOR LAND GRANT, FOR WHICH THE
SETTLEMENT OF CHARGES NECESSARILY MUST BE MADE WITH EACH DESTINATION
CARRIER ON THE TWO SEPARATE MOVEMENTS.
ACCORDINGLY, SINCE YOU RECEIVED CHARGES IN EXCESS OF THE APPLICABLE
RATES TO AVONDALE, AND THE EXCESS HAS BEEN COLLECTED BY DEDUCTION FROM
YOUR BILL NO. 71177, THE SETTLEMENT, WHICH IS CONSISTENT WITH THE
FOREGOING AND IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, IS
SUSTAINED.
B-129071, OCT. 10, 1956
TO CHAIRMAN, ATOMIC ENERGY COMMISSION:
REFERENCE IS MADE TO THE GENERAL MANAGER'S LETTER OF AUGUST 23, 1956,
REQUESTING A DECISION AS TO THE PROPRIETY OF REIMBURSEMENT TO THE ZIA
COMPANY FOR "HAZARD PAY" PREMIUMS PAID TO ITS NON-MANUAL EMPLOYEES
DURING THE PERIOD AUGUST 22, 1949, TO DECEMBER 21, 1955.
THE GENERAL MANAGER'S LETTER STATES THAT AUTHORIZATION FOR SUCH
PAYMENTS WAS INADVERTENTLY OMITTED FROM A REVISED CONTRACT SALARY
SCHEDULE WHICH WAS MADE EFFECTIVE AUGUST 22, 1949, AND THE OMISSION WAS
NOT DISCOVERED UNTIL DECEMBER 21, 1955. REIMBURSEMENT FOR SUCH PAYMENTS
WAS AUTHORIZED EFFECTIVE THE DATE THE OMISSION WAS DISCOVERED, WITHOUT
PREJUDICE TO THE RIGHTS OF EITHER PARTY AS TO AMOUNTS PAID BETWEEN THE
DATES REFERRED TO.
IT APPEARS THAT "HAZARD PAY" PREMIUMS WERE PAID BY ZIA TO ITS
NON-MANUAL EMPLOYEES FROM THE INCEPTION OF THE CONTRACT INVOLVED ON
APRIL 1, 1946; AND THAT SUCH PAYMENTS HAVE BEEN MADE AND REIMBURSED BY
THE COMMISSION CONTINUOUSLY SINCE THAT TIME. LATE IN 1948, A REVIEW OF
THE CONTRACTOR'S NON-MANUAL SALARY SCHEDULE WAS UNDERTAKEN. TWO PLANS
WERE CONSIDERED. ONE PLAN, WHICH WAS SIMILAR TO THAT FOLLOWED FOR THE
STAFF OF THE LOS ALAMOS SCIENTIFIC LABORATORY, GAVE CONSIDERATION IN THE
BASE RATE TO THE RADIOACTIVE AND EXPLOSIVES HAZARDS INVOLVED IN SPECIFIC
JOBS. THE OTHER PLAN DID NOT EVALUATE SUCH HAZARDS IN DETERMINING BASE
RATES BUT PROVIDED FOR FIXED PERCENTAGE RATES OF PREMIUM PAY FOR
HAZARDOUS WORKING CONDITIONS. AFTER THOROUGH CONSIDERATION OF BOTH
PLANS IT WAS DECIDED THAT ZIA SHOULD CONTINUE TO USE THE PREMIUM METHOD
OF COMPENSATION.
IN ACCORDANCE WITH THIS DECISION ZIA ON AUGUST 11, 1949, SUBMITTED TO
THE COMMISSION A REVISED NON-MANUAL SALARY SCHEDULE WHICH INCLUDED
AUTHORIZATION FOR PREMIUM "HAZARD PAY" ON THE SAME BASIS THAT IT HAD
THERETOFORE USED. A REIMBURSEMENT AUTHORIZATION BASED ON THIS SCHEDULE
WAS ISSUED EFFECTIVE AUGUST 22, 1949, BUT THE PARAGRAPH OF THE PLAN
AUTHORIZING PREMIUM "HAZARD PAY" WAS OMITTED FROM THE AUTHORIZATION,
WHICH OTHERWISE APPEARS TO HAVE BEEN A VERBATIM COPY OF THE SCHEDULE,
CONSISTING OF 18 PAGES. THE OMISSION WAS NOT NOTICED BY OFFICIALS OF
ZIA OR THE COMMISSION. PREMIUM "HAZARD PAY" CONTINUED TO BE PAID BY ZIA
WITH THE FULL KNOWLEDGE OF THE COMMISSION AND REIMBURSEMENT THEREFOR WAS
MADE. THE AVAILABLE RECORDS FAIL TO DISCLOSE HOW THE AUTHORIZATION FOR
PREMIUM "HAZARD PAY" CAME TO BE OMITTED FROM THE REIMBURSEMENT
AUTHORIZATION.
IT IS CLEAR, HOWEVER, FROM STATEMENTS OF THE THEN MANAGER OF THE
SANTA FE OPERATIONS OFFICE OF THE VICE PRESIDENT OF ZIA WHO EXECUTED THE
REIMBURSEMENT AUTHORIZATION, AND OF THE DIRECTOR OF ORGANIZATION AND
PERSONNEL, SANTA FE OPERATIONS OFFICE, WHO EXECUTED THE REIMBURSEMENT
AUTHORIZATION ON BEHALF OF THE COMMISSION, THAT THE PARTIES ON BOTH
SIDES INTENDED TO APPROVE THE SALARY SCHEDULE PLAN SUBMITTED BY ZIA,
WHICH INCLUDED PREMIUM PAY. THE FILE CONTAINS A MEMORANDUM FROM THE
LAST-NAMED OFFICIAL TO THE ZIA COMPANY DATED AUGUST 19, 1949,
ACKNOWLEDGING RECEIPT OF THE PLAN SUBMITTED BY ZIA ON AUGUST 11, 1949,
AND STATING THAT---
"THIS MEMORANDUM WILL SERVE AS APPROVAL OF THE PLAN AND FOR ITS
INSTALLATION ON AUGUST 22, 1949, PENDING REIMBURSEMENT AUTHORIZATION.'
AS HEREINABOVE STATED, THE PLAN SUBMITTED BY ZIA DID INCLUDE
AUTHORIZATION FOR PREMIUM "HAZARD PAY.'
IN THE LIGHT OF THE EVIDENCE SUBMITTED, IT IS APPARENT THAT BOTH ZIA
AND THE COMMISSION INTENDED TO AUTHORIZE REIMBURSEMENT FOR SUCH PREMIUM
PAY, AND THAT THE OMISSION OF AUTHORIZATION THEREFOR FROM THE CONTRACT
MODIFICATION EFFECTIVE AUGUST 22, 1949, WAS CONTRARY TO THE INTENTION OF
BOTH PARTIES. ACCORDINGLY, YOU ARE ADVISED THAT ACTION TO CONFORM THE
CONTRACT TO THE ACTUAL INTENTION OF THE PARTIES IS PROPER, AND MAY BE
ACCOMPLISHED BY ISSUANCE OF THE PROPOSED REIMBURSEMENT AUTHORIZATION
ATTACHED TO THE LETTER OF AUGUST 23, 1956.
B-129240, OCT. 10, 1956
TO BRIGADIER GENERAL JOHN S. E. YOUNG, USMC, RETIRED:
YOUR LETTER OF AUGUST 24, 1956, REQUESTS REVIEW OF THE SETTLEMENT OF
AUGUST 3, 1956, WHICH DISALLOWED YOUR CLAIM FOR $339.24, REPRESENTING
THE COST OF SHIPPING 1,660 POUNDS OF HOUSEHOLD EFFECTS FROM RALEIGH,
NORTH CAROLINA, TO DESERT HOT SPRINGS, CALIFORNIA.
BY ORDERS DATED FEBRUARY 3, 1953, UPON DISCHARGE FROM TREATMENT AT
U.S. NAVAL HOSPITAL, BETHESDA, MARYLAND, YOU WERE RELEASED FROM ALL
ACTIVE DUTY, DIRECTED TO PROCEED TO YOUR HOME, AND PLACED ON THE
TEMPORARY DISABILITY RETIRED LIST OF THE MARINE CORPS EFFECTIVE MARCH 1,
1953. YOUR HOME OF RECORD WAS OCEAN GROVE, NEW JERSEY. HOWEVER, YOU
SELECTED CORONA DEL MAR, CALIFORNIA, AS YOUR HOME UPON RETIREMENT AND
RECEIVED ALLOWANCES FOR TRAVEL FOR YOURSELF AND DEPENDENTS TO THAT CITY
IN APRIL 1953, AND FOR TRANSPORTATION OF 7,880 POUNDS OF HOUSEHOLD
EFFECTS
TO THE SAME PLACE IN MAY 1953. THE PRESENT SHIPMENT, FROM RALEIGH T
DESERT HOT SPRINGS, WAS MADE IN APRIL 1956. YOUR CLAIM FOR
REIMBURSEMENT WAS DISALLOWED UNDER THE PROVISIONS OF THE JOINT TRAVEL
REGULATIONS.
IN YOUR PRESENT LETTER YOU STATE THAT WHILE YOU SELECTED CORONA DEL
MAR AS YOUR HOME UPON RETIREMENT, YOU SUBSEQUENTLY MOVED TO DESERT HOT
SPRINGS WHERE THE HOT, DRY CLIMATE IS MORE BENEFICIAL TO YOUR PHYSICAL
CONDITION AND YOU REQUEST THAT YOUR CASE BE RECONSIDERED.
THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED
SERVICES IS GOVERNED BY JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS
AMENDED, RETROACTIVELY, BY THE ACT OF AUGUST 11, 1955, 69 STAT. 691.
WITH RESPECT TO MEMBERS WHO WERE PLACED ON THE TEMPORARY DISABILITY
RETIRED LIST DURING THE PERIOD APRIL 1, 1951, TO AUGUST 11, 1955,
APPENDIX D OF THESE REGULATIONS PROVIDES THAT A MEMBER WHO SELECTED A
HOME AND PERFORMED TRAVEL TO THAT PLACE MAY SHIP HIS HOUSEHOLD EFFECTS
"TO THE SELECTED HOME.' THE REGULATIONS PROVIDE ALSO THAT SHIPMENT "TO
THE HOME OF SELECTION" MUST HAVE BEEN EFFECTED PRIOR TO AUGUST 11, 1956.
PARTIAL SHIPMENT OF EFFECTS IN YOUR CASE FOLLOWED YOUR SELECTION OF
CORONA DEL MAR, CALIFORNIA, AS YOUR HOME UPON RETIREMENT. HOWEVER, THE
EFFECTS IN QUESTION WERE NOT SHIPPED "TO THE HOME OF SELECTION.' WHILE
YOU PROPERLY RECEIVED ALLOWANCES FOR TRAVEL OF YOURSELF AND DEPENDENTS
AS WELL AS FOR TRANSPORTATION OF OTHER HOUSEHOLD EFFECTS TO YOUR
SELECTED HOME, THE LIMITATIONS CONTAINED IN THE REGULATIONS PROHIBIT
REIMBURSEMENT FOR THE SHIPMENT OF HOUSEHOLD EFFECTS TO A DIFFERENT CITY
INCIDENT TO YOUR RETIREMENT.
SINCE THE SHIPMENT HERE INVOLVED WAS MADE TO A PLACE OTHER THAN THE
HOME YOU SELECTED UPON RETIREMENT, THERE IS NO LEGAL BASIS FOR THE
ALLOWANCE OF YOUR CLAIM.
ACCORDINGLY, THE SETTLEMENT OF AUGUST 3, 1956, WAS CORRECT, AND IS
SUSTAINED.
B-129296, OCT. 10, 1956
TO THE ATTORNEY GENERAL:
IN LETTER OF SEPTEMBER 20, 1956, YOUR REFERENCE A3, THE
ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTS REVIEW OF THE AUDIT
INFORMAL INQUIRY NO. 7Q0014 REGARDING THE LUMP-SUM LEAVE PAYMENT MADE TO
MR. ROBERT W. MINOR UPON HIS RESIGNATION FROM THE DEPARTMENT OF
JUSTICE, FEBRUARY 14, 1956, TO ACCEPT A PRESIDENTIAL APPOINTMENT
EFFECTIVE FEBRUARY 15, 1956, AS A COMMISSIONER IN THE INTERSTATE
COMMERCE COMMISSION.
THE REFERRED-TO AUDIT INQUIRY IS BASED ON 33 COMP. GEN. 177, IN WHICH
WE HELD, QUOTING FROM THE SYLLABUS:
"AN EMPLOYEE SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 WHO,
WITHOUT A BREAK IN SERVICE, ACCEPTS A POSITION (PRESIDENTIAL
APPOINTMENT) EXEMPTED FROM SUCH ACT BY SECTION 1 OF THE ACT OF JULY 2,
1953, IS NOT ENTITLED TO A LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF
DECEMBER 21, 1944, AS AMENDED--- WHICH PROVIDES FOR SUCH PAYMENTS UPON
SEPARATION FROM THE SERVICE--- EVEN THOUGH THE EMPLOYEE WAS NOT AN
INCUMBENT OF THE EXEMPT POSITION AT THE TIME OF ENACTMENT OF THE 1953
ACT.'
THE PERTINENT PROVISIONS OF THE ACT OF JULY 2, 1953, 67 STAT. 136,
ARE AS FOLLOWS:
"* * * THAT SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS
AMENDED BY ADDING A SUBSECTION (C) AS FOLLOWS:
"/C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE
EXECUTIVE BRANCH OF THE GOVERNMENT AND OFFICERS OF THE GOVERNMENT OF THE
DISTRICT OF COLUMBIA, INCLUDING OFFICERS OF CORPORATIONS WHOLLY OWNED OR
CONTROLLED BY THE UNITED STATES:
"/A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH ADVICE AND
CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, WHOSE RATES OF BASIC
COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED IN THE GENERAL SCHEDULE OF
THE CLASSIFICATION ACT OF 1949, AS AMENDED:
"SEC. 2 (A) THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH
ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A
RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE
DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A
LUMP-SUM
PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C.
61B-61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT
PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF
COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON
WHICH THIS ACT BECAME APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT
REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4
AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER
SUCH ACTS.
"/B) IN THE EVENT ANY SUCH EXEMPTED OFFICER, WITHOUT ANY BREAK IN THE
CONTINUITY OF HIS SERVICE, AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICK
LEAVE ACT OF 1951 UPON THE COMPLETION OF HIS SERVICE AS AN EXEMPTED
OFFICER, THE UNUSED ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE
TIME HE WAS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 SHALL BE
DEEMED TO HAVE REMAINED TO HIS CREDIT.'
IN HIS LETTER OF SEPTEMBER 20, 1956, THE ADMINISTRATIVE ASSISTANT
ATTORNEY GENERAL URGES THAT THE FIRST THREE LINES OF SECTION 2 (A) AND
(B) CAN APPLY ONLY TO INCUMBENTS OF THE POSITIONS ON THE EFFECTIVE DATE
OF THE ACT. IN THAT CONNECTION, HOWEVER, IT IS TO BE NOTED THAT SECTION
202 (C) (1) (A) EXEMPTS FROM THAT TITLE ALL PERSONS APPOINTED BY THE
PRESIDENT WHOSE RATES OF COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED
IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED,
AND CONTAINS NO LIMITATION CONCERNING THE DATES OF THEIR APPOINTMENTS.
THE FIRST LINES OF SECTION 2 (A) AND (B) REFER TO SUCH EXEMPTED OFFICERS
AND LIMIT THEIR RIGHT TO LUMP-SUM PAYMENTS FOR LEAVE TO WHICH ENTITLED
IMMEDIATELY "PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM"---
NOT TO WHICH ENTITLED IMMEDIATELY PRIOR TO THE DATE OF THE ACT--- AS
APPEARS TO BE CONTENDED IN YOUR DEPARTMENT'S LETTER.
IN MR. MINOR'S CASE HERE INVOLVED, HE WAS EXEMPTED FROM THE
PROVISIONS OF THE LEAVE ACT WHEN HE ACCEPTED HIS PRESIDENTIAL
APPOINTMENT, EFFECTIVE FEBRUARY 15, 1956, AND THE ACT RESERVES TO HIM
THE RIGHT TO RECEIVE PAYMENT UNTIL HIS FINAL SEPARATION FROM THE
GOVERNMENT SERVICE. TO HOLD OTHERWISE, AS CONTENDED FOR IN YOUR
DEPARTMENT'S LETTER WOULD GIVE NO EFFECT TO SECTION 2 (B). FURTHERMORE,
SECTION 2 (A) REQUIRES THAT SUCH LEAVE "SHALL BE LIQUIDATED BY A
LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 * * *.'
UNDER THE 1944 ACT A LUMP-SUM LEAVE PAYMENT MAY BE MADE ONLY WHEN THE
EMPLOYEE "IS SEPARATED FROM THE SERVICE.' THERE WAS NO SEPARATION FROM
THE SERVICE IN THIS CASE; HENCE, THERE WAS NO LEGAL BASIS FOR ANY
LUMP-SUM LEAVE PAYMENT.
THE CASE OF THE EMPLOYEE WHO LEFT THE DEPARTMENT OF JUSTICE TO BECOME
A JUDGE'S SECRETARY COVERED IN 33 COMP. GEN. 622--- THE CASE WHICH THE
ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL BELIEVES SHOULD APPLY HERE---
IS DISTINGUISHABLE FROM THOSE EMPLOYEES RECEIVING PRESIDENTIAL
APPOINTMENTS, BECAUSE JUDGE'S SECRETARIES ARE NOT SPECIFICALLY EXEMPTED
FROM THE PROVISIONS OF THE LEAVE ACT BUT IN SOME INSTANCES ARE NOT
ENTITLED TO ITS PROVISIONS BY REASON OF THE FACT THAT ADMINISTRATIVELY
SOME JUDGE'S SECRETARIES DO NOT MAINTAIN ANY LEAVE RECORDS; THAT IS TO
SAY, THEY TRANSFER FROM ONE LEAVE SYSTEM TO A POSITION UNDER WHICH NO
LEAVE SYSTEM IS APPLICABLE, WHICH TRANSFER IS CONSIDERED, UNDER SUCH
CIRCUMSTANCES, AS A SEPARATION WITHIN THE MEANING OF THE LUMP SUM LEAVE
ACT.
ACCORDINGLY, WE ARE REQUIRED BY THE TERMS OF THE LEAVE ACT TO HOLD
THAT THE LUMP-SUM LEAVE PAYMENT TO MR. MINOR AT THE TIME OF HIS
RESIGNATION WAS NOT AUTHORIZED AND THAT THE AUDIT INFORMAL INQUIRY WAS
CORRECT AND PROPER.
B-129331, OCT. 10, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING ERRORS THE PROGRESS TALLOW COMPANY ALLEGES IT MADE IN ITS BID
ON WHICH CONTRACT NO. DA-/S/-04-197-AVI-172 WAS AWARDED.
THE PROPERTY DISPOSAL BRANCH, AUXILIARY SERVICES DIVISION, OAKLAND
ARMY TERMINAL, OAKLAND, CALIFORNIA, BY INVITATION NO. AVI-04-197-S-56-50
REQUESTED BIDS--- TO BE OPENED JUNE 5, 1956--- FOR THE PURCHASE AND
REMOVAL FROM CERTAIN ARMY POSTS OF ESTIMATED QUANTITIES OF FIVE ITEMS OF
WASTE GREASE AND BONES DURING THE PERIOD JULY 1, 1956, THROUGH JUNE 30,
1957. IN RESPONSE THE PROGRESS TALLOW COMPANY SUBMITTED A BID DATED
JUNE 5, 1956, OFFERING TO PURCHASE ITEM 1 AT A PRICE OF $0.026 PER
POUND; ITEM 2 AT A PRICE OF $0.0401 PER POUND; ITEM 3 AT A PRICE OF
$0.055 PER POUND; ITEM 4 AT A PRICE OF $0.0139 PER POUND; AND ITEM 5
AT A PRICE OF $0.055 PER POUND. THE BID OF THE COMPANY, WHICH WAS
ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $2,351.48, WAS ACCEPTED
AS TO ITEMS 3 AND 5 ON JUNE 28, 1956.
BY LETTER DATED AUGUST 1, 1956, THE COMPANY ADVISED AS FOLLOWS:
"IN COMPUTING THE ABOVE BID, AN ERROR WAS MADE BY OUR ACCOUNTANT. A
LETTER IS ATTACHED, SIGNED BY OUR ACCOUNTANT, CARLO J. MAGOKIA,
VERIFYING SUCH AN ERROR.
"WHEN WE FIRST RECEIVED YOUR INVITATION NO. AVI-04-197-S-56-50, THE
FOLLOWING PRICES WERE ROUGHED IN ON PAGE NO. 5. THE ORIGINAL OF WHICH
IS ATTACHED.
TABLE
ITEM NO. 1 COOKED GREASE 2 1/2 CENTS PER POUND
NO. 2 FATS 4 DO. DO. DO.
NO. 3 COOKED BONES 1/2 DO. DO. DO.
NO. 4 UNCOOKED BONES 1 1/4 DO. DO. DO.
NO. 5 TRAP GREASE 1/2 DO. DO. DO.
"AFTER REVIEWING THE BID BEFORE MAILING IT IN, ALL PRICES WERE
INCREASED AS FOLLOWS;
TABLE
ITEM NO. 1 COOKED GREASE 2.6 CENTS PER POUND
NO. 2 FATS 4.01 DO. DO. DO.
NO. 3 COOKED BONES 55 CENTS PER HUNDRED
NO. 4 UNCOOKED BONES 1.39 CENTS PER POUND
NO. 5 TRAP GREASE 55 CENTS PER HUNDRED
"IN WRITING UP THE BID, ITEMS NO. 3 AND NO. 5 WERE POINTED OFF
INCORRECTLY. INSTEAD OF RAISING IT FROM 50 CENTS A HUNDRED TO 55 CENTS
A HUNDRED, IT WAS COMPUTED AT $5.50 PER HUNDRED.
"THE TWO ITEMS THAT WE WERE AWARDED ARE THE MOST INVALUABLE ITEMS OF
THE 5 ITEMS, AND THROUGH AN ERROR IN COMPUTING IT HAS BECOME THE HIGHEST
IN PRICE. WE BELIEVE THAT IF YOU CHECK THE OTHER BIDS, AND BIDS THAT
WERE FILED IN THE PAST, YOU WILL SEE THAT THIS PRICE IS BY FAR IN ERROR.
"DUE TO THIS ERROR WE WILL SUFFER A SUBSTANTIAL LOSS AND WE THEREFORE
ASK THAT WE HAVE AN OPPORTUNITY TO CORRECT THIS ERROR, OR THAT OUR BID
BE VOIDED.
"ANY CONSIDERATION THAT YOU CAN GIVE US TO ADJUST THIS ERROR WILL BE
GREATLY APPRECIATED.'
THE COMPANY ALLEGES THAT IN COMPUTING THE UNIT PRICE FOR THE TRAP
GREASE COVERED BY ITEM 5, IT MISPLACED A DECIMAL POINT IN THAT PRICE.
THE ABSTRACT OF BIDS SHOWS THAT THREE OF THE FOUR OTHER BIDDERS ON ITEM
5 QUOTED PRICES OF $0.04, $0.0075 AND $0.0061 PER POUND AND THAT THE
FOURTH BIDDER DID NOT OFFER ANY COMPENSATION FOR THE TRAP GREASE COVERED
BY ITEM 5, BUT THAT IT DID OFFER TO HAUL THE GREASE AWAY. THE
DIFFERENCE BETWEEN THE BID OF THE PROGRESS TALLOW COMPANY OF $0.055 PER
POUND ON ITEM 5 AND THE NEXT HIGHEST BID RECEIVED ON THAT ITEM IS NOT SO
GREAT AS TO JUSTIFY A CONCLUSION THAT THE CONTRACTING OFFICER SHOULD
HAVE BEEN ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID OF THE
COMPANY. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID
WAS IN GOOD FAITH, NO ERROR HAVING BEEN INDICATED BY THE BID AND NONE
HAVING BEEN ALLEGED UNTIL AFTER AWARD. ALTHOUGH, AFTER AWARD, THE
COMPANY FURNISHED THE WRITTEN COPY OF ITS BID IN SUPPORT OF ITS
ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE
CONTRACTING OFFICER HAD ANY KNOWLEDGE OF THE INFORMATION CONTAINED ON
SAID WRITTEN COPY OF THE BID. CONSEQUENTLY, THERE WOULD APPEAR TO BE NO
BASIS ON WHICH IT COULD BE HELD THAT THE ACCEPTANCE OF THE BID DID NOT
CONSUMMATE A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL
ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING
COMPANY V. UNITED STATES, 259 U.S. 75.
MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED
IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS
CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS
STATED IN ITS LETTER OF AUGUST 1, 1956, THE COMPANY MADE AN ERROR
INVOLVING THE MISPLACEMENT OF A DECIMAL POINT IN THE UNIT PRICE FOR ITEM
5, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE 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 OF THE COMPANY
WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE
COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS.
249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.
ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL
BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO.
DA-/S/-04-197-AVI-172 FOR THE TRAP GREASE COVERED BY ITEM 5, AS
REQUESTED BY THE PROGRESS TALLOW COMPANY.
THE COMPANY ALLEGES FURTHER THAT IN COMPUTING ITS UNIT BID PRICE FOR
THE COOKED BONES COVERED BY ITEM 3, THE SAME TYPE OF ERROR WAS MADE AS
IN THE CASE OF ITEM 5. THE ABSTRACT OF BIDS SHOWS THAT FOR THE COOKED
BONES COVERED BY ITEM 3, THREE OF THE FOUR OTHER BIDDERS QUOTED PRICES
OF $0.01, $0.0075 AND $0.0061 PER POUND AND THAT THE FOURTH BIDDER DID
NOT OFFER ANY COMPENSATION FOR THE COOKED BONES, BUT THAT IT DID OFFER
TO HAUL THE BONES AWAY. IN VIEW OF THE DIFFERENCE BETWEEN THE BID OF
THE PROGRESS TALLOW COMPANY OF $0.055 PER POUND FOR ITEM 3 AND THE OTHER
BIDS THEREON, AND IN VIEW OF THE LIMITED USES TO WHICH THE WASTE
MATERIAL INVOLVED COULD BE PUT, THE POSSIBILITY OF ERROR WAS APPARENT
AND, UNDER THE CIRCUMSTANCES, THE BID AS TO ITEM 3 SHOULD NOT HAVE BEEN
ACCEPTED WITHOUT REQUESTING THE COMPANY TO VERIFY ITS BID.
ON THE RECORD, THERE IS LITTLE ROOM FOR DOUBT THAT THE COMPANY MADE
AN ERROR IN ITS BID AS TO ITEM 3, AS ALLEGED, AND THAT THE PROBABILITY
OF ERROR WAS SO OBVIOUS THAT ITS ACCEPTANCE, WITHOUT VERIFICATION,
SHOULD NOT BE CONSIDERED AS CREATING A BINDING CONTRACT. ACCORDINGLY,
ITEM 3 OF CONTRACT NO. DA-/S/-04-197-AVI-172 SHOULD BE CANCELLED, AND
THE PRICE FOR ANY COOKED BONES PICKED UP AND PAID FOR BY THE COMPANY MAY
BE ADJUSTED TO THE AMOUNT OF THE NEXT HIGHEST BID RECEIVED ON THAT ITEM
AND APPROPRIATE REFUND MADE TO THE COMPANY.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING
THE REFUND.
THE PAPERS, WITH THE EXCEPTION OF THE ABSTRACT OF BIDS AND THE
CONTRACTING OFFICER'S STATEMENT DATED JULY 14, 1956, ARE RETURNED.
B-129402, OCT. 10, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER DATED OCTOBER 1, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY (MATERIAL), REQUESTING A DECISION WHETHER,
AS RECOMMENDED BY THE CONTRACTING OFFICER, RELIEF PROPERLY SHOULD BE
DENIED TO THE FIRM OF OLDHAM AND SUTHERLAND, JUNCTION CITY, KENTUCKY,
FOR AN ERROR IN BID IT ALLEGED AFTER AWARD OF SALES CONTRACT NO.
N67001-444.
SEVENTY-TWO BIDDERS RESPONDED TO THE INVITATION WHICH REQUESTED BIDS
FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS AUTOMOTIVE
VEHICLES LISTED UNDER ITEMS 1 TO 23, INCLUSIVE. THE ABSTRACT OF BIDS
SHOWS THAT THE BIDS RECEIVED ON ITEM 22, ROCK CRUSHERS IN FAIR
CONDITION, WERE AS FOLLOWS:
TABLE
LOT 1 LOT 2 LOT 3 LOT 4 BID NO. 23, OLDHAM AND
SUTHERLAND $1,113.00 $2,620.00 $2,620.00
35 $1,500.00
62 529.00 1,098.00 1,098.00
24 663.00
6 389.91
8 441.89
31 390.97 412.97
46 251.50
61 134.00 389.00
48 252.98
41 206.00
51 51.51 51.51 51.58
OLDHAM AND SUTHERLAND SUBMITTED WITH ITS BID A DEPOSIT SLIGHTLY MORE
THAN 20 PERCENT OF THE TOTAL PRICE SHOWN ON ITEM 22 AND SEVERAL OTHER
ITEMS ON WHICH IT BID. BY NOTICE OF AWARD DATED JUNE 27, 1956, THE BID
OF OLDHAM AND SUTHERLAND WAS ACCEPTED. BY LETTER DATED JULY 14, 1956,
THE PURCHASER ALLEGED THAT AN ERROR OCCURRED WHEN IT HASTILY TRANSPOSED
ITS BID FROM ITS WORKING COPY TO THE SUBMITTED BID FORM, SINCE INSTEAD
OF BIDDING ON ITEM 22, LOTS 1, 2 AND 3, IT INTENDED TO BID $2,620 ON
ITEM 22, LOT 4, WHICH WAS AN ALTERNATE BID CONSISTING OF ALL THE
MATERIAL LISTED AND DESCRIBED IN ITEM 22, LOT 1 THRU 3, INCLUSIVE. BY
LETTER DATED JULY 19, 1956, THE CONTRACTING OFFICER ADVISED THE
PURCHASER THAT ITS BID PRICES DID NOT APPEAR EXCESSIVE CONSIDERING THAT
THE CONDITION OF THE ROCK CRUSHERS WAS FAIR AND THAT THE GOVERNMENT'S
ACQUISITION COST WAS $2,500 FOR LOT 1, $4,900 FOR LOT 2 AND $4,900 FOR
LOT 3. ON SEPTEMBER 11, 1956, THE PURCHASER FORWARDED PHOTOGRAPHS OF
ITS WORKING COPY OF THE BID FORM. A STATEMENT BY A. H. ALLEN,
APPARENTLY AN EMPLOYEE OF THE CONTRACTING OFFICE, DESCRIBES THE WORK
SHEET AS FOLLOWS:
"* * * ALTHOUGH THE FIGURES "$2620.00" APPEAR OPPOSITE LOT NUMBER 4,
ITEM 22, THE SAME FIGURES APPEAR BETWEEN LOT 1 AND LOT 2 AND IN ADDITION
THE FIGURES "$1113.00" APPEAR OPPOSITE LOT 1. THERE ARE ALSO NOTATIONS
UPON THE WORK SHEET OPPOSITE LOTS 1, 2 AND 3 WHICH READ "VERY GOOD"
,EXCELLENT" "VERY GOOD.' THERE IS NO COMBINATION OF FIGURES FOR LOTS 1,
2 AND 3 WHICH WOULD TOTAL $2620.00 WHICH IS ALLEGED TO BE THE INTENDED
BID FOR LOT 4 COVERING ALL THE ITEMS IN LOTS 1, 2 AND 3. THE MOST THAT
CAN BE INFERRED FROM STUDYING THESE WORK SHEETS IS THAT THE PRICES
APPEARING THEREON ARE CONFUSING AND IT IS EVIDENT THAT A MISTAKE COULD
EASILY HAVE BEEN MADE IN TRANSPOSING THESE FIGURES TO THE FINAL BID.
HOWEVER, SUCH CONFUSION RESULTS FROM THE BIDDER'S OWN NOTATIONS AND
INDICATES ITS CARELESSNESS IN PREPARING THE BID. * * *"
IN ADDITION, THE WORK SHEET IS UNSUBSTANTIAL AND IRREGULAR INASMUCH
AS IT INDICATES THAT IT WAS ALTERED OR AMENDED. IN THE TOTAL BID PRICE
COLUMN OPPOSITE A DESCRIPTION OF LOTS 2 AND 3 THERE APPEARS A NOTATION
"2220" WHICH HAS BEEN ALTERED TO "2620.' JUST BELOW THIS ALTERATION
THERE APPEARS THE SYMBOL "AT," COMMONLY USED TO INDICATE "EACH," WHICH
HAS BEEN ALTERED TO "LOT.'
THE QUESTION FOR CONSIDERATION IS WHETHER A VALID CONTRACT WAS
CONSUMMATED BY THE ACCEPTANCE OF THE PURCHASER'S BID.
ALTHOUGH THERE IS A WIDE VARIANCE BETWEEN THE BID OF THE PURCHASER
AND THE OTHER BIDDERS, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER
WAS PLACED ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE
PURCHASER AND THAT HE SHOULD HAVE REQUESTED THE BIDDER TO VERIFY ITS
BID. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON
SURPLUS, SALVAGE AND WASTE PROPERTY, A MERE PRICE DIFFERENCE WOULD NOT
NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF
ERROR, AS WOULD SIMILAR PRICE DIFFERENCES ON NEW EQUIPMENT TO BE
FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS
PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO
BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE THE BIDDER
MIGHT WISH TO TAKE. SEE 16 COMP. GEN. 576; 17 ID. 388; ID. 601; 1D.
976; 28 ID. 261; AND ID. 550. THUS, SINCE NO ERROR WAS ALLEGED UNTIL
AFTER AWARD, THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH AND
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; AND AMERICAN SMELTING AND REFINING COMPANY V.
UNITED STATES, 259 U.S. 75.
FURTHERMORE, THE RESPONSIBILITY FOR PREPARATION OF A BID IS UPON THE
BIDDER, SINCE THE GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS
FROM AN IMPROVIDENT QUOTATION. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY
V. UNITED STATES, 100 C.CLS. 120, 163. THE MISTAKE WAS DUE TO THE
BIDDER'S NEGLIGENCE, CARELESSNESS OR OVERSIGHT; IT WAS NOT INDUCED BY
THE GOVERNMENT, AND THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER
SUSPECT THAT THE QUOTATION WAS NOT AS INTENDED. SEE GRYMES V. SANDERS,
ET AL., 93 U.S. 55, 61; AND 3 WILLISTON ON SALES 654. THE ERROR THAT
WAS MADE WAS UNILATERAL; THEREFORE, THE PURCHASER IS NOT ENTITLED TO
ANY REDRESS. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249,
259; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND 3
WILLISTON ON SALES 656.
INASMUCH AS THE BID WAS REGULAR ON ITS FACE, THE DIFFERENCE IN BID
PRICES WAS NOT SUFFICIENT TO AMOUNT TO CONSTRUCTIVE NOTICE OF ERROR, AND
THE ERROR WAS ALLEGED AFTER AWARD, THERE IS NO LEGAL BASIS TO GRANT ANY
RELIEF IN THIS MATTER. ACCORDINGLY, THE PURCHASER SHOULD BE CALLED UPON
TO MAKE PAYMENT OF THE BALANCE OF THE PURCHASE PRICE AND TO REMOVE THE
PROPERTY FROM THE GOVERNMENT SITE. IF THE PURCHASER DEFAULTS IN THIS
RESPECT, THE GOVERNMENT'S RIGHT TO RETAIN LIQUIDATED DAMAGES AS PROVIDED
IN PARAGRAPH 18 OF THE GENERAL TERMS AND CONDITIONS OF THE SALE SHOULD
BE
B-124089, OCT. 9, 1956
TO MR. DON B. REAGAN:
REFERENCE IS MADE TO YOUR LETTERS DATED SEPTEMBER 7 AND 8, 1956,
RELATIVE TO THE CLAIM OF THE GREAT LAKES MANUFACTURING CORPORATION,
WHEREIN YOU AGAIN PROTEST THE ACTION TAKEN BY US IN APPLYING THE BALANCE
OTHERWISE DUE UNDER CONTRACTS NOS. AF33/600/-24370 AND AF33/600/-23725,
IN PARTIAL LIQUIDATION OF THE CORPORATION'S INDEBTEDNESS TO THE UNITED
STATES. MOST OF THE CONTENTIONS MADE IN YOUR PRESENT CORRESPONDENCE
PREVIOUSLY HAVE BEEN RAISED BY YOU AND HAVE BEEN THE SUBJECT OF PRIOR
DECISIONS. FOR EXAMPLE, YOU AGAIN DENY THE LEGALITY OF THE GOVERNMENT'S
CLAIM, WHEREAS IN YOUR LETTER OF JULY 2, 1953, TO THE ADMINISTRATIVE
OFFICE YOU ACKNOWLEDGED THE CORRECTNESS THEREOF, BASED ON PRICE
REDETERMINATION AGREEMENTS, AND SUGGESTED A METHOD OF LIQUIDATION. YOU
AGAIN DENY ANY RELATIONSHIP BETWEEN THE GREAT LAKES MANUFACTURING
CORPORATION AND THE GREAT LAKES MANUFACTURING COMPANY. NEVERTHELESS, IN
YOUR LETTER DATED MAY 20, 1954, ALSO TO THE ADMINISTRATIVE OFFICE, YOU
ACKNOWLEDGED ONE TO BE A SUCCESSOR TO THE OTHER WITH ALL RIGHTS AND
LIABILITIES BEING ASSUMED BY THE LATER CONCERN. AS PREVIOUSLY STATED, A
REFUTATION OF THOSE SAME CONTENTIONS WAS SET FORTH IN DETAIL IN OUR
DECISIONS OF JULY 27, 1955, AND MARCH 28, 1956, CITING AMPLE FACTS AND
AUTHORITY FOR DISREGARDING THE SEPARATE ENTITY THEORY UPON WHICH YOU
RELY, AND THE MATTERS SET FORTH IN THESE DECISIONS WILL NOT BE REPEATED.
YOU AGAIN URGE THAT OUR OFFICE HAD NO AUTHORITY TO SET OFF THE AMOUNT
DUE UNDER THE CITED CONTRACTS IN VIEW OF THE PROVISIONS OF THE
ASSIGNMENT OF CLAIMS ACT OF 1940, AS AMENDED, 31 U.S.C. 203. IN REPLY
WE CAN ONLY REPEAT THAT THE ENTIRE AMOUNT DUE UNDER THE CONTRACTS WOULD
HAVE BEEN APPLIED TO THE INDEBTEDNESS HAD THERE NOT EXISTED A BALANCE
DUE THE CALUMET NATIONAL BANK OF HAMMOND UNDER ONE OF THE ASSIGNMENTS.
THE "NO SETOFF" PROVISION OF THE ACT WAS DESIGNED TO PROTECT THE
INTERESTS OF LENDING INSTITUTIONS IN FINANCING CONTRACTORS WORKING ON
GOVERNMENT CONTRACTS, BUT DOES NOT CREATE ANY RIGHTS IN THOSE
CONTRACTORS. THE STATUTE REQUIRES THAT A PROPERLY EXECUTED ASSIGNMENT
BE RECOGNIZED, THEREBY ESTABLISHING IN THE ASSIGNEE A LEGAL RIGHT TO
DEMAND PAYMENT OF THE PROCEEDS OF A CONTRACT TO THE EXTENT OF THE UNPAID
ADVANCES MADE. BUT, THERE IS NOTHING IN THE ACT AUTHORIZING THE USE OF
AN ASSIGNMENT AS A DEVICE MERELY FOR COLLECTION, PARTICULARLY WHERE THE
GOVERNMENT'S RIGHTS MAY BE JEOPARDIZED. THE SETOFF HERE WAS MADE
PURSUANT TO A COMMON LAW RIGHT UNIVERSALLY RECOGNIZED, AND TO AVOID THE
CIRCUITY OF ACTION WHICH WAS REFERRED TO BY THE COURT AT PAGE 537 IN THE
CASE OF STONE V. WHITE, 301 U.S. 532. THAT PHASE OF YOUR ARGUMENT ALSO
WAS FULLY COVERED PREVIOUSLY BY OUR LETTER OF AUGUST 28, 1956.
IN REALITY YOUR LATEST CORRESPONDENCE CONTAIN ARGUMENTS OF A
GENERALLY REPETITIOUS NATURE AND BRINGS NOTHING TO OUR ATTENTION WHICH
WAS NOT FULLY CONSIDERED BY US IN THE DISPOSITION OF YOUR PREVIOUS
PROTESTS. SINCE ALL THE FACTS NECESSARY FOR A COMPLETE DELIBERATION OF
THE CASE ARE CONTAINED IN THE FILES SUBMITTED BY YOU AND BY THE
DEPARTMENT OF THE AIR FORCE, NO USEFUL PURPOSE WOULD BE SERVED IN
UNDERTAKING AN INVESTIGATION OF YOUR RECORDS. ALSO, THERE IS REJECTED
YOUR SUGGESTION THAT A HEARING BE HELD IN THE MATTER SINCE DECISIONS OF
THE GENERAL ACCOUNTING OFFICE UNDER ITS STATUTORY AUTHORITY MAY BE
RENDERED ONLY ON THE WRITTEN RECORD, AND THEREFORE ORAL ARGUMENT SO
PRESENTED WOULD BE USELESS UNLESS THE SUBSTANCE OF SUCH ARGUMENT BE
REDUCED TO WRITING.
IN VIEW OF THE EXTENT AND NATURE OF THE NUMEROUS LETTERS RECEIVED
FROM YOU IN REGARD TO THIS CASE WE HAVE NO ALTERNATIVE BUT TO ADVISE YOU
THAT UNLESS NEW AND MATERIAL EVIDENCE IS RECEIVED, OR LEGAL CONTENTIONS
ADVANCED, WHICH WERE NOT HERETOFORE CONSIDERED, FURTHER CORRESPONDENCE
IN THE MATTER WILL SERVE NO USEFUL PURPOSE.
B-125206, OCT. 9, 1956
TO MR. HAROLD A. BANGERT, JR., ASSISTANT ATTORNEY GENERAL:
BY LETTER OF AUGUST 17, 1956, WE FURNISHED YOU A COPY OF LETTER DATED
AUGUST 9, 1956, WITH ENCLOSURE, FROM THE DEPUTY ADMINISTRATOR OF
VETERANS AFFAIRS ADVISING THAT ON THE BASIS OF A SURVEY MADE BY IT, THE
VETERANS ADMINISTRATION HAD DETERMINED THAT THE STATE SOLDIERS' HOME AT
WESTON, WEST VIRGINIA, DID NOT QUALIFY FOR FEDERAL AID PAYMENTS UNDER
THE ACT OF AUGUST 27, 1888, AS AMENDED, 24 U.S.C. 134, AS CONSTRUED BY
OUR DECISIONS. WE ADVISED YOU IN THAT LETTER THAT WE WOULD WITHHOLD OUR
FINAL DECISION PENDING ANY COMMENTS YOU OR THE WEST VIRGINIA DEPARTMENT
OF VETERANS AFFAIRS MIGHT CARE TO SUBMIT.
ON SEPTEMBER 5, 1956, YOU CALLED AT OUR OFFICE IN PERSON AND
DISCUSSED THE MATTER WITH A REPRESENTATIVE OF OUR GENERAL COUNSEL'S
OFFICE. IT IS REPORTED THAT IN THE CONFERENCE YOU STATED THE FACTUAL
REPORT OF THE SURVEY APPEARED FAIRLY TO PORTRAY THE PRESENT CONDITIONS
IN THE WESTON HOME AND CONCEDED THAT UNDER THE 1888 ACT, AS AMENDED, AND
OUR DECISIONS CONSTRUING SUCH ACT, THE HOME AS PRESENTLY CONSTITUTED
COULD NOT QUALIFY FOR THE FEDERAL AID PAYMENTS. YOU REQUESTED IN VIEW
THEREOF THAT WE TAKE NO FURTHER ACTION ON THE STATE'S CLAIM UNTIL SUCH
TIME AS THE MATTER IS PRESENTED TO THE STATE LEGISLATURE FOR A
DETERMINATION AS TO WHETHER THE SET UP OF THE HOME SHOULD BE MODIFIED SO
THAT IT MIGHT QUALIFY UNDER THE ACT FOR THE FEDERAL AID PAYMENTS. YOU
ADVISED THAT IF A DECISION TO DO SO WAS REACHED AND THE CHANGES WERE
MADE, A REQUEST FOR A SURVEY OF THE RECONSTITUTED HOME WOULD THEN BE
MADE.
ACCORDINGLY, AND IN CONFORMITY WITH YOUR REQUEST, WE WILL TAKE NO
FURTHER ACTION IN THE MATTER UNTIL AND UNLESS WE RECEIVE FROM YOU OR THE
STATE'S DEPARTMENT OF VETERANS AFFAIRS A REQUEST THAT WE DO OTHERWISE.
SUCH INACTION IS WITHOUT PREJUDICE TO ANY FUTURE CLAIM THE STATE, AFTER
IT MAKES WHATEVER CHANGES ARE FELT NECESSARY TO ENABLE THE HOME TO
QUALIFY, MAY FILE FOR FEDERAL AID PAYMENTS.
B-127430, OCT. 9, 1956
TO MR. ERNEST P. IMLE, AGRICULTURAL RESEARCH SERVICE:
YOUR LETTER OF AUGUST 28, 1956, REQUESTS RECONSIDERATION OF THAT
PORTION OF OUR SETTLEMENT OF AUGUST 22, 1956, WHICH DISALLOWED YOUR
CLAIM FOR PER DIEM FOR THE PERIOD SEPTEMBER 3, 1954, TO MARCH 13, 1955,
WHILE YOU WERE ASSIGNED TO A SPECIAL LIQUIDATION PROJECT AT BELTSVILLE,
MARYLAND, BY THE DEPARTMENT OF AGRICULTURE.
IT APPEARS TO BE YOUR BELIEF THAT OUR DENIAL OF YOUR CLAIM FOR PER
DIEM MAY HAVE BEEN DUE TO AN ERRONEOUS IMPRESSION THAT YOU WERE AN
EMPLOYEE OF THE FOREIGN OPERATIONS ADMINISTRATION IN COSTA RICA, WHEREAS
YOU WERE IN FACT AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE. YOU ALSO
ARE OF THE OPINION THAT YOUR HEADQUARTERS "REMAINED IN COSTA RICA"
DURING THE ABOVE PERIOD OF SERVICE.
THE RECORD SHOWS THAT WHEN YOU DEPARTED FROM COSTA RICA, UNDER
INSTITUTE OF INTER-AMERICAN AFFAIRS TRAVEL AUTHORIZATION NO.
W-CR-INTNL-25-54, DATED JUNE 11, 1954, PROVIDING FOR YOUR RETURN TO THE
UNITED STATES "FOR HOME LEAVE, CONSULTATION, AND REASSIGNMENT," YOU WERE
ON NOTICE THAT YOU HAD COMPLETED YOUR ASSIGNMENT WITH THE FOREIGN
OPERATIONS ADMINISTRATION IN COSTA RICA, AND WERE NOT TO RETURN TO THAT
PLACE FOR FURTHER DUTY. BY USFOTO-124, DATED JUNE 18, 1954, YOU WERE
REQUESTED TO REPORT TO WASHINGTON, D.C., FOR CONSULTATION BEFORE TAKING
HOME LEAVE. IT IS ALSO SHOWN IN A DEPARTMENT OF AGRICULTURE MEMORANDUM
DATED JULY 2, 1954, THAT YOU WERE ASSIGNED BY THAT DEPARTMENT TO A
SPECIAL LIQUIDATION PROJECT AT BELTSVILLE, MARYLAND.
THE ABOVE MEMORANDUM OF JULY 2 HAD THE EFFECT OF ACCOMPLISHING A
REASSIGNMENT AND CHANGE OF OFFICIAL STATION SUBJECT TO YOUR TAKING HOME
LEAVE. FOR PER DIEM PURPOSES BELTSVILLE THEN BECAME THE PLACE AT WHICH
YOU WERE INDEFINITELY EXPECTED TO PERFORM YOUR DUTIES AND THEREFORE,
COSTA RICA CEASED TO BE YOUR OFFICIAL STATION AFTER SEPTEMBER 2, 1954.
YOUR ENTITLEMENT TO PER DIEM IS NOT CONTINGENT UPON WHETHER YOU WERE
A FOREIGN OPERATIONS ADMINISTRATION EMPLOYEE, OR A DEPARTMENT OF
AGRICULTURE EMPLOYEE. RATHER, SUCH ENTITLEMENT IS DEPENDENT UPON A
DETERMINATION OF YOUR PERMANENT DUTY STATION DURING THE PERIOD OF YOUR
CLAIM. THE FACTS IN YOUR CASE ESTABLISH THAT BELTSVILLE, MARYLAND, WAS
YOUR OFFICIAL STATION DURING THE PERIOD FOR WHICH PER DIEM IS CLAIMED,
AND UNDER PARAGRAPH 46 OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, PER DIEM MAY NOT
BE AUTHORIZED.
ACCORDINGLY, UPON REVIEW, THAT PART OF OUR SETTLEMENT OF AUGUST 22,
1956, WHICH DISALLOWED YOUR CLAIM IS FOUND CORRECT AND MUST BE
SUSTAINED.
B-128297, OCT. 9, 1956
TO HAMILTON-EAGLES FUNERAL HOME:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1956, PROTESTING
THE ACTION OF THE CONTRACTING OFFICER AT FORT BRAGG, NORTH CAROLINA, IN
AWARDING CONTRACT NO. DA 31-001-AIII-1935, DATED JUNE 2, 1956, COVERING
FUNERAL SERVICES FOR THE FISCAL YEAR ENDING JUNE 30, 1957, TO THE
JERNIGAN-WARREN FUNERAL HOME, FAYETTEVILLE, NORTH CAROLINA.
THE SUBSTANCE OF YOUR PROTEST IS THAT IN THE EVALUATION OF THE BIDS
THE CONTRACTING OFFICER WRONGFULLY TOOK INTO CONSIDERATION THE 2 PERCENT
CASH DISCOUNT OFFERED BY THE SUCCESSFUL BIDDER FOR PAYMENT WITHIN 10
DAYS, THEREBY MAKING THE NET BID OF THE JERNIGAN-WARREN FUNERAL HOME
$18,130, OR $160 LOWER THAN THE BID OF YOUR COMPANY ($18,390) ON THE TWO
PRINCIPAL ITEMS OF SERVICES DESCRIBED AS ITEMS NOS. 1 AND 2 OF THE
INVITATION, NO. QM/W) 31-001-56-148. IN YOUR LETTER OF JUNE 11, YOU
REFER SPECIFICALLY TO ARTICLE 7 OF THE CONTRACT GENERAL PROVISIONS,
WHICH STIPULATES, IN PART, THAT "PAYMENT FOR ACCEPTED PARTIAL DELIVERIES
SHALL BE MADE WHENEVER SUCH PAYMENT WOULD EQUAL OR EXCEED EITHER $1,000
OR 50 PERCENT OF THE TOTAL AMOUNT OF THIS CONTRACT," AND YOU POINT OUT
THAT, IF PAYMENTS WERE ACTUALLY MADE ON SUCH BASIS, NEITHER THE AMOUNTS
INVOLVED NOR THE TIME NORMALLY CONSUMED IN THE PROCESSING OF THE
NECESSARY PAPERS WOULD PERMIT THE MAKING OF PAYMENTS IN SUFFICIENT TIME
TO TAKE ADVANTAGE OF THE 2 PERCENT DISCOUNT OFFERED BY THE CONTRACTOR
FOR PAYMENT WITHIN 10 CALENDAR DAYS.
YOU FURTHER POINT OUT THAT, IN THE EVALUATION OF THE BIDS RECEIVED,
THE CONTRACTING OFFICER FAILED TO TAKE INTO CONSIDERATION THE ITEM OF
TRANSPORTATION, ITEM NO. 3 OF THE INVITATION, ON WHICH YOU QUOTED ONLY
25 CENTS PER MILE FOR TRANSPORTATION BEYOND THE CONTRACT RADIUS OF 30
MILES, AS COMPARED TO THE CONTRACTOR'S QUOTATION OF 40 CENTS PER LOADED
MILE.
CONCERNING YOUR CONTENTION THAT THE CASH DISCOUNT OFFERED BY THE
SUCCESSFUL BIDDER SHOULD NOT HAVE BEEN TAKEN INTO CONSIDERATION IN THE
EVALUATION OF THE BIDS RECEIVED, THE EXPRESS AUTHORITY FOR THE
CONSIDERATION OF SUCH DISCOUNTS FOR EVALUATION PURPOSES IS CONTAINED IN
ARTICLE 7, TERMS AND CONDITIONS OF THE INVITATION, WHICH PROVIDES:
"7. DISCOUNTS.--- (A) PROMPT-PAYMENT DISCOUNTS WILL BE INCLUDED IN
THE EVALUATION OF BIDS, PROVIDED THE PERIOD OF THE OFFERED DISCOUNT IS
SUFFICIENT TO PERMIT PAYMENT WITHIN SUCH PERIOD IN THE REGULAR COURSE OF
BUSINESS UNDER THE DELIVERY, INSPECTION, AND PAYMENT PROVISIONS OF THE
INVITATION AND BID.'
ARTICLE 7 (B) PROVIDES, IN SUBSTANCE, THAT TIME, IN CONNECTION WITH
THE DISCOUNTS OFFERED, SHALL BE COMPUTED EITHER FROM DATE OF DELIVERY
AND ACCEPTANCE OF THE CONTRACT SERVICES, OR FROM DATE OF RECEIPT BY THE
GOVERNMENT OF THE CONTRACTOR'S CORRECT AND PROPERLY CERTIFIED INVOICE OR
VOUCHER, WHICHEVER IS LATER. THE QUESTION OF WHETHER THE PAYMENTS UNDER
THIS TYPE OF CONTRACT NORMALLY CAN BE EFFECTUATED WITHIN 10 CALENDAR
DAYS, COMPUTED IN THE MANNER PRESCRIBED ABOVE, HAS BEEN THOROUGHLY
INVESTIGATED BY THE RESPONSIBLE ADMINISTRATIVE OFFICIALS, AND IN A
REPORT DATED AUGUST 28, 1956, PREPARED BY THE CONTRACTING OFFICER, IT IS
STATED:
"1. AS EVIDENCE OF THE INTENT OF THE GOVERNMENT TO TAKE ADVANTAGE OF
DISCOUNTS OFFERED UNDER CONTRACTS FOR THE CARE OF REMAINS, THERE ARE
ATTACHED CONFORMED COPIES OF VOUCHERS COVERING PAYMENT FOR SERVICES
RENDERED UNDER DELIVERY ORDERS NO. 1 THROUGH NO. 41, CONTRACT NO. DA
31-001-AIII-1742 WITH THE JERNIGAN-WARREN FUNERAL HOME, FAYETTEVILLE,
NORTH CAROLINA, DURING FISCAL YEAR 1956. THESE DELIVERY ORDERS, WITH
THE EXCEPTION OF NO. 7 AND NO. 24, WERE ISSUED BY THE CONTRACTING
OFFICER, FORT BRAGG, N.C. AND PAID BY THE FINANCE AND ACCOUNTING
OFFICER, FORT BRAGG, N.C., APPLICABLE DISCOUNTS BEING TAKEN IN EACH
INSTANCE. DELIVERY ORDERS NO. 7 AND NO. 24 WERE ISSUED BY THE
CONTRACTING OFFICER, POPE AIR FORCE BASE, UNDER THE JOINT-USE CONTRACT
PREPARED BY THE CONTRACTING OFFICER, FORT BRAGG, N.C. DISCOUNTS WERE
NOT TAKEN UNDER THESE TWO DELIVERY ORDERS FOR THE REASON THAT THE
CONTRACTING OFFICER, POPE AIR FORCE BASE INADVERTENTLY ENTERED THE
DISCOUNT TERMS ON THE DELIVERY ORDERS AS "NET" INSTEAD OF "2 PERCENT 10
DAYS" AS SHOWN IN THE CONTRACT. THE CONTRACTING OFFICER, POPE AIR FORCE
BASE, HAS ADVISED THAT CORRECTIVE ACTION WILL BE TAKEN AND THE AMOUNT OF
DISCOUNT RECOVERED FROM THE CONTRACTOR, SINCE PAYMENT WAS MADE WITHIN
THE 10-DAY DISCOUNT PERIOD.'
A REFERENCE TO THE 41 VOUCHERS REFERRED TO CONFIRMS THE CONTRACTING
OFFICER'S ASSERTION THAT, EXCEPT FOR THE TWO PAYMENTS ON WHICH THE
DISCOUNTS WERE INADVERTENTLY OVERLOOKED, ALL OF THE REMAINING PAYMENTS
FOR FUNERAL SERVICES RENDERED BY THE CONTRACTOR DURING THE PRIOR FISCAL
YEAR ENDING JUNE 30, 1956, WERE MADE WITHIN THE 10-DAY DISCOUNT PERIOD
SPECIFIED IN THE CONTRACT, THUS CLEARLY ESTABLISHING THAT THE VOUCHERS
CAN READILY BE PROCESSED FOR PAYMENT WITHIN 10 DAYS AFTER RENDITION OF
THE ORDERED SERVICES.
YOUR REFERENCE TO THE PAYMENT PROVISIONS RECITED IN ARTICLE 7 OF THE
CONTRACT "GENERAL PROVISIONS," PROVIDING FOR THE MAKING OF PAYMENTS ON
"PARTIAL DELIVERIES" WHEN THE AMOUNT INVOLVED EQUALS OR EXCEEDS $1,000
OR 50 PERCENT OF THE TOTAL AMOUNT OF THE CONTRACT, IS NOT PROPER, SINCE,
OBVIOUSLY, THIS PARTICULAR CLAUSE HAS RELATION TO CONTRACTS CALLING FOR
THE DELIVERY OF DEFINITE QUANTITIES OF SUPPLIES OR MATERIALS, AND NOT TO
CONTINUING CONTRACTS FOR THE RENDITION OF SERVICES AS REQUIRED, EACH
SERVICE CONSTITUTING A SEPARATE AND ENTIRE TRANSACTION. IN THIS
CONNECTION, YOU WILL OBSERVE THAT ARTICLE 7 ALSO PROVIDES THAT THE
CONTRACTOR SHALL BE PAID UPON THE SUBMISSION OF PROPERLY CERTIFIED
INVOICES OR VOUCHERS FOR SUPPLIES DELIVERED "OR SERVICES RENDERED AND
ACCEPTED," AS HERE. THUS, IT IS APPARENT THAT PAYMENTS BECOME DUE UNDER
THE CONTRACT ON EACH COMPLETE FUNERAL SERVICE OR OPERATION RENDERED BY
THE CONTRACTOR UPON THE ORDER OF THE GOVERNMENT.
FINALLY, THE FACT THAT TRANSPORTATION SERVICES OF THE KIND CALLED FOR
UNDER ITEM NO. 3 OF THE CONTRACT WERE NOT CONSIDERED FOR EVALUATION
PURPOSES WOULD MAKE NO MATERIAL DIFFERENCE IN THE AWARDING OF THE
CONTRACT SINCE, ACCORDING TO AVAILABLE RECORDS, THE TRAVEL PER LOADED
MILE AMOUNTED TO ONLY 338 MILES DURING THE PRIOR FISCAL YEAR, WHICH
WOULD ACCOUNT FOR A NET DIFFERENCE OF ONLY $50.70 IN THE NET BID PRICES
OF YOURS AND THE ACCEPTED BID. WHILE IT IS RECOGNIZED THERE IS NO
RELIABLE CRITERION FOR ESTIMATING THE MILEAGE BEYOND THE 30-MILE RADIUS
SPECIFIED IN THE CONTRACT, THERE IS LITTLE LIKELIHOOD OF THE MILEAGE
BEING SO GREAT AS TO CAUSE YOU TO BE THE ULTIMATE LOW BIDDER BY REASON
OF YOUR LOWER MILEAGE RATE.
IN THE CIRCUMSTANCES, AS HEREINBEFORE RELATED, WE FIND NO PROPER
BASIS FOR DISTURBING THE ACTION OF THE CONTRACTING OFFICER.
B-128826, OCT. 9, 1956
TO CHAIRMAN, FEDERAL MARITIME BOARD:
REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1956, REQUESTING TO BE
ADVISED IF THIS OFFICE WOULD INTERPOSE ANY OBJECTION TO CERTAIN ACTIONS
CONTEMPLATED BY THE FEDERAL MARITIME BOARD IN CONNECTION WITH
TERMINATION OF THE CURRENT OPERATING-DIFFERENTIAL SUBSIDY CONTRACT WITH
SEAS SHIPPING COMPANY, INC., ON TRADE ROUTE 15-A.
AS OUTLINED IN YOUR LETTER THE CONTRACT IN QUESTION BECAME EFFECTIVE
ON OCTOBER 14, 1938, WILL TERMINATE ON DECEMBER 31, 1957, AND IS SUBJECT
TO A SPECIFIC PROVISION CONTAINED IN ARTICLE I-2 THAT SAILINGS SHALL BE
REDUCED IN THE YEAR PRECEDING THE TERMINATION DATE BY ELIMINATING
VOYAGES WHICH WOULD NOT BE COMPLETED BY SUCH TERMINATION DATE. HOWEVER,
THE CONTRACTOR HAS REQUESTED THAT, UPON TERMINATION AND IN LIEU OF
RENEWAL, A NEW CONTRACT COVERING THE SAME SERVICE BE AWARDED TO ITS
WHOLLY-OWNED SUBSIDIARY, ROBIN LINE, INC., TO WHICH SUBSIDIARY THE
CONTRACTOR WILL TRANSFER TITLE TO ITS PRESENT FLEET OF TWELVE VESSELS.
ACCORDINGLY, IN VIEW OF THE PROVISIONS OF ARTICLE I-2 AND IN ORDER TO
AVOID ANY INTERRUPTION OR DIMUNITION OF ADEQUATE AMERICAN FLAG SERVICE
ON TRADE ROUTE 15-A DURING THE TRANSITION PERIOD, YOU PROPOSE TO TAKE
THE FOLLOWING ACTION:
"/1) BY MUTUAL AGREEMENT AMEND THE SEAS CONTRACT (A) TO SPECIFY A ONE
YEAR EARLIER TERMINATION DATE, VIZ., DECEMBER 31, 1956; AND (B) TO
DELETE THE ABOVE-QUOTED PORTION OF ARTICLE I-2 SO AS TO OBVIATE THE
NECESSITY FOR ANY REDUCTION IN SAILINGS DURING THE LAST YEAR OF SAID
CONTRACT; AND
"/2) AT THE SAME TIME, AWARD ROBIN LINE, INC. AN
OPERATING-DIFFERENTIAL SUBSIDY CONTRACT EFFECTIVE AS TO VOYAGES
COMMENCING AFTER JANUARY 1, 1957, COVERING THE SAME VESSELS, SERVICES
ROUTES AND LINES NOW COVERED IN THE SEAS CONTRACT.'
THE EXECUTION OF AN OPERATING-DIFFERENTIAL SUBSIDY CONTRACT WITH A
NEW OPERATOR, PRIOR TO EXPIRATION OF AN EXISTING CONTRACT FOR THE SAME
SERVICE, AND THE CONCURRENT OPERATION OF SUCH CONTRACTS DURING THE
PERIOD OF TRANSITION IS INDISPENSABLE TO THE MAINTENANCE OF REGULAR AND
UNINTERRUPTED SERVICE ON AN ESSENTIAL TRADE ROUTE, AND IT IS REASONABLE
TO ASSUME THAT CONGRESS CONTEMPLATED SUCH ACTION BY THE BOARD TO
EFFECTUATE THE PURPOSES OF THE MERCHANT MARINE ACT, 1936, AS AMENDED.
SEE OUR LETTER TO THE MARITIME ADMINISTRATION DATED FEBRUARY 3, 1955,
B-120594. IN THE INSTANT CASE IT IS ASSUMED YOUR PROPOSED ACTION
CONTEMPLATES THAT SUBSIDY PAYMENTS WOULD BE MADE DURING THE PERIOD OF
TRANSITION TO THE CONTRACTOR WHO HELD TITLE TO A PARTICULAR VESSEL
DURING ITS ENTIRE VOYAGE. ADDITIONALLY, YOU INDICATE THAT THE FEDERAL
MARITIME BOARD CONSIDERS THE ACTION CONTEMPLATED AS ADVANTAGEOUS TO THE
UNITED STATES. UNDER THE CIRCUMSTANCES, MODIFICATION OF THE EXISTING
CONTRACT WOULD APPEAR, IN ALL MATERIAL RESPECTS, TO BE CONSONANT WITH
THE VIEWS EXPRESSED IN OUR LETTER OF FEBRUARY 3, 1955.
ACCORDINGLY, IN THE EVENT THE FEDERAL MARITIME BOARD IS ABLE TO MAKE
THE PREREQUISITE FINDINGS PRESCRIBED BY THE MERCHANT MARINE ACT, 1936,
AS AMENDED, TO SUPPORT THE AWARD OF AN OPERATING-DIFFERENTIAL SUBSIDY
CONTRACT TO ROBIN LINE, INC., WE HAVE NO REASON TO OBJECT TO THE ACTION
YOU HAVE PROPOSED.
B-129285, OCT. 9, 1956
TO E. J. BUTTON AND SONS:
THE MATTER OF YOUR CLAIM FOR REFUND OF $5,000 DEPOSITED IN CONNECTION
WITH A PURCHASE UNDER AUCTION SALE INVITATION NO. B-15-55, ISSUED BY THE
NAVAL CONSTRUCTION BATTALION CENTER, DAVISVILLE, RHODE ISLAND, HAS BEEN
REFERRED HERE BY THE DEPARTMENT OF THE NAVY FOR APPROPRIATE ACTION.
THE RECORD SHOWS THAT YOU SUBMITTED THE HIGH BID OF $20,000 AT THE
PUBLIC AUCTION FOR ITEM NO. 2 OF THE SALE CATALOG, COVERING ONE CRAWLER
CRANE. YOU POSTED A $5,000 DEPOSIT, AS REQUIRED, AND YOU EXECUTED A
"MEMORANDUM OF PURCHASE" IN CONNECTION WITH THE TRANSACTION.
THEREAFTER, YOU INFORMED THE CONTRACTING OFFICER THAT YOUR BID OF
$20,000 WAS INTENDED FOR ITEM NO. 3 OR ITEM NO. 4, COVERING CRAWLER
CRANE ASSEMBLIES AND UPON BEING OFFERED THE ALTERNATIVE OF EITHER
CARRYING OUT THE SALE AS ORIGINALLY CONSUMMATED OR ASSUMING THE
DIFFERENCE BETWEEN ANY RESALE PRICE RECEIVED AND YOUR PRICE OF $20,000,
YOU CHOSE THE LATTER. ITEM NO. 2 WAS THEN RESOLD FOR $17,500 WHICH
ESTABLISHED YOUR RESALE OBLIGATION OF $2,500. SUCH AMOUNT WAS RETAINED
FROM YOUR DEPOSIT OF $5,000 AND A REFUND OF THE BALANCE OF $2,500 WAS
FORWARDED TO YOU BY THE DEPARTMENT OF THE NAVY ON TWO SEPARATE
OCCASIONS. YOU RETURNED THE CHECK EACH TIME CLAIMING A REFUND OF THE
FULL AMOUNT OF YOUR DEPOSIT.
THERE CAN BE NO DOUBT FROM THE FACTS AND EVIDENCE OF RECORD THAT YOU
ACCEPTED THE "KNOCK-DOWN" OF THE AUCTIONEER AND MADE THE REQUIRED
DEPOSIT OF 25 PERCENT OF YOUR BID. AS A STILL FURTHER, AND PERHAPS EVEN
MORE IMPORTANT, AFFIRMATION OF THE CONTRACT OF SALE, IS THE FACT THAT
YOU EXECUTED THE "MEMORANDUM PF PURCHASE" WHEREIN YOU UNQUALIFIEDLY
ACKNOWLEDGED THAT YOU WERE THE HIGHEST BIDDER AND THAT YOU WERE DECLARED
THE PURCHASER OF ITEM NO. 2 FOR $20,000. THUS, THERE IS NO QUESTION AS
TO THE LEGALITY OF THE CONTRACTUAL OBLIGATION THAT BECAME EFFECTIVE
UNDER SUCH CIRCUMSTANCES. ANY ERROR THAT MIGHT HAVE BEEN MADE IN YOUR
BID--- NONE IS ESTABLISHED IN THE RECORD--- WOULD NOT AFFECT SUCH
OBLIGATION WHICH WAS PREDICATED UPON A VALID ACCEPTANCE OF YOUR BID MADE
IN GOOD FAITH AND WITHOUT ANY NOTICE OF PROBABLE ERROR THEREIN.
IN VIEW OF THE FOREGOING, IT IS THE OPINION OF OUR OFFICE THAT THERE
MIGHT PROPERLY BE APPLIED TO THE TRANSACTION ARTICLE 7 OF THE GENERAL
CONDITIONS AND TERMS OF THE SALE WHICH PROVIDES, AMONG OTHER THINGS,
THAT IN THE EVENT THE PURCHASER FAILS TO CARRY OUT ANY OF THE TERMS OF
THE CONTRACT THE PURCHASER'S DEPOSIT SHALL BE RETAINED BY THE GOVERNMENT
AS LIQUIDATED DAMAGES. NOTWITHSTANDING THIS PROVISION THE RECORD
DISCLOSES THAT THE CONTRACTING OFFICER ORALLY AGREED THAT ANY DEFICIT TO
THE GOVERNMENT UPON RESALE OF ITEM NO. 2 WOULD BE CHARGEABLE TO YOUR
ACCOUNT.
SUCH AGREEMENT WAS IN VIOLATION OF ARTICLE 13 OF THE SALE TERMS WHICH
PROVIDES THAT ANY ORAL STATEMENT BY ANY REPRESENTATIVE OF THE GOVERNMENT
CHANGING ANY CONDITIONS OF THE SALE WOULD NOT CONFER ANY RIGHT UPON THE
PURCHASER. HOWEVER, SINCE THE DAMAGES SUFFERED BY THE GOVERNMENT APPEAR
TO HAVE BEEN SUBSTANTIALLY LIQUIDATED BY SUCH AN ARRANGEMENT,
INSTRUCTIONS ARE TODAY BEING ISSUED TO THE CLAIMS DIVISION OF OUR OFFICE
FOR PAYMENT OF THE AMOUNT OF $2,500.
B-129351, OCT. 9, 1956
TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, UNITED STATES
GOVERNMENT PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO WHETHER AN AWARD OF A CONTRACT
MAY BE MADE TO BUSINESS SERVICE AS THE LOWEST BIDDER IN RESPONSE TO
REQUEST FOR QUOTATIONS ON THE PRINTING OF CARDS ON INDEX STOCK FROM
DIRECT IMAGE PAPER OFFSET MASTERS, ON DAILY ORDERS DURING THE YEAR
COMMENCING OCTOBER 1, 1956.
PROSPECTIVE BIDDERS WERE REQUESTED TO QUOTE PRICES ON THREE ITEMS
NUMBERED 1, 2 AND 3 AS LISTED ON PAGES 11 AND 12 OF THE ADVERTISED
SPECIFICATIONS. BIDDERS WERE ADVISED THAT SINCE IT WAS BELIEVED THAT NO
FIRM WOULD BE ABLE TO MEET THE DAILY PRODUCTION REQUIREMENTS OF THE
GOVERNMENT THE PUBLIC PRINTER RESERVED THE RIGHT TO MAKE MULTIPLE
AWARDS, AND THAT---
"IN ORDER TO ESTABLISH MULTIPLE AWARD CONTRACTS AND DETERMINE THE
SEQUENCE OF BIDDERS, THE PRICES QUOTED FOR EACH OF THE ITEMS LISTED
UNDER "QUOTATIONS" WILL BE APPLIED TO THE UNITS OF PRODUCTION LISTED
HEREINAFTER WHICH ARE THE ANTICIPATED PRODUCTION FOR ONE MONTH OF THIS
CONTRACT. BIDS WILL BE CONSIDERED IN THE AGGREGATE. THE BIDDER WHOSE
PRICES, WHEN SO APPLIED, RESULTS IN THE LOWEST BID WILL BE DECLARED THE
LOW BIDDER. THE SECOND LOW BIDDER, THIRD, ETC., IN THEIR ORDER, WILL
ALSO BE DETERMINED IN LIKE MANNER AND AWARDS MADE ACCORDINGLY.
"ITEM 1 - 27,300 MASTERS
ITEM 2 - 100 RETYPED MASTERS
ITEM 3 - 40 SETS OF CARDS"
BIDDERS WERE ADVISED ALSO THAT THE GOVERNMENT GUARANTEED TO SUPPLY A
MINIMUM OF 3 PRINT ORDERS EACH WORKING DAY AND THAT EACH PRINT ORDER
WOULD COVER THE REPRODUCTION OF CARDS OF 200 MASTERS.
THE RECORD SHOWS THAT 8 BIDS WERE RECEIVED AND THAT THEY WERE OPENED
ON SEPTEMBER 13, 1956, AS SCHEDULED IN THE REQUEST FOR QUOTATIONS.
BUSINESS SERVICE OF ST. LOUIS, MISSOURI, SUBMITTED THE LOWEST BID ON
ITEMS 1 AND 2 BUT DID NOT QUOTE A PRICE ON ITEM NO. 3, WHICH CONSISTED
OF STRIKING IN ON THE CARDS THE FEDERAL ITEM IDENTIFICATION NUMBER WHEN
NOT PRINTED FROM THE MASTERS. WHEN THIS BIDDER WAS REQUESTED BY
TELEPHONE TO STATE WHY A PRICE HAD NOT BEEN QUOTED ON THAT ITEM, IT
REPORTED THAT IT WAS BECAUSE IT WAS THE INTENTION TO PERFORM THIS
PARTICULAR OPERATION WITHOUT CHARGE, AND THAT THIS INTENTION WOULD BE
CONFIRMED AT A LATER DATE. BY LETTER DATED SEPTEMBER 17, 1956, HOWEVER,
THIS BIDDER STATED THAT IT WOULD SCRIBE IN WITHOUT CHARGE UP TO 5 SETS
IN ANY ONE PRINT ORDER WITHOUT CHARGE, AND FOR ANY ABOVE 5 IT WOULD
CHARGE 30 CENTS A SET. TWO TELEGRAMS WERE RECEIVED ON SEPTEMBER 25,
1956, STATING IN EFFECT THAT IN REFERENCE TO ITEM NO. 3 THE BIDDER WOULD
SCRIBE IN THE IDENTIFICATION NUMBER FREE, SINCE THE BIDDER HAD BEEN
PERFORMING THIS OPERATION UNDER ITS PRESENT CONTRACT.
IT IS STATED IN YOUR LETTER THAT IT IS ANTICIPATED THAT ONLY 480 OF
THE UNITS COVERED BY ITEM NO. 3 WILL BE ORDERED DURING THE CONTRACT
PERIOD BEGINNING OCTOBER 1, 1956, AND ENDING SEPTEMBER 30, 1957; THAT
THE COST OF THIS QUANTITY BASED ON A PRICE OF 50 CENTS EACH QUOTED BY
THE NEXT LOW BIDDER WOULD AMOUNT TO APPROXIMATELY $240; AND THAT "A
STUDY BASED UPON THE REQUISITIONING DEPARTMENT'S ANTICIPATED
REQUIREMENTS SHOWS THAT IF AN AWARD COULD BE MADE TO BUSINESS SERVICE, A
SAVING TO THE GOVERNMENT OF $4,290.00 WOULD RESULT.'
THERE HAS BEEN RECEIVED HERE A COPY OF A LETTER DATED SEPTEMBER 25,
1956, FROM BUSINESS SERVICE TO MR. CHRISTOPHANE OF YOUR AGENCY IN WHICH
IT IS CLAIMED THAT NO PRICE WAS QUOTED FOR ITEM NO. 3 BECAUSE THE BIDDER
COULD SEE NO REASON FOR DOING SO PARTICULARLY SINCE THE ITEM IS "OF A
MEDIOCRE NATURE" AND THE BIDDER HAD BEEN PERFORMING THE OPERATION
COVERED BY THAT ITEM WITHOUT CHARGE. IT IS CONTENDED THAT ANY DECISION
TO DISREGARD THE BID UPON THE GROUND THAT A PRICE FOR ITEM NO. 3 WAS NOT
QUOTED WOULD BE DISHONEST AND DISCRIMINATORY. THE BASIS FOR THIS
CONTENTION HOWEVER IS NOT CLEAR IN VIEW OF THE PLAIN TERMS OF THE
REQUEST FOR PROPOSALS.
AS INDICATED ABOVE BIDDERS WERE EXPRESSLY REQUESTED TO SUBMIT AN ALL
INCLUSIVE PRICE PER SET OF UP TO 65 CARDS UNDER ITEM NO. 3, THE PRICE
QUOTED TO INCLUDE ALL MATERIALS AND SERVICES WHICH MAY BE REQUIRED.
OBVIOUSLY, THE BID IS INCOMPLETE BY VIRTUE OF THE OMISSION OF THE PRICE
ON THAT ITEM, AND ACCEPTANCE OF THE BID AS SUBMITTED WOULD NOT CREATE A
CONTRACT REQUIRING PERFORMANCE UNDER ITEM 3. IT IS THEREFORE CLEAR THAT
THE BIDDER'S OFFER, AFTER THE BID OPENING DATE, TO PERFORM THE
OPERATIONS COVERED BY THE ITEM EITHER FREE OR FOR A CONSIDERATION,
CONSTITUTED A NEW AND DIFFERENT BID, AND WOULD BE UNFAIR TO OTHER
BIDDERS WHO OFFERED TO CONFORM STRICTLY WITH THE REQUEST FOR PROPOSALS.
FURTHERMORE, THE OMISSION CANNOT BE LOOKED UPON AS A MINOR INFORMALITY
WHICH MAY BE WAIVED BY THE CONTRACTING OFFICER, BECAUSE IT GOES TO THE
SUBSTANCE OF THE CONTRACT TO BE AWARDED. THE FACT THAT A SAVING MIGHT
RESULT FROM THE AWARD OF THE CONTRACT TO THE LOWEST BIDDER IS NOT A
SUFFICIENT JUSTIFICATION FOR DISREGARDING LONG ESTABLISHED PROCEDURES
DESIGNED FOR
THE PROTECTION AND PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM.
ACCORDINGLY, ON THE RECORD HERE IT IS OUR VIEW THAT THE LOW BID
SHOULD BE DISREGARDED. THE PROTESTING BIDDER MAY BE SO ADVISED.
THE ENCLOSURES WITH YOUR LETTER EXCEPT THE TWO TELEGRAMS AND LETTER
OF SEPTEMBER 17, 1956, ARE RETURNED IN ACCORDANCE WITH YOUR REQUEST.
B-129421, OCT. 9, 1956
TO MR. JOHN M. SMITH, UNITED STATES INFORMATION AGENCY:
REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1956, TRANSMITTING
EMBASSY CLAIM FILE NO. 2016, FROM BONN, GERMANY, CONSISTING OF THREE
INDIVIDUAL CLAIMS, TOTALING 21,524.53 GERMAN MARKS, PRESENTED BY THE
FIRM OF MUENCHENER BUCHGEWERBEHAUS, WHICH SUM WAS DEDUCTED BY THE
CLAIMANT FROM AMOUNTS OTHERWISE DUE THE UNITED STATES UNDER SALES
CONTRACT NO. F-636-FA-2976, COVERING THE SALE OF A PRINTING PLANT
LOCATED IN MUNICH, GERMANY.
THE CLAIMS REFERRED TO MAY BE ITEMIZED AS FOLLOWS:
TABLE
CLAIM 115A (PRINTING WORK -
CONTRACT S-636-FA-3356) 2,146.65 GERMAN MARKS
DO. 115B (REPAIR WORK ETC.)
NO CONTRACT 748.08
DO. 236 (DAMAGE FOR NON-PERFORMANCE
OF CONTRACT S-636-FA-3235) 18,629.80
------------
TOTAL 21,524.53 GERMAN MARKS
THE VALIDITY OF CLAIMS NOS. 115A AND 115B IS NOT QUESTIONED, BUT,
WITH RESPECT TO CLAIM NO. 236, IT APPEARS THAT A TENTATIVE COMPROMISE
AGREEMENT WAS REACHED WITH THE CLAIMANT, WHEREBY THE LATTER WOULD ACCEPT
9,500 GERMAN MARKS IN FULL SETTLEMENT OF ITS CLAIM, AND REFUND 9,129.80
GERMAN MARKS TO THE UNITED STATES, PROVIDED ITS OFFER IS ACCEPTED BY THE
GOVERNMENT ON OR BEFORE OCTOBER 12, 1956.
YOU INDICATE THAT YOU FAVOR ACCEPTANCE OF THE PROPOSED SETTLEMENT
OFFER AS IN THE BEST INTERESTS OF THE UNITED STATES; AND, YOU POINT OUT
THAT IF THE OFFER IS NOT ACCEPTED, IT WILL BECOME NECESSARY FOR THE
UNITED STATES TO INSTITUTE A CIVIL ACTION IN A COURT OF GERMAN
JURISDICTION, WHICH NECESSARILY WOULD ENTAIL THE INCURRENCE OF
CONSIDERABLE EXPENSE, WITH THE POSSIBILITY THAT THE RESULT WOULD BE
ADVERSE TO THE UNITED STATES.
IN A MEMORANDUM DATED JULY 13, 1956, PREPARED BY OFFICE OF THE
GENERAL COUNSEL OF YOUR AGENCY, IT IS STATED THAT CLAIM NO. 236,
ASSERTED BY THE CLAIMANT IS LEGALLY SOUND, AND THE RECOMMENDATION IS
MADE THAT THE CLAIMANT'S OFFER BE ACCEPTED.
IN VIEW OF ALL THE CIRCUMSTANCES, YOU ARE ADVISED THAT WE WOULD NOT
BE REQUIRED TO OBJECT TO SETTLEMENT OF CLAIM NO. 236 UPON THE BASIS OF
THE CLAIMANT'S SETTLEMENT OFFER OF 9,500 GERMAN MARKS, AS PROPOSED.
B-45101, OCT. 9, 1956
TO THE SECRETARY OF THE ARMY:
OUR PROGRAM FOR THE AUDIT AND ACCOUNTING SYSTEM DEVELOPMENT WORK IN
THE DEPARTMENT OF THE ARMY IS BEING EXPANDED TO COVER ALL SIGNIFICANT
ACTIVITIES ON A MORE COMPREHENSIVE BASIS, RATHER THAN TO LIMIT OUR
COVERAGE TO SELECTED INDUSTRIAL FUND ACTIVITIES AND OTHER RESTRICTED
AREAS OF OPERATION.
WE INTEND TO REVIEW CONCURRENTLY THE ACTIVITIES AT SEVERAL SELECTED
INSTALLATIONS HAVING A COORDINATE RESPONSIBILITY IN A BASIC PROGRAM IN
ORDER TO PERFORM A COMPREHENSIVE REVIEW OF THE PROGRAM AS WELL AS TO
AUDIT THE INDIVIDUAL INSTALLATIONS. OUR AUDITS WILL BE CONDUCTED IN
FULL RECOGNITION OF ALL INTERNAL REVIEW ACTIVITIES, AND WILL EVALUATE
THEIR EFFECTIVENESS AND ELIMINATE THE NECESSITY FOR DUPLICATING MUCH OF
THEIR EFFORTS. IN THIS CONNECTION WE INTEND, EXCEPT IN THE MOST UNUSUAL
CIRCUMSTANCES, TO ALLOW A REASONABLE PERIOD OF TIME TO ELAPSE PRIOR TO
OUR STARTING AN AUDIT AT THE SITE OF ACTIVITIES WHICH HAVE BEEN RECENTLY
SUBJECTED TO INTERNAL AUDIT, REVIEW, OR INSPECTION. THIS APPROACH
AFFORDS RESPONSIBLE OFFICIALS THE OPPORTUNITY TO INITIATE OR EFFECT
CORRECTIVE ACTION WHERE APPROPRIATE.
DURING THE COURSE OF OUR WORK WE WILL DISCUSS MATTERS OF
SIGNIFICANCE, AS THEY ARISE, WITH THE RESPONSIBLE OFFICIALS AFFECTED.
WE FEEL THAT OUR EFFORTS, WITHIN THE SCOPE OF OUR CAPABILITIES, CAN BE
OF INESTIMABLE ASSISTANCE TO RESPONSIBLE MANAGEMENT IN THE
IDENTIFICATION OF OPERATING DEFICIENCIES AND PROBLEMS AND COOPERATIVELY
DEVELOPING APPROPRIATE SOLUTIONS. UPON COMPLETION OF OUR WORK, DRAFT
COPIES OF OUR REPORTS WILL BE SUBMITTED TO RESPONSIBLE OFFICIALS FOR THE
PURPOSE OF SUCH CLARIFYING DISCUSSIONS AND COMMENT AS MAY BE DESIRED.
WE INTEND TO ADDRESS OUR FINAL AUDIT REPORTS TO THE APPROPRIATE
MANAGEMENT LEVEL DEPENDING ON THE SIGNIFICANCE OF THE FINDINGS AND
RECOMMENDATIONS INVOLVED. IN THIS CONNECTION WE WOULD APPRECIATE ADVICE
AS TO YOUR DESIRES IN THE MATTER OF TRANSMITTING COPIES OF REPORTS.
RECENTLY WE HAVE COMPLETED A PRELIMINARY SURVEY OF THE OPERATIONS OF
THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS AND ARE CURRENTLY
CONDUCTING AN AUDIT OF LOGISTICS ACTIVITIES IN THE SIGNAL CORPS. WE
APPRECIATE FULLY THE COOPERATION RECEIVED IN THE CONDUCT OF OUR EFFORTS
IN THESE AREAS. WE ARE IN THE PROCESS OF DEVELOPING A PROGRAM FOR THE
AUDIT OF THE ORDNANCE TANK-AUTOMOTIVE COMMAND. OUR PRESENT PLANS ARE TO
START THE AUDIT OF THIS ACTIVITY AT THE SITE OF SELECTED INSTALLATIONS
IN JANUARY 1957.
YOUR COOPERATION IN MAKING AVAILABLE ALL OFFICIAL DOCUMENTS, RECORDS,
AND REPORTS AND IN ESTABLISHING ARRANGEMENTS WHICH WILL FACILITATE OUR
AUDIT OF THE ORDNANCE TANK-AUTOMOTIVE COMMAND AND OUR FUTURE WORK IN
YOUR DEPARTMENT WILL BE APPRECIATED.
B-128608, OCT. 8, 1956
TO MELVIN DOMBACK:
WE REGARD YOUR LETTER DATED SEPTEMBER 4, 1956, AS A REQUEST THAT WE
RECONSIDER OUR DECISION, B-128608, DATED AUGUST 28, 1956. IN THAT
DECISION WE AFFIRMED OUR SETTLEMENT DATED JUNE 1, 1956, DENYING YOUR
CLAIM FOR SALARY FOR THE PERIOD DURING WHICH YOU WERE ON LEAVE WITHOUT
PAY WHILE YOU WERE EMPLOYED AT THE U.S. ARMY HOSPITAL, ABERDEEN PROVING
GROUND, MARYLAND.
THE SEVERAL PERIODS OF LEAVE WITHOUT PAY DURING THE SPRING AND SUMMER
MONTHS OF THE YEAR 1951 SEEM TO HAVE BEEN DUE TO AN UNSPECIFIED INJURY
OR ILLNESS FOR WHICH YOU FILED A CLAIM UNDER THE EMPLOYEES COMPENSATION
ACT, 5 U.S.C. 751 ET. SEQ. THE CLAIM WAS DENIED.
AFTER TESTS, APPARENTLY FOR TUBERCULOSIS, SHOWED POSITIVE RESULTS,
YOU WERE RELIEVED OF YOUR FOOD HANDLING DUTIES AS COOK AT THE ABERDEEN
PROVING GROUNDS HOSPITAL AND PLACED IN A LEAVE WITHOUT PAY PERIOD FOR
ONE YEAR, APPARENTLY AS A PRECAUTIONARY MEASURE. AS WE POINTED OUT IN
OUR LETTER DATED AUGUST 28, 1956, WE CAN NOT PAY YOU FOR PERIODS DURING
WHICH YOU DID NOT WORK UNLESS YOU WERE GRANTED LEAVE WITH PAY OR UNLESS
THERE IS A LAW PROVIDING THAT WE MAY DO SO. WE COULD NOT DO SO EVEN IF
THE DEPARTMENT OF THE ARMY MADE A MISTAKE IN FINDING THAT YOU HAD
TUBERCULOSIS.
THE RECORDS SHOW THAT YOU DID NOT PERFORM ANY OF THE DUTIES OF YOUR
POSITION DURING THE PERIODS COVERED BY YOUR CLAIM, AND NO LAW HAS BEEN
FOUND WHICH WILL PERMIT US TO PAY YOU. THEREFORE, WE MUST CONSIDER THE
MATTER AS CLOSED.
B-65942, OCT. 8, 1956
TO CLIFFORD AND MILLER:
REFERENCE IS MADE TO YOUR LETTER CONCERNING THE FURNISHING OF
STANDARD AIR-CONDITIONED PULLMAN CARS IN LIEU OF TOURIST CLASS
ACCOMMODATIONS REQUESTED BY THE GOVERNMENT FOR THE TRANSPORTATION OF
MILITARY PERSONNEL, AND TO THE DOCUMENTS FURNISHED AS EVIDENCE OF THE
NON-AVAILABILITY OF THE ACCOMMODATIONS REQUESTED.
THE EVIDENCE PRESENTED SHOWS THE LOCATION OF THE VARIOUS KINDS OF
EQUIPMENT OF THE PULLMAN COMPANY, WITH THE EXCEPTION OF CARS SHOWN ON
THE RECAPITULATION OF CARS AS "UNEXPLAINED," AND 38 NON-AIR-CONDITIONED
CARS AND 12 TOURIST NON-AIR-CONDITIONED CARS LISTED IN THE PULLMAN
COMPANY CAR LIST NO. 34 AND NOT REFERRED TO IN THE PRESENT SUMMARY OF
THE LOCATION OF CARS. IT SEEMS THAT AN EXPLANATION OF THE LOCATION OR
DISPOSITION OF THE LATTER 50 (38 PLUS 12) CARS SHOULD BE MADE BY THE
PULLMAN COMPANY. OTHERWISE, THEY MUST, NECESSARILY, BE CLASSED AS
UNEXPLAINED.
THE TRANSPORTATION DIVISION OF OUR OFFICE WILL WITHDRAW THE
OVERPAYMENTS STATED AGAINST THE PULLMAN COMPANY, BUT AS YET UNCOLLECTED,
WHERE THE RECORD SHOWS THAT THE TYPE OF EQUIPMENT REQUESTED WAS NOT
AVAILABLE AT THE TIME REQUESTED, EXCEPT WHERE THE STANDARD
AIR-CONDITIONED CAR WAS SO STRIPPED AND THE AIR-CONDITIONING EQUIPMENT
TURNED OFF THAT THE CAR WAS USED MORE OR LESS IN TOURIST CLASS SERVICE.
SIMILAR INSTANCES WHERE THE STATED OVERPAYMENT HAS BEEN COLLECTED, AND
CLAIM BY THE PULLMAN COMPANY FOR THE AMOUNT COLLECTED HAS BEEN RECEIVED
HERE WITHIN TEN YEARS AFTER THE COLLECTION, WILL BE CERTIFIED FOR
ALLOWANCE.
IN INSTANCES WHERE THE RECORD SHOWS THAT TOURIST CLASS CARS WERE
AVAILABLE AT, OR IN THE VICINITY OF THE ORIGIN POINT WHEN THE REQUEST
WAS MADE, BUT WERE NOT USED, THE OVERPAYMENTS WILL BE ALLOWED TO STAND.
SEE, IN THIS CONNECTION, PULLMAN COMPANY BILLS RC-669311-S-55 AND
W-183911-S-55. BILL NO. RC-669311-S-55, COVERS REQUESTS NOS.
WQ-26,373,767 AND WQ-26,373,769 FOR 81 PASSENGERS FROM SAVANNAH,
GEORGIA, TO BALTIMORE, MARYLAND. THESE PASSENGERS WERE FURNISHED
ACCOMMODATION IN TOURIST RATED CARS NOS. 7109 AND 7094 AND IN STANDARD
AIR-CONDITIONED CAR OLE.' YET THE RECORDS SHOW THAT TOURIST RATED CARS
7571 AND 7939 WERE IDLE AT SAVANNAH, GEORGIA, ON THE DATE OF MOVEMENT.
THE SAME SITUATION EXISTS AS TO TRANSPORTATION REQUEST NO. N-6517130 AND
BILL NO. W-183911-S-55. CLEARLY THE ACCOMMODATIONS REQUESTED COULD
HAVE BEEN FURNISHED IN THESE INSTANCES.
CONCERNING THE "UNEXPLAINED CARS" ON WHICH NO RECORD HAS BEEN
PRESENTED, IT SEEMS THAT THESE CARS MAY HAVE BEEN IDLE AT SOME OF THE
POINTS FROM WHICH MILITARY PERSONNEL WERE BEING MOVED. THIS SITUATION
MAY NECESSITATE SPECIAL CONSIDERATION, SUCH AS CONSIDERING THEM IDLE AT
THE LAST DESTINATION POINT OF RECORD.
B-129022, OCT. 5, 1956
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO LETTER OF AUGUST 20, 1956, FROM THE
ADMINISTRATIVE ASSISTANT SECRETARY, CONCERNING THE REFUND OF FILING FEES
BY THE BUREAU OF LAND MANAGEMENT, TO SMALL TRACT APPLICANTS WHOSE
APPLICATIONS HAVE BEEN REJECTED.
SECTION 257.8 OF TITLE 43 OF THE CODE OF FEDERAL REGULATIONS, WHICH
BECAME EFFECTIVE MARCH 11, 1955, PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
"EVERY APPLICATION ON FORM 4-776 MUST BE ACCOMPANIED BY A FILING FEE
OF $10 * * * ALL FILING FEES WILL BE RETAINED BY THE GOVERNMENT.'
IT IS REPORTED THAT SUBSEQUENT TO MARCH 11, 1955, SOME ARIZONA SMALL
TRACT APPLICANTS FILED THEIR APPLICATION ON AN OUTDATED ISSUE OF FORM
4-776, APPLICATION FOR SMALL TRACT, THE REVERSE SIDE OF WHICH CONTAINED
THE FOLLOWING STATEMENT:
"THIS OFFER MUST BE ACCOMPANIED BY A FILING FEE OF $10 WHICH WILL BE
RETAINED BY THE UNITED STATES EXCEPT WHERE THE OFFER TO LEASE IS NOT
ACCEPTED FOR ANY REASON AND IF ITEM 2 (B) IS CHECKED NO TRACT IS
ALLOCATED THEREUNDER BY THE MANAGER.'
IT IS STATED IN THE LETTER THAT THE PHOENIX, ARIZONA, LAND OFFICE
TOOK STEPS TO ADVISE THE PUBLIC OF THE CHANGED REGULATIONS REGARDING THE
RETENTION OF THE FILING FEES ON AND AFTER MARCH 11, 1955, BY MEANS OF A
SIGN WITH LETTERS ONE INCH HIGH, POSTED IN A CONSPICUOUS PLACE IN THE
LAND OFFICE. IT IS ALSO REPORTED THAT IN SUBMITTING THE APPLICATION ON
FORM 4-776, EACH OF THE APPLICANTS AGREED TO THE FOLLOWING, WHICH WAS
PRINTED ON THE APPLICATION FORM:
"MR. ---------- HEREBY OFFERS TO LEASE FOR HIS OWN USE AND BENEFIT,
UNDER THE SMALL TRACT ACT OF JUNE 1, 1938 (52 STAT. 609, 43 U.S.C., SEC.
682A) AS AMENDED, AND SUBJECT TO THE REGULATIONS THEREUNDER, ONE TRACT
OF PUBLIC LAND NOT TO EXCEED FIVE ACRES AS DESCRIBED IN ITEM 2 .....;,
IN VIEW OF THE FOREGOING, THE ADMINISTRATIVE ASSISTANT SECRETARY
REQUESTS A DECISION AS TO WHETHER REFUNDS MAY BE AUTHORIZED TO THOSE
PERSONS WHO FILED SMALL TRACT APPLICATIONS ON OUTDATED FORMS AFTER MARCH
11, 1955.
IT APPEARS THAT THE APPLICATIONS WERE, IN FACT, OFFERS TO LEASE.
WHILE THE APPLICANTS OFFERED TO LEASE THE LAND SUBJECT TO THE PROVISIONS
OF THE SMALL TRACT ACT OF JUNE 1, 1938, AS AMENDED, 43 U.S.C. 682 (A),
AND THE REGULATIONS ISSUED THEREUNDER, AND THE REGULATIONS IN EFFECT AT
THE TIME PROVIDED FOR RETENTION OF THE FILING FEE BY THE GOVERNMENT, IT
APPEARS THAT THE OFFERS TO LEASE ,SUBJECT TO THE REGULATIONS" WERE
CONDITIONED OR QUALIFIED BY THE STATEMENT ON THE BACK THEREOF PROVIDING
FOR THE RETURN OF THE FILING FEE IN THE EVENT THE OFFER TO LEASE WAS
REJECTED. THUS, IT APPEARS THAT THE APPLICANTS, IN EFFECT, AGREED TO BE
SUBJECT TO ALL THE REGULATIONS SAVE THE ONE WHICH IN EFFECT PROVIDED FOR
RETENTION OF THE FILING FEE BY THE GOVERNMENT, WHETHER THE OFFER TO
LEASE WAS ACCEPTED OR REJECTED. SINCE THESE REGULATIONS AT THE TIME THE
APPLICATIONS WERE FILED PROVIDED FOR RETENTION OF THE FILING FEE, EVEN
THOUGH THE OFFER TO LEASE WAS NOT ACCEPTED, IT APPEARS THAT THE BUREAU
OF LAND MANAGEMENT SHOULD NOT HAVE ACCEPTED THE APPLICATIONS IN QUESTION
NOR CONSIDERED SUCH APPLICATIONS AS FILED, SO AS TO BE ELIGIBLE FOR
SUBSEQUENT CONSIDERATION ON THEIR MERITS; BUT, INSTEAD SHOULD HAVE
RETURNED THEM TO THE APPLICANT OFFEROR.
ALTHOUGH NOT SPECIFICALLY APPLICABLE IN THE INSTANT MATTER IT IS
NOTED THAT 43 C.F.R. 257.6 (E) PROVIDES THAT APPLICATIONS "ON FORM 4-776
WILL NOT BE ACCEPTED, WILL NOT BE CONSIDERED AS FILED, AND WILL BE
RETURNED TO THE APPLICANT" UNDER CERTAIN CIRCUMSTANCES OR CONDITIONS SET
FORTH IN THE CITED SECTION. (NOTE ALSO 43 C.F.R. 257.6 (D) ). WE HAVE
BEEN INFORMALLY ADVISED BY YOUR DEPARTMENT THAT, WHERE APPLICATIONS ARE
NOT ACCEPTED BECAUSE OF THE PROVISIONS OF THESE SECTIONS, THE $10 FILING
FEE IS RETURNED TO THE APPLICANT. WHEN THE PROVISIONS OF SECTIONS 257.6
(D) AND (E) ARE CONSIDERED TOGETHER WITH THE ADMINISTRATIVE PRACTICE OF
RETURNING THE $10 FILING FEE WHERE THE APPLICATIONS ARE RETURNED UNDER
SUCH SECTIONS, IT APPEARS THAT THE REGULATIONS PROVIDING FOR RETENTION
OF ALL FILING FEES IS MEANT TO APPLY ONLY IN THOSE CASES WHERE IT IS
PROPER TO RETAIN THE APPLICATION OR OFFER TO LEASE FOR FILING AND
SUBSEQUENT CONSIDERATION ON THE MERITS, THE APPLICATION ON ITS FACE
BEING IN CONFORMITY WITH THE REGULATIONS.
IN THE INSTANT CASE, THE APPLICATIONS OFFERING TO LEASE THE LANDS DID
NOT, ON THEIR FACE, CONFORM TO THE REGULATIONS, IN VIEW OF THE STATEMENT
THEREON CONTRARY TO THE REGULATIONS. WHILE IT MAY BE THAT A SIGN WAS
POSTED IN A CONSPICUOUS PLACE CONCERNING THE RETENTION OF THE FILING
FEE, THERE IS NOTHING OF RECORD TO INDICATE THAT ANY OF THE APPLICANTS
WHO HAVE REQUESTED REFUND ACTUALLY SAW THE SIGN. IN ANY EVENT, EVEN IF
THE SIGN HAD BEEN NOTICED, AN APPLICANT COULD HAVE MADE RETURN OF THE
FILING FEE A CONDITION OF HIS OFFER, IN WHICH EVENT, AS INDICATED ABOVE,
THE APPLICATION SHOULD HAVE BEEN RETURNED TO THE APPLICANT WITH THE
ADVICE THAT IT COULD NOT BE ACCEPTED OR CONSIDERED AS FILED IN VIEW OF
THE CONDITION THEREON. IT APPEARS THAT IF THIS HAD BEEN DONE, THE
FILING FEE WOULD ALSO HAVE BEEN RETURNED TO THE OFFEROR AS IN CASES
WITHIN THE PURVIEW OF 43 C.F.R. 257.6 (D) AND (E).
IN VIEW OF WHAT HAS BEEN STATED ABOVE, YOUR DEPARTMENT MAY--- IN
ACCORDANCE WITH THE PROVISIONS OF GENERAL REGULATION NO. 116, SUPPLEMENT
NO. 1, PARAGRAPH 6 (G), ISSUED AUGUST 30, 1955--- AUTHORIZE REFUND OF
THE FILING FEE TO THOSE PERSONS WHO FILED SMALL TRACT APPLICATIONS ON
OUTDATED FORMS ON OR AFTER MARCH 11, 1955, WHICH WERE REJECTED, AND WHO
HAVE FILED CLAIMS FOR REFUND OF SUCH FEE. IT IS PRESUMED THAT THOSE
APPLICANTS WHOSE APPLICATIONS WERE REJECTED AND WHO
HAVE NOT FILED, OR DO NOT FILE, CLAIMS FOR REFUND OF THE FILING FEE
WERE AWARE OF THE CHANGED REGULATION AND DO NOT EXPECT RETURN OF SUCH
FEE IN ANY EVENT.
B-129062, OCT. 5, 1956
TO MR. J. F. DONELAN, JR., AUTHORIZED CERTIFYING OFFICER, DEPARTMENT
OF STATE:
REFERENCE IS MADE TO YOUR LETTERS DATED AUGUST 23 AND SEPTEMBER 13,
1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER, BECAUSE OF
CERTAIN FALSE CLAIMS MADE BY HIM IN HIS TRAVEL VOUCHERS COVERING THE
PERIOD OF DECEMBER 1, 1954, TO APRIL 30, 1956, FOUR UNPAID TRAVEL
VOUCHERS SUBMITTED BY JOHN B. MACKEY, JR. MAY PROPERLY BE CERTIFIED FOR
PAYMENT. ALSO, YOU REQUEST ADVICE AS TO THE DISPOSITION TO BE MADE OF
HIS UNDELIVERED FINAL SALARY CHECK, LUMP-SUM LEAVE PAYMENT AND CIVIL
SERVICE RETIREMENT CREDIT.
UNTIL HIS RESIGNATION ON JUNE 30, 1956, MR. MACKEY, WAS EMPLOYED AS A
SPECIAL AGENT IN THE OFFICE OF SECURITY. WHILE EMPLOYED, HE ADMITTEDLY
SUBMITTED VOUCHERS CONTAINING FALSE CLAIMS FOR PER DIEM AND ACCEPTED
PAYMENT THEREFOR AS FOLLOWS:
CHART PERIOD OF TRAVEL VOUCHER AMOUNT AMOUNT OF F
DEC. 1 - 31, 1954 $296.20 $4.50
JAN. 31 - FEB. 28, 1955 293.80 4.50
MAR. 1 - 31, 1955 267.50 6.75
MAY 1 - 31, 1955 258.16 2.25
AUG. 1 - 31, 1955 189.78 4.50
OCT. 1 - 31, 1955 251.24 4.50
NOV. 1 - 30, 1955 255.72 6.75
DEC. 1 - 31, 1955 258.69 9.00
MAR. 1 - 31, 1956 301.72 6.00
---------
$48.75 TOTAL
PRIOR TO HIS RESIGNATION, MR. MACKEY REFUNDED THE $48.75 HE CLAIMED
FALSELY. THE DEPARTMENT OF JUSTICE HAS ADVISED US THAT IT DOES NOT
INTEND TO PROSECUTE MR. MACKEY CRIMINALLY OR BRING ANY CIVIL SUIT ON
ACCOUNT OF THE FRAUDULENT CLAIMS.
AT PRESENT, THERE ARE FOUR VOUCHERS WHICH HAVE NOT BEEN PAID TO MR.
MACKEY. THE VOUCHERS ARE AS FOLLOWS:
CHART
PERIOD OF TRAVEL AMOUNT
MARCH 1-31, 1956 $ 19.20
APRIL 1-30, 1956 301.56
MAY 1-31, 1956 267.56
JUNE 1-30, 1956 313.90
THE VOUCHER IN THE AMOUNT OF $19.20 FOR THE PERIOD MARCH 1-31, 1956,
IS A RECLAIM OF AN AMOUNT PREVIOUSLY INCLUDED IN THE VOUCHER SUBMITTED
IN THE CLAIMED AMOUNT OF $320.92 PAID IN THE AMOUNT OF $301.72 AND WHICH
CONTAINED A FALSE CLAIM. THE VOUCHER FOR THE PERIOD APRIL 1-30, 1956,
IS A REVISION OF ONE ORIGINALLY SUBMITTED WHICH WAS DETERMINED
ADMINISTRATIVELY TO CONTAIN FALSE STATEMENTS. SECTION 2514, TITLE 28 OF
THE UNITED STATES CODE PROVIDES:
"A CLAIM AGAINST THE UNITED STATES SHALL BE FORFEITED TO THE UNITED
STATES BY ANY PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY
FRAUD AGAINST THE UNITED STATES IN THE PROOF, STATEMENT, ESTABLISHMENT,
OR ALLOWANCE THEREOF.'
THE PRESENTATION OF A CLAIM CONTAINING FRAUDULENT ITEMS VITIATES AND
DESTROYS THE CLAIMANT'S RIGHT IN THE ENTIRE CLAIM. IN SUCH A SITUATION,
NO AMOUNT NOT ALREADY RECEIVED BY THE CLAIMANT PROPERLY MAY BE PAID HIM
EVEN THOUGH THE CLAIMANT LATER RESTATES OR ALTERS HIS CLAIM TO REFLECT
THE TRUE FACTS. ALSO, IT IS WELL ESTABLISHED THAT MONEY WHICH HAS BEEN
PAID OUT IRREGULARLY AND WHICH IS NOT DUE MAY BE RECOVERED BACK, AND
RECOVERY OF THE SUM ADMITTEDLY PAID OUT IN ERROR, $48.75, WAS LEGAL AND
PROPER. THUS, THE RECLAIM VOUCHER IN THE AMOUNT OF $19.20 FOR THE
PERIOD MARCH 1-31, 1956, AND THE VOUCHER IN THE AMOUNT OF $301.56 FOR
THE PERIOD APRIL 1-30, 1956, MAY NOT PROPERLY BE CERTIFIED FOR PAYMENT.
THE GOVERNMENT ACCOUNTING AND ADMINISTRATIVE OFFICERS ARE REQUIRED TO
REJECT OR DISALLOW ALL CLAIMS WHICH THEY HAVE REASONABLE CAUSE TO
SUSPECT TO BE TAINTED WITH FRAUD OR AS TO WHICH THEY BELIEVE THERE MAY
BE A SUBSTANTIAL DEFENSE IN LAW, OR AS TO THE VALIDITY OF WHICH THEY ARE
IN DOUBT. LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; CHARLES V.
UNITED STATES, 19 C.CLS. 316, 319; 15 COMP. GEN. 466, 470; 18 ID.
603, 606. NO QUESTION OF FRAUD APPEARS TO BE INVOLVED IN THE TRAVEL
VOUCHERS FOR THE PERIODS MAY 1-31 AND JUNE 1-30, 1956, AND THEY MAY
PROPERLY BE CERTIFIED IF OTHERWISE CORRECT AND PROPER UNDER THE
APPLICABLE TRAVEL ORDERS, COPIES OF WHICH WERE NOT FORWARDED WITH YOUR
LETTERS.
TITLE 5, UNITED STATES CODE SECTION 46A, PROVIDES:
"* * * THERE SHALL BE NO WITHHOLDING OR CONFISCATION OF THE EARNED
PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES
REMOVED FOR CAUSE: PROVIDED, THAT IF AT THE TIME OF SUCH REMOVAL ANY
SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY, PAY, OR
EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS
SECTION SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY
CLAIM OR INDEBTEDNESS DUE TO THE UNITED STATES.'
SINCE THE OVERPAYMENTS ON THE TRAVEL VOUCHERS HAVE BEEN COLLECTED
BACK AND THE DEPARTMENT OF JUSTICE DOES NOT CONTEMPLATE TAKING ANY CIVIL
ACTION ON THE FALSE CLAIMS, THERE IS NOT PRESENT OR POTENTIAL
INDEBTEDNESS ON MR. MACKEY'S PART TO THE UNITED STATES. ACCORDINGLY, IN
CONSONANCE WITH THE CITED STATUTE, HE MAY BE PAID HIS SALARY, LUMP-SUM
PAYMENT LESS DEDUCTIONS FOR FEDERAL INCOME TAX AND OUTSTANDING TRAVEL
ADVANCES, AND CIVIL SERVICE RETIREMENT CREDIT.
B-129142, OCT. 5, 1956
TO MRS. ELDA SWANSON:
REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1956, WITH ENCLOSURE,
ADDRESSED TO THE DEPARTMENT OF THE AIR FORCE, RELATIVE TO YOUR CLAIM AS
WIDOW OF ERNEST C. SWANSON, CAPTAIN, UNITED STATES AIR FORCE RESERVE,
FOR REIMBURSEMENT FOR THE COST OF PACKING, HAULING, AND STORAGE OF
HOUSEHOLD EFFECTS. SINCE YOUR CLAIM WAS THE SUBJECT OF OUR SETTLEMENT
OF JUNE 1, 1956, YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW
OF THAT SETTLEMENT.
BY ORDERS DATED MAY 22, 1952, WASHINGTON, D.C., YOUR HUSBAND WAS
ASSIGNED TO CAMP STONEMAN, CALIFORNIA, FOR FURTHER ASSIGNMENT TO DUTY
OVERSEAS. HE WAS OFFICIALLY REPORTED AS MISSING IN ACTION ON DECEMBER
27, 1952, AND, FOR PAY AND ALLOWANCE PURPOSES, HIS DEATH IS PRESUMED TO
HAVE OCCURRED ON DECEMBER 28, 1953. ON JUNE 4, 1952, HIS HOUSEHOLD
EFFECTS, WEIGHING 2,700 POUNDS, WERE PACKED AND HAULED FROM A RESIDENCE
IN BOISE, IDAHO, TO COMMERCIAL STORAGE IN THE SAME CITY WHERE THEY
REMAINED FOR ONE MONTH. THE EFFECTS THEN WERE SHIPPED TO A RESIDENCE IN
POCATELLO, IDAHO, AT GOVERNMENT EXPENSE. ON JULY 10, 1953, 2,180 POUNDS
OF HOUSEHOLD EFFECTS WERE PACKED AND HAULED TO COMMERCIAL STORAGE IN
POCATELLO WHERE THEY REMAINED UNTIL JANUARY 14, 1955. ON JANUARY 21,
1955, 560 POUNDS OF HOUSEHOLD EFFECTS WERE SHIPPED FROM OGDEN, UTAH, TO
POCATELLO, IDAHO, AND A WEEK LATER, 2,180 POUNDS OF HOUSEHOLD EFFECTS
WERE SHIPPED FROM THE LATTER CITY TO SPOKANE, WASHINGTON.
IN THE SETTLEMENT MENTIONED ABOVE YOU WERE ALLOWED $93.50 AS
REIMBURSEMENT FOR THE COST OF PACKING, HAULING, AND TEMPORARY STORAGE OF
THE EFFECTS IN BOISE DURING THE PERIOD JUNE 4 TO JULY 4, 1952. YOUR
HUSBAND WAS ENTITLED TO THIS AS WELL AS THE SHIPMENT TO POCATELLO
INCIDENT TO THE ORDERS ASSIGNING HIM TO DUTY OVERSEAS. THERE IS NO
PROVISION OF LAW OR REGULATION, HOWEVER, UNDER WHICH REIMBURSEMENT MAY
BE AUTHORIZED FOR THE 18-MONTH PERIOD OF NONTEMPORARY STORAGE IN
POCATELLO. WHILE CONTROLLING REGULATIONS PROVIDE THAT HOUSEHOLD EFFECTS
OF MEMBERS OFFICIALLY REPORTED DEAD MAY BE SHIPPED FROM THE PLACE TO
WHICH SUCH GOODS WERE LAST SHIPPED AT GOVERNMENT EXPENSE TO SUCH PLACE
AS MAY BE DESIGNATED BY THE DEPENDENTS AND APPROVED BY THE APPROPRIATE
AUTHORITY OF THE SERVICE CONCERNED, THE REGULATIONS IN EFFECT DURING THE
PERIOD INVOLVED FURTHER SPECIFICALLY PROVIDE THAT SUCH ENTITLEMENT WILL
TERMINATE IN ANY CASE WHERE HOUSEHOLD EFFECTS ARE NOT TURNED OVER TO A
TRANSPORTATION OFFICER OR TO A CARRIER FOR SHIPMENT WITHIN ONE YEAR FROM
THE DATE OF OFFICIAL REPORT OF DEATH. SINCE YOUR HUSBAND WAS OFFICIALLY
REPORTED AS DEAD ON DECEMBER 28, 1953, AND SHIPMENTS WERE NOT INITIATED
UNTIL MORE THAN ONE YEAR LATER, THERE IS NO LEGAL BASIS
FOR THE ALLOWANCES OF ANY PART OF THE COST OF THE SHIPMENTS FROM
OGDEN, UTAH, TO POCATELLO, IDAHO, OR FROM THE LATTER CITY TO SPOKANE,
WASHINGTON.
ACCORDINGLY, THE SETTLEMENT OF JUNE 1, 1956, WAS CORRECT AND IS
SUSTAINED. THE COPY OF THAT SETTLEMENT ENCLOSED WITH YOUR LETTER OF
JULY 25, 1956, IS RETURNED AS REQUESTED.
B-129257, OCT. 5, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED SEPTEMBER 14, 1956, WITH
ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS) REQUESTING OUR
DECISION IN THE MATTER OF AN ALLEGED ERROR IN THE BID SUBMITTED ON JUNE
18, 1956, BY PENNSYLVANIA TRUCK SALES CORPORATION OF PHILADELPHIA,
PENNSYLVANIA,
PURSUANT TO BID INVITATION 28-009-S-56-66 DATED MAY 29, 1956, ISSUED
AT THE ARMY BELLE MEAD GENERAL DEPOT, SOMERVILLE, NEW JERSEY, UPON WHICH
CONTRACT O.I. 2585-S-56 WAS BASED.
BIDS WERE REQUESTED ON 63 ITEMS OF SURPLUS GOVERNMENT PROPERTY AND
THE CONTRACTOR WAS AWARDED ITEMS NUMBERED 35, 36, 37, AND 38, EACH
COVERING 50 WAREHOUSE TRAILERS HAVING A TOTAL ACQUISITION COST OF
$8,000.00. CONTRACTOR ALSO BID FOR ITEM NO. 60 COVERING 27 CHESTS BUT
WAS NOT AWARDED THAT ITEM.
A REVIEW OF THE CONTRACTOR'S BID DOES NOT DISCLOSE ANY APPARENT
ERROR. THE PRICES AND PRICE EXTENSIONS WERE CLEARLY ENTERED AND A
REQUIRED BID DEPOSIT IN EXCESS OF THE 20 PERCENT DEPOSIT REQUIRED WAS
INCLUDED WITH THE BID. THE PRICES QUOTED WERE NOT SUFFICIENTLY HIGHER
THAN OTHER BIDS SUBMITTED TO AROUSE SUSPICION AS TO THEIR PROPRIETY.
UPON RECEIPT OF NOTICE OF AWARD DATED JUNE 22, 1956, THE CONTRACTOR
BY LETTER OF SAME DATE ALLEGED MISTAKE IN THAT IT WAS NOT ITS INTENTION
TO BID ON THE SUBJECT ITEMS NOTWITHSTANDING THAT THE BID FORM WAS DULY
EXECUTED AND PROPERLY SIGNED. A STATEMENT DATED JULY 12, 1956, SIGNED
BY MORRIS SHNEER, PRESIDENT OF THE CONTRACTOR FIRM, AND SUBMITTED IN
RESPONSE TO LETTER DATED JUNE 29, 1956, FROM THE PROPERTY DISPOSAL
OFFICER, ALLEGES THAT ON JUNE 18, 1956, MR. SHNEER FULLY EXECUTED TWO
BIDS UNDER THE SUBJECT INVITATION, THE ONE RECEIVED AND ANOTHER, WHICH
PURPORTEDLY SHOULD HAVE BEEN RECEIVED INSTEAD, CONTAINING A BID ON ITEM
NO. 60 ONLY. BOTH EXECUTED BIDS WERE LEFT ON MR. SHNEER'S DESK IN A
MANNER INDICATING THEIR READINESS FOR MAILING. ON THE SAME DAY AND JUST
PRIOR TO LEAVING PHILADELPHIA, MR. SHNEER INSTRUCTED HIS SECRETARY TO
MAIL ONLY THE BID QUOTING A PRICE ON ITEM NO. 60. THROUGH ERROR, THE
WRONG BID WAS MAILED AFTER MR. SHNEER HAD LEFT FOR CAMP LEJEUNE.
THE BASIC QUESTION FOR DETERMINATION HERE IS WHETHER A VALID AND
BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF A BID, PROPER ON ITS
FACE, WHICH WAS MISTAKENLY MAILED BY A SECRETARY CONTRARY TO THE
INSTRUCTIONS OF HER SUPERVISOR.
THE BID AS SUBMITTED WAS CLEAR AND UNAMBIGUOUS AND WAS UNQUESTIONABLY
ACCEPTED IN GOOD FAITH. THE CONTRACTING OFFICER HAD NO REASON TO
QUESTION THE CORRECTNESS OF THE BID, NOR ANY KNOWLEDGE THAT IT HAD BEEN
UNINTENTIONALLY SUBMITTED. WHEN THE BID WAS ACCEPTED, IT CONSTITUTED A
CONTRACT BINDING UPON THE GOVERNMENT AND THE PENNSYLVANIA TRUCK SALES
CORPORATION IN STRICT ACCORDANCE WITH ITS TERMS.
IT IS WELL SETTLED THAT A CORPORATION, THE SAME AS A NATURAL PERSON,
AS A GENERAL RULE IS BOUND BY ALL ACTS, CONTRACTS, AND DECLARATIONS OF
ITS OFFICERS AND AGENTS WHICH ARE DONE OR MADE WITHIN THE GENERAL SCOPE
OF THEIR AUTHORITY. 19 C.J.S. 995.
MR. SHNEER, AS PRESIDENT OF THE PENNSYLVANIA TRUCK SALES CORPORATION,
WAS OBVIOUSLY ACTING WITHIN THE SCOPE OF HIS AUTHORITY IN PREPARING AND
EXECUTING THE SUBJECT BID. ANY MISTAKE OR ERROR ON THE PART OF MR.
SHNEER OR HIS SECRETARY WAS A UNILATERAL MISTAKE DUE EITHER TO HIS OR
HER OR THEIR COMBINED NEGLIGENCE, AND AFFORDS NO GROUND FOR RELIEF. 17
COMP. GEN. 1110, 1113.
THE PENNSYLVANIA TRUCK SALES CORPORATION SHOULD BE CALLED UPON TO
MAKE PAYMENT OF THE BALANCE OF THE PURCHASE PRICE AND TO REMOVE THE
PROPERTY FROM THE GOVERNMENT SITE, IN DEFAULT OF WHICH THE PROPERTY
SHOULD BE READVERTISED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 5
OF THE GENERAL SALES TERMS AND CONDITIONS.
B-129295, OCT. 5, 1956
TO SECRETARY, SMITHSONIAN INSTITUTION:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1956, TRANSMITTING
TWO BIDS, EACH DATED SEPTEMBER 11, 1956, SUBMITTED BY EDWARD B. FRIEL,
INC., WASHINGTON, D.C., AND GEORGE A. SHUPP, CHEVERLY, MARYLAND,
RESPECTIVELY, IN RESPONSE TO INVITATION NO. 57-SI-491, AND REQUESTING
TO BE ADVISED AS TO WHETHER MR. SHUPP MAY BE AWARDED THE CONTRACT UPON
THE BASIS OF HIS CORRECTED BID PRICE.
IT APPEARS THAT BY INVITATION NO. 57-SI-491, ISSUED AUGUST 24, 1956,
THE SUPPLY DIVISION OF THE SMITHSONIAN INSTITUTION SOLICITED PROPOSALS,
SCHEDULED FOR OPENING AT 11:00 A.M., SEPTEMBER 11, 1956, ON THE WORK OF
"PAVING WITH CONCRETE THE APPROACHES TO THE TWO OUTSIDE VEHICLE ENTRANCE
DOORS AND THE PERSONNEL ENTRANCE DOOR, BUILDING 10, SUITLAND STORAGE
FACILITY," IN ACCORDANCE WITH AN ACCOMPANYING DRAWING AND SPECIFICATION.
TWO BIDS, DATED SEPTEMBER 11, 1956, WERE RECEIVED IN RESPONSE THERETO
ONE FOR $5,100 HAVING BEEN SUBMITTED BY EDWARD B. FRIEL, INC.,
WASHINGTON, AND THE OTHER FOR $3,100 BY MR. GEORGE A. SHUPP OF CHEVERLY.
AT APPROXIMATELY 12:15 P.M. ON THE DATE OF OPENING, SEPTEMBER 11, MR.
SHUPP ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT HE HAD
DISCOVERED A SERIOUS ERROR IN THE COMPUTATION OF HIS BID, IN VIEW OF
WHICH HE WAS SENDING OVER A REPRESENTATIVE IMMEDIATELY TO PRESENT HIS
WORKSHEETS, SHOWING THE NATURE OF THE ERROR.
WHILE THE BIDDER'S ORIGINAL WORKSHEETS ARE NOT MADE A PART OF THE
INSTANT RECORD, THEY WERE MADE AVAILABLE FOR INSPECTION BY THE
CONTRACTING OFFICER, WHO EXPLAINS THE NATURE OF THE WORK OF THIS PROJECT
AND THE MANNER IN WHICH THE ALLEGED ERROR WAS MADE, AS FOLLOWS:
"IN ORDER TO EXPLAIN THE BASIS OF THE CLAIMED ERROR, IT IS NECESSARY
TO REVIEW THE PURPOSE FOR WHICH BIDS WERE REQUESTED. THIS WAS TO EXTEND
THE EXISTING PARTIAL CONCRETE APPROACH TO BUILDING 10 AT THE SUITLAND
STORAGE AREA, A BUILDING 180 WIDE AND PRESENTLY PROVIDED WITH A CONCRETE
APPROACH 30 FEET WIDE TO THE CENTER VEHICULAR DOOR.
"THERE IS ENCLOSED A COPY OF THE DRAWING WHICH WAS A PART OF THE BID
INVITATION AND WHICH WAS OMITTED FROM THE FILE FORWARDED FOR
CONSIDERATION. AS SHOWN ON THIS DRAWING, THE NEW PAVING IS TO JOIN THE
PRESENT PAVING AND EXTEND FOR A DISTANCE OF 64 FEET FROM EACH SIDE OF
IT, LAID IN SECTIONS MEASURING 15 BY 16 FEET.
"THE WORK SHEET WHICH WAS PRESENTED FOR MY INSPECTION SHOWED THAT
COMPUTATION OF THE REQUIRED AMOUNT OF CONCRETE HAD BEEN BASED ON THE
FOLLOWING FACTORS:
CHART
A. NUMBER OF SECTIONS--- 16
B. SIZE OF SECTIONS--- 16 BY 15 FEET
C. NUMBER OF SQUARE FEET (A TIMES B/--- 1920
D. NUMBER OF CUBIC FEET--- 1286.5
E. NUMBER OF CUBIC YARDS--- 47.67
"TO THE LAST FIGURE THERE HAD BEEN ADDED 2.67 CUBIC YARDS TO PROVIDE
THE APPROACH TO THE PERSONNEL DOOR, MAKING A TOTAL OF 50.33 CUBIC YARDS
OF CONCRETE REQUIRED.
"INSPECTION OF THE ABOVE FIGURES INDICATES THAT THE SQUARE FEET OF
THE SECTIONS (B ABOVE) HAD BEEN MULTIPLIED BY 8 INSTEAD OF 16, RESULTING
IN A TOTAL SQUARE FOOTAGE OF 1920 INSTEAD OF THE CORRECT FIGURE OF 3840.
THE ONLY EXPLANATION THE ESTIMATOR COULD OFFER FOR THIS ERROR WAS THAT
HE HAD INADVERTENTLY SUBSTITUTED THE NUMBER OF SECTIONS ON EACH SIDE OF
THE PRESENT PAVING FOR THE TOTAL NUMBER OF SECTIONS TO BE PROVIDED.'
DURING THE COURSE OF THE INTERVIEW HELD ON SEPTEMBER 11, 1956, MR.
SHUPP WAS INSTRUCTED BY THE CONTRACTING OFFICER TO PRESENT HIS CLAIM FOR
RELIEF IN WRITING, SHOWING HOW THE ERROR OCCURRED AND THE AMOUNT OF HIS
INTENDED BID, WHICH WAS ACCOMPLISHED THROUGH THE BIDDER'S LETTER OF THAT
DATE, WHICH INDICATES THAT IN COMPUTING THE QUANTITY OF CONCRETE
REQUIRED FOR THE SLAB, HE FIGURED ONLY 50 1/3 YARDS, INSTEAD OF THE
REQUIRED QUANTITY OF 98 YARDS, OR 47 2/3 YARDS SHORT. THE COST,
INCLUDING A REASONABLE OVERHEAD AND PROFIT, ON THE ADDITIONAL WORK, WAS
ESTIMATED BY MR. SHUPP AT $990.86, WHICH WOULD INCREASE THE AMOUNT OF
MR. SHUPP'S BID TO $4,090.86, IN LIEU OF $3,100, AS QUOTED.
THE FACTS OF RECORD CLEARLY INDICATE THAT A BONA FIDE ERROR WAS MADE.
HOWEVER, THE EVIDENCE SUBMITTED FALLS FAR SHORT OF ESTABLISHING THE
AMOUNT OF THE INTENDED BID WITH THE CERTAINTY AND CONCLUSIVENESS WHICH
WE HAVE, IN FAIRNESS TO OTHER BIDDERS, CONSISTENTLY REQUIRED. SEE 28
COMP. GEN. 403.
YOU ARE ACCORDINGLY ADVISED THAT THE BID OF MR. SHUPP MAY NOT BE
CORRECTED, BUT SHOULD BE DISREGARDED IN MAKING THE AWARD.
B-129326, OCT. 5, 1956
TO THE COMPTROLLER GENERAL OF THE UNITED STATES:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1956, REQUESTING TO
BE ADVISED WHETHER THE DEPARTMENT PROPERLY MAY ACCEPT THE PROPOSAL OF
HENRY CHAKFORD, SR., AND ROSE CHAKFORD, HIS WIFE, OF SOUTH EUCLID, OHIO,
FOR A PROPOSED LEASE-PURCHASE PROJECT TO BE CONSTRUCTED ON A
GOVERNMENT-OWNED SITE AT ST. MARYS, OHIO, UNDER THE POST OFFICE
DEPARTMENT ACT OF 1954, 68 STAT. 525, AS AMENDED, 39 U.S.C. 901, AND
FOLLOWING SECTIONS. ALSO, YOU REQUEST ADVICE AS TO WHETHER AND UNDER
WHAT CIRCUMSTANCES THE DEPARTMENT CAN ACCEPT BIDS WHERE THE ESTIMATED
MAXIMUM PURCHASE PRICE, BASIC ANNUAL PAYMENTS AND INTEREST RATES, OR ANY
ONE OF THESE FACTORS, EXCEED THE MAXIMUM ESTIMATE THEREOF APPROVED BY
THE CONGRESSIONAL COMMITTEES.
IT APPEARS FROM THE FACTS AS REPORTED IN YOUR LETTER THAT PURSUANT TO
THE REQUIREMENTS OF SECTION 202 (G) OF THE ABOVE STATUTE (39 U.S.C. 902
(G) (, THE ABOVE PROJECT WAS APPROVED BY THE HOUSE AND SENATE COMMITTEES
ON PUBLIC WORKS ON AUGUST 11 AND DECEMBER 14, 1954, RESPECTIVELY, BASED
UPON A PROSPECTUS SHOWING "ESTIMATED MAXIMUM," AS FOLLOWS:
CHART
BASIC ANNUAL
PURCHASE PRICE PAYMENT INTEREST RATE
$82,500 $5,226 4 PERCENT
FOLLOWING COMMITTEE APPROVAL A CONSIDERABLE DELAY OCCURRED INCIDENT
TO INAUGURATING THE PROJECT. IN THE MEANTIME A RISE IN MATERIAL AND
LABOR COSTS NECESSITATED AN UPWARD REVISION OF MORE THAN 50 PERCENT OF
THE ORIGINAL ESTIMATED COSTS. YOU STATE THAT IN VIEW OF SUCH INCREASE
THE PROJECT WAS RESUBMITTED FOR APPROVAL BY THE COMMITTEES UNDER A
"REVISED ESTIMATE" AS REQUIRED BY SECTION 202 (G) (2) OF THE ACT, AS
FOLLOWS:
CHART
BASIC ANNUAL INTEREST RATE
PURCHASE PRICE PAYMENT
$126,400 $8,005.67 4 PERCENT
BASED ON THE REVISED PROSPECTUS THE PROJECT WAS APPROVED BY THE HOUSE
AND SENATE COMMITTEES ON JULY 18 AND JULY 19, 1955, RESPECTIVELY. YOU
STATE THAT THE COMPLETE LEASE-PURCHASE PROGRAM WAS NOT FINALIZED UNTIL
THE SPRING OF 1956 AND THAT ON JUNE 20, 1956, THE DEPARTMENT ADVERTISED
FOR BIDS ON THE PROJECT. THE HIGHEST BID IS STATED TO HAVE EXCEEDED THE
MAXIMUM ESTIMATED COST OF THE PROJECT AS SHOWN IN THE REVISED PROSPECTUS
IN ALL THREE OF THE ABOVE PARTICULARS. IT IS STATED, HOWEVER, THAT THE
LOW BID SUBMITTED BY MR. AND MRS. CHAKFORD WAS LESS THAN THE ESTIMATED
MAXIMUM PURCHASE AND BASIC ANNUAL PAYMENT BUT EXCEEDED THE "ESTIMATED
MAXIMUM INTEREST RATE.' THE BID ON THE ABOVE ITEMS AS SHOWN IN YOUR
LETTER IS AS FOLLOWS:
CHART
BASIC ANNUAL INTEREST RATE
PURCHASE PRICE PAYMENT
$107,000 $7,320.03 4 3/4 PERCENT
SECTION 202 (G) OF THE ACT, AS AMENDED BY PUBLIC LAW 667, 84TH
CONGRESS, APPROVED JULY 9, 1956, PROVIDES THAT
"* * * NO APPROPRIATIONS SHALL BE MADE FOR LEASE-PURCHASE PROJECTS
WHICH HAVE NOT BEEN APPROVED BY RESOLUTIONS ADOPTED BY THE COMMITTEES ON
PUBLIC WORKS OF THE SENATE AND HOUSE OF REPRESENTATIVES, RESPECTIVELY,
WITHIN THREE YEARS AFTER THE FATE OF ENACTMENT OF THIS ACT. FOR THE
PURPOSE OF SECURING CONSIDERATION OF SAID APPROVAL THE POSTMASTER
GENERAL SHALL TRANSMIT TO EACH SUCH COMMITTEE A PROSPECTUS OF THE
PROPOSED PROJECT, INCLUDING (BUT NOT LIMITED TO/---
"/2) AN ESTIMATE OF THE MAXIMUM COST OF SITE AND BUILDING TOGETHER
WITH THE TERM OF YEARS OVER WHICH PAYMENTS WOULD RUN AND THE MAXIMUM
RATE OF INTEREST THAT WOULD BE ACCEPTABLE FOR ANY DEFERRED PART OF SUCH
COST; * * *"
H.R. 6342 WHICH BECAME PUBLIC LAW 519, COMMONLY REFERRED TO AS THE
LEASE-PURCHASE ACT, REQUIRED GENERAL SERVICES ADMINISTRATION AND THE
POST OFFICE DEPARTMENT TO COME INTO AGREEMENT WITH THE ABOVE HOUSE AND
SENATE COMMITTEES WITH RESPECT TO THE LEASE-PURCHASE CONTRACTS. SINCE
THIS PROVISION RAISED A CONSTITUTIONAL QUESTION, THE BILL WAS AMENDED TO
PROHIBIT THE APPROPRIATION OF FUNDS FOR LEASE-PURCHASE PROJECTS IN THE
ABSENCE OF APPROVAL BY RESOLUTIONS ADOPTED BY THE ABOVE COMMITTEES,
SECTION 411 (E), TITLE I, AND 202 (G), TITLE II. UNDER THE NEW
LANGUAGE, FOR PURPOSE OF OBTAINING SUCH APPROVAL EACH OF THE AGENCIES IS
REQUIRED TO SUBMIT TO THE COMMITTEES A PROSPECTUS OF THE PROPOSED
PROJECT INCLUDING, BUT NOT LIMITED TO, THE DATA AS REQUIRED UNDER EIGHT
SEPARATE ITEMS.
IT IS CONCLUDED IN YOUR LETTER THAT NOTWITHSTANDING THE VARIANCE IN
THE INTEREST RATE AS SHOWN IN THE PROSPECTUS (4 PERCENT) AND THE
INTEREST RATE AS SHOWN IN THE CURRENT LOW BID SUBMITTED BY MR. AND MRS.
CHAKFORD (4 3/4 PERCENT), YOU ARE AUTHORIZED TO ACCEPT THEIR BID. WE
ARE SUBSTANTIALLY IN ACCORD WITH THE ARGUMENTS AND REASONING FORMING THE
BASIS OF YOUR CONCLUSION. PARTICULARLY SIGNIFICANT ARE THE FACTS THAT
THE APPLICABLE APPROPRIATION ACT CONTAINS NO LIMITATION AS TO ANY
SPECIFIC PROJECT, BUT ONLY AN OVER-ALL LIMITATION; THAT SECTION 202 (E)
OF THE ACT (39 U.S.C. 902 (E) ( AUTHORIZES YOU TO INCLUDE IN
LEASE-PURCHASE AGREEMENTS SUCH PROVISIONS AS YOU DEEM IN THE BEST
INTEREST OF THE UNITED STATES; AND THAT SECTION 202 (E) (2) OF THE ACT
(39 U.S.C. 902 (E) (2) ( PROHIBITS ANY AGREEMENT PROVIDING FOR PAYMENT
IN EXCESS OF THE AMOUNT "AS DETERMINED BY THE POSTMASTER GENERAL" TO BE
NECESSARY, AMONG OTHER THINGS, TO "PROVIDE A REASONABLE RATE OF INTEREST
ON THE OUTSTANDING PRINCIPAL.'
IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT WE WOULD NOT BE
REQUIRED TO OBJECT TO ACCEPTANCE OF THE CHAKFORD BID BECAUSE OF THE
INTEREST RATE OF 4 3/4 PERCENT, IF OTHERWISE PROPER.
REGARDING YOUR SECOND QUESTION, WE SEE NO OBJECTION GENERALLY TO THE
ACCEPTANCE OF A BID INVOLVING A SITUATION WHERE THE ESTIMATED PURCHASE
PRICE, BASIC ANNUAL PAYMENT AND INTEREST RATE, OR ANY ONE OF THESE
FACTORS, EXCEEDS THE MAXIMUM ESTIMATE THEREOF AS CONTAINED IN THE
PROSPECTUS FORMING THE BASIS OF COMMITTEE APPROVAL, PROVIDED, OF COURSE,
THE VACATION IS REASONABLE UNDER THE CIRCUMSTANCES, AND ACCORDS WITH
YOUR DETERMINATION UNDER SECTION 202 (E) OF THE ACT.
B-103315, OCT. 4, 1956
TO THE SECRETARY OF STATE:
REFERENCE IS MADE TO LETTERS OF MARCH 29 AND JULY 9, 1956, WITH
ENCLOSURES, FROM THE DIRECTOR, OFFICE OF FINANCE, DEPARTMENT OF STATE,
REQUESTING CERTAIN EXCEPTIONS FROM PARAGRAPH 5 OF OUR GENERAL
REGULATIONS NO. 123, DATED MAY 1, 1955, PROHIBITING THE USE OF TRAVEL
AGENCIES TO SECURE PASSENGER TRANSPORTATION SERVICES FOR OFFICIAL
GOVERNMENT TRAVEL "WITHIN THE UNITED STATES, CANADA, OR MEXICO, BETWEEN
THE UNITED STATES AND FOREIGN COUNTRIES, BETWEEN THE UNITED STATES AND
CANADA OR MEXICO, BETWEEN THE UNITED STATES AND ITS POSSESSIONS, AND
BETWEEN AND WITHIN ITS POSSESSIONS.'
YOUR DEPARTMENT ASKS FOR AN EXCEPTION FROM THE PUBLICATION FOR
TRANSPORTATION FROM GENEVA TO THE UNITED STATES, KABUL, AFGHANISTAN, TO
THE UNITED STATES, AND FROM KARACHI, PAKISTAN, AND ITS CONSTITUENT
POSTS, DACCA, EAST PAKISTAN, AND LAHORE, WEST PAKISTAN, TO THE UNITED
STATES. ALSO, WE UNDERSTAND THAT OTHER POSTS HAVE REQUESTED AN
EXCEPTION BUT THAT THOSE REQUESTS HAVE NOT BEEN FORWARDED HERE PENDING A
DETERMINATION ON THE GENEVA, KABUL, AND KARACHI CASES.
SINCE THE RECEIPT OF THE REQUESTS SEVERAL CONFERENCES CONCERNING THE
TRAVEL AGENCY RESTRICTION HAVE BEEN HELD BY OUR OFFICE WITH OFFICIALS OF
YOUR DEPARTMENT, AS WELL AS WITH REPRESENTATIVES OF MAJOR AMERICAN FLAG
OCEAN AND AIR CARRIERS PROVIDING REGULAR SERVICE TO AND FROM FOREIGN
COUNTRIES.
AS A RESULT OF INFORMATION AND VIEWS OBTAINED AT THOSE MEETINGS AND
FROM THE OBSERVATION OF OUR OWN REPRESENTATIVES, WE NOW ARE OF THE
OPINION THAT THE RESTRICTION IN PARAGRAPH 5 SHOULD BE MODIFIED TO PERMIT
THE USE OF TRAVEL AGENCIES FOR OBTAINING PASSENGER TRANSPORTATION FROM
FOREIGN COUNTRIES TO THE UNITED STATES, SUBJECT TO THE FOLLOWING:
1. (A) THE REQUEST BE MADE FIRST TO THE COMPANY BRANCH OFFICE OF AN
AMERICAN FLAG AIR OR OCEAN CARRIER IF THE TRAVEL ORIGINATES IN A CITY OR
ITS CONTIGUOUS CARRIER-SERVICING AREA IN WHICH SUCH OFFICE IS LOCATED;
OR ALTERNATIVELY,
(B) THE REQUEST BE MADE TO THE GENERAL AGENT OF THE AMERICAN AIR OR
OCEAN FLAG CARRIER IF THE TRAVEL ORIGINATES IN A CITY OR ITS CONTIGUOUS
CARRIER-SERVICING AREA IN WHICH SUCH GENERAL AGENT'S OFFICE IS LOCATED;
OR ALTERNATIVELY,
(C) THE REQUEST MAY THEN BE MADE TO A TRAVEL AGENCY.
2. TRAVEL AGENCIES MAY BE USED IN THE FIRST INSTANCE ONLY WHERE
COMPANY BRANCH OFFICES, OR OFFICES OF GENERAL AGENTS, OF AMERICAN
CARRIERS ARE NOT AVAILABLE IN THE CITY OR ITS CONTIGUOUS
CARRIER-SERVICING AREA IN WHICH THE OFFICIAL TRAVEL ORIGINATES;
3. WHEN THROUGH TICKETING ARRANGEMENTS FOR THE TRANSPORTATION ARE
NOT AVAILABLE AT AMERICAN FLAG AIR OR OCEAN CARRIER OFFICES A TRAVEL
AGENCY MAY BE USED;
4. NO PAYMENT IS TO BE MADE TO THE TRAVEL AGENCY IN ADDITION TO THAT
WHICH WOULD BE PROPERLY CHARGEABLE HAD THE SERVICES REQUESTED BEEN
OBTAINED DIRECTLY FROM THE CARRIER OR CARRIERS NVOLVED;
5. STEPS ARE TAKEN BY YOUR DEPARTMENT TO ASSURE THAT THE TRAVEL
AGENCIES CONCERNED ARE FULLY COGNIZANT OF THE REQUIREMENTS OF SECTION
901 OF THE MERCHANT MARINE ACT OF 1936, 46 U.S.C. 1241, AND OUR
DECISIONS RELATING THERETO, YOUR DEPARTMENTAL POLICY CONCERNING THE USE
OF AMERICAN FLAG AIR CARRIERS, AND THE PROVISIONS OF OUR GENERAL
REGULATIONS NO. 123.
WE HAVE ENDEAVORED IN OUR DECISIONS COVERING THE APPLICATION OF
SECTION 901 TO FORMULATE REASONABLE RULES. WE CONSIDER IT ESSENTIAL TO
EMPHASIZE, HOWEVER, THE NECESSITY OF FULL COMPLIANCE WITH SECTION 901.
WHERE THE TRANSPORTATION EXPENSES ARE BORNE INITIALLY BY THE OFFICIAL
TRAVELER THERE IS THE SAME RESPONSIBILITY FOR USE OF AMERICAN VESSEL
AS WHEN THE TRANSPORTATION IS PROCURED FOR DIRECT TRAVEL BY THE USE OF
GOVERNMENT TRANSPORTATION REQUESTS.
IN THAT REGARD WE HAVE NOT OVERLOOKED THE FACT THAT I FSM III 132
SPECIFICALLY REQUIRES THAT YOUR DEPARTMENT'S POLICIES CONCERNING
EVIDENCE IN SUPPORT OF THE USE OF A FOREIGN FLAG SHIP BE FURNISHED EVEN
IN THOSE INSTANCES WHEN THE TRAVELER MAKES HIS OWN ARRANGEMENTS COVERING
EITHER PART OR ALL OF HIS TRAVEL. LIKEWISE, WE ARE AWARE OF, AND IN
ACCORD WITH, YOUR STATEMENT OF POLICY THAT PREFERENCE SHOULD BE GIVEN TO
AMERICAN FLAG AIRLINES IN THE PROCUREMENT OF AIRPLANE TICKETS.
OUR OFFICE WILL TAKE STEPS TO MODIFY PARAGRAPH 5 OF GENERAL
REGULATIONS NO. 123 IN ACCORDANCE WITH THE ABOVE. MEANWHILE, TO THE
EXTENT HEREIN INDICATED, YOUR DEPARTMENT IS AUTHORIZED TO UTILIZE TRAVEL
AGENCIES FOR PASSENGER TRANSPORTATION FROM FOREIGN COUNTRIES TO THE
UNITED STATES.
B-128861, OCT. 4, 1956
TO MOTOR CARGO, INC. :
REFERENCE IS MADE TO YOUR PROTEST, FILE CLAIM NO. 25373, AS TO THE
ACTION OF OUR TRANSPORTATION DIVISION IN DEDUCTING, FROM MONEY OTHERWISE
OWING ON YOUR BILL NO. 7167, THE AMOUNT OF $46.61 FOR AN OVERPAYMENT OF
FREIGHT CHARGES ON GOVERNMENT BILLS OF LADING NOS. WW-2570097 AND
WW-2570098, DATED SEPTEMBER 26 AND OCTOBER 9, 1950, RESPECTIVELY.
IT IS YOUR UNDERSTANDING THAT THE OVERPAYMENT WAS DETERMINED ON THE
BASIS OF THE NORMAL THROUGH TRUCKLOAD RATES. YOU CONTEND THAT, SINCE
THE EXCLUSIVE USE OF TRUCKS WAS REQUESTED AND FURNISHED, THE APPLICABLE
RATES ARE THE HIGHER RATES DERIVED BY APPLICATION OF THE EXCLUSIVE USE
PROVISIONS OF EASTERN CENTRAL MOTOR CARRIERS ASSOCIATION TARIFFS. OUR
NOTICE OF OVERPAYMENT FORM 1003, DATED AUGUST 3, 1953, A COPY OF WHICH
WAS SENT TO YOU, INDICATES THAT THE OVERPAYMENT WAS DETERMINED ON THE
BASIS OF LOWER FREIGHT CHARGES DERIVED FROM THE USE OF AN AGGREGATE OF
INTERMEDIATE RATES NAMED IN MIDDLE ATLANTIC STATES MOTOR CARRIERS
CONFERENCE TARIFF NO. 2-D, MF-I.C.C. NO. A-256, FOR APPLICATION TO NEW
CASTLE, PENNSYLVANIA, AND IN CENTRAL STATES MOTOR FREIGHT BUREAU TARIFF
NO. 220-B, MF-I.C.C. NO. 191, FOR APPLICATION FROM NEW CASTLE TO
DESTINATION. AS THUS COMPUTED THE FREIGHT CHARGES EXCEED THOSE BASED ON
A MINIMUM WEIGHT OF 10,000 POUNDS AT THE FIRST-CLASS RATE, PURSUANT TO
THE PROVISIONS OF RULE 29 OF THE NATIONAL MOTOR FREIGHT CLASSIFICATION
EXCEPTIONS TARIFF NO. 10-H, MF-I.C.C. NO. A-310, AND OF ITEM 200 OF THE
CENTRAL STATES MOTOR FREIGHT BUREAU TARIFF NO. 220-B, FOR EXCLUSIVE USE
OF TRUCKS.
SINCE IT APPEARS THAT PROPER EFFECT WAS GIVEN, IN THE AUDIT ACTION OF
OUR TRANSPORTATION DIVISION, TO PERTINENT TARIFF PROVISIONS WHICH
CONTEMPLATE THE EXCLUSIVE USE OF THE TRUCKS INVOLVED, AND SINCE NO OTHER
APPROPRIATE BASIS HAS BEEN ASSERTED FOR AMENDING THAT ACTION, WE WOULD
NOT BE JUSTIFIED IN REVISING THE AUDIT BASIS USED.
B-128860, OCT. 3, 1956
TO MR. CIRCIACO E. SANCHEZ:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 17, 1956,
CONCERNING YOUR CLAIM FOR ARREARS OF PAY AND MUSTERING-OUT PAY BELIEVED
TO BE DUE INCIDENT TO YOUR SERVICE IN THE PHILIPPINE SCOUTS.
YOUR CLAIM WAS FIRST RECEIVED IN OUR OFFICE ON JANUARY 3, 1956, AND
ON FEBRUARY 13, 1956, OUR CLAIMS DIVISION RETURNED THE CLAIM TO YOU WITH
A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES
THAT A CLAIM AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS
SUCH CLAIM SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10
FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. IN YOUR LETTER OF
JULY 17, 1956, YOU URGE THAT YOUR CLAIM BE ALLOWED ON THE BASIS THAT YOU
WERE NOT DISCHARGED FROM THE PHILIPPINE SCOUTS UNTIL 1953.
IT APPEARS FROM A REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY THAT
YOU ENLISTED IN THE PHILIPPINE SCOUTS ON DECEMBER 9, 1941; AND THAT ON
SEPTEMBER 17, 1952, THE DEPARTMENT OF THE ARMY DETERMINED THAT YOU WERE
ENTITLED TO PAY FOR THE PERIOD DECEMBER 9, 1941, TO JUNE 12, 1942, BUT
THAT YOU WERE NOT IN A CASUALTY STATUS FROM JUNE 13, 1942, THROUGH
FEBRUARY 10, 1945. YOU RETURNED TO MILITARY CONTROL ON FEBRUARY 11,
1945. DURING THE PERIOD FEBRUARY 11 TO JULY 21, 1945, YOU WERE ABSENT
WITHOUT LEAVE FOR 21 DAYS. ON JULY 21, 1945, YOU WERE DROPPED FROM THE
ROLLS AS NON-MISSING ACTION PERSONNEL AND YOU WERE CONSIDERED IN AN
INACTIVE STATUS FROM JULY 22, 1945, TO FEBRUARY 24, 1953, ON WHICH
LATTER DATE YOU WERE DISCHARGED AT CAMP CAVITE, REPUBLIC OF THE
PHILIPPINES. THE DEPARTMENT OF THE ARMY HAS ALSO REPORTED THAT NO
RECORD CAN BE FOUND THAT YOU RECEIVED ANY PAY FROM THE DATE OF YOUR
ENLISTMENT.
THE DETERMINATION OF SEPTEMBER 17, 1952, BY THE DEPARTMENT OF THE
ARMY AS TO YOUR STATUS DURING THE PERIOD DECEMBER 9, 1942, THROUGH
FEBRUARY 10, 1945, WAS PURSUANT TO THE MISSING PERSONS ACT, 56 STAT.
143, AS AMENDED, WHICH AUTHORIZES THE SECRETARY OF THE ARMY OR HIS
DESIGNEE TO MAKE DETERMINATIONS AS TO YOUR MILITARY STATUS AND YOUR
RIGHT TO PAY AND ALLOWANCES DURING SUCH PERIOD, AND SUCH DETERMINATIONS
ARE FINAL AND CONCLUSIVE. MORENO V. UNITED STATES, 118 C.CLS. 30. IN
OUR DECISION OF APRIL 30, 1956, B-126763, 35 COMP. GEN. 600, TO THE
JUDGE ADVOCATE GENERAL, ARMED FORCES OF THE PHILIPPINES, IT WAS HELD
THAT ENTITLEMENT TO BENEFITS UNDER THE MISSING PERSONS ACT DOES NOT
ACCRUE UNTIL AN ADMINISTRATIVE DETERMINATION AS TO DEATH OR OTHER STATUS
IS MADE AND, THEREFORE, THE 10-YEAR PERIOD REFERRED TO IN THE ACT OF
OCTOBER 9, 1940, DOES NOT BEGIN TO RUN UNTIL THE DATE OF SUCH
ADMINISTRATIVE DETERMINATION. SINCE THE DETERMINATION AS TO YOUR STATUS
FOR THE PERIOD DECEMBER 9, 1941, TO JUNE 12, 1942, WAS NOT MADE UNTIL
SEPTEMBER 17, 1952, YOUR CLAIM FOR PAY FOR THAT PERIOD IS NOT BARRED AND
SETTLEMENT IN THE AMOUNT FOUND TO BE DUE AS PAY FOR THAT PERIOD WILL
ISSUE TO YOU IN DUE COURSE.
RESPECTING YOUR ENTITLEMENT TO PAY FOR THE PERIOD FEBRUARY 11 TO JULY
21, 1945, DURING WHICH YOU WERE NOT WITHIN THE PURVIEW OF THE MISSING
PERSONS ACT, YOUR CLAIM ACCRUED ON A DAILY BASIS. NO CLAIM FOR PAY FOR
THAT PERIOD WAS RECEIVED IN OUR OFFICE UNTIL JANUARY 3, 1956, MORE THAN
10 YEARS AFTER SUCH CLAIM ACCRUED AND HENCE, ANY SUCH CLAIM IS BARRED BY
THE EXPRESS TERMS OF THE ACT OF OCTOBER 9, 1940.
CONCERNING YOUR CLAIM FOR MUSTERING-OUT PAY YOU ARE ADVISED THAT
SECTION 11 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, IN EFFECT DURING
THE PERIOD DECEMBER 9, 1941, THROUGH JULY 22, 1945, THE DATE YOU WERE
CONSIDERED TO BE IN AN INACTIVE STATUS, PROVIDED THAT THE PAY AND
ALLOWANCES OF WHATEVER NATURE AND KIND TO BE AUTHORIZED FOR ENLISTED MEN
OF THE PHILIPPINE SCOUTS SHOULD BE FIXED BY THE SECRETARY OF WAR. NO
AUTHORIZATION EXISTED FOR THE PAYMENT OF MUSTERING-OUT PAY TO PHILIPPINE
SCOUTS WHO ENLISTED PRIOR TO OCTOBER 6, 1945. ACCORDINGLY, THERE IS NO
BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR MUSTERING-OUT PAY.
B-129182, OCT. 3, 1956
TO LIEUTENANT (JG) JAMES D. ETHRIDGE:
YOUR LETTER OF AUGUST 18, 1956, REQUESTS REVIEW OF OUR SETTLEMENT
DATED JULY 18, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE
PERIOD AUGUST 15 TO SEPTEMBER 30, 1953.
BY ORDERS OF JULY 10, 1953, AS AMENDED BY ORDERS OF AUGUST 11, 1953,
FROM THE CHIEF OF NAVAL PERSONNEL, YOU WERE DIRECTED TO REPORT TO THE
OFFICER IN CHARGE, NAVY SHIPS STORE OFFICE, NAVAL SUPPLY ACTIVITIES NEW
YORK, BROOKLYN, NEW YORK, FOR TEMPORARY DUTY UNDER INSTRUCTION FOR A
PERIOD OF ABOUT SIX WEEKS. THOSE ORDERS ALSO DIRECTED THAT UPON
COMPLETION OF THE TEMPORARY DUTY INDICATED YOU WERE TO REPORT TO THE
OFFICER IN CHARGE OF THE SAME ACTIVITY FOR DUTY. BY PERMANENT CHANGE OF
STATION ORDERS DATED OCTOBER 1, 1953, YOU WERE TRANSFERRED TO THE NAVAL
ORDNANCE TEST STATION, INYOKERN, CALIFORNIA, FOR DUTY AS ASSISTANT NAVY
EXCHANGE OFFICER.
THE RECORD SHOWS THAT YOU PERFORMED THE ORDERED DUTY IN BROOKLYN.
YOUR ORDERS AS AMENDED ON AUGUST 11, 1953, DIRECTED THAT YOU REMAIN AT
YOUR DUTY STATION IN BROOKLYN UPON COMPLETION OF YOUR TEMPORARY DUTY
INSTEAD OF REPORTING TO ASTORIA, OREGON. THUS, BROOKLYN, NEW YORK, WAS
YOUR PERMANENT DUTY STATION UNTIL YOUR DEPARTURE FOR INYOKERN,
CALIFORNIA, PURSUANT TO THE ORDERS OF OCTOBER 1, 1953. YOU NOW REFER TO
A LETTER DATED JANUARY 19, 1956, FROM THE CHIEF OF NAVAL PERSONNEL AND
CLAIM THAT YOU SHOULD RECEIVE PER DIEM FOR YOUR DUTY AT BROOKLYN. THE
LETTER OF JANUARY 19, PURPORTS TO CANCEL PARAGRAPH 1 OF YOUR ORDERS OF
AUGUST 11, 1953, WHICH ESTABLISHED NEW YORK AS YOUR PERMANENT DUTY
STATION. IT ALSO IS STATED THAT IT WAS NEVER THE INTENTION OF THE CHIEF
OF NAVAL PERSONNEL THAT YOU BE ASSIGNED TO DUTY AT THE NAVY SHIPS STORE
OFFICE, BROOKLYN, NEW YORK,AND SUCH WORDING WAS INCLUDED ERRONEOUSLY.
IT HAS BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE
INCOMPLETE OR AMBIGUOUS OR WHERE A PROVISION WHICH WAS ORIGINALLY
INTENDED TO BE INCLUDED IN TRAVEL ORDERS BUT WAS OMITTED THROUGH ERROR
OR INADVERTENCE IN PREPARING SUCH ORDERS, THE ORDERS MAY BE CORRECTED OR
COMPLETED TO SHOW THE ORIGINAL INTENT. 24 COMP. GEN. 439. HOWEVER, NO
SUCH ELEMENTS APPEAR IN YOUR CASE. YOUR ORDERS OF AUGUST 11, 1953,
APPEAR TO HAVE BEEN ISSUED IN ACCORDANCE WITH PARAGRAPH 4209 OF THE
JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME. WHILE THIS REGULATION
PURPORTED TO PERMIT A MEMBER TO RECEIVE PER DIEM ALLOWANCES EVEN THOUGH
HIS TEMPORARY DUTY STATION WAS CHANGED TO HIS PERMANENT STATION,
PROVIDED THE PERMANENT CHANGE OF STATION ORDERS BECAME EFFECTIVE AT A
LATER DATE, IT HAS BEEN HELD THAT NO PER DIEM ACCRUES UNDER SUCH
CIRCUMSTANCES. 34 COMP. GEN. 427. SEE ALSO SECTION 303 (A) OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 813. YOUR ORDERS WERE
COMPLETE AND UNAMBIGUOUS AND THEY ASSIGNED YOU TO PERMANENT DUTY AT
BROOKLYN AFTER COMPLETION OF YOUR ASSIGNED TEMPORARY DUTY THERE. THE
LETTER OF JANUARY 19, 1956, FROM THE CHIEF OF NAVAL PERSONNEL, CANNOT
SERVE AS A LEGAL BASIS TO CHANGE YOUR RIGHTS AND LIABILITIES AS FIXED
UNDER YOUR ORIGINAL ORDERS OF JULY 10, 1953, AS AMENDED BY YOUR ORDERS
OF AUGUST 11, 1953. YOU WERE NOT AWAY FROM YOUR DESIGNATED POST OF DUTY
DURING THE PERIOD OF YOUR CLAIM AND CONSEQUENTLY, CANNOT PROPERLY BE
CONSIDERED ENTITLED TO PER DIEM.
B-129184, OCT. 3, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR THE SHUNK MANUFACTURING COMPANY ALLEGES IT MADE IN
ITS BID ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 56-1905) DATED
FEBRUARY 29, 1956, IS BASED.
BY INVITATION NO. ORD-19-066-56-50, THE WATERTOWN ARSENAL, WATERTOWN,
MASSACHUSETTS, REQUESTED BIDS--- TO BE OPENED JANUARY 23, 1956--- FOR
FURNISHING 406 RACK ASSEMBLIES WHICH WERE TO BE PHOSPHATE AND
SECTIONALLY PLASTISOL COATED IN ACCORDANCE WITH DRAWING K7772165, AS
REVISED JUNE 1, 1954. IN RESPONSE THE SHUNK MANUFACTURING COMPANY
SUBMITTED A BID DATED JANUARY 20, 1956, OFFERING TO FURNISH THE
ASSEMBLIES AT A PRICE OF $9.60 EACH, WHICH WAS ACCEPTED ON FEBRUARY 29,
1956.
BY LETTERS DATED APRIL 2 AND MAY 25, 1956, THE COMPANY ADVISED THAT
IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD FAILED TO INCLUDE IN ITS
BID PRICE THE COST OF THE PLASTISOL COATING WHICH, TOGETHER WITH THE
COST OF FREIGHT TO SUBCONTRACTOR'S PLANT, IT STATED, AMOUNTS TO $8.97
PER ASSEMBLY; THAT ITS ESTIMATOR, MR. FOREMAN, NOTED THE PAINTING
SPECIFICATION OF PHOSPHATE BASE, PRIMER, ENAMEL AND STENCILING ON
DRAWING K7772165, TOGETHER WITH THE NOTE ON THE SIDE RELATING TO THE
VINYL PLASTISOL, BUT THAT BECAUSE OF THE NOTE APPEARING ON PAGE 4 OF THE
INVITATION TO THE EFFECT THAT "PAINTING AND STENCILING WILL BE DONE AT
WATERTOWN ARSENAL," HE DISREGARDED THIS FINISHING IN ITS ENTIRETY. THE
COMPANY REQUESTED THAT THE UNIT PRICE OF THE RACK ASSEMBLIES BE
INCREASED TO $18.57, AND STATED FURTHER THAT IT DISCOVERED THE ERROR OF
OMISSION WHEN IT STARTED ORDERING MATERIALS; THAT IT IMMEDIATELY
REQUESTED QUOTATIONS ON THE PLASTISOL COATING FROM TWO SUBCONTRACTORS
WHO QUOTED PRICES OF $7.52 EACH AND APPROXIMATELY $12 EACH; THAT ON
MARCH 26, 1956, IT CONTACTED THE MALKIN-ILLWIN COMPANY, IRVINGTON, NEW
JERSEY, WHO WAS SECOND LOW BIDDER AT $12.25 EACH, IN AN EFFORT TO OBTAIN
SOME INFORMATION ON THE COATING OPERATION, AND THAT THIS COMPANY
INFORMED IT THAT (1) THEY HAD NO EXPERIENCE WITH PLASTISOL FINISH; (2)
THAT THEY DID NOT HAVE A SUPPORTING QUOTATION FOR THIS COATING; (3)
THAT THEY HAD USED AROUND $1 EACH TO COVER THIS FINISH; AND (4) THAT
THEY WOULD BE RELUCTANT TO PROCEED ON A CONTRACT AFTER EARNING THE COST
OF THE COATING. WITH THE LETTER OF APRIL 2, 1956, THE COMPANY SUBMITTED
A COPY OF A LETTER QUOTATION DATED MARCH 27, 1956, RECEIVED FROM MUNRAY
PRODUCTS, INC., CLEVELAND, OHIO, IN WHICH THE COMPANY WAS QUOTED A PRICE
OF $7.52 PER UNIT ON THE PLASTISOL COATING OF THE RACK ASSEMBLIES.
THE ABSTRACT OF BIDS SHOWS THAT ON THE RACK ASSEMBLIES, SIX OTHER
BIDDERS QUOTED PRICES RANGING FROM $12.25 EACH TO $40 EACH. IN AN
UNDATED REPORT RECOMMENDING AN INCREASE IN THE UNIT PRICE OF THE
ASSEMBLIES TO $16.90--- THE AMOUNT QUOTED BY THE THIRD LOW BIDDER--- THE
CONTRACTING OFFICER STATES THAT, PRIOR TO THE ISSUANCE OF THE INVITATION
FOR THE BIDS, HE REQUESTED INFORMATION FROM THE CADILLAC MOTOR CAR
DIVISION, CLEVELAND TANK PLANT, CLEVELAND, OHIO, AS TO THE NAME OF THE
PREVIOUS SUPPLIER AND AS TO THE PRICE PAID FOR ASSEMBLIES IDENTICAL TO
THAT REQUIRED UNDER THE SUBJECT INVITATION; THAT HE WAS INFORMED THAT
THE ELECTRO-MECHANICAL PRODUCTS COMPANY, INC., GARDEN CITY, MICHIGAN,
HAD PRODUCED THE ITEM IN LOTS OF 500 AT A PRICE OF $19 EACH, AND THAT IN
RESPONSE TO THE SUBJECT INVITATION, THE ELECTRO-MECHANICAL PRODUCTS
COMPANY, INC., HAD QUOTED A PRICE OF $40 EACH FOR THE RACK ASSEMBLIES.
HE, THEREFORE, EXPRESSES THE OPINION THAT THERE WAS CONSTRUCTIVE NOTICE
OF A MISTAKE IN THE BID IN QUESTION DUE TO THE KNOWN PRICE OF A PREVIOUS
PRODUCER, THE MUCH HIGHER BIDS SUBMITTED BY FIVE OF THE SEVEN BIDDERS,
AND THE PRE-AWARD SURVEY SPECIFYING LACK OF PERFORMANCE RECORDS AND
OPERATIONAL SHEETS. UNDER THESE CIRCUMSTANCES, IT APPEARS THAT THE
CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF
ERROR IN THE BID, AND THAT THE BID OF THE SHUNK MANUFACTURING COMPANY
SHOULD NOT HAVE BEEN ACCEPTED WITHOUT REQUESTING THE COMPANY TO VERIFY
ITS BID.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE IS LITTLE
ROOM FOR DOUBT THAT THE SHUNK MANUFACTURING COMPANY MADE A BONA FIDE
ERROR IN ITS BID, AS ALLEGED. HOWEVER, IF THE BID BE CORRECTED TO
REFLECT THE PRICE REQUESTED BY THE COMPANY, IT WILL NOT BE THE LOWEST
BID ON THE ASSEMBLIES. IT IS REPORTED THAT AS OF JULY 5, 1956, THE
COMPANY HAD DELIVERED 150 OF THE REQUIRED 406 RACK ASSEMBLIES. IN HIS
UNDATED STATEMENT THE CONTRACTING OFFICER STATES THAT IT APPEARS FROM
THE COST OF THE PLASTISOL COATING AND OTHER EVIDENCE THAT THE NEXT
LOWEST BIDDER, MALKIN-ILLWIN COMPANY, WHO QUOTED A PRICE OF $12.25 EACH
FOR THE ASSEMBLIES, COULD NOT POSSIBLY PRODUCE THIS ITEM AT ITS BID
PRICE WITHOUT A LOSS. HENCE, IT WOULD APPEAR THAT THE NEXT LOWEST
CORRECT BID ON THE ASSEMBLIES IS THAT OF THE BRISTOL TOOL AND FORGING
CORPORATION WHO QUOTED A PRICE OF $16.90 EACH. ACCORDINGLY, IN VIEW OF
THE CONTRACTING OFFICER'S STATEMENT THAT THE BID OF THE NEXT LOW BIDDER,
MALKIN-ILLWIN COMPANY, IS ALSO ERRONEOUS, PAYMENT IS AUTHORIZED TO BE
MADE TO THE SHUNK MANUFACTURING COMPANY FOR THE QUANTITY OF RACK
ASSEMBLIES DELIVERED UNDER THE CONTRACT AT A UNIT PRICE OF $16.90--- THE
AMOUNT OF THE NEXT LOWEST CORRECT BID.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER OR
VOUCHERS COVERING PAYMENT FOR THE RACK ASSEMBLIES.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S UNDATED
STATEMENT, ARE RETURNED.
B-129225, OCT. 3, 1956
TO MISS NAOMI E. STOKES, AUTHORIZED CERTIFYING OFFICER, UNITED STATES
DEPARTMENT OF THE NTERIOR:
YOUR LETTER OF SEPTEMBER 4, 1956, REQUESTS OUR DECISION WHETHER YOU
MAY PROPERLY CERTIFY FOR PAYMENT THE RECLAIM VOUCHER ENCLOSED THEREWITH
IN FAVOR OF DAN R. RATKOVICH FOR $2.25, REPRESENTING 1/4-DAY PER DIEM
SUSPENDED ON HIS ORIGINAL VOUCHER FOR THE DAY OF JUNE 15, 1956.
PURSUANT TO TRAVEL AUTHORIZATION DATED JULY 1, 1955, AUTHORIZING
NECESSARY TRAVEL AS COAL MINE INSPECTOR THROUGHOUT A THREE-STATE
LOCALITY WITH DENVER, COLORADO, AS THE OFFICIAL STATION, THE EMPLOYEE
DEPARTED FROM DENVER AT 11 A.M. ON JUNE 15, 1956, IN A GOVERNMENT
VEHICLE AND ARRIVED IN TRINIDAD, COLORADO, AT 4:45 P.M. THE SAME DAY.
SINCE THE EMPLOYEE COULD HAVE DEPARTED 1 HOUR LATER AND THEREBY SAVED
THE GOVERNMENT 1/4-DAY PER DIEM AND HAD SUBMITTED NO EXPLANATION AS TO
THE
REASON FOR DEPARTURE PRIOR TO NOON, THE ALLOWANCE ON THE ORIGINAL
VOUCHER WAS LIMITED TO 1/2-DAY PER DIEM FOR THAT DATE.
THE EMPLOYEE SAYS THAT THE REASON FOR LEAVING AT 11 A.M. INSTEAD OF
12:01 P.M. WAS TO ENABLE HIM TO ARRIVE IN TRINIDAD AT 4:30 P.M., WHICH
WAS HIS REGULAR QUITTING TIME. THE APPROVAL OF THE DISTRICT SUPERVISOR
APPARENTLY WAS PREDICATED UPON THE SAME BASIS.
PARAGRAPH 1 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS
PROVIDES THAT EMPLOYEES TRAVELING ON OFFICIAL BUSINESS ARE EXPECTED TO
EXERCISE THE SAME CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD
EXERCISE IF TRAVELING ON PERSONAL BUSINESS.
WE HELD IN 31 COMP. GEN. 278, THAT AN EMPLOYEE MAY BE REQUIRED TO
TRAVEL ON NONWORKDAYS AND MAY NOT PROPERLY REFUSE TO UNDERTAKE SUCH
TRAVEL SOLELY BECAUSE OVERTIME COMPENSATION IS NOT PAID FOR TRAVEL TIME.
THE FOLLOWING LANGUAGE IS ALSO SET FORTH IN THAT DECISION:
"* * * ADMINISTRATIVE POLICY IN THAT REGARD (TRAVEL OUTSIDE OF
WORKING HOURS) SHOULD BE SO DESIGNED THAT IT WILL ADEQUATELY PROTECT THE
INTERESTS OF THE GOVERNMENT AND AT THE SAME TIME NOT RESULT IN UNDUE
HARDSHIP TO EMPLOYEES.'
IN 2 COMP. GEN. 708 WE HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):
"THE AVOIDING OF TRAVEL ON SUNDAY IS NOT A SUFFICIENT EXCUSE TO
ENTITLE AN EMPLOYEE OF THE TREASURY DEPARTMENT TO REIMBURSEMENT FOR THE
EXTRA DAY'S SUBSISTENCE EXPENSE INCURRED WHEN LEAVING HIS PERMANENT DUTY
STATION ONE DAY EARLIER THAN ORDINARILY REQUIRED TO REACH HIS TEMPORARY
DUTY STATION AT THE APPOINTED TIME.'
IN CONSTRUING WHAT CONSTITUTES THE EXERCISE OF REASONABLE CARE OF A
PRUDENT PERSON UNDER THE TRAVEL REGULATIONS, WE HELD IN 33 COMP. GEN.
221 THAT AN EMPLOYEE WHO DEPARTED EARLY IN ORDER TO OBTAIN A HOTEL
RESERVATION AT HIS DESTINATION WAS USING DUE CARE. OUR DECISION
B-123715, AUGUST 12, 1955, HELD THAT A TRAVELER WAS EXERCISING THE
NECESSARY CARE WHEN HE INTERRUPTED HIS TRAVEL AT THE END OF 17 HOURS IN
ORDER TO SECURE NEEDED SLEEP. MOREOVER, IN DECISION B-121314 OF JANUARY
6, 1955, WE CONCLUDED THAT IT WOULD BE UNREASONABLE TO SCHEDULE AN
EMPLOYEE'S DEPARTURE TIME SO THAT HE WOULD ARRIVE AT HIS DESTINATION AT
9:45 P.M. OR 11:55 P.M. TO DO SO WOULD HAVE PREVENTED HIM FROM SECURING
THE NECESSARY HOTEL ACCOMMODATIONS AND RETIRING AT A REASONABLE HOUR IN
ORDER TO GET THE NECESSARY REST PRIOR TO REPORTING FOR DUTY THE
FOLLOWING MORNING. ALSO SEE 16 COMP. GEN. 620, 624.
WHETHER A TRAVELER HAS USED DUE CARE IN THE INCURRENCE OF AN EXPENSE
AND WHETHER THE EXPENSE WAS ESSENTIAL TO THE TRANSACTING OF THE OFFICIAL
BUSINESS ARE ESSENTIALLY FACTUAL MATTERS FOR DETERMINATION IN THE LIGHT
OF THE CIRCUMSTANCES OF THE PARTICULAR CASE.
OUR OPINION IS THAT THE EXPLANATION GIVEN BY THE TRAVELER IN THIS
CASE DOES NOT JUSTIFY HIS EARLY DEPARTURE AND THAT THE ADMINISTRATIVE
ACTION IN DEDUCTING THE EXCESS COST WAS PROPER. ACCORDINGLY, THE
RECLAIM VOUCHER RETURNED HEREWITH MAY NOT BE PROCESSED FOR PAYMENT.
B-129252, OCT. 3, 1956
TO MR. LOUIS G. WHITCOMB, UNITED STATES ATTORNEY:
YOUR LETTER OF AUGUST 29, 1956, REQUESTS REVIEW OF THE AUDIT
EXCEPTIONS, IN YOUR ACCOUNT AS AN AUTHORIZED CERTIFYING OFFICER, TO
PAYMENTS OF PER DIEM IN LIEU OF SUBSISTENCE TO YOURSELF DURING THE
PERIOD NOVEMBER 23, 1953, TO AUGUST 31, 1955, COVERING TIME SPENT AT
BURLINGTON, VERMONT, ON OFFICIAL BUSINESS, AND ALSO, FOR EXCESSIVE PER
DIEM FOR FRACTIONAL DAYS WHILE IN A TRAVEL STATUS.
YOU RELATE AT LENGTH THE CORRESPONDENCE BETWEEN YOURSELF AND THE
DEPARTMENT OF JUSTICE REGARDING THE LOCATION OF YOUR HEADQUARTERS UPON
YOUR APPOINTMENT AS UNITED STATES ATTORNEY. YOU WERE RESIDING AT
SPRINGFIELD, VERMONT, AT THAT TIME AND BY LETTER OF DECEMBER 1, 1953,
FROM THE DEPUTY ATTORNEY GENERAL, YOU WERE INFORMED THAT "YOUR OFFICIAL
HEADQUARTERS WILL BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON.' NO
CHANGE WAS MADE IN THIS DESIGNATION OF HEADQUARTERS UNTIL SEPTEMBER 1,
1955, WHEN YOUR HEADQUARTERS WERE OFFICIALLY CHANGED TO RUTLAND,
VERMONT. IT APPEARS TO BE YOUR CONTENTION THAT AT NO TIME PRIOR TO
SEPTEMBER 1, 1955, DID YOU HAVE A PERMANENT DUTY STATION AT BURLINGTON.
THE PROVISIONS OF 28 U.S.C. 505, REQUIRE THAT UNITED STATES ATTORNEYS
RESIDE IN THE DISTRICT FOR WHICH APPOINTED AND STATES THAT THE ATTORNEY
GENERAL SHALL DETERMINE THE OFFICIAL STATION OF UNITED STATES ATTORNEYS
WITHIN THE DISTRICT TO WHICH THEY ARE APPOINTED. 28 U.S.C. 509,
AUTHORIZES THE PAYMENT OF TRAVEL AND SUBSISTENCE EXPENSES TO UNITED
STATES ATTORNEYS "WHILE ABSENT FROM THEIR OFFICIAL STATIONS ON OFFICIAL
BUSINESS.' TO THE SAME EFFECT SEE TITLE 8, PAGE 109 OF THE UNITED STATES
ATTORNEYS" MANUAL.
IT WILL BE NOTED THAT THE LETTER OF DECEMBER 1, 1953, FROM THE DEPUTY
ATTORNEY GENERAL DID NOT STATE THAT SPRINGFIELD AND BURLINGTON WOULD BE
YOUR "TEMPORARY" HEADQUARTERS BUT THAT YOUR OFFICIAL HEADQUARTERS WILL
BE TEMPORARILY AT SPRINGFIELD AND BURLINGTON. THIS DESIGNATION OF
HEADQUARTERS IS FURTHER CONFIRMED BY REPORT OF MARCH 23, 1956, FROM THE
CHIEF, ACCOUNTS BRANCH, DEPARTMENT OF JUSTICE, IN THE FOLLOWING
LANGUAGE---
"THE RECORDS OF THE DEPARTMENT SHOW THAT MR. WHITCOMB WAS GIVEN A
RECESS APPOINTMENT ON NOVEMBER 23, 1953, WITH HEADQUARTERS JOINTLY AT
BURLINGTON AND SPRINGFIELD, VERMONT. ON MARCH 15, 1954, HE WAS GIVEN A
PRESIDENTIAL APPOINTMENT WITH HEADQUARTERS AT THE SAME POINTS. ON JUNE
18, 1954, APPROVAL WAS GIVEN TO MR. WHITCOMB TO MOVE HIS OFFICES TO
RUTLAND, VERMONT, THE EFFECTIVE DATE THEREOF BEING SUBJECT TO SPACE
AVAILABILITY. ON SEPTEMBER 1, 1955, HIS HEADQUARTERS WERE CHANGED TO
RUTLAND, VERMONT.'
AS PER DIEM IN LIEU OF SUBSISTENCE IS PAYABLE ONLY WHEN ABSENT FROM
OFFICIAL HEADQUARTERS IT FOLLOWS THAT, IF YOUR CONTENTION THAT YOU HAD
NO OFFICIAL HEADQUARTERS PRIOR TO SEPTEMBER 1, 1955, BE ACCEPTED, ALL
PER DIEM PRIOR TO THAT DATE WOULD BE FOR DISALLOWANCE. 23 COMP. GEN.
162.
IT APPEARS BEYOND QUESTION THEREFORE THAT PRIOR TO SEPTEMBER 1, 1955,
YOU HAD DUAL OFFICIAL HEADQUARTERS AT SPRINGFIELD AND BURLINGTON AND
WERE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE ONLY WHEN ABSENT FROM
BOTH HEADQUARTERS ON OFFICIAL BUSINESS. PARAGRAPH 46 OF THE
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES: "UNDER NO
CIRCUMSTANCES WILL PER DIEM IN LIEU OF SUBSISTENCE BE ALLOWED AN
EMPLOYEE AT HIS PERMANENT DUTY STATION.' PARAGRAPH 51, CONTAINS THE
FOLLOWING PROVISO: "THAT NO PER DIEM WILL BE ALLOWED WHEN THE ABSENCE
IS AT OR AFTER 8 A.M. AND RETURN ON THE SAME DAY IS AT OR PRIOR TO 6
P.M. OR FOR ANY ABSENCE NOT EXCEEDING 3 HOURS.'
THE EXCEPTIONS APPEAR TO HAVE BEEN PROPERLY TAKEN UNDER THE FACTS IN
YOUR CASE AND UPON REVIEW THEY MUST BE AND ARE SUSTAINED.
B-129354, OCT. 3, 1956
TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT
PRINTING OFFICE:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO WHETHER A BID DATED SEPTEMBER
14, 1956, SUBMITTED BY PAINT PRINT PROCESS, INC., 438 WEST 37TH STREET,
NEW YORK 18, NEW YORK, MAY BE DISREGARDED IN VIEW OF THE BIDDER'S
ALLEGATION OF ERROR.
THE RECORD SHOWS THAT ON SEPTEMBER 11, 1956, INVITATION TO BID,
JACKET NO. 397310, REQUESTED PRICES FOR FURNISHING 45,000 BUMPER STRIPS,
SIZE 18 BY 1 1/2 INCHES, DELIVERY TO BE COMPLETED ON OR BEFORE OCTOBER
15, 1956. THE BIDS WERE OPENED ON SEPTEMBER 19, 1956, AND IT WAS FOUND
THAT PAINT PRINT PROCESS, INC., WAS THE LOW BIDDER AT A PRICE OF $1,350.
SEVEN OTHER BIDS WERE RECEIVED WHICH RANGED IN PRICE FROM $8,685 TO
$10,800. WHEN EXAMINING THE BIDS, THE CONTRACTING OFFICER NOTED THAT
THE BID OF PAINT PRINT PROCESS, INC. WAS EXTREMELY LOW IN COMPARISON
WITH THE OTHER BIDS, IT BEING NOTED THAT A PREVIOUS ORDER OF THE
IDENTICAL ITEM HAD COST $0.198 PER UNIT IN COMPARISON WITH THE $0.03 PER
UNIT OFFERED BY PAINT PRINT PROCESS, INC.
IT IS REPORTED THAT SINCE THE CONTRACTING OFFICER BELIEVED THAT AN
ERROR HAD BEEN MADE IN THE LOW BID, HE FORWARDED A TELEGRAM ON SEPTEMBER
24, 1956, TO PAINT PRINT PROCESS, INC., REQUESTING THAT FIRM TO REVIEW
THE SPECIFICATIONS AND TO CONFIRM ITS BID PRICE ON THE JOB. BY TELEGRAM
DATED SEPTEMBER 24, 1956, THE FIRM REQUESTED THAT ITS BID PRICE BE
REVISED TO $0.21 PER UNIT, AND IN A SUBSEQUENT TELEPHONE CONVERSATION
THE LOW BIDDER ADVISED THAT AN ERROR HAD BEEN MADE IN THE ORIGINAL
QUOTATION IN THAT THE ESTIMATOR HAD FIGURED ONLY ONE ROLL OF BASIC
MATERIAL FOR THE ORDER AT $450 PER ROLL WHEN HE SHOULD HAVE CHARGED FOR
TWENTY ROLLS. THE LOW BIDDER ADVISED THAT THE ERROR OCCURRED WHEN THE
ESTIMATOR OBTAINED A COST FIGURE FROM THE SUPPLIER OF THE MATERIAL WHICH
HE BELIEVED TO BE THE TOTAL COST OF THE MATERIAL WHEN ACTUALLY IT WAS
THE COST PER ROLL.
SINCE THE CONTRACTING OFFICER HAS STATED THAT HE BELIEVES AN HONEST
ERROR WAS MADE BY PAINT PRINT PROCESS, INC., IN QUOTING ON THIS JOB, AND
SINCE SUCH BELIEF WAS CONFIRMED AND THE ERROR, TOGETHER WITH THE REASON
THEREFOR, WAS EXPLAINED BY THE BIDDER PRIOR TO AWARD, THE BID OF PAINT
PRINT PROCESS, INC., SHOULD BE DISREGARDED.
THE PAPERS TRANSMITTED WITH YOUR LETTER, WITH THE EXCEPTION OF THE
BIDDER'S LETTER OF SEPTEMBER 25, 1956, AND ESTIMATE SHEET, ARE RETURNED
HEREWITH.
B-122562, OCT. 2, 1956
TO THE SECRETARY OF THE TREASURY:
IN A LETTER DATED SEPTEMBER 12, 1956, THE ACTING SECRETARY, REQUESTED
ADVICE WHETHER OUR OFFICE WOULD BE REQUIRED TO OBJECT TO THE UTILIZATION
OF THE BUREAU OF ENGRAVING AND PRINTING FUND FOR THE PAYMENT OF TUITION,
PER DIEM AND TRAVEL EXPENSES UNDER THE FACTS AND CIRCUMSTANCES
HEREINAFTER RELATED.
SECTION 2 (D) OF THE ACT OF AUGUST 4, 1950, 31 U.S.C. 181A (D),
PROVIDES AS FOLLOWS:
"THE FUND SHALL BE ESTABLISHED WITHOUT FISCAL-YEAR LIMITATION FOR
FINANCING ALL COSTS AND EXPENSES OF OPERATING AND MAINTAINING THE BUREAU
SUBSEQUENT TO JUNE 30, 1951.'
ON MAY 26, 1955, WE RENDERED YOU A DECISION, B-122562, TO THE EFFECT
THAT WE WOULD INTERPOSE NO OBJECTION TO YOUR DEPARTMENT ENTERING INTO A
CONTRACT FOR THE PROCUREMENT OF CERTAIN EXPERT AND CONSULTANT SERVICES
AND PAYING THE COSTS INCURRED THEREUNDER FROM THE BUREAU OF ENGRAVING
AND PRINTING FUND, NOTWITHSTANDING THE ABSENCE OF SPECIFIC STATUTORY
AUTHORITY FOR THE EMPLOYMENT OF SUCH SERVICES. OUR CONCLUSION WAS BASED
UPON EVIDENCE SHOWING THE INTENT OF THE CONGRESS THAT THE QUOTED
PROVISION SHOULD BE GIVEN A BROAD CONSTRUCTION. ALSO SEE, GENERALLY,
B-104492, OCTOBER 4, 1951, TO YOUR DEPARTMENT.
UNDER THE CONTRACT THERE WAS INSTALLED IN THE BUREAU AN "INDUSTRIAL
ENGINEERING FUNCTION," INCLUDING THE TRAINING OF SELECTED PERSONNEL IN
INDUSTRIAL ENGINEERING TECHNIQUES AND PROCEDURES. ONLY THROUGH AN
INTENSIVE RECRUITING PROGRAM WAS THE BUREAU ABLE TO SECURE THE SERVICES
OF AN INDUSTRIAL ENGINEER TO SUPERVISE THIS FUNCTION WHO WAS DEEMED
QUALIFIED TO MEET THE UNIQUE REQUIREMENTS OF THE BUREAU. HE DECIDED,
AFTER ONLY 8 MONTHS IN THE POSITION, TO RETURN TO PRIVATE INDUSTRY. IT
WAS ADMINISTRATIVELY OBSERVED THAT THE EMPLOYEE, WHO WAS WELL FITTED FOR
THE APPOINTMENT FROM THE STANDPOINT OF PROFESSIONAL TRAINING AND
PERSONALITY, EXPERIENCED CONSIDERABLE DIFFICULTY IN THE PERFORMANCE OF
HIS DUTY BECAUSE OF LACK OF BACKGROUND KNOWLEDGE OF THE BUREAU'S
FUNCTIONS AND PROCEDURES WHICH DIFFER MATERIALLY FROM THOSE PRESENT IN
THE USUAL COMMERCIAL PRINTING PLANT.
THE ACTING SECRETARY SAYS THAT BASED ON THAT EXPERIENCE IT IS
BELIEVED THAT RATHER THAN TO BRING A TRAINED ENGINEER INTO THE BUREAU
AND LOSE THE CONSIDERABLE TIME NECESSARY FOR HIS ADAPTATION TO BUREAU
FUNCTIONS AND PROCEDURES IT WOULD BE IN THE BEST INTEREST OF THE BUREAU
TO SELECT AS A REPLACEMENT AN EMPLOYEE ALREADY ON THE MANAGEMENT STAFF
WHO POSSESSES THE NECESSARY KNOWLEDGE OF THE BUREAU'S FUNCTIONS AND
PROCEDURES BUT WHO DOES NOT POSSESS THE REQUISITE INDUSTRIAL ENGINEERING
TRAINING. HE STATES THAT IT IS DEEMED ESSENTIAL THAT THE SELECTEE BE
SCHOOLED IN THE SAME METHODS AND BY THE SAME INDUSTRIAL ENGINEERING FIRM
THAT INSTALLED YOUR ,INDUSTRIAL ENGINEERING FUNCTION.' ACCORDINGLY, IT
IS PROPOSED TO SEND THE SELECTEE TO THE METHODS ENGINEERING COUNCIL,
PITTSBURGH, PENNSYLVANIA, FOR APPROXIMATELY 42 DAYS FOR COURSES IN
METHODS ENGINEERING AND METHODS TIME MEASUREMENT.
IN VIEW OF THE BROAD LANGUAGE OF SECTION 2 (D), ABOVE, AND PROVIDED
IT BE DETERMINED ADMINISTRATIVELY THAT THE EXPENDITURES PROPOSED ARE
NECESSARY COSTS OF OPERATING AND MAINTAINING THE BUREAU, WE WILL
INTERPOSE NO OBJECTION TO THE PAYMENT OF OTHERWISE PROPER EXPENSES OF
B-127718, OCT. 2, 1956
TO COMMANDER W. B. MCQUOWN, USN:
REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 28, 1956, WITH
ENCLOSURE, FURTHER CONCERNING YOUR CLAIM FOR $115.25, PAID BY YOU FOR
THE TEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS FROM JULY 24 TO
SEPTEMBER 24, 1955, AND FOR WRAPPING MATERIALS AND WAREHOUSE HANDLING
CHARGES.
CHANGE OF DUTY ORDERS DATED MARCH 14, 1955, PROVIDED THAT WHEN
DIRECTED BY THE COMMANDER, AIR FORCE, PACIFIC FLEET, ON OR ABOUT AUGUST
10, 1955, YOU WERE TO CONSIDER YOURSELF DETACHED FROM DUTY ON HIS STAFF
AND TO PROCEED TO BREMERTON, WASHINGTON, FOR DUTY. YOU WERE DETACHED
FROM SUCH DUTY ON AUGUST 11, 1955, AND GRANTED A DELAY OF 10 DAYS PRIOR
TO REPORTING TO YOUR NEW STATION. YOU REPORTED AT YOUR NEW DUTY STATION
ON AUGUST 22, 1955. AFTER THE RECEIPT OF THE ORDERS OF MARCH 14, 1955,
YOUR HOUSEHOLD EFFECTS WERE SHIPPED ON MAY 13, 1955, FROM CORONADO,
CALIFORNIA, WHERE YOU WERE THEN LIVING, ARRIVING AT BREMERTON ON MAY 24,
1955. THE EFFECTS WERE PLACED IN COMMERCIAL STORAGE ON THE LATTER DATE,
WHERE YOU SAY THEY REMAINED THROUGH AUGUST 31, 1955. STORAGE CHARGES
FOR THE PERIOD MAY 24 THROUGH JULY 23, 1955, IN THE AMOUNT OF $74.30
HAVE BEEN PAID BY THE GOVERNMENT.
YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 5, 1956, OF OUR
CLAIMS DIVISION, AND SUCH DISALLOWANCE WAS SUSTAINED BY OUR DECISION OF
JULY 19, 1956, B-127718, TO YOU, FOR THE REASON THAT THE STORAGE FROM
JULY 24 TO SEPTEMBER 24, 1955, APPEARED TO HAVE RESULTED FROM THE EARLY
MOVEMENT OF THE EFFECTS RATHER THAN FROM YOUR CHANGE OF STATION AND THAT
THE CERTIFICATE FURNISHED BY YOU DID NOT STATE THAT THE STORAGE AFTER
YOUR ARRIVAL AT BREMERTON ACTUALLY WAS NECESSARY BECAUSE OF YOUR
INABILITY TO FIND A SUITABLE DWELLING. YOU WERE ALSO ADVISED THAT
PAYMENT BY THE GOVERNMENT OF $74.30 FOR THE STORAGE OF YOUR EFFECTS
DURING THE PERIOD MAY 24 TO JULY 23, 1955, RESULTING FROM THE EARLY
MOVEMENT OF THE EFFECTS, WAS UNAUTHORIZED, AND YOU WERE REQUESTED TO
REMIT THAT SUM TO OUR OFFICE.
IN THE LETTER OF AUGUST 28, 1956, YOU SAY THAT YOUR WIFE WENT TO
BREMERTON IN MAY 1955 SINCE HOUSING WAS AT A PREMIUM IN THAT AREA AND
YOU DESIRED TO GET YOUR FAMILY SETTLED BEFORE THE OPENING OF SCHOOL IN
SEPTEMBER. YOU FURTHER SAY THAT YOUR WIFE WAS NOT ABLE TO OBTAIN A
HOUSE READY FOR OCCUPANCY, AND THAT YOU PURCHASED A HOME UNDER
CONSTRUCTION AND MOVED YOUR HOUSEHOLD EFFECTS INTO IT AS SOON AS IT WAS
AVAILABLE. THERE WAS SUBMITTED WITH YOUR LETTER A CERTIFICATE OF
NECESSITY FOR STORAGE DATED AUGUST 28, 1956, BY THE TRAFFIC BRANCH
OFFICER AT YOUR NEW STATION CERTIFYING THAT GOVERNMENT QUARTERS WERE NOT
AVAILABLE AND THAT TEMPORARY STORAGE WAS REQUIRED TO PROVIDE SUFFICIENT
TIME TO PROCURE SUITABLE HOUSING.
IN VIEW OF THE EXPLANATION AS CONTAINED IN THE LETTER AND CERTIFICATE
OF AUGUST 28, 1956, IT WOULD APPEAR THAT STORAGE OF YOUR EFFECTS NOT IN
EXCESS OF ONE MONTH WOULD HAVE BEEN REQUIRED IF THERE HAD NOT BEEN AN
EARLY SHIPMENT OF THE EFFECTS. ACCORDINGLY, IT APPEARS THAT YOU ARE
ENTITLED TO REIMBURSEMENT FOR STORAGE FOR ONE MONTH ($25.50), PLUS THE
COST OF THE WRAPPING MATERIALS ($13.25) AND THE WAREHOUSE HANDLING
CHARGE ($51). SINCE THE PAYMENT BY THE GOVERNMENT OF THE CHARGE OF
$74.30 FOR STORAGE FOR THE PERIOD MAY 24 THROUGH JULY 23, 1955, HAVING
BEEN OCCASIONED BY THE EARLY MOVEMENT OF THE EFFECTS, WAS UNAUTHORIZED,
AS EXPLAINED TO YOU IN THE DECISION OF JULY 19, 1956, THE AMOUNT OF SUCH
PAYMENT WILL BE DEDUCTED FROM THE AMOUNT FOUND TO BE DUE AS SET FORTH
ABOVE, AND A SETTLEMENT WILL ISSUE IN YOUR FAVOR FOR THE BALANCE.
B-128298, OCT. 2, 1956
TO BOARD OF STATE HARBOR COMMISSIONERS FOR THE PORT OF SAN FRANCISCO:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 14, 1956, REQUESTING A
REVIEW OF OUR SETTLEMENT CERTIFICATE WHICH DISALLOWED YOUR CLAIM ON BILL
NOS. B-3595, B-3672, B-4856 AND B-5402, IN THE TOTAL AMOUNT OF $992.34,
REPRESENTING CHARGES ALLEGED TO BE OWING TO THE STATE BELT RAILROAD FOR
HOLDING AND SWITCHING SERVICES PERFORMED FOR THE DEPARTMENT OF THE ARMY
DURING THE YEARS 1945, 1946 AND 1947.
THE RECORD INDICATES THAT THESE BILLS WERE NOT PRESENTED TO THE
DEPARTMENT OF THE ARMY FOR PAYMENT UNTIL THE EARLY PART OF 1954--- A
PERIOD OF FROM SEVEN TO NINE YEARS AFTER THE SERVICES HAD BEEN
PERFORMED. IN TRANSMITTING THE BILLS TO OUR OFFICE FOR SETTLEMENT, THE
OAKLAND ARMY BASE STATED THAT ALL RECORDS PRIOR TO JUNE 30, 1949, HAD
BEEN DESTROYED PURSUANT TO COMPETENT AUTHORITY, AND THAT THE CHARGES
COULD NOT BE VERIFIED. THEREFORE, YOUR BILLS WERE TRANSMITTED TO OUR
OFFICE WITHOUT ADMINISTRATIVE CERTIFICATION THAT THE CHARGES WERE
PROPER, AND WITHOUT A SPECIFIC RECOMMENDATION AS TO PAYMENT.
AS A RESULT OF THE LONG DELAY FOR WHICH YOU WERE RESPONSIBLE AND FOR
WHICH NO EXPLANATION HAS BEEN OFFERED, THE GOVERNMENT HAS BEEN UNABLE TO
ASSEMBLE A RECORD ESTABLISHING THAT THE CHARGES CLAIMED ARE, IN FACT,
OWING. WHEN DOUBT EXISTS THAT A CLAIM IS PROPER FOR PAYMENT, THE
ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO ALLOW
PAYMENT. SEE CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; LONGWILL V.
UNITED STATES, 17 C.CLS. 288, 291.
ACCORDINGLY, THE SETTLEMENT CERTIFICATE DISALLOWING YOUR CLAIM FOR
$992.34 APPEARS TO HAVE BEEN CORRECT, AND IT IS SUSTAINED.
B-128486, OCT. 2, 1956
TO ARTHUR LAZARUS COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1956, WITH
ENCLOSURES, PROTESTING AGAINST THE ACTION OF THE MICHIGAN OFFICE OF
CIVIL DEFENSE IN AWARDING TO ANOTHER BIDDER A CONTRACT FOR A PHASE I
STUDY OF THE NATIONAL SURVIVAL PLAN APPLICABLE TO MICHIGAN. IN YOUR
LETTER YOU STATED THAT YOUR BID WAS IN THE AMOUNT OF $26,000 BUT THAT
THE ACTING CIVIL DEFENSE DIRECTOR AT LANSING ADVISED YOU THAT HE HAD
RECOMMENDED ACCEPTANCE OF A BID OF $50,000. YOU STATED, ALSO, THAT THE
AWARD--- WHICH REQUIRED THE APPROVAL OF THE FEDERAL CIVIL DEFENSE
ADMINISTRATION--- HAD BEEN MADE.
IN RESPONSE TO REQUESTS BY THIS OFFICE, THE FEDERAL CIVIL DEFENSE
ADMINISTRATION HAS FURNISHED REPORTS IN THE MATTER. IT IS REPORTED THAT
THE FEDERAL CIVIL DEFENSE ADMINISTRATION HAD NOT ENTERED INTO A CONTRACT
WITH THE STATE OF MICHIGAN FOR THE CONDUCT OF A SURVIVAL PLAN PROJECT
UNTIL AUGUST 16, 1956, AND THAT A CONTRARY STATEMENT IN HOUSE REPORT NO.
2946, 84TH CONGRESS, CAN BE ATTRIBUTED ONLY TO A MISTAKE OF FACT. ON
THAT DATE, AFTER EXTENDED NEGOTIATIONS, NEGOTIATED CONTRACT NO.
CD-SP-57-5 WAS ENTERED INTO, PROVIDING FOR PAYMENT TO THE STATE OF
MICHIGAN FOR APPROVABLE EXPENSES NOT TO EXCEED $68,700, SUCH EXPENSES TO
INCLUDE ONLY THOSE INCURRED IN ACCORDANCE WITH FEDERAL CIVIL DEFENSE
ADMINISTRATION SURVIVAL PLAN REGULATIONS (32 CFR PART 1805), FEDERAL
CIVIL DEFENSE ADMINISTRATION SURVIVAL PLAN MANUAL, M27-1, AND THE
PROVISIONS OF THE CONTRACT. IN THE COURSE OF NEGOTIATIONS, THE STATE OF
MICHIGAN ADVISED THE FEDERAL CIVIL DEFENSE ADMINISTRATION THAT IT HAD
INITIATED WORK ON THE PROJECT IN QUESTION AND REQUESTED TO BE REIMBURSED
FOR SUCH EXPENSES AS WERE PROPER FOR REIMBURSEMENT.
IT IS REPORTED FURTHER THAT ALTHOUGH THE FEDERAL CIVIL DEFENSE
ADMINISTRATION IS NOT A PARTY TO SUCH CONTRACTS AWARDED BY A STATE, IT
REVIEWS THE CONTRACTS TO DETERMINE WHETHER THE PROPOSED CONTRACTOR IS
QUALIFIED TO PERFORM THE PORTION OF THE PROJECT INVOLVED AND THAT THE
CONTRACT ADEQUATELY PROVIDES FOR THE CONDUCT OF THAT PORTION OF THE
PROJECT IN ACCORDANCE WITH THE APPLICABLE REGULATIONS, MANUAL, AND
CONTRACT PROVISIONS ABOVE REFERRED TO.
THE FEDERAL CIVIL DEFENSE ADMINISTRATION EXPRESSES ITS UNDERSTANDING
THAT THE STATE OF MICHIGAN ENGAGED A MANAGEMENT CONSULTANT FIRM TO
ASSIST IN THE PROJECT, BUT THAT THE CONTRACT WAS TERMINATED AND THAT A
NEW CONTRACT PROBABLY WOULD BE AWARDED IN THE NEAR FUTURE COVERING PART
OF THE PROJECT WORK, SUCH NEW CONTRACT TO BE SUBMITTED TO THE FEDERAL
CIVIL DEFENSE ADMINISTRATION FOR REVIEW PRIOR TO EXECUTION.
IT IS REPORTED THAT IN FURNISHING FINANCIAL ASSISTANCE TO STATES FOR
THE CONDUCT OF SURVIVAL PLAN PROJECTS THE FEDERAL CIVIL DEFENSE
ADMINISTRATION REQUIRES THE STATE TO FOLLOW ITS OWN CONTRACTING
STATUTES, REGULATIONS, AND PROCEDURES, IN THE EVENT THAT IT ENTERS INTO
A CONTRACT FOR THE PERFORMANCE OF ANY WORK OR SERVICES IN CONNECTION
WITH THE PROJECT. ACCORDINGLY, ARTICLE IV OF CONTRACT NO. CD-SP-57-5
PROVIDES:
"SUBCONTRACTS. UPON PRIOR WRITTEN APPROVAL OF THE GOVERNMENT THAT
THE PROVISIONS OF THE PARTICULAR SUBCONTRACT ARE CONSISTENT WITH THE
TERMS OF THIS AGREEMENT AND THAT THE SPECIFIC SUBCONTRACTOR INVOLVED IS
QUALIFIED TO PERFORM THE SERVICES REQUIRED, PORTIONS OF THIS CONTRACT
MAY BE SUBCONTRACTED PURSUANT TO AND CONSISTENT WITH THE STATUTES,
PROCEDURES AND REGULATIONS GOVERNING THE LETTING OF CONTRACTS BY THE
CONTRACTORS.'
THE FEDERAL CIVIL DEFENSE ADMINISTRATION STATES FURTHER THAT IT HAS
REQUESTED THE STATE OF MICHIGAN, IN THE EVENT IT DESIRES TO SUBCONTRACT
ANY FUTURE WORK UNDER THE PROJECT, TO FURNISH EVIDENCE THAT THE STATES
CONTRACTING PROCEDURES AND REGULATIONS WERE FOLLOWED IN THE AWARD OF THE
CONTRACT.
IN VIEW OF THE FOREGOING, THERE APPEARS NO PROPER BASIS FOR FURTHER
ACTION BY THIS OFFICE IN THE MATTER.
B-128899, OCT. 2, 1956
TO MR. CARL E. BRAZELL:
YOUR LETTER OF AUGUST 17, 1955, FORWARDED TO THIS OFFICE BY THE
UNITED STATES COAST GUARD, REQUESTS REVIEW OF THE DISALLOWANCE OF YOUR
CLAIM FOR PER DIEM DURING THE PERIOD OCTOBER 1 TO 21, 1954, IN
CONNECTION WITH YOUR DUTY ABOARD THE CGC IROQUOIS (WPG-43). YOU WERE
ALLOWED PER DIEM FOR THE DAY ON WHICH THAT VESSEL WAS DECOMMISSIONED.
WE ALSO HAVE RECEIVED YOUR LETTER OF SEPTEMBER 12, 1956.
BY ORDERS DATED JULY 23, 1954, YOU WERE DETACHED FROM DUTY ABOARD THE
USCGC CHAUTAUQUA (WPG-41) AND ORDERED TO DUTY ABOARD THE CGC IROQUOIS
(WPG-43) FOR ASSIGNMENT TO TEMPORARY DUTY AS ENGINEERING OFFICER IN
CONNECTION WITH FERRYING THE CGC IROQUOIS TO THE COAST GUARD YARD,
CURTIS BAY, MARYLAND. ON JANUARY 13, 1955, THE COMMANDING OFFICER OF
THE CGC IROQUOIS TERMINATED YOUR TEMPORARY DUTY ABOARD THAT VESSEL. IT
IS INDICATED THAT DURING THE PERIOD OCTOBER 1, 1954, TO JANUARY 13,
1955, QUARTERS AND MESSING FACILITIES WERE FURNISHED OR AVAILABLE TO YOU
ABOARD THE VESSEL AND YOU CLAIM PER DIEM FOR THE PERIOD OCTOBER 1 TO 21,
1954, ON THE BASIS THAT QUARTERS ALSO WERE NOT AVAILABLE AT THE COAST
GUARD YARD, CURTIS BAY, MARYLAND, DURING THAT PERIOD. IN SUPPORT OF
YOUR CLAIM YOU REFER TO PARAGRAPH 4206 OF THE JOINT TRAVEL REGULATIONS
WHICH PROVIDES FOR PAYMENT OF PER DIEM ALLOWANCE TO A MEMBER WHO IS
ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR
CONVERSION OF A VESSEL.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE
TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL UNDER COMPETENT ORDERS
UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM
THEIR DESIGNATED POSTS OF DUTY. THE RESPECTIVE SECRETARIES ARE
AUTHORIZED TO PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND
TRANSPORTATION ALLOWANCES SHALL BE PAID. REGULATIONS ISSUED PURSUANT TO
THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH
4201 OF THE REGULATIONS PROVIDES:
"SPECIAL CASES UNDER WHICH TEMPORARY DUTY PER DIEM ALLOWANCES ARE NOT
PAYABLE
"PER DIEM ALLOWANCES ARE NOT PAYABLE FOR THE FOLLOWING PERIODS:
"8. FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A
GOVERNMENT VESSEL COMMENCING THE DAY AFTER THE DAY OF ARRIVAL THEREAT
AND TERMINATING THE DAY PRIOR TO THE DAY OF DEPARTURE THEREFROM
(TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL WILL BE
CONSIDERED UNBROKEN WHEN A MEMBER TRANSFERS FROM ONE VESSEL TO ANOTHER
AT THE SAME PLACE AND THE TRANSFER IS EFFECTED WITHIN A 10-HOUR PERIOD
(FOR TRAVEL BY GOVERNMENT VESSEL, SEE PARS. 4210 AND (4253-5); "
THAT REGULATION PROHIBITS PAYMENT OF PER DIEM ALLOWANCES TO A MEMBER
FOR ANY PERIOD HE IS ASSIGNED TO TEMPORARY DUTY ABOARD A GOVERNMENT
VESSEL. THE PROHIBITION CONTAINS NO EXCEPTION WHICH WOULD PERMIT
PAYMENT OF THAT ALLOWANCE ON THE BASIS THAT QUARTERS ABOARD SHIP WERE
RENDERED UNINHABITABLE WHILE UNDERGOING OVERHAUL, CONVERSION OR REPAIR
OR BECAUSE OF ANY OTHER CONDITIONS OR CIRCUMSTANCES WHICH PREVENT
OCCUPANCY OF QUARTERS. THE DECISION OF AUGUST 2, 1956, B-127774,
REFERRED TO IN YOUR LETTER OF SEPTEMBER 12, 1956, CONCERNED A MEMBER'S
ENTITLEMENT TO PER DIEM DURING A PERIOD HE WAS ON TEMPORARY DUTY IN
HONOLULU. THE MEMBER WAS ENTITLED TO PER DIEM FOR THE REASON THAT HE
WAS IN A TRAVEL STATUS IN HONOLULU. THAT MEMBER WAS ASSIGNED TO
TEMPORARY SHORE DUTY WHILE YOU WERE ASSIGNED TO TEMPORARY DUTY ABOARD A
SHIP. PARAGRAPH 4206 OF THE REGULATIONS, WHICH YOU CITED, IS FOR
APPLICATION ONLY IN INSTANCES WHERE MEMBERS ARE ASSIGNED TO DUTY IN
CONNECTION WITH FITTING OUT OR CONVERSION OF A VESSEL. IT DOES NOT
APPEAR TO BE FOR APPLICATION TO MEMBERS WHO ARE ASSIGNED TO DUTY ABOARD
A GOVERNMENT VESSEL.
SINCE YOUR ORDERS OF JULY 23, 1954, ASSIGNED YOU TO DUTY ABOARD THE
CGC IROQUOIS AND SINCE YOU WERE NOT DETACHED FROM SUCH DUTY UNTIL
JANUARY 13, 1955, PAYMENT OF PER DIEM DURING THAT PERIOD IS PROHIBITED
BY THE JOINT TRAVEL REGULATIONS.
ACCORDINGLY, THE SETTLEMENT OF AUGUST 1, 1955, WAS CORRECT AND IS
SUSTAINED.
B-128917, OCT. 2, 1956
TO C. ALLEN FULMER, PRESIDENT:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 8, 1956,
PROTESTING THE AWARD BY THE BROOKLEY AIR FORCE BASE, ALABAMA, OF A
HONING MACHINE CONTRACT, NO. AF01/601/19762, DATED JUNE 7, 1956, TO THE
MICROMATIC HONE CORPORATION, DETROIT, MICHIGAN.
THE PRINCIPAL BASIS FOR YOUR PROTEST IS THAT THE HONING MACHINE
OFFERED BY THE MICROMATIC HONE CORPORATION, PURSUANT TO THE GOVERNMENT'S
INVITATION NO. IFB-01/601/56/389, ISSUED APRIL 12, 1956, ALLEGEDLY DOES
NOT CONFORM TO THE REQUIREMENTS OF THE SPECIFICATIONS. YOU CONTEND THAT
SINCE YOU OFFERED WHAT YOU CONSIDER A SUITABLE MACHINE FOR ONLY $25,176,
AS COMPARED TO THE SUCCESSFUL BIDDER'S ACCEPTED QUOTATION OF $48,952.05,
THE CONTRACT SHOULD HAVE BEEN AWARDED YOU, AND THE CONTRACT WHICH WAS
AWARDED THE MICROMATIC HONE CORPORATION SHOULD BE CANCELED FORTHWITH.
AS YOU WERE ADVISED IN OUR COMMUNICATION OF AUGUST 16, 1956, UPON THE
RECEIPT OF YOUR PROTEST WE ORDERED A COMPLETE ADMINISTRATIVE
INVESTIGATION INTO THE FACTS OF THIS CASE, WHICH INVESTIGATION HAS SINCE
BEEN CONCLUDED, WITH RESULTS SUBSTANTIALLY AS FOLLOWS:
ON APRIL 12, 1956, THE INVITATION ABOVE REFERRED TO WAS SENT TO 20
DIFFERENT DEALERS IN MACHINE TOOL EQUIPMENT. AT THE BID OPENING ON MAY
3, 1956, IT WAS FOUND THAT ONLY THREE BIDDERS RESPONDED TO THE
GOVERNMENT'S ADVERTISEMENT, THE C. ALLEN FULMER COMPANY, MICROMATIC HONE
CORPORATION AND THE BARNES DRILL COMPANY. UPON A TECHNICAL EVALUATION
OF THE BIDS RECEIVED, WHICH EVALUATION REPORTEDLY HAS SINCE BEEN
CONFIRMED BY THE RESPONSIBLE ADMINISTRATIVE OFFICIALS, IT WAS
ESTABLISHED THAT THE BIDS OF THE MICROMATIC HONE CORPORATION AND THE
BARNES DRILL COMPANY WERE RESPONSIVE TO THE ESSENTIAL REQUIREMENTS OF
THE INVITATION, WHEREAS THE PRODUCT YOUR FIRM PROPOSED TO FURNISH WAS
FOUND NOT TO COMPLY WITH SPECIFICATION REQUIREMENTS. HENCE, YOUR BID
WAS REJECTED,
AND ON JUNE 7, 1956, AWARD OF THE CONTRACT WAS MADE TO THE MICROMATI
HONE CORPORATION, THE LOWEST RESPONSIBLE BIDDER UNDER THE GOVERNMENT'S
INVITATION.
A DETAILED EXPLANATION OF THE GOVERNMENT'S ACTION IN THIS MATTER IS
CONTAINED IN A REPORT DATED SEPTEMBER 20, 1956, FROM THE DEPARTMENT OF
THE AIR FORCE, WHICH READS, IN PERTINENT PART---
"THE HONING MACHINE IN QUESTION WAS BEING PROCURED PRINCIPALLY FOR
USE AT BROOKLEY AIR FORCE BASE IN MAINTENANCE AND OVERHAUL WORK ON
AIRCRAFT HYDRAULIC STRUTS, ACTIVATING CYLINDERS AND MAINTENANCE PARTS ON
SUCH AIRCRAFT AS THE B-36, B-47, AND B-52. THE SPECIFICATIONS WERE
DRAWN TO ASSURE THAT THE MACHINE BEING PROCURED COULD PERFORM THE
PRECISION WORK REQUIRED AS WELL AS OTHER WORK OF A LESS EXACTING NATURE.
IN PARTICULAR, THE SPECIFICATION CALLED FOR THE INCLUSION OF GUIDE
BARS TO (1) MINIMIZE ARCING OF THE SPINDLE WHEN THE HONING TOOL
ENCOUNTERS HARD SPOTS IN THE CYLINDER, (2) MAKE MANUAL ALIGNMENT OF THE
SPINDLE UNNECESSARY, THEREBY ADDING TO SAFETY OF OPERATION, (3) INCREASE
PRECISION OF ALIGNMENT OF THE SPINDLE IN THE SAME PLANE WHETHER FLOATING
OR FIXED HONING HEADS ARE EMPLOYED, (4) REDUCE THE NEED FOR HIGHLY
SKILLED OPERATORS, AND FOR A NUMBER OF OTHER TECHNICAL REASONS.
PRACTICAL FIELD EXPERIENCE WITH HONING MACHINES HAS CONVINCED AIR FORCE
TECHNICIANS THAT GUIDE BARS ARE ESSENTIAL FOR PRECISION WORK, AND THEY
DO NOT AGREE WITH THE ASSERTION OF THE FULMER COMPANY THAT THIS
REQUIREMENT DOES NOT EXIST ON DIRECT THRUST MACHINES.
"THE MACHINE OFFERED BY THE C. ALLEN FULMER COMPANY IN ITS BID DOES
NOT COME EQUIPPED WITH GUIDE BARS. THIS SUBSTANTIAL DEPARTURE FROM THE
SPECIFICATIONS MADE THAT BID NONRESPONSIVE TO THE SPECIFICATIONS. IN
THIS CONNECTION, IT SHOULD BE NOTED THAT, AS A RESULT OF THE ORIGINAL
PROTEST OF THE C. ALLEN FULMER COMPANY FOLLOWING THE DECISION TO REJECT
ITS BID, A SPECIAL CONFERENCE WAS HELD AT WARNER ROBINS AIR MATERIEL
AREA IN EARLY AUGUST TO DISCUSS WITH MR. FULMER THE TECHNICAL
DEFICIENCIES WHICH MADE HIS BID NONRESPONSIVE. THE AIR FORCE TECHNICAL
PEOPLE ATTENDING THIS CONFERENCE HAVE REMAINED FIRM IN THEIR CONCLUSION
THAT NOT ONLY DID THE FULMER MACHINE FAIL TO MEET THE SPECIFICATION BUT
ALSO THAT THE REQUIREMENT AS TO GUIDE BARS WAS ESSENTIAL.
"IN ACTUAL FACT, HAD THE SPECIFICATIONS BEEN DRAWN WITH GREATER
SPECIFICITY AS TO THE STANDARD OF PERFORMANCE ACTUALLY REQUIRED OF THIS
MACHINE, IT IS THE VIEW OF OUR TECHNICAL PEOPLE THAT OTHER GROUNDS FOR
REJECTION OF THE FULMER BID WOULD HAVE BEEN APPARENT. THIS CONCLUSION
IS BASED ON ACTUAL EXPERIENCE WITH FULMER MACHINES WHICH HAD SIMILAR
OPERATING CHARACTERISTICS. * * *"
IN CASES SUCH AS THIS, WHERE THERE IS INVOLVED ESSENTIALLY A DISPUTE
OVER A CONTROVERSIAL ISSUE OF FACT, YOU MUST REALIZE, OF COURSE, THAT
WE, HERE IN GENERAL ACCOUNTING OFFICE, HAVE NO DIRECT OR FIRST-HAND
KNOWLEDGE OF THE FACTS OTHER THAN AS REPORTED TO US BY THE RESPONSIBLE
ADMINISTRATIVE OFFICIALS OF THE GOVERNMENT. THE DEPARTMENT OF THE AIR
FORCE, HAVING AFFIRMATIVELY REPORTED TO US, AFTER DUE INVESTIGATION,
THAT THE PRODUCT OFFERED BY YOU DID NOT CONFORM TO THE REQUIREMENTS OF
THE ADVERTISED SPECIFICATIONS, WHEREAS THE PRODUCT OFFERED BY THE
SUCCESSFUL BIDDER DID MEET SUCH REQUIREMENTS, WE ARE LEFT WITH NO
ALTERNATIVE IN THE CIRCUMSTANCES BUT TO ACCORD FINALITY TO SUCH
ADMINISTRATIVE FINDINGS, PARTICULARLY IN THE ABSENCE OF CLEAR AND
CONVINCING EVIDENCE TO THE CONTRARY. SEE 3 COMP. GEN. 51; 16 ID.
1105, 1106.
FURTHERMORE, THE GENERAL ACCOUNTING OFFICE CONSISTENTLY HAS ADHERED
TO THE PROPOSITION THAT THE DUTY OR FUNCTION OF DETERMINING WHETHER A
PIECE OF EQUIPMENT OFFERED BY A BIDDER CONFORMS TO THE REQUIREMENTS OF
THE SPECIFICATIONS IS STRICTLY AN ADMINISTRATIVE ONE FOR EXERCISE
PRIMARILY BY THE GOVERNMENT ACTIVITY HAVING JURISDICTION OVER THE AWARD.
SEE, IN THIS CONNECTION, 35 COMP. GEN. 174; PP. 179-180.
THERE HAVING BEEN A DETERMINATION BY THE CONTRACTING OFFICIALS OF THE
DEPARTMENT OF THE AIR FORCE THAT THE PRODUCT OFFERED BY THE MICROMATIC
HONE CORPORATION DID COMPLY WITH THE PERTINENT SPECIFICATIONS, AND THAT
YOUR PRODUCT DID NOT, UPON THE BASIS OF THE FACTS OF RECORD WE WOULD NOT
BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION TAKEN IN THIS
CASE WAS ILLEGAL OR IMPROPER.
B-128953, OCT. 2, 1956
TO LIEUTENANT R. S. CORYELL:
WITH YOUR LETTER OF JANUARY 16, 1956, REFERENCE L20 SER 660-13,
FORWARDED HERE AUGUST 10, 1956, BY THE OFFICE OF THE JUDGE ADVOCATE
GENERAL, JAG:II:3:WEH:VCW, YOU SUBMIT THREE RECLAIM VOUCHERS AND ASK
WHETHER PAYMENT THEREOF MAY BE MADE UNDER THE FACTS AND CIRCUMSTANCES AS
HEREINAFTER RELATED.
THE RECORD SHOWS THAT KENDALL F. CASEY, AN EMPLOYEE OF THE PEARL
HARBOR NAVAL SHIPYARD, WHO HAD COMPLETED ONE EMPLOYMENT AGREEMENT AND
SIGNED A RENEWAL AGREEMENT FOR AN ADDITIONAL TOUR OF DUTY, WAS RETURNED
TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE UNDER THE
PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 2, 1946, AS AMENDED BY THE
ACT OF AUGUST 31, 1954, 68 STAT. 1008.
WHILE TRAVEL WAS AUTHORIZED BETWEEN PEARL HARBOR AND SAN BRUNO,
CALIFORNIA, EVIDENTLY THE EMPLOYEE AND HIS FAMILY TRAVELED TO VALLEJO.
WE ASSUME NO ADDITIONAL EXPENSE WAS INCURRED BY THE GOVERNMENT AS A
RESULT OF THIS FACT. WE UNDERSTAND BOTH VALLEJO AND SAN BRUNO ARE
INCORPORATED. THE RECORD SHOWS THAT MR. CASEY AND HIS FAMILY WERE
SCHEDULED FOR RETURN TRANSPORTATION TO PEARL HARBOR VIA MATS, FROM
TRAVIS AIR FORCE BASE, CALIFORNIA, ON AUGUST 30, 1955, FLIGHT TIME 8:00
A.M.
THE CHECK-IN TIME AT THE MATS TERMINAL WAS PRIOR TO 6:00 A.M. AND HE
WAS ADVISED THAT THE GREYHOUND BUS DEPARTED FROM THE FEDERAL OFFICE
BUILDING, SAN FRANCISCO, CALIFORNIA, AT 8:00 P.M., AUGUST 29. HE AND
HIS FAMILY APPARENTLY TRAVELED FROM VALLEJO TO SAN FRANCISCO THENCE BY
NAVY BUS FROM SAN FRANCISCO TO TRAVIS AIR FORCE BASE ON AUGUST 29,
ARRIVING AT 10:45 P.M. THE SCHEDULED FLIGHT WAS CANCELED AND HE WAS
REQUIRED TO STAND BY FOR THE FIRST AVAILABLE FLIGHT WHICH WAS AT :35
A.M., AUGUST 31.
YOU POINT OUT THAT QUESTION ARISES WHETHER THE PHRASE "PLACES OF
ACTUAL RESIDENCE" IN SECTION 7 OF THE ACT OF AUGUST 31, 1954, ABOVE, HAS
REFERENCE TO THE CORPORATE LIMITS OF THE CITY IN WHICH THE MEMBER
RESIDES OR TO THE METROPOLITAN AREA IN WHICH SUCH CITY IS LOCATED. YOU
SAY THAT TRAVIS AIR FORCE BASE IS WITHIN THE SAME METROPOLITAN AREA AS
VALLEJO AND, THEREFORE, IF THE LATTER CONSTRUCTION WERE APPLIED,
ENTITLEMENT TO PER DIEM WOULD NOT COMMENCE UNTIL MR. CASEY'S FLIGHT
ACTUALLY LEFT TRAVIS AIR FORCE BASE ON AUGUST 31, WHICH WAS TWO DAYS
AFTER HE AND HIS FAMILY, AS DIRECTED, DEPARTED FROM THEIR RESIDENCE AT
VALLEJO. YOU ALSO POINT OUT THAT PARAGRAPH 3 OF THE STANDARDIZED
GOVERNMENT TRAVEL REGULATIONS DEFINES LIMITS OF AN EMPLOYEE'S OFFICIAL
STATION AS BEING "* * * THE CORPORATE LIMITS OF THE CITY OR TOWN IN
WHICH THE * * * EMPLOYEE IS STATIONED * * *" AND THAT THE TENOR OF OUR
DECISIONS, 22 COMP. GEN. 515 AND 27 ID. 382, IS TO DENY PER DIEM TO
EMPLOYEES WHO TRAVEL ANYWHERE WITHIN THE SAME METROPOLITAN AREA OF THEIR
OFFICIAL STATION OR HOME.
CONSEQUENTLY, YOU ASK THE FOLLOWING QUESTIONS RESPECTING THE PAYMENT
OF PER DIEM TO MR. CASEY UNDER THE FACTS AND CIRCUMSTANCES ABOVE:
A. WOULD ENTITLEMENT TO PER DIEM IN THIS CASE COMMENCE FROM THE TIME
MR. CASEY LEFT THE CORPORATE LIMITS OF VALLEJO?
B. IF THE ANSWER TO QUESTION A IS IN THE AFFIRMATIVE, WOULD MR.
CASEY ALSO BE REGARDED AS BEING IN A DUTY STATUS (AS OPPOSED TO AN
ANNUAL LEAVE STATUS) COMMENCING FROM THE TIME HE LEFT THE CORPORATE
LIMITS OF VALLEJO?
UNDER THE PROVISIONS OF SECTION 7, ABOVE, THE RECORD SHOWS THAT MR.
CASEY IS ENTITLED TO THE EXPENSES OF ROUND-TRIP TRAVEL FOR HIMSELF AND
TRANSPORTATION OF HIS IMMEDIATE FAMILY BECAUSE HE HAS SATISFACTORILY
COMPLETED ONE TOUR OF DUTY AND HAS RETURNED TO HIS ACTUAL PLACE OF
RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR
OF DUTY. TITLE VI, SECTION 27 (B) EXECUTIVE ORDER NO. 9805, AS ADDED BY
BUREAU OF THE BUDGET CIRCULAR NO. A-4, DATED MAY 2, 1955, SPECIFIES THAT
SUCH TRAVEL EXPENSES SHALL BE SUBJECT TO THE STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS. UNDER THE PROVISIONS OF SECTION 203 (E) OF THE
ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, THE LEAVE GRANTED
ADMINISTRATIVELY IS EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY
OCCUPIED IN GOING TO AND FROM HIS POINT OF DUTY AND SUCH TIME AS MAY BE
NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT.
THE PHRASE "PLACES OF ACTUAL RESIDENCE" IS TO BE CONSIDERED FOR PER
DIEM PURPOSES AS THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE
EMPLOYEE RESIDES. SEE PARAGRAPH 3 AND 48B., STANDARDIZED GOVERNMENT
TRAVEL REGULATIONS. UPON COMMENCEMENT OF THE TRAVEL AT VALLEJO THE
EMPLOYEE WAS COMPLYING WITH THE OFFICIAL ORDERS AND WAS UNDER THE
CONTROL OF THE DEPARTMENT OF THE NAVY AND, THEREFORE, WAS IN A TRAVEL OR
DUTY STATUS AS CONTRASTED TO ANNUAL LEAVE STATUS, THUS ENTITLING HIM TO
PER DIEM FOR THE PERIOD HERE INVOLVED. CONCERNING 27 COMP. GEN. 382 SEE
PARAGRAPH 8A OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS; CF. 28
COMP. GEN. 192.
QUESTIONS A. AND B. ARE ANSWERED ACCORDINGLY.
THE RECORD SHOWS THAT KENNETH W. SUTTON SHARED A TAXICAB FROM TRAVIS
AIR FORCE BASE TO SAN FRANCISCO, WITH FOUR OTHER PASSENGERS, AT AN
INDIVIDUAL COST OF $5.15, WHILE COMMERCIAL TAXICAB SERVICE AND
OCCASIONAL NON-SCHEDULED GOVERNMENT BUS ACCOMMODATIONS WERE AVAILABLE TO
FAIRFIELD, CALIFORNIA, FROM WHICH POINT REGULARLY SCHEDULED BUSES
PROCEEDED TO SAN FRANCISCO.
THE THIRD VOUCHER IN FAVOR OF ASAMU OGATA REPRESENTS PAYMENT OF
TAXICAB FARES IN THE AMOUNT OF $30.50. MR. OGATA, THE RECORD SHOWS,
ARRIVED AT THE CHICAGO AIRPORT AT 6:30 A.M. ON OCTOBER 2, 1955, AND
BEING UNFAMILIAR WITH CHICAGO AND ENVIRONS, HE HIRED A TAXICAB FROM THE
AIRPORT TO THE NORTH SHORE STATION, $4.50, THEN FROM THAT POINT TO THE
U.S. NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, HIS TEMPORARY DUTY
STATION, $13 (RECEIPT SUBMITTED), AS WELL AS FOR THE RETURN TRIP ON
OCTOBER 22, 1955, $13, A TOTAL OF $30.50. THE RECORD SHOWS THERE ARE
REGULARLY SCHEDULED TRAINS BETWEEN CHICAGO AND GREAT LAKES.
BASED UPON THE FOREGOING FACTS AND CIRCUMSTANCES, YOU ASK THE
FOLLOWING QUESTIONS:
A. ARE THE TAXICAB FARES RECLAIMED BY MR. SUTTON AND MR. OGATA
ALLOWABLE IN THEIR ENTIRETY?
B. IF THE ANSWER TO QUESTION A IS IN THE NEGATIVE, WOULD SUCH
TAXICAB FARES BE FOR ALLOWANCE IF APPROPRIATE ADMINISTRATIVE APPROVAL
WERE SHOWN ON THE SPACE PROVIDED ON THE FACE OF THE STANDARD FORM 1012?
C. IF THE ANSWER TO QUESTION B IS IN THE NEGATIVE, YOUR DECISION IS
REQUESTED AS TO WHAT PORTION OF THE TAXI FARE EXPENSES INCURRED CAN
PROPERLY BE REIMBURSED TO THE CLAIMANTS IN THESE CASES?
SECTIONS 11 AND 11 (B) OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS READ, AS FOLLOWS:
"11. SPECIAL CONVEYANCE.--- THE HIRE OF BOAT, AUTOMOBILE, TAXICAB,
AIRCRAFT, LIVERY, OR OTHER SUCH CONVEYANCE WILL BE ALLOWED IF THE USE OF
SUCH FACILITIES IS AUTHORIZED OR APPROVED AS ADVANTAGEOUS TO THE
GOVERNMENT WHENEVER THE EMPLOYEE OR OTHERS RENDERING SERVICE TO THE
GOVERNMENT IS ENGAGED ON OFFICIAL BUSINESS WITHIN OR OUTSIDE HIS
DESIGNATED POST OF DUTY. IN THE CASE OF HIRE OF TAXICABS, REIMBURSEMENT
MAY BE ALLOWED FOR THE ACTUAL FARE PLUS TIPS OF 10 CENTS WHERE THE FARE
IS $1 OR LESS OR 10 PERCENT OF THE FARE INCREASED TO THE NEXT MULTIPLE
OF 5 WHERE THE FARE EXCEEDS $1.
"B. WHERE TWO OR MORE PERSONS TRAVEL TOGETHER BY MEANS OF SUCH
SPECIAL CONVEYANCE, THAT FACT, TOGETHER WITH THE NAMES OF THOSE
ACCOMPANYING HIM AND THE NAME OF THEIR EMPLOYING AGENCY, MUST BE STATED
BY EACH TRAVELER ON HIS TRAVEL VOUCHER.'
UNDER THE FOREGOING REGULATIONS AND CIRCUMSTANCES, THE TAXICABS USED
BY MESSRS. SUTTON AND OGATA MUST BE CONSIDERED AS SPECIAL CONVEYANCES
AND, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION OF ADVANTAGE TO
THE GOVERNMENT AS REQUIRED, NO BASIS EXISTS FOR PAYMENT OF THE RECLAIM
VOUCHERS. SEE 31 COMP. GEN. 304, 34 ID. 81. UPON THE PRESENT RECORD,
MR. OGATA IS ONLY ENTITLED TO PAYMENT OF THE COST OF RAIL FARE FROM
CHICAGO TO GREAT LAKES AND RETURN.
SHOULD ADMINISTRATIVE DETERMINATION BE SECURED AS REQUIRED BY SECTION
11, HOWEVER, THE TAXICAB FARES MAY BE ALLOWED, IF OTHERWISE PROPER,
NOTWITHSTANDING THE ABSENCE OF RECEIPTS.
QUESTIONS A., B. AND C. ARE ANSWERED ACCORDINGLY.
B-128959, OCT. 2, 1956
TO MR. ALEXANDER F. KIEFER:
THERE HAS BEEN FURTHER CONSIDERED YOUR CLAIM FOR REIMBURSEMENT OF
EXPENSES, IN THE AMOUNT OF $69.19, WHICH YOU INCURRED FOR DRAYAGE AND
PACKING IN PLACING YOUR HOUSEHOLD GOODS AND EFFECTS IN STORAGE, UPON
YOUR APPOINTMENT AND ASSIGNMENT TO GERMANY WITH THE DEPARTMENT OF STATE.
BY ORDERS DATED APRIL 5, 1951, ISSUED INCIDENT TO YOUR APPOINTMENT,
YOU WERE AUTHORIZED TO TRANSPORT YOUR HOUSEHOLD GOODS AND EFFECTS FROM
ALEXANDRIA, VIRGINIA, TO FRANKFORT, GERMANY. ON APRIL 24, 1951, YOU
PLACED YOUR GOODS IN STORAGE AT WASHINGTON, D.C., WITH THE SECURITY
STORAGE COMPANY. FOR THE DRAYAGE AND PACKING OF YOUR GOODS FOR STORAGE
YOU INCURRED THE EXPENSES OF $69.19 INVOLVED IN YOUR CLAIM. THE STORAGE
OF YOUR EFFECTS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED. HOWEVER, YOU
EXPRESS THE VIEW THAT AS THE EXPENSES FOR WHICH REIMBURSEMENT IS SOUGHT
WOULD HAVE BEEN INCURRED HAD YOUR HOUSEHOLD GOODS BEEN TRANSPORTED TO
GERMANY UNDER YOUR TRAVEL ORDERS, YOUR CLAIM SHOULD BE FAVORABLY
CONSIDERED.
WE HAVE CAREFULLY CONSIDERED THAT ASPECT OF YOUR CASE AND BELIEVE
THAT YOUR ENTITLEMENT TO THE AMOUNT CLAIMED MUST DEPEND UPON WHETHER IT
WAS INCURRED IN CARRYING OUT THE PURPOSE OF YOUR TRAVEL ORDER OR WAS
MERELY AN INCIDENT TO THE STORAGE OF YOUR GOODS WHICH, IN THE ABSENCE OF
OFFICIAL AUTHORITY, WOULD CREATE NO OBLIGATION UPON THE GOVERNMENT TO
REIMBURSE YOU.
THE FACTS IN YOUR CASE LEAD TO THE CONCLUSION THAT IT WAS YOUR INTENT
AND PURPOSE TO STORE THE GOODS RATHER THAN TRANSPORT THEM TO GERMANY,
AND IN THE LIGHT OF THAT CONCLUSION OUR SETTLEMENT
B-129029, OCT. 2, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF AUGUST 21, 1956, FROM THE JUDGE
ADVOCATE GENERAL OF THE NAVY, FORWARDING A LETTER DATED JULY 16, 1956,
FROM THE DISBURSING OFFICER, SPECIAL PAYMENTS DIVISION, U.S. NAVY
FINANCE CENTER, WITH ENDORSEMENTS AND AN ENCLOSURE, IN WHICH A DECISION
IS REQUESTED WHETHER CLARENCE H. SICLEY, SHIP'S SERVICEMAN, THIRD CLASS,
IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM
FEBRUARY 16 TO NOVEMBER 5, 1954, WHILE HELD BEYOND EXPIRATION OF HIS
ENLISTMENT.
IT APPEARS THAT SICLEY'S ENLISTMENT CONTRACT TERMINATED ON FEBRUARY
15, 1954; THAT HE WAS NOT DISCHARGED, BUT WAS HELD FOR TRIAL BY
COURT-MARTIAL; THAT BY A GENERAL COURT-MARTIAL HELD ON JULY 1 AND 2,
1954, HE WAS FOUND GUILTY OF AN OFFENSE UNDER ARTICLE 121 OF THE UNIFORM
CODE OF MILITARY JUSTICE (LARCENY AND WRONGFUL APPROPRIATION), NAMELY,
THE OBTAINING FROM THE GOVERNMENT OF A SUM OF MONEY AS PURPORTED
REIMBURSEMENT OF THE COST OF TRAVEL OF A DEPENDENT WHO ACTUALLY NEVER
PERFORMED THE TRAVEL; THAT HE WAS SENTENCED TO A BAD-CONDUCT DISCHARGE;
THAT ON JULY 27, 1954, THE CONVENING AUTHORITY APPROVED THE SENTENCE
AND A BOARD OF REVIEW APPROVED THE FINDINGS AND SENTENCE ON OCTOBER 22,
1954.
IT FURTHER APPEARS THAT ON OCTOBER 28, 1954, THE ACCUSED RECEIPTED
FOR A COPY OF THE BOARD'S DECISION AND REQUESTED AN IMMEDIATE DISCHARGE
PURSUANT TO SECTION 0115 (CHANGE 4), NAVAL SUPPLEMENT 1951, MANUAL FOR
COURTS-MARTIAL, 1951. ON NOVEMBER 5, 1954, THE BAD-CONDUCT DISCHARGE
WAS EXECUTED. ALSO, IT APPEARS THAT SUBSEQUENTLY THE ACCUSED PETITIONED
THE COURT OF MILITARY APPEALS FOR A REVIEW OF HIS CASE; THAT THE
PETITION WAS GRANTED AND, AS A RESULT, THE COURT, ON SEPTEMBER 23, 1955,
REVERSED THE BOARD OF REVIEW AND ORDERED A REHEARING (20 CMR 118). ON
NOVEMBER 16, 1955, THE CHARGE AND SPECIFICATION OF WHICH SICLEY HAD BEEN
FOUND GUILTY WERE DISMISSED BY THE CONVENING AUTHORITY PURSUANT TO
ARTICLE 67 (F), UNIFORM CODE OF MILITARY JUSTICE, ON THE GROUND THAT A
REHEARING WOULD BE IMPRACTICABLE. ON DECEMBER 14, 1955, SICLEY'S
BAD-CONDUCT DISCHARGE WAS RETRACTED AND HE WAS AWARDED AN HONORABLE
DISCHARGE DATED NOVEMBER 5, 1954. IT APPEARS THAT THE MONEY ERRONEOUSLY
PAID TO SICLEY AS REIMBURSEMENT FOR ALLEGED COST OF TRAVEL HAS BEEN
RECOVERED FROM HIM.
THE QUESTION PRESENTED IS WHETHER THE DISMISSAL BY THE CONVENING
AUTHORITY OF THE CHARGE AND SPECIFICATION OF WHICH THE ENLISTED MAN HAD
BEEN FOUND GUILTY BY THE COURT-MARTIAL CONSTITUTED AN ACQUITTAL WITHIN
THE RULE APPEARING IN 30 COMP. GEN. 449.
CHANGE 4 TO SECTION 0115, NAVAL SUPPLEMENT, 1951, MANUAL FOR
COURTS-MARTIAL, 1951, STATES, IN PERTINENT PART, THAT AN ACCUSED MAY
REQUEST IMMEDIATE EXECUTION OF A SENTENCE, AS AFFIRMED BY A BOARD OF
REVIEW, WHICH INCLUDES AN UNSUSPENDED PUNITIVE DISCHARGE WITHOUT
CONFINEMENT; THAT SUCH REQUEST MAY BE APPROVED IF THE ACCUSED DOES NOT
HAVE AN APPEAL PENDING TO THE COURT OF MILITARY APPEALS AND DOES NOT
INTEND TO MAKE SUCH AN APPEAL; BUT, NEVERTHELESS, THAT THE REQUEST FOR
IMMEDIATE RELEASE DOES NOT AFFECT HIS RIGHT TO PETITION THE COURT OF
MILITARY APPEALS.
ARTICLE 67 (F), UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 130,
PROVIDES THAT:
"AFTER IT HAS ACTED ON A CASE, THE COURT OF MILITARY APPEALS MAY
DIRECT THE JUDGE ADVOCATE GENERAL TO RETURN THE RECORD TO THE BOARD OF
REVIEW FOR FURTHER REVIEW IN ACCORDANCE WITH THE DECISION OF THE COURT.
OTHERWISE, UNLESS THERE IS TO BE FURTHER ACTION BY THE PRESIDENT, OR THE
SECRETARY OF THE DEPARTMENT, THE JUDGE ADVOCATE GENERAL SHALL INSTRUCT
THE CONVENING AUTHORITY TO TAKE ACTION IN ACCORDANCE WITH THAT DECISION.
IF THE COURT HAS ORDERED A REHEARING, BUT THE CONVENING AUTHORITY FINDS
A REHEARING IMPRACTICABLE, HE MAY DISMISS THE CHARGES.'
ARTICLE 75 (B), 64 STAT. 132, PROVIDES THAT:
"WHERE A PREVIOUSLY EXECUTED SENTENCE OF DISHONORABLE OR BAD-CONDUCT
DISCHARGE IS NOT SUSTAINED ON A NEW TRIAL, THE SECRETARY OF THE
DEPARTMENT SHALL SUBSTITUTE THEREFOR A FORM OF DISCHARGE AUTHORIZED FOR
ADMINISTRATIVE ISSUANCE UNLESS THE ACCUSED IS TO SERVE OUT THE REMAINDER
OF HIS ENLISTMENT.'
IN 30 COMP. GEN. 449, SUPRA, IT WAS SAID, AT PAGE 451, THAT THE
PROVISIONS OF THE 16TH ARTICLE OF WAR AND OF SUBPARAGRAPH 19 (A), MANUAL
FOR COURTS-MARTIAL, U.S. ARMY, 1949, DID NOT "REQUIRE ANY CHANGE IN THE
RULE THAT THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF
ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT, AWAITING TRIAL BY
COURT-MARTIAL, TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF
ENLISTMENT UNLESS HE IS ACQUITTED, IN WHICH EVENT PAY AND ALLOWANCES
ACCRUE UNTIL HE IS DISCHARGED.'
ALTHOUGH SICLEY WAS NOT ACQUITTED AS A RESULT OF COURT-MARTIAL
PROCEEDINGS, ADEQUATE AUTHORITY APPEARS IN ARTICLE 67 (F) OF THE UNIFORM
CODE OF MILITARY JUSTICE, SUPRA, FOR DISMISSAL OF THE CHARGES AND
SPECIFICATIONS BY THE CONVENING AUTHORITY, AND FOR PRACTICAL PURPOSES
HIS STATUS THEREAFTER IS NO DIFFERENT RESPECTING HIS GUILT OR INNOCENCE
THAN HAD THERE BEEN A SUBSEQUENT TRIAL WHICH RESULTED IN DISMISSAL OR A
FINDING OF NOT GUILTY.
IN THE CIRCUMSTANCES, SICLEY IS ENTITLED TO THE ACTIVE DUTY PAY AND
ALLOWANCES OF HIS GRADE TO THE DATE OF HIS DISCHARGE FROM THE NAVAL
SERVICE.
B-129047, OCT. 2, 1956
TO LIEUTENANT COLONEL W. O. ADAMS, USMC:
BY FIRST ENDORSEMENT OF AUGUST 21, 1956, THE COMMANDANT OF THE MARINE
CORPS FORWARDED YOUR LETTER OF AUGUST 14, 1956, SUBMITTING FOR ADVANCE
DECISION A VOUCHER COVERING PAYMENT OF PER DIEM TO PRIVATE FIRST CLASS
WILLIAM W. SMITH, 1556135, USMC, FOR CERTAIN SPECIFIED PERIODS BETWEEN
NOVEMBER 26, 1955, AND JULY 31, 1956.
BY ORDERS OF NOVEMBER 18, 1955, THE MEMBER WAS ORDERED TO PROCEED
FROM FIRST RECRUIT TRAINING BATTALION, MARINE CORPS RECRUIT DEPOT, SAN
DIEGO, CALIFORNIA, TO CAMP PENDLETON, CALIFORNIA, FOR TEMPORARY DUTY
UNDER INSTRUCTION IN THE INDIVIDUAL COMBAT TRAINING COURSE. UPON
COMPLETION OF THAT TRAINING, HE WAS TRANSFERRED ON JANUARY 17, 1956, TO
MARINE BARRACKS, NAVAL STATION, TREASURE ISLAND, SAN FRANCISCO,
CALIFORNIA, FOR DUTY UNDER INSTRUCTION IN THE ELECTRONICS TECHNICIAN
COURSE (CLASS A). HE COMPLETED THAT COURSE ON JUNE 4, 1956, AND WAS
THEN TRANSFERRED TO MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA,
FOR DUTY UNDER INSTRUCTION IN THE COMMUNICATION ELECTRONICS SCHOOL
BATTALION. IT APPEARS FROM THE REPORTING ENDORSEMENT OF JUNE 21, 1956,
THAT THIS COURSE OF INSTRUCTION WAS FOR A PERIOD OF 17 WEEKS.
YOUR DOUBT IN THE MATTER IS OCCASIONED BY COMMANDANT OF THE MARINE
CORPS MESSAGE 301458Z OF OCTOBER 1955 WHICH READS AS FOLLOWS:
"PARA 4205-6 JTR WITH CHANGE 36 REFERS X ENL PERS UNDERGOING TEMINS
IND COMTRA CRS NO AUTH PAYMENT PER DIEM X NEW SUBJ X INSURE ORDERS FOR
GRAD RECRUITS ASG FURTHER SCHOOLING UPON COMP INDCOMTRA CRS READ QUOTE
DUTY UNDER INSTRUCTION UNQUOTE SUCH ASSIGNMENT CONSIDERED TO BE A
PERMANENT CHANGE OF STATION"
UNDER JOINT TRAVEL REGULATIONS, PARAGRAPH 4205-6, FOOTNOTE Z TO THE
TABLE OF PER DIEM RATES WITH THE UNITED STATES, THE SECRETARY OF THE
DEPARTMENT CONCERNED, OR THE PERSON TO WHOM HE PROPERLY DELEGATES HIS
AUTHORITY, MAY AUTHORIZE "NO PER DIEM" OR RATES OF PER DIEM IN LESSER
AMOUNTS THAN THOSE INDICATED IN THE TABLE. THUS, IN CASES WHERE
ENLISTED PERSONNEL ARE UNDERGOING TEMPORARY INSTRUCTION IN THE
INDIVIDUAL COMBAT TRAINING COURSES, THE QUOTED MESSAGE IS EFFECTIVE TO
BAR THEM FROM THE RECEIPT OF PER DIEM.
THE RECORD INDICATES THAT THE ORDERS TO DUTY AT TREASURE ISLAND
CONTEMPLATED A COURSE OF INSTRUCTION FOR 20 WEEKS, AND FIFTH ENDORSEMENT
OF JANUARY 24, 1956, ON THE ORDERS STATES THAT THE TRAVEL THERE WAS ON
PERMANENT CHANGE OF STATION. ACCORDINGLY, NO PER DIEM IS AUTHORIZED FOR
THE PERIOD OF ASSIGNMENT AT TREASURE ISLAND. HOWEVER, THE DUTY ASSIGNED
AT THE MARINE CORPS RECRUIT TRAINING DEPOT, SAN DIEGO, IS SHOWN TO HAVE
BEEN FOR A PERIOD OF BUT 17 WEEKS. THUS, THE DUTY AT SAN DIEGO WAS
TEMPORARY DUTY, AND PAYMENT OF PER DIEM DURING THE PERFORMANCE THEREOF
IS AUTHORIZED. COMPARE 32 COMP. GEN. 569, AS AMPLIFIED AND AFFIRMED IN
DECISIONS OF OCTOBER 8, 1954, B-115509, AND 34 COMP. GEN. 260.
UPON MODIFICATION OF THE VOUCHER, WHICH IS RETURNED HEREWITH,
TOGETHER WITH SUPPORTING PAPERS, TO CONFORM TO THE FOREGOING, PAYMENT IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-129050, OCT. 2, 1956
TO MR. A. N. BUDJINSKI, NAVAL SUPPLY DEPOT:
YOUR LETTER OF AUGUST 9, 1956, REQUESTS REVIEW OF THE SETTLEMENT OF
JUNE 12, 1956, DISALLOWING YOUR CLAIM FOR $15.75, REPRESENTING 1 3/4
DAYS' PER DIEM PREVIOUSLY DEDUCTED FROM YOUR TRAVEL VOUCHER COVERING
TRAVEL ON OFFICIAL BUSINESS FROM YOUR OFFICIAL HEADQUARTERS, BAYONNE,
NEW JERSEY, TO TOLEDO, OHIO, AND RETURN, DURING JULY AND AUGUST 1955.
YOUR TRAVEL ORDERS AUTHORIZED THE USE OF PRIVATELY OWNED CONVEYANCE
AT THE RATE OF 6 CENTS PER MILE, THE "COST NOT TO EXCEED THAT OF TRAVEL
BY USUAL PUBLIC MEANS OF TRANSPORTATION.' YOU DEPARTED FROM YOUR
HEADQUARTERS BY AUTOMOBILE AT 6 P.M., FRIDAY, JULY 22, 1955, AND ARRIVED
IN TOLEDO, 10 P.M., JULY 23.
YOU CLAIMED PER DIEM IN LIEU OF SUBSISTENCE ON THE BASIS OF A
CONSTRUCTIVE DEPARTURE BY TRAIN AT 11:10 P.M., JULY 22, 1955. AS YOUR
DUTY WAS NOT TO BEGIN UNTIL 7:30 A.M., JULY 25, 1955, IT WAS DETERMINED
ADMINISTRATIVELY THAT YOU COULD HAVE LEFT JERSEY CITY AT 5:40 P.M., JULY
24, 1955, WHICH WOULD HAVE PLACED YOU IN TOLEDO AT 6:59 A.M., JULY 25,
1955, IN TIME TO REPORT FOR DUTY AT :30 A.M. THE SAME DAY. THE
ADMINISTRATIVE DISALLOWANCE WAS SUSTAINED BY OFFICE SETTLEMENT OF JUNE
12. YOU SAY THAT YOUR CLAIM IS FOR A REASONABLE AMOUNT OF TIME TO
PERMIT THE SECURING OF LODGING, UNPACKING, ETC., BEFORE REPORTING FOR
DUTY.
SECTION 1 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS (EDITION
OF AUGUST 1, 1952) STATES THAT EMPLOYEES "ARE EXPECTED TO EXERCISE THE
SAME CARE IN INCURRING EXPENSES THAT A PRUDENT PERSON WOULD EXERCISE IF
TRAVELING ON PERSONAL BUSINESS.' AS YOUR TEMPORARY DUTY WAS TO COVER
SEVERAL DAYS OUR OFFICE CONCURS WITH YOUR VIEWS THAT IT WAS NOT PROPER
TO ALLOW ONLY ONE HOUR OR LESS BETWEEN THE ARRIVAL OF THE TRAIN IN A
STRANGE CITY AND THE TIME FOR REPORTING FOR DUTY. OBVIOUSLY, THERE
WOULD NOT BE TIME TO ARRANGE FOR ACCOMMODATIONS FOR THE PERIOD OF
TEMPORARY DUTY. TRAIN SCHEDULES ON FILE IN THIS OFFICE LIST A TRAIN
LEAVING JERSEY CITY AT 6:05 P.M., JULY 23, 1955, WHICH WOULD HAVE PLACED
YOU IN TOLEDO AT 5:20 P.M., JULY 24, 1955. IT WOULD SEEM THAT THE USE
OF THAT TRAIN WOULD HAVE PERMITTED AMPLE TIME TO ARRANGE FOR HOTEL
ACCOMMODATIONS, UNPACKING, REST, ETC. 33 COMP. GEN. 221. AS BUS
SERVICE BETWEEN BAYONNE, NEW JERSEY, AND JERSEY CITY, TAKES
APPROXIMATELY 45 MINUTES, PER DIEM IN LIEU OF SUBSISTENCE MAY BE ALLOWED
FROM 5 P.M., JULY 23, 1955, WHICH WOULD ENTITLE YOU TO ONE-HALF DAY'S
PER DIEM FOR JULY 23 AND A WHOLE DAY'S PER DIEM FOR JULY 24, INSTEAD OF
THE ONE-HALF DAY'S PER DIEM ALLOWED ADMINISTRATIVELY FOR JULY 24.
ACCORDINGLY, UPON REVIEW, WE HOLD THAT YOU ARE ENTITLED TO THE
ADDITIONAL SUM OF $9, OR ONE DAY'S PER DIEM. THE DISALLOWANCE OF THE
REMAINDER OF THE CLAIM IS SUSTAINED.
B-129102, OCT. 2, 1956
TO MR. MANLEY W. ALLEN, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF
THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1956, ENCLOSING A BILL
FROM THE COSMOS CLUB COVERING THE COST OF A DINNER FOR ELEVEN PERSONS,
AND REQUESTING OUR DECISION AS TO WHETHER SUCH BILL MAY BE PAID. YOUR
LETTER INDICATES THAT THE DINNER WAS ARRANGED FOR A GUEST SPEAKER,
REPRESENTATIVES OF THE WOODROW WILSON FOUNDATION, AND OTHERS, BY MR.
ARTHUR SWEETSER, A MEMBER OF THE WOODROW WILSON CENTENNIAL CELEBRATION
COMMISSION, PRIOR TO THE SHOWING BY THE COMMISSION OF A FILM ON JUNE 28,
1956. IT IS REPORTED THAT THE COMMISSION'S EXECUTIVE COMMITTEE DECLARED
THESE PERSONS WERE OFFICIAL GUESTS AT AN OFFICIAL COMMISSION FUNCTION
AND THAT THE COST OF THE DINNER WOULD BE A PROPER CHARGE AGAINST
COMMISSION FUNDS, EITHER BY DIRECT PAYMENT TO THE COSMOS CLUB OR BY
REIMBURSEMENT OF MR. SWEETSER.
THE WOODROW WILSON CENTENNIAL CELEBRATION COMMISSION WAS CREATED BY
PUBLIC LAW 705, 83RD CONGRESS, APPROVED AUGUST 30, 1954, 68 STAT. 964.
IT IS COMPOSED OF TWO MEMBERS OF EACH HOUSE OF THE CONGRESS, THE
DIRECTOR OF THE NATIONAL PARK SERVICE AND SEVEN OTHERS APPOINTED BY THE
PRESIDENT ON RECOMMENDATIONS OF THE GOVERNOR OF THE STATE OF VIRGINIA
AND VARIOUS PATRIOTIC ORGANIZATIONS INTERESTED IN HONORING WOODROW
WILSON, SUCH AS THE WOODROW WILSON FOUNDATION. THE MEMBERS RECEIVE NO
SALARIES FOR THEIR SERVICES ON THE COMMISSION. SECTION 2 AND SECTION 4
(A) OF THE ACT RESPECTIVELY PROVIDE IN PERTINENT PART AS FOLLOWS:
"SECTION 2. THE FUNCTIONS OF THE COMMISSION SHALL BE TO DEVELOP AND
TO EXECUTE SUITABLE PLANS FOR THE CELEBRATION, IN 1956, OF THE ONE
HUNDREDTH ANNIVERSARY OF THE BIRTH OF WOODROW WILSON IN STAUNTON,
VIRGINIA. * * *
"SECTION 4 (A). THE COMMISSION IS AUTHORIZED * * * TO COOPERATE WITH
PATRIOTIC AND HISTORICAL SOCIETIES * * *. THE COMMISSION, TO SUCH
EXTENT AS TI FINDS TO BE NECESSARY, MAY, WITHOUT REGARD TO THE LAWS AND
PROCEDURES APPLICABLE TO FEDERAL AGENCIES, PROCURE SUPPLIES, SERVICES,
AND PROPERTY AND MAKE CONTRACTS, AND MAY EXERCISE THOSE POWERS THAT ARE
NECESSARY TO ENABLE IT TO CARRY OUT EFFICIENTLY AND IN THE PUBLIC
INTEREST THE PURPOSES OF THIS RESOLUTION.'
THE ACTS APPROPRIATING FUNDS FOR THE COMMISSION HAVE NOT STATED IN
DETAIL THE PURPOSES FOR WHICH SUCH FUNDS MAY BE EXPENDED. THE
DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1956,
69 STAT. 141, 157, APPROPRIATED $10,000 "FOR EXPENSES NECESSARY TO
CARRY OUT THE PROVISIONS OF THE ACT OF AUGUST 30, 1954," THE LEGISLATIVE
APPROPRIATION ACT, 1956, 69 STAT. 499, 519, APPROPRIATED $41,500 "FOR AN
ADDITIONAL AMOUNT FOR "WOODROW WILSON CENTENNIAL CELEBRATION
COMMISSION," " AND THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES
APPROPRIATION ACT, 1957, 70 STAT. 257, 273, APPROPRIATED $48,500 "FOR
EXPENSES NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT OF AUGUST 30,
1954.'
THE FURNISHING OF DINNERS, LUNCHEONS, ETC., HAS ALWAYS BEEN
CONSIDERED ENTERTAINMENT, AND IT IS A GENERAL RULE OF LONG STANDING AS
TO GOVERNMENT DEPARTMENTS GENERALLY THAT EXPENDITURES FOR ENTERTAINING
INDIVIDUALS MAY BE MADE ONLY WHEN AUTHORIZED BY STATUTE AND AUTHORIZED
AND APPROVED BY PROPER ADMINISTRATIVE OFFICIALS. SEE 26 COMP. GEN. 281,
5 ID. 455; ID. 1018. CF. B-84184, MARCH 17, 1949; B-81984, JANUARY
6, 1949; B-64173, APRIL 25, 1947. HOWEVER, THE COMMISSION IS
AUTHORIZED IN CARRYING OUT ITS FUNCTIONS TO COOPERATE WITH PATRIOTIC AND
HISTORICAL SOCIETIES INTERESTED IN HONORING WOODROW WILSON AND IT
SPECIFICALLY IS AUTHORIZED BY SECTION 4 (A) OF PUBLIC LAW 705 TO PROCURE
SERVICES AND MAKE CONTRACTS WITHOUT REGARD TO THE LAWS AND PROCEDURES
APPLICABLE TO FEDERAL AGENCIES TO THE EXTENT IT FINDS IT NECESSARY TO
ENABLE IT TO CARRY OUT EFFICIENTLY AND IN THE PUBLIC INTEREST THE
PURPOSES OF THE ACT. THE DINNER IN QUESTION, GIVEN TO MEMBERS OF THE
WOODROW WILSON FOUNDATION, MIGHT REASONABLY BE EXPECTED TO CONTRIBUTE TO
SECURING THE COOPERATION OF THAT FOUNDATION IN CARRYING OUT THE PURPOSES
OF THE COMMISSION. ACCORDINGLY, AND AS ITS EXECUTIVE COMMITTEE APPROVED
PAYMENT AS A PROPER CHARGE AGAINST THE COMMISSION'S FUNDS, THE BILL,
WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE
PROPER.
B-129223, OCT. 2, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 13, 1956, WITH
ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS),
INQUIRING AS TO THE LIABILITY, IF ANY, OF MR. LEON SIEGAL, BRIGHTON,
MASSACHUSETTS, ARISING OUT OF DEFAULTS UNDER SALES CONTRACTS NOS. O.I.
36-028-55-859S AND O.I. 36-028A-55-53S AWARDED ON MARCH 23 AND JULY 25,
1955, RESPECTIVELY, BY THE NEW CUMBERLAND GENERAL DEPOT, PENNSYLVANIA.
IT APPEARS THAT BY INVITATION NO. 36-028-S-55-10, ISSUED FEBRUARY 16,
1955, THE CONTRACTING OFFICER FOR THE NEW CUMBERLAND GENERAL DEPOT
SOLICITED PROPOSALS ON NUMEROUS ITEMS OF MISCELLANEOUS SURPLUS SUPPLIES,
INCLUDING ITEMS NOS. 43 AND 68, CONSISTING, RESPECTIVELY, OF A LOT OF
10,000 UNUSED SKI AND MOUNTAIN GOGGLES, AND 21 PAIRS OF MOUNTAIN SKIS,
AS THEREIN DESCRIBED. ON MARCH 23, 1955, BOTH OF THESE ITEMS WERE
AWARDED MR. LEON SIEGAL ON HIS HIGH BIDS OF $2,600 AND $115.50,
RESPECTIVELY, MAKING A TOTAL OF $2,715.50 FOR THE TWO ITEMS. MR.
SIEGAL'S PROPOSAL WAS ACCOMPANIED BY A BID DEPOSIT OF $1,941, OR
APPROXIMATELY 20 PERCENT OF THE TOTAL AMOUNT OF HIS BID (ON THESE AND
OTHER ITEMS) AS REQUIRED BY THE TERMS OF THE INVITATION, LEAVING A
BALANCE OF $774.50 DUE UNDER HIS CONTRACT. ON MARCH 16, 1955, 200 PAIRS
OF THE GOGGLES WERE SHIPPED TO MR. SIEGAL. DESPITE SEVERAL
ADMINISTRATIVE DEMANDS MADE UPON HIM FOR PAYMENT OF THE BALANCE OF
$774.50 AND REMOVAL OF THE REMAINDER OF THE ITEMS, MR. SIEGAL
NEVERTHELESS FAILED TO COMPLETE HIS CONTRACT, ALLOWING THE UNDELIVERED
PROPERTY TO REMAIN IN THE GOVERNMENT'S WAREHOUSE AT NEW CUMBERLAND.
AFTER THE EXPIRATION OF SEVERAL MONTHS, THE REMAINING 9,800 PAIRS OF
MOUNTAIN GOGGLES WERE INCLUDED WITH A GROUP OF OTHER MISCELLANEOUS
SUPPLIES WHICH WERE OFFERED FOR SALE BY THE NEW CUMBERLAND GENERAL DEPOT
UNDER ITS INVITATION NO. 36-028-S-55-23, ISSUED JUNE 28, 1955. IT
APPEARS THAT THIS ITEM OF GOGGLES, DESIGNATED IN THE SALES CATALOG AS
ITEM NO. 54, WAS AWARDED ON AUGUST 2, 1955, TO ONE CARL H. MILLER, 1123
BROADWAY, NEW YORK CITY, BY VIRTUE OF HIS HIGH BID THEREON OF $3,050, OR
$450 MORE THAN THE AMOUNT QUOTED FOR THE LOT BY THE DEFAULTING
CONTRACTOR, LEON SIEGAL. THIS BID WAS ACCOMPANIED BY A 20 PERCENT BID
DEPOSIT, AMOUNTING TO $610, AS REQUIRED BY THE TERMS OF THE INVITATION.
MR. MILLER LIKEWISE DEFAULTED ON HIS CONTRACT, AND EVENTUALLY THE ITEMS
OF GOGGLES AND SKIS, HERE INVOLVED, WERE DISPOSED OF BY THE GOVERNMENT
FOR A TOTAL OF $881.30.
THE DETERMINATION OF THE DEFAULTING CONTRACTORS' LIABILITY FOR THESE
DEFAULTS IS COMPLICATED BY THE FACT THAT, AS THE RESULT OF INFORMATION
RECEIVED IN THE LATTER PART OF AUGUST 1955, IT HAS BEEN DETERMINED THAT
MESSRS. SIEGAL AND MILLER ARE ONE AND THE SAME PERSON, BOTH OF THE
ACCEPTED PROPOSALS WHICH RESULTED IN THE AFORESAID DEFAULTED CONTRACTS
HAVING BEEN SUBMITTED BY ONE PARTY ONLY, MR. LEON SIEGAL OF BRIGHTON,
MASSACHUSETTS. JUST WHAT HIS PURPOSE WAS IN OUTBIDDING HIMSELF FOR THE
SAME ITEM OF GOGGLES, AS ADVERTISED UNDER THE ORIGINAL AND THE RESALE
INVITATIONS, IS NOT APPARENT, BUT FROM A TELEPHONE CALL RECEIVED BY THE
DISPOSAL OFFICER SOME TIME AFTER THE SECOND AWARD, PURPORTEDLY FROM MR.
SIEGAL'S BROTHER, IT SEEMS LIKELY THAT THIS PROCEDURE WAS ADOPTED AS A
MEANS OF OBTAINING MORE TIME TO RAISE THE BALANCE OF THE FUNDS REQUIRED
TO COMPLETE THE PURCHASE OF THE GOGGLES. FURTHERMORE, THERE IS NOTHING
OF RECORD WHICH WOULD INDICATE THAT MR. SIEGAL EVER
HAS BEEN ADJUDGED INCOMPETENT, OR THAT HE WAS IN FACT INCAPABLE OF
CONDUCTING ORDINARY BUSINESS TRANSACTIONS.
AT THE TIME OF THE SECOND SALE, THE CONTRACTING OFFICER HAD NO NOTICE
OF ANY FACTS WHICH MADE HIS ACCEPTANCE OF THE "MILLER" BID IMPROPER,
ALTHOUGH IT MAY BE THAT HE WOULD HAVE BEEN JUSTIFIED IN REJECTING IT IF
HE HAD KNOWN THAT IT WAS IN FACT THE BID OF SIEGAL, WHOSE PRIOR DEFAULT
MIGHT HAVE BEEN CONSIDERED AS ESTABLISHING HIS LACK OF RESPONSIBILITY.
BUT SINCE IT WAS SIEGAL'S OWN CONCEALMENT OF HIS IDENTITY WHICH
PREVENTED THE CONTRACTING OFFICER FROM KNOWING THE TRUE FACTS, AND SINCE
THE "MILLER" BID APPEARS TO HAVE BEEN SUBMITTED DELIBERATELY AS A WAY OF
GAINING MORE TIME, WE ARE OF OPINION THAT THE SECOND SALE SHOULD BE
CONSIDERED AS VALID AND BINDING. IT FOLLOWS, THEREFORE, THAT THE TWO
DEPOSITS SHOULD BE APPLIED AGAINST THE DEFICIENCY MEASURED BY THE
DIFFERENCE BETWEEN THE SECOND SALE PRICE OF $3,050 AND THE AMOUNT
REALIZED ON THE SUBSEQUENT RESALE; IN ADDITION TO THE DEFICIENCY
RESULTING FROM THE RESALE OF ITEM 68. THE BALANCE, APPARENTLY OF
$266.80, SHOULD BE REFUNDED TO MR. SIEGAL.
B-129318, OCT. 2, 1956
TO HONORABLE RAYMOND BLATTENBERGER:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING ERRORS ALLEGED BY E. HERBERT ZIMMERMANN, INC., BALTIMORE,
MARYLAND, AND THE GREENLEIGH PRINTING COMPANY, NEW YORK, NEW YORK, TO
HAVE BEEN MADE IN THEIR BIDS OPENED ON SEPTEMBER 11, 1956.
THE GOVERNMENT PRINTING OFFICE REQUESTED BIDS UNDER JACKET NO.
396969, FOR FURNISHING 7,000 SETS OF A 3-PART PREPRINTED, DIE IMPRESSED,
LIQUID PROCESS, DUPLICATING MASTER SET FOR SHIPMENT ON OR BEFORE OCTOBER
19, 1956. IN RESPONSE E. HERBERT ZIMMERMANN, INC., SUBMITTED A BID
DATED SEPTEMBER 6, 1956, OFFERING TO FURNISH THE FORMS FOR THE LUMP-SUM
OF $180; AND THE GREENLEIGH PRINTING COMPANY SUBMITTED A BID DATED
SEPTEMBER 5, 1956, OFFERING TO FURNISH THE FORMS FOR THE LUMP-SUM OF
$228.
YOU STATE THAT, AFTER THE BIDS WERE OPENED, E. HERBERT ZIMMERMANN,
INC., WAS ADVISED INFORMALLY THAT AWARD WOULD BE MADE TO THEM AS LOW
BIDDER; THAT UPON RECEIPT OF THIS INFORMATION, THE CORPORATION CHECKED
ITS BID AND IMMEDIATELY TELEPHONED ALLEGING THAT AN ERROR HAD BEEN MADE
BY ITS TYPIST IN TRANSFERRING ITS BID PRICE FROM ITS ESTIMATE SHEET TO
THE BID FORM SUBMITTED; AND THAT THE CORRECT PRICE FOR THE FORMS IS
$280 AND NOT $180 AS SHOWN IN ITS BID. YOU ALSO STATE THAT BY
CONFIRMING LETTER DATED SEPTEMBER 13, 1956, E. HERBERT ZIMMERMANN, INC.,
REQUESTED THAT IT BE PERMITTED TO WITHDRAW ITS BID ON THE JOB AND THAT
IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS
ORIGINAL ESTIMATE SHEET WHICH SHOWS A PRICE OF $280 FOR THE JOB.
IT IS STATED FURTHER IN YOUR LETTER THAT BECAUSE OF THE ERROR ALLEGED
BY E. HERBERT ZIMMERMANN, INC., TO HAVE BEEN MADE IN ITS BID, THE
CONTRACTING OFFICER ADVISED THE NEXT LOW BIDDER, GREENLEIGH PRINTING
COMPANY, BY LETTER, THAT AWARD WAS BEING DELAYED ON THIS JOB FOR
APPROXIMATELY TWO WEEKS AND THAT HE REQUESTED ADVICE FROM THE COMPANY
WHETHER THERE WOULD BE ANY REASON FOR THEIR NOT ACCEPTING AWARD ON THIS
JOB IF THE AWARD WERE NOT MADE IMMEDIATELY.
BY LETTER DATED SEPTEMBER 19, 1956, THE GREENLEIGH PRINTING COMPANY
ADVISED AS FOLLOWS:
"WE HAVE REVIEWED THE SPECIFICATIONS OF THE ABOVE UPON THE RECEIPT OF
YOUR LETTER. THE SPECIFICATIONS WERE NOT CLEAR TO US. WE PREVIOUSLY
PRODUCED THIS FORM (JACKET NO. 337063-APRIL 1955), AND SUBSEQUENTLY
QUOTED UPON OTHER JACKETS FOR THE SAME FORM. THESE PRIOR JOBS CONSISTED
ONLY OF THE MASTER UNIT, AND THE SECTIONS OF THE MASTER UNIT WERE CALLED
"PART NO. 1 - PART NO. 2 - PART NO. 3.'
"IN THE NEW SPECIFICATIONS 3 PARTS ARE ALSO LISTED, BUT THIS TIME THE
IDENTITY OF THE "PARTS" IS DIFFERENT. ACTUALLY, THERE ARE 5 LEAFS TO
THE SET NOW, COUNTING THE CARBON AND SMUDGE SHEET. OUR QUOTATION WAS
BASED ONLY UPON A REGULAR 3 PART MASTER UNIT: DUPLICATING MASTER,
SMUDGE SHEET, LIQUID PROCESS DUPLICATING CARBON. WE, THEREFORE,
RESPECTFULLY DECLINE THE OFFER TO PRODUCE THE JOB AS THE SECOND LOW
BIDDER.
"UNDER THESE NEW SPECIFICATIONS, OUR QUOTE SHOULD BE $315.00 FOR THE
7,000 WITH ADDITIONAL THOUSANDS AT $41.00. WE WOULD BE PLEASED TO
PRODUCE THE ORDER FOR THESE PRICES.'
THE LIST OF BIDS IN YOUR LETTER SHOWS THAT THE TWO OTHER BIDDERS ON
THE JOB QUOTED PRICES OF $319.83 AND $407.05. THUS, THE BIDS OF E.
HERBERT ZIMMERMANN, INC., AND THE GREENLEIGH PRINTING COMPANY OF $180
AND $228, RESPECTIVELY, ARE SUBSTANTIALLY BELOW THE OTHER BIDS RECEIVED
ON THE JOB.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO
ROOM FOR DOUBT THAT E. HERBERT ZIMMERMANN, INC., AND THE GREENLEIGH
PRINTING COMPANY MADE ERRORS IN THEIR BIDS, AS ALLEGED. HOWEVER, THE
CIRCUMSTANCES ARE NOT SUCH AS WOULD WARRANT A DEPARTURE FROM THE BASIC
RULE THAT BIDS MAY NOT BE CHANGED AFTER THE BIDS HAVE BEEN OPENED. SEE
17 COMP. GEN. 575.
ACCORDINGLY, SINCE THE ERRORS WERE ALLEGED AND EXPLAINED BY THE
BIDDERS PRIOR TO AWARD, THE BIDS OF E. HERBERT ZIMMERMANN, INC., AND THE
GREENLEIGH PRINTING COMPANY MAY BE DISREGARDED IN MAKING THE AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE BIDDERS' LETTERS AND THE
ESTIMATE SHEET OF E. HERBERT ZIMMERMANN, INC., ARE RETURNED.
B-86001 (A), I-17000-2374, OCT. 2, 1956
TO MAJOR HAROLD M. ARNOLD, USAF:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1956, WITH ENCLOSURE,
AND TO YOUR COMMUNICATION SUBMITTED AUGUST 13, 1956, REQUESTING A
RECONSIDERATION OF THE DETERMINATION BY OUR OFFICE THAT YOU WERE
ERRONEOUSLY PAID INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS A
COMMISSIONED OFFICER WITH DEPENDENT PARENTS FOR THE PERIOD JULY 1, 1943,
THROUGH SEPTEMBER 30, 1949, INCIDENT TO YOUR SERVICE AS A COMMISSIONED
OFFICER IN THE UNITED STATES ARMY AND AIR FORCE.
THE ENTIRE MATTER WAS CONSIDERED CAREFULLY AND THOROUGHLY AT THE
REQUEST OF THE LATE HONORABLE ALBEN W. BARKLEY AND IT WAS DETERMINED
THAT NEITHER OF YOUR PARENTS WERE DEPENDENT ON YOU FOR THEIR CHIEF
SUPPORT FOR THE PERIOD JULY 1, 1943, THROUGH SEPTEMBER 30, 1949, SINCE
IT APPEARED THAT YOUR PARENTS HAD INCOME TOGETHER WITH THE VALUE OF
HOUSING AND FOOD PROVIDED BY THEIR FARM OPERATIONS WHICH PROVIDED THEM
WITH MORE THAN HALF OF THEIR REQUIREMENTS FOR SUPPORT AND IN FACT
EXCEEDED YOUR CONTRIBUTIONS TO THEIR SUPPORT.
YOU STATE THAT YOU ARE UNABLE TO DISCOVER ANY OTHER SOURCE OF INCOME
TO YOUR PARENTS OTHER THAN FROM THE FARM OPERATIONS, AND THAT THE MAIN
SOURCE OF FARM INCOME TO YOUR PARENTS WAS DERIVED FROM A FARM OWNED BY
YOU WHICH ADJOINED THE FARM UPON WHICH THEY LIVED. YOU ALSO CONTEND
THAT THE FIGURE--- $162 A MONTH--- USED AS AN AVERAGE AMOUNT FOR LIVING
EXPENSES OF YOUR PARENTS IS CONSIDERABLY UNDERSTATED; THAT THE AMOUNT
OF $89 A MONTH IS REASONABLE AND PROPER AND IS SUPPORTED BY THE
INVESTIGATION MADE BY THE AIR FORCE; AND THAT YOUR CASH CONTRIBUTIONS
CONSTITUTED THE GREATER PORTION OF YOUR PARENTS INCOME FROM 1943 TO 1949
AND WAS MORE THAN HALF OF THE AMOUNTS REQUIRED FOR NORMAL LIVING
EXPENSES.
THE AVERAGE MONTHLY LIVING EXPENSES INVOLVING A CASH OUTLAY OF $162
WERE ESTIMATED BY YOUR MOTHER AND INCLUDED $20 FOR FOOD. IN YOUR
ESTIMATE OF AVERAGE LIVING EXPENSES OF $289 A MONTH YOU INCLUDE $120 FOR
FOOD. SINCE YOUR PARENTS' FOOD WAS DERIVED PRIMARILY FROM THEIR FARM
OPERATIONS, SUCH ESTIMATED INCREASE IN THEIR LIVING EXPENSES WOULD IN NO
WAY REFLECT ANY INCREASE IN YOUR CONTRIBUTIONS, BUT RATHER, WOULD
REFLECT AN INCREASE IN THE PERCENTAGE OF THEIR LIVING EXPENSES DERIVED
FROM THEIR OWN EFFORTS.
IT APPEARS THAT FOR THE PERIOD WITH WHICH WE ARE CONCERNED, YOUR
PARENTS LIVED ON AN 185-ACRE FARM, TITLE TO WHICH WAS IN THEIR CHILDREN,
BUT OPERATED BY YOUR PARENTS AS THEIR OWN. THE TILLABLE AREA OF THIS
FARM DOES NOT DEFINITELY APPEAR IN THE RECORD--- OUR INVESTIGATOR
ESTIMATES 150 ACRES, WHEREAS YOU STATE THAT ONLY 50 ACRES COULD BE
PROFITABLY CULTIVATED. HOWEVER, THE AREA THAT WAS NOT CULTIVATED
APPEARS TO HAVE BEEN USED FOR GRAZING PURPOSES AND, HENCE, CONTRIBUTED
TO THE PRODUCTIVITY OF THE FARM. IN ADDITION, IT APPEARS THAT YOU OWNED
AN ADJOINING FARM OF 96 ACRES WITH 85 TILLABLE ACRES, WHICH WAS OPERATED
BY YOUR PARENTS IN CONJUNCTION WITH THE FARM ON WHICH THEY LIVED, UNDER
AN ARRANGEMENT WHEREBY THEY WOULD RECEIVE A PERCENTAGE OF THE INCOME OF
YOUR FARM. IT FURTHER APPEARS FROM OUR FILES THAT FOR THE YEARS 1943
THROUGH 1948, THE FARMS MAY HAVE BEEN OPERATED AT ONLY A NOMINAL NET
PROFIT, YET YOUR PARENTS WERE ABLE TO LIVE OFF THE FRUITS OF THEIR
LABORS, AND THAT YOUR CONTRIBUTIONS TO YOUR MOTHER, OTHER THAN AN
ALLOTMENT TO HER WHICH WAS DEPOSITED TO YOUR BANK ACCOUNT, WERE USED
PRIMARILY FOR CAPITAL INVESTMENT PURPOSES--- IMPROVING THE VALUE OF YOUR
HOLDINGS AND INDIRECTLY THEIR OWN FARM AS WELL--- RATHER THAN FOR
SUPPORT PURPOSES.
IT AGAIN MAY BE POINTED OUT TO YOU THAT WHILE AN OFFICER MAY CLAIM
INCREASED ALLOWANCES ON ACCOUNT OF EITHER OR BOTH PARENTS, NEITHER MAY
BE CONSIDERED AS IN FACT DEPENDENT ON THE CLAIMING OFFICER FOR CHIEF
SUPPORT WHERE THEIR OTHER INCOME COVERS MORE THAN HALF OF THEIR ACTUAL
LIVING EXPENSES, OR STATING IT IN ANOTHER WAY, WHERE MORE THAN HALF OF
THEIR ACTUAL COST OF LIVING IS OBTAINED IN KIND BY THEIR OWN EFFORTS OR
FROM SOURCES OTHER THAN THE CLAIMING OFFICER.
IT HAS BEEN HELD THAT THE FACT THAT AN OFFICER'S AVERAGE MONTHLY
CONTRIBUTION IS IN EXCESS OF THE PARENTS' INDEPENDENT INCOME DOES NOT OF
ITSELF ESTABLISH THAT THE PARENT IS ACTUALLY DEPENDENT ON THE OFFICER
FOR CHIEF SUPPORT; IT MUST BE SHOWN THAT THE OFFICER'S CONTRIBUTION WAS
REQUIRED FOR THE PARENTS NECESSARY AND PROPER SUPPORT AND ACTUALLY
CONSTITUTED THE PARENTS' CHIEF SUPPORT. WHITING V. UNITED STATES, 80
C.CLS. 662; ODLIN V. UNITED STATES, 74 C.CLS. 633, 638.
UPON REVIEW OF THE MATTER, IT DOES NOT APPEAR THAT ANY CHANGE IS
WARRANTED IN OUR DETERMINATION THAT NEITHER OF YOUR PARENTS WAS IN FACT
DEPENDENT UPON YOU FOR THEIR CHIEF SUPPORT. ACCORDINGLY, A DEBT
SETTLEMENT WILL BE ISSUED BY OUR CLAIMS DIVISION CERTIFYING THE AMOUNT
OF YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF THE INCREASED
ALLOWANCES PAID TO YOU DURING THE PERIOD JULY 1, 1943, THROUGH SEPTEMBER
30, 1949. IN THIS CONNECTION, CONSIDERATION WILL BE GIVEN TO THE
CERTIFICATE SUBMITTED CERTIFYING THE NONAVAILABILITY OF QUARTERS TO YOU
DURING THE PERIOD JANUARY 23, 1947, TO NOVEMBER 20, 1949.
B-86001 (M), I-17000-14295, OCT. 2, 1956
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO LETTER DATED AUGUST 15, 1956, WITH ENCLOSURES,
FROM COLONEL HARRY D. COOK, USAF, EXECUTIVE, HEADQUARTERS, AIR FORCE
FINANCE CENTER, DENVER 5, COLORADO, CONCERNING INCREASED ALLOWANCE AND
SAVED TOTAL COMPENSATION PAYMENTS MADE TO LIEUTENANT COLONEL EARL L.
MOORE, 19617A, USAF (FORMERLY CAPTAIN, G-56921, MSC, USA), AS FOR AN
OFFICER WITH A DEPENDENT MOTHER DURING THE PERIOD OCTOBER 19, 1944,
THROUGH DECEMBER 31, 1953. THESE PAYMENTS WERE QUESTIONED IN A REPORT
OF
INVESTIGATION, FORWARDED TO THE SECRETARY OF THE ARMY WITH OUR LETTE
OF OCTOBER 16, 1950, WHICH WAS REFERRED BY THAT DEPARTMENT ON NOVEMBER
28, 1951, TO THE DEPARTMENT OF THE AIR FORCE FOR COLLECTION.
COLONEL COOK SAYS, IN EFFECT, THAT BASED ON THE FACTS AND INFORMATION
DEVELOPED BY A LATER INVESTIGATION MADE BY THE AIR FORCE, AS SET FORTH
IN HIS LETTER AND ENCLOSURES, THE FINANCE CENTER HAS DETERMINED THAT A
RIGHT TO THE QUESTIONED PAYMENTS EXISTED FOR THE ENTIRE PERIOD INVOLVED,
EXCEPT FOR THE PERIOD MAY 15, 1950, WHEN HE WAS REMOVED FROM A SAVED PAY
STATUS BECAUSE OF A PROMOTION, THROUGH JULY 31, 1950, DURING WHICH
PERIOD HIS MOTHER DID NOT RESIDE WITH HIM. COLONEL COOK ALSO SAYS THAT
A COMPUTATION OF THE OFFICER'S INDEBTEDNESS SHOWS THAT $927.73 IS DUE
THE UNITED STATES, BUT THAT, SINCE COLLECTION ACTION WAS INITIATED IN
1954, IF THE DETERMINATION THAT THE OFFICER WAS ENTITLED TO THE
QUESTIONED PAYMENTS IS APPROVED, HE WILL BE DUE A REFUND, AND THAT
COLLECTION ACTION HAS BEEN SUSPENDED AWAITING APPROVAL OF SUCH
DETERMINATION.
UPON REVIEW OF THE MATTER THE CONCLUSION IS REQUIRED THAT THE RECORD,
AS SUPPLEMENTED BY THE FACTS AND INFORMATION DEVELOPED BY THE AIR FORCE
INVESTIGATION, DOES NOT ESTABLISH THAT THE MOTHER WAS NOT IN FACT
DEPENDENT ON THE OFFICER DURING THE PERIOD OCTOBER 19, 1944, THROUGH
JULY 31, 1950.
IN VIEW OF THE PROVISIONS OF THE DEPENDENTS ASSISTANCE ACT OF 1950,
64 STAT. 794, NO DETERMINATION IS MADE HERE COVERING THE PAYMENTS MADE
TO THE OFFICER AFTER JULY 31, 1950. SEE 30 COMP. GEN. 282.
ACCORDINGLY, NO FURTHER ACTION NEED BE TAKEN TOWARD RECOVERY OF ANY
UNCOLLECTED INCREASED ALLOWANCE AND SAVED TOTAL COMPENSATION PAYMENTS
MADE TO COLONEL MOORE FOR THE PERIOD OCTOBER 19, 1944, THROUGH MAY 14,
1950, AND ANY AMOUNTS COLLECTED FROM HIM IN EXCESS OF THE OVERPAYMENTS
FOR THE PERIOD MAY 15 THROUGH JULY 31, 1950, SHOULD BE REFUNDED TO HIM.
B-99870, OCT. 2, 1956
TO MR. WESLEY SCOTT, JR. :
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1956, CONCERNING
CIVIL SERVICE RETIREMENT CHECK 6,801,951, FOR $56.68, DRAWN TO YOUR
ORDER OCTOBER 19, 1944, BY G. F. ALLEN, SYMBOL 100, WHICH HAS BEEN PAID.
YOU SAY THAT YOU WERE ON DUTY OVERSEAS AT THE TIME THE CHECK WAS
ISSUED, THEREFORE, IT WAS IMPOSSIBLE FOR YOU TO CASH THE CHECK. YOU
ALSO SAY "PLEASE ADVISE WHETHER OR NOT THIS CHECK CAN BE APPLIED TO MY
RETIREMENT TIME.' YOU APPARENTLY WISH TO BE ADVISED WHETHER THE PROCEEDS
OF THE CHECK MAY BE CREDITED TO YOUR RETIREMENT ACCOUNT.
IN REPLY TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT WHICH
DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF THE CHECK, THE FORMER
COMPTROLLER GENERAL, IN LETTER DATED JANUARY 11, 1951, ADVISED YOU THAT
THE CHECK IN QUESTION WAS MAILED TO YOU AT JEFFERSON BARRACKS, MISSOURI,
WHERE IT APPARENTLY WAS FORWARDED TO YOU OVERSEAS, SINCE IT WAS CASHED
BY AN ARMY FINANCE OFFICER OVERSEAS AFTER IT WAS ENDORSED BY YOU SHOWING
YOUR RANK AND SERIAL NUMBER. ALSO, THE CHECK, TOGETHER WITH CLAIM FORMS
DATED JUNE 3, 1950, NOTICE OF NONRECEIPT DATED MARCH 4, 1950,
PHOTO-COPIES OF YOUR APPLICATIONS FOR REFUND OF RETIREMENT DEDUCTIONS
DATED FEBRUARY 21, 1944 AND MARCH 25, 1946, WAS SUBMITTED TO THE
EXAMINER OF QUESTIONED DOCUMENTS, A HANDWRITING EXPERT, WHO, AFTER
EXAMINATION AND COMPARISON OF THE ENDORSEMENT ON THE CHECK WITH ALL YOUR
SIGNATURES, REPORTED THAT IN HIS OPINION YOU WROTE YOUR NAME ON THE
CHECK.
IT IS CLEAR FROM THE EVIDENCE OF RECORD THAT THE CHECK WAS CASHED BY
YOU OVERSEAS EVEN THOUGH YOU MAY HAVE FORGOTTEN ABOUT RECEIVING AND
CASHING THE CHECK. ACCORDINGLY, SINCE YOU HAVE RECEIVED THE PROCEEDS OF
THE CHECK, THERE IS NO AMOUNT DUE YOU WHICH MAY BE CREDITED TO YOUR
RETIREMENT ACCOUNT.
B-124907, OCT. 1, 1956
TO NATIONAL AUTOMOTIVE FIBRES, INC. :
REFERENCE IS MADE TO LETTERS OF JULY 17 AND 19, 1956, WITH
ENCLOSURES, FROM YOUR ATTORNEY, MR. CARL A. PHILLIPPS, IN EFFECT,
REQUESTING RECONSIDERATION OF OUR DECISION DATED JULY 11, 1956, TO YOU,
WHICH AFFIRMED THE DISALLOWANCE OF YOUR CLAIM FOR CERTAIN INCREASED
COSTS IN CONNECTION WITH CONTRACT NO. DA-30-280-QM-15162 (O.I. 18911),
DATED APRIL 20, 1951.
THE ENCLOSURES COMPRISE COPIES OF DOCUMENTS HERETOFORE CONSIDERED IN
THE SAID DECISION. HOWEVER, AT THE TIME OF RECEIPT OF THE LETTERS YOUR
ATTORNEY, IN CONFERRING WITH REPRESENTATIVES OF OUR OFFICE, PLACED
CONSIDERABLE EMPHASIS ON CERTAIN REPORTED ORAL DIRECTIVES ISSUED BY
GOVERNMENT REPRESENTATIVES IN CONNECTION WITH THE QUANTITY OF
GOVERNMENT-FURNISHED CLOTH REQUIRED TO BE COATED UNDER THE CONTRACT.
IT APPEARS TO BE YOUR ATTORNEY'S CONTENTION THAT THE REPORTED ORAL
INSTRUCTIONS WERE IN ADDITION TO THE INSTRUCTIONS CONTAINED IN THE
ADMINISTRATIVE LETTER OF AUGUST 22, 1951, TO YOU. THIS MATTER IS
SPECIFICALLY DISCUSSED IN OUR DECISION OF OCTOBER 14, 1955, BEGINNING
WITH THE PENULTIMATE PARAGRAPH ON PAGE 2 AND CONTINUING THROUGH THE
FINAL PAGE OF THE DECISION. HOWEVER, AS A RESULT OF THE CONFERENCE WITH
YOUR ATTORNEY AND IN VIEW OF HIS INSISTENCE THAT THERE WERE CERTAIN ORAL
AGREEMENTS BETWEEN THE CONTRACTING PARTIES WITH REGARD TO THE COATING OF
ALL CLOTH SENT TO THE COATER, THE ADMINISTRATIVE OFFICE CONCERNED WAS
REQUESTED TO FURNISH A SUPPLEMENTAL REPORT IN THE MATTER. IN RESPONSE
TO THAT REQUEST THE DEPARTMENT OF THE ARMY, BY LETTER DATED SEPTEMBER
24, 1956, FORWARDED A DULY SIGNED SWORN STATEMENT FURNISHED BY THE
CONTRACTING OFFICER, MAJOR W. F. FLOYD, QMC, WHICH READS IN PERTINENT
PART, AS FOLLOWS:
"* * * TO THE BEST OF THE AFFIANT'S KNOWLEDGE AND BELIEF, HE DID NOT
AT ANY TIME, VERBALLY OR IN WRITING, DIRECT ANY REPRESENTATIVE OF
NATIONAL AUTOMOTIVE FIBRES, INCORPORATED TO COAT ANY
GOVERNMENT-FURNISHED CLOTH IN EXCESS OF THE AMOUNT REQUIRED TO COMPLETE
CONTRACT NO. DA 30-280-QM-15162 (O.I. 18911). NOR DID THE AFFIANT, TO
THE BEST OF HIS KNOWLEDGE AND BELIEF, ENTER INTO ANY ORAL AGREEMENT
RESPECTING THE COATING OF GOVERNMENT-FURNISHED CLOTH IN EXCESS OF THE
AMOUNT REQUIRED FOR COMPLETION OF THE CONTRACT.'
IN VIEW OF THE FOREGOING SWORN STATEMENT, TOGETHER WITH THE FACT THAT
THE MATERIAL FURNISHED WITH THE LETTER OF JULY 19, 1956, PREVIOUSLY HAS
BEEN FULLY CONSIDERED BY OUR OFFICE, THE DECISION OF JULY 11, 1956,
AFFIRMING THE DISALLOWANCE OF YOUR CLAIM WILL NOT BE DISTURBED.
B-127228, OCT. 1, 1956
TO THE SECRETARY OF THE AIR FORCE:
WE DESIRE TO CALL TO YOUR ATTENTION A MATTER WHICH HAS COME TO LIGHT
IN THE COURSE OF OUR AUDIT AT THE AIR FORCE AUDIT BRANCH, DENVER,
COLORADO.
IN JUNE OF 1952, WHEN IT WAS NOTED THAT THE AIR FORCE HAD BEEN
ORDERING MEMBERS TO TEMPORARY DUTY FOR THE PURPOSE OF ESCORTING
DEPENDENTS OF DECEASED MILITARY PERSONNEL AND HAD BEEN MAKING PAYMENTS
OF TRAVEL EXPENSES ARISING UNDER SUCH ORDERS, CORRESPONDENCE WAS
INITIATED WITH THE AIR FORCE FINANCE CENTER CALLING ATTENTION TO THE
FACT THAT WE COULD FIND NO AUTHORITY TO REIMBURSE MEMBERS FOR EXPENSES
INCURRED IN ESCORTING DEPENDENTS OF DECEASED PERSONNEL AND, THEREFORE,
RECOMMENDED THAT THE AIR FORCE FIELD OFFICES BE NOTIFIED TO DISCONTINUE
SUCH PAYMENTS. HOWEVER, IN VIEW OF THE ASSERTED MORALE PROBLEM AND THE
ISOLATED INSTANCES OF SUCH CLAIMS, THE AIR FORCE WAS ADVISED AT THAT
TIME THAT NO OBJECTION WOULD BE RAISED TO PAYMENTS ALREADY MADE.
ON JULY 3, 1952, A REPLY WAS RECEIVED FROM THE AIR FORCE FINANCE
CENTER CONCURRING IN OUR VIEWS AND, IN PARAGRAPH 11 OF AIR FORCE FINANCE
TECHNICAL DIGEST DATED JULY 3, 1952, THERE WAS PUBLISHED AN ITEM AS
FOLLOWS:
"IT HAS BEEN BROUGHT TO THE ATTENTION OF THIS HEADQUARTERS THAT
FINANCE OFFICERS ARE EFFECTING PAYMENT FOR TRAVEL EXPENSES ON BEHALF OF
MILITARY ESCORTS WHO ARE PLACED ON TEMPORARY DUTY FOR THE PURPOSE OF
ACCOMPANYING DEPENDENTS OF DECEASED MEMBERS TO VARIOUS DESIGNATED
LOCATIONS.
"THERE IS NO AUTHORITY TO PLACE MEMBERS IN A TRAVEL STATUS FOR THE
ABOVE PURPOSE AND THEREFORE PAYMENTS ARE NOT AUTHORIZED. NO ACTION WILL
BE TAKEN TO EFFECT COLLECTION OF PAYMENTS MADE (REFERENCE: AFR 143-2,
ELIGIBILITY AND EXPENSES FOR CARE AND DISPOSITION OF REMAINS, AND AFR
143-5, MILITARY HONORS AND ESCORTS FOR DECEASED PERSONNEL.)"
THE FOREGOING ITEM WAS RESCINDED BY SECTION III, PARAGRAPH A, AIR
FORCE FINANCE TECHNICAL DIGEST OF MARCH 26, 1954, WHICH CONCLUDES THAT:
"* * * THE AIR FORCE POLICY ON THE SUBJECT WILL BE PUBLISHED BY THE
DIRECTOR OF MILITARY PERSONNEL.'
THE MATTER WAS AGAIN BROUGHT TO THE ATTENTION OF THE DIRECTOR OF
FINANCE, DENVER, COLORADO, IN OUR LETTER DATED JUNE 19, 1956, IN WHICH
THE CHIEF, AIR FORCE AUDIT BRANCH, ADVISED:
"SINCE THERE IS NO PROVISION OF LAW THAT WOULD WARRANT PAYMENT OF
TRAVEL ALLOWANCES TO MEMBERS SOLELY FOR THE PURPOSE OF ESCORTING
DEPENDENTS OF DECEASED MEMBERS, WE WILL BE REQUIRED TO STATE EXCEPTIONS
AGAINST ALL SUCH PAYMENTS ENCOUNTERED IN THE AUDIT. IT IS THEREFORE
REQUESTED THAT ALL INTERESTED PERSONNEL BE ADVISED THAT TRAVEL EXPENSES
UNDER THESE CIRCUMSTANCES ARE NOT PAYABLE FROM APPROPRIATED FUNDS.'
BY HIS LETTER OF JULY 9, 1956, TO THE CHIEF, AIR FORCE AUDIT BRANCH,
THE DIRECTOR OF FINANCE, STATED:
"THE RECISION OF THE FINANCE TECHNICAL DIGEST ITEM OF 3 JULY 1952, AS
REFERENCED IN YOUR LETTER, WAS PROMPTED BY AN OPINION OF THE JUDGE
ADVOCATES GENERAL OF THE ARMY, NAVY AND AIR FORCE THAT TRAVEL OF ESCORTS
FOR THE PURPOSE OF ACCOMPANYING DEPENDENTS OF MILITARY PERSONNEL WHO ARE
INCAPABLE OF TRAVELING TO THEIR HOMES ALONE DUE TO AGE, PHYSICAL, OR
MENTAL CONDITION; WHOSE MILITARY SPONSOR IS DEAD, MISSING IN ACTION,
MISSING OR OTHERWISE UNACCOUNTED FOR; IS DEEMED IN THE BEST INTEREST OF
THE GOVERNMENT AND, THEREFORE, MAY PROPERLY BE REGARDED AS TRAVEL UPON
,PUBLIC BUSINESS" WITHIN THE CONTEMPLATION OF SECTION 303 OF THE CAREER
COMPENSATION ACT OF 1949 (63 STAT. 802).
"THE JUDGE ADVOCATES GENERAL OF THE SERVICES RECOGNIZED THAT THE
PROPRIETY OF PAYMENT OF TRAVEL ALLOWANCES FOR ESCORTS OF THESE
DEPENDENTS REVOLVED UPON THE MEANING OF THE TERM "PUBLIC BUSINESS" AND
IN THAT CONNECTION STATED:
" "* * * IF A STRICT AND NARROW INTERPRETATION IS REQUIRED, THEN IT
WOULD APPEAR THAT ONLY SUCH TRAVEL FROM WHICH THE GOVERNMENT DERIVES
SOME BENEFIT, SHOULD BE AUTHORIZED AT GOVERNMENT EXPENSE; AND
CONVERSELY THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION
THEREFORE, TRAVEL FROM
WHICH NO BENEFIT INSURE TO THE GOVERNMENT, EVEN THOUGH PERFORMED
PURSUANT TO OTHERWISE PROPER ORDERS, WOULD IN NO RESPECT OBLIGATE THE
GOVERNMENT FOR THE EXPENSE OF SUCH TRAVEL.
" "IF, ON THE OTHER HAND, A LIBERAL INTERPRETATION IS TO BE TAKEN OF
"PUBLIC BUSINESS," THEN IT WOULD BE SUFFICIENT THAT SUCH ORDERS MEET THE
TEST OF BEING ISSUED IN THE "BEST INTEREST OF THE GOVERNMENT.' UNDER
THIS INTERPRETATION TRAVEL ORDERS OF THE TYPE CONTEMPLATED * * * IF
ISSUED BY COMPETENT AUTHORITY WHEN IN HIS SOUND DISCRETION THE PURPOSE
OF ISSUANCE THEREOF WAS IN THE BEST INTEREST OF THE MILITARY SERVICE,
WOULD BE LEGAL UNDER SECTION 303, SUPRA. THE FORMER INTERPRETATION
WOULD PLACE THE GOVERNMENT AND THE MEMBER IN A CONTRACTUAL RELATIONSHIP
HOLDING THE GOVERNMENT RESPONSIBLE ONLY FOR SUCH EXPENSES OCCURRING IN
THE PURSUIT OF GOVERNMENT BUSINESS.
IT IS NOT BELIEVED THAT IT WAS EVER THE INTENT OF CONGRESS TO HOLD
THE NEEDS OF THE MILITARY SERVICE TO SO STRICT A CONSTRUCTION. THE
LATTER INTERPRETATION IS MORE REALISTIC. THE RELATIONSHIP OF THE
GOVERNMENT WITH THE MEMBERS OF THE ARMED FORCES IS UNIQUE AND CANNOT BE
REDUCED TO BARE CONTRACTUAL ESSENTIALS.
" "THERE IS NO LOGICAL BASIS TO CONCLUDE THAT THIS ASSISTANCE SHOULD
CEASE AT THE DEATH OR PLACEMENT IN A MISSING STATUS OF THE MILITARY
SPONSOR. ON THE CONTRARY, THIS IS INCREASED AND BROUGHT INTO SHARP
FOCUS BY THE DEATH OF THE MEMBER. THE OBLIGATION TO RETURN DEPENDENTS
TO THEIR HOME WHEN THEIR MILITARY SPONSOR IS DEAD OR MISSING IS
RECOGNIZED AND SPECIFICALLY PROVIDED FOR IN LAW. IT IS THE
RESPONSIBILITY OF THE MILITARY ESTABLISHMENT TO EFFECT AND SUPERVISE
THIS RELOCATION AND TO ASSIST THOSE INCAPACITATED BY AGE, PHYSICAL, OR
MENTAL CONDITION IN RETURNING TO THEIR HOMES AS A MATTER OF PUBLIC
TRUST.'
"THE AIR FORCE POLICY SETTING FORTH THE CONDITIONS UNDER WHICH
ESCORTS MAY BE PROVIDED FOR DEPENDENTS OF MILITARY PERSONNEL HAS NOT
BEEN PUBLISHED TO DATE; HOWEVER, IT IS ANTICIPATED THAT SAME WILL BE
FORTHCOMING IN THE IMMEDIATE FUTURE.'
AIR FORCE REGULATION NO. 34-6, DATED JUNE 28, 1956--- EFFECTIVE JULY
1, 1956--- MAKING PROVISION FOR "TRAVEL AIDES FOR DEPENDENTS OF DECEASED
OR MISSING AIR FORCE MILITARY PERSONNEL," HAS SINCE BEEN RECEIVED HERE.
IT PURPORTS TO AUTHORIZE TRAVEL OF SUCH AIDES, EITHER MILITARY OR
CIVILIAN, AT GOVERNMENT EXPENSE AND OUTLINES THE POLICY AND CONDITIONS
UNDER WHICH SUCH ESCORTS WILL BE PROVIDED AT GOVERNMENT EXPENSE FOR
DEPENDENTS OF DECEASED OR MISSING AIR FORCE MILITARY PERSONNEL.
IN 1952, WHEN THIS QUESTION FIRST AROSE, THE BASIC STATUTORY
PROVISIONS AUTHORIZING FUNERAL EXPENSES OF ARMY AND AIR FORCE PERSONNEL
WHO DIE WHILE IN THE ACTIVE MILITARY SERVICE WERE CONTAINED IN THE ACT
OF MARCH 9, 1928, 45 STAT. 251, AS AMENDED BY THE ACT OF MAY 17, 1938,
52 STAT. 398 (10 U.S.C. 916-918B). THESE STATUTES, HOWEVER, WERE
REPEALED BY SECTION 14 (C) (1) OF THE ACT OF JULY 15, 1954, 68 STAT.
481, WHICH CONTAINS THE CURRENT AUTHORITY FOR THE RECOVERY, CARE, AND
DISPOSITION OF THE REMAINS OF MEMBERS OF THE UNIFORMED SERVICES AND
CERTAIN OTHER PERSONNEL. SECTION 2 AUTHORIZES THE SEVERAL SECRETARIES
TO PROVIDE VARIOUS SERVICES--- INCLUDING ROUND-TRIP TRANSPORTATION AND
PRESCRIBED ALLOWANCES FOR AN ESCORT OF ONE PERSON TO ACCOMPANY THE
REMAINS OF THE DECEDENT TO THE TOWN OR CITY, OR NATIONAL OR OTHER
CEMETERY, DESIGNATED BY THE PERSON RECOGNIZED AS THE PERSON TO DIRECT
THE DISPOSITION OF THE REMAINS OR, IN THE ABSENCE OF SUCH DESIGNATION,
TO A NATIONAL OR OTHER CEMETERY DESIGNATED BY THE SECRETARY IN WHICH THE
BURIAL OF THE DECEDENT IS AUTHORIZED. UNDER THE PRIOR LAWS ESCORTS FOR
THE REMAINS OF DECEASED MILITARY PERSONNEL WERE PROVIDED FOR UNDER
REGULATIONS PROMULGATED BY THE ARMY AND AIR FORCE. SEE PARAGRAPH 3A
(6), AIR FORCE REGULATION NO. 143-2, JULY 17, 1951, AND PARAGRAPH 3, AIR
FORCE REGULATION NO. 143-5, JANUARY 22, 1952. NOWHERE IN EITHER THE
EARLIER STATUTES OR IN THE 1954 ACT IS THERE ANY PROVISION WHATEVER FOR
ESCORTS FOR LIVING PERSONS--- DEPENDENTS OF SERVICE PERSONNEL---
ALTHOUGH THE 1954 ACT (SECTION 7 (A) ( DOES MAKE PROVISION FOR CERTAIN
EXPENSES--- NOT INCLUDING ESCORTS--- FOR CARE, ETC., OF THE REMAINS OF
DEPENDENTS OF MILITARY PERSONNEL WHEN THE DEPENDENTS DIE WHILE RESIDING
WITH SUCH MILITARY PERSONNEL AT A PLACE OF DUTY OUTSIDE THE CONTINENTAL
LIMITS OF THE UNITED STATES OR IN ALASKA OR WHILE IN TRANSIT TO OR FROM
SUCH PLACE OF DUTY. IN ADDITION, CERTAIN OTHER SERVICES MAY BE PROVIDED
IN SUCH CASES ON A REIMBURSABLE BASIS.
AN EXAMPLE OF QUESTIONED EXPENSES OF THE NATURE HERE INVOLVED IS
VOUCHER 20857, IN THE MAY 1955 ACCOUNTS OF R. L. GRIFFITH, SYMBOL
225-029, COVERING A PAYMENT OF $44.10 TO CAPTAIN FRANK A. PFEFFER,
A0712308, FOR TEMPORARY DUTY TRAVEL PERFORMED APRIL 15 TO 17, 1955, FROM
MACDILL AIR FORCE BASE, FLORIDA, TO EGLIN AIR FORCE BASE, FLORIDA, AND
RETURN, FOR THE PURPOSE OF ACCOMPANYING THE DEPENDENT OF MAJOR GEORGE W.
MELCHING, A02099481, DECEASED. ANOTHER EXAMPLE, WHICH GOES STILL
FURTHER IN THAT IT CONCERNS THE FURNISHING OF AN ESCORT FOR THE
REMAINING DEPENDENTS UPON THE DEATH OF ONE OF THEIR NUMBER, IS VOUCHER
12078 IN THE JUNE 1956 ACCOUNTS OF W. J. EVERLY, SYMBOL 225-219, WHICH
COVERS PAYMENT OF $114.90 TO CAPTAIN GEORGIA M. POLLARD, USAF/NC),
AN2242172, FOR TEMPORARY DUTY TRAVEL PERFORMED MARCH 1 TO APRIL 21,
1956, FROM SOUTH RUISLIP, ENGLAND, TO DALLAS, TEXAS, AND RETURN. TRAVEL
ORDER 3CAGA/2-623) DATED FEBRUARY 29, 1956, AS AMENDED, DIRECTS THAT
TRAVEL BE PERFORMED FOR THE PURPOSE OF ESCORTING THE MINOR DEPENDENT
CHILDREN OF MASTER SERGEANT BEN W. ADAMS, AF18200530, TO THE ZONE OF THE
INTERIOR, AND RETURN TO HER PERMANENT DUTY STATION. IT IS INDICATED
THAT CAPTAIN POLLARD ESCORTED THE INFANT CHILD AND TWO OTHER MINOR
CHILDREN TO ROGERS, TEXAS, FROM APO 125 FOLLOWING THE DEATH IN
CHILDBIRTH OF MRS. BEN W. ADAMS.
SINCE, BY VARIOUS STATUTES--- INCLUDING ANNUAL APPROPRIATION ACTS---
THE CONGRESS HAS FOUND IT NECESSARY TO MAKE SPECIFIC PROVISION FOR
ESCORTS FOR THE REMAINS OF DECEASED MILITARY PERSONNEL IN ORDER TO
AUTHORIZE PAYMENT OF THE EXPENSES OF SUCH ESCORTS, IT SEEMS TO FOLLOW
THAT HAD THE CONGRESS INTENDED THAT ESCORTS SHOULD BE PROVIDED FOR THE
DEPENDENTS OF LIVING OR DECEASED MILITARY PERSONNEL, IT WOULD HAVE
INCLUDED IN SUCH STATUTES LANGUAGE CLEARLY INDICATING THAT INTENT. THE
FAILURE OF THE CONGRESS AFFIRMATIVELY TO AUTHORIZE ESCORTS FOR
DEPENDENTS OF DECEASED
MEMBERS OF THE UNIFORMED SERVICES, PARTICULARLY SINCE THE ACT OF JUL
15, 1954, DEALING IN DETAIL WITH RELATED MATTERS, WAS ENACTED AT A TIME
WHEN THE PRACTICE OF FURNISHING SUCH ESCORTS WAS BEING ACTIVELY
QUESTIONED BY US, WOULD APPEAR TO US EFFECTIVELY TO PRECLUDE ANY
CONCLUSION THAT ESCORTS FOR THAT PURPOSE NOW MAY BE FURNISHED ON THE
BASIS THAT THE TRAVEL IS UPON "PUBLIC BUSINESS" WITHIN THE CONTEMPLATION
OF SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802,
EVEN
IF SUCH POSITION OTHERWISE MIGHT HAVE BEEN CONSIDERED TENABLE.
ACCORDINGLY, WHILE THERE MAY APPEAR TO BE WORTHY HUMANITARIAN REASONS
FOR PROVIDING SUCH ESCORTS FOR DEPENDENTS OF DECEASED MILITARY PERSONNEL
IN CERTAIN CASES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY
THEREFORE, WE ARE CONSTRAINED TO HOLD THAT SUCH PAYMENTS WERE IMPROPER.
THE GOVERNMENT WAS NOT LEGALLY OBLIGATED TO PAY THE EXPENSES INCURRED
AND, IN ANY CASE WHERE EXCEPTIONS HAVE BEEN RAISED IN THE AUDIT,
APPROPRIATE STEPS SHOULD BE TAKEN TO RECOVER FROM THE PAYEES THE AMOUNTS
PAID. ALSO, IT IS SUGGESTED THAT APPROPRIATE ACTION BE TAKEN TO PREVENT
SIMILAR
PAYMENTS IN THE FUTURE.
B-127372, OCT. 1, 1956
TO SCHUTTE AND KIERTING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1956,
ACKNOWLEDGED APRIL 12, PROTESTING THE ACTION OF THE DEPARTMENT OF THE
NAVY IN AWARDING TO GIMPEL MACHINE WORKS, INC., A CONTRACT FOR
FURNISHING DESUPERHEATERS, REPAIR PARTS, ENGINEERING DRAWINGS AND
TYPE B TECHNICAL MANUALS UNDER INVITATION FOR BIDS NO. 600-719-56-S,
ISSUED JANUARY 5, 1956, BY THE BUREAU OF SHIPS. YOU QUESTION THE
PROPRIETY OF THE AWARD FOR THE REASON THAT IT WAS MADE TO THE THIRD LOW
BIDDER AND YOU URGE THAT YOU, AS SECOND LOW BIDDER, SUBMITTED A BID
WHICH WAS SUBSTANTIALLY RESPONSIVE TO THE INVITATION.
IN RESPONSE TO REQUESTS BY THIS OFFICE, THE DEPARTMENT OF THE NAVY
HAS FURNISHED A REPORT AND A SUPPLEMENTAL REPORT SETTING OUT THE FACTS
AND ITS VIEWS IN THE MATTER. THE REPORT SHOWS THAT BIDS WERE RECEIVED
AS FOLLOWS:
TABLE
TOTAL PRICE BIDDER
HORIZONTAL TYPE VERTICAL TYPE COPES-VULCAN DIVISION, BLAW-KNOX CO.
$21,232.00 $24,928.00 SCHUTTE AND KOERTING CO.
25,440.00 GIMPEL MACHINE WORKS, INC. 33,536.00
ENGINEERING CO., INC. 37,812.88 NO BID
ON MARCH 15, 1956, CONTRACT NO. NOBS-68119 WAS AWARDED TO GIMPEL
MACHINE WORKS, INC., THE TWO LOWER BIDS BEING REJECTED AS NOT RESPONSIVE
AND NOT CONFORMING TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION.
IT APPEARS THAT YOU PROPOSED TO FURNISH TYPE C TECHNICAL MANUALS
INSTEAD OF TYPE B AS REQUIRED BY THE INVITATION, ALTHOUGH ALL OTHER
BIDDERS PROPOSED TO FURNISH TYPE B. IN THIS CONNECTION, IT IS REPORTED
THAT, ALTHOUGH THE SPECIFICATIONS STATED THAT TYPE C TECHNICAL MANUALS
SHOULD BE FURNISHED, THE SCHEDULE OF THE INVITATION CALLED FOR TYPE B
TECHNICAL MANUALS AND THAT PARAGRAPH 39 OF THE GENERAL PROVISIONS
PROVIDES THAT THE SCHEDULE ALWAYS CONTROLS IN THE EVENT OF INCONSISTENCY
BETWEEN SCHEDULE AND SPECIFICATIONS. IN ITS REPORT, THE DEPARTMENT
STATES, IN SUBSTANCE, THAT YOUR PROPOSAL TO FURNISH TYPE C TECHNICAL
MANUALS SHOULD NOT BE REGARDED AS A MINOR IRREGULARITY SINCE THE TYPE B
MANUAL "IS A LARGER, MORE EXTENSIVE PIECE OF LITERATURE INCLUDING A
GREATER NUMBER OF PHOTOGRAPHS, DIAGRAMS, DRAWINGS, TABLES, ETC., AND
USUALLY IS MORE EXPENSIVE THAN TYPE C.'
IT IS REPORTED, ALSO, THAT YOUR FORMAL QUOTATION AND LETTERHEAD EACH
INCLUDED IN BOLD RED TYPE AT THE BOTTOM OF EACH PAGE THE WORDS "SEE
REVERSE SIDE FOR "TERMS OF SALE," " WHICH TERMS OF SALE CONFLICTED WITH
THE TERMS AND CONDITIONS REQUIRED BY THE INVITATION IN THAT YOUR
GUARANTY PERIOD WAS SIX MONTHS INSTEAD OF ONE YEAR AS REQUIRED BY THE
GOVERNMENT; ALSO, IN THAT YOUR GUARANTY PROVIDED FOR REPLACEMENT ONLY,
WHEREAS THE INVITATION PROVIDED FOR CORRECTION, REPLACEMENT OR
ADJUSTMENT OF PRICE AT THE OPTION OF THE GOVERNMENT (PARAGRAPH 34 OF
GENERAL PROVISIONS).
THE QUESTION WHETHER DEVIATIONS FROM THE REQUIREMENTS OF ADVERTISED
SPECIFICATIONS OR CONDITIONS OF AN INVITATION TO BID MAY BE WAIVED IS
DEPENDENT UPON THE PARTICULAR FACTS AND CIRCUMSTANCES PRESENT IN THE
INDIVIDUAL CASE. THE PRIMARY QUESTION FOR DETERMINATION IN SUCH CASES
IS WHETHER THE DEVIATION PROPOSED TO BE WAIVED GOES TO THE SUBSTANCE OF
THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY OR QUALITY OF THE
ARTICLES OR SERVICES OFFERED AND, THEREFORE, IS PREJUDICIAL TO THE
RIGHTS OF OTHER BIDDERS, OR IS MERELY A MATTER OF FORM OR SOME
IMMATERIAL DEVIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION OR
THE SPECIFICATIONS SUCH AS WOULD NOT AFFECT EITHER THE PRICE, QUALITY OR
QUANTITY OF THE ARTICLES OR SERVICES OFFERED. 30 COMP. GEN. 179. IN
THE INSTANT MATTER, IT SEEMS CLEAR THAT THE DEVIATIONS AND CONDITIONS
ABOVE REFERRED TO WERE MATERIAL AND WOULD AFFECT THE PRICES SUBMITTED.
IN 17 COMP. GEN. 554 IT WAS STATED:
"TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE
WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BIDDERS TO VARY THEIR
PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE
WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE
BASIS. THE STRICT MAINTENANCE OF SUCH PROCEDURE, REQUIRED BY LAW, IS
INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY
PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY THE VIOLATION OF THE RULES.'
FOR THESE REASONS, THERE APPEARS NO PROPER BASIS FOR OBJECTION BY
THIS OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID.
YOUR QUESTION "AS TO WHETHER THE APPLICATION OF ALL PARAGRAPHS OF THE
GENERAL PROVISIONS APPLY TO THE SCHEDULE BEFORE IT BECOMES A CONTRACT"
APPARENTLY IS SUGGESTED BY YOUR CONTEMPLATION OF A POSSIBLE APPEAL FROM
THE ACTION OF THE CONTRACTING OFFICER PURSUANT TO PARAGRAPH 12 OF THE
GENERAL PROVISIONS. THE GENERAL PROVISIONS ARE ATTACHED TO AND MADE A
PART OF THE INVITATION IN ORDER THAT ALL PARTIES MAY KNOW THEIR RIGHTS
AND OBLIGATIONS UNDER THE CONTRACT IF AND WHEN AWARDED. IN OTHER
RESPECTS, SUCH PROVISIONS DO NOT BECOME EFFECTIVE UNLESS AND UNTIL AN
AWARD IS MADE. THUS, PARAGRAPH 12 (ENTITLED "DISPUTES") SPECIFICALLY
APPLIES TO "ANY DISPUTE CONCERNING A QUESTION OF FACT ARISING UNDER THIS
CONTRACT" AND, THEREFORE, COULD NOT PROPERLY BE REGARDED AS APPLICABLE
TO QUESTIONS ARISING PRIOR TO AWARD.
B-128088, OCT. 1, 1956
TO THE SECRETARY OF AGRICULTURE:
IN LETTER OF SEPTEMBER 19, 1956, THE DIRECTOR, AGRICULTURAL CREDIT
SERVICES, REQUESTS WITHDRAWAL OF THE REQUEST CONTAINED IN YOUR LETTER
DATED MAY 31 FOR AUTHORITY OF THE FARMERS HOME ADMINISTRATION, UNDER
GENERAL REGULATIONS NO. 120, REVISED, DATED MAY 18, 1954 (SUPERSEDED BY
GENERAL REGULATIONS NO. 129, DATED JULY 30, 1956.) TO DISCONTINUE
REPORTING TO THE GENERAL ACCOUNTING OFFICE CERTAIN UNCOLLECTIBLE DEBTS
AND TO REMOVE THEM FROM THEIR ACCOUNTING RECORDS.
IN THE LETTER OF SEPTEMBER 19 IT IS STATED:
"BY THE ENACTMENT OF PUBLIC LAW 878, APPROVED AUGUST 1, 1956, THE
AUTHORITY OF THE SECRETARY OF AGRICULTURE TO COMPROMISE, ADJUST, AND
SETTLE CLAIMS OF DEBTORS OF THE FARMERS HOME ADMINISTRATION, HAS BEEN
BROADENED AND THE CASE FILES OF BORROWERS WHOSE DEBTS ARE SETTLED UNDER
THE BANKHEAD-JONES FARM TENANT ACT, AS AMENDED BY PUBLIC LAW 878, CAN
NOW BE DISPOSED OF UNDER APPROVED ARCHIVES DISPOSAL AUTHORITY. INASMUCH
AS WE CAN NOW ACCOMPLISH ADMINISTRATIVELY WITHIN THE SCOPE OF PUBLIC LAW
878 AND GENERAL REGULATIONS NO. 120 THE OBJECTIVES SET FORTH IN OUR
LETTER
OF MAY 31, 1956, WE SHOULD LIKE TO WITHDRAW THE REQUESTS MADE IN THA
LETTER.'
THE CONGRESS BY THE ENACTMENT OF PUBLIC LAW 878, APPROVED AUGUST 1,
1956, GAVE THE SECRETARY OF AGRICULTURE THE AUTHORITY SUBJECT TO THE
CONDITIONS EXPRESSED THEREIN TO COMPROMISE, ADJUST, OR CANCEL ALL TYPES
OF LOANS ADMINISTERED BY THE FARMERS HOME ADMINISTRATION. AS INDICATED
BY THE DIRECTOR THE OBJECTIVES SOUGHT TO BE ACCOMPLISHED IN YOUR LETTER
MAY, BY REASON OF THAT LAW, BE NOW EFFECTED ADMINISTRATIVELY.
ACCORDINGLY, AND SINCE OUR CONSIDERATION OF THIS MATTER APPEARS
UNNECESSARY, ITS WITHDRAWAL IS APPROVED AS REQUESTED. IT IS UNDERSTOOD,
OF COURSE, THAT, AS TO ANY INSTANCE WHERE IT IS BELIEVED UNCOLLECTIBLE
DEBTS MIGHT BE COLLECTED BY THE GENERAL ACCOUNTING OFFICE THROUGH MEANS
AVAILABLE TO IT, SUCH DEBTS MAY BE REPORTED FOR FURTHER COLLECTION
PROCEEDINGS.
IN COMPLIANCE WITH THE DIRECTOR'S REQUEST UNCOLLECTIBLE DEBT CASES
PROCESSED BY THE FIELD OFFICERS OF THE ADMINISTRATION PRIOR TO THE
ENACTMENT OF PUBLIC LAW 878 MAY BE FORWARDED TO OUR CLAIMS DIVISION
UNDER THE PROVISIONS OF THE CITED GENERAL REGULATIONS.
B-128460, OCT. 1, 1956
TO GIBBS MANUFACTURING AND RESEARCH CORPORATION:
REFERENCE IS MADE TO YOUR TELEFAX OF JUNE 29, 1956, AND LETTER OF
SEPTEMBER 12, 1956, RELATIVE TO YOUR PROTEST IN CONNECTION WITH PROPOSAL
APO 519-56 2 BY THE ORDNANCE AMMUNITION COMMAND, JOLIET, ILLINOIS, FOR
FURNISHING MINES, AP, M16E3.
IN THE TELEFAX IT WAS STATED THAT YOUR PROTEST WAS BASED ON AN
UNJUSTIFIABLE EVALUATION OF GOVERNMENT-OWNED TOOLING AND A DISREGARD OF
MANDATORY SET ASIDE FOR SMALL BUSINESS.
IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE ARMY HAS FURNISHED
A DETAILED REPORT OF THE FACTS IN THE MATTER OF THE PROCUREMENT. THE
DEPARTMENT STATES THAT THE PROCUREMENT IN QUESTION WAS INITIALLY SET
ASIDE BY JOINT DETERMINATION FOR SMALL BUSINESS AND WAS A "TOTAL SET
ASIDE" AS DEFINED IN PARAGRAPH 10C (1) OF AR 715-3. REQUEST FOR
PROPOSALS WERE THEREAFTER SOLICITED FROM LOMPCO PRODUCTS, INC., DALTON
FOUNDRIES, INC., AND YOUR COMPANY, THE GIBBS MANUFACTURING AND RESEARCH
CORPORATION, ALL OF WHICH WERE PRESUMED TO BE SMALL BUSINESS CONCERNS.
AN ADDITIONAL PROPOSAL WAS SUBSEQUENTLY RECEIVED FROM EVANS REAMER AND
MACHINE CO., WHICH WAS DETERMINED TO BE A WHOLLY OWNED SUBSIDIARY OF
LEMPCO PRODUCTS. AT THE APPROXIMATE TIME THAT PROPOSALS WERE RECEIVED
AT THE ORDNANCE AMMUNITION COMMAND, IT WAS DISCOVERED THAT LEMPCO
PRODUCTS DID NOT QUALIFY AS SMALL BUSINESS. AFTER AN EVALUATION OF THE
VARIOUS PROPOSALS, IT WAS DETERMINED BY THE CONTRACTING OFFICER, AND
CONCURRED IN BY THE SMALL BUSINESS ADMINISTRATION REPRESENTATIVE, THAT
IT WAS IN THE INTEREST OF THE GOVERNMENT TO WITHDRAW THE JOINT
DETERMINATION OF TOTAL SET ASIDE FOR SMALL BUSINESS. THIS WITHDRAWAL
ACTION WAS DEEMED TO BE NECESSARY BECAUSE OF THE WIDE PRICE DIFFERENTIAL
BETWEEN LEMPCO PRODUCTS, INC., AND YOUR COMPANY.
IT IS THE POLICY OF THE DEPARTMENT OF THE ARMY THAT A FAIR PROPORTION
OF THE TOTAL PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES FOR THE
ARMY WILL BE PLACED WITH SMALL BUSINESS CONCERNS. THE PROCEDURES FOR
CARRYING OUT THIS POLICY ARE CONTAINED IN ARMY REGULATIONS NO. 715-3,
DATED FEBRUARY 29, 1956. PARAGRAPH 10C (4) OF THOSE REGULATIONS
SPECIFICALLY PROVIDES THAT IN ANY CASE WHERE THE CONTRACTING OFFICER
CONSIDERS THAT A CONTRACT CANNOT BE MADE WITH A SMALL BUSINESS CONCERN
WITHOUT DETRIMENT TO THE GOVERNMENT'S INTEREST, (E.G., BECAUSE OF
UNREASONABLE PRICE) THE CONTRACTING OFFICER MAY INITIATE WITHDRAWAL OF
THE SET-ASIDE. SINCE A WIDE PRICE DIFFERENTIAL EXISTED BETWEEN YOUR BID
AND THAT OF LEMPCO PRODUCTS, INC., THE CONTRACTING OFFICER WAS
AUTHORIZED, WITH THE CONCURRENCE OF THE SMALL BUSINESS ADMINISTRATION,
TO WITHDRAW THE SET-ASIDE UNDER THE AUTHORITY CONTAINED IN AR 715-3,
PARAGRAPH 10C (4).
WITH REGARD TO YOUR STATEMENT THAT THERE WAS AN UNJUSTIFIABLE
EVALUATION OF GOVERNMENT-OWNED TOOLING, THE DEPARTMENT OF THE ARMY HAS
REPORTED THAT IN ACCORDANCE WITH ITEM NO. 8 OF THE REQUEST FOR PROPOSAL,
THE OFFEROR WAS REQUESTED TO INCLUDE IN HIS QUOTED UNIT PRICE THE COST
OF SPECIAL TOOLING, SUCH TOOLING BEING DEFINED FOR OFFEROR IN A SPECIAL
CLAUSE ATTACHED AS AN EXHIBIT TO THE PROPOSAL. IN ADDITION, OFFEROR WAS
REQUIRED TO FURNISH AN ITEMIZED LIST OF SUCH TOOLING AND SHOW ITS TOTAL
COST AS A SEPARATE ITEM ON DD FORM'S 633 WHICH WERE ALSO ATTACHED AS
EXHIBITS TO THE PROPOSAL. THE DEPARTMENT OF THE ARMY FURTHER REPORTS AS
FOLLOWS:
"IN RESPONSE, THE GIBBS MANUFACTURING AND RESEARCH CORPORATION MADE
THE FOLLOWING ENTRIES WITHIN THEIR SUBMITTED PROPOSAL RELATIVE TO
TOOLING:
TABLE
FORM ENTRY DD FORM 746-1
OFFEROR INDICATED THE TOTAL COST OF
"TOOLING-DD-633 AND OAC-170" AS A
SEPARATE ITEM IN LIEU OF INCLUDING
SAME IN UNIT PRICE. DD FORM 633
OFFEROR INDICATED IN LINE 24 AS AN
ITEM OF COST THE "SPECIAL TOOLING
COST FROM REVERSE SIDE OF FORM," THE
REVERSE SIDE INDICATING AN "ANALYSIS
OF TOTAL ESTIMATED COST OF SPECIAL
TOOLING.' IN ADDITION, OFFEROR
INDICATED IN LINE 25 THE "UNIT
SELLING PRICE INCLUDING SPECIAL
TOOLING" WHICH WAS CONSIDERED IN THE
GOVERNMENT'S EVALUATION AS OFFEROR'S
BASIC UNIT CONTRACT PRICE. OAC FORM 170
OFFEROR CHANGED TITLE BLOCK NO. 15
OF FORM "COST PER MACH. WITH (1) SET
OF TOOLING" TO READ "COST (1) SET OF
TOOLING.' THE TOTAL COST OF TOOLING
INDICATED ON THIS FORM EQUALED THE
TOTAL AMOUNTS LISTED BY OFFEROR ON
THE ABOVE OTHER TWO FORMS.
"5. IN VIEW OF THE ABOVE ENTRIES AND THE LACK OF ANY CONTRARY
REASONS TO DO OTHERWISE, THE ORDNANCE AMMUNITION COMMAND CONSIDERED THE
OFFEROR'S QUOTED BASIC CONTRACT PRICE TO BE THE SUM OF THE QUOTED PRICE
PLUS QUOTED TOOLING PRICE INDICATED BY OFFEROR ON DD FORM 746-1. THE
QUOTED BASIC UNIT CONTRACT PRICE WAS DETERMINED BY DIVIDING THE TOTAL
BASIC CONTRACT PRICE BY THE PROPOSED CONTRACT QUANTITY. THIS METHOD WAS
ALSO UTILIZED BY THE CHICAGO ORDNANCE DISTRICT IN ITS EVALUATION OF
OFFEROR'S PROPOSAL.
"6. THE GIBBS' PROPOSAL WAS RE-EVALUATED FOR INFORMATIONAL PURPOSES
ONLY, BASED ON THE INTERPRETATION OF THE OFFEROR THAT THE REPORTED
TOOLING VALUE CONSISTED OF 90 PERCENT SCHEDULE "A" EQUIPMENT AND 10
PERCENT SPECIAL TOOLING. IF SUCH AN EVALUATION HAD BEEN COMPETITIVELY
USED, IT WOULD NOT HAVE CHANGED THE ACTION WHICH FINALLY RESULTED.
RE-EVALUATIONS WERE ALSO MADE CONSIDERING OTHER POSSIBLE COMBINATIONS OF
AWARDS BASED ON THE DIFFERENT DESIGNS. THIS INFORMATION WILL BE
FURNISHED IF REQUIRED. IN NO CASE DID SUCH RE-EVALUATIONS INDICATE A
SAVING TO ORDNANCE OVER THAT COMBINATION FINALLY SELECTED.
"7. BASED ON THE ORIGINAL PROPOSALS FOR THE LEMPCO'S DESIGN, ON 29
JUNE 1956, CONTRACT ORD-2237 WAS AWARDED DALTON FOUNDRIES, INC. (FOR A
QUANTITY OF 581,400 UNITS AT A COST OF $1,016,868.60) AND ON 30 JUNE
1956, CONTRACT ORD-2231 WAS AWARDED LEMPCO PRODUCTS, INC. (FOR A
QUANTITY OF 581,400 UNITS AT A COST OF $938,030.76.). BASED ON THEIR
AWARD, LEMPCO GRANTED THE GOVERNMENT A ROYALTY-FREE, IRREVOCABLE LICENSE
TO PRACTICE, AND CAUSE TO BE PRACTICED BY OR FOR THE GOVERNMENT,
THROUGHOUT THE WORLD, THE M16E3 DESIGN.'
THE RECORD FURNISHED IN THIS INSTANCE CONTAINS NOTHING TENDING TO
INDICATE THAT THE ACTION TAKEN WAS INFLUENCED BY ANY CONSIDERATION OTHER
THAN THE BEST JUDGMENT OF THE CONTRACTING OFFICIALS CONCERNED OR THAT IT
WAS IN ANY RESPECT CONTRARY TO LAW. ACCORDINGLY, WE WOULD NOT BE
JUSTIFIED IN QUESTIONING THE AWARDS AS MADE.
B-128866, OCT. 1, 1956
TO MISS LEONIDA PANDINO:
UPON FURTHER CONSIDERATION OF YOUR CLAIM FOR A LEAVE PAYMENT ALLEGED
TO BE DUE THE ESTATE OF PORFIRIO PANDINO, YOUR FATHER, A FORMER EMPLOYEE
OF THE NAVY DEPARTMENT, WE MUST ADVISE YOU THAT THERE IS NO LEGAL BASIS
FOR THE PAYMENT SOUGHT.
THE LEAVE AFFORDED GOVERNMENT EMPLOYEES AT THE TIME OF YOUR FATHER'S
DEATH, FEBRUARY 1942, WAS NOT A MONETARY ALLOWANCE IN ADDITION TO
COMPENSATION, BUT A PRIVILEGE OF BEING ABSENT FROM DUTY WITHOUT LOSS OF
PAY. THE PRIVILEGE OF LEAVE WAS PERSONAL TO THE EMPLOYEE, AND DID NOT
SURVIVE HIS DEATH. NO RIGHTS THEREFORE ACCRUED TO THE ESTATE OF A
DECEASED EMPLOYEE BECAUSE OF LEAVE TO THE EMPLOYEE'S CREDIT. IT WAS NOT
UNTIL THE PASSAGE OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, THAT
PAYMENT FOR LEAVE TO THE CREDIT OF A DECEASED EMPLOYEE WAS AUTHORIZED.
THAT ACT, HOWEVER, DOES NOT HAVE RETROACTIVE EFFECT SO AS TO BE
APPLICABLE IN YOUR FATHER'S CASE.
ACCORDINGLY, THE SETTLEMENT OF JUNE 12, 1956, WHICH DISALLOWED YOUR
CLAIM, IS SUSTAINED.
B-128914, OCT. 1, 1956
TO WILLIAM G. LALOR, REAR ADMIRAL, U.S. NAVY, RETIRED:
REFERENCE IS MADE TO YOUR CLAIMS FOR (1) DIFFERENCE IN ACTIVE DUTY
PAY AND ALLOWANCES BETWEEN THOSE OF A REAR ADMIRAL (UPPER HALF) AND
THOSE RECEIVED BY YOU AS A REAR ADMIRAL (LOWER HALF) FOR THE PERIOD FROM
DECEMBER 16, 1952, THE DATE ON WHICH YOU COMPLETED TWO YEARS OF ACTIVE
DUTY DURING THE STATE OF NATIONAL EMERGENCY, TO JUNE 29, 1953, AND (2)
DIFFERENCE IN RETIRED PAY BETWEEN THAT OF A REAR ADMIRAL (EITHER LOWER
HALF OR UPPER HALF) AND THAT RECEIVED BY YOU AS CAPTAIN FOR THE PERIOD
BEGINNING JUNE 30, 1953. YOUR CLAIM FOR ADDITIONAL ACTIVE DUTY PAY WAS
DISALLOWED BY OUR SETTLEMENT DATED MARCH 4, 1954.
THE RECORDS SHOW THAT ON DECEMBER 30, 1949, WHILE SERVING AS A
CAPTAIN IN THE U.S. NAVY, YOU REQUESTED RETIREMENT IN ACCORDANCE WITH
THE PROVISIONS OF THE ACT OF MAY 13, 1908, 35 STAT. 128, AS AMENDED, 34
U.S.C. 383, WHICH PROVIDES THAT WHEN AN OFFICER OF THE NAVY HAS BEEN 30
YEARS IN THE SERVICE, HE MAY, UPON HIS OWN APPLICATION, IN THE
DISCRETION OF THE SECRETARY OF THE NAVY, BE RETIRED FROM ACTIVE SERVICE
AND PLACED UPON THE RETIRED LIST WITH THREE-FOURTHS OF THE HIGHEST PAY
OF HIS GRADE. YOU FURTHER REQUESTED THAT, UPON RETIREMENT, YOU BE
ADVANCED TO THE RANK OF REAR ADMIRAL ON THE RETIRED LIST IN ACCORDANCE
WITH SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT/874.
AS AMENDED BY SECTION 522 OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 835, 34 U.S.C. 410N. SECTION 412 (A) OF THE FORMER ACT ORIGINALLY
PROVIDED IN PERTINENT PART THAT:
"ALL OFFICERS OF THE NAVY, MARINE CORPS, AND THE RESERVE COMPONENTS
THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR THEIR PERFORMANCE OF DUTY
IN ACTUAL COMBAT BY THE HEAD OF THE EXECUTIVE DEPARTMENT UNDER WHOSE
JURISDICTION SUCH DUTY WAS PERFORMED, WHEN RETIRED, EXCEPT OFFICERS ON A
PROMOTION LIST WHO MAY BE RETIRED FOR PHYSICAL DISABILITY, SHALL, UPON
RETIREMENT, BE PLACED UPON THE RETIRED LIST WITH THE RANK OF THE NEXT
HIGHER GRADE THAN THAT IN WHICH SERVING AT THE TIME OF RETIREMENT AND
WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE GRADE IN WHICH SERVING
AT THE TIME OF RETIREMENT AND THE GRADE IN WHICH SERVING AT THE TIME OF
RETIREMENT SHALL BE CONSTRUED TO MEAN THE HIGHEST GRADE IN WHICH SO
SERVING WHETHER BY VIRTUE OF PERMANENT OR TEMPORARY APPOINTMENT THEREIN:
PROVIDED, THAT ALL OFFICERS HERETOFORE AND HEREAFTER HOLDING RANK OR
GRADE ON THE RETIRED LIST ABOVE THAT OF CAPTAIN IN THE NAVY OR COLONEL
IN THE MARINE CORPS SOLELY BY VIRTUE OF SUCH COMMENDATION, IF HEREAFTER
RECALLED TO ACTIVE DUTY, MAY, IN THE DISCRETION OF THE SECRETARY OF THE
NAVY, BE SO RECALLED EITHER IN THE RANK OR GRADE TO WHICH THEY WOULD
OTHERWISE BE ENTITLED HAD THEY NOT BEEN ACCORDED HIGHER RANK OR GRADE BY
VIRTUE OF SUCH COMMENDATION, OR IN THE RANK OR GRADE HELD BY THEM ON THE
RETIRED LIST * * *.'
THE ABOVE-QUOTED PROVISIONS OF THE OFFICER PERSONNEL ACT OF 1947 WERE
AMENDED BY SECTION 522 (A) OF THE CAREER COMPENSATION ACT OF 1949 BY
DELETING THE WORDS "AND WITH THREE-FOURTHS OF THE ACTIVE-DUTY PAY OF THE
GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT.' SECTION 522 (C) OF
THE LATTER ACT, EFFECTIVE OCTOBER 1, 1949, PROVIDES IN PART THAT NOTHING
CONTAINED IN SUBSECTION (A) OF THIS SECTION SHALL BE HELD TO REDUCE THE
RETIRED PAY OF ANY OFFICER PLACED ON A RETIRED LIST PRIOR TO THE
EFFECTIVE DATE OF THIS SECTION, NOR SHALL THE PROVISIONS OF SECTION 412
(A) OF THE OFFICER PERSONNEL ACT OF 1947, AS AMENDED BY SUBSECTION (A)
OF THIS SECTION, BE CONSTRUED AS GRANTING ANY INCREASED RETIRED PAY TO
ANY PERSON BY VIRTUE OF THE HIGHER GRADE OR RANK TO WHICH SUCH PERSON IS
OR MAY BE ENTITLED TO PURSUANT TO SUCH PROVISIONS OF LAW.
YOUR CLAIM FOR ADDITIONAL PAY IS BASED ON THE ACT OF APRIL 8, 1946,
60 STAT. 86, 34 U.S.C. 428, WHICH IS AS FOLLOWS:
"ANY OFFICER OF THE RETIRED LIST OF THE NAVY OR COAST GUARD OF THE
PERMANENT GRADE OR RANK OF REAR ADMIRAL WHO IS ENTITLED TO THE PAY OF
THE LOWER HALF OF THAT GRADE AND WHO IS, HAS BEEN, OR MAY BE RECALLED TO
ACTIVE DUTY AND WHO IN TIME OF WAR OR OTHER NATIONAL EMERGENCY SERVED,
SERVES, OR MAY SERVE SATISFACTORILY ON ACTIVE DUTY FOR A PERIOD OF TWO
YEARS OR MORE IN THE GRADE OR RANK OF REAR ADMIRAL OR IN A HIGHER GRADE,
SHALL BE ENTITLED WHEN ON ACTIVE DUTY TO PAY AND ALLOWANCES OF A REAR
ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS
OF LAW TO HIGHER PAY AND ALLOWANCES, AND HE SHALL BE ENTITLED WHEN ON
INACTIVE DUTY TO RETIRED PAY EQUAL TO 75 PERCENTUM OF THE PAY OF A REAR
ADMIRAL OF THE UPPER HALF UNLESS HE IS ENTITLED UNDER OTHER PROVISIONS
OF LAW TO HIGHER RETIRED PAY OR ALLOWANCES: PROVIDED, THAT NO BACK PAY
OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED UNDER THIS SECTION PRIOR TO
APRIL 8, 1946.'
THE QUESTION OF WHAT INCREASE IN PAY, IF ANY, IS AUTHORIZED IN THE
CASE OF A NAVAL OFFICER OF A RANK OR GRADE BELOW REAR ADMIRAL WHO IS
ADVANCED UPON RETIREMENT TO THE GRADE OR RANK OF REAR ADMIRAL BECAUSE OF
BEING COMMENDED FOR PERFORMANCE OF DUTY IN ACTUAL COMBAT AND WHO
SUBSEQUENTLY SERVES TWO YEARS ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL
EMERGENCY AS DESCRIBED IN THE ACT OF APRIL 8, 1946, IS NOW BEFORE THE
COURT OF CLAIMS FOR CONSIDERATION AND DECISION. SEE MCCOLL V. UNITED
STATES, C.CLS. NO. 137-56. UNTIL A DETERMINATION BY THE COURT OF THAT
QUESTION HAS BECOME
B-128998, OCT. 1, 1956
TO SERGEANT JACK E. HOOK, 1159874, USMC:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1956, IN EFFECT
REQUESTING REVIEW OF OUR SETTLEMENT DATED JULY 24, 1956, WHICH
DISALLOWED YOUR CLAIM FOR COMMUTED RATIONS OF $1.05 A DAY FOR THE PERIOD
FROM OCTOBER 25, 1955, THROUGH JANUARY 11, 1956, INCIDENT TO SERVICE IN
THE UNITED STATES MARINE CORPS.
THE RECORDS SHOW THAT YOU WERE RECEIVING COMMUTED RATIONS AT YOUR
PERMANENT STATION, CAMP PENDLETON, CALIFORNIA, PRIOR TO REPORTING, ON
OCTOBER 24, 1955, AT THE MARINE CORPS RECRUITING DEPOT, SAN DIEGO,
CALIFORNIA, FOR FURTHER ASSIGNMENT TO TEMPORARY ADDITIONAL DUTY UNDER
INSTRUCTION IN THE YEOMAN CLASS "B" STENOGRAPHERS COURSE AT THE U.S.
NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA. YOU REPORTED AT THE
LATTER PLACE ON OCTOBER 28, 1955. YOUR TEMPORARY ADDITIONAL DUTY AT
THAT PLACE WAS COMPLETED ON JANUARY 12, 1956, AND YOU REPORTED BACK AT
YOUR PERMANENT STATION, CAMP PENDLETON, CALIFORNIA, ON THE SAME DAY.
YOU SAY THAT BOTH PRIOR TO AND DURING THE TEMPORARY ADDITIONAL DUTY
YOU LIVED AT OCEANSIDE, CALIFORNIA, AND THAT YOU DID NOT SLEEP OR EAT AT
THE U.S. NAVAL TRAINING CENTER WHILE ATTENDING THE SCHOOL IN SAN DIEGO,
BUT DROVE HOME EVERY NIGHT AND BROUGHT YOUR LUNCH FROM HOME FOR THE NOON
MEALS. YOU SAY ALSO THAT AFTER REACHING THE U.S. NAVAL TRAINING CENTER
AT SAN DIEGO, YOU REQUESTED THAT YOU BE PAID COMMUTED RATIONS BUT WERE
TOLD THAT YOU COULD CONTINUE TO RECEIVE YOUR COMMUTED RATIONS FROM CAMP
PENDLETON. IN A REPORT DATED MARCH 15, 1956, FROM THE COMMANDER, U.S.
NAVAL TRAINING CENTER, SAN DIEGO 33, CALIFORNIA, IT IS STATED THAT THE
RECORDS OF THAT COMMAND DO NOT SHOW THAT YOU APPLIED FOR COMMUTED
RATIONS OR THAT YOU WERE ISSUED A MESS PASS WHILE UNDER INSTRUCTION
THERE DURING THE PERIOD INVOLVED.
YOU WERE PAID A PER DIEM AT THE RATE OF $1 FROM OCTOBER 25, 1955,
THROUGH JANUARY 11, 1956, IN THE AMOUNT OF $79, ON VOUCHER NO. 0194,
JANUARY 1956 ACCOUNTS OF J. C. HUDOCK. YOUR PAY RECORDS FOR THE PERIOD
FROM JULY 1, 1955, TO JUNE 30, 1956, SHOW THAT YOU WERE CREDITED WITH
COMMUTED RATIONS AT THE RATE OF $1.05 A DAY FROM SEPTEMBER 1, 1955,
THROUGH JANUARY 24, 1956, IN THE AMOUNT OF $153.30, BUT THAT YOU WERE
CHECKED FOR COMMUTED RATIONS AT $1.05 A DAY FROM OCTOBER 24, 1955,
THROUGH JANUARY 12, 1956, IN THE AMOUNT OF $85.05. YOUR PAY RECORDS
ALSO SHOW A CHECKAGE OF $24 AS OVERPAYMENT OF PER DIEM AT THE RATE OF $1
FOR OCTOBER 29 AND 30, NOVEMBER 5, 6, 12, 13, 19, 20, 26 AND 27,
DECEMBER 3, 4, 10, 11, 17, 18, 24, 25, 26 AND 31, 1955, AND JANUARY 1,
2, 7, AND 8, 1956. THE LATTER CHECKAGE WAS APPARENTLY MADE ON THE BASIS
THAT ON THOSE DAYS (SATURDAYS, SUNDAYS, AND HOLIDAYS) YOU WERE WITHIN
THE LIMITS OF YOUR PERMANENT DUTY STATION AND WERE NOT AT YOUR TEMPORARY
DUTY STATION. 34 COMP. GEN. 549.
PARAGRAPH 78414, MARINE CORPS MANUAL, 1949, WHICH WAS PROMULGATED
PURSUANT TO STATUTORY AUTHORITY AND WHICH WAS IN EFFECT DURING THE
PERIOD INVOLVED, PROVIDED IN PERTINENT PART AS FOLLOWS:
"1. SUBJECT TO THE APPROVAL OF THE COMMANDING OFFICER, AN ENLISTED
PERSON (INCLUDING AN ENLISTED PERSON WITHOUT DEPENDENTS) ON PERMANENT,
TEMPORARY, OR TEMPORARY ADDITIONAL DUTY AT A STATION WHERE A GENERAL
MESS IS MAINTAINED, IS ENTITLED TO HAVE HIS RATION COMMUTED AT THE
APPLICABLE DAILY RATE. THE COMMANDING OFFICER'S APPROVAL WILL BE BASED
ON THE CONDITION THAT THE MESS OF WHICH THE ENLISTED PERSON IS A MEMBER
WILL NOT BE LEFT WITH TOO FEW MEMBERS TO PERMIT ECONOMICAL
ADMINISTRATION AS A RESULT OF APPROVAL OF THE REQUEST. ENTITLEMENT TO
COMMUTED RATIONS
COMMENCED ON THE DATE OF WRITTEN APPROVAL OF THE PERSON'S REQUEST BY
THE COMMANDING OFFICER, OR A LATER DATE IF SPECIFIED BY THE COMMANDING
OFFICER; HOWEVER, THE COMMANDING OFFICER WILL NOT APPROVE A REQUEST FOR
COMMUTATION OF RATIONS RETROACTIVELY.
"2. AN ORDER TO ADJUST ACCOUNT (NAVMC 808-SD) WILL BE SUBMITTED TO
SUBSTANTIATE THE CREDIT OF COMMUTED RATIONS AND TO TERMINATE THE CREDIT
WHEN THE AUTHORITY TO COMMUTE THE ENLISTED PERSON'S RATION IS REVOKED.
AN ORDER TO ADJUST ACCOUNT WILL ALSO BE SUBMITTED WHEN ENTITLEMENT TO
COMMUTED RATIONS CEASES FOR ANY REASON AND WHEN ENTITLEMENT RESUMES;
FOR EXAMPLE, ENTITLEMENT CEASES BY REASON OF DEPARTURE ON TEMPORARY
ADDITIONAL DUTY AND ENTITLEMENT RESUMES UPON THE ENLISTED PERSON'S
RETURN TO HIS PERMANENT DUTY STATION. CREDIT OF COMMUTED RATIONS WILL
BE ENTERED ON THE PERSON'S PAY RECORD OPPOSITE THE CAPTION "COM RATS.'
"5. AN ENLISTED PERSON IS NOT ENTITLED TO A COMMUTED RATION UNDER
THIS PARAGRAPH:
"G. WHILE HE IS ON TEMPORARY ADDITIONAL DUTY, UNLESS THE COMMANDING
OFFICER OF THE TEMPORARY ADDITIONAL DUTY STATION APPROVES THE PERSON'S
REQUEST FOR COMMUTED RATIONS.'
SINCE NO AUTHORIZATION WAS GRANTED BY THE COMMANDING OFFICER OF YOUR
TEMPORARY ADDITIONAL DUTY STATION FOR COMMUTED RATIONS FOR THE PERIOD
HERE INVOLVED, AS REQUIRED BY THE REGULATIONS, THERE IS NO PROPER BASIS
FOR PAYMENT TO YOU OF COMMUTED RATIONS FOR ANY PART OF THE PERIOD
COVERED BY YOUR CLAIM DURING WHICH YOU ARE CONSIDERED AWAY FROM YOUR
PERMANENT STATION ON TEMPORARY ADDITIONAL DUTY. HOWEVER, SINCE IT
APPEARS THAT DURING CERTAIN PERIODS OF YOUR CLAIM YOU WERE CONSIDERED AT
YOUR PERMANENT STATION AND DENIED PER DIEM ON THAT BASIS, YOU ARE
ENTITLED TO COMMUTATION OF RATIONS FOR THOSE DAYS, AND A SETTLEMENT FOR
THE AMOUNT FOUND DUE ON SUCH BASIS WILL ISSUE IN YOUR FAVOR IN DUE
COURSE.
B-129030, OCT. 1, 1956
TO MR. JOHN P. WITSIL, ATTORNEY AT LAW:
REFERENCE IS MADE TO YOUR LETTER REQUESTING RECONSIDERATION OF
SETTLEMENTS DATED JULY 13, 1956, WHEREIN JOSEPH A. SORRICK AND THE
ESTATE OF EARL WALKER WERE ALLOWED CERTAIN AMOUNTS REPRESENTING
RETROACTIVE COMPENSATION UNDER THE PROVISIONS OF THE ACT OF AUGUST 24,
1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355.
THE RECORD SHOWS THAT MR. SORRICK AND MR. WALKER WERE PLACED IN A
SUSPENSION STATUS FOR NOT MORE THAN 30 DAYS EFFECTIVE OCTOBER 15, 1953,
BECAUSE OF DELIBERATE AND WILLFUL VIOLATION OF ADMINISTRATIVE
REGULATIONS. BY NOTIFICATION OF PERSONNEL ACTION MR. SORRICK AND MR.
WALKER WERE REMOVED FROM THEIR POSITIONS EFFECTIVE NOVEMBER 13 AND
NOVEMBER 27, 1953, RESPECTIVELY. FOR THE PERIOD NOVEMBER 16 TO NOVEMBER
27, 1953, MR. WALKER WAS IN AN ANNUAL LEAVE STATUS. ON JANUARY 21 AND
JANUARY 24, 1955, MR. SORRICK AND MR. WALKER WERE RESTORED TO DUTY
EFFECTIVE NOVEMBER 14 AND NOVEMBER 28, 1953, RESPECTIVELY, AS A RESULT
OF A RECOMMENDATION BY THE CIVIL SERVICE COMMISSION STEMMING FROM A
FINDING BY THAT BODY THAT, UNDER SECTION 14 OF THE VETERANS' PREFERENCE
ACT OF 1944, 5 U.S.C. 863, THE EMPLOYEE'S REMOVAL WAS PROCEDURALLY
INVALID. THERE WAS NO PROCEDURAL DEFECT FOUND WITH REGARD TO THE
SUSPENSION ACTIONS WHICH PRECEDED THESE REMOVALS, AND THEREFORE THERE
WOULD BE NO AUTHORITY TO PAY FOR THOSE PERIODS.
BY SETTLEMENT OF JULY 13, 1956, MR. SORRICK RECEIVED COMPENSATION FOR
THE PERIODS NOVEMBER 14, 1953, THE EFFECTIVE DATE OF HIS RESTORATION TO
DUTY, TO FEBRUARY 20, 1955, AND FROM FEBRUARY 24 TO MARCH 24, 1955, THE
DATE OF HIS ULTIMATE SEPARATION FROM THE SERVICE AFTER 30 DAYS NOTICE.
HIS CLAIM IN THE AMOUNT OF $2,322 REPRESENTING ALLEGED PROPER DEDUCTIONS
IN ARRIVING AT "INTERIM NET EARNINGS," WAS DISALLOWED SINCE IT HAD NOT
BEEN SHOWN THAT THE ITEMS OF EXPENSE INVOLVED WERE ORDINARY AND
NECESSARY BUSINESS EXPENSES INCURRED IN CONNECTION WITH THE GROSS AMOUNT
REPORTED AS EARNINGS DURING THE PERIODS. BY SETTLEMENT OF JULY 13,
1956, MR. WALKER RECEIVED COMPENSATION FOR THE PERIOD NOVEMBER 28,
1953, THE EFFECTIVE DATE OF HIS REMOVAL TO FEBRUARY 19, 1955, AND FROM
FEBRUARY 23 TO MARCH 24, 1955, WHEN HE WAS SEPARATED AFTER DUE NOTICE.
IN THE MEMORANDUM TRANSMITTED WITH YOUR LETTER YOU QUESTION THE
ACTION TAKEN BY OUR OFFICE IN NOT ALLOWING COMPENSATION FOR THE PERIOD
OCTOBER 15 TO NOVEMBER 14, 1953, WHILE THE EMPLOYEES WERE SUSPENDED FROM
DUTY. IN THAT REGARD YOU CITE BAYARD VASEY V. THE UNITED STATES, 128
C.CLS. 754, AND B-121568, DATED MAY 4, 1955, 34 COMP. GEN. 568. IN
BOTH OF THOSE CASES THE EMPLOYEES WERE RESTORED TO DUTY BY ORDER OF THE
CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW
THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE
ACT OF 1944. IN THE CASES HERE UNDER CONSIDERATION THE EMPLOYEES WERE
RESTORED TO THEIR FORMER POSITIONS AS A RESULT OF A DETERMINATION BY THE
CIVIL SERVICE COMMISSION THAT THERE WAS A PROCEDURAL ERROR ONLY IN THEIR
REMOVALS AND THAT THEY WERE ENTITLED TO COMPENSATION ONLY FROM THE DATE
OF THEIR DEFECTIVE REMOVAL UNTIL THE DATE OF THEIR FINAL SEPARATION FROM
THE SERVICE. HOWEVER, THERE WAS NO PROCEDURAL DEFECT FOUND WITH REGARD
TO THE SUSPENSION PERIOD OCTOBER 15 TO NOVEMBER 14, 1953. THE
OTHER CASE CITED BY YOU, B-127039, DATED MARCH 16, 1956, 35 COMP.
GEN. 520, WOULD NOT BE APPLICABLE AS THAT CASE HAS TO DO WITH THE
RECREDITING OF ANNUAL LEAVE OF A PERSON WHO WAS RESTORED TO DUTY AFTER
BEING SUSPENDED FOR SECURITY REASONS UNDER THE ACT OF AUGUST 26, 1950.
THE LAST 30 DAYS THE CLAIMANTS WERE ON THE PAYROLL IN A PAY STATUS
CONSTITUTED THE 30-DAY ADVANCE NOTICE OF SEPARATION REQUIRED UNDER
SECTION 14 OF THE VETERANS' PREFERENCE ACT. IT HAS BEEN HELD THAT FOR
THE 30 DAYS PERIOD OF ADVANCE NOTICE PRIOR TO SEPARATION FOR CAUSE AN
EMPLOYEE IS ENTITLED TO COMPENSATION.
REGARDING THE DISALLOWANCE OF THAT PART OF MR. SORRICK'S CLAIM
REPRESENTING TRAVEL AND PER DIEM INCURRED AS A RESULT OF OTHER
EMPLOYMENT DURING HIS PERIOD OF REMOVAL YOUR ATTENTION IS INVITED TO
SECTION 162 OF THE INTERNAL REVENUE CODE OF 1954, WHICH PROVIDES IN PART
AS FOLLOWS:
"SEC. 162. TRADE OR BUSINESS EXPENSES.
(A) IN GENERAL.--- THERE SHALL BE ALLOWED AS A DEDUCTION ALL THE
ORDINARY AND NECESSARY EXPENSES PAID OR INCURRED DURING THE TAXABLE YEAR
IN CARRYING ON ANY TRADE OR BUSINESS, INCLUDING---
"/2) TRAVELING EXPENSES (INCLUDING THE ENTIRE AMOUNT EXPENDED FOR
MEALS AND LODGING) WHILE AWAY FROM HOME IN THE PURSUIT OF A TRADE OR
BUSINESS; "
WHILE THE WORD "HOME" IS NOT DEFINED IN THE INTERNAL REVENUE CODE IT
IS DEFINED IN THE INTERNAL REVENUE SERVICE PUBLICATION NO. 17, YOUR
FEDERAL INCOME TAX, 1955 EDITION, ISSUED BY THE COMMISSIONER OF INTERNAL
REVENUE, AS THE TAXPAYER'S PLACE OF BUSINESS, EMPLOYMENT, STATION, OR
POST OF DUTY. IT IS NOT LIMITED TO A PARTICULAR BUILDING OR PROPERTY
BUT INCLUDES THE ENTIRE CITY OR GENERAL AREA. A PERSON IS NOT IN A
TRAVEL STATUS AND HE IS NOT "AWAY FROM HOME" WHILE HE IS LOCATED IN THAT
PLACE EVEN THOUGH HE MAY BE AWAY FROM HIS RESIDENCE. FURTHERMORE, UNDER
THE SAME REFERENCE, COMMUTING EXPENSES AND OTHER COSTS OF TRAVEL BETWEEN
THE HOME OF A TAX PAYER AND HIS PLACE OF EMPLOYMENT OR BUSINESS ARE NOT
DEDUCTIBLE. IF A TAXPAYER PREFERS TO LIVE AT A PLACE DISTANT FROM HIS
PLACE OF BUSINESS OR EMPLOYMENT HIS EXPENSES OF TRAVELING BACK AND FORTH
ARE NOT FOR BUSINESS PURPOSES AND ARE NOT DEDUCTIBLE.
IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE ACTIONS TAKEN
WITH RESPECT TO THE CLAIMS OF MR. SORRICK AND MR. WALKER ARE CORRECT
AND, UPON REVIEW, MUST BE SUSTAINED.
B-121521, SEP. 28, 1956
TO F. E. VAN ALSTINE, ESQUIRE, UNITED STATES ATTORNEY:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1956, WITH ENCLOSURES,
RELATIVE TO THE REQUEST OF THE LAW FIRM OF FISHER AND FISHER, 1002-1004
AMERICAN BUILDING, CEDAR RAPIDS, IOWA, AS ATTORNEYS FOR ONE MR. ALFRED
WALL, FOR A RELEASE UNDER 28 U.S.C. 2410 (D) OF AN ALLEGED GOVERNMENT
LIEN ON CERTAIN REAL PROPERTY AS A RESULT OF JUDGMENT RENDERED IN FAVOR
OF THE UNITED STATES IN THE ABOVE-CAPTIONED CASE. FOR YOUR INFORMATION,
THIS MATTER, PRIOR TO RECEIPT OF YOUR LETTER WAS THE SUBJECT OF OUR
LETTER OF OCTOBER 12, 1954, B-121521, COPY ATTACHED, TO MR. FRED C.
FISHER, JR.
THE RECORD BEFORE OUR OFFICE INDICATES THAT O. G. AND LEOLA M.
HEATHMAN, HUSBAND AND WIFE, OWNED CERTAIN REAL PROPERTY IN LINN COUNTY,
IOWA. SIX JUDGMENTS WERE ENTERED AGAINST THE HEATHMANS, THE LAST, ON
JANUARY 2, 1953, BEING IN FAVOR OF THE UNITED STATES UNDER THE
ABOVE-CAPTIONED CASE. HOWEVER, PRIOR TO THE ENTERING OF THE JUDGMENT IN
FAVOR OF THE UNITED STATES, EXECUTION WAS ISSUED UNDER A JUDGMENT
ENTERED IN FAVOR OF ROY W. TAPAGER ON OCTOBER 11, 1950, AND LEVY WAS
MADE ON THIS REAL PROPERTY ON APRIL 29, 1952. THE PROPERTY WAS SOLD BY
THE SHERIFF ON JUNE 6, 1952, THE JUDGMENT CREDITOR HIMSELF BIDDING ON
THE PROPERTY AND RECEIVING THE SHERIFF'S CERTIFICATE. MR. TAPAGER
ASSIGNED THE SHERIFF'S CERTIFICATE TO MRS. L. L. FLUEGEL, WHO
SUBSEQUENTLY RECEIVED THE SHERIFF'S DEED TO THE PROPERTY. WHILE THE
CHAIN OF TITLE FOLLOWING MRS. FLUEGEL IS NOT SHOWN, IT APPEARS THAT THE
HEATHMANS MOVED OUT OF THE PROPERTY AND ABANDONED IT TO THEIR
SON-IN-LAW, ALFRED WALL, WHO IS NOW OCCUPYING AND BUYING THE PROPERTY.
TITLE 28 OF THE UNITED STATES CODE, SECTION 2410 (D), PROVIDES AS
FOLLOWS:
"/D) WHENEVER ANY PERSON HAS A LIEN UPON ANY REAL OR PERSONAL
PROPERTY, DULY RECORDED IN THE JURISDICTION IN WHICH THE PROPERTY IS
LOCATED, AND A JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE
UNITED STATES ATTACHES TO SUCH PROPERTY, SUCH PERSON MAY MAKE A WRITTEN
REQUEST TO THE OFFICER CHARGED WITH THE ADMINISTRATION OF THE LAWS IN
RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES, TO HAVE THE SAME
EXTINGUISHED. IF AFTER APPROPRIATE INVESTIGATION, IT APPEARS TO SUCH
OFFICER THAT THE PROCEEDS FROM THE SALE OF THE LIEN OF THE UNITED
STATES, OR THAT THE CLAIM OF THE UNITED STATES HAS BEEN SATISFIED OR BY
LAPSE OF TIME OR OTHERWISE HAS BECOME UNENFORCEABLE,
SUCH OFFICER SHALL SO REPORT TO THE COMPTROLLER GENERAL WHO MAY ISSUE
A CERTIFICATE RELEASING THE PROPERTY FROM SUCH LIEN.'
WE HAVE NO AUTHORITY, OF COURSE, TO ISSUE A CERTIFICATE OF RELEASE OF
A LIEN OF THE UNITED STATES EXCEPT UPON THE CONDITIONS EXPRESSLY
STIPULATED IN THE ABOVE STATUTE. 17 COMP. GEN. 180. ASIDE FROM THE
FACT THAT THE PROCEDURAL REQUIREMENTS OF THE STATUTE DO NOT APPEAR TO
HAVE BEEN MET IN THAT THE OFFICER CHARGED WITH ADMINISTRATION OF THE
LAWS UNDER WHICH THE ALLEGED GOVERNMENT LIEN AROSE HAS NOT FURNISHED THE
REPORT TO THE COMPTROLLER GENERAL REQUIRED BY THE STATUTE, IT WILL BE
OBSERVED THAT TWO OF THE NECESSARY CONDITIONS STIPULATED THEREIN ARE
THAT THE APPLICANT ,HAS A LIEN" UPON THE PROPERTY, DULY FILED OF RECORD,
AND THAT A "JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE UNITED
STATES ATTACHES TO SUCH PROPERTY.' IN THE PRESENT CASE, THE APPLICANT,
MR. WALL, APPEARS TO BE THE OCCUPANT AND PURCHASER (OR OWNER) OF THE
PROPERTY AND NOT THE HOLDER OF A LIEN UPON THE PROPERTY. MOREOVER,
SINCE THE LETTER OF APRIL 25, 1956, FROM FISHER AND FISHER, COPY
FORWARDED WITH YOUR LETTER, STATES THAT THE JUDGMENT IN FAVOR OF THE
UNITED STATES, UNDER THE ABOVE-CAPTIONED CASE WAS A PERSONAL ONE ONLY,
BASED UPON A PROMISSORY NOTE, AND IN NO WAY REFERRED TO THE REAL
PROPERTY HERE INVOLVED, AND SINCE THE RECORD SHOWS THAT THE REAL
PROPERTY HAD THEN ALREADY BEEN SOLD TO SATISFY A PRIOR LIEN AND WAS NO
LONGER THE PROPERTY OF THE HEATHMANS, THERE IS CONSIDERABLE DOUBT ON THE
PRESENT RECORD THAT THE JUDGMENT IN FAVOR OF THE UNITED STATES AGAINST
THEM EVER BECAME A LIEN ON THE PROPERTY. ALSO, IF THE JUDGMENT DID
BECOME A LIEN ON THE REALTY, IT IS NOT EVIDENT HERE THAT THE LIEN WAS
NOT DISCHARGED BY OPERATION OF LAW UPON ENFORCEMENT OF THE LIEN UNDER
THE EARLIER TAPAGER JUDGMENT.
ACCORDINGLY, ON THE BASIS OF THE RECORD NOW BEFORE OUR OFFICE, WE ARE
WITHOUT AUTHORITY TO ISSUE THE RELEASE REQUESTED.
B-127577, SEP. 28, 1956
TO TEXAS AND NEW ORLEANS RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT, CLAIM
TK-598388, WHICH DISALLOWED YOUR CLAIM FOR $297.11 AS A PART OF THE
CHARGES ALLEGED TO BE DUE FOR TRANSPORTING A SHIPMENT OF 9,800 POUNDS OF
AIRPLANE PARTS, N.O.I., FROM OAKLAND, CALIFORNIA, TO HILL AIR FORCE
BASE, UTAH, FOR TRANSIT, UNDER BILL OF LADING NO. WY-4541332, JULY 9,
1954, AND THEREAFTER TRANSPORTING 5,940 POUNDS OF THIS SHIPMENT---
FORWARDED IN AUGUST 1954 ON TRANSIT BILL OF LADING NO. AF-T-33252--- TO
RANDOLPH AIR FORCE BASE, RANDOLPH FIELD, TEXAS.
YOUR OBJECTION TO THE SETTLEMENT RELATES TO THE APPLICATION OF ITEM
13 OF ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION NO. 674,
WHICH YOU ALLEGE LIMITS THE TRANSIT PRIVILEGE GRANTED THEREIN TO
SHIPMENTS ON WHICH THE SAME QUANTITY OF TRAFFIC IS SHIPPED OUTBOUND AS
WAS SHIPPED INTO THE TRANSIT POINT.
ITEM NO. 13 OF A.A.R. SECTION 22 QUOTATION NO. 674, TO WHICH YOU
REFER, IS ENTITLED "INBOUND AND OUTBOUND SHIPMENTS--- QUANTITY AND
CHARACTER--- TONNAGE CREDITS," AND STATES THAT "EXCEPT AS OTHERWISE
PROVIDED IN THIS ITEM, THE OUTBOUND SHIPMENT FROM THE TRANSIT POINT MUST
CONSIST OF THE SAME QUANTITY AND CHARACTER OF TRAFFIC AS THE INBOUND
SHIPMENT.' PARAGRAPHS (D) THROUGH (G) OF ITEM 13 CONTAIN EXCEPTIONS TO
THE GENERAL PROVISION CONCERNING THE QUANTITY OF THE INBOUND AND
OUTBOUND SHIPMENTS, AND PARAGRAPHS (E) AND (F) APPEAR TO BE PERTINENT IN
THIS CASE. HERE THE ACTUAL TRANSIT WEIGHT BOTH INBOUND AND OUTBOUND WAS
LESS THAN THE CARLOAD MINIMUM WEIGHT AND THE ACTUAL TRANSIT WEIGHT OF
THE OUTBOUND SHIPMENT IS LESS THAN THE ACTUAL TRANSIT WEIGHT OF THE
INBOUND SHIPMENT.
ACCORDINGLY, OUR TRANSPORTATION DIVISION WILL RECOMPUTE THE CHARGES
ON THIS SHIPMENT GIVING CONSIDERATION TO ALL OF THE PERTINENT EXCEPTIONS
TO THE GENERAL PROVISIONS OF ITEM 13 OF QUOTATION NO. 674, AND YOU WILL
BE INFORMED OF SUCH CHANGES IN THE SETTLEMENT AS MAY BE NECESSARY.
B-127616, SEP. 28, 1956
TO ILLINOIS CENTRAL RAILROAD COMPANY:
REFERENCE IS MADE TO CORRESPONDENCE UNDER YOUR FILE AFR-20971-A-R,
RELATIVE TO THE APPLICABILITY OF MODIFIED CLASSIFICATION RULE 10, AS
PUBLISHED IN TRUNK LINE TARIFF NO. 141-B, TO A MIXED CARLOAD SHIPMENT OF
AMMUNITION AND INERT AMMUNITION COMPONENTS MOVING FROM CULBERTON,
PENNSYLVANIA, TO FORT KNOX, KENTUCKY, DURING DECEMBER 1951, UPON WHICH A
PART OF THE CHARGES WAS COMPUTED IN ACCORDANCE WITH AAR SECTION 22
QUOTATION 14-A. YOU URGE THAT THE PROVISIONS OF MODIFIED RULE 10 MAY
NOT BE EMPLOYED IN COMPUTING THE CHARGES ON A MIXED CARLOAD SHIPMENT BY
RATING PART OF THE SHIPMENT UNDER PUBLISHED TARIFF RATES AND THE OTHER
PART UNDER AAR SECTION 22 QUOTATION NO. 14-A.
AS EXAMINATION OF SECTION 22 QUOTATION NO. 14-A, AS AMENDED, REVEALS
THAT THE QUOTATION APPLIES ON SHIPMENTS OF VARIOUS TYPES OF EXPLOSIVES,
SUBJECT TO A MINIMUM CARLOAD WEIGHT OF 50,000 POUNDS.
THE AMENDED ITEM 6 OF THE QUOTATION, CAPTIONED "CHARGES AND
ALLOWANCES," PROVIDES THAT:
"IN THE ABSENCE OF SPECIFIC PROVISIONS TO THE CONTRARY IN THIS
QUOTATION, SHIPMENTS MADE HEREUNDER ARE SUBJECT TO ALL CHARGES AND ALL
ALLOWANCES FOR OR IN RESPECT OF DIVERSION, RECONSIGNMENT, DEMURRAGE,
SWITCHING, AND TO ALL OTHER PRIVILEGES, CHARGES AND RULES WHICH IN ANY
WAY INCREASE OR DECREASE THE AMOUNT TO BE PAID ON ANY SHIPMENT OR WHICH
INCREASE OR DECREASE THE VALUE OF THE SERVICE AS PROVIDED IN APPLICABLE
TARIFFS ON FILE WITH THE INTERSTATE COMMERCE COMMISSION, OR BY SECTION
22 QUOTATIONS, WITHOUT, IN ANY CASE, ANY LAND-GRANT DEDUCTION.'
THUS, ITEM 6 OF SECTION 22 QUOTATION NO. 14-A PROVIDES SPECIFICALLY
THAT, IN THE ABSENCE OF SPECIFIC PROVISIONS TO THE CONTRARY, SHIPMENTS
MADE UNDER THE QUOTATION ARE SUBJECT TO ALL PRIVILEGES, CHARGES AND
RULES WHICH IN ANY WAY INCREASE OR DECREASE THE AMOUNT TO BE PAID ON ANY
SHIPMENT, AS PROVIDED IN TARIFFS ON FILE WITH THE INTERSTATE COMMERCE
COMMISSION.
TRUNK LINE TERRITORY TARIFF BUREAU FREIGHT TARIFF NO. 141-B, AGENT
BOIN'S I.C.C. NO. A-838, AS AMENDED BY SUPPLEMENT 145, PROVIDES IN ITEM
50000C, UNDER THE CAPTION "EXCEPTIONS TO RULE 10--- MIXED CARLOADS," AS
FOLLOWS:
"EXCEPT AS OTHERWISE PROVIDED, WHEN A NUMBER OF ARTICLES FOR WHICH
THE SAME OR DIFFERENT RATINGS OR RATES ARE PROVIDED WHEN IN STRAIGHT
CARLOADS ARE SHIPPED AT ONE TIME BY ONE CONSIGNOR TO ONE CONSIGNEE AND
DESTINATION, IN A CARLOAD * * * THEY WILL BE CHARGED AT THE ACTUAL OR
AUTHORIZED ESTIMATED WEIGHT AND AT THE STRAIGHT CARLOAD CLASS OR
COMMODITY RATE * * * APPLICABLE TO EACH ARTICLE, * * *. THE CARLOAD
MINIMUM WEIGHT WILL BE THE HIGHEST PROVIDED FOR ANY ARTICLE IN THE MIXED
CARLOAD, AND ANY DEFICIT IN THE MINIMUM WEIGHT WILL BE CHARGED FOR AT
THE HIGHEST CARLOAD RATING OR RATE APPLICABLE TO ANY ARTICLES IN THE
MIXED CARLOAD.'
THIS TARIFF ITEM, PROVIDING A BASIS FOR THE COMPUTATION OF
TRANSPORTATION CHARGES ON A MIXED CARLOAD SHIPMENT, SEEMS CLEARLY TO
GRANT A PRIVILEGE--- OR AUTHORIZE THE APPLICATION OF A RULE--- WHICH
DECREASES THE AMOUNT WHICH OTHERWISE WOULD BE PAYABLE ON THE SHIPMENT
INVOLVED IN THIS CASE AND, THEREFORE, TO BE ONE OF THE PRIVILEGES OR
RULES CONTEMPLATED BY ITEM 6 OF SECTION 22 QUOTATION NO. 14-A. SINCE NO
SPECIFIC PROVISIONS TO THE CONTRARY HAVE BEEN FOUND IN THE QUOTATION, IT
SEEMS THAT THE USE OF THE MIXED CARLOAD RULE IS FULLY AUTHORIZED BY
SECTION 22 QUOTATION NO. 14-A. IT IS FOR NOTING, ALSO, THAT THE MIXED
CARLOAD RULE QUOTED ABOVE IS NOT RESTRICTED IN ITS APPLICATION TO RATES
ON FILE WITH THE INTERSTATE COMMERCE COMMISSION.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF
YOUR CLAIM FOR AN ADDITIONAL ALLOWANCE OF $54.29 IS SUSTAINED.
B-128086, SEP. 28, 1956
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO LETTERS DATED JULY 24 AND SEPTEMBER 11, 1956,
WITH ENCLOSURES, FROM THE OFFICE OF THE CHIEF, ADJUDICATIONS BRANCH,
SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO,
FURNISHING THE REPORTS REQUESTED BY OUR OFFICE RELATIVE TO AN ERROR H.
Z. ROSENBERG AND COMPANY, BUFFALO, NEW YORK, ALLEGES IT MADE IN ITS BID
ON WHICH CONTRACT NO. 34 (601) 2924 WAS AWARDED.
IN RESPONSE TO REQUEST FOR PROPOSAL NO. RFP-271-03I-1-OC-665401,
ISSUED BY THE CONTRACTING OFFICE, TINKER AIR FORCE BASE, OKLAHOMA CITY,
OKLAHOMA, H. Z. ROSENBERG AND COMPANY SUBMITTED A BID, AS AMENDED,
OFFERING TO FURNISH THE FUEL SELF SEALING COUPLINGS DESCRIBED UNDER ITEM
5 AND 6 AT A PRICE OF $9.51 EACH. BY TELEGRAM DATED MARCH 16, 1956, THE
COMPANY ADVISED THAT IT WAS EXTENDING THE PERIOD FOR ACCEPTANCE OF ITS
BID TO APRIL 15, 1956. BY TELEGRAM DATED APRIL 13, 1956, WHICH IT IS
REPORTED WAS NOT RECEIVED BY THE COMPANY UNTIL APRIL 16, 1956, THE
CONTRACTING OFFICER ADVISED H. Z. ROSENBERG AND COMPANY THAT ITS BID AS
TO ITEMS 5 AND 6 HAD BEEN ACCEPTED.
IT APPEARS THAT, UPON RECEIPT OF THE TELEGRAM, H. Z. ROSENBERG AND
COMPANY ADVISED THE AIR FORCE BUYER BY TELEPHONE THAT ITS BID ON ITEMS 5
AND 6 WAS ERRONEOUS, AND BY TELEGRAM DATED APRIL 16, 1956, THE
CONTRACTING OFFICER ADVISED THE COMPANY THAT THE CONTRACT PRICE OF THE
COUPLINGS COULD NOT BE INCREASED AFTER DISTRIBUTION OF THE CONTRACT. IN
A LETTER DATED APRIL 18, 1956, THE COMPANY REPEATED ITS REQUEST FOR
RELIEF UNDER THE CONTRACT.
BY LETTER DATED MAY 23, 1956, TO OUR OFFICE, H. Z. ROSENBERG AND
COMPANY REQUESTED THAT THE CONTRACT PRICE OF ITEMS 5 AND 6 BE INCREASED
FROM $9.51 TO APPROXIMATELY $24.50 EACH, IT BEING ALLEGED THAT ITS
SUPPLIER'S QUOTATION WAS ERRONEOUS IN THAT IT WAS BASED ON FURNISHING A
HYDRAULIC COUPLING RATHER THAN THE REQUIRED FUEL COUPLING. IN A LETTER
DATED JUNE 14, 1956, THE COMPANY STATED THAT THE CORRECT PRICE OF THE
REQUIRED FUEL COUPLING IS $20.95 EACH, AND THAT ITS SUPPLIER, AMNOR
AVIATION COMPANY, WAS THE EASTERN DISTRIBUTOR FOR THE AEROQUIP
CORPORATION WHICH, IT STATED, WAS THE SOLE MANUFACTURER OF THE REQUIRED
SPECIAL COUPLING. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY
FURNISHED A COPY OF A LETTER DATED MAY 23, 1956, RECEIVED FROM ITS
SUPPLIER, AMNOR AVIATION COMPANY, AND A DUPLICATE COPY OF THE ORIGINAL
QUOTATION RECEIVED FROM ITS SUPPLIER, IN WHICH THE COMPANY WAS QUOTED A
LIST PRICE OF $14 EACH LESS A DISCOUNT OF 40 PERCENT. BY LETTER DATED
JULY 25, 1956, THE COMPANY SUBMITTED A COPY OF A LETTER DATED JULY 19,
1956, RECEIVED FROM AEROQUIP CORPORATION, THE MANUFACTURER OF THE
REQUIRED COUPLING, WHICH READS, IN PART, AS FOLLOWS:
"AT THE REQUEST OF MR. BERG ENDERSEN OF AMNOR AVIATION COMPANY, WE
ARE FORWARDING THREE COPIES OF AEROQUIP STANDARD DRAWING NUMBER
O14001-S5.
"THIS STANDARD DRAWING COVERS AEROQUIP PART NUMBER 014001-S5-20D
SELF-SEALING COUPLING. WE UNDERSTAND YOU HAVE 900 PIECES OF THIS PART
ON ORDER THROUGH OUR DISTRIBUTOR, AMNOR AVIATION COMPANY, MAMARONECK,
NEW YORK.
"IN ORDER TO CLARIFY THE CONFUSION SURROUNDING THE CORRECT PRICE FOR
THIS PART, WE WOULD LIKE TO STATE THAT THE ESTABLISHED LIST PRICE IS
$29.86 EACH. IN ADDITION, OUR NET PRICE TO AMNOR AVIATION COMPANY IS
$14.93 EACH.
"WE HOPE THAT THIS INFORMATION WILL HELP YOU IN YOUR NEGOTIATIONS
WITH THE FINANCE DEPARTMENT OF THE U.S. GOVERNMENT IN WASHINGTON, D.C.
"IT IS INDEED UNFORTUNATE THAT THE MISUNDERSTANDING REGARDING THE
CORRECT PRICE OF THIS PART HAS ARISEN. HOWEVER, AS YOU CAN SEE FROM THE
PRICES MENTIONED, THE PRICE QUOTED TO YOU BY OUR DISTRIBUTOR WAS IN
ERROR AND AS A RESULT, HE STANDS TO LOSE A CONSIDERABLE SUM OF MONEY.
"THE COUPLING IS A SPECIAL FUEL COUPLING MANUFACTURED AND SOLD
PREVIOUSLY ONLY TO REPUBLIC AVIATION CORPORATION FOR USE ON THEIR MODEL
F84F AIRPLANE. POSSIBLY, FOR THIS REASON AMNOR AVIATION DID NOT REALIZE
THE SPECIAL NATURE AND LIMITED USAGE OF THIS COUPLING.
"IN VIEW OF THE SITUATION AND THE MISUNDERSTANDING REGARDING THE
CORRECT PRICE, WE FEEL THAT THE FINANCE DEPARTMENT OF THE U.S.
GOVERNMENT SHOULD MAKE AN ADJUSTMENT IN YOUR CONTRACTED PRICE.'
IT IS REPORTED THAT THE TWO OTHER BIDS RECEIVED ON THE COUPLINGS
COVERED BY ITEMS 5 AND 6 WERE SUBMITTED BY THE AEROQUIP CORPORATION AND
THE AERO-COUPLING CORPORATION WHO SPECIFIED PRICES OF $14.75 AND $14.85
EACH, RESPECTIVELY, AND THAT THESE COMPANIES ARE THE ONLY KNOWN
MANUFACTURERS OF THE REQUIRED COUPLINGS. IN VIEW OF THE DIFFERENCE
BETWEEN THE BID OF H. Z. ROSENBERG AND COMPANY OF $9.51 EACH FOR THE
COUPLINGS COVERED BY ITEMS 5 AND 6 AND THE OTHER BIDS ON THOSE ITEMS,
THE POSSIBILITY OF ERROR WAS APPARENT AND, IN THE CIRCUMSTANCES, THE BID
AS TO ITEMS 5 AND 6 SHOULD NOT HAVE BEEN ACCEPTED WITHOUT REQUESTING THE
COMPANY TO VERIFY ITS BID.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, IT IS APPARENT THAT
THE COMPANY MADE AN ERROR IN QUOTING A PRICE OF $9.51 EACH FOR ITEMS 5
AND 6. HOWEVER, IF THE BID BE CORRECTED TO THE INTENDED BID PRICE OF
$20.95 EACH, IT WILL NOT BE THE LOWEST BID ON THOSE ITEMS. IT APPEARS
FROM THE COMPANY'S LETTER OF AUGUST 14, 1956, THAT IT HAS DELIVERED THE
COUPLINGS REQUIRED UNDER ITEMS 5 AND 6 OF THE CONTRACT. ACCORDINGLY,
PAYMENT IS AUTHORIZED TO BE MADE TO H. Z. ROSENBERG AND COMPANY FOR THE
COUPLINGS WHICH HAVE BEEN DELIVERED UNDER ITEMS 5 AND 6 IN AN AMOUNT NOT
IN EXCESS OF THE NEXT LOWEST CORRECT BID ON THOSE ITEMS.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER COVERING
PAYMENT FOR ITEMS 5 AND 6.
B-128261, SEP. 28, 1956
TO MR. WILLIAM MCCRAY:
IN YOUR LETTER OF SEPTEMBER 10, 1956, YOU ASK US TO PAY YOU $65.90.
WE ARE SORRY, BUT THE LAW WHICH WE MENTIONED IN OUR PRIOR LETTERS TO
YOU WILL NOT ALLOW US TO PAY YOU THE MONEY CLAIMED.
PERHAPS MR. LEE W. WEINRICH WHO HAS WRITTEN TO US ABOUT YOUR CASE CAN
HELP YOU. SHOW MR. WEINRICH OUR LETTERS DATED MARCH 5 AND AUGUST 27,
1956. COPIES OF THESE LETTERS ARE ATTACHED FOR YOUR USE.
B-128645, SEP. 28, 1956
TO YOUNG MANUFACTURING COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1956, TO THE
ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C.,
PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER PURSUANT TO
INVITATION NO. FNW-1M-3018-A-6-14-56.
THE INVITATION WAS ISSUED BY THE FEDERAL SUPPLY SERVICE ON MAY 28,
1956. A COPY OF THE INVITATION WAS FURNISHED TO YOU BY YOUR WASHINGTON
REPRESENTATIVE. SUBSEQUENT TO THE ISSUANCE OF THE INVITATION WHICH
REQUIRED THAT THE ITEMS TO BE PROCURED THEREUNDER SHOULD BE IN
CONFORMANCE WITH GENERAL SERVICES ADMINISTRATION GENERAL SPECIFICATION
FOR BEDROOM FURNITURE, WOOD, DATED JUNE 18, 1952, IT WAS DETERMINED THAT
THE SPECIFICATION HAD BEEN SUPERSEDED A MONTH BEFORE BY INTERIM FEDERAL
SPECIFICATION AA-H-00600/GSA-FSS), HOUSEHOLD FURNITURE, WOOD.
ACCORDINGLY, SPECIAL NOTICE NO. 1 WAS ISSUED ON MAY 31, 1956, ADVISING
PROSPECTIVE BIDDERS OF THE CHANGE IN SPECIFICATIONS. BIDDERS WERE
REQUIRED TO ACKNOWLEDGE RECEIPT OF THE SPECIAL NOTICE BY SIGNING AND
RETURNING TWO COPIES WITH THEIR BIDS. THE GENERAL SERVICES
ADMINISTRATION'S RECORDS INDICATE THAT A COPY OF THE SPECIAL NOTICE WAS
SENT TO YOUR WASHINGTON REPRESENTATIVE. YOU INDICATE THAT YOU NEVER
RECEIVED THE SPECIAL NOTICE AND IN ANY CASE THE SIGNED COPIES WERE NOT
FORWARDED WITH YOUR BID IN ACCORDANCE WITH THE REQUIREMENTS.
YOUR BID, WHICH WAS LOWER THAN THE ACCEPTED BID FOR ITEMS NOS. 1 AND
3, WAS REJECTED BECAUSE IT WAS NOT ACCOMPANIED BY THE TWO SIGNED COPIES
OF THE SPECIAL NOTICE AS REQUIRED BY THE TERMS OF THAT NOTICE. YOU
CONTEND THAT YOUR BID WAS IMPROPERLY REJECTED SINCE YOU WERE AWARE OF
THE NEW SPECIFICATIONS, HAD INTENDED CONFORMING WITH THEM, AND YOUR
FURNITURE MEETS BOTH THE OLD AND NEW SPECIFICATIONS.
PAGE 3 OF THE INVITATION CLEARLY STATED THAT THE FURNITURE TO BE
SUPPLIED WOULD CONFORM TO THE SPECIFICATION DATED JUNE 18, 1952. WHEN
YOU COMPLETED THE INVITATION AND RETURNED IT IN ACCORDANCE WITH ITS
PROVISIONS, THE STIPULATION IN REGARD TO THE SPECIFICATION WAS AN
INTEGRAL PART OF YOUR BID. IN OTHER WORDS, YOUR BID CLEARLY STATED THAT
THE FURNITURE YOU PROPOSED TO SUPPLY WOULD MEET THE OLD SPECIFICATION.
THE SIGNED COPIES OF THE SPECIAL NOTICE WHICH HAD THE EFFECT OF MAKING
THE NEW SPECIFICATION APPLICABLE TO THE BIDS OF THE SUCCESSFUL BIDDERS
WERE ABSENT IN YOUR CASE.
A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF
THE GOVERNMENT CONSTITUTES AN OFFER; THE AWARD IS, IN FACT, AN
ACCEPTANCE WHICH EFFECTS A BINDING AGREEMENT BETWEEN THE CONTRACTOR AND
THE GOVERNMENT. IT IS A WELL RECOGNIZED RULE OF LAW THAT AN OFFER IS TO
BE INTERPRETED IN ACCORDANCE WITH ITS CLEAR LANGUAGE NOTWITHSTANDING
THAT THE OFFEROR (THE BIDDER) INTENDED SOMETHING ELSE OR SOMETHING IN
ADDITION. YOUR OFFER CLEARLY PROPOSED ONLY TO SUPPLY FURNITURE IN
ACCORDANCE WITH THE OLD SPECIFICATION. SINCE THE INVITATION WAS
PROPERLY AMENDED BY THE SPECIAL NOTICE TO MAKE THE LATER SPECIFICATION
APPLICABLE, YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS
OF THE GOVERNMENT. TO HAVE ACCEPTED THE BID UNDER SUCH CIRCUMSTANCES
WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS AND THE
GOVERNMENT AS WELL. THE CONTRACTING OFFICER WAS THEREFORE WITHOUT LEGAL
AUTHORITY TO ACCEPT YOUR BID.
IT IS REGRETTABLE THAT YOU HAVE NOT BEEN ON THE MAILING LIST TO
RECEIVE INVITATIONS AND AMENDMENTS THERETO ISSUED BY THE ADMINISTRATION
FOR PROCUREMENT OF ITEMS WHICH YOU MANUFACTURE. WE ARE ADVISED,
HOWEVER, THAT YOUR FIRM'S NAME WAS PLACED ON THE MAILING LIST EFFECTIVE
JULY 6, 1956. WE TRUST THAT IN THE FUTURE YOU WILL SYSTEMATICALLY
RECEIVE ALL APPROPRIATE INVITATIONS AND AMENDMENTS THERETO ISSUED BY THE
ADMINISTRATION.
B-129082, SEP. 28, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED AUGUST 24, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY (LOGISTICS), WHO REQUESTS A DECISION
WHETHER RELIEF MAY BE GRANTED TO PENN KRAUT INC., CAMBRIDGE SPRINGS,
PENNSYLVANIA, FOR AN ERROR IN BID IT ALLEGED AFTER AWARD OF CONTRACT NO.
DA 30-079-QM-17666, O.I. NY-34855-55.
BY LETTER DATED MAY 13, 1955, PENN KRAUT INC., CAMBRIDGE SPRINGS,
PENNSYLVANIA, WAS AWARDED A CONTRACT TO SUPPLY ITEM 3, 3,000 DOZEN NO.
10 CANS OF SAUERKRAUT DELIVERED F.O.B. DESTINATION, FORT WORTH, TEXAS,
AT $4.60 PER DOZEN, AND ITEM 4, 1,500 DOZEN NO. 10 CANS OF SAUERKRAUT
DELIVERED F.O.B. DESTINATION, RICHMOND, VIRGINIA, AT $4.22 PER DOZEN.
CONTRACT DA 30-079-QM-17666, O.I. NY-34855-55, WAS ASSIGNED TO THIS
PURCHASE AND FORWARDED TO THE CORPORATION FOR SIGNATURE. ON JUNE 7,
1955, THE PRESIDENT OF THE CORPORATION INFORMED THE PURCHASING AGENT BY
TELEPHONE THAT THE CORPORATION HAD MADE A MISTAKE IN THAT THE PRICE IN
ITS QUOTATION ON ITEM 3 WAS BASED ON AN ERRONEOUS COMPUTATION OF FREIGHT
COSTS. AS A RESULT OF THE ALLEGED ERROR, THE PRESIDENT WAS RELUCTANT TO
RETURN THE SIGNED CONTRACT. HOWEVER, HE RETURNED IT AFTER BEING ADVISED
THAT THE GOVERNMENT CONSIDERED A BINDING CONTRACT TO EXIST, THAT FAILURE
TO RETURN THE EXECUTED CONTRACT WOULD BE REASON TO TERMINATE THE
CONTRACT FOR DEFAULT WITH THE ASSESSMENT OF ANY RESULTING EXCESS COSTS,
AND THAT THE ALLEGED ERROR WOULD BE CONSIDERED SEPARATELY AS A CLAIM
AGAINST THE GOVERNMENT UPON RECEIPT OF A LETTER SETTING FORTH THE
CORPORATION'S POSITION.
BY LETTER DATED JUNE 22, 1955, THE CORPORATION REQUESTED AN
ADJUSTMENT IN PRICE AND STATED:
"OUR BASE PRICE F.O.B. THE FACTORY WAS FIGURED BY US AT $3.60 PER
DOZEN ON THIS ITEM NO. 3. * * * WE FIGURE THE WEIGHT AT 90 LBS. PER
DOZEN OR $1.37 PER DOZEN; PLUS $3.60 BASE PRICE. OUR BID SHOULD HAVE
BEEN $4.97 PER DOZEN F.O.B. FT. WORTH, TEXAS.'
THE ALLEGED ORIGIN PRICE OF $3.60 PER DOZEN IS CONSISTENT WITH THE
UNIT BASE PRICE OF $3.58 PER DOZEN FOR A SIMILAR ITEM UNDER A CONTRACT
WITH THIS SAME CONTRACTOR DATED MARCH 2, 1955, AND THE ALLEGED FREIGHT
RATE IS CONSISTENT WITH THE APPLICABLE TARIFF RATE OF $1.35 PER CWT.
WHILE THE ERROR THUS MAY HAVE BEEN BONA FIDE, IT WAS NOT SO OBVIOUS THAT
THE CONTRACTING OFFICER SHOULD HAVE DISCOVERED IT PRIOR TO AWARD, SINCE
THE BIDDER'S QUOTATION WAS NOT OUT OF LINE WITH THE OTHER BIDS RECORDED
ON THE NATIONAL SUMMARY PREPARED BY THE CHICAGO MARKET CENTER AND,
MOREOVER, THERE WAS NO DUTY ON THE PART OF THE CONTRACTING OFFICER TO
CHECK THE FREIGHT RATES TO THE VARIOUS DESTINATIONS WHEN THE BID WAS
REQUIRED TO BE SUBMITTED ON AN F.O.B. DESTINATION BASIS.
THE RESPONSIBILITY FOR PREPARATION OF A BID IS UPON THE BIDDER, SINCE
THE GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS FROM AN
IMPROVIDENT QUOTATION. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V.
UNITED STATES, 100 C.CLS. 120, 163. THE MISTAKE WAS DUE TO THE BIDDER'S
CARELESSNESS, NEGLIGENCE OR OVERSIGHT; IT WAS NOT INDUCED BY THE
GOVERNMENT, AND THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER
SUSPECT THAT THE QUOTATION WAS NOT MADE AS INTENDED. SEE GRYMES V.
SANDERS, ET AL., 93 U.S. 55, 61; AND 3 WILLISTON ON SALES 654.
THEREFORE, THE GOOD FAITH ACCEPTANCE 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; AND AMERICAN
SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE BIDDER
IS NOT ENTITLED TO ANY REDRESS FOR THE CONSEQUENCES OF ITS UNILATERAL
MISTAKE. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249,
259; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND 3
WILLISTON ON SALES 656.
ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO,
THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THE MATTER.
THE ENCLOSURES RECEIVED WITH THE LETTER OF AUGUST 24, ARE RETURNED
HEREWITH.
B-129149, SEP. 28, 1956
TO THE SECRETARY OF THE AIR FORCE:
YOUR LETTER OF AUGUST 31, 1956, REQUESTS OUR DECISION WHETHER A
FACILITY KNOWN AS BOEING AIRPLANE COMPANY PLANCOR 1577, SEATTLE,
WASHINGTON, MAY BE TRANSFERRED FROM THE RECONSTRUCTION FINANCE
CORPORATION TO THE DEPARTMENT OF THE AIR FORCE, WITHOUT REIMBURSEMENT
UNDER THE AUTHORITY OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES
ACT OF 1949, 63 STAT. 377, AS AMENDED BY THE ACT OF JULY 12, 1952, 66
STAT. 593.
YOU STATE THAT YOUR DEPARTMENT IS PREPARED TO PROVIDE THE FOLLOWING
CERTIFICATIONS REQUIRED BY GSA REGULATION 2-IV-202.07 (B) TO JUSTIFY THE
TRANSFER WITHOUT REIMBURSEMENT:
"/A) THAT THIS DEPARTMENT HAS A NEED FOR THE PROPERTY TO CARRY ON AN
APPROVED PROGRAM;
"/B) THAT THE ACQUISITION OF THE PROPERTY CANNOT BE FINANCED FROM
AVAILABLE FUNDS;
"/C) THAT ACQUISITION AND USE OF THE PROPERTY WOULD NOT BE CONTRARY
TO THE INTENT OF CONGRESS WITH RESPECT TO SUCH ACQUISITION AND USE.'
THE CONTROL AND JURISDICTION OVER AND THE ACCOUNTABILITY FOR THE
FACILITY WAS TRANSFERRED, PURSUANT TO THE FEDERAL PROPERTY AND
ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, BY THE RFC TO THE
DEPARTMENT OF THE AIR FORCE, BY LETTER AGREEMENT DATED JULY 3, 1952,
SUBJECT TO THE FOLLOWING CONDITION:
"/2) YOUR DEPARTMENT SHALL REIMBURSE THIS CORPORATION IN AN AMOUNT
EQUAL TO THE FAIR VALUE OF THE PROPERTY TRANSFERRED, AS DETERMINED BY
THE ADMINISTRATOR OF GSA, IN ACCORDANCE WITH SAID PUBLIC LAW 152
(FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949), UNLESS THE
CONGRESS OF THE UNITED STATES, PRIOR TO JULY 1, 1953, AUTHORIZES OR
APPROVES SUCH TRANSFER WITHOUT REIMBURSEMENT.'
THE TRANSFER WAS ACCEPTED ON AUGUST 4, 1952, AND ON JUNE 1, 1953, THE
ADMINISTRATOR OF GENERAL SERVICES PRESCRIBED A FAIR VALUE OF $215,000
FOR THE FACILITY. THE DATE WITHIN WHICH REIMBURSEMENT WAS TO BE MADE
HAS BEEN EXTENDED TO A DATE 60 DAYS AFTER THE DATE OF THIS DECISION.
THE LETTER AGREEMENT OF JULY 3, 1952 TRANSFERRED THE INTERESTS OF THE
RFC IN THE PROPERTY "IN ACCORDANCE WITH THE FEDERAL PROPERTY AND
ADMINISTRATIVE SERVICES ACT OF 1949, AS IMPLEMENTED BY PUBLIC BUILDINGS
CIRCULAR NO. 1.' THE REFERRED-TO ACT AND CIRCULAR DIRECTED, AND
PRESCRIBED PROCEDURES FOR THE TRANSFER OF EXCESS AND SURPLUS PROPERTY
AND NO OTHER. MANIFESTLY, SINCE THE PROPERTY HAD BEEN REQUESTED FOR USE
BY THE DEPARTMENT OF THE AIR FORCE, IT WAS NOT SURPLUS PROPERTY WHICH IS
DEFINED IN SECTION 3 (G) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE
SERVICES ACT AS "PROPERTY NOT REQUIRED FOR THE NEEDS AND
RESPONSIBILITIES OF ALL FEDERAL AGENCIES.' ACCORDINGLY, AND CONSIDERING
THE REPORTED CIRCUMSTANCES SURROUNDING THE TRANSFER, THE PROPERTY
APPEARS, SO FAR AS THE RFC IS CONCERNED, TO HAVE BEEN EXCESS PROPERTY
EVEN THOUGH THERE MAY NOT HAVE BEEN ANY FORMAL DECLARATION TO THE GSA OF
ANY SUCH DETERMINATION HAVING BEEN MADE.
SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES
ACT OF 1949, AS AMENDED, 66 STAT. 593, PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
"/A) IN ORDER TO MINIMIZE EXPENDITURES FOR PROPERTY, THE
ADMINISTRATOR SHALL PRESCRIBE POLICIES AND METHODS TO PROMOTE THE
MAXIMUM UTILIZATION OF EXCESS PROPERTY BY EXECUTIVE AGENCIES, AND HE
SHALL PROVIDE FOR THE TRANSFER OF EXCESS PROPERTY AMONG FEDERAL AGENCIES
AND TO THE ORGANIZATIONS SPECIFIED IN SECTION 109 (F). THE
ADMINISTRATOR, WITH THE APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE
BUDGET, SHALL PRESCRIBE THE EXTENT OF REIMBURSEMENT FOR SUCH TRANSFERS
OF EXCESS PROPERTY: PROVIDED, THAT REIMBURSEMENT SHALL BE REQUIRED OF
THE FAIR VALUE, AS DETERMINED BY THE ADMINISTRATOR, OF ANY EXCESS
PROPERTY TRANSFERRED WHENEVER NET PROCEEDS ARE REQUESTED PURSUANT TO
SECTION 204 (B) OR WHENEVER EITHER THE TRANSFEROR OR THE TRANSFEREE
AGENCY (OR THE ORGANIZATIONAL UNIT AFFECTED) IS SUBJECT TO THE
GOVERNMENT CORPORATION CONTROL ACT (59 STAT. 597, 31 U.S.C. 841) * * *.'
AS STATED IN OUR DECISION OF DECEMBER 1, 1954, B-119819, TO THE
ADMINISTRATOR OF GENERAL SERVICES, THE LEGISLATIVE HISTORY OF THE 1949
ACT, AS AMENDED, INDICATES THAT THE PROVISO REQUIRING REIMBURSEMENT OF
THE FAIR VALUE OF EXCESS PROPERTY TRANSFERRED WHERE EITHER THE
TRANSFEROR OR TRANSFEREE AGENCY IS SUBJECT TO THE GOVERNMENT CORPORATION
CONTROL ACT WAS INSERTED TO MAINTAIN THE INTEGRITY OF THE CORPORATE
ACCOUNTS; THAT IS, TO PREVENT THE IMPAIRMENT OF THE CAPITAL ASSETS OF A
CORPORATION DISPOSING OF EXCESS PROPERTY OR THE UNJUST ENRICHMENT OF A
CORPORATION RECEIVING SUCH EXCESS PROPERTY. HOWEVER, THE GOVERNMENT
CORPORATIONS APPROPRIATIONS ACT, 1949, 62 STAT. 1183, 1187, CONTAINS A
PROVISO AS FOLLOWS:
"* * * PROVIDED FURTHER, THAT THE SECRETARY OF THE TREASURY IS HEREBY
AUTHORIZED AND DIRECTED TO CANCEL NOTES OF THE RECONSTRUCTION FINANCE
CORPORATION IN THE AMOUNT OF $9,313,736,531, PLUS THE INTEREST ACCRUED
THEREON SUBSEQUENT TO JUNE 30, 1947, THE FOREGOING STATED AMOUNT
REPRESENTING UNRECOVERED COSTS TO THE CORPORATION AS OF JUNE 30, 1947,
IN ITS NATIONAL DEFENSE, WAR, AND RECONVERSION ACTIVITIES, AND ANY
AMOUNTS RECOVERED BY THE CORPORATION WITH RESPECT TO THESE ACTIVITIES
SUBSEQUENT TO JUNE 30, 1947, SHALL, AFTER DEDUCTION OF RELATED EXPENSES,
BE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS: * * *"
THIS PROVISO INTENDED TO RELIEVE THE RECONSTRUCTION FINANCE
CORPORATION OF THE COSTS OF ITS WARTIME ACTIVITIES AND IT INCLUDES THE
COST OF THE FACILITY HERE IN QUESTION. THE ABOVE-QUOTED PORTION OF THE
GOVERNMENT CORPORATIONS APPROPRIATION ACT, 1949, SPECIFICALLY PROVIDES
THAT ANY AMOUNTS RECOVERED SUBSEQUENT TO JUNE 30, 1947, FROM THE
ACTIVITIES STATED THEREIN SHALL BE DEPOSITED IN THE TREASURY AS
MISCELLANEOUS RECEIPTS. THEREFORE, THE TRANSFER OF THE FACILITY TO THE
DEPARTMENT OF THE ARMY WITHOUT REIMBURSEMENT WOULD NOT IMPAIR THE
CAPITAL STRUCTURE OF THE RECONSTRUCTION FINANCE CORPORATION OR ITS
SUCCESSOR LIQUIDATING AGENCY. ALSO, WHILE IT HAS BEEN HELD THAT AGENTS
OF THE UNITED STATES HAVE NO AUTHORITY TO RELEASE OR MODIFY CONTRACTUAL
RIGHTS WHICH HAVE ACCRUED TO THE UNITED STATES IN THE ABSENCE OF PAYMENT
OF CONSIDERATION, SUCH RULE IS NOT NECESSARILY FOR APPLICATION HERE
WHERE TWO AGENCIES OF THE UNITED STATES ARE INVOLVED. SO FAR AS WE CAN
PERCEIVE, NO BENEFIT WOULD ACCRUE FROM FORCING THE DEPARTMENT OF THE AIR
FORCE TO SEEK AN APPROPRIATION TO COMPLY WITH THE 1952 LETTER AGREEMENT
WHERE IT APPEARS SUCH AMOUNT WILL IMMEDIATELY BE FOR DEPOSIT INTO THE
TREASURY, UNDER THE QUOTED PROVISION OF THE GOVERNMENT CORPORATIONS
APPROPRIATIONS ACT, 1949, AS A MISCELLANEOUS RECEIPT.
ACCORDINGLY, AND PROVIDED THAT THE ADMINISTRATOR OF GENERAL SERVICES,
WITH THE APPROVAL OF THE DIRECTOR OF THE BUDGET, WHO IS AUTHORIZED UNDER
SECTION 202 (A) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT
TO PRESCRIBE THE EXTENT OF REIMBURSEMENTS FOR SUCH TRANSFERS OF EXCESS
PROPERTY, DETERMINES SUCH TRANSFER SHOULD BE MADE WITHOUT REIMBURSEMENT,
SUCH TRANSFER WITHOUT REIMBURSEMENT WOULD APPEAR TO BE AUTHORIZED.
IT IS NOTED THAT CERTAIN OF THE ENCLOSURES TO YOUR LETTERS INDICATE
AN INTENTION TO CONSTRUCT ADDITIONAL FACILITIES ON THE LAND INVOLVED
WHICH THE RECORD SHOWS WAS LEASED FEBRUARY 5, 1944 FOR A TERM OF FIVE
YEARS WITH OPTIONS OF RENEWAL FOR THREE ADDITIONAL TERMS OF FIVE YEARS
EACH. YOU MAY WISH TO CONSIDER IN THIS CONNECTION 6 COMP. DEC. 295, 15
COMP. GEN. 761, 20 ID. 927, AND 35 ID. 715.
B-129157, SEP. 28, 1956
TO MAJOR T. A. JAMES, USMC, DISBURSING OFFICER, UNITED STATES MARINE
CORPS:
BY FIRST ENDORSEMENT OF SEPTEMBER 6, 1956, THE COMMANDANT OF THE
MARINE CORPS FORWARDED YOUR LETTER OF SEPTEMBER 5, 1956, SUBMITTING FOR
ADVANCE DECISION A VOUCHER COVERING PAYMENT OF PER DIEM AT THE RATE OF
$1.35 PER DAY FOR THE PERIOD OCTOBER 12, 1954, TO JANUARY 16, 1955, TO
MASTER SERGEANT CHARLES D. HARRIMAN, USMC.
IT APPEARS THAT THE ENLISTED MAN WAS STATIONED AT BARBERS POINT,
OAHU, T.H., AND THAT HE PERFORMED TEMPORARY DUTY OR TRAINING IN JAPAN
WITH MARINE TRANSPORT SQUADRON 152 DURING THE PERIOD INVOLVED. IT IS
REPORTED THAT BOTH GOVERNMENT QUARTERS AND MESS WERE AVAILABLE IN JAPAN
AND THAT HE HAS BEEN PAID PER DIEM FOR TRAVEL FROM HIS STATION AT
BARBERS POINT TO JAPAN, AND RETURN, ON VOUCHERS NO. 5695 AND NO. 6265
OF THE OCTOBER 1955 AND FEBRUARY 1956 ACCOUNTS OF P. J. VON TERSCH,
RESPECTIVELY. IT IS SHOWN THAT BOTH VOUCHERS WERE CERTIFIED BY THE
ENLISTED MAN'S COMMANDING OFFICER AS REQUIRED BY PARAGRAPH 5151 OF THE
JOINT TRAVEL REGULATIONS.
SECTION 303 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, AUTHORIZES PAYMENT OF PER DIEM IN AN AMOUNT NOT EXCEEDING THAT
PAYABLE FOR ORDINARY TEMPORARY DUTY, TO A MEMBER AWAY FROM HIS STATION
"ON DUTY WITH OR UNDER TRAINING FOR THE MILITARY AIR TRANSPORT SERVICE,
MARINE CORPS TRANSPORT SQUADRONS, OR FLEET LOGISTICS SUPPORT UNIT," EVEN
THOUGH ORDERS FOR SPECIFIC TRAVEL HAVE NOT BEEN ISSUED. PARAGRAPHS 5150
AND 5151 OF THE JOINT TRAVEL REGULATIONS AUTHORIZE PAYMENT OF PER DIEM
TO MEMBERS IN SUCH CIRCUMSTANCES AT THE RATES PRESCRIBED IN PARTS E AND
F, CHAPTER 4 OF SUCH REGULATIONS, AND PROVIDE THAT IF CLAIMS BY MEMBERS
ARE CERTIFIED BY THE APPROPRIATE UNIT COMMANDER, SUCH CERTIFICATIONS
WILL CONSTITUTE VALID AUTHORIZATIONS OF SUCH CLAIMS.
APPARENTLY CLAIMS OF THIS TYPE WERE NOT REGARDED ADMINISTRATIVELY AS
BEING PAYABLE PRIOR TO OUR DECISION OF DECEMBER 9, 1954, 34 COMP. GEN.
284, WHICH HELD THAT A MEMBER WAS IN A TRAVEL STATUS ENTITLING HIM TO
PER DIEM WHILE HE WAS PERFORMING TEMPORARY DUTY WITH A UNIT OF HIS OWN
DETACHMENT WHICH WAS STATIONED AT A PLACE AWAY FROM HIS POST OF DUTY.
SINCE IT APPEARS THAT SERGEANT HARRIMAN WAS AWAY FROM HIS PERMANENT DUTY
STATION AND THE CERTIFICATES ATTACHED TO VOUCHERS NO. 5695 AND NO.
6265, WHICH ARE TANTAMOUNT UNDER THE CITED PROVISION OF THE STATUTE TO
ADVANCE WRITTEN TRAVEL ORDERS, SUPPORT HIS STATEMENT THAT HE WAS
PERFORMING TEMPORARY DUTY OR TRAINING WITH MARINE TRANSPORT SQUADRON 152
WHILE IN JAPAN, PER DIEM AT THE APPLICABLE RATE PRESCRIBED IN PART F,
CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS IS PAYABLE DURING THE PERIOD
INVOLVED.
ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-129254, SEP. 28, 1956
TO THE HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 18, 1956, SUBJECT:
SALE OF THE CARGO OF THE STEAMSHIP "LEWIS LUCKENBACH" AS FOREIGN EXCESS
PROPERTY.
IT IS INDICATED IN YOUR LETTER AND THE ATTACHMENTS THERETO THAT IN
1917, THE STEAMSHIP "LEWIS LUCKENBACH" WAS SUNK BY A GERMAN SUBMARINE
OFF THE COAST OF FRANCE AND THAT THE HULL AND CARGO OF THE SHIP HAD BEEN
INSURED FOR THEIR FULL VALUE BY THE BUREAU OF WAR RISK INSURANCE. BY
PAYING THE FULL VALUE OF THE HULL AND INSURED CARGO TO THE OWNERS
THEREOF, IT IS REPORTED THE BUREAU BECAME ENTITLED BY SUBROGATION TO THE
RIGHTS OF THE OWNERS. SUBSEQUENTLY, THE VETERANS ADMINISTRATION
ACQUIRED ALL THE PROPERTY WHICH HAD BELONGED TO THE BUREAU. IT IS
FURTHER REPORTED THAT A PRIVATE CORPORATION DESIRES TO SALVAGE THE CARGO
AND HAS OFFERED TO PURCHASE ALL RIGHT, TITLE AND INTEREST OF THE
GOVERNMENT IN THE SAME FOR EITHER $14,000 IN CASH OR $1,500 CASH PLUS 10
PERCENT OF THE NET VALUE OF THE CARGO WHICH MAY BE SALVAGED. YOU STATE
THAT REPRESENTATIVES OF THE VETERANS ADMINISTRATION AND THE MARITIME
COMMISSION CONSIDER THE FORMER OFFER TO BE PREFERABLE. YOU FURTHER
STATE:
"I BELIEVE THAT IT WILL BE MOST PRACTICABLE AND ADVANTAGEOUS TO THE
GOVERNMENT TO DISPOSE OF THE INTEREST OF THE VETERANS ADMINISTRATION IN
SAID CARGO IN THE ACCEPTANCE OF THE FIRM OFFER AS REFERRED TO HEREIN.'
YOU REQUEST OUR ADVICE AS TO WHETHER, UNDER THE CIRCUMSTANCES, THE
OFFER OF $14,000 IN CASH MAY BE ACCEPTED ON THE BASIS OF A NEGOTIATED
CONTRACT.
TITLE IV OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF
1949, COVERING THE DISPOSAL OF FOREIGN EXCESS PROPERTY, 63 STAT. 397,
PROVIDES IN PERTINENT PART AS FOLLOWS:
"SEC. 401. EACH EXECUTIVE AGENCY HAVING FOREIGN EXCESS PROPERTY
SHALL BE RESPONSIBLE FOR THE DISPOSAL THEREOF: PROVIDED, THAT (A) THE
HEAD OF EACH SUCH EXECUTIVE AGENCY SHALL, WITH RESPECT TO THE
DISPOSITION OF SUCH PROPERTY, CONFORM TO THE FOREIGN POLICY OF THE
UNITED STATES * * *.
"SEC. 402. FOREIGN EXCESS PROPERTY MAY BE DISPOSED OF (A) BY SALE,
EXCHANGE, LEASE, OR TRANSFER, FOR CASH, CREDIT, OR OTHER PROPERTY, WITH
OR WITHOUT WARRANTY, AND UPON SUCH OTHER TERMS AND CONDITIONS AS THE
HEAD OF THE EXECUTIVE AGENCY CONCERNED DEEMS PROPER; BUT IN NO EVENT
SHALL ANY PROPERTY BE SOLD WITHOUT A CONDITION FORBIDDING ITS
IMPORTATION INTO THE UNITED STATES, UNLESS THE SECRETARY OF AGRICULTURE
(IN THE CASE OF ANY AGRICULTURAL COMMODITY, FOOD, OR COTTON OR WOOLEN
GOODS) OR THE SECRETARY OF COMMERCE (IN THE CASE OF ANY OTHER
PROPERTY) DETERMINES THAT THE IMPORTATION OF SUCH PROPERTY WOULD RELIEVE
DOMESTIC SHORTAGES OR OTHERWISE BE BENEFICIAL TO THE ECONOMY OF THIS
COUNTRY * * *. SUCH PROPERTY MAY BE DISPOSED OF WITHOUT ADVERTISING
WHEN THE HEAD OF THE EXECUTIVE AGENCY CONCERNED FINDS SO DOING TO BE
MOST PRACTICAL AND TO BE ADVANTAGEOUS TO THE GOVERNMENT. * * *"
YOU FURTHER STATE IN YOUR LETTER THAT THERE WERE SOME STRATEGIC AND
CRITICAL MATERIALS IN THE CARGO OF THE S.S. LEWIS LUCKENBACH BUT THAT
PURSUANT TO SECTION 6 (A) OF THE STRATEGIC AND CRITICAL MATERIALS STOCK
PILING ACT, AS AMENDED, 60 STAT. 598, A DETERMINATION HAS BEEN MADE THAT
THE MATERIALS IN THE CARGO CANNOT ECONOMICALLY BE CONVERTED TO MEET
STOCK-PILE REQUIREMENTS. ALSO, IT IS REPORTED THAT THE DEPARTMENT OF
STATE HAS APPROVED THE PROPOSED DISPOSAL SUBJECT TO CERTAIN SAFEGUARDS.
THE MATERIALS IN QUESTION APPEAR TO BE "FOREIGN EXCESS PROPERTY"
WITHIN THE MEANING OF SECTION 3 (E) AND 3 (F) OF THE FEDERAL PROPERTY
AND ADMINISTRATIVE SERVICES ACT. IN LIGHT OF THE CLEAR AUTHORITY VESTED
IN THE HEAD OF THE EXECUTIVE AGENCY BY SECTION 402 OF THE ACT TO DISPOSE
OF SUCH PROPERTY WITHOUT ADVERTISING, WE PERCEIVE NO REASON WHY THE
MATERIALS MAY NOT BE DISPOSED OF BY NEGOTIATED SALE UPON A DETERMINATION
BY YOU THAT SUCH METHOD OF SALE IS MOST PRACTICABLE AND IS ADVANTAGEOUS
TO THE GOVERNMENT, AND WE WOULD INTERPOSE NO OBJECTION TO SUCH A SALE.
B-129256, SEP. 28, 1956
TO H. R. DUCKETT, AUTHORIZED CERTIFYING OFFICER, PUBLIC HOUSING
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 18, 1956, TRANSMITTING
A VOUCHER FOR $15,784, IN FAVOR OF THE HARRIS WRECKING COMPANY, AN OHIO
CORPORATION, AND REQUESTING A DECISION AS TO WHETHER THIS AMOUNT MAY BE
USED IN PARTIAL LIQUIDATION OF SUMS NOW DUE THE GOVERNMENT FROM LEON A.
HARRIS, D/B/A THE HARRIS WRECKING COMPANY AS LIQUIDATED DAMAGES UNDER
CERTAIN SPECIFIED CONTRACTS.
IT APPEARS THAT LEON A. HARRIS, THE INDIVIDUAL TRADING AS HARRIS
WRECKING COMPANY, IS ALSO THE PRESIDENT OF THE CORPORATION, HARRIS
WRECKING COMPANY, AND THAT BOTH HARRIS AND THE CORPORATION HAVE GIVEN
1963 W. 3RD STREET, CLEVELAND, OHIO, AS THEIR BUSINESS ADDRESSES.
AS SUGGESTED IN YOUR LETTER, WE WILL REQUIRE EVIDENCE OF MR. LEON
HARRIS' STOCK INTEREST IN THE CORPORATION IN ORDER TO DETERMINE THE
QUESTION YOU HAVE PROPOUNDED. YOU SHOULD ALSO OBTAIN AND FURNISH A
DESCRIPTION OF THE PREMISES AT 1963 W. 3RD STREET, CLEVELAND, OHIO,
PARTICULARLY AS TO WHETHER THERE ARE SEPARATE OFFICES FOR THE
CORPORATION AND FOR HARRIS, OPERATING AS AN INDIVIDUAL, OR WHETHER BOTH
BUSINESS ACTIVITIES ARE CONDUCTED FROM THE SAME OFFICE. IN THIS
CONNECTION IT SHOULD BE DEFINITELY DETERMINED WHETHER THE OTHER ADDRESS
GIVEN FOR THE CORPORATION VIZ., 1898 W. 3RD STREET, CLEVELAND, OHIO, IN
THE CONTRACT DATED JULY 25, 1955, IS NOW USED EITHER BY THE CORPORATION
OR BY HARRIS AS AN INDIVIDUAL.
IN ADDITION TO THE FOREGOING INFORMATION, WE WILL APPRECIATE IT IF
YOU WILL TRANSMIT A COPY OF CONTRACT NO. OH/33057/D-1, UNDER WHICH THE
WORK COVERED BY VOUCHER NO. 57-370 WAS PERFORMED AS WELL AS A COPY OF
CONTRACT NO. IND/12131/D-1, (THE JOINT VENTURE AGREEMENT WITH WRECKING
CORPORATION OF AMERICA, AN OHIO CORPORATION, REFERRED TO). IF THE OTHER
CONTRACTS UNDER WHICH LIQUIDATED DAMAGES HAVE BEEN INCURRED AS LISTED IN
YOUR LETTER ARE SUBSTANTIALLY IDENTICAL IN THEIR TERMS AND CONDITIONS, A
COPY OF ONE SHOULD LIKEWISE BE FORWARDED HERE.
UPON RECEIPT OF THE DATA HEREINBEFORE DESCRIBED WE WILL ENDEAVOR TO
ANSWER YOUR QUESTIONS AS PROMPTLY AS PRACTICABLE.
B-86001-/S), B-89109, I-17000-694, SEP. 28, 1956
TO COLONEL HAZARD H. STAY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1956,
CONCERNING THE ACTION TAKEN BY US IN DECISION TO YOU DATED JULY 30,
1956, B-86001-/S), WHICH SUSTAINED THE PRIOR ACTION TAKEN ON YOUR
INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF IMPROPER PAYMENTS OF
INCREASED RENTAL AND SUBSISTENCE ALLOWANCES MADE TO YOU AS FOR AN
OFFICER WITH A DEPENDENT MOTHER FOR THE PERIOD AUGUST
24, 1947, TO MAY 31, 1949.
IN YOUR LETTER YOU QUESTION CERTAIN FACTS SET FORTH IN OUR DECISION
AND YOU ASK THAT YOU BE PERMITTED TO SETTLE THE INDEBTEDNESS FOR YEARS
1947 AND 1948. YOU REQUEST THAT WE "HOLD IN ABEYANCE 1949 UNTIL AT SUCH
TIME AS I HAVE ACCOMPLISHED THE NECESSARY STEPS TO PLACE CLAIM FOR
REIMBURSEMENT OF SAID SETTLEMENT.' YOU FURTHER ASK THAT WE INSTRUCT THE
AIR FORCE FINANCE CENTER, DENVER, COLORADO, TO RELEASE ALL MONEY DUE
YOU, OTHER THAN THE $169.68 WHICH WAS DUE YOU FOR TRAINING PAY, AND YOU
SAY THAT IN TURN YOU PROPOSE TO MAKE MONTHLY PAYMENTS OF $50 UNTIL
COMPLETE SETTLEMENT HAS BEEN MADE FOR 1947 AND 1948. IN ADDITION, YOU
ALSO SAY THAT YOU ARE ENTITLED TO PAYMENT OF RENTAL AND SUBSISTENCE
ALLOWANCES FOR THE PERIOD JUNE 1 TO SEPTEMBER 30, 1949.
IT WAS POINTED OUT TO YOU IN THE DECISION OF JULY 30, 1956, THAT THE
COURTS (SEE ODLIN V. UNITED STATES, 74 C.CLS. 633; WHITING V. UNITED
STATES, 80 C.CLS. 662) HAVE HELD THAT THE FACT THAT AN OFFICER'S
MONTHLY CONTRIBUTION TO HIS MOTHER WAS IN EXCESS OF HER INDEPENDENT
INCOME DOES NOT OF ITSELF ESTABLISH THE FACT THAT SHE WAS DEPENDENT ON
HIM FOR HER CHIEF SUPPORT, BUT THAT IT MUST BE SHOWN THAT HIS
CONTRIBUTION WAS REQUIRED FOR HER NECESSARY AND PROPER SUPPORT, AND THAT
IT CONSTITUTED THE CHIEF PART OF SUCH SUPPORT. IN VIEW OF THE
PROVISIONS OF THE PAY ADJUSTMENT ACT OF 1942 AND ON THE BASIS OF THE
RULES STATED IN THE CITED COURT DECISIONS, WE CONCLUDED THAT YOUR MOTHER
WAS NOT IN FACT DEPENDENT ON YOU FOR CHIEF SUPPORT DURING THE PERIOD
INVOLVED, PARTICULARLY SINCE HER INCOME FROM OTHER SOURCES ($166 AND
$352 A MONTH FOR THE YEARS 1947 AND 1948) WAS MORE, NOT LESS, THAN
ONE-HALF OF HER AVERAGE MONTHLY LIVING EXPENSE ($288). IT WAS FURTHER
POINTED OUT THAT WHILE YOUR MOTHER'S LIVING EXPENSES AMOUNTED TO $288
PER MONTH, YOUR CONTRIBUTION TO HER ($150 A MONTH) WAS NOT USED FOR HER
NECESSARY AND PROPER SUPPORT AS CONTEMPLATED BY THE LAW AND THE
ABOVE-CITED COURT CASES, BUT RATHER, APPROXIMATELY $100 A MONTH OF SUCH
CONTRIBUTION WAS DEPOSITED IN A SAVINGS ACCOUNT DURING THE PERIOD
OCTOBER 1947 TO JULY 1949.
IN ARRIVING AT YOUR MOTHER'S AVERAGE MONTHLY INCOME ($352) FROM OTHER
SOURCES FOR 1948, THERE WAS INCLUDED, CONTRARY TO YOUR BELIEF, ONLY HER
ONE-THIRD INTEREST IN THE NET PROFIT OF THE SALE OF THE TIMBER ON
PROPERTY LOCATED AT BIBB COUNTY, ALABAMA. THE RECORDS SHOW THE SALE
PRICE OF THE TIMBER AS $9,000 AND YOUR MOTHER'S REPORTED SHARE AS
$2,946.67. HER NET SHARE APPEARS TO HAVE BEEN APPROXIMATELY $2,200, AND
ON THAT BASIS THE MONTHLY SUM OF $180 FROM THAT SOURCE WAS INCLUDED IN
COMPUTING HER AVERAGE MONTHLY INCOME FOR 1948. IF SUCH SUM WERE
EXCLUDED IN COMPUTING HER INCOME FOR THAT YEAR, HER INCOME FROM OTHER
SOURCES STILL WOULD BE IN EXCESS OF ONE-HALF OF HER LIVING EXPENSES AND
WOULD EXCEED THE AMOUNT OF YOUR CONTRIBUTIONS, ESPECIALLY SINCE
APPROXIMATELY $100 OF THE AMOUNT YOU CONTRIBUTED MONTHLY WAS DEPOSITED
IN A SAVINGS ACCOUNT AND NOT USED FOR LIVING EXPENSES.
YOUR STATEMENT THAT "THE DEPOSITS TO SAVINGS ACCOUNT WERE OF
NECESSITY TO ACCUMULATE FOR A CATARACT OPERATION AND WERE USED FOR
SUCH," SEEMS TO BE INCONSISTENT WITH THE FACTS OF RECORD. IN
THE DECISION OF JULY 30, 1956, YOUR ATTENTION WAS INVITED TO A
STATEMENT THAT YOU SUBMITTED FROM A DR. KARL B. BENKWITH, MONTGOMERY,
ALABAMA, IN WHICH HE CONCLUDED THAT "CATARACT SURGERY WAS NOT ADVISED.'
THAT STATEMENT, WHICH IS DATED OCTOBER 10, 1950, CLEARLY INDICATES THAT
THE OPERATION, EVEN IF SUBSEQUENTLY PERFORMED AS YOU NOW INDICATE, HAD
NOT BEEN PERFORMED PRIOR TO SEPTEMBER 30, 1949, WHICH INCLUDES THE
ADDITIONAL PERIOD (JUNE 1 TO SEPTEMBER 30, 1949) FOR WHICH YOU ARE NOW
CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER
WITH A DEPENDENT MOTHER. CONTRIBUTIONS FOR DEPOSIT TO A SAVINGS ACCOUNT
FOR POSSIBLE FUTURE NEED IN THE EVENT OF AN OPERATION MAY NOT BE
CONSIDERED AS CONTRIBUTIONS FOR CURRENT LIVING EXPENSES OF THE
DEPENDENT.
AS WE POINTED OUT IN THE DECISION OF JULY 30, 1956, APPROXIMATELY
$100 A MONTH OF YOUR CONTRIBUTION TO YOUR MOTHER OF $150 WAS DEPOSITED
IN A JOINT SAVINGS ACCOUNT IN THE NAME OF MRS. E. W. STAY, OR
LIEUTENANT COLONEL HAZARD H. STAY, DURING THE PERIOD OCTOBER 1947 TO
JULY 19, 1949.
THAT BANK ACCOUNT FURTHER SHOWS, AS DISCLOSED BY OUR INVESTIGATIVE
REPORT, THAT SUCH DEPOSITS CONTINUED TO BE MADE AT LEAST THROUGH JANUARY
5, 1950, WITH ONLY ONE WITHDRAWAL DURING THE PERIOD IN THE AMOUNT OF
$125 MADE ON JULY 23, 1949. WHILE ADMITTING THAT YOUR MOTHER MADE THE
DEPOSITS IN QUESTION, YOU CONTEND THAT SUCH ACTION ON HER PART
NECESSITATED "ADDITIONAL EXPENSE TO ME IN PAYMENT OF CERTAIN LIVING
EXPENSES.' YOU DO NOT FURNISH ANY ADDITIONAL EVIDENCE TO SUPPORT SUCH
ALLEGATION. THE FACT THAT YOU CONTINUED TO CONTRIBUTE $150 A MONTH TO
YOUR MOTHER FOR EIGHT MONTHS AFTER THE PAYMENT OF INCREASED RENTAL AND
SUBSISTENCE ALLOWANCES WAS DISCONTINUED, AFFORDS NO PROPER BASIS FOR
ESTABLISHING DEPENDENCY WHEN IN FACT SUCH DEPENDENCY DID NOT EXIST
DURING THE PERIOD HERE INVOLVED. THE LAW AND THE CITED COURT CASES MAKE
NO PROVISION, IN DETERMINING DEPENDENCY, TO ALLOW ANTICIPATED
EXPENDITURES, AS IN YOUR CASE, THAT MAY OR MAY NOT ARISE IN THE FUTURE.
UNDER THE LAW, THE PARENT MUST BE DEPENDENT ON THE OFFICER FOR "CHIEF
SUPPORT" DURING THE SPECIFIED PERIOD THE OFFICER CLAIMS AN INCREASED
ALLOWANCE ON ACCOUNT OF SUCH DEPENDENT.
UPON REVIEW OF THE MATTER, THE CONCLUSION IS REQUIRED THAT THE RECORD
DOES NOT WARRANT CHANGING OUR DETERMINATION THAT YOUR MOTHER WAS NOT IN
FACT DEPENDENT ON YOU FOR THE CHIEF PART OF HER SUPPORT DURING THE
PERIOD AUGUST 24, 1947, TO MAY 31, 1949. ALSO, FOR THE REASONS STATED,
THERE IS NO PROPER BASIS ON THE PRESENT RECORD FOR THE ALLOWANCE OF YOUR
CLAIM FOR THE INCREASED ALLOWANCES FROM JUNE 1 TO SEPTEMBER 30, 1949.
AT THE TIME OF OUR DECISION TO YOU WE WERE NOT AWARE THAT YOU HAD
MADE AN ADDITIONAL REMITTANCE TO OUR CLAIMS DIVISION BY CHECK IN THE
AMOUNT OF $100 TO PARTIALLY LIQUIDATE YOUR INDEBTEDNESS. WE HAVE SINCE
BEEN ADVISED BY THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, THAT
ACTION HAS BEEN TAKEN BY THAT OFFICE TO HAVE YOUR TRAINING PAY ($169.68)
APPLIED AGAINST YOUR INDEBTEDNESS. ON THAT BASIS, YOUR ORIGINAL
INDEBTEDNESS OF $1,239.70, LESS $362.70, $169.68 AND $100, IS NOW
REDUCED TO $607.32. YOUR PROPOSAL TO LIQUIDATE THE INDEBTEDNESS BY
PAYMENTS OF $50 A MONTH IS SATISFACTORY AND SUCH PAYMENTS SHOULD BE
COMMENCED IMMEDIATELY.
B-118008, SEP. 27, 1956
TO JUDGE ADVOCATE GENERAL:
REFERENCE IS MADE TO LETTER OF YOUR OFFICE DATED AUGUST 7, 1956,
SIGNED BY ANTONIO S. VINLUAN, MAJOR, JAGS, CHIEF CLAIMS BRANCH, IN
EFFECT REQUESTING RECONSIDERATION OF OUR DECISION DATED JUNE 10, 1954,
B-118008, WHICH SUSTAINED THE EARLIER ACTION TAKEN IN RETURNING YOUR
CLAIM MADE IN BEHALF OF THE ESTATE OF SATURNINO GUERZON, 10 303 181, A
PHILIPPINE SCOUT, U.S. ARMY, WHO WAS KILLED IN ACTION ON FEBRUARY 2,
1942. THE CLAIM WAS RETURNED TO YOU BECAUSE THE ACT OF OCTOBER 9, 1940,
54 STAT. 1061, 31 U.S.C. 237, BARS OUR CONSIDERATION OF IT.
THE REQUEST FOR RECONSIDERATION REFERS TO OUR DECISION DATED APRIL
30, 1956, B-126763, 35 COMP. GEN. 600, IN THE CASE OF EPIFANIO ENTERIA.
IN THAT CASE WE HELD THAT ENTITLEMENT TO BENEFITS UNDER THE MISSING
PERSONS ACT DOES NOT ACCRUE UNTIL AN ADMINISTRATIVE DETERMINATION AS TO
DEATH OR OTHER STATUS IS MADE AND, THEREFORE, THE TEN-YEAR STATUTE OF
LIMITATIONS FOR CONSIDERATION OF CLAIMS FILED IN THE GENERAL ACCOUNTING
OFFICE DOES NOT BEGIN FROM THE TIME FOR WHICH PAYMENT IS CLAIMED, BUT
FROM THE DATE OF THE ADMINISTRATIVE DETERMINATION.
IN THE CASE OF SATURNINO GUERZON, THE MISSING PERSONS ACT, 50
U.S.C.APP. 1001-1015, HAD NO APPLICATION FOR THE REASON THAT THE
DECEDENT WAS KNOWN TO HAVE BEEN KILLED IN ACTION ON FEBRUARY 2, 1942,
AND WAS NEVER IN A "MISSING" STATUS. ACCORDINGLY, AN ADMINISTRATIVE
DETERMINATION AS TO THE DATE OF HIS DEATH WAS UNNECESSARY, AND THE
DECISION IN THE ENTERIA CASE (35 COMP. GEN. 600) HAS NO APPLICATION TO
HIS CASE.
THEREFORE, FOR THE REASONS STATED IN OUR DECISION OF JUNE 10, 1954,
WE ARE NOT PERMITTED TO TAKE ANY FURTHER ACTION ON THE CLAIM.
B-128943, SEP. 27, 1956
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO LETTER DATED JULY 19, 1956, AND ATTACHMENTS,
FROM THE DEPUTY ADMINISTRATOR OF VETERANS AFFAIRS, REPORTING IN
COMPLIANCE WITH GENERAL REGULATIONS NO. 84, SECOND REVISION, SUPPLEMENT
NO. 3, 31 COMP. GEN. 739, THE CONTROLS TO BE USED IN ACCOUNTING FOR
FUNDS APPROPRIATED FOR THE VETERANS ADMINISTRATION BY THE INDEPENDENT
OFFICES APPROPRIATION ACT, 1957, PUBLIC LAW 623, APPROVED JUNE 27, 1956.
THE INTERPRETATIONS OF YOUR ADMINISTRATION OF THE LANGUAGE OF THE
APPROPRIATION ACT AS IT PERTAINS TO THE LOAN GUARANTY AND THE MEDICAL
RESEARCH PROGRAMS ARE STATED IN THE ATTACHMENTS.
IT IS NOTED THAT THE ACCOUNTING TREATMENT OF LEGISLATIVE LIMITATIONS
WHICH ARE TYPIFIED BY THE LANGUAGE "NOT TO EXCEED," DIFFERS FROM THE
TREATMENT GIVEN SIMILAR LIMITATIONS IN PRIOR YEARS IN THAT THE
DESCRIPTIVE LANGUAGE "NOT TO EXCEED" IS NOT INCLUDED IN THE LIMITATION
ACCOUNTS DESCRIBED IN THE LETTER. ALTHOUGH THIS CHANGE IN DESCRIPTIVE
LANGUAGE WILL NOT PREVENT A STRICT OBSERVANCE OF THE LEGISLATIVE
CEILINGS INVOLVED, AN ACCOUNTING DISTINCTION MUST BE MADE BETWEEN THE
"NOT TO EXCEED" TYPES OF LIMITATION ACCOUNTS AND OTHER TYPES. SINCE THE
APPARENT RESULT OF THE NEW MANNER OF STATING THESE LIMITATION ACCOUNTS
IS TO TEND TO OBSCURE A DISTINCTION WHICH THE AUDITORS AND ACCOUNTANTS
MUST OBSERVE, IT IS SUGGESTED THAT THE DESCRIPTIVE LANGUAGE BE INCLUDED
IN THE LIMITATION ACCOUNTS.
ATTACHMENT "A" RELATES TO THE AMOUNT APPROPRIATED UNDER THE HEADING
"GENERAL OPERATING XPENSES" FOR THE LOAN GUARANTY PROGRAM BY THE
LANGUAGE "* * * $163,027,130, OF WHICH $17,640,042 SHALL BE AVAILABLE
FOR SUCH EXPENSES AS ARE NECESSARY FOR THE LOAN GUARANTY PROGRAM.' IT IS
STATED IN THE ATTACHMENT THAT AGAIN THIS YEAR, IT IS THE INTENT OF THE
AGENCY TO CONSIDER THE AMOUNT APPROPRIATED FOR LOAN GUARANTY ACTIVITIES
AS A MINIMUM AND NOT A MAXIMUM. REFERENCE IS MADE IN THE ATTACHMENT TO
THE VETERANS ADMINISTRATION CONTROLLER'S LETTER OF APRIL 26, 1956, TO
THE ASSISTANT DIRECTOR, CIVILIAN ACCOUNTING AND AUDITING DIVISION OF OUR
OFFICE, IN WHICH VARIOUS DATA WAS SUBMITTED TO SUPPORT YOUR
ADMINISTRATION'S VIEW WITH RESPECT TO AMOUNTS SPECIFIED FOR LOAN
GUARANTY ACTIVITIES IN PREVIOUS INDEPENDENT OFFICES APPROPRIATION ACTS,
AND IT IS STATED THAT YOUR ADMINISTRATION IS FIRMLY CONVINCED THAT THE
AMOUNT, $17,640,042, SPECIFIED IN PUBLIC LAW 623, WAS A CONTINUATION OF
CONGRESSIONAL CONCERN THAT SUFFICIENT FUNDS BE MADE AVAILABLE TO ASSURE
EFFECTIVE MANAGEMENT OF THE LOAN GUARANTY PROGRAM. IT IS FURTHER STATED
THAT THE COMPLEXITIES OF THE PROGRAM REQUIRE THAT A REASONABLE FINANCIAL
FLEXIBILITY BE MADE AVAILABLE TO THOSE CHARGED WITH THE RESPONSIBILITY
FOR ITS ADMINISTRATION, AND THAT TO CONSIDER THE AMOUNT APPROPRIATED AS
A LIMITATION WOULD HINDER ATTAINMENT OF WHAT YOUR OFFICE BELIEVES TO BE
CONGRESSIONAL OBJECTIVES.
IT IS THE GENERAL RULE THAT WHERE THERE IS A SPECIFIC APPROPRIATION
FOR A PARTICULAR PURPOSE, A GENERAL APPROPRIATION WHICH OTHERWISE MIGHT
BE CHARGED IS NOT AVAILABLE THEREFOR IN WHOLE OR IN PART. UNDER THIS
RULE THE AMOUNT OF $17,640,042 WOULD BE REGARDED AS A MAXIMUM AMOUNT TO
BE EXPENDED FOR THE LOAN GUARANTY PROGRAM. HOWEVER, THE GENERAL RULE IS
NOT REQUIRED TO BE APPLIED WHERE A DIFFERENT INTENT OF CONGRESS IS
ASCERTAINABLE. THE PROVISION IN QUESTION DID NOT APPEAR IN THE PROPOSED
APPROPRIATION LANGUAGE AS SET FORTH IN THE BUDGET FOR THE FISCAL YEAR
1957. HOWEVER, THE INDEPENDENT OFFICES APPROPRIATION BILL, 1957, H.R.
9739, AS REPORTED OUT BY THE HOUSE COMMITTEE ON APPROPRIATIONS CONTAINED
THE LANGUAGE "OF WHICH NOT LESS THAN $17,640,042 SHALL BE AVAILABLE FOR
SUCH EXPENSES AS ARE NECESSARY FOR THE LOAN GUARANTY PROGRAM.' THIS
LANGUAGE WAS DELETED IN ITS ENTIRETY FROM H.R. 9739 AS REPORTED BY THE
SENATE COMMITTEE ON APPROPRIATIONS. SUCH ACTION WAS APPARENTLY TAKEN IN
VIEW OF TESTIMONY BEFORE THE COMMITTEE BY REPRESENTATIVES OF THE
VETERANS ADMINISTRATION (PAGES 444 AND 445, SENATE HEARINGS ON THE BILL)
OBJECTING TO THE PROVISION FOR THE REASONS THAT INASMUCH AS THE
APPROPRIATION WAS AVAILABLE FOR SUCH PURPOSE, SPECIFIC LANGUAGE WAS
UNNECESSARY AND WOULD PREVENT THE USE OF THE $17,640,042 FOR OBJECTS
OTHER THAN THE LOAN GUARANTY PROGRAM. THE PROVISION WAS RESTORED BY THE
CONFEREES WITH AN AMENDMENT DELETING THE WORDS "NOT LESS THAN," AND AS
EXPLAINED IN THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE,
ACCOMPANYING THE CONFERENCE REPORT, HOUSE REPORT NO. 2396, THE LANGUAGE
WAS INSERTED TO EARMARK FUNDS FOR THE LOAN GUARANTY PROGRAM. IT MAY
REASONABLY BE CONCLUDED FROM THE FOREGOING THAT IT WAS NOT INTENDED TO
LIMIT FUNDS FOR THE LOAN GUARANTY PROGRAM BUT TO ASSURE THAT AT LEAST
THAT AMOUNT WOULD BE AVAILABLE FOR THAT PROGRAM AND WOULD NOT BE USED
FOR OTHER AUTHORIZED OPERATING EXPENSES. ACCORDINGLY, THE
INTERPRETATION OF YOUR ADMINISTRATION APPEARS PROPER AND THE GENERAL
RULE, HEREINBEFORE STATED, IS NOT FOR APPLICATION IN THIS INSTANCE.
ATTACHMENT "B" RELATES TO THE APPROPRIATION UNDER THE HEADING
"MEDICAL ADMINISTRATION AND MISCELLANEOUS OPERATING EXPENSES" AND
CONCERNS THE APPLICABILITY OF THE LIMITATION ON TRAVELING EXPENSES TO
FUNDS PROVIDED FOR MEDICAL RESEARCH. LANGUAGE PERTINENT TO THE MATTER
HERE UNDER CONSIDERATION IS AS FOLLOWS:
"FOR EXPENSES NECESSARY FOR ADMINISTRATION OF THE MEDICAL, HOSPITAL,
DOMICILIARY, SPECIAL SERVICE, CONSTRUCTION AND SUPPLY, RESEARCH, AND
EMPLOYEE EDUCATION AND TRAINING ACTIVITIES; EXPENSES NECESSARY FOR
CARRYING OUT PROGRAMS OF MEDICAL RESEARCH AND OF EDUCATION AND TRAINING
OF EMPLOYEES, AS AUTHORIZED BY LAW; NOT TO EXCEED $992,200 FOR EXPENSES
OF TRAVEL OF EMPLOYEES PAID FROM THIS APPROPRIATION * * * $20,773,800,
OF WHICH $10,000,000 SHALL BE AVAILABLE FOR MEDICAL RESEARCH.'
THE LIMITATION CONTROL FOR TRAVEL EXPENSES IS DESCRIBED IN THE DEPUTY
ADMINISTRATOR'S LETTER AS ".007 TRAVEL EXPENSES OF EMPLOYEES $1,045,400"
WITH A REFERENCE TO ATTACHMENT "B" IN WHICH IT IS EXPLAINED THAT SINCE
THE ORIGINAL BUDGET REQUEST FOR MEDICAL RESEARCH WAS INCREASED BY
SEVENTY-SIX PERCENT BY PUBLIC LAW 623, THE INCREASE OF ALL OBJECTS OF
EXPENSE INCLUDED IN THE BUDGET DOCUMENT (INCLUDING TRAVEL EXPENSE) HAS
BEEN DISTRIBUTED ON A PARALLEL BASIS. IT IS STATED IN THE ATTACHMENT
THAT YOUR ADMINISTRATION FEELS JUSTIFIED IN ASSUMING THAT CONGRESS
INTENDED THAT THE ADDITIONAL FUNDS BE DISTRIBUTED ON AN OBJECTIVE BASIS
SIMILAR TO THAT EXHIBITED IN THE BUDGET DOCUMENT. IT IS URGED THAT IT
IS DIFFICULT TO BELIEVE THAT THE INTENT WAS TO EXCLUDE TRAVEL EXPENSE
FROM SUCH A MATERIAL INCREASE SINCE IT IS VITALLY NECESSARY THAT THIS
OBJECT OF EXPENDITURE BE APPROPRIATELY CONSIDERED IN THE ADMINISTRATION
OF THE EXPANDED ACTIVITY.
IN VIEW OF THE FOREGOING, THE QUESTION HAS BEEN RAISED BY YOUR
ADMINISTRATION WHETHER IN THE ABSENCE OF A SPECIFIC PROVISION FOR
INCREASING THE MEDICAL RESEARCH TRAVEL FUNDS, ANY LIMITATION ON TRAVEL
EXPENSE WITHIN THE AMOUNT EARMARKED BY CONGRESS WAS INTENDED. IT IS
STATED THAT SHOULD THE ANSWER BE AFFIRMATIVE, YOUR ADMINISTRATION WILL
ARBITRARILY REDUCE THE TRAVEL LIMITATION FOR THE APPROPRIATION BY THE
AMOUNT BUDGETED FOR THE MEDICAL RESEARCH PROGRAM ($70,000) AND LIMIT THE
AMOUNT AVAILABLE FOR THIS OBJECT OF EXPENDITURE TO $922,200 FOR THE
REMAINING ACTIVITIES OF THE APPROPRIATION.
AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT
SHOWS THAT THE LIMITATION AMOUNT OF $992,200 INCLUDED $70,000 BUDGETED
UNDER MEDICAL RESEARCH FOR EMPLOYEE TRAVEL. (PAGES 342 AND 336 HOUSE
HEARINGS). IT IS NOTED THAT THE APPROPRIATION LANGUAGE AS PROPOSED IN
THE BUDGET FOR THE FISCAL YEAR 1957 DID NOT EARMARK AN AMOUNT FOR
MEDICAL RESEARCH, AND THAT THE AMOUNT OF $5,679,200 ESTIMATED FOR SUCH
PURPOSE WAS INCREASED TO $10,000,000 AND EARMARKED BY AN AMENDMENT
SUBMITTED ON THE FLOOR OF THE SENATE WHEN THAT BODY WAS CONSIDERING THE
APPROPRIATION BILL AS PASSED BY THE HOUSE OF REPRESENTATIVES AND AS
REPORTED OUT BY THE SENATE COMMITTEE ON APPROPRIATIONS. THE LEGISLATIVE
HISTORY OF THE AMENDMENT IS SILENT WITH RESPECT TO ANY INCREASE IN
TRAVEL EXPENSES. IT IS RECOGNIZED THAT AN ADDITIONAL AUTHORIZATION FOR
EXPENSES OF TRAVEL IN ORDER TO ADMINISTER THE EXPANDED ACTIVITY MIGHT
WELL HAVE BEEN MADE IN CONNECTION WITH SUCH A SUBSTANTIAL INCREASE IN
FUNDS FOR MEDICAL RESEARCH. HOWEVER, NO SUCH ADDITIONAL AUTHORIZATION
WAS MADE AND WE WOULD NOT BE WARRANTED, IN VIEW OF THE SPECIFIC
LIMITATION OF $992,200 ON ALL EXPENSES OF TRAVEL OF EMPLOYEES UNDER THE
APPROPRIATION "MEDICAL ADMINISTRATION AND MISCELLANEOUS OPERATING
EXPENSES," IN DISREGARDING SUCH LIMITATION AS FAR AS THE MEDICAL
RESEARCH PROGRAM, ONE OF THE OBJECTS THEREUNDER, IS CONCERNED. NEITHER
THE INCREASE IN RESEARCH FUNDS NOR THE EARMARKING OF SUCH FUNDS WOULD
CONSTITUTE A BASIS UPON WHICH TO IMPUTE AN INTENT OF CONGRESS THAT
MEDICAL RESEARCH FUNDS WERE NOT TO BE SUBJECT TO A LIMITATION APPLICABLE
TO THE ENTIRE APPROPRIATION. YOUR QUESTION IS ANSWERED ACCORDINGLY AND
THE LIMITATION CONTROL SHOULD THEREFORE BE REVISED TO CONFORM TO THE
MAXIMUM AMOUNT AUTHORIZED IN THE APPROPRIATION FOR TRAVEL EXPENSES OF
EMPLOYEES. IF YOU BELIEVE THAT THE LIMITATION ON EXPENSES OF EMPLOYEES'
TRAVEL WILL HANDICAP THE EXPANDED MEDICAL RESEARCH ACTIVITY, THE MATTER
APPEARS PROPERLY ONE FOR PRESENTATION TO CONGRESS LOOKING TOWARD A
LEGISLATIVE INCREASE IN THE TRAVEL EXPENSE LIMITATION.
B-129108, SEP. 27, 1956
TO CAPTAIN FRANK J. HEFFERNAN, USAF:
YOUR LETTER OF AUGUST 13, 1956, REQUESTS REVIEW OF OUR SETTLEMENT OF
MAY 4, 1954, WHICH DISALLOWED YOUR CLAIM FOR $32.62, REPRESENTING THE
EXCESS COST OF SHIPPING 510 POUNDS OF HOUSEHOLD
EFFECTS FROM HILL AIR FORCE BASE, OGDEN, UTAH, TO WALKER AIR FORCE
BASE, ROSWELL, NEW MEXICO, IN NOVEMBER 1949. ALSO, YOU REQUEST DECISION
AS TO WHETHER YOU ARE ENTITLED TO REIMBURSEMENT FOR YOUR SON'S TRAVEL
FROM DAYTON, OHIO, TO COLORADO SPRINGS, COLORADO, UPON PERMANENT CHANGE
OF STATION BETWEEN THOSE POINTS.
BY ORDERS ISSUED OVERSEAS ON JULY 26, 1949, YOU WERE RELIEVED FROM
ASSIGNMENT AT MUNICH, GERMANY, AND ASSIGNED TO HILL AIR FORCE BASE,
OGDEN, UTAH. THOSE ORDERS WERE AMENDED BY ORDERS DATED AUGUST 12, 1949,
TO CHANGE YOUR ASSIGNED STATION TO WALKER AIR FORCE BASE, ROSWELL, NEW
MEXICO. ON OCTOBER 6, 1949, YOUR HOUSEHOLD EFFECTS, WHICH HAD REACHED
THE NEW YORK PORT OF EMBARKATION FROM OVERSEAS, WERE SHIPPED FROM THAT
PORT TO HILL AIR FORCE BASE. THEY WERE FURTHER SHIPPED FROM THE LATTER
PLACE TO WALKER AIR FORCE BASE ON NOVEMBER 2, 1949, AT A COST TO THE
GOVERNMENT OF $32.62, WHICH AMOUNT YOU WERE REQUIRED TO REMIT. YOUR
CLAIM FOR THAT AMOUNT WAS DISALLOWED BECAUSE OF YOUR FAILURE TO NOTIFY
THE NEW YORK PORT OF EMBARKATION OF THE ORDERS CHANGING YOUR STATION
FROM HILL AIR FORCE BASE TO WALKER AIR FORCE BASE, AS REQUIRED BY
CONTROLLING REGULATIONS.
IN YOUR PRESENT LETTER YOU STATE THAT ALTHOUGH ORDERS HAD BEEN
ISSUED, YOU DID NOT RECEIVE THEM UNTIL MID-OCTOBER 1949, AND IT APPEARS
TO BE YOUR VIEW THAT YOU COULD NEITHER REQUEST SHIPMENT FROM HILL AIR
FORCE BASE NOR NOTIFY THE NEW YORK PORT OF EMBARKATION OF YOUR CHANGED
ASSIGNMENT PRIOR TO THAT TIME. IN AN EARLIER LETTER (DATED JUNE 5,
1953) YOU STATED THAT YOU DEPARTED GERMANY BY AIR ON AUGUST 10, 1949,
AND THAT WHILE ON LEAVE FOLLOWING YOUR RETURN TO THE UNITED STATES YOU
RECEIVED A TELEGRAM FROM BIGGS AIR FORCE BASE, NEW MEXICO, DIRECTING YOU
TO REPORT TO WALKER AIR FORCE BASE INSTEAD OF HILL AIR FORCE BASE. AT
THAT TIME YOU WERE RESIDING IN ROSWELL, NEW MEXICO, AND IT IS INDICATED
THAT YOU REQUESTED THE TRANSPORTATION OFFICER AT WALKER AIR FORCE BASE
TO HAVE THE SHIPMENT OF YOUR EFFECTS REROUTED FROM OGDEN TO ROSWELL.
YOU STATE THAT SINCE YOU DID NOT HAVE YOUR ORDERS, NO ACTION COULD BE
TAKEN TO EFFECT SUCH A CHANGE IN ROUTING AND THAT YOU OBTAINED A COPY OF
THE ORDERS (APPARENTLY IN OCTOBER 1949) ONLY AFTER REPEATED TELEPHONE
CALLS AND PERSONAL LETTERS TO BIGGS AIR FORCE BASE.
AT THE TIME HERE INVOLVED, THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF
MEMBERS OF THE UNIFORMED SERVICES WAS GOVERNED BY EXECUTIVE ORDER NO.
10053, DATED APRIL 20, 1949. PARAGRAPH 15B OF THAT ORDER PROVIDES THAT
IN THE EVENT THERE SHOULD BE A CHANGE IN ORDERS AFTER SHIPMENT HAS BEEN
REQUESTED, IT IS THE RESPONSIBILITY OF THE OWNER, UPON RECEIPT OF SUCH
CHANGE, TO IMMEDIATELY NOTIFY SHIPPING OFFICERS AT POINT OF ORIGIN (OR
PORT, IF ANY), AND DESTINATION, REQUESTING THAT SUCH SHIPMENT BE
DIVERTED OR RECONSIGNED TO ANY NEW DESTINATION WHICH MAY BE NECESSITATED
BY REASON OF THE CHANGE IN THE ORDERS. IT FURTHER PROVIDES THAT AFTER
SUCH NOTICE CERTIFIED COPIES OF SUCH CHANGED ORDERS WILL BE FURNISHED BY
THE OWNER UPON REQUEST.
THE RECORD SHOWS THAT BY LETTER OF SEPTEMBER 8, 1949, THE
TRANSPORTATION OFFICER AT WALKER AIR FORCE BASE FURNISHED THE
TRANSPORTATION OFFICER AT HILL AIR FORCE BASE WITH FIVE COPIES EACH OF
YOUR ORDERS OF JULY 26 AND AUGUST 12, 1949, WITH THE REQUEST THAT YOUR
HOUSEHOLD EFFECTS BE SHIPPED TO ROSWELL. SUCH ACTION UNDOUBTEDLY
RESULTED FROM YOUR REQUEST, AND NOT ONLY SERVES TO VERIFY THAT YOU KNEW
OF THE CHANGED ASSIGNMENT BUT, ALSO, THAT YOUR ORDERS WERE AT YOUR NEW
STATION LONG BEFORE YOUR EFFECTS REACHED THE PORT OF EMBARKATION.
HOWEVER, THE RECORD FURTHER CONTAINS A REPORT FROM THE PORT
TRANSPORTATION OFFICER, NEW YORK PORT OF EMBARKATION, THAT YOU DID NOT
COMMUNICATE WITH THAT OFFICE AT ANY TIME PRIOR TO OCTOBER 6, 1949.
SINCE IT SEEMS CLEAR THAT YOU WERE NOTIFIED OF THE CHANGE OF ASSIGNMENT
IN AMPLE TIME TO NOTIFY THE NEW YORK PORT OF EMBARKATION, AND THAT YOU
DID NOT DO SO, THE EXCESS COST OF A SECOND SHIPMENT OF YOUR EFFECTS MUST
BE BORNE BY YOU.
ACCORDINGLY, THE SETTLEMENT OF MAY 4, 1954, WAS CORRECT AND IS
SUSTAINED.
WITH RESPECT TO YOUR INQUIRY RELATIVE TO REIMBURSEMENT FOR YOUR SON'S
TRANSPORTATION, WE ARE WITHOUT JURISDICTION TO RENDER A DECISION
INASMUCH AS YOUR CLAIM IS NOT PENDING HERE. ON THE BASIS OF THE FACTS
DISCLOSED BY YOU IT APPEARS YOU WERE REQUIRED TO REFUND THE AMOUNT PAID
YOU FOR HIS TRAVEL FOR THE REASON THAT HIS TRAVEL TO THE NEW STATION WAS
COMPLETED BEFORE HE BECAME FIVE YEARS OF AGE. IF YOU BELIEVE SUCH
ACTION WAS INCORRECT, YOU MAY FILE A CLAIM FOR REFUND OF THAT AMOUNT.
B-120526, SEP. 26, 1956
TO SERGEANT FIRST CLASS ELBERT H. FENTRESS, RA 33 004 503:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1956, WITH
ENCLOSURES, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR
DECISION TO YOU DATED JANUARY 10, 1955, WHICH SUSTAINED THE DISALLOWANCE
OF YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN SHIPPING
YOUR HOUSEHOLD EFFECTS FROM OMAHA, NEBRASKA, TO FORT KNOX, KENTUCKY, ON
AUGUST 14, 1951.
IT WAS POINTED OUT IN OUR DECISION THAT WHEN YOUR ORDERS WERE ISSUED
ON APRIL 6, 1950, THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MILITARY
PERSONNEL AT GOVERNMENT EXPENSE WAS GOVERNED BY REGULATIONS ISSUED IN
EXECUTIVE ORDER NO. 10053, DATED APRIL 20, 1949, EFFECTIVE FEBRUARY 1,
1949, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF AUGUST 2, 1946,
60 STAT. 853. ON THE BASIS OF THE PROVISIONS OF PARAGRAPH 14 (B) OF
SUCH REGULATIONS, WHICH PROVIDED THAT SHIPMENT OF HOUSEHOLD GOODS AT
GOVERNMENT EXPENSE WAS NOT AUTHORIZED UPON REPORTING FOR DUTY ON FIRST
APPOINTMENT IN THE REGULAR SERVICES, AND SINCE FORT KNOX, KENTUCKY,
WHERE YOU WERE ASSIGNED BY ORDERS OF APRIL 6, 1950, WAS YOUR FIRST
PERMANENT DUTY STATION FOLLOWING YOUR ENLISTMENT IN THE REGULAR
SERVICES, WE CONCLUDED THAT THERE WAS NO AUTHORITY UNDER THE REGULATIONS
FOR THE PAYMENT OF YOUR CLAIM. FURTHER, IT WAS POINTED OUT THAT THE
PROVISION IN SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 815, THAT "NO PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE
UNTIL SUCH REGULATIONS HAVE BEEN ISSUED" WOULD APPEAR TO NEGATIVE ANY
IDEA THAT THE STATUTE INTENDED TO GO BACK AND GIVE REGULARS A RIGHT
UNDER THEIR ORDERS TO FIRST DUTY STATION WHICH THEY DID NOT HAVE AT THE
TIME THE ORDERS WERE ISSUED. HENCE, WE CONCLUDED THAT YOUR ORDERS OF
APRIL 6, 1950, FIXED YOUR RIGHTS UNDER THE LAWS AND THE REGULATIONS IN
EFFECT AT THAT TIME AND THAT THE JOINT TRAVEL REGULATIONS WERE NOT
EFFECTIVE RETROACTIVELY.
YOU REQUEST RECONSIDERATION OF THE MATTER ON THE BASIS OF ORDERS
DATED MAY 10, 1950, JUNE 28, 1951, AND JULY 2, 1951 (SUBMITTED BY YOU),
AND THE PROVISIONS OF PARAGRAPH 4 (B), CHANGE 1 OF THE JOINT TRAVEL
REGULATIONS DATED AUGUST 1, 1951. YOU STATE THAT THOSE ORDERS "CHANGED
MAY STATUS IN JULY 1951.'
AN EXAMINATION OF THE ORDERS SHOW THAT EACH ORDER WAS ISSUED AT
HEADQUARTERS, FORT KNOX, KENTUCKY, AND THEY PROVIDE AS FOLLOWS:
SPECIAL ORDERS NO. 130, DATED MAY 10, 1950.
"63. FENTRESS, ELBERT H. RO 33004503 (ARMY) CPL WEM MOS 0060 TOE AND
BR 6 YRS UNASG ETS APR 56 14 MOS OS SVC RTN 12 DEC 49 REL ASG (PERM
PARTY) SVC BTRY 67TH ARMD FA BN COB AND TRF FOOD SVC SCH 2128TH ASU FT
KNOX KY. EDCMR 15 MAY 50. WP 15 MAY 50 W/NO. DELAY ENROUTE.
"PCS. NO TVL. AUTH: CONCURRENCE CG 3D ARMD DIV AND CG FT KNOX KY.'
SPECIAL ORDERS NO. 171, DATED JUNE 28, 1951.
"26. CPL ELBERT H. FENTRESS RO 33004503 PRIMARY MOS 3060 RACE WHITE
COMPONENT RA TERM ENL 6 ETS APR 56 REL ASG 2128-4 FOOD SVC SCH
(OPERATING) AND REAS6 3D ARMD DIV (OPERATING). EDCMR 2 JUL 51.'
SPECIAL ORDERS NO. 183, DATED JULY 2, 1951.
"124. FENTRESS, ELBERT H. RO33004503 CPL WEM MOS 3060 TOE AND BR 6
YRS UNASG ETS APR 56 PROFILE 211111 TRF THIS COMD PER PAR 26 S0 171 HQ
FT KNOX KY 28 JUN 51 FROM 2128-4ASU FOOD SVC SCH FT KNOX AND HAVING REPT
2 JULY 51 ASG (PERM PARTY) CO D 84TH TK BN DIV TN FOR DY ASG 3060.
EDCMR 2 JUL 51.'
PARAGRAPH 1 (F) OF EXECUTIVE ORDER NO. 10053, DATED APRIL 20, 1949,
EFFECTIVE FEBRUARY 1, 1949, 3 CFR 1949 SUPP., P. 86, DEFINES PERMANENT
CHANGE OF STATION TO MEAN ASSIGNMENT, DETAIL, OR TRANSFER OF AN
INDIVIDUAL OR UNIT TO A "DIFFERENT DUTY STATION" (EVEN THOUGH WITHIN THE
SAME CITY, TOWN OR METROPOLITAN AREA), UNDER COMPETENT ORDERS WHICH
NEITHER SPECIFY THE DUTY AS TEMPORARY, NOR PROVIDE FOR FURTHER
ASSIGNMENT TO A NEW DUTY STATION, OR TO DIRECT RETURN TO THE OLD DUTY
STATION. THIS IDENTICAL LANGUAGE WAS CARRIED FORWARD AND INCORPORATED
IN PARAGRAPH 8000-7 OF THE JOINT TRAVEL REGULATIONS, WHICH BECAME
EFFECTIVE APRIL 1, 1951.
YOUR ORIGINAL ORDERS OF APRIL 6, 1950, ASSIGNING YOU TO DUTY AT FORT
KNOX, KENTUCKY, FIXED YOUR RIGHTS UNDER THE PROVISIONS OF EXECUTIVE
ORDER NO. 10053 IN EFFECT AT THAT TIME. SINCE NO RIGHT ACCRUED TO YOU
UNDER THOSE ORDERS, THE ORDERS OF MAY 10, 1950, COULD NOT REVIVE A RIGHT
WHICH DID NOT EXIST. THOSE ORDERS (MAY 10, 1950) RELEASED YOU FROM
ASSIGNMENT WITH THE SERVICE BATTERY 67TH ARMORED FIELD ARTILLERY
BATTALION, FORT KNOX, KENTUCKY, AND TRANSFERRED YOU TO THE FOOD SERVICE
SCHOOL, FORT KNOX, KENTUCKY. THE ORDERS OF JUNE 28, 1951, AND JULY 2,
1951, RELEASED YOU FROM ASSIGNMENT AT THE FOOD SERVICE SCHOOL AND
REASSIGNED YOU TO THE THIRD ARMORED DIVISION, FORT KNOX, KENTUCKY.
WHILE THE ORDERS OF JUNE 28 AND JULY 2, 1951, WERE ISSUED SUBSEQUENT TO
APRIL 1951, THE EFFECTIVE DATE OF THE JOINT TRAVEL REGULATIONS, AND
PRIOR TO AUGUST 14, 1951, THE DATE YOUR HOUSEHOLD EFFECTS WERE SHIPPED
FROM OMAHA, NEBRASKA, TO FORT KNOX, KENTUCKY, YOUR PERMANENT DUTY
STATION AT THAT TIME WAS FORT KNOX, KENTUCKY, AND, UNDER THE ORDERS OF
JUNE 28, 1951, YOUR NEW DUTY STATION WAS FORT KNOX, KENTUCKY. THE
ORDERS OF MAY 10, 1950, JUNE 28, 1951, AND JULY 2, 1951, MERELY DIRECTED
A CHANGE IN YOUR DUTY ASSIGNMENT FROM ONE ACTIVITY TO ANOTHER AT THE
SAME INSTALLATION AT FORT KNOX, KENTUCKY. YOU WERE NOT TRANSFERRED TO A
"DIFFERENT DUTY STATION" AS CONTEMPLATED BY THE REGULATIONS. EVEN IF
THE ORDERS OF JUNE 28, 1951, COULD BE CONSIDERED AS TRANSFERRING YOU TO
A DUTY STATION OTHER THAN FORT KNOX, KENTUCKY, THE MOST TO WHICH YOU
WOULD BE ENTITLED, UNDER THE PROVISIONS OF PARAGRAPH 8009-4 OF THE
REGULATIONS, IS REIMBURSEMENT OF THE COST OF SHIPPING YOUR HOUSEHOLD
EFFECTS FROM OMAHA, NEBRASKA, TO YOUR NEW DUTY STATION, NOT TO EXCEED
THE COST FROM YOUR OLD DUTY STATION WHICH WAS FORT KNOX, KENTUCKY, TO
YOUR NEW DUTY STATION.
ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM MUST BE
AFFIRMED.
B-120680, B-122508, SEP 26, 1956
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
MR. SECRETARY:
REFERENCE IS MADE TO OUR LETTER TO YOU OF JANUARY 5, 1956, B-120680,
B-122508, CONCERNING THE EFFECTIVE DATE OF ORDERS RECEIVED AT A MEMBER'S
TEMPORARY DUTY STATION WHICH DESIGNATE THAT PLACE AS HIS NEW PERMANENT
STATION AT A FUTURE DATE, AND ADVISING YOU THAT THE AMENDMENT TO
PARAGRAPH 4209, JOINT TRAVEL REGULATIONS, ACCOMPLISHED BY CHANGE 38,
EFFECTIVE SEPTEMBER 1, 1955, DID NOT APPEAR FULLY TO CLARIFY A MEMBER'S
RIGHT IN SUCH CIRCUMSTANCES.
IN CONJUNCTION WITH A LETTER DATED AUGUST 14, 1956, FROM THE
ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES)
RESPECTING THE MATTER, THERE WERE FORWARDED PROPOSED AMENDMENTS TO
PARAGRAPHS 4156, CASE 3 AND 4209 OF THE JOINT TRAVEL REGULATIONS AND A
PROPOSED NEW CASE 12 TO PARAGRAPH 4156, WHICH DEAL WITH THIS PROBLEM,
AND HE HAS ASKED WHETHER THERE WOULD BE ANY OBJECTION TO OTHERWISE
PROPER PAYMENTS TO TRAVEL ALLOWANCES MADE AS THERE INDICATED, IF SUCH
REGULATIONS WERE DULY PROMULGATED.
THE PROPOSED REGULATIONS ARE AS FOLLOWS:
"PAR. 4156, CASE 3, REVISED
CASE 3. TEMPORARY DUTY STATION MADE PERMANENT STATION. A MEMBER ON
TEMPORARY DUTY WHO RECEIVES ORDERS AT HIS TEMPORARY DUTY STATION, OR
WHILE ON LEAVE FROM HIS TEMPORARY DUTY STATION AND REQUIRED TO RETURN
THERETO ON EXPIRATION OF LEAVE, DIRECTING A PERMANENT CHANGE OF STATION
TO THE TEMPORARY DUTY STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE
PERIOD OF THE TEMPORARY DUTY, OR (3) UPON COMPLETION OF THE TEMPORARY
DUTY, IS NOT ENTITLED TO PERMANENT CHANGE OF STATION TRAVEL ALLOWANCES
FROM HIS OLD PERMANENT STATION. IF THE PERMANENT CHANGE OF STATION
ORDERS AFFIRMATIVELY DIRECT HIM TO COMPLETE HIS TEMPORARY DUTY AND
RETURN TO HIS OLD PERMANENT DUTY STATION ON OFFICIAL BUSINESS BEFORE
COMPLYING WITH THE ORDER, THE MEMBER WILL BE ENTITLED TO PERMANENT
CHANGE OF STATION ALLOWANCES FOR SUBSEQUENT TRAVEL FROM THE OLD TO THE
NEW STATION.
"PAR. 4156, REVISED, NEW CASE 12 ADDED
CASE 12. STATION CHANGED WHILE ON TEMPORARY DUTY. A MEMBER WHO
RECEIVES ORDERS AT HIS TEMPORARY DUTY STATION OR WHILE ON LEAVE FROM A
TEMPORARY DUTY STATION, AND REQUIRED TO RETURN THERETO UPON EXPIRATION
OF LEAVE, DIRECTING A PERMANENT CHANGE OF STATION TO A PLACE OTHER THAN
THE TEMPORARY DUTY STATION EFFECTIVE (1) IMMEDIATELY, (2) DURING THE
PERIOD OF THE TEMPORARY DUTY, OR (3) UPON COMPLETION OF THE TEMPORARY
DUTY, SHALL BE ENTITLED TO PERMANENT CHANGE OF STATION ALLOWANCES FROM
THE PLACE OF RECEIPT OF ORDERS TO HIS NEW PERMANENT STATION NOT TO
EXCEED THAT PAYABLE FROM THE TEMPORARY DUTY STATION TO HIS NEW PERMANENT
STATION. IF THE PERMANENT CHANGE OF STATION ORDERS SPECIFICALLY DIRECTS
THE MEMBER TO COMPLETE HIS TEMPORARY DUTY AND RETURN TO HIS OLD
PERMANENT STATION ON OFFICIAL BUSINESS BEFORE COMPLYING WITH THE
PERMANENT CHANGE OF STATION ORDER, THE MEMBER WILL BE ENTITLED TO
PERMANENT CHANGE OF STATION ALLOWANCES FROM HIS OLD TO HIS NEW PERMANENT
STATION.
"PAR. 4209, REVISED
4209 TEMPORARY DUTY STATION CHANGED TO PERMANENT STATION
"A MEMBER WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS AT A
TEMPORARY DUTY STATION (OR WHILE ON LEAVE FROM SUCH TEMPORARY DUTY
STATION AND REQUIRED TO RETURN THERETO ON EXPIRATION OF LEAVE) WHICH
DESIGNATE HIS TEMPORARY DUTY STATION AS HIS NEW PERMANENT STATION
EFFECTIVE (1) IMMEDIATELY, (2) DURING THE CONTINUATION OF THE TEMPORARY
DUTY PERIOD, OR (3) UPON COMPLETION OF TEMPORARY DUTY WILL NOT BE
ENTITLED TO PER DIEM AT THAT STATION BEGINNING ON THE DATE OF RECEIPT OF
SUCH PERMANENT CHANGE OF STATION ORDERS, NOR TO ALLOWANCES FOR TRAVEL TO
THE OLD PERMANENT STATION UNLESS THE PERMANENT CHANGE OF STATION ORDERS
SPECIFICALLY DIRECTS HIS RETURN THERETO ON OFFICIAL BUSINESS. THE MERE
RECEIPT OF INFORMATIONAL COPIES OF ORDERS INDICATING THAT THE MEMBER
WILL BE TRANSFERRED TO THE TEMPORARY DUTY STATION ON A SPECIFIED FUTURE
DATE WHICH DOES NOT FALL WITHIN, NOR IMMEDIATELY FOLLOWING THE PERIOD OF
TEMPORARY DUTY WILL NOT PRECLUDE THE PAYMENT OF OTHERWISE PROPER
TEMPORARY DUTY ALLOWANCES FOR THE TEMPORARY DUTY INVOLVED AND RETURN
TRAVEL TO HIS OLD PERMANENT STATION."
YOU ARE ADVISED THAT THE PROPOSED REGULATIONS WOULD APPEAR TO BE
GENERALLY IN CONSONANCE WITH THE LAW AND THAT WE PRESENTLY PERCEIVE NO
OBJECTION TO THEIR PROMULGATION. THEIR APPLICATION TO SPECIFIC
SITUATIONS WILL BE SUBJECT TO CONSIDERATION HERE, OF COURSE, AS OCCASION
MAY REQUIRE.
B-123785, SEP. 26, 1956
TO MR. HAROLD LEVANDER, ATTORNEY AT LAW:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 18, 1956, RELATIVE TO
THE CLAIM OF BILLMOR SPRUCE MILLS, LTD., IN WHICH YOU REQUEST TO BE
ADVISED AS TO THE PROCEDURE TO BE FOLLOWED TO OBTAIN A REVIEW OF THE
ACTION TAKEN IN OUR DECISION DATED AUGUST 24, 1956, B-123785.
WRITTEN REQUESTS FOR RECONSIDERATION OF CLAIMS PREVIOUSLY SETTLED BY
US NEED NOT BE PRESENTED IN ANY PARTICULAR FORM. SUCH EVIDENCE OR LEGAL
ARGUMENTS NOT HERETOFORE CONSIDERED WHICH YOU MAY WISH TO SUBMIT MUST BE
IN WRITING OVER YOUR SIGNATURE OR THAT OF THE CLAIMANT. UPON RECEIPT OF
ANY NEW AND MATERIAL EVIDENCE OR OTHER JUSTIFIABLE REASON THE CASE WILL
BE REOPENED AND THOROUGH CONSIDERATION WILL BE ACCORDED THE CLAIM OF
YOUR CLIENT IN THE LIGHT OF THE FACTS OR CONTENTIONS WHICH YOU
CONTEMPLATE PRESENTING.
B-128260, SEP. 26, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1956, WITH ENCLOSURES,
CONCERNING THE CLAIMS OF THE STUART F. LOUCHHEIM COMPANY, PHILADELPHIA,
PENNSYLVANIA, IN THE AMOUNTS OF $8,362.47, $6,708.45, $5,899.04,
$22,734.39, $733.16 AND $23,958.75, UNDER CONTRACT NO. NORD-13110, DATED
JUNE 18, 1952.
THE CONTRACT WAS NEITHER TERMINATED NOR CERTIFIED FOR CONTINUANCE
BEYOND JUNE 30, 1955, AS REQUIRED BY SECTION 731 1/2 OF THE DEPARTMENT
OF DEFENSE APPROPRIATION ACT, 1955. AN ATTEMPT WAS MADE BY OUR CLAIMS
DIVISION TO ESTABLISH THE DATES OF THE DELIVERIES INVOLVED FOR THE
PURPOSE OF DETERMINING WHAT PART, IF ANY, OF THE TOTAL CLAIM FOR
$68,396.26 COULD BE CHARGED AGAINST THE FISCAL YEAR 1952 APPROPRIATION
CITED ON THE CLAIM VOUCHERS, SINCE IT APPEARED THAT THE CONGRESS HAD
INTENDED THAT JUNE 30, 1955, SHOULD BE THE LIMITING DATE FOR PERFORMANCE
OF ANY MILITARY CONTRACT WHICH OBLIGATED A FISCAL YEAR 1952
APPROPRIATION, UNLESS THE CONTRACT HAD BEEN CERTIFIED FOR CONTINUANCE BY
THE SECRETARY OF THE DEPARTMENT CONCERNED PRIOR TO JANUARY 1, 1955. IT
WAS THEN ASCERTAINED THAT THE DELIVERIES IN QUESTION HAD BEEN MADE
DURING THE PERIOD DECEMBER 30, 1955, TO APRIL 3, 1956, AND, BECAUSE
CERTAIN OF THE CLAIMS WERE BASED UPON PRICE INCREASES APPROVED
SUBSEQUENT TO JUNE 30, 1955, THE NAVY REGIONAL ACCOUNTS OFFICE WAS
ADVISED BY LETTER DATED JULY 26, 1956, THAT THE 1952 APPROPRIATION DID
NOT SEEM TO BE AVAILABLE FOR PAYMENT ON THE CLAIMS.
YOU STATE THAT, IN ADDITION TO THESE CLAIMS, OTHER CLAIMS BY VARIOUS
COMPANIES HAVE BEEN SUBMITTED BY YOUR DEPARTMENT AND RETURNED BY OUR
CLAIMS DIVISION AS NOT BEING ELIGIBLE FOR PAYMENT AGAINST APPROPRIATIONS
COVERED BY SECTION 731 1/2 OF THE DEPARTMENT OF DEFENSE APPROPRIATION
ACT, 1955. CONSEQUENTLY, YOU REQUEST OUR DECISION ON THE FOLLOWING
QUESTIONS:
"1. DOES SECTION 731 1/2 OF THE DEPARTMENT OF DEFENSE APPROPRIATION
ACT, 1955 DENY THE APPLICATION OF FUNDS TRANSFERRED TO THE CERTIFIED
CLAIMS ACCOUNT TO THE PAYMENT OF VOUCHERS FOR DELIVERIES MADE OR FOR
SERVICES RENDERED UNDER CONTRACTS WHICH HAD BEEN NEITHER TERMINATED NOR
CERTIFIED UNDER SECTION 731 1/2?
"2. IF IT IS HELD THAT MONEYS TRANSFERRED TO THE CERTIFIED CLAIMS
ACCOUNT ARE NOT SO AVAILABLE, MAY THE DEPARTMENT OF THE NAVY LIQUIDATE
THE OBLIGATIONS INCURRED UNDER THE CONTRACTS COVERED BY SECTION 731 1/2
BY THE USE OF FUNDS AVAILABLE IN THE APPROPRIATION ESTABLISHED UNDER
PUBLIC LAW 798, 84TH CONGRESS FOR THE PURPOSES COVERED BY SUCH
CONTRACTS$ .
"3. IF THE ANSWERS TO QUESTIONS 1 AND 2 ARE IN THE NEGATIVE, MAY
APPROPRIATIONS AVAILABLE FOR OBLIGATION AND EXPENDITURE DURING THE
PERIOD IN WHICH DELIVERIES WERE MADE AGAINST SUCH CONTRACTS BE USED FOR
THE LIQUIDATION OF OBLIGATIONS LEGALLY INCURRED AGAINST THE
APPROPRIATIONS COVERED BY SECTION 731 1/2? "
RELATIVE TO THE FIRST TWO QUESTIONS, WE ARE OF THE OPINION THAT THE
REQUIRED TERMINATION OF ANY FISCAL YEAR 1952 MILITARY CONTRACT WHICH HAD
NOT BEEN CERTIFIED FOR CONTINUANCE BEYOND JUNE 30, 1955, PROHIBITS THE
USE OF FUNDS TRANSFERRED TO THE "PAYMENT OF CERTIFIED CLAIMS" ACCOUNT,
OR TO THE SUCCESSOR AGENCY ACCOUNTS AS PROVIDED FOR IN THE ACT OF JULY
25, 1956, PUBLIC LAW 798, 84TH CONGRESS, FOR THE PAYMENT OF ANY AMOUNT
TO THE CONTRACTOR FOR PERFORMANCE AFTER JUNE 30, 1955.
IN REGARD TO THE THIRD QUESTION, WE PERCEIVE NO OBJECTION TO THE
PAYMENT OF REASONABLE AMOUNTS FOR DELIVERIES MADE SUBSEQUENT TO JUNE 30,
1955, UNDER A CONTRACT WHICH SHOULD HAVE BEEN TERMINATED AS OF THAT
DATE, OUT OF APPROPRIATIONS MADE AVAILABLE FOR OBLIGATION AND
EXPENDITURE DURING THE PERIODS IN WHICH SUCH DELIVERIES WERE
ACCOMPLISHED.
IN THE PRESENT CASE, THE BUREAU OF ORDNANCE REPORTED THAT, AT THE
TIME OF REVIEW OF CONTRACTS OBLIGATING APPROPRIATIONS COVERED BY SECTION
731 1/2 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955,
INFORMATION AVAILABLE TO THE CONTRACTING OFFICER DISCLOSED THAT OF THE
TOTAL OF $120,721.08 OF ORDNANCE AND FACILITIES, NAVY, 1952, FUNDS
ALLOTTED FOR PERFORMANCE OF CONTRACT NO. NORD-13110, $92,907.89 HAD
BEEN INVOICED IN ACCORDANCE WITH THE PAYMENTS AND LIENS CLAUSE. THE
BUREAU'S REPORT FURTHER SETS FORTH THAT AMENDMENT NO. 5 WAS ISSUED
REMOVING THE BALANCE OF 1952 FUNDS, $27,813.19, AND SUBSTITUTING 1955
FUNDS THEREFOR; THAT THE WORK ACCOMPLISHED UP TO SUCH TIME DID NOT
RESULT IN FINISHED UNITS BUT ONLY IN THE PRODUCTION OF VARIOUS
COMPONENTS TO BE ASSEMBLED INTO MINE TEST SETS; AND THAT AMENDMENT NO.
6 ADDED 1952 FUNDS TO THE SUBJECT CONTRACT TO PROVIDE FOR AN EQUITABLE
ADJUSTMENT FOR CHANGES WHICH HAD BEEN INCORPORATED INTO THE UNCOMPLETED
COMPONENTS OF THE MINE TEST SETS PRIOR TO JUNE 30, 1955.
ON THE BASIS OF THE FOREGOING EXPLANATION, IT IS APPARENT THAT THE
CONTRACTOR HAD PERFORMED AS OF JUNE 30, 1955, MOST OF THE WORK INVOLVED
IN THE FURNISHING OF A CONSIDERABLE PORTION OF THE CONTRACT ITEMS WHICH
WERE DELIVERED DURING THE FISCAL YEAR 1956. ACCORDINGLY, AND IN VIEW OF
YOUR STATEMENT THAT, UNDER THE PROVISIONS OF THE SUBJECT CONTRACT, THE
CONTRACTOR WOULD BE PAID TERMINATION CHARGES FOR WORK DONE UP TO JUNE
30, 1955, IF THE CONTRACT WERE TERMINATED ON THAT DATE, THE CLAIMS FOR
$68,396.26, SUBJECT TO THE ADJUSTMENTS NOTED ON THE CLAIM VOUCHERS, WILL
BE SETTLED HERE AS A PROPER CHARGE AGAINST THE 1952 FUNDS WHICH WERE
OBLIGATED FOR THE MAKING OF PAYMENTS UNDER THE CONTRACT.
B-128694, SEP. 26, 1956
TO DETROIT DIESEL ENGINE DIVISION, GENERAL MOTORS CORPORATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 19, 1956, PROTESTING
THE SPECIFICATIONS OF INVITATION FOR BIDS NO. NBY-6457, ISSUED ON JUNE
15, 1956, BY THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION, BUREAU OF
YARDS AND DOCKS CONTRACTS, CORAL CABLES, FLORIDA, FOR THE PROCUREMENT OF
19 DIESEL ENGINE-DRIVEN GENERATOR SETS HAVING A CAPACITY OF 200
KILOWATTS.
THE DETAILED REQUIREMENTS OF THE SPECIFICATIONS, AS MODIFIED BY
ADDENDUM NO. 1, PROVIDED THAT THE ENGINES SHOULD BE THE FULL DIESEL
DESIGN, TWO OR FOUR CYCLE SOLID INJECTION TYPE; AND THAT THE ROTATIVE
AND BRAKE MEAN EFFECTIVE PRESSURE CHARACTERISTICS FOR THE RESPECTIVE
UNITS SHOULD BE AS FOLLOWS:
"ENGINE, RPM, MAXIMUM 600
PISTON SPEED, FPM, MAXIMUM 1300
BRAKE MEAN EFFECTIVE PRESSURE:
TWO CYCLE, PSI, MAXIMUM 85
FOUR CYCLE, NATURALLY ASPIRATED, PSI, MAXIMUM 85
FOUR CYCLE, PRESSURE CHARGED, WITHOUT INTERCOOLER,
PSI, MAXIMUM 120
FOUR CYCLE, PRESSURE CHARGED, WITH INTERCOOLER,
PSI MAXIMUM 135 INCHES
YOUR COMPANY DID NOT BID ON THE PROPOSED PROCUREMENT AND IT WAS
CONTENDED THAT THE SPECIFIED RPM OF 600 IS RESTRICTIVE TO THE GENERAL
MOTORS DIESEL-DRIVEN GENERATOR SETS OF 200 KILOWATT CAPACITY. THE
EQUIPMENT WHICH YOU WOULD HAVE FURNISHED WAS DESCRIBED AS HAVING AN
ENGINE WHICH WOULD OPERATE AT 1600 RPM AND A GENERATOR WHICH WOULD
OPERATE AT 1800 RPM. HOWEVER, IT WAS STATED THAT "OUR PISTON SPEED,
EVEN FOR THE HIGHER RPM, WOULD ONLY BE 1330 FEET PER MINUTE," AND THAT
,OUR B.M.E.P. WOULD ONLY BE 77 FOR OUR TWO-CYCLE ENGINE.' IT WAS
INDICATED THAT THE PRICE OF THIS UNIT WOULD BE APPROXIMATELY ONE-HALF OF
THAT OF THE 600 RPM UNIT.
IT WAS ALLEGED THAT YOUR 200 KW GENERATOR SETS HAVE BEEN SUPPLIED TO
THE OFFICE OF CIVILIAN DEFENSE, THE CORPS OF ENGINEERS, UNITED STATES
ARMY, AND THE UNITED STATES COAST GUARD; THAT A RECENT CHECK OF THE
PERFORMANCE OF THE UNITS DELIVERED TO THE CORPS OF ENGINEERS DISCLOSED
THAT THEY WERE OPERATING CONTINUOUSLY, DELIVERING THE RATED 200 KW;
THAT THE BUREAU OF YARDS AND DOCKS, AS FAR BACK AS 1950, REQUESTED YOUR
COMPANY TO UNDERTAKE A DEVELOPMENT PROGRAM OF OPERATING GENERATOR SETS
AT 1800 RPM; THAT THE MARINE CORPS IS NOW USING 1800 RPM IN ALL OF ITS
DIESEL-DRIVEN GENERATOR SETS; THAT THE CORPS OF ENGINEERS HAS
ELIMINATED THE RPM REQUIREMENT FROM ITS SPECIFICATIONS FOR MILITARY
PROCUREMENT; AND THAT MANY EXHAUSTIVE TESTS HAVE BEEN RUN AND HAVE
PROVEN THE RELIABILITY OF OPERATING THE SETS AT HIGHER SPEEDS OF RPM
BECAUSE NEITHER THE PISTON SPEEDS NOR THE BRAKE MEAN EFFECTIVE PRESSURES
ARE INCREASED APPRECIABLY.
IT HAS BEEN REPORTED BY THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF
THE NAVY, THAT THE LIMITATION OF 600 MAXIMUM ENGINE RPM IS IN NO WAY
UNUSUAL AND IS IN ACCORD WITH STANDARDS ESTABLISHED IN BUREAU TECHNICAL
PUBLICATIONS. THE TYPES OF UNITS AS DESCRIBED IN THE SPECIFICATIONS OF
INVITATION NO. NBY-6457 ARE STATED AS HAVING BEEN INTENDED FOR FIRM
POWER ON AIR FORCE MISSILE TEST CENTER OFFSHORE FACILITIES WHERE THERE
WILL BE NO ALTERNATIVE SOURCES OF POWER.
THE REPORT SETS FORTH THAT THE STANDARDS ESTABLISHED BY THE AIR FORCE
FOR THESE FACILITIES FIX THIS LIMITATION ON ENGINE RPM AND THAT, WITH
ONE EXCEPTION, THE EQUIPMENT ALREADY INSTALLED CONFORMS TO THOSE
STANDARDS. THE OPINION IS EXPRESSED THAT THE LIMITATION DOES NOT APPEAR
TO RESTRICT COMPETITION BECAUSE, OF THE SIX BIDDERS COMPETING FOR THIS
PROCUREMENT, ONLY ONE OFFERED AN ENGINE OPERATING AT MORE THAN 600 RPM.
THE BUREAU'S REPORT FURTHER SETS FORTH THAT A DETERMINATION OF THE
SUITABILITY OF ENGINES OPERATING AT 600 RPM VERSUS THE SUITABILITY OF
ENGINES OPERATING UNDER 600 RPM REQUIRES THE WEIGHING OF MANY FACTORS,
INCLUDING THE COMPLEXITIES OF THE EQUIPMENT, THE CAPABILITY OF THE
OPERATING PERSONNEL, THE USER'S EXPERIENCE RECORD WITH HIGH SPEED DIESEL
GENERATOR UNITS, THE MISSION OF THE STATION REQUIRING THE POWER AND THE
AVAILABILITY OF ALTERNATE POWER SOURCES. IT IS
STATED THAT, FOR CONTINUOUS USE AT THIS ISOLATED MISSILE TESTING
RANGE, THE AIR FORCE AND THE BUREAU DO NOT CONSIDER THAT SPECIFICATIONS
PERMITTING THE USE OF HIGH SPEED DIESELS WOULD BE IN THE GOVERNMENT'S
INTEREST SO FAR AS ASSURANCE OF RELIABLE OPERATIONS AND MINIMIZATION OF
REPAIRS ARE CONCERNED.
THE BUREAU NOTED THAT THE UNIT, MODEL 12203, REFERRED TO IN YOUR
LETTER OF JULY 19, 1956, IS A TWIN ENGINE UNIT OPERATING A GENERATOR
THROUGH GEARS, AND THAT SUCH MODEL IS DESCRIBED IN GENERAL MOTORS
CATALOG 5-SA-17/REPRINT 5-55/-4M AS "STANDBY GENERATOR SETS" FOR
"STANDBY AND AUXILIARY APPLICATIONS.' SUCH EQUIPMENT WAS NOT CONSIDERED
BY THE BUREAU TO BE COMPARABLE TO A LOW SPEED DIRECT-DRIVE SET DESIGNED
FOR CONTINUOUS OPERATION TO PROVIDE FIRM POWER.
YOUR LETTER AND THE REPORT OF THE BUREAU OF YARDS AND DOCKS SUGGESTS
THAT THERE EXISTS A SUBSTANTIAL DIFFERENCE OF OPINION AMONG GOVERNMENT
TECHNICAL EXPERTS AS TO THE RELATIVE MERITS OF GENERATOR SETS WHICH
OPERATE AT A MAXIMUM OF 600 RPM AND THOSE WHICH OPERATE AT HIGHER
SPEEDS, PARTICULARLY SO FAR AS THERE MAY BE INVOLVED THEIR CONTEMPLATED
USE AT ISOLATED INSTALLATIONS WHERE NO ALTERNATIVE SOURCES OF POWER ARE
AVAILABLE. IN THE CIRCUMSTANCES, AND SINCE THE QUESTION AS TO WHAT
TYPES OF EQUIPMENT WILL MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS A
MATTER PRIMARILY FOR ADMINISTRATIVE CONSIDERATION AND DETERMINATION, YOU
ARE ADVISED THAT ON THE PRESENT RECORD WE WOULD NOT BE WARRANTED IN
TAKING EXCEPTION TO THE AWARD OF THE CONTRACT WHICH WAS MADE TO THE
WHITE MOTORS COMPANY PURSUANT TO INVITATION FOR BIDS NO. NBY-6457.
B-128769, SEP. 26, 1956
TO E. H. MORRILL COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1956, RELATIVE
TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF
CONTRACT NO. NBY-1813 (SPEC. 1813/56) COVERING REPAIRS TO RESERVOIR AND
REPLACEMENT OF CHLORINATOR AT THE NAVAL AIR STATION, OAKLAND,
CALIFORNIA.
IN RESPONSE TO A REQUEST BY THIS OFFICE, THE DEPARTMENT OF THE NAVY
HAS FURNISHED A REPORT AND PAPERS PERTAINING TO THE MATTER. IT APPEARS
THAT THE INVITATION, DATED MAY 14, 1956, REQUESTED BIDS, TO BE OPENED
JUNE 6, 1956, ON TWO ITEMS AS FOLLOWS:
"ITEM 1.--- PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH
THE DRAWINGS AND SPECIFICATIONS.
"ITEM 2.--- PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH
THE DRAWINGS AND SPECIFICATIONS, BASED ON THE OMISSION OF THE
REPLACEMENT OF FILTER MATERIAL, AND PAINTING OF THE POOL.'
YOUR BID WAS IN THE AMOUNTS OF $18,734 AND $13,734 ON ITEMS 1 AND 2,
RESPECTIVELY. THE ONLY OTHER BID RECEIVED WAS IN THE AMOUNTS OF $22,697
AND $20,660 ON THE RESPECTIVE ITEMS. BY LETTER DATED JUNE 25, 1956,
YOUR BID WAS ACCEPTED AS TO ITEM 2. SOME TIME LATER YOU CONTACTED THE
DISTRICT PUBLIC WORKS OFFICE BY TELEPHONE, ALLEGING AN ERROR IN YOUR
BID. BY LETTER DATED JULY 10, 1956, PURPORTING TO WITHDRAW YOUR BID,
YOU STATED THAT YOUR BID SHOULD HAVE BEEN $23,734 ON ITEM 1 AND $18,734
ON ITEM 2. IN YOUR LETTER OF JULY 26, 1956, IT IS STATED:
"* * * THROUGH ERROR OUR BID READ AS FOLLOWS:
TABLE
"ITEM 1 $18,734.00 ITEM 2 $13,734.00
"OUR BID SHOULD HAVE READ:
"ITEM 1 $23,734.00 ITEM 2 $18,734.00
"IN CHECKING OUR RECAP WE DISCOVERED THAT WE INADVERTENTLY TRANSPOSED
THE BID ITEMS, AND IN ARRIVING AT OUR BID FOR ITEM 2 WE DEDUCTED
$5,000.00 FROM ITEM 1 INSTEAD OF ADDING $5,000.00. THEREFORE, IF WE HAD
NOT TRANSPOSED THE BID ITEMS IN ERROR, OUR BID FOR ITEM 1 WOULD BE
$18,734.00 AND ITEM 2 $23,734.00.'
YOU REQUEST PERMISSION TO WITHDRAW YOUR BID OR TO PERFORM THE
CONTRACT WORK FOR A CORRECTED BID PRICE OF $18,734.
IN 20 COMP. GEN. 652 IT IS STATED:
"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN
THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE
CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO
APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE
MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6
COMP. GEN. 526; 8 ID. 362.'
IN THE INSTANT MATTER, NO SATISFACTORY EXPLANATION OR EVIDENCE HAS
BEEN FURNISHED THAT THERE WAS AN ERROR IN YOUR BID OF A KIND FOR WHICH
RELIEF MAY BE AUTHORIZED. SUCH ERROR AS MAY HAVE BEEN MADE WAS NOT
MUTUAL AND IT WAS NOT SO APPARENT AS TO PLACE THE CONTRACTING OFFICER ON
NOTICE OF THE POSSIBILITY OF ERROR. IT IS REPORTED THAT THE
GOVERNMENT'S ESTIMATE FOR ITEM 2 WAS $13,250--- SLIGHTLY LESS THAN YOUR
BID ON THAT ITEM. NEITHER WAS THE ALLEGED ERROR INDUCED OR CONTRIBUTED
TO IN ANY MANNER BY THE GOVERNMENT. ACCORDINGLY, THE ESTABLISHED RULE
ABOVE QUOTED IS FOR APPLICATION HERE. THE ACCEPTANCE OF YOUR 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. 55.
IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF
THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN
OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. 14 COMP. GEN. 468; 20
ID. 703 AND COURT CASES CITED.
FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR
CANCELLING THE CONTRACT OR INCREASING THE CONTRACT PRICE.
A COPY OF THIS DECISION IS BEING FURNISHED TO THE SECRETARY OF THE
NAVY.
B-128842, SEP. 26, 1956
TO THE SECRETARY OF AGRICULTURE:
BY LETTER OF AUGUST 2, 1956, THE ACTING SECRETARY OF AGRICULTURE
REQUESTS OUR DECISION WHETHER FUNDS FROM THE 1956 SALARIES AND EXPENSE
APPROPRIATION OF THE RURAL ELECTRIFICATION ADMINISTRATION
CAN PROPERLY BE USED TO PAY THE $1,500 TUITION OF AN EMPLOYEE,
SPECIAL ASSISTANT TO THE ASSISTANT ADMINISTRATOR OF THE RURAL
ELECTRIFICATION ADMINISTRATION, WHO ATTENDED A SERIES OF COURSES IN
NUCLEAR REACTOR TECHNOLOGY CONDUCTED BY THE ATOMIC ENERGY COMMISSION AT
THE ARGONNE NATIONAL LABORATORY SCHOOL OF NUCLEAR SCIENCE AND
ENGINEERING, LAMONT, ILLINOIS.
THE ACTING SECRETARY'S LETTER STATES THAT THE RURAL ELECTRIFICATION
ADMINISTRATION MAKES LONG TERM LOANS TO FINANCE THE CONSTRUCTION OF
FACILITIES FOR FURNISHING ELECTRIC ENERGY TO PERSONS IN RURAL AREAS;
THAT DEVELOPMENTS IN THE LAST 4 OR 5 YEARS IN THE PRODUCTION OF POWER BY
NUCLEAR REACTORS INDICATE DEFINITE POSSIBILITIES IN THE RURAL
ELECTRIFICATION FIELD; AND THAT, IN REVIEWING APPLICATIONS FOR AND
MAKING LOANS TO FINANCE POWER PRODUCTION FACILITIES, REA MUST CONSIDER
THE LATEST DEVELOPMENTS IN THE NUCLEAR POWER REACTOR FIELD. PRESUMABLY,
THE APPLICATION FOR A LOAN TO EXPAND OR CONSTRUCT CONVENTIONAL POWER
PRODUCING FACILITIES MIGHT BE REJECTED IF IT IS DETERMINED THAT THE USE
OF NUCLEAR POWER IS MORE ECONOMICAL. IT IS STATED IN THE SUBMISSION
THAT THE CONGRESS, IN CONSIDERING THE AGRICULTURE APPROPRIATIONS BILL
FOR 1955, EVIDENCED AN INTEREST IN THE USE OF REA OF ITS FUNDS IN
FURTHERING THE STUDY OF THE FEASIBILITY OF THE USE OF NUCLEAR POWER IN
THE RURAL ELECTRIFICATION PROGRAM. IN THE REPRINT OF THE HEARINGS
BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, 84TH CONGRESS, ON THE DEPARTMENT OF AGRICULTURE
APPROPRIATIONS FOR 1956, PART 3, PAGE 1507, THE CONGRESS WAS ADVISED OF
THE DIFFICULTY IN SECURING ATOMIC ENGINEERS FOR ITS WORK, BUT NO REQUEST
WAS MADE FOR AUTHORITY TO TRAIN REA EMPLOYEES AS OCCURRED IN THIS CASE.
THE EMPLOYEE HERE WAS SELECTED TO ATTEND THE SERIES OF COURSES
EXTENDING FROM NOVEMBER 7, 1955, TO JUNE 13, 1956, FOLLOWING THE
INVITATION TO REA FROM AEC TO NOMINATE AN EMPLOYEE FOR THAT PURPOSE.
THE ACTING SECRETARY POINTS OUT THAT IT WAS THROUGH THIS TRAINING THAT
REA WAS ABLE ADEQUATELY TO EVALUATE THE FIRST TWO PROPOSALS BY BORROWERS
TO INSTALL NUCLEAR REACTER POWER PLANTS. WE HAVE BEEN INFORMALLY
ADVISED THAT THE ARGONNE NATIONAL LABORATORY IS A WHOLLY OWNED
GOVERNMENT INSTALLATION WHICH IS OPERATED BY THE UNIVERSITY OF CHICAGO
UNDER A CONTRACT WITH AEC. THE BOOKS AND EQUIPMENT SUPPLIED FOR THE
COURSES WERE PURCHASED BY THE UNIVERSITY OF CHICAGO WITH AEC FUNDS. WE
ARE ALSO INFORMALLY ADVISED THAT NO GRADUATE CREDIT WAS GIVEN BY THE
UNIVERSITY OF CHICAGO TO THOSE WHO SUCCESSFULLY COMPLETED THE COURSES.
AT THE TIME THESE COURSES WERE OFFERED THERE WAS NO OTHER SUCH COURSE
OFFERED ANYWHERE. APPROXIMATELY 60 PERSONS ATTENDED THE COURSES,
INCLUDING REPRESENTATIVES OF INDUSTRY. ONLY THOSE INVITED BY AEC COULD
ATTEND SO THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR THE EMPLOYEE TO SECURE
THE TRAINING ON HIS OWN.
REA DOES NOT HAVE ANY SPECIFIC STATUTORY AUTHORITY PERTAINING TO
TRAINING OF EMPLOYEES.
THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1956, PUBLIC LAW 70,
69 STAT. 58, INCLUDES FUNDS---
"TO CARRY INTO EFFECT THE PROVISIONS OF THE RURAL ELECTRIFICATION ACT
OF 1936, AS AMENDED (7 U.S.C. 901-924), AS FOLLOWS:
"FOR ADMINISTRATIVE EXPENSES * * * $7,680,000.'
IN PREVIOUS DECISIONS BEARING ON THIS QUESTION WE HAVE FOLLOWED
CLOSELY THE ESTABLISHED RULE THAT APPROPRIATIONS MADE IN GENERAL TERMS
FOR PARTICULAR PURPOSES MAY BE USED FOR THE PAYMENT OF TUITION AND
EXPENSES INCIDENT TO THE TRAINING OF SELECTED CIVILIAN EMPLOYEES IN
SPECIALIZED COURSES OF INSTRUCTION OF BRIEF DURATION WHEN IT IS
ADMINISTRATIVELY DETERMINED THAT THE INSTRUCTION IS DIRECTLY CONNECTED
WITH AND ESSENTIAL TO THE FULFILLMENT OF THE PURPOSES FOR WHICH THE
APPROPRIATION IS MADE. SEE 34 COMP. GEN. 168, 32 ID. 339, 31 ID. 623.
IN A DECISION OF THIS OFFICE, 15 COMP. GEN. 585, WE STATED THE
RATIONALE FOR THE RULE AS FOLLOWS:
"* * * THE ATTENDANCE AT A COLLEGE OR OTHER EDUCATIONAL INSTITUTION,
EITHER FOR THE EMPLOYEE'S OWN IMPROVEMENT OR FOR THE GOOD OF THE
SERVICE, IS NOT, ORDINARILY, WITHIN THE SCOPE OF THE APPOINTMENT OR
DUTIES OF A FEDERAL EMPLOYEE AND THAT SUCH EMPLOYEE WOULD NOT BE
ENTITLED EITHER TO COMPENSATION OR TO REIMBURSEMENT OF TRAVEL OR OTHER
EXPENSES WHILE SO OCCUPIED AND RENDERING NO SERVICE TO THE GOVERNMENT.
2 COMP. GEN. 17; 6 ID. 15. THE FACT THAT THE INSTRUCTION IS TO BE
GIVEN BY A FEDERAL AGENCY DOES NOT AUTHORIZE THE APPLICATION OF A
DIFFERENT RULE. * * *"
WE DO NOT QUESTION THAT IT IS ADMINISTRATIVELY DESIRABLE THAT
TRAINING OF THE TYPE HERE INVOLVED BE FURNISHED SELECTED EMPLOYEES OF
REA. HOWEVER, OUR OPINION IS THAT AGENCIES SHOULD OBTAIN EXPRESS
STATUTORY AUTHORITY FOR PAYMENT OF COMPENSATION, TUITION, AND OTHER
EXPENSES TO EMPLOYEES DURING PROLONGED PERIODS OF ABSENCE FROM THEIR
REGULAR DUTIES WHILE ATTENDING TRAINING COURSES, WHETHER THOSE COURSES
ARE CONDUCTED BY GOVERNMENT OR PRIVATE ACTIVITIES. IT SEEMS CLEAR THAT
A PERIOD OF TRAINING EXTENDING OVER 7 MONTHS IS NOT OF BRIEF DURATION,
AS THAT TERM IS USED IN OUR DECISIONS.
IN VIEW OF THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY PERTAINING TO
TRAINING OF EMPLOYEES BY THE RURAL ELECTRIFICATION ADMINISTRATION AND OF
THE REQUIREMENT AS SET FORTH IN OUR DECISIONS, THE 1956 SALARIES AND
EXPENSE APPROPRIATION, SUPRA, MAY NOT BE USED TO PAY THE TUITION EXPENSE
OF $1,500 HEREIN INVOLVED.
B-128873, SEP. 26, 1956
TO MR. CHARLES ETTINGER, ATTORNEY AT LAW:
WE REFER TO YOUR LETTERS OF JUNE 12 AND SEPTEMBER 13, 1956, THE FIRST
WITH ENCLOSURES SUPPORTING THE CLAIM OF ROSE STRUMEYER, EXECUTRIX OF THE
WILL OF JACOB STRUMEYER, DECEASED, FOR THE PROCEEDS OF TWO CUSTOMS
REFUND CHECKS, TOTALING $8,240.00, DRAWN TO THE ORDER OF STRUMEYER AND
LADENHEIM, A PARTNERSHIP, NOW DISSOLVED.
THE TWO CHECKS RECENTLY WERE DRAWN IN LIQUIDATION OF VARIOUS CUSTOMS
ENTRIES MADE IN 1930 AND 1931, ALL OF WHICH ARE DATED PRIOR TO THE DATE
OF DISSOLUTION OF THE PARTNERSHIP ON OCTOBER 6, 1931. THE EFFECT OF THE
LAPSE OF TIME BETWEEN THE DATES OF THE ENTRIES AND THE ISSUANCE OF
CHECKS IN REFUND OF THE EXCESS DUTIES COLLECTED THEREON TOGETHER WITH
THE ABSENCE OF A COPY OF THE DISSOLUTION AGREEMENT CREATE A DOUBT
WHETHER PAYMENT TO THE EXECUTRIX OF THE WILL OF MR. STRUMEYER IN THIS
CASE WOULD BE PROPER.
YOU UNDOUBTEDLY ARE AWARE THAT IT IS A DUTY OF OUR OFFICE TO OBTAIN
FOR THE UNITED STATES A VALID ACQUITTANCE IN THE SETTLEMENT OF CLAIMS
AGAINST THE GOVERNMENT. IN THE ABSENCE OF THE DISSOLUTION AGREEMENT IT
WOULD APPEAR THAT NEITHER WE NOR THE EXECUTRIX CAN ESTABLISH WITH
CERTAINTY WHETHER THE DECEASED NONLIQUIDATING PARTNER'S ESTATE HAS AN
INTEREST IN THE PROCEEDS OF THE CHECKS OR WHETHER MR. STRUMEYER ALONE
WAS ENTITLED TO THE REFUND OF EXCESS DUTIES AND LIABLE FOR ANY
DEFICIENCIES, UPON LIQUIDATION OF THE ENTIRES.
IN THE CIRCUMSTANCES WE BELIEVE WE ARE WARRANTED IN REQUIRING THE
APPOINTMENT OF A TRUSTEE BY A COURT OF COMPETENT JURISDICTION, EMPOWERED
TO RECEIVE THESE AND ANY FUTURE CUSTOM'S REFUND CHECKS WHICH MAY ISSUE
IN THE PARTNERSHIP NAME, WHO WILL ACCOUNT THEREFOR AND MAKE DISTRIBUTION
OF THE PROCEEDS IN THE MANNER WHICH THE COURT SHALL DIRECT. WE HAVE NO
OBJECTION IF THE EXECUTRIX IS APPOINTED IN THAT CAPACITY.
ACCORDINGLY, ON THE PRESENT RECORD, THE PAYMENT OF THE CHECKS TO THE
EXECUTRIX MUST BE WITHHELD.
B-128894, SEP. 26, 1956
TO MR. WILLIAM J. GANE:
FURTHER REFERENCE IS MADE TO YOUR LETTER, WITH ENCLOSURE, REQUESTING
RECONSIDERATION OF SETTLEMENT DATED JUNE 29, 1956, WHICH DISALLOWED PART
OF YOUR CLAIM FOR TRAVEL EXPENSES INCIDENT TO TRANSFER OF OFFICIAL
STATION.
BY DEPARTMENT OF STATE AUTHORIZATION OF OFFICIAL TRAVEL NO. 5-14045,
DATED OCTOBER 22, 1954, YOU WERE AUTHORIZED TO TRAVEL FROM ATHENS,
GREECE, TO LONDON, ENGLAND, UPON A PERMANENT CHANGE OF STATION. BY
CERTIFICATE OF SETTLEMENT DATED JUNE 29, 1956, YOU WERE AUTHORIZED
REIMBURSEMENT FOR CONSTRUCTIVE TRAVEL EXPENSES BY A DIRECT ROUTE IN THE
AMOUNT OF $9.45 SINCE THE DEVIATION FROM THE DIRECT ROUTE WAS FOR YOUR
PERSONAL CONVENIENCE. THAT AMOUNT WAS APPLIED IN PARTIAL LIQUIDATION OF
YOUR INDEBTEDNESS TO THE UNITED STATES GOVERNMENT IN THE AMOUNT OF $120
BECAUSE OF A TRAVEL ADVANCE MADE TO YOU, LEAVING A BALANCE DUE OF
$110.55.
YOU REQUEST RECONSIDERATION OF THE MATTER ON THE FOLLOWING GROUNDS:
"1. THAT TICKETS ISSUED TO ME BY THE ATHENS TRAVEL BUREAU AND THE
ROUTE WHICH THEY ESTABLISHED WERE IN ERROR AND NO FAULT IS ASSUMED BY
MYSELF.
"2. THE ROUTE ESTABLISHED WAS AN APPROVED ONE BY THE AMERICAN
EMBASSY, ATHENS.
"3. THAT I WAS INFECTED BY SEVERE BRONCHITIS WHILE TRAVELING AND WAS
GROUNDED ON DOCTOR'S ORDERS. MEDICAL EVIDENCE SUBMITTED IN THE FORM OF
A STATEMENT BY A RELIABLE GERMAN PHYSICIAN WAS PLACED ON FILE AT THE
AMERICAN EMBASSY, LONDON.'
THERE IS ON FILE A MEMORANDUM DATED DECEMBER 4, 1954, FROM THE
AMERICAN EMBASSY IN ATHENS, GREECE, TO THE AMERICAN EMBASSY IN LONDON,
ENGLAND, WHICH STATES THAT:
"THE MISSION IS WELL AWARE OF THE FACT THAT MR. GANE AND HIS MOTHER
COULD HAVE TAKEN BEA 131 ON NOVEMBER 3 FROM ATHENS TO LONDON VIA ROME.
HOWEVER, MR. GANE DID NOT DESIRE TO PROCEED DIRECTLY TO HIS NEW POST OF
ASSIGNMENT AND WAS VERY INSISTENT UPON MAKING A TOUR THROUGH GERMANY
BEFORE REPORTING FOR DUTY AT LONDON. THE ROUTING
ATHENS/ROME/MUNICH/DUSSELDORF/LONDON WAS AT HIS OWN REQUEST AND FOR HIS
PERSONAL CONVENIENCE. COST OF PLANE TICKETS WAS THE SAME AS FOR THE BEA
FLIGHT, SO THE MISSION WAS ABLE TO ISSUE THE T.R. FOR THE MORE
CIRCUITOUS ROUTE AT NO EXTRA COST TO THE UNITED STATES GOVERNMENT.
"IN MAKING HIS TRAVEL PLANS, MR. GANE SPENT CONSIDERABLE TIME IN
CONSULTING WITH THE TRAVEL CLERK ON EVERY CONCEIVABLE ROUTING AND
COMBINATION OF ROUTINGS VIA GERMANY, INCLUDING TRAIN SCHEDULES FROM
DUSSELDORF TO FRANKFURT. HE INSISTED THAT HIS SPACE BE BOOKED FROM
ATHENS TO ROME ONLY AND THAT THE PORTION OF THE FLIGHT FROM ROME TO
LONDON BE LEFT AS AN OPEN DATE TICKET. BEA ATHENS CONFIRMS THAT MR.
GANE COULD HAVE HAD RESERVATIONS STRAIGHT THROUGH FROM ATHENS TO LONDON
ON THE DAY OF HIS DEPARTURE, AS INDICATED BY THE ATTACHED CERTIFICATE.
"BEFORE MR. GANE MADE DEFINITE TRAVEL PLANS, HE WAS FULLY INFORMED ON
FOREIGN SERVICE TRAVEL REGULATIONS AND EMPHATICALLY TOLD THAT ANY TRAVEL
HE PERFORMED THAT WAS NOT THE MOST DIRECT AND USUALLY TRAVELED ROUTE
WOULD BE AT HIS OWN EXPENSE AND PER DIEM IN EXCESS OF DIRECT TRAVEL TIME
WOULD BE DISALLOWED.'
THERE IS ALSO A LETTER ON FILE DATED NOVEMBER 6, 1954, FROM THE
BRITISH EUROPEAN AIRWAYS WHICH STATES THAT WHEN APPLICATION WAS MADE FOR
RESERVATIONS FROM ATHENS TO ROME FOR YOU AND YOUR MOTHER, SPACE WAS
AVAILABLE FOR THE BOTH OF YOU TO FLY DIRECT FROM ATHENS TO LONDON ON THE
3RD OF NOVEMBER AS WELL AS ON THE 4TH AND 5TH OF NOVEMBER 1954.
SINCE THE RECORDS SHOW THAT THERE WERE AVAILABLE ACCOMMODATIONS FOR
DIRECT TRAVEL BY AIR FOR YOU AND YOUR MOTHER ON THE DATE YOU COMMENCED
THE TRAVEL IN QUESTION AND THE INDIRECT ROUTE TAKEN BY YOU AS FOR
PERSONAL CONVENIENCE, THERE IS NO AUTHORITY FOR THE GOVERNMENT TO PAY
ANY ADDITIONAL AMOUNT FOR INCIDENTAL EXPENSES THAT YOU MAY HAVE INCURRED
AS A CONSEQUENCE OF INDIRECT TRAVEL.
IN VIEW OF THE FOREGOING, IT MUST BE CONCLUDED THAT THE ACTION TAKEN
WITH RESPECT TO YOUR CLAIM IS CORRECT AND, UPON REVIEW, MUST BE
SUSTAINED.
B-128908, SEP. 26, 1956
TO MR. W. F. HEDGES:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 25, 1956, IN
WHICH YOU RAISE CERTAIN QUESTIONS, AND REQUEST INFORMATION, CONCERNING
AN ALLEGED REIMBURSEMENT BY THE ATOMIC ENERGY COMMISSION, THROUGH THE
CARBIDE AND CARBON CHEMICALS COMPANY, OF ATTORNEY'S FEES OF INDIVIDUAL
DEFENDANTS IN A SUIT IN WHICH YOU ARE THE PLAINTIFF.
IN YOUR LETTER YOU STATE THAT YOU BROUGHT SUIT AGAINST J. J. FRITZ
AND W. H. SIDNER IN THE CIRCUIT COURT, ANDERSON COUNTY, TENNESSEE, AND A
TRIAL WAS HELD IN AUGUST 1955, AT WHICH TIME A NONSUIT WAS TAKEN. YOU
REPORT THAT IT WAS CALLED TO YOUR ATTENTION THAT THE ATTORNEY'S FEES FOR
DEFENDANTS IN THIS CASE WERE PAID BY THE CARBIDE AND CARBON CHEMICAL
COMPANY WHICH COMPANY WAS REIMBURSED FOR SUCH FEES BY THE ATOMIC ENERGY
COMMISSION. FURTHER YOU STATE THAT THE SUIT WAS AGAINST INDIVIDUALS AND
NEITHER CARBIDE NOR THE ATOMIC ENERGY COMMISSION WERE INVOLVED AND YOU
REQUEST INFORMATION AS TO THE AUTHORITY FOR THE ATOMIC ENERGY COMMISSION
TO APPROVE PAYMENT AND REIMBURSE CARBIDE FOR THESE FEES.
IN OUR LETTER TO YOU OF AUGUST 16, 1956, WE ADVISED THAT IT WAS
NECESSARY TO SECURE A REPORT ON THE MATTER FROM THE ATOMIC ENERGY
COMMISSION AND OUR OFFICE IS NOW IN RECEIPT OF SUCH A REPORT. THE
REPORT SHOWS THAT FOR SOME TIME PRIOR TO AUGUST 31, 1954, YOU WERE
EMPLOYED AS A BUYER IN THE PURCHASING DIVISION, UNION CARBIDE NUCLEAR
COMPANY, IN WHICH POSITION YOU PURCHASED ALL FOOD AND FOOD PRODUCTS USED
IN CERTAIN CAFETERIAS AT PLANTS K-25 AND Y-12 AND THE OAK RIDGE NATIONAL
LABORATORY. AT SOME TIME PRIOR TO AUGUST 31, 1954, YOU WERE ADVISED BY
MR. JOHN J. FRITZ, DIRECTOR OF THE PURCHASING DIVISION, UNION CARBIDE
NUCLEAR COMPANY THAT IT HAD BEEN BROUGHT TO HIS ATTENTION THAT YOU WERE
THE OWNER OF A FOOD BROKERAGE COMPANY WHICH SOLD FOOD AND FOOD PRODUCTS
TO VARIOUS VENDORS FROM WHOM PURCHASES WERE MADE BY YOU IN YOUR OFFICIAL
CAPACITY AS BUYER FOR THE UNION CARBIDE NUCLEAR COMPANY. THE CONFLICT
OF INTEREST WAS EXPLAINED TO YOU WITH THE REQUEST THAT YOU SELL YOUR
BUSINESS OR RESIGN BY AN AGREED DATE. YOUR FAILURE TO DO EITHER
RESULTED IN THE TERMINATION OF YOUR SERVICES ON AUGUST 31, 1954, FOR THE
STATED REASON OF REFUSING DIRECTION.
THEREAFTER MR. FRITZ AND MR. SIDNER WERE SERVED SUMMONS TO APPEAR AT
THE CIRCUIT COURT, ANDERSON COUNTY, TENNESSEE, CONCERNING THE LAW SUIT
FILED AGAINST THEM BY YOU. ON THE BASIS THAT THE SUIT BROUGHT BY YOU
WAS AGAINST MESSRS. FRITZ AND SIDNER IN THEIR OFFICIAL CAPACITIES AS
EMPLOYEES OF UNION CARBIDE NUCLEAR COMPANY AND SINCE THAT COMPANY IS
PERFORMING ITS FUNCTIONS AT OAK RIDGE, TENNESSEE, UNDER A
COST-REIMBURSEMENT TYPE CONTRACT WITH THE ATOMIC ENERGY COMMISSION,
PERMISSION WAS REQUESTED FROM THE ATOMIC ENERGY COMMISSION TO HIRE
PRIVATE COUNSEL FOR MESSRS. FRITZ AND SIDNER IF THE DEPARTMENT OF
JUSTICE DID NOT ENTER THE CASE. FOR THE REASON THAT THE CONTRACT
BETWEEN THE UNION CARBIDE NUCLEAR COMPANY AND THE ATOMIC ENERGY
COMMISSION PROVIDES FOR THE INCLUSION, AS COST OF THE WORK, OF
EXPENDITURES FOR THE MAINTENANCE OF WELFARE AND OTHER PLANS FOR THE
BENEFIT OF EMPLOYEES WHEN CONSISTENT WITH THE GENERAL EMPLOYEE-RELATIONS
POLICIES OF THE UNION CARBIDE NUCLEAR COMPANY, WHICH COMPANY HAS A
POLICY TO FURNISH FREE LEGAL ASSISTANCE TO EMPLOYEES FOR THEIR ACTS IN
CONNECTION WITH THEIR EMPLOYMENT, THE ATOMIC ENERGY COMMISSION
AUTHORIZED UNION CARBIDE NUCLEAR COMPANY TO EMPLOY LEGAL COUNSEL AND TO
CHARGE THE COSTS THEREOF TO THE CONTRACT.
THE REPORT FROM THE ATOMIC ENERGY COMMISSION FURTHER STATES THAT IT
IS THE GENERAL POLICY OF THE OAK RIDGE OPERATIONS OFFICE TO AUTHORIZE A
CONTRACTOR TO EMPLOY LEGAL COUNSEL FOR THEIR EMPLOYEES FOR SUITS BROUGHT
AGAINST SUCH EMPLOYEES FOR ACTS WHICH TOOK PLACE DURING THE PERFORMANCE
OF THEIR OFFICIAL DUTIES IF THIS IS CONSISTENT WITH THE CONTRACTOR'S
POLICIES. JUSTIFICATION FOR SUCH A POLICY BY THE ATOMIC ENERGY
COMMISSION AND THE ENSUING COSTS THEREOF IS BASED ON THE THEORY THAT A
JUDGMENT AGAINST AN EMPLOYEE MIGHT AFFECT A SUIT AGAINST THE CONTRACTOR.
IT APPEARS FROM THE ABOVE REPORT THAT YOUR SUIT AGAINST MESSRS.
FRITZ AND SIDNER WAS IN REALITY NOT, AS YOU ALLEGED, FOR THEIR ACTS AS
INDIVIDUALS BUT ACTUALLY FOR ACTS TAKEN BY THEM IN THEIR OFFICIAL
CAPACITY AS EMPLOYEES OF THE UNION CARBIDE NUCLEAR COMPANY. UNDER THE
CIRCUMSTANCES, THE EXPENSES OF EMPLOYING LEGAL COUNSEL FOR SUCH
EMPLOYEES CONCERNING THEIR ACTS IN THEIR OFFICIAL CAPACITY REPRESENT A
COST TO THE CONTRACTOR IN THE PERFORMANCE OF THE CONTRACT FOR WHICH
PROVISION IS MADE FOR REIMBURSEMENT.
OUR OFFICE IS OF THE OPINION THAT THE REIMBURSEMENT BY THE ATOMIC
ENERGY COMMISSION OF THE COST OF THE COUNSEL FEES FOR THE TWO NAMED
DEFENDANTS IN THE SUIT BROUGHT BY YOU IS A PROPER EXPENSE UNDER THE
CONTRACT BETWEEN THE UNION CARBIDE NUCLEAR COMPANY AND THE ATOMIC ENERGY
COMMISSION AND HENCE IS A PROPER EXPENDITURE OF MONEYS APPROPRIATED FOR
THE USE OF THE ATOMIC ENERGY COMMISSION.
B-128946, SEP. 26, 1956
TO MR. SYLVESTER P. CAREY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1956, RETURNING
TREASURY CHECK (NO. 414,736, DATED FEBRUARY 13, 1956) IN THE SUM OF
$48.24, AND REQUESTING REVIEW OF THE SETTLEMENTS OF FEBRUARY 6, 1956,
WHICH ALLOWED YOU $40.74 AND $7.50 AS REIMBURSEMENT FOR CERTAIN TRAVEL
PERFORMED BY YOU AS AN ENLISTED MAN, UNITED STATES NAVAL RESERVE.
BY ORDERS DATED NOVEMBER 23, 1940, U.S.S. WICHITA, NEW YORK, NEW
YORK, HAVING COMPLETED 30 DAYS' TRAINING WITHOUT PAY, YOU WERE RELEASED
AND ORDERED TO YOUR HOME, NEW LONDON, WISCONSIN. THE ORDERS FURTHER
PROVIDED THAT, HAVING BEEN RECOMMENDED FOR AN ADDITIONAL TRAINING
PERIOD, YOU WERE TO PROCEED FROM YOUR HOME AND REPORT TO THE NAVAL
RESERVE MIDSHIPMAN'S SCHOOL, CHICAGO, ILLINOIS, ON MARCH 17, 1941. THE
ORDERS PROVIDED THAT TRANSPORTATION AND SUBSISTENCE WOULD BE FURNISHED
FOR TRAVEL TO YOUR HOME, AND THAT TRAVEL FROM YOUR HOME TO THE NEXT
DESIGNATED PLACE OF DUTY WAS AUTHORIZED BY PRIVATELY OWNED VEHICLE
SUBJECT TO REIMBURSEMENT AT THREE CENTS PER MILE PLUS SUBSISTENCE.
THE RECORD SHOWS, HOWEVER, THAT YOU DECLINED TRANSPORTATION TO NEW
LONDON, AND THAT (APPARENTLY ON NOVEMBER 23, 1940) YOU EXECUTED A
STATEMENT IN WHICH YOU AVERRED THAT THE HOME ADDRESS SHOWN IN YOUR
SERVICE RECORD IS ERRONEOUS IN THAT YOUR CORRECT HOME ADDRESS IS
GLENDALE, CALIFORNIA. YOU REQUESTED THAT YOUR SERVICE RECORD BE
CORRECTED ACCORDINGLY, AND ASKED PERMISSION TO PROCEED TO GLENDALE
SUBJECT TO CLAIM FOR REIMBURSEMENT. YOU FURTHER STATED YOU UNDERSTOOD
YOU WERE ENTITLED TO REIMBURSEMENT TO YOUR HOME ADDRESS ONLY, AND THAT
IF YOUR SERVICE RECORD WAS NOT CHANGED YOU WOULD HAVE NO CLAIM UPON THE
GOVERNMENT FOR TRANSPORTATION OR SUBSISTENCE IN EXCESS OF THAT FROM NEW
YORK, NEW YORK, TO NEW LONDON, WISCONSIN, AND FROM THE LATTER POINT TO
CHICAGO, ILLINOIS, AND RETURN.
YOUR REQUEST FOR PERMISSION TO TRAVEL TO GLENDALE, CALIFORNIA, WAS
APPROVED, AND YOU TRAVELED TO THAT POINT FROM NEW YORK, NEW YORK, DURING
THE PERIOD NOVEMBER 24 TO DECEMBER 1, 1940. YOU TRAVELED FROM GLENDALE
TO CHICAGO DURING THE PERIOD JANUARY 13 TO 17, 1941, AND RETURNED TO
GLENDALE BETWEEN THE DATES OF APRIL 5 AND MAY 8, 1941. YOUR CLAIM,
ORIGINALLY FILED HERE IN 1941, WAS NOT SETTLED UNTIL AFTER YOU
REITERATED IT IN 1955 (WITH NEW ADDRESS) FOR THE REASON THAT AN
ACKNOWLEDGMENT MAILED TO YOU AT GLENDALE ON MAY 17, 1941, WAS RETURNED
BY POSTAL AUTHORITIES ,UNCLAIMED.'
THE AMOUNT ALLOWED BY THE SETTLEMENTS MENTIONED ABOVE CONSTITUTED
REIMBURSEMENT ON A MILEAGE AND SUBSISTENCE BASIS COMPUTED ON THE
DISTANCE FROM NEW YORK TO NEW LONDON, AND FROM THE LATTER POINT TO
CHICAGO AND RETURN. YOUR REQUEST FOR REVIEW IS BASED ON THE ALLEGATION
THAT YOUR HOME IS IN FACT GLENDALE, CALIFORNIA, AND, THEREFORE, THAT YOU
ARE ENTITLED TO REIMBURSEMENT FOR TRAVEL TO AND FROM THAT POINT.
AT THE TIME HERE INVOLVED THERE WAS IN EFFECT SECTION 315 OF THE
NAVAL RESERVE ACT OF 1938, 52 STAT. 1184, WHICH PROVIDED THAT WHEN
AUTHORIZED TRAINING WITHOUT PAY IS PERFORMED BY MEMBERS OF THE NAVAL
RESERVE THEY MAY, IN THE DISCRETION OF THE SECRETARY, BE FURNISHED WITH
TRANSPORTATION TO AND FROM SUCH DUTY, AND TO SUBSISTENCE EN ROUTE. IN
YOUR CASE IT SEEMS CLEAR THAT YOU WERE TO BE FURNISHED TRANSPORTATION
AND SUBSISTENCE TO YOUR HOME, AND THAT TRAVEL TO THE PLACE OF FURTHER
DUTY WAS TO BE FROM YOUR HOME. ACCORDING TO THE RECORDS OF THE
DEPARTMENT OF THE NAVY, YOUR HOME WHEN YOU WERE ORDERED TO THE RELEVANT
TOUR OF ACTIVE DUTY, WAS NEW LONDON, WISCONSIN. ALTHOUGH YOU FREQUENTLY
ALLEGED YOUR HOME WAS GLENDALE, CALIFORNIA (WHERE IT APPEARS YOU HAD
BEEN RESIDING IN THE Y.M.C.A. SINCE MAY 1940), THE OFFICIAL RECORD WAS
NOT CHANGED. IT LONG HAS BEEN THE ESTABLISHED RULE OF THE ACCOUNTING
OFFICERS OF THE GOVERNMENT THAT THE HOME OF A MEMBER OF THE NAVAL
RESERVE IS THE PLACE RECORDED AS SUCH BY THE DEPARTMENT OF THE NAVY WHEN
ORDERED TO THE RELEVANT TOUR OF ACTIVE DUTY. SINCE YOUR HOME OF RECORD
WHEN ORDERED TO THE TOUR OF ACTIVE DUTY HERE INVOLVED WAS NEW LONDON,
WISCONSIN, THE SETTLEMENTS OF FEBRUARY 6, 1956, WERE CORRECT AND ARE
SUSTAINED.
THE CHECK IN THE SUM OF $48.24, AND YOUR COPIES OF THE PAID VOUCHERS
ARE RETURNED HEREWITH.
B-128954, SEP. 26, 1956
TO HONORABLE L. H. HEWITT, COMMISSIONER, UNITED STATES SECTION,
INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO:
YOUR LETTER OF AUGUST 10, 1956, REQUESTS OUR DECISION AS TO THE
LEGALITY OF PAYMENTS TO WAGE BOARD EMPLOYEES FOR STANDBY TIME IN
ACCORDANCE WITH YOUR PROPOSED AMENDMENT TO THE WAGE BOARD PLAN WHICH
PROVIDES AS FOLLOWS:
"P. STANDBY TIME
"1. GENERAL. STANDBY TIME WILL BE ALLOWED EMPLOYEES REQUIRED TO
REMAIN AT THEIR POST OF DUTY DURING SPECIFIC PERIODS OF TIME IN ADDITION
TO THEIR REGULARLY SCHEDULED 40 HOUR WEEK. THIS TYPE OF COMPENSATION
WILL BE ALLOWED UPON ADMINISTRATIVE DETERMINATION OF THE NECESSITY FOR
SUCH SERVICE AT A PARTICULAR LOCATION. SUCH STANDBY TIME WILL BE
COMPUTED ON A PRO RATA BASIS OF REGULAR TIME FOR A DETERMINED NUMBER OF
HOURS OF STANDBY TIME AND WILL NOT BE CONSIDERED AS A PART OF BASIC
COMPENSATION. SCHEDULES COVERING THIS TYPE OF SERVICE WILL BE PREPARED
AND SIGNED BY EACH EMPLOYEE CONCERNED AND HIS SUPERVISOR. EACH SCHEDULE
WILL INDICATE THE NUMBER OF HOURS STANDBY TIME REQUIRED FOR EACH HOUR OF
REGULAR TIME PAY.
"2. LEAVE STATUS. STANDBY TIME WILL NOT BE ALLOWED DURING PERIODS
OF ANNUAL OR SICK LEAVE WHICH EXCEED ONE DAY. EMPLOYEE SUBSTITUTING FOR
REGULARLY SCHEDULED STANDBY EMPLOYEE WILL RECEIVE SUCH STANDBY PAY AS IS
APPLICABLE TO THE POSITION BASED ON THE SALARY OF THE SUBSTITUTING
EMPLOYEE.
"3. WORK DETAILS. STANDBY PAY WILL BE IN LIEU OF ANY OTHER TYPE OF
PREMIUM COMPENSATION FOR SUCH SERVICES AS MAY BE PERFORMED DURING
STANDBY TIME.
"4. HOLIDAY DUTY. STANDBY PAY FOR HOLIDAYS WILL BE COMPUTED ON THE
SAME BASIS AS SATURDAY OR SUNDAY STANDBY SERVICE.'
YOU SAY THAT BECAUSE OF THE ERRATIC AND UNPREDICTABLE NATURE OF FLOOD
FLOWS PASSING THROUGH THE EL PASO VALLEYS A REQUIREMENT EXISTS FOR
STANDBY SERVICE OF A DAM TENDER AND FOUR MAINTENANCE FOREMEN WHO OCCUPY
WAGE BOARD POSITIONS. YOU ALSO STATE THAT YOU HAVE BEEN UNABLE TO LEARN
OF PROVISIONS SIMILAR TO THOSE WHICH YOU PROPOSE IN THE WAGE BOARD PLANS
OF OTHER GOVERNMENT AGENCIES OR IN PRIVATE INDUSTRY IN THAT AREA. UNDER
THE PROPOSED AMENDMENT AN EMPLOYEE WHO HAD WORKED THE REGULARLY
SCHEDULED 40-HOUR WEEK WOULD REMAIN AT HIS POST OF DUTY ON A STANDBY
BASIS FOR AN UNSPECIFIED NUMBER OF HOURS AND RECEIVE COMPENSATION ON A
PRO RATA BASIS OF REGULAR TIME IN ACCORDANCE WITH A SCHEDULE PREPARED BY
EACH EMPLOYEE AND HIS SUPERVISOR.
SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED, 5
U.S.C. 673C, PROVIDES IN PART AS FOLLOWS:
"THE WEEKLY COMPENSATION * * * FOR THE SEVERAL TRADES AND
OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING
AUTHORITIES, SHALL BE RE-ESTABLISHED AND MAINTAINED AT RATES NOT LOWER
THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN
ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE
SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS
OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL
BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.'
A DETERMINATION AS TO WHAT CONSTITUTES "REGULAR HOURS OF LABOR"
WITHIN THE MEANING OF THE 1934 ACT DEPENDS ON THE FACTS OF EACH CASE AND
A CONSIDERATION OF THE ACTUAL DUTIES PERFORMED. WE HELD IN 34 COMP.
GEN. 216 THAT A PERIOD OF STANDBY TIME DURING WHICH THE EMPLOYEE REMAINS
AT HOME AND, EXCEPT FOR BEING IN A STATE OF READINESS TO ANSWER AN
EMERGENCY, IS FREE TO FOLLOW HIS USUAL PERSONAL PURSUITS MAY NOT BE
CONSIDERED "LABOR" WITHIN THE MEANING OF THE 1934 ACT. HOWEVER, THE
SUPREME COURT OF THE UNITED STATES IN ARMOUR AND COMPANY V. WANTUK ET
AL., 323 U.S. 126, HELD THAT TIME SPENT ON THE EMPLOYER'S PREMISES BY
FIREFIGHTERS SUBJECT TO CALL, EXCLUDING TIME SPENT SLEEPING AND EATING
BUT INCLUDING TIME SPENT IDLING OR IN RECREATION, WAS WORKING TIME
COMPENSABLE UNDER THE MAXIMUM HOURS AND OVERTIME PROVISIONS OF THE FAIR
LABOR STANDARDS ACT, 52 STAT. 1063, 29 U.S.C. 207. ALTHOUGH THE
LANGUAGE OF THE FAIR LABOR STANDARDS ACT IS NOT IDENTICAL TO THE QUOTED
LANGUAGE OF THE 1934 ACT, SUPRA, THE CRITERIA FOR DETERMINING WORKING
TIME SEEM TO BE APPLICABLE TO THE 1934 ACT. FOLLOWING THE DECISION IN
THE ARMOUR CASE THE CIVIL SERVICE COMMISSION ADOPTED THE SO-CALLED
"TWO-THIRDS RULE" AS TO STANDBY TIME FOR PER ANNUM EMPLOYEES. ASSUMING
THAT OUT OF EACH 24-HOUR PERIOD OF STANDBY TIME 8 HOURS WOULD BE
UTILIZED FOR SLEEPING AND EATING, THE COMMISSION PROVIDED THAT
TWO-THIRDS OF EACH HOUR OF STANDBY DUTY SHALL BE CONSIDERED "WORKING
TIME" FOR WHICH COMPENSATION IS PAYABLE. SEE 25 COMP. GEN. 161. ALSO,
SEE GENERALLY 25 COMP. GEN. 584; 30 ID. 158.
IT SEEMS TO US THAT THE ARMOUR CASE CONCEPT IS FOR CONSIDERATION HERE
AND THAT ANY TIME IN EXCESS OF 40 HOURS PER WEEK THAT AN EMPLOYEE
REMAINS IN A DUTY STATUS IS COMPENSABLE AT THE RATE OF TIME AND ONE-HALF
EXCEPT FOR PERIODS OF EATING AND SLEEPING. THUS AN EMPLOYEE WHO IS AT
HIS DUTY STATION IN A STANDBY STATUS FOR A CONTINUOUS PERIOD OF 24 HOURS
MAY BE COMPENSATED FOR TWO-THIRDS OF THAT TIME AS "WORKING TIME," THE
PRESUMPTION BEING THAT ONE-THIRD OF THE PERIOD IS UTILIZED IN EATING AND
SLEEPING. ALSO IT WOULD APPEAR THAT AN EMPLOYEE WHO WORKS A REGULAR
TOUR OF 40 HOURS (8 HOURS PER DAY 5 DAYS PER WEEK) AND IS REQUIRED TO
REMAIN AT HIS DUTY STATION AT THE END OF HIS NORMAL WORKING DAY FOR ONLY
2 HOURS, NEITHER OCCUPIED IN EATING OR SLEEPING, IS ENTITLED TO OVERTIME
COMPENSATION AT THE RATE OF TIME AND ONE-HALF FOR THE ENTIRE 10 HOURS
PER WEEK. HOWEVER, INASMUCH AS WE DO NOT KNOW WHAT SCHEDULES WILL BE
ADOPTED, NOR THE EXACT NATURE OF THE DUTIES OF THE EMPLOYEES DURING THE
HOURS OF STANDBY TIME NOR THE RESTRICTIONS PLACED UPON THE USE OF THE
TIME BY THE COMMISSION, WE ARE UNABLE TO ADVISE YOU CONCERNING THE
PARTICULAR SITUATIONS THAT MIGHT ARISE.
ACCORDINGLY, UPON THE PRESENT RECORD, OUR OPINION IS THAT THE
PROPOSED AMENDMENT TO THE WAGE BOARD PLAN REQUIRES REVISION. UPON
FORMULATION OF A REVISED PLAN, THE MATTER, IN YOUR DISCRETION, MAY BE
RESUBMITTED FOR OUR CONSIDERATION.
B-129046, SEP. 26, 1956
TO MR. RUSSELL J. KNEELAND:
REFERENCE IS MADE TO YOUR LETTER DATED JULY (AUGUST) 3, 1956,
REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 24, 1956, WHICH DISALLOWED
YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES INCURRED IN PROCEEDING
FROM YOUR HOME AT MEXICO CITY, MEXICO, TO NEW ORLEANS, LOUISIANA, FOR
THE PURPOSE OF REPORTING FOR INDUCTION INTO THE ARMED FORCES OF THE
UNITED STATES.
YOU STATE THAT YOUR HOME HAS BEEN IN MEXICO SINCE YOU WERE ONE MONTH
OLD AND THAT YOU REGISTERED FOR THE SELECTIVE SERVICE IN NEW ORLEANS
DURING A SHORT STAY IN THAT CITY. IN LETTER ORDERS FROM YOUR LOCAL
BOARD IN NEW ORLEANS DATED FEBRUARY 20, 1952, ADDRESSED TO YOU AT MEXICO
CITY, YOU WERE ORDERED TO REPORT TO AN INDUCTION STATION IN NEW ORLEANS
ON MARCH 5, 1952, FOR EXAMINATION AND INDUCTION INTO A BRANCH OF THE
ARMED FORCES. THE EXPENSES FOR WHICH REIMBURSEMENT IS CLAIMED WERE
INCURRED IN COMPLYING WITH THOSE ORDERS.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
813, WHICH PRESUMABLY IS THE SECTION UPON WHICH YOU BASE YOUR CLAIM,
PROVIDES:
"UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS
OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND
TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER
COMPETENT ORDERS * * * (2) UPON APPOINTMENT, CALL TO ACTIVE DUTY,
ENLISTMENT, OR INDUCTION, FROM HOME OR FROM THE PLACE FROM WHICH ORDERED
TO ACTIVE DUTY TO FIRST STATION * * *.'
SUCH PROVISIONS ARE AUTHORITY FOR TRAVEL AND TRANSPORTATION
ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ONLY. CONSEQUENTLY,
SINCE YOU WERE NOT INDUCTED INTO THE ARMY UNTIL AFTER YOU REPORTED TO
THE INDUCTION STATION AT NEW ORLEANS, THEY CANNOT BE CONSIDERED AS
AUTHORITY FOR PAYMENT OF THE EXPENSES OF THE TRAVEL IN QUESTION, SUCH
TRAVEL HAVING BEEN PERFORMED BY YOU WHILE YOU WERE IN A CIVILIAN STATUS.
IT WILL BE NOTED IN THAT CONNECTION THAT THE JOINT TRAVEL REGULATIONS,
CONTAINING REGULATIONS PROMULGATED UNDER THE QUOTED STATUTORY
PROVISIONS, PROVIDE (PARAGRAPH 5052) FOR TRAVEL AT GOVERNMENT EXPENSE IN
CONNECTION WITH INDUCTION INTO THE SERVICE ONLY FROM THE PLACE OF
INDUCTION, WHERE THE INDUCTEE FIRST BECOMES A MEMBER OF THE ARMED
FORCES, TO THE FIRST DUTY STATION.
THE DUTY OF REPORTING TO A LOCAL DRAFT BOARD OR INDUCTION STATION FOR
INDUCTION INTO THE MILITARY SERVICE HAS BEEN CONSIDERED A PERSONAL
OBLIGATION OF ALL CITIZENS OF DRAFT AGE, AND CONSEQUENTLY IT HAS BEEN
HELD THAT PUBLIC FUNDS ARE NOT AVAILABLE FOR EXPENSES OF PROCEEDING TO
THE POINT OF INDUCTION. 24 COMP. GEN. 472. IT IS CONCLUDED, THEREFORE,
THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY,
THE SETTLEMENT OF JULY 24, 1956, IS SUSTAINED.
B-129056, SEP. 26, 1956
TO CAPTAIN THOMAS R. KELLY:
YOUR LETTER OF JULY 19, 1956, REQUESTS REVIEW OF THE ACTION TAKEN BY
OUR OFFICE ON YOUR CLAIM FOR PER DIEM ALLOWANCE INCIDENT TO DUTY
PERFORMED PURSUANT TO ORDERS OF NOVEMBER 9, 1951, AND JANUARY 28, 1952.
YOU WERE ALLOWED A PER DIEM IN THE AMOUNT OF $118 FOR THE PERIOD FROM
JANUARY 8 TO FEBRUARY 27, 1952, AND $40 WAS DEDUCTED FROM THE AMOUNT
FOUND DUE, THE AMOUNT OF SUCH DEDUCTION REPRESENTING BASIC ALLOWANCE FOR
QUARTERS WHICH WAS ERRONEOUSLY PAID TO YOU FOR THE PERIOD JANUARY 11 TO
31, 1952. IT APPEARS TO BE YOUR CONTENTION THAT YOU ARE ENTITLED TO
EITHER A BASIC ALLOWANCE FOR QUARTERS OR AN ADDITIONAL PER DIEM
ALLOWANCE FOR THE PERIOD JANUARY 11 TO 31, 1952, WHEN QUARTERS WERE NOT
AVAILABLE AT CAMP PENDLETON.
THE RECORD SHOWS THAT BY ORDERS DATED NOVEMBER 9, 1951, YOU WERE
DETACHED FROM YOUR DUTY STATION AT QUANTICO, VIRGINIA, AND DIRECTED TO
REPORT TO CAMP PENDLETON, CALIFORNIA, FOR DUTY AND FURTHER ASSIGNMENT
OVERSEAS. ON JANUARY 8, 1952, YOU REPORTED TO CAMP PENDLETON WHERE YOU
REMAINED UNTIL FEBRUARY 11, 1952. ON THAT DATE YOU DEPARTED FOR
BRIDGEPORT, CALIFORNIA, TO UNDERGO COLD WEATHER TRAINING WHICH IS
CONSIDERED FIELD DUTY. ON FEBRUARY 18, 1952, YOU RETURNED TO CAMP
PENDLETON AND REMAINED THERE UNTIL FEBRUARY 27, 1952, WHEN YOU DEPARTED
FOR YOUR OVERSEAS ASSIGNMENT.
PARAGRAPH 78102, MARINE CORPS MANUAL PROVIDES FOR A BASIC ALLOWANCE
FOR QUARTERS WHILE EN ROUTE BETWEEN DUTY STATIONS AS FOLLOWS:
"1. AN OFFICER WITHOUT DEPENDENTS IS NOT ENTITLED TO BASIC ALLOWANCE
FOR QUARTERS FOR PERIODS OF TRAVEL, LEAVE (INCLUDING DELAY CHARGEABLE AS
LEAVE), AND PROCEED TIME BETWEEN PERMANENT DUTY STATIONS. IF OTHERWISE
ENTITLED THERETO, AN OFFICER WITHOUT DEPENDENTS IS ENTITLED TO BASIC
ALLOWANCE FOR QUARTERS FOR THE DATE OF DETACHMENT FROM, AND THE DATE OF
ARRIVAL AT, THE PERMANENT DUTY STATION.'
YOU WERE IN A TRAVEL STATUS EN ROUTE BETWEEN DUTY STATIONS FROM THE
TIME OF YOUR DETACHMENT FROM YOUR DUTY STATION AT QUANTICO THROUGH THE
PERIOD OF YOUR CLAIM. HENCE, UNDER THE QUOTED REGULATION, IT APPEARS
CLEAR YOU ARE NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS.
IN SUPPORT OF YOUR CONTENTION THAT YOU ARE ENTITLED TO PER DIEM
DURING THE PERIOD JANUARY 11 TO 31, 1952, YOU REFER TO PARAGRAPH 8,
MARINE CORPS MEMORANDUM WHICH PROVIDES:
"8. RATES OF PER DIEM. IN PROCESSING CLAIMS FOR PAYMENT OR FOR
SUBMISSION TO HEADQUARTERS U.S. MARINE CORPS, DISBURSING OFFICERS WILL,
OF COURSE, BE GUIDED BY THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS
WHICH WERE IN EFFECT DURING THE PERIOD INVOLVED IN EACH CLAIM. IN THIS
CONNECTION, SINCE 1 APRIL 1951 THE FOLLOWING PER DIEM RATES HAVE BEEN IN
EFFECT FOR OFFICERS ON TEMPORARY DUTY AT PROCESSING STATIONS AWAITING
FURTHER ASSIGNMENT AND TRANSPORTATION OVERSEAS:
TABLE
1 APRIL 1951 - 30 NOVEMBER 1952
"NO GOVERNMENT QUARTERS AVAILABLE:
(A) FOR THE FIRST 30 DAYS . . . . . . . . . . . . $9.00
(B) FOR ALL ADDITIONAL DAYS . . . . . . . . . . . 7.00
"GOVERNMENT QUARTERS AVAILABLE . . . . . . . . . . . . . 5.00.'
HOWEVER, YOUR ATTENTION IS INVITED TO PARAGRAPH C, CHANGE NO. 1 TO
MARINE CORPS MEMORANDUM NO. 72208 (62-55) WHICH PROVIDES:
"C. THE ORDERS OF MANY OFFICERS WHO REPORTED TO CAMP PENDLETON AND
EL TORO FOR FURTHER ASSIGNMENT OVERSEAS WERE ENDORSED TO SHOW THAT NO
GOVERNMENT QUARTERS WERE AVAILABLE FOR THE OFFICERS AND THEIR
DEPENDENTS. THESE ENDORSEMENTS WERE ISSUED ON THE BASIS THAT CAMP
PENDLETON AND EL TORO WERE THE PERMANENT DUTY STATIONS OF THE OFFICERS,
AND ARE NOT ACCEPTABLE FOR PER DIEM PURPOSES. GOVERNMENT QUARTERS AND
GOVERNMENT MESSES AS DEFINED IN PARAGRAPHS 1150-4 AND 1150-5, JOINT
TRAVEL REGULATIONS, WERE AVAILABLE AT CAMP PENDLETON AND EL TORO FOR ALL
OFFICERS SUBMITTING CLAIMS FOR PER DIEM UNDER THIS MEMORANDUM, AND
CERTIFICATES OF THE OFFICERS AND ENDORSEMENTS ON THEIR ORDERS INDICATING
OTHERWISE WILL BE DISREGARDED BY DISBURSING OFFICERS IN THE SETTLEMENT
OF SUCH CLAIMS.'
FROM THE LAST QUOTED CHANGE IT SEEMS CLEAR THAT GOVERNMENT QUARTERS
AND GOVERNMENT MESSES AS DEFINED IN THE JOINT TRAVEL REGULATIONS WERE
AVAILABLE AT CAMP PENDLETON DURING THE PERIOD OF YOUR DUTY. YOUR CLAIM
WAS SETTLED ON THAT BASIS AND, THEREFORE, IT APPEARS THAT NO FURTHER PER
DIEM IS DUE.
ACCORDINGLY, THE SETTLEMENT OF JULY 16, 1956, WAS CORRECT AND IS
SUSTAINED. THE GOVERNMENT CHECK FOR $78 IN PAYMENT OF YOUR CLAIM, WHICH
YOU ENCLOSED IN YOUR LETTER, IS RETURNED.
B-129154, SEP. 26, 1956
TO HONORABLE LEWIS L. STRAUSS, CHAIRMAN, ATOMIC ENERGY COMMISSION:
REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 4, 1956, WITH
ENCLOSURES, FROM THE ACTING GENERAL MANAGER, REQUESTING A DECISION AS TO
THE ACTION TO BE TAKEN CONCERNING AN ERROR C. H. LEAVELL AND COMPANY, EL
PASO, TEXAS, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO.
AT/29-1/-1503 WAS AWARDED.
SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION IS
BEING ADDRESSED TO YOU.
BY INVITATION NO. 291-56-9, THE LOS ALAMOS AREA OFFICE, ATOMIC ENERGY
COMMISSION, LOS ALAMOS, NEW MEXICO, REQUESTED BIDS--- TO BE OPENED APRIL
18, 1956--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK
REQUIRED FOR THE CONSTRUCTION OF 125 GROUP 18, PHASE "A" HOUSES AT THE
ATOMIC ENERGY COMMISSION PROJECT AT LOS ALAMOS, NEW MEXICO. THE WORK TO
BE PERFORMED WAS BROKEN DOWN INTO FOUR LOTS FOR THE PURPOSES OF
SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. IN RESPONSE C. H.
LEAVELL AND COMPANY SUBMITTED A BID DATED APRIL 18, 1956, OFFERING TO
PERFORM THE WORK DESCRIBED UNDER LOTS NOS. 1 TO 4, INCLUSIVE, FOR THE
TOTAL AGGREGATE BID PRICE OF $1,855,426,66. THE AGGREGATE BID OF C. H.
LEAVELL AND COMPANY ON LOTS NOS. 1 TO 4, INCLUSIVE, WAS ACCEPTED ON
APRIL 23, 1956.
BY LETTER DATED APRIL 24, 1956, WHICH WAS RECEIVED AFTER NOTICE OF
THE AWARD HAD BEEN MAILED, C. H. LEAVELL AND COMPANY ADVISED THAT ERRORS
AMOUNTING TO $190,440 HAD BEEN MADE IN ITS BID AND STATED THAT THE
CIRCUMSTANCES WERE AS FOLLOWS:
"PLUMBING, HEATING AND OUTSIDE UTILITIES: WE HAD A BID FROM
WHEATLEY-ADAMS, INC. OF ALBUQUERQUE, IN THE AMOUNT OF $436,850.00. WE
HAD EXPECTED BIDS FROM S. GLEN HICKMAN COMPANY, FROM LARRY MYERS OF
SANTA FE, AND FROM BROWN-OLDS. AT THE VERY LAST MOMENT, WE FINALLY GOT
BIDS ON THE SAME WORK FROM HICKMAN AND STANDARD ROOFING COMBINED, IN THE
AMOUNT OF $572,000.00, AND IN COMBINATIONS WITH OTHERS, FROM MYERS, IN
THE AMOUNT OF $625,000.00, BUT NONE FROM BROWN-OLDS. WITH THE
BROWN-OLDS BID OUTSTANDING, AND WITH NO TIME REMAINING TO CHECK WITH
WHEATLEY-ADAMS, THEIR BID WAS USED. NOW, THEY FIND THAT THEY ARE AT
LEAST $135,000.00 LOW BECAUSE OF ERRORS, AND ARE DESPERATELY CONCERNED,
SINCE THE DIFFERENCE IS FAR MORE THAN THEIR NET WORTH. WE HAVE BEEN
DENIED A BOND BY THEIR BONDSMAN, AND UNLESS GIVEN RELIEF, WE HAVE NO
ALTERNATIVE THAN TO AWARD THEM THE SUBCONTRACT AND ASSIST IN EVERY
MANAGERIAL WAY, THEIR PERFORMANCE.
"WE FEEL THAT THE ACTIVE EXECUTION OF MECHANICAL CONTRACTS BY
WHEATLEY-ADAMS, INC. IS AN ASSET TO THE GOVERNMENT. THEIR PERFORMANCE
ON OUR PROJECT TA-48 IS EXCELLENT, AND WE SOLICIT YOUR HELP IN GIVING
THEM MORE FUNDS FOR THEIR WORK ON GROUP 18 HOUSING.
"OAK FLOORING: A BID WAS RECEIVED FROM TRINITY FLOOR COMPANY, FOR
"LAYING, SANDING AND FINISHING" ALL OAK FLOORING. THE BID WAS
AMBIGUOUSLY WORDED, AND OUR ESTIMATORS CONSTRUED THIS PROPOSAL TO
INCLUDE MATERIAL, WHICH UPON VERIFICATION, WE FIND DID NOT. THE POSTING
OF THIS BID WAS STRICTLY A MECHANICAL ERROR. HOWEVER, AS A RESULT,
HARDWOOD FLOORING FOR ALL HOUSES WAS ERRONEOUSLY OMITTED FROM OUR BID.
THE COST OF THIS MATERIAL AMOUNTS TO $24,790.00.
"LUMBER: A CHECK HAS BEEN MADE OF OUR LUMBER TAKE-OFF. DEPENDING
UPON THE INTERPRETATION OF THE SPECIFICATIONS RELATING TO GRADE AND
SPECIES, THERE HAVE DEVELOPED TWO MAJOR ERRORS IN STRESS GRADE AND NO. 2
DIMENSION QUANTITIES. AN ITEMIZATION OF TAKE-OFF BEFORE BID AND ACTUAL
NEEDED QUANTITIES ARE:
TABLE
ADDED ADDED GRADE FIGURED NEEDED
MATERIALS LABOR TOTAL STRESS GRADE 581,000 BFM 672,000 BFM
$20,930.00 NO. 2 DIMENSION 52,000 BFM 106,000 BFM 5,400 4,3
-----------
$30,650.00"
IN A LETTER DATED MAY 31, 1956, THE COMPANY ADVISED THAT IT HAD
COMPLETELY ANALYZED ITS BID AND FOUND THAT THE TOTAL AMOUNT OF THE
ERRORS MADE THEREIN WAS $118,482.24 AND NOT $190,440, AS ORIGINALLY
ALLEGED IN ITS LETTER OF APRIL 24, 1956. IN SUPPORT OF ITS ALLEGATION
OF ERROR, THE COMPANY SUBMITTED COPIES OF LETTERS AND QUOTATIONS
RECEIVED FROM ITS SUBCONTRACTORS AND PHOTOSTATIC COPIES OF ITS GENERAL
SUMMARY ESTIMATE SHEETS.
THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE
BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS
ACCEPTANCE. THE LIST OF BIDS IN THE LETTER OF SEPTEMBER 4, 1956, SHOWS
THAT THE THREE OTHER AGGREGATE BIDS ON LOTS NOS. 1 TO 4, INCLUSIVE, WERE
IN THE AMOUNTS OF $2,075,963.93, $2,082,370, AND $2,479,438.59; AND IT
IS REPORTED THAT THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK IS
$1,920,971.37. AT THE TIME OF ACCEPTANCE THE CONTRACTING OFFICER HAD
RECEIVED NO NOTICE OR CLAIM OF ERROR, AND WE AGREE WITH THE
ADMINISTRATIVE VIEW THAT THE DIFFERENCE BETWEEN THE LEAVELL COMPANY'S
BID AND THE OTHERS RECEIVED IS NOT SO GREAT AS TO WARRANT THE CONCLUSION
THAT HE SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN THE
BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS
IN GOOD FAITH, AND WITHOUT NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, ON THE
PART OF THE GOVERNMENT'S AGENTS OF ANY ERROR. THE ACCEPTANCE OF THE
BID, IN THE CIRCUMSTANCES INVOLVED, 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.
THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN
RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS
CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. WHILE IT MAY BE
THAT ERRORS WERE MADE IN THE BID, IT IS CLEAR THAT SUCH ERRORS WERE DUE
SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WERE IN NO WAY
INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET
AL., 93 U.S. 55, 61. ANY ERRORS THAT WERE MADE IN THE BID WERE
UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DO NOT ENTITLE THE COMPANY
TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249;
SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652;
AND 26 ID. 415.
ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL
BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. AT/29-1/-1503,
AS REQUESTED BY C. H. LEAVELL AND COMPANY.
THE PAPERS, WITH THE EXCEPTION OF A REPORT DATED APRIL 23, 1956, FROM
THE CHIEF, ENGINEERING AND CONSTRUCTION BRANCH, LOST ALAMOS AREA OFFICE,
ARE RETURNED.
B-129156, SEP. 26, 1956
TO LIEUTENANT COLONEL W. O. ADAMS, USMC, DISBURSING OFFICER,
HEADQUARTERS, UNITED STATES MARINE CORPS:
BY FIRST ENDORSEMENT OF AUGUST 31, 1956, THE COMMANDANT OF THE MARINE
CORPS FORWARDED FOR ADVANCE DECISION A VOUCHER SUBMITTED TO YOU FOR
PAYMENT COVERING PER DIEM TO FIRST LIEUTENANT DONALD L. COX, JR., USMC,
FOR THE PERIODS MAY 2 TO JUNE 8 AND JUNE 16 TO JULY 7, 1956.
IT APPEARS THAT PURSUANT TO ORDERS OF JANUARY 4, AS AMENDED BY ORDERS
OF JANUARY 19, 1956, FROM THE COMMANDANT OF THE MARINE CORPS, LIEUTENANT
COX PROCEEDED FROM HIS STATION AT QUANTICO, VIRGINIA, TO U.S. NAVAL
SCHOOL, IMPERIAL BEACH, CALIFORNIA, FOR TEMPORARY DUTY UNDER INSTRUCTION
AND FOR FURTHER ORDERS TO BE ISSUED UPON COMPLETION OF SUCH TEMPORARY
DUTY. UPON THE COMPLETION OF THE COURSE OF INSTRUCTION ON MAY 1, 1956,
HE REPORTED TO THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA,
PURSUANT TO MODIFYING ORDERS FROM THE COMMANDANT OF THE MARINE CORPS
DATED APRIL 3, 1956, WHICH WERE DELIVERED TO HIM ON MAY 1, AND WHICH
DIRECTED HIM TO SO REPORT FOR TEMPORARY DUTY PENDING ASSIGNMENT TO THE
SECOND SPECIAL COMMUNICATION PLATOON, U.S. MARINE CORPS, WHEN ACTIVATED,
AND FURTHER TRANSPORTATION TO AN OVERSEAS STATION.
IT IS REPORTED THAT GOVERNMENT QUARTERS WERE AVAILABLE AT SAN DIEGO;
THAT HE WAS ON LEAVE DURING THE PERIOD JUNE 9 TO 15, 1956; AND THAT HE
LEFT SAN DIEGO ON JULY 8, 1956, EN ROUTE OVERSEAS. IT IS REPORTED
FURTHER THAT THE SECOND SPECIAL COMMUNICATION PLATOON WAS ACTIVATED AT
THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, ON JUNE 15, 1956; THAT UPON
ITS ACTIVATION IT WAS UNDER ORDERS FOR DEPLOYMENT TO AN OVERSEAS AREA;
AND THAT IT DEPARTED FROM SAN DIEGO UNDER SUCH ORDERS ON JULY 8, 1956.
WHILE IT IS STATED THAT LIEUTENANT COX WAS ASSIGNED TO THE ORGANIZATION
AT SAN DIEGO, THE DATE OF ASSIGNMENT IS NOT SHOWN.
THE ORDERS DID NOT DIRECT THE OFFICER TO REPORT FOR DUTY AT SAN DIEGO
AT ANY TIME. HE WAS TO PERFORM TEMPORARY DUTY AT IMPERIAL BEACH AND AT
SAN DIEGO PENDING ACTIVATION OF A PLATOON WITH WHICH HE WAS TO PROCEED
OVERSEAS. THE ORGANIZATION ITSELF WAS UNDER ORDERS FOR DEPLOYMENT TO AN
OVERSEAS AREA FROM THE TIME OF ITS ACTIVATION. HIS ASSIGNMENT TO THE
ORGANIZATION IN SUCH CIRCUMSTANCES DID NOT CONSTITUTE AN ASSIGNMENT TO
DUTY AT SAN DIEGO, AND HE CONTINUED IN THE TRAVEL STATUS WHILE
PERFORMING TEMPORARY DUTY AT THAT PLACE.
PAYMENT ON THE VOUCHER (RETURNED HEREWITH TOGETHER WITH LIEUTENANT
COX'S ORIGINAL ORDERS) IS AUTHORIZED, IF OTHERWISE CORRECT.
B-129230, SEP. 26, 1956
TO MR. JOHN M. NORMANN:
YOUR LETTER OF SEPTEMBER 7, 1956, REQUESTS INFORMATION REGARDING YOUR
RIGHT TO SUBSTITUTE ANNUAL LEAVE FOR EXCESS SICK LEAVE UPON YOUR
RETIREMENT DECEMBER 31, 1956. YOU SAY THAT ON THAT DATE YOU WILL HAVE
TO YOUR CREDIT 37 DAYS' ANNUAL LEAVE, BUT YOUR CEILING IS LIMITED TO 30
DAYS, AND WILL OWE ON THE SAME DATE FOR 7 DAYS' UNLIQUIDATED SICK LEAVE
BUT HAVE BEEN INFORMED BY YOUR PERSONNEL OFFICER THAT THE SUBSTITUTION
OF 7 DAYS ANNUAL LEAVE FOR 7 DAYS SICK LEAVE WITH THE VIEW TO
LIQUIDATING THE 7 DAYS ADVANCED SICK LEAVE CANNOT BE DONE, CITING 31
COMP. GEN. 525 (524), AS THE AUTHORITY THEREFOR. YOU EXPRESS THE VIEW
THAT THE REFERRED-TO DECISION IS NOT APPLICABLE TO YOUR CASE BECAUSE YOU
DO NOT INTEND TO CONTINUE IN THE SERVICE. YOU ALSO ASK WHETHER: "IF IT
IS HELD THAT EXCESS ANNUAL LEAVE CANNOT BE CONVERTED TO LIQUIDATED SICK
LEAVE OWED AT THE END OF THE CALENDAR YEAR, WOULD THIS ALSO APPLY IF
RETIREMENT TAKES PLACE AS OF NOVEMBER 30, 1956? "
THE REFERRED-TO DECISION HOLDS AS FOLLOWS, QUOTING FROM THE SYLLABUS:
"THERE IS NO AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951,
OR REGULATION ISSUED PURSUANT THERETO, TO SUBSTITUTE ANNUAL LEAVE TO AN
EMPLOYEE'S CREDIT FOR SICK LEAVE PREVIOUSLY GRANTED, FOR THE SOLE
PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A
CALENDAR YEAR.'
WHILE THAT DECISION WAS RENDERED IN A CASE IN WHICH THE EMPLOYEE WAS
TO BE CONTINUED IN THE SERVICE THAT FACT ALONE IS NOT MATERIAL. THAT
DECISION IS FOR APPLICATION IN ALL CASES IN WHICH THE EMPLOYEE APPLIES
FOR AND IS GRANTED SICK LEAVE.
WHEN PROPERLY APPROVED BY THE ADMINISTRATIVE OFFICE CONCERNED AN
EMPLOYEE IS ENTITLED TO USE ANNUAL LEAVE TO HIS CREDIT TO COVER ABSENCE
FROM DUTY FOR ANY REASON; OR SUBJECT TO ADMINISTRATIVE
APPROVAL AN EMPLOYEE MAY BE ADVANCED NOT TO EXCEED 30 DAYS' SICK
LEAVE UNDER CERTAIN CIRCUMSTANCES. THIS VESTS IN AN EMPLOYEE THE RIGHT
OF ELECTION AS TO THE TYPE OF LEAVE HE WILL USE AT THE TIME. WHEN THE
RIGHT OF ELECTION AS TO THE TYPE OF LEAVE HAS BEEN EXERCISED AND THE
EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY ON
ACCOUNT OF ILLNESS BASED UPON HIS APPROVED APPLICATION FOR SICK LEAVE,
THE EMPLOYEE MUST BE REGARDED AS HAVING ELECTED TO RECEIVE A VALUABLE
STATUTORY RIGHT. THE RIGHT OF THE EMPLOYEE HAVING BECOME VESTED AND THE
OBLIGATION OF THE GOVERNMENT HAVING BEEN DISCHARGED UNDER THE ELECTION,
SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE IN THE ABSENCE OF A
LAW, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, PROVIDING
THEREFOR.
SINCE THE PURPOSE OF YOUR REQUEST TO HAVE SEVEN DAYS OF ANNUAL LEAVE
SUBSTITUTED FOR A LIKE AMOUNT OF SICK LEAVE WOULD BE TO AVOID A
FORFEITURE OF THE ANNUAL LEAVE AT THE TIME OF YOUR SEPARATION IF NOT
USED IN KIND BY THAT TIME, THE HOLDING IN THE CITED DECISION APPLIES TO
YOUR CASE, AND THE SAME PRINCIPLE WOULD APPLY SHOULD YOU RETIRE NOVEMBER
30, 1956.
B-122688, SEP. 25, 1956
TO THE SECRETARY OF STATE:
REFERENCE IS MADE TO A LETTER DATED JULY 10, 1956, WITH ENCLOSURES,
SIGNED BY MR. I. W. CARPENTER, JR., ASSISTANT SECRETARY-CONTROLLER,
REQUESTING RECONSIDERATION OF THE ACTION OF OUR FORMER DIVISION OF
AUDITS HOLDING NICHOLAS FORTUCCI RESPONSIBLE FOR A $270 SHORTAGE IN THE
JANUARY 1954 ACCOUNTS OF MISS ANITA R. WHARTON, UNITED STATES DISBURSING
OFFICER, HABANA, CUBA.
THE RECORD BEFORE OUR OFFICE INDICATES THAT MR. FORTUCCI, UNDER
PROPER AUTHORIZATION, TOOK OVER THE DISBURSING FUNCTIONS OF MISS WHARTON
FROM JANUARY 15 TO 28, 1954, WHILE SHE WAS ABSENT ON OFFICIAL LEAVE;
THAT THE FUNDS, INCLUDING CASH, WERE IN BALANCE AT THE TIME HE TOOK OVER
AND THE CASH WAS $270 SHORT WHEN CHECKED BY MR. FORTUCCI SHORTLY PRIOR
TO MISS WHARTON'S RETURN; AND THAT ALL EFFORTS TO ASCERTAIN THE CAUSE
OF SUCH SHORTAGE HAVE FAILED TO REVEAL ANY DEFINITE EXPLANATION THEREOF.
BY LETTER OF MAY 11, 1954, ASSISTANT SECRETARY OF STATE, EDWARD T.
WAILEZ, REQUESTED OUR OFFICE TO RELIEVE MISS WHARTON OF RESPONSIBILITY
FOR THIS SHORTAGE UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1947, 61
STAT. 720, ADVISING THAT WHILE NO EXPLANATION OF THE LOSS HAD BEEN
DISCOVERED IT HAD BEEN DETERMINED THAT IT DID NOT OCCUR AS A RESULT OF
ANY FAULT OR NEGLIGENCE ON THE PART OF MISS WHARTON OR MR. FORTUCCI. IN
RESPONSE THERETO, OUR DIVISION OF AUDITS ADVISED YOUR DEPARTMENT BY
LETTER OF MARCH 10, 1955, THAT RELIEF UNDER THE ACT HAD BEEN GRANTED TO
MISS WHARTON, BUT THAT, SINCE MR. FORTUCCI WAS IN COMPLETE CUSTODY OF
THE FUNDS WHEN THE SHORTAGE OCCURRED AND WAS UNABLE TO FURNISH ANY
SATISFACTORY EXPLANATION THEREOF, THERE WAS PRIMA FACIE EVIDENCE OF
NEGLIGENCE ON HIS PART AND HE MUST BE HELD FINANCIALLY RESPONSIBLE FOR
THE SHORTAGE. THE LETTER OF JULY 10, 1956, REQUESTS RECONSIDERATION OF
THE MATTER AND FORWARDS TWO LETTERS FROM MR. FORTUCCI PERTAINING
THERETO.
A DISBURSING OFFICER IS AN INSURER OF THE PUBLIC FUNDS IN HIS CUSTODY
AND IS EXCUSABLE ONLY FOR LOSS DUE TO ACTS OF GOD OR THE PUBLIC ENEMY.
UNITED STATES V. THOMAS, 15 WALL. 337. THIS LIABILITY IS UNAFFECTED BY
LACK OF NEGLIGENCE ON THE PART OF THE DISBURSING OFFICER, OR THE ABSENCE
OF EVIDENCE THAT HE MISAPPROPRIATED THE FUNDS OR THAT THE LOSS RESULTED
FROM HIS FAULT. UNITED STATES V. PRESCOTT, 3 HOW. 578; SMYTHE V.
UNITED STATES 188 U.S. 156; 18 COMP. GEN. 639 AND CASES CITED THEREIN.
SINCE THE LOSS OCCURRED DURING THE PERIOD WHEN MR. FORTUCCI HAD
OFFICIALLY ASSUMED THE DISBURSING FUNCTION OF THE EMBASSY, THE LIABILITY
THEREFOR CLEARLY ATTACHES TO HIM. SEE IN THIS CONNECTION SECTION
022.11E OF THE FOREIGN SERVICE MANUAL, PART V.
THE ACT OF AUGUST 1, 1947, 61 STAT. 720, AS AMENDED BY THE ACT OF
AUGUST 9, 1955, 69 STAT. 626, AUTHORIZES THE GENERAL ACCOUNTING OFFICE
TO RELIEVE DISBURSING OFFICERS OF RESPONSIBILITY FOR PHYSICAL LOSS OR
DEFICIENCY OF GOVERNMENT FUNDS IF THE HEAD OF THE DEPARTMENT CONCERNED
DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE THE OFFICER
WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTY, OR THE LOSS OR
DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF HIS SUBORDINATE;
AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR
NEGLIGENCE ON THE PART OF THE OFFICER, AND THE GENERAL ACCOUNTING OFFICE
CONCURS WITH SUCH DETERMINATIONS AFTER CONSIDERATION OF THE PERTINENT
FINDINGS.
IN THE PRESENT INSTANCE, THE EVIDENCE PRESENTED TO US CLEARLY
INDICATES THAT THE FUNDS IN QUESTION DISAPPEARED WHILE IN THE SOLE
CUSTODY OF MR. FORTUCCI. THE LETTER OF JULY 10, 1956, STATES THAT THERE
IS NO EVIDENCE WHICH WOULD SUPPORT ANY SUSPICION OF THEFT, AND IT IS
UNDERSTOOD THE REPORT OF THE ACTING SECURITY OFFICER AT HABANA INDICATES
THAT NEITHER THE SAFE NOR THE COMPARTMENT WITHIN THE SAFE SHOWED
INDICATION OF TAMPERING. ALSO, THERE IS NOTHING IN THE RECORD TO
SUPPORT AN INFERENCE THAT MR. FORTUCCI PERSONALLY TOOK THE MONEY, AND IT
SHOULD BE CLEARLY UNDERSTOOD THAT NO SUCH ALLEGATION OR INFERENCE IS
MADE BY OUR OFFICE. LIKEWISE, THERE IS NO POSITIVE OR AFFIRMATIVE
EVIDENCE OF NEGLIGENCE ON THE PART OF MR. FORTUCCI. HOWEVER, THE MERE
FACT THAT AN UNEXPLAINED SHORTAGE OF FUNDS OCCURRED IS, IN AND OF
ITSELF, SUFFICIENT TO RAISE AN INFERENCE OF NEGLIGENCE. A GOVERNMENT
OFFICIAL CHARGED WITH THE HANDLING OF PUBLIC MONEYS IS EXPECTED TO
EXERCISE THE HIGHEST DEGREE OF CARE IN THE PERFORMANCE OF HIS DUTY AND,
WHEN FUNDS DISAPPEAR WITHOUT EXPLANATION OR EVIDENT REASON, THE
PRESUMPTION NATURALLY ARISES THAT THE OFFICIAL HAVING CUSTODY OF SUCH
FUNDS WAS DERELICT IN SOME WAY.
ACCORDINGLY, WHILE WE SYMPATHIZE WITH THE FEELINGS OF MR. FORTUCCI,
IN THE ABSENCE OF EVIDENCE AS TO WHAT ACTUALLY HAPPENED TO THE MISSING
MONEY FROM WHICH IT MAY BE DETERMINED THAT THE DISAPPEARANCE WAS NOT DUE
TO HIS FAULT OR NEGLIGENCE, WE ARE UNABLE TO CONCUR WITH THE
ADMINISTRATIVE DETERMINATION OF LACK OF NEGLIGENCE, AND, HENCE, CANNOT
GRANT RELIEF ON THE BASIS OF THE PRESENT RECORD. IT IS THEREFORE AGAIN
SUGGESTED THAT APPROPRIATE ACTION BE TAKEN TO COLLECT THE SHORTAGE OF
$270.00 FROM MR. FORTUCCI OR HIS SURETY AND THAT WE BE ADVISED UPON
COMPLETION OF SUCH COLLECTION.
B-128865, SEP. 25, 1956
TO MR. DEWEL A. JACKSON:
FURTHER REFERENCE IS MADE TO YOUR LETTER RELATIVE TO YOUR CLAIM FOR
COMPENSATION WHILE YOU WERE ON LEAVE WITHOUT PAY FROM YOUR POSITION AS A
SECURITY GUARD DURING THE PERIOD JUNE 28 THROUGH AUGUST 27, 1955, AS AN
EMPLOYEE OF THE THEODORE TERMINAL, THEODORE, ALABAMA.
THE RECORDS SHOW THAT AS A RESULT OF A PHYSICAL EXAMINATION YOU WERE
FOUND TO BE PHYSICALLY UNABLE TO PERFORM THE DUTIES OF THE POSITION TO
WHICH YOU WERE ASSIGNED. AS A CONSEQUENCE, YOU WERE PLACED ON SICK AND
ANNUAL LEAVE FROM JUNE 28 THROUGH JULY 12, 1955, WHEN YOUR LEAVE WITH
PAY WAS EXHAUSTED. THEREAFTER, YOU WERE CARRIED ON THE ROLLS IN A LEAVE
WITHOUT PAY STATUS FOR THE PERIOD JULY 13 THROUGH AUGUST 23, 1955, OR A
TOTAL OF 225 HOURS. FOR THE PERIOD AUGUST 24 THROUGH AUGUST 26, 1955,
YOU WERE ALLOWED AND PAID FOR SIXTEEN HOURS ANNUAL LEAVE AND EIGHT HOURS
SICK LEAVE WHICH HAD ACCRUED TO YOUR CREDIT. ON AUGUST 27, 1955, YOU
WERE RETURNED TO DUTY AS A CONSEQUENCE OF A FURTHER MEDICAL EXAMINATION
WHICH DISCLOSED THAT YOUR ILLNESS HAD BEEN ALLEVIATED TO THE EXTENT THAT
YOU COULD AGAIN RESUME THE DUTIES OF YOUR POSITION.
IT APPEARS FROM YOUR LETTER THAT YOU ARE CLAIMING COMPENSATION ONLY
FOR THE PERIOD WHEN YOU WERE CARRIED IN A LEAVE WITHOUT PAY STATUS
PENDING THE DETERMINATION OF YOUR PHYSICAL FITNESS TO PERFORM THE DUTIES
OF THE POSITION TO WHICH APPOINTED.
THE ONLY STATUTORY AUTHORITY FOR PAYMENT OF BACK-PAY OF WHICH WE ARE
AWARE IS CONTAINED IN THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT.
355, WHICH PROVIDES FOR THE PAYMENT OF BACK SALARY TO EMPLOYEES UPON
RESTORATION TO DUTY FOR PERIODS OF "UNJUSTIFIED OR UNWARRANTED"
REMOVALS, SUSPENSIONS, OR FURLOUGHS WITHOUT PAY FROM THE FEDERAL
SERVICE. THE STATUTE DOES NOT APPLY TO CASES SUCH AS YOURS WHERE AN
EMPLOYEE THROUGH ILLNESS IS PREVENTED FROM WORKING. IN A CASE SOMEWHAT
ANALOGOUS TO YOURS, INVOLVING AN APPEAL UNDER SECTION 6 (A) OF PUBLIC
LAW 623, IT WAS HELD (30 COMP. GEN. 342) THAT THE INVOLUNTARY PLACING OF
AN EMPLOYEE ON LEAVE WITHOUT PAY PENDING ACTION UPON A DISABILITY
RETIREMENT APPLICATION WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN
THE MEANING OF THE BACK-PAY PROVISIONS OF PUBLIC LAW 623, SO AS TO
ENTITLE THE EMPLOYEE, UPON RESTORATION TO DUTY, TO COMPENSATION FOR THE
LEAVE WITHOUT PAY PERIOD.
ACCORDINGLY, AS PLACING YOU ON LEAVE WITHOUT PAY PENDING TREATMENT
AND A FURTHER DETERMINATION AS TO YOUR PHYSICAL FITNESS TO PERFORM THE
DUTIES ASSIGNED TO YOU DID NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED
DISCHARGE, SUSPENSION OR FURLOUGH WITHIN THE PURVIEW OF PUBLIC LAW 623,
WE ARE NOT AUTHORIZED TO ALLOW THE COMPENSATION CLAIMED. THE CONCLUSION
REACHED IN OUR SETTLEMENT OF JULY 12, 1956, THEREFORE, IS CORRECT AND
MUST BE SUSTAINED.
B-128893, SEP. 25, 1956
TO THE POSTMASTER GENERAL:
OUR AUDIT OF THE POST OFFICE DEPARTMENT REGIONAL CONTROLLER OFFICE AT
NEW YORK, NEW YORK, DISCLOSED THAT THE GRADE, TIME IN GRADE, AND RATE OF
COMPENSATION OF TEN CLERKS IN THE NEW YORK CITY POST OFFICE WERE
MEASURED UNDER THE ACT OF JULY 31, 1946, 60 STAT. 749, PUBLIC LAW 577,
79TH CONGRESS, AS AMENDED BY THE ACT OF APRIL 29, 1950, 64 STAT. 93,
PUBLIC LAW 492, 81ST CONGRESS, BY THE GRADE, TIME IN GRADE, AND RATE OF
COMPENSATION OF A LOWER RANKING ELIGIBLE, OSCAR G. GUY, WHO PRIOR TO HIS
PROBATIONAL APPOINTMENT AS A SUBSTITUTE CLERK HAD RENDERED POSTAL
SERVICE WHICH APPARENTLY WAS CREDITED FOR PROMOTION PURPOSES.
AS A RESULT THE TEN VETERAN ELIGIBLES, WHO HAD RECEIVED PROBATIONAL
APPOINTMENTS AS SUBSTITUTE CLERKS AFTER MILITARY SERVICE, WERE PLACED IN
HIGHER GRADES ON AUGUST 1, 1946, THE EFFECTIVE DATES OF THE ACTS CITED,
AND RECEIVED GREATER COMPENSATION DURING CERTAIN PERIODS FROM THAT DATE
THAN THEY WOULD HAVE BEEN ENTITLED TO HAD THEY RECEIVED A PROBATIONAL
APPOINTMENT IN THE POSTAL SERVICE WHEN THEIR NAMES WERE REACHED FOR
PROBATIONAL APPOINTMENT ON A CIVIL SERVICE REGISTER PRIOR TO THEIR
MILITARY SERVICE. IN ADDITION, THESE EMPLOYEES HAVE RECEIVED LONGEVITY
INCREASES IN COMPENSATION BASED UPON THE LOWER ELIGIBLE'S SERVICE, AT
EARLIER DATES THAN THEY WOULD HAVE BEEN ENTITLED TO RECEIVE THAN HAD
THEY BEEN APPOINTED WHEN THEIR NAMES WERE REACHED ON THE REGISTER.
PUBLIC LAW 577, 60 STAT. 749, PROVIDED, IN PART, AS FOLLOWS:
"THAT (A) ANY PERSON---
"/1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (B) AT ANY
TIME BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943, WITH RESPECT TO A
POSITION IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT,
"/2) WHO, PURSUANT TO EXECUTIVE ORDER NUMBERED 9538, DATED APRIL 13,
1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR
SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL
APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS
CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND,
SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT,
SHALL, FOR THE PURPOSE OF (A) DETERMINING HIS RATE OF COMPENSATION
AND (B) HIS SENIORITY RIGHTS IN THE POSTAL FIELD SERVICE, BE HELD TO
HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN
ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A
PROBATIONAL APPOINTMENT THEREFROM: * * *"
PUBLIC LAW 492 AMENDED PUBLIC LAW 577 BY ADDING THE FOLLOWING
PROVISO, WHICH WAS EFFECTIVE AS OF AUGUST 1, 1946, WITH RESPECT TO THOSE
EMPLOYEES STILL IN THE POSTAL SERVICE ON THE DATE OF ENACTMENT THEREOF:
"THAT THE GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF ANY
PERSON SO APPOINTED TO A POSITION IN THE POSTAL FIELD SERVICE SHALL, AT
THE TIME THIS ACT FIRST APPLIES TO SUCH PERSON, BE NOT LESS THAN THE
GRADE, TIME IN GRADE, AND RATE OF COMPENSATION OF THE LOWER ELIGIBLE
(WHETHER A SUBSTITUTE OR REGULAR EMPLOYEE) RECEIVING THE HIGHEST
AUTOMATIC RATE OF COMPENSATION AT SUCH TIME, BUT SUCH ADJUSTMENT IN
GRADE, TIME IN GRADE, AND RATE OF COMPENSATION SHALL NOT AFFECT THE
STATUS OF SUCH PERSON AS A SUBSTITUTE OR REGULAR EMPLOYEE.'
IT IS STATED IN SENATE REPORT NO. 1483, 81ST CONGRESS, ACCOMPANYING
H.R. 4285 WHICH BECAME PUBLIC LAW 492 AS FOLLOWS:
"THE PURPOSE OF H.R. 4285 IS TO INCREASE THE RATES OF CERTAIN
SUBSTITUTE EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT
WHEN IT IS FOUND THAT BY REASON OF THEIR MILITARY SERVICE THEY ARE
ACTUALLY RECEIVING LESS PAY THAN THEY OTHERWISE WOULD HAVE RECEIVED HAD
THEY BEEN PRIVILEGED TO ACCEPT APPOINTMENTS IN THE FIELD SERVICE BETWEEN
MAY 1, 1940, AND OCTOBER 23, 1943. UNDER THE PROVISIONS OF THE BILL
THESE SUBSTITUTE EMPLOYEES, WHO ARE SUBJECT TO THE MCCORMACK ACT (PUBLIC
LAW 577) BUT WHO ARE RECEIVING A LOWER RATE OF PAY THAN AN EMPLOYEE WHO
WAS LOWER ON THE REGISTER FROM WHICH HE WAS APPOINTED, WILL BE PLACED IN
THE SAME SALARY GRADE AS SUCH ELIGIBLE STANDING LOWER ON THE REGISTER.
"ALL EMPLOYEES IN THE POSTAL SERVICE ENTITLED TO THE BENEFITS OF
PUBLIC LAW 577 RECEIVE FOUR ADDITIONAL GRADES WHEN THEY ARE APPOINTED TO
REGULAR POSITIONS. SUCH EMPLOYEES WHO WERE ENTITLED TO BENEFITS UNDER
PUBLIC LAW 577, AND WHO ARE STILL SUBSTITUTES, ARE RECEIVING SALARIES
WHICH ARE FOUR GRADES LOWER THAN THOSE OF REGULAR EMPLOYEES OF
COMPARABLE OR EQUIVALENT SERVICE.
"THIS INEQUITY AROSE FROM THE ABSENCE OF THE FIELD EMPLOYEE ON
MILITARY DUTY WHICH CAUSED HIM TO LOSE THE OPPORTUNITY FOR REGULAR
APPOINTMENT. THIS INEQUITY WAS NOT APPARENT AT THE TIME OF ENACTMENT OF
PUBLIC LAW 577.'
WE FIND NOTHING IN THIS REPORT OR IN THE LEGISLATIVE HISTORY OF
PUBLIC LAW 492 WHICH INDICATES THAT CONGRESS INTENDED TO GIVE VETERAN
ELIGIBLES BENEFITS GREATER THAN THEY WOULD HAVE RECEIVED HAD THEY BEEN
APPOINTED WHEN THEIR NAMES WERE REACHED ON A CIVIL SERVICE REGISTER
BETWEEN MAY 1, 1940, AND OCTOBER 23, 1943. THEREFORE, WE CONCLUDE THAT
PUBLIC LAW 492 DOES NOT AUTHORIZE THE PLACING OF ANY VETERAN ELIGIBLE IN
A STATUS MORE FAVORABLE THAN THAT HE WOULD HAVE OCCUPIED HAD HE NOT
ENTERED THE MILITARY SERVICE AND HAD HE RECEIVED A PROBATIONAL
APPOINTMENT AT THE TIME HIS NAME WAS REACHED ON A CIVIL SERVICE
REGISTER. THAT IS TO SAY, THAT THE INVOLVED VETERAN ELIGIBLES' GRADE,
TIME IN GRADE, AND RATE OF COMPENSATION SHOULD BE MEASURED BY THE GRADE,
TIME IN GRADE, AND RATE OF COMPENSATION OF THE LOWER ELIGIBLE RECEIVING
THE HIGHEST AUTOMATIC RATE OF COMPENSATION AT THE TIME PUBLIC LAW 577,
AS AMENDED, FIRST APPLIED TO THE VETERAN ELIGIBLES, EXCLUDING LOWER
ELIGIBLES WHO PRIOR TO THEIR PROBATIONAL APPOINTMENT FROM THE SAME LIST
OF ELIGIBLES HAD RENDERED POSTAL SERVICE CREDITABLE FOR PROMOTION
PURPOSES.
HOWEVER, SINCE THE INTERPRETATION PLACED BY YOUR DEPARTMENT ON PUBLIC
LAW 492 DOES NOT APPEAR UNREASONABLE UNDER A LITERAL READING OF ITS
LANGUAGE, WE SHALL NOT INSIST THAT RECOVERY OF THE SALARY OVERPAYMENTS
BE MADE FROM THE INVOLVED EMPLOYEES WITH THE UNDERSTANDING THAT THEIR
LONGEVITY CREDITS AND RATE OF COMPENSATION BE TIMELY ADJUSTED IN
ACCORDANCE WITH THE FOREGOING. COMPARE B-125973, DATED DECEMBER 27,
1955, INVOLVING A STATUTE SIMILAR TO PUBLIC LAW 577, BUT WHICH DID NOT
CONTAIN A PROVISO SUCH AS ADDED TO PUBLIC LAW 577 BY PUBLIC LAW 492.
B-128933, SEP. 25, 1956
TO MR. ROBERT J. BURGESS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1956, REQUESTING REVIEW OF
THE DEBT CHARGE AGAINST YOU IN THE AMOUNT OF $264 ON ACCOUNT OF
ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO GERALDINE F. BURGESS, YOUR
FORMER WIFE, FOR THE PERIOD FROM MAY 1, 1944, THROUGH APRIL 30, 1945,
WHILE YOU WERE SERVING IN THE ARMY.
IT APPEARS THAT YOU APPLIED FOR THE FAMILY ALLOWANCE FOR GERALDINE F.
BURGESS TO BE EFFECTIVE WITH THE MONTH OF MAY 1943; THAT SUCH ALLOWANCE
WAS PAID TO HER AT THE RATE OF $50 A MONTH THROUGH APRIL 1945; AND THAT
DEDUCTIONS OF $22 A MONTH AS YOUR CONTRIBUTION TO SUCH ALLOWANCE WERE
MADE FROM YOUR PAY THROUGH JUNE 1945. IN MAY 1945 GERALDINE F. BURGESS
NOTIFIED THE WAR DEPARTMENT THAT SHE WAS THEN DIVORCED FROM YOU. IN THE
SAME MONTH YOUR MOTHER, MRS. ANNA BURGESS, FURNISHED THAT DEPARTMENT A
COPY OF A FINAL JUDGMENT OF DIVORCE ENTERED ON MAY 4, 1945, IN THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF
ALAMEDA, IN THE CASE OF GERALDINE FRANCES BURGESS, PLAINTIFF, V. ROBERT
JOHN BURGESS, DEFENDANT. IN THAT FINAL JUDGMENT OF DIVORCE IT WAS SHOWN
THAT AN INTERLOCUTORY JUDGMENT OF DIVORCE IN FAVOR OF THE PLAINTIFF WAS
ENTERED ON APRIL 14, 1944. AFTER THE RECEIPT OF SUCH NOTICES, THE WAR
DEPARTMENT ON MAY 28, 1945, DISCONTINUED THE FAMILY ALLOWANCE IN THIS
CASE, EFFECTIVE APRIL 30, 1944, RESULTING IN AN OVERPAYMENT FOR THE
PERIOD FROM MAY 1, 1944, THROUGH APRIL 30, 1945, IN THE AMOUNT OF $600.
THE SUM OF $264, REPRESENTING DEDUCTIONS FROM YOUR PAY AT THE RATE OF
$22 A MONTH FOR THE 12-MONTH PERIOD FROM MAY 1, 1944, TO APRIL 30, 1945,
WAS INCLUDED IN THE AMOUNT REFUNDED TO YOU ON VOUCHER NO. 693, AUGUST
1945 ACCOUNTS OF T. ROOT.
IT IS YOUR CONTENTION THAT THE OVERPAYMENT WAS MADE TO GERALDINE F.
BURGESS AT A TIME WHEN YOU WERE NO LONGER FINANCIALLY RESPONSIBLE FOR
HER AND THAT YOU ARE NEITHER LEGALLY NOR MORALLY OBLIGATED TO REPAY THIS
AMOUNT. YOU SAY THAT THE CHECKS WERE FRAUDULENTLY CASHED BY YOUR
DIVORCED
WIFE AND THAT YOU DID NOT SANCTION OR CONCUR IN SUCH ACTION. YOU SA
ALSO THAT YOU SUBMITTED ,FIRST PAPERS" TO THE ARMY PERSONNEL CLERK
OVERSEAS IN MAY 1944, BUT THAT NOTHING WAS DONE AT THAT TIME.
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, 56 STAT. 383, AS AMENDED BY SECTION 6
(C) OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 578, PROVIDED:
"/C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS TITLE, IN ANY CASE
IN WHICH A FAMILY ALLOWANCE IS GRANTED UNDER THIS TITLE---
"/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 AMOUNT OF 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 107 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942,
56 STAT. 382, 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 107
OF THE ACT, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 579,
PROVIDED THAT:
"/B) THE MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE
PAID FOR THE PERIOD BEGINNING * * * AND SHALL BE TERMINATED OR REDUCED,
AS MAY BE REQUIRED, ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING
OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF
THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED OR LIMITED THE RIGHT OF
HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE: PROVIDED, THAT
THE ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT
THE END OF THE MONTH IN WHICH SUCH CHANGE IN STATUS OF THE ENLISTED MAN
OR A DEPENDENT OCCURS * * *.'
SECTION 111 OF THE ACT, 56 STAT. 384, PROVIDED THAT THE ACT SHOULD BE
ADMINISTERED BY THE SECRETARY OF WAR IN ITS APPLICATION TO ENLISTED MEN
OF THE ARMY AND SECTION 112 PROVIDED THAT THE DETERMINATION OF ALL
FACTS, INCLUDING THE FACT OF DEPENDENCY, WHICH IT SHOULD BE NECESSARY TO
DETERMINE IN THE ADMINISTRATION OF THE ACT, SHOULD BE MADE BY HIM AND
SHOULD BE FINAL AND CONCLUSIVE FOR ALL PURPOSES. WHILE THERE HAS NOT
BEEN PRESENTED TO OUR OFFICE A COPY OF THE INTERLOCUTORY JUDGMENT OF
DIVORCE, IN VIEW OF THE DETERMINATION OF THE WAR DEPARTMENT THAT YOUR
FORMER WIFE WAS NOT ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS AFTER
APRIL 1944, PRESUMABLY THAT JUDGMENT DID NOT REQUIRE YOU TO CONTRIBUTE
TO HER SUPPORT. DEMAND WAS ORIGINALLY MADE ON YOU FOR THE SUM OF $600,
THE FULL AMOUNT OF THE OVERPAYMENT FOR THE PERIOD FROM MAY 1, 1944, TO
APRIL 30, 1945, BUT THE DEMAND, AS REVISED, WAS FOR $264, REPRESENTING
YOUR CONTRIBUTION OF $22 A MONTH TO THE FAMILY ALLOWANCE FOR THE
12-MONTH PERIOD IN QUESTION.
YOUR ATTENTION IS INVITED TO OUR DECISION OF JANUARY 27, 1954,
B-116606, B-118807, 33 COMP. GEN. 309, 312, WHERE, AS TO FAMILY
ALLOWANCE PAYMENTS MADE WHILE THE ENLISTED MAN CONCERNED WAS IN THE
SERVICE, IT WAS POINTED OUT THAT THE ENLISTED MAN WOULD BE JOINTLY
LIABLE WITH THE RECIPIENT OF THE FAMILY ALLOWANCE FOR DEDUCTIONS NOT
MADE FOR ANY INTERVENING MONTHS BETWEEN THE CHANGE OF STATUS AND THE
DATE THE DISBURSING OFFICER RECEIVED NOTICE. HE WOULD NOT BE LIABLE FOR
THE AMOUNT OF THE GOVERNMENT'S CONTRIBUTION TO SUCH FAMILY ALLOWANCE
PAYMENTS FOR SUCH INTERVENING MONTHS, UNLESS IT WAS SHOWN THAT HE WAS AT
FAULT.
ON SUCH BASIS, YOU ARE PROPERLY CHARGEABLE WITH THE AMOUNT OF YOUR
CONTRIBUTION TO THE FAMILY ALLOWANCE--- $22 A MONTH--- FOR THE PAYMENTS
MADE TO YOUR FORMER WIFE FOR THE PERIOD FROM MAY 1, 1944, TO APRIL 30,
1945. ACCORDINGLY, THE MATTER IS AGAIN BEING BROUGHT TO THE ATTENTION
OF THE SECRETARY OF THE NAVY FOR APPROPRIATE ACTION.
B-128933, SEP. 25, 1956
TO THE HONORABLE SECRETARY OF THE NAVY:
BY LETTER DATED MARCH 27, 1956, DW-Z 409330-JBB-5, THE INDEBTEDNESS
OF ROBERT J. BURGESS IN THE AMOUNT OF $264 WAS REPORTED FOR YOUR
CONSIDERATION UNDER PUBLIC LAW 497, APPROVED JULY 15, 1954, 68 STAT.
482, AS IMPLEMENTED BY DEPARTMENT OF DEFENSE DIRECTIVE NO. 7330.2,
DATED NOVEMBER 23, 1955, AS THE RECORD INDICATED THAT HE WAS THEN
EMPLOYED AS A MECHANIC BY THE UNITED STATES NAVAL AIR STATION AT
ALAMEDA, CALIFORNIA.
BY THIRD INDORSEMENT DATED MAY 9, 1956, THE CHIEF, ADMINISTRATION
BRANCH, CIVILIAN PERSONNEL DIVISION, EXECUTIVE BRANCH, HEADQUARTERS
SACRAMENTO AIR MATERIAL AREA, MCCLELLAN, CALIFORNIA, FORWARDED A
STATEMENT FROM MR. BURGESS CONCERNING THE INDEBTEDNESS AND STATED THAT
SINCE HE WAS CONTESTING THE DEBT, FURTHER ACTION WOULD BE HELD IN
ABEYANCE PENDING INSTRUCTIONS FROM OUR OFFICE.
MR. BURGESS' CASE HAS BEEN REVIEWED AND IT HAS BEEN DETERMINED THAT,
AS REPORTED IN THE LETTER DATED MARCH 27, 1956, HE IS INDEBTED TO THE
UNITED STATES IN THE AMOUNT OF $264. ACCORDINGLY, FURTHER CONSIDERATION
BY YOUR DEPARTMENT WITH A VIEW TO RECOVERY OF SUCH AMOUNT AND
INFORMATION AS TO COLLECTIONS WILL BE APPRECIATED. A COPY OF OUR LETTER
OF TODAY TO MR. BURGESS IS ENCLOSED.
B-128935, SEP. 25, 1956
TO MR. RAYMOND K. HARRIS:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 17, 1956, FORWARDED TO
OUR OFFICE BY AFFC FORM 610-13, DATED MAY 31, 1955 (1956), BY THE
DEPARTMENT OF THE AIR FORCE CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE
FOR QUARTERS ON ACCOUNT OF A DEPENDENT MOTHER FOR THE PERIOD JANUARY 1
TO JULY 30, 1950, INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR
FORCE.
BY SETTLEMENT DATED JULY 5, 1951, OF OUR CLAIMS DIVISION, YOU WERE
ADVISED THAT SINCE DURING THE PERIOD OF YOUR CLAIM YOUR MOTHER DID NOT
ACTUALLY RESIDE WITH YOU, BUT RATHER, EXCEPT FOR A SHORT PERIOD OF
HOSPITALIZATION, SHE RESIDED WITH YOUR SISTER, THERE WAS NO AUTHORITY
FOR THE ALLOWANCE OF SUCH CLAIM. IN THE LETTER OF MARCH 17, 1956, YOU
SAY THAT DURING THE PERIOD INVOLVED IT WAS IMPOSSIBLE FOR YOUR MOTHER TO
RESIDE WITH YOU SINCE YOU WERE HOSPITALIZED. YOU URGE YOUR CLAIM BE
ALLOWED ON THE BASIS THAT YOU PAID HER RENT AND DOCTOR BILLS.
IN OUR DECISION OF DECEMBER 19, 1949, B-90278, 29 COMP. GEN. 280,
COPY ENCLOSED, IT WAS POINTED OUT THAT THE INCREASED BASIC ALLOWANCE FOR
QUARTERS ON ACCOUNT OF A DEPENDENT PARENT IS NOT PAYABLE PRIMARILY ON
ACCOUNT OF THE DEPENDENCY OF THE PARENT, BUT IS TO PROVIDE A MEMBER WITH
AN ALLOWANCE WHERE NECESSARY TO OBTAIN QUARTERS FOR HIMSELF AND HIS
DEPENDENT AT OR NEAR HIS PERMANENT STATION IN CASE THE GOVERNMENT IS NOT
ABLE TO FURNISH HIM WITH FAMILY QUARTERS AT SUCH STATION. IN YOUR CASE,
IT APPEARS THAT DURING THE PERIOD INVOLVED YOU DID NOT PROVIDE QUARTERS
FOR YOUR ALLEGED DEPENDENT MOTHER, SINCE IN A PRIOR LETTER YOU STATED
THAT, EXCEPT FOR A SHORT PERIOD WHILE SHE WAS HOSPITALIZED SHE RESIDED
WITH YOUR SISTER. THEREFORE, PAYMENT TO YOU OF AN INCREASED BASIC
ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT MOTHER UNDER SECTION
302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, IS NOT
AUTHORIZED, IT NOT BEING ESTABLISHED THAT YOUR MOTHER ACTUALLY RESIDED
IN YOUR HOUSEHOLD AS REQUIRED BY SECTION 102 (G) OF THAT ACT TO
CONSTITUTE YOUR MOTHER A "DEPENDENT" FOR SUCH PURPOSES.
RESPECTING YOUR CONTENTION THAT YOU SHOULD NOT BE DENIED THE
ALLOWANCE FOR THE PERIOD INVOLVED SINCE YOUR MOTHER WAS NOT ABLE TO
RESIDE WITH YOU BECAUSE SHE WAS UNDER A DOCTOR'S CARE, YOUR ATTENTION IS
INVITED TO THE ANSWER TO THE SIXTH AND SEVENTH QUESTIONS CONSIDERED IN
THE ENCLOSED COPY OF OUR DECISION. IT WILL BE NOTED THAT IT WAS
CONCLUDED THAT IF A MEMBER'S DEPENDENT PARENT WAS TEMPORARILY ABSENT
FROM HIS HOUSEHOLD FOR A PERIOD NOT TO EXCEED THREE MONTHS AT ANY ONE
TIME, HE MIGHT BE CREDITED WITH A QUARTERS ALLOWANCE FOR SUCH PERIOD OF
ABSENCE AFTER THE RETURN OF THE PARENT TO HIS HOUSEHOLD, PROVIDED THE
PARENT WAS RESIDING IN HIS HOUSEHOLD UP TO THE BEGINNING OF SUCH PERIOD
OF ABSENCE AND PROVIDED THAT THE MEMBER CONTINUED TO MAINTAIN A
HOUSEHOLD FOR HIMSELF AND THE PARENT AT HIS STATION DURING SUCH PERIOD
OF ABSENCE. THE RECORD BEFORE US DOES NOT SHOW THAT ANY OF THOSE
CONDITIONS WERE MET IN YOUR CASE. ACCORDINGLY, THE DISALLOWANCE OF YOUR
CLAIM IS SUSTAINED.
THE MATTER OF YOUR ENTITLEMENT TO ADDITIONAL FOREIGN SERVICE PAY FOR
THE PERIOD OCTOBER 1 TO NOVEMBER 11, 1949, AND FOR BASIC ALLOWANCE FOR
QUARTERS FOR 60 DAYS' ACCRUED LEAVE AT THE TIME OF YOUR RETIREMENT ON
JULY 31, 1950, REFERRED TO IN THE AFFC FORM 610-13, WILL BE THE SUBJECT
OF A FURTHER COMMUNICATION FROM OUR CLAIMS DIVISION.
B-128949, SEP. 25, 1956
TO MISS DOROTHY COOK:
REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1956, REQUESTING REVIEW
OF VOUCHER SETTLEMENT DATED FEBRUARY 9, 1955, WHICH ALLOWED YOUR CLAIM
FOR $18.69, REPRESENTING THE DOLLAR EQUIVALENT OF 6-13-0 POUNDS
STERLING, BRITISH CURRENCY, WHICH WAS EXPENDED BY YOU FOR COMMERCIAL AIR
TRAVEL FROM
PRESTWICK, SCOTLAND, TO LONDON, ENGLAND, INCIDENT TO TRAVEL AS AN
EMPLOYEE OF THE MILITARY SEA TRANSPORTATION SERVICE.
THE RECORD SHOWS THAT OF THE AMOUNT OF $18.69 ALLOWED, $18 WAS
WITHHELD TO LIQUIDATE AN OVERPAYMENT FOR PER DIEM REPORTED TO US BY THE
DEPARTMENT OF THE NAVY. THE OVERPAYMENT WAS MADE ON D.O. VOUCHER NO.
NIF 4, IN THE SEPTEMBER 1953 ACCOUNTS OF R. L. BURKE, SYMBOL 573613,
AND WAS DUE TO A DELAY EN ROUTE APPARENTLY IN NEW YORK FOR YOUR OWN
CONVENIENCE.
IN REQUESTING REVIEW YOU CLAIM AN AMOUNT OF $12.40, REPRESENTING
COMMERCIAL RAIL FARE BETWEEN THE ABOVE POINTS OF TRAVEL. YOU STATE IN
THIS CONNECTION THAT "ALTHOUGH I UTILIZED COMMERCIAL AIR TRANSPORTATION
FROM PRESTWICK TO LONDON, WHICH WAS CONTRARY TO MY TRAVEL ORDERS,
ARTICLE 4159 (3) JOINT TRAVEL REGULATIONS WOULD APPEAR APPLICABLE IN MY
CASE SINCE NO SPECIFIC MODE OF TRAVEL WAS DIRECTED IN MY TRAVEL ORDERS,
WHICH WOULD THEREFORE ENTITLE ME TO REIMBURSEMENT OF A COMMERCIAL RAIL
CARRIER RATE.'
IT IS NOT UNDERSTOOD HOW YOU RELY UPON THE JOINT TRAVEL REGULATIONS
IN CONNECTION WITH YOUR TRAVEL, SINCE THEY APPLY ONLY TO UNIFORMED
PERSONNEL. YOU APPEAR TO BE A CIVILIAN EMPLOYEE AND AS SUCH ARE SUBJECT
TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.
HOWEVER, IN OUR SETTLEMENT OF FEBRUARY 9, 1955, YOU WERE ALLOWED
$18.69 FOR TRAVEL BETWEEN PRESTWICK AND LONDON ON THE BASIS OF
COMMERCIAL AIR FARE WHICH WAS HIGHER THAN COMMERCIAL RAIL FARE AT THE
TIME OF TRAVEL. IT IS THUS APPARENT THAT IF WE WERE TO RECOMPUTE YOUR
FARE IN ACCORDANCE WITH YOUR REQUEST, THE AMOUNT ALLOWABLE PLUS 1/4-DAY
ADDITIONAL PER DIEM OF $2.25, WOULD BE LESS THAN THAT PAID IN OUR
SETTLEMENT AND YOU WOULD BE REQUIRED TO MAKE A REFUND TO THE UNITED
STATES TO LIQUIDATE THE OVERPAYMENT OF PER DIEM.
ON THE BASIS OF THE PRESENT RECORD, OUR SETTLEMENT OF FEBRUARY 9,
1955, IS SUSTAINED.
B-128971, SEP. 25, 1956
TO MR. D. L. PHIPPS, SECRETARY, OREGON STATE BOARD OF FORESTRY:
YOUR LETTER OF MARCH 29, 1956, TO THE SECRETARY OF THE INTERIOR, HAS
BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION, WITH ITS ENCLOSURES,
CONCERNING THE CLAIM OF THE STATE OF OREGON AND THE OREGON FOREST FIRE
ASSOCIATION AGAINST THE UNITED STATES IN THE AMOUNT OF $184,101.89,
REPRESENTING COSTS ALLEGED TO HAVE BEEN INCURRED IN FIGHTING THE
SO-CALLED VINCENT CREEK FOREST FIRE OF 1951, WHICH IS STATED TO HAVE
ORIGINATED ON FOREST LAND OWNED BY THE UNITED STATES AND UNDER THE
JURISDICTION OF THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE
INTERIOR. THERE HAS ALSO BEEN RECEIVED A LETTER DATED AUGUST 22, 1956,
FROM HONORABLE HARRIS ELLSWORTH RELATIVE TO THE MATTER.
IT APPEARS THAT THE FIRE STARTED AUGUST 16, 1951, ON FEDERAL LANDS IN
THE STATE OF OREGON KNOWN AS THE "OREGON AND CALIFORNIA REVESTED LANDS"
AND THE "RECONVEYED COOS BAY WAGON ROAD GRANT LANDS" AND WAS
EXTINGUISHED ON SEPTEMBER 26, 1951, AFTER HAVING BURNED APPROXIMATELY
28,000 ACRES OF FOREST LAND, INCLUDING LAND OWNED BY THE UNITED STATES
(APPROXIMATELY 11,000 ACRES) AND PRIVATELY-OWNED LAND. IT IS STATED IN
THE MEMORANDUM BY THE OREGON STATE BOARD OF FORESTRY DATED FEBRUARY 29,
1956, TRANSMITTED WITH YOUR LETTER, THAT THE CLAIMANTS EXPENDED
$469,101.89 TO CONTROL AND EXTINGUISH THE FIRE, OF WHICH AMOUNT $235,000
HAS BEEN REIMBURSED BY E. K. WOOD LUMBER COMPANY AND $50,000 BY THE
LONG-BELL LUMBER COMPANY, LEAVING A BALANCE OF $184,101.89, PAYMENT OF
WHICH THE CLAIMANTS CONTEND SHOULD BE MADE BY THE UNITED STATES. THE
BASES OF THE CONTENTION, AS SET OUT AT PAGE 62 OF THE MEMORANDUM FILED
BY THE STATE AUTHORITIES IN SUPPORT OF THE CLAIM, ARE IN SUBSTANCE AS
FOLLOWS:
1. CONTRACT NO. I-1L-907, DATED JUNE 30, 1950, WHEREIN THE UNITED
STATES AGREED TO PAY THE OREGON FOREST FIRE ASSOCIATION FOR FIRE
PROTECTION FURNISHED FOR THE FOREST LAND INVOLVED.
2. THAT THE FIRE ORIGINATED ON FEDERAL LAND AS A RESULT OF THE
NEGLIGENCE OF E. K. WOOD LUMBER COMPANY IN CONSTRUCTING A RIGHT OF WAY
ACROSS FEDERAL LAND WITH THE KNOWLEDGE AND CONSENT OF THE UNITED STATES.
3. THAT THE UNITED STATES WAS NEGLIGENT IN PERMITTING THE
ACCUMULATION OF LOGGING DEBRIS AND SLASHINGS ON ITS LAND.
CONTRACT NO. I-1L-907 PROVIDED IN PART (THE BUREAU OF LAND MANAGEMENT
AND THE OREGON FOREST FIRE ASSOCIATION BEING DESIGNATED AS BLM AND OFFA,
RESPECTIVELY):
"7. PRIOR TO JULY 1 OF EACH YEAR, THE BLM SHALL PREPARE A STATEMENT
SHOWING THE ACREAGE OF O AND C LANDS TO BE PROTECTED BY EACH ASSOCIATION
WITH WHICH THE OFFA CONTRACTS. BLM AGREES TO PAY OFFA FOR SUCH
PROTECTION AN AMOUNT PER ACRE, TO BE EFFECTIVE FOR THE ENSUING FISCAL
YEAR, WHICH SHALL BE EQUAL TO THE WEIGHTED AVERAGE COST OF PROTECTION OF
FOREST LANDS DURING THE PRECEDING CALENDAR YEAR AS SHOWN BY THE OFFICIAL
CERTIFIED REPORTS OF THE ASSOCIATION FURNISHING PROTECTION HEREUNDER AND
AS SHOWN BY THE REPORTS FOR STATE DISTRICTS AS CERTIFIED BY THE OREGON
STATE FORESTER. OFFA SHALL OBTAIN SAID REPORTS AND FURNISH THEM TO BLM.
FOR PROVIDING PROTECTION HEREUNDER, THE BLM INTENDS THAT OFFA SHALL BE
COMPENSATED IN THE FULL AMOUNT COMPUTED IN THE MANNER PRESCRIBED ABOVE,
PROVIDED, HOWEVER, IT IS AGREED THAT BLM SHALL NOT BE OBLIGATED TO PAY A
GREATER AMOUNT IN ANY FISCAL YEAR FOR SUCH PROTECTION THAN IS DESIGNATED
BY CONGRESS FOR THE PROTECTION OF THE O AND C LANDS FROM FIRE.
"BLM SHALL MAKE PAYMENT TO OFFA AS FOLLOWS: FOR THE PERIOD JULY 1 TO
DECEMBER 31 OF EACH YEAR, A PAYMENT OF APPROXIMATELY 60 PERCENT OF THE
FULL AMOUNT DUE FOR THE FISCAL YEAR SHALL BE PAID AS SOON AFTER DECEMBER
31 AS PRACTICABLE. FOR THE PERIOD COMMENCING JANUARY 1 TO AND INCLUDING
JUNE 30 OF EACH FISCAL YEAR THE BALANCE OF THE AMOUNT DUE FOR SUCH
FISCAL YEAR SHALL BE PAID AS SOON AS PRACTICABLE AFTER JUNE 30.
"9. IT IS UNDERSTOOD AND AGREED THAT BLM AND OFFA SHALL EACH HAVE
THE RIGHT DURING THE MONTHS OF NOVEMBER TO FEBRUARY INCLUSIVE, OF EACH
FISCAL YEAR, TO TERMINATE THIS AGREEMENT BY GIVING TO THE OTHER PARTY
NOT LESS THAN THIRTY DAYS' NOTICE IN WRITING IN ADVANCE OF SELECTED
TERMINATION DATE. SUCH TERMINATION SHALL NOT RELIEVE BLM FROM PAYMENT
OF THE PRO RATA AMOUNT DUE TO OFFA PURSUANT TO THE TERMS OF THIS
AGREEMENT TO AND INCLUDING THE EFFECTIVE DATE OF SUCH TERMINATION.'
IT APPEARS THAT THE BUREAU OF LAND MANAGEMENT, PURSUANT TO THE
PROVISIONS OF PARAGRAPH 9, CANCELLED THE CONTRACT EFFECTIVE JUNE 30,
1952, AND THEREAFTER ENTERED INTO A CONTRACT WITH THE STATE OF OREGON,
INSTEAD OF THE OREGON FOREST FIRE ASSOCIATION, COVERING SERVICES SIMILAR
TO THOSE COVERED BY THE ORIGINAL CONTRACT. THERE APPEARS TO BE
UNANIMOUS AGREEMENT THAT FULL PAYMENT WAS MADE BY THE UNITED STATES IN
ACCORDANCE WITH THE TERMS OF CONTRACT NO. I-1L-907, INCLUDING PAYMENT
FOR THE YEAR JULY 1, 1951, THROUGH JUNE 30, 1952, DURING WHICH THE FIRE
OCCURRED. HOWEVER, THE CLAIMANTS CONTEND THAT THE BALANCE OF THE
EMERGENCY EXPENSES INCURRED BY THEM AS A RESULT OF THE VINCENT CREEK
FOREST FIRE OF 1951, AFTER DEDUCTING THE AMOUNTS RECEIVED FROM E. K.
WOOD LUMBER COMPANY AND THE LONG-BELL LUMBER COMPANY AS ABOVE SET OUT,
SHOULD BE REIMBURSED TO THEM BY THE UNITED STATES.
SINCE PAYMENT HAS BEEN MADE IN FULL BY THE UNITED STATES IN STRICT
ACCORDANCE WITH THE PROVISIONS OF CONTRACT NO. I-1L-907 AND SINCE THAT
CONTRACT WAS TERMINATED ALSO IN STRICT ACCORDANCE WITH ITS TERMS, THERE
CLEARLY IS NO FURTHER LEGAL LIABILITY IMPOSED ON THE UNITED STATES UNDER
THE CONTRACT, WHICH CONTAINED NO PROVISION FOR PAYMENT OF UNUSUAL OR
EMERGENCY EXPENSES, EXCEPT AS THEY MIGHT BE REFLECTED IN THE AMOUNT TO
BE PAID FOR THE NEXT YEAR. NO ADDITIONAL PAYMENT WAS PROVIDED FOR IN
THE EVENT OF CANCELLATION. THE FACT THAT THE NEW CONTRACT CONTAINS
EXPRESS PROVISIONS FOR PAYMENT BY THE UNITED STATES OF EMERGENCY
EXPENSES WOULD APPEAR TO EVIDENCE RECOGNITION OF THE FACT THAT SUCH
PROVISIONS WERE LACKING FROM THE OLD ONE.
WITH RESPECT TO THE CONTENTIONS THAT THE NEGLIGENCE OF E. K. WOOD
LUMBER COMPANY IN STARTING THE FIRE ON FEDERAL LAND SHOULD BE IMPUTED TO
THE UNITED STATES, AND THAT THE UNITED STATES WAS NEGLIGENT IN
PERMITTING THE ACCUMULATION OF LOGGING DEBRIS AND SLASHINGS ON ITS LAND,
IT MAY BE STATED THAT JURISDICTION TO SETTLE TORT CLAIMS AGAINST THE
UNITED STATES IN AN AMOUNT IN EXCESS OF $1,000 IS VESTED EXCLUSIVELY IN
THE DISTRICT COURTS (SEE 28 U.S.C. 1346 (B) (, AND THAT THE
JURISDICTION OF THE GENERAL ACCOUNTING OFFICE DOES NOT EXTEND TO THE
ALLOWANCE OF TORT CLAIMS ARISING IN OTHER GOVERNMENT AGENCIES. UNITED
STATES V. ST. LOUIS CLAY PRODUCTS COMPANY, 68 F.SUPP. 902.
FOR THE REASONS ABOVE SET OUT, THERE APPEARS NO LEGAL BASIS FOR
ALLOWANCE BY OUR OFFICE OF ANY
B-129045, SEP. 25, 1956
TO MAJOR LOUIS R. BARNETT, USAF:
YOUR LETTER OF AUGUST 1, 1956, REQUESTS REVIEW OF OUR SETTLEMENT OF
JULY 11, 1956, WHICH DISALLOWED YOUR CLAIM FOR $11.54, REPRESENTING THE
COST OF SHIPPING 37 POUNDS OF EXCESS BAGGAGE FROM HOUSTON, TEXAS, TO
COLUMBIA, SOUTH CAROLINA.
BY ORDERS DATED JANUARY 6, 1956, SHAW AIR FORCE BASE, SOUTH CAROLINA,
YOU AND SEVERAL OTHER OFFICERS AND AIRMEN, WERE DIRECTED TO PROCEED TO
SEVERAL AIR FORCE BASES IN THE UNITED STATES AND RETURN TO SHAW AIR
FORCE BASE. TRAVEL WAS TO BE BY MILITARY AIRCRAFT WHEN AVAILABLE,
OTHERWISE BY COMMERCIAL AIRCRAFT AND OTHER MEANS. MILITARY AIR WAS NOT
AVAILABLE FOR THE PORTION OF THE JOURNEY HERE INVOLVED AND COMMERCIAL
AIR WAS UTILIZED. AT THAT TIME YOU WERE TRAVELING WITH THREE OTHERS,
AND WHEN THE PERSONAL BAGGAGE OF THE PARTY TOGETHER WITH THEIR
BRIEFCASES (WHICH YOU STATE CONTAINED OFFICIAL PUBLICATIONS AND
REPORTING DATA ACCUMULATED BY THE PARTY DURING TWO WEEKS OF INSPECTION)
WAS WEIGHED IT WAS 37 POUNDS IN EXCESS OF THE FREE ALLOWANCE. YOU, AS
SENIOR MEMBER OF THE PARTY, PAID THE CHARGE. THE CLAIM WAS DISALLOWED
FOR THE REASON THAT YOUR ORDERS DID NOT AUTHORIZE EXCESS BAGGAGE AT
PUBLIC EXPENSE AS IS REQUIRED BY PARAGRAPH 4400-5, JOINT TRAVEL
REGULATIONS, AS A PREREQUISITE TO REIMBURSEMENT FOR SUCH CHARGES. IN
YOUR PRESENT LETTER YOU STATE YOU WERE AWARE OF THAT FACT WHEN YOUR
CLAIM WAS SUBMITTED. YOU EXPRESS THE BELIEF, HOWEVER, THAT WE SHOULD
AUTHORIZE PAYMENT OF YOUR CLAIM NOTWITHSTANDING SUCH DEFICIENCY.
THE STATUTORY AUTHORITY FOR TRANSPORTATION OF BAGGAGE OF MEMBERS OF
THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE CAREER
COMPENSATION ACT OF 1949, 63 STAT. 815, WHICH PROVIDES THAT, UNDER SUCH
REGULATIONS AS THE SECRETARIES MAY PRESCRIBE, MEMBERS SHALL BE ENTITLED
TO TRANSPORTATION OF BAGGAGE UPON CHANGE OF STATION. THE REGULATIONS
PROMULGATED PURSUANT THERETO ARE CONTAINED IN JOINT TRAVEL REGULATIONS,
WHICH IN CLEAR AND UNAMBIGUOUS LANGUAGE PROVIDE FOR TRANSPORTATION OF
EXCESS BAGGAGE AT PUBLIC EXPENSE ONLY IF SPECIFICALLY AUTHORIZED. IN
YOUR CASE, THERE WAS NO ADVANCE AUTHORIZATION, NOR HAS THE DEPARTMENT OF
THE AIR FORCE RATIFIED THE SHIPMENT OR APPROVED PAYMENT OF YOUR CLAIM.
ACCORDINGLY, ON THE PRESENT RECORD, THERE IS NO LEGAL BASIS FOR THE
ALLOWANCE OF YOUR CLAIM.
B-129251, SEP. 25, 1956
TO THE SECRETARY OF THE AIR FORCE:
A LETTER OF SEPTEMBER 14, 1956, FROM THE ASSISTANT SECRETARY OF THE
AIR FORCE REQUESTS OUR ADVICE AS TO THE VALIDITY OF A BID SUBMITTED BY
THE CRANE HOIST ENGINEERING COMPANY PURSUANT TO INVITATION FOR BIDS
04-606-56-744.
PARAGRAPH 20 OF THE SPECIAL PROVISIONS TO THE INVITATION PROVIDES:
"REQUEST DESCRIPTIVE DATA IN ACCORDANCE WITH PARAGRAPH 3.1.2.1. OF
ATTACHED SPECIFICATIONS BE SUBMITTED WITH BID AT NO ADDITIONAL COST TO
THE GOVERNMENT. BIDS NOT ACCOMPANIED BY DESCRIPTIVE LITERATURE MAY BE
REJECTED AT THE OPTION OF THE CONTRACTING OFFICER.'
PARAGRAPH 3.1.2.1. OF THE SPECIFICATIONS PROVIDES:
"AT TIME BID IS SUBMITTED, A COMPLETE SCHEDULE OF MATERIALS AND
EQUIPMENT PROPOSED FOR DELIVERY AND INSTALLATION UNDER THIS
SPECIFICATION SHALL BE FURNISHED FOR THE APPROVAL OF THE CONTRACTING
OFFICER. THIS SCHEDULE SHALL INCLUDE CATALOGUES, CUTS, A SCHEMATIC
DRAWING SHOWING CLEARANCES REQUIRED AND SUCH OTHER DESCRIPTIVE
INFORMATION AS NECESSARY TO SHOW COMPLIANCE WITH THE SPECIFICATION.'
IN COMPLIANCE WITH THIS PROVISION, THE CRANE HOIST ENGINEERING
COMPANY SUBMITTED WITH ITS BID EXECUTED ON STANDARD FORM 33 A PRINTED
BROCHURE WHICH PROVIDES THE INFORMATION CALLED FOR BY THE PARAGRAPH
CITED ABOVE. IN ADDITION, THE BROCHURE CONTAINS THE BID FORM USED BY
THE CRANE HOIST ENGINEERING COMPANY WHICH WAS FULLY COMPLETED. THE
LATTER BID FORM OFFERS THE EQUIPMENT CALLED FOR BY THE INVITATION AT THE
SAME PRICE STATED ON THE STANDARD FORM 33, BUT "SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH ON THE REVERSE SIDE OF THIS SHEET.' THE REVERSE
SIDE CONTAINS, AMONG OTHERS, THE FOLLOWING TERMS WHICH ARE AT VARIANCE
WITH THE REQUIREMENTS STATED IN THE INVITATION:
1. SHIPMENT IS TO BE MADE IN "APPROXIMATELY" 160-180 DAYS RATHER
THAN THE DEFINITE DAY PERIOD INCLUDED ON THE STANDARD FORM,"WITHIN 180
DAYS.' THE USE OF THE TERM "APPROXIMATELY" WOULD APPEAR TO PROVIDE
ADDITIONAL LEEWAY IN DELIVERY TIME.
2. PRICES ARE MADE SUBJECT TO CHANGE WITHOUT NOTICE, WHEREAS THE
INVITATION MAKES NO PROVISION FOR CHANGES IN THE BID PRICE.
3. THE EQUIPMENT IS GUARANTEED FOR ONLY SIX MONTHS WHEREAS PARAGRAPH
21 OF THE SPECIAL PROVISIONS TO THE INVITATION REQUIRES A ONE-YEAR
GUARANTEE.
4. PRICES SUBJECT TO ADJUSTMENT IN CASE OF CHANGE OF FREIGHT RATES.
5. NON-LIABILITY FOR DEFAULT OCCASIONED BY CAUSES NOT EXCUSABLE
UNDER GOVERNMENT FORM PROVISIONS.
6. INSPECTION AND FINAL ACCEPTANCE AT SELLER'S WORKS.
THE CONTRACTING OFFICER INDICATES IN HIS LETTER OF AUGUST 10, 1956,
TO THE DIRECTOR OF PROCUREMENT HEADQUARTERS USAF, THAT HE REGARDS THE
BID OF THE CRANE HOIST ENGINEERING COMPANY AS NONRESPONSIVE BECAUSE OF
THE PROVISIONS INCLUDED IN THE BROCHURE WHICH ARE INCONSISTENT WITH THE
REQUIREMENTS STATED IN THE INVITATION. THE CRANE HOIST ENGINEERING
COMPANY'S ATTORNEYS, BY LETTER OF JULY 30, 1956, TO THE CONTRACTING
OFFICER, CONTEND THAT THE BID SUBMITTED ON THE COMPANY'S OWN BID FORM
AND INCLUDED IN THE BROCHURE SHOULD BE TREATED AS A SEPARATE BID AND NOT
AS A QUALIFICATION OR MODIFICATION OF THE BID SUBMITTED ON THE STANDARD
FORM. BY ITS OWN LETTER OF JULY 3, HOWEVER, THE COMPANY REQUESTED
DELETION FROM ITS OWN PRINTED CONDITIONS ONLY THE CLAUSE RELATING TO
PRICE CHANGES, FROM WHICH IT MAY REASONABLY BE INFERRED THAT IT REGARDED
ALL THE OTHER CONDITIONS OF ITS FORM AS APPLICABLE TO ITS BID.
THE FACT THAT THE BROCHURE WAS SUBMITTED TO FULFILL THE REQUIREMENTS
STATED IN THE INVITATION AND THAT THE FULLY EXECUTED BID ON THE
COMPANY'S OWN FORM WAS A PART OF THE BROCHURE WOULD TEND TO ESTABLISH
THE PROPOSITION THAT THE TERMS OF THE BID FORM INCLUDED IN THE BROCHURE
WERE INTENDED TO QUALIFY THE BID MADE ON THE STANDARD GOVERNMENT FORM.
FURTHER, THE CONTENTION OF THE CRANE COMPANY'S ATTORNEYS THAT THE BID
MADE ON ITS OWN FORM SHOULD BE REGARDED AS AN ADDITIONAL OR ALTERNATE
BID IS SUBJECT TO THE CRITICISM THAT AN ALTERNATE BID OFFERING THE SAME
EQUIPMENT AT THE SAME PRICE BUT ON CONDITIONS LESS FAVORABLE TO THE
GOVERNMENT, I.E., PERMITTING A VARIATION OF THE DELIVERY DATE AND OF THE
PRICE AND REDUCING THE GUARANTEE PERIOD, WOULD APPEAR TO SERVE NO USEFUL
PURPOSE SINCE IT COULD HARDLY BE ASSUMED THAT THE ALTERNATE BID WOULD BE
CONSIDERED WHEN THE BID SUBMITTED ON THE STANDARD FORM IS MORE FAVORABLE
TO THE GOVERNMENT.
CONCEDING FOR THE MOMENT THAT THERE IS SOME MERIT IN THE COMPANY'S
INTERPRETATION, IT IS CLEAR THAT THE BID WAS NOT UNAMBIGUOUS AND THAT IT
WAS REASONABLY SUBJECT TO THE INTERPRETATION PLACED UPON IT BY THE
CONTRACTING OFFICER--- THAT THE CONDITIONS CONTAINED IN THE EXECUTED
FORM IN THE BROCHURE WERE INTENDED TO QUALIFY THE CONDITIONS OF THE BID
SUBMITTED ON THE STANDARD FORM. ACCORDINGLY, WE CANNOT CONCLUDE THAT
THE COMPANY'S OWN EXECUTED BID FORM MAY PROPERLY BE IGNORED OR REGARDED
AS NOT EFFECTING A MATERIAL QUALIFICATION OF THE BID.
UNDER THE CIRCUMSTANCES, WE WOULD NOT BE REQUIRED TO OBJECT TO THE
AWARD OF THE CONTRACT TO THE NEXT HIGHER BIDDER.
B-114472, SEP. 24, 1956
TO FURNESS, WITHY AND CO., LTD. :
WE REFER TO YOUR LETTER OF AUGUST 27, 1956, IN WHICH YOU REQUEST
FURTHER CONSIDERATION OF OUR DECISION OF MARCH 16, 1955, B-114472, WHICH
SUSTAINED THE DEDUCTION OF $160 FROM PAYMENT OF YOUR BILL NO. 1117 AND
OUR LETTERS DATED AUGUST 25, 1955, JULY 10, 1956 AND AUGUST 7, 1956,
AFFIRMING THAT DECISION. THE SET-OFF WAS MADE TO RECOVER FOR DAMAGES TO
RUBBER SHIPPED FROM PENANG, BRITISH MALAYA, TO NEW YORK, NEW YORK,
ABOARD THE "CINGALESE PRINCE" IN 1951.
WE MUST REITERATE OUR CONCLUSION THAT NOTWITHSTANDING THE PROVISIONS
OF SUBSECTION 3 (6) OF THE CARRIAGE OF GOODS BY SEA ACT, 46 U.S.C. 1303
(6), THE UNITED STATES GOVERNMENT MAY RECOVER FOR DAMAGES SUSTAINED BY
GOVERNMENT CARGO WHILE IN THE POSSESSION OF AN OCEAN CARRIER BY
DEDUCTING THE AMOUNT INVOLVED FROM SUBSEQUENT PAYMENTS DUE THE CARRIER,
EVEN THOUGH IT DOES NOT BRING SUIT WITHIN ONE YEAR FROM THE OUTTURN. WE
HAVE BEEN ADVISED INFORMALLY THAT THE GOVERNMENT HAS NOTED AN APPEAL IN
THE CASE OF ISTHMIAN STEAMSHIP CO. V. THE UNITED STATES, 134 F.SUPP.
854, CITED AS HOLDING TO THE CONTRARY; HENCE, WE DO NOT REGARD THAT
CASE IN ITS PRESENT STATUS AS HAVING FINALLY RESOLVED THE ISSUE.
ACCORDINGLY, DEDUCTIONS MADE FROM FUNDS SUBSEQUENTLY DUE THE PARTICULAR
CARRIERS INVOLVED TO RECOVER FOR DAMAGE TO GOVERNMENT PROPERTY WERE
PROPER AND MUST BE SUSTAINED.
IT HAS NOW COME TO OUR ATTENTION, HOWEVER, THAT THE ADMINISTRATIVE
OFFICE IN SOME CASES MAY HAVE MADE THE DEDUCTIONS NOT ONLY FROM FUNDS
DUE THE PARTICULAR CARRIER TO WHOM THE DAMAGE IS ATTRIBUTED BUT ALSO
FROM FUNDS DUE FURNESS, WITHY AND CO., LTD., IN ITS OWN RIGHT AND IN ITS
CAPACITY AS AGENT FOR OTHER CARRIERS. DEDUCTIONS OF THE LATTER TYPE
ARE, IN OUR OPINION, MPROPER; AND IF ANY HAVE BEEN MADE, THEY WILL BE
CORRECTED AS SOON AS THE PERTINENT COLLECTION RECORDS CAN BE ASSEMBLED
AND VERIFIED.
DIRECTOR, TRANSPORTATION DIVISION:
YOUR ATTENTION IS INVITED TO OUR LETTER DATED TODAY TO FURNESS, WITHY
AND CO., LTD., REGARDING SET-OFFS MADE BY THE ADMINISTRATIVE OFFICE TO
RECOVER FOR DAMAGE TO CERTAIN SHIPMENTS OF RUBBER PURCHASED BY THE
UNITED STATES GOVERNMENT. IT IS A BROAD GENERAL RULE OF PRACTICALLY
UNIVERSAL APPLICATION THAT, IN THE ABSENCE OF STATUTES PROVIDING
OTHERWISE, AND SUBJECT TO CERTAIN EXCEPTIONS NOT HERE INVOLVED, A
SET-OFF MAY BE MADE ONLY WHERE THE DEMANDS ARE MUTUAL AND SUBSISTING
BETWEEN THE SAME PARTIES IN THE SAME CAPACITY OR RIGHT. SEE DAKIN V.
BAYLY, 290 U.S. 143; UNITED STATES V. BUTTERWORTH-JUDSON CORP., 267
U.S. 387; MOLINE MALLEABLE IRON CO. V. YORK IRON CO., 83 F. 66, AND
THOMAS V. POTTER TITLE AND TRUST CO., 2 F.SUPP. 12. SEE, ALSO, 80
C.J.S. 74,"SET-OFF AND COUNTERCLAIM," SECTION 48. ALTHOUGH WE ARE
UNABLE, FROM THE PRESENT RECORD, TO VERIFY THAT THE ADMINISTRATIVE
OFFICE HAS MADE SET-OFFS AGAINST FUNDS DUE FURNESS, WITHY AND CO., LTD.,
IN ITS OWN RIGHT AND IN ITS CAPACITY AS AGENT OF OTHER CARRIERS IN ORDER
TO RECOVER FOR DAMAGES ATTRIBUTED TO THE CARRIERS WHICH TRANSPORTED THE
RUBBER, ANY SUCH SET-OFFS WOULD SEEM TO HAVE BEEN ERRONEOUS. YOUR
DIVISION SHOULD THEREFORE ASSEMBLE THE COLLECTION RECORDS PERTAINING TO
THE SET-OFFS MADE IN THESE CASES, AND WHERE IT IS FOUND THAT AN
ERRONEOUS SET-OFF HAS BEEN MADE, SETTLEMENTS IN FAVOR OF THE CLAIMANT
SHOULD BE ISSUED.
B-128283, SEP. 24, 1956
TO MRS. LILLIAN C. CLAY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1956,
ENCLOSING A PHOTOSTATIC COPY OF A ,DECLARATION FOR PENSION OF CHILDREN
UNDER SIXTEEN YEARS OF AGE"--- DATED JANUARY 1898, AND SIGNED BY SOLLY
BLUE--- ON ACCOUNT OF THE ARMY SERVICE OF SOLOMON BLUE IN 1865. IT
SEEMS THAT YOU CONSIDER SUCH DECLARATION AS A CLAIM FILED BY SOLLY BLUE
FOR PAYMENT FOR SERVICES RENDERED BY SOLOMON BLUE IN THE CIVIL WAR SINCE
YOU SAY THAT YOU ARE NOT ASKING TO FILE A NEW CLAIM BUT ARE ASKING
WHETHER YOU AND OTHER GRANDCHILDREN OF SOLOMON BLUE ARE ELIGIBLE TO
RECEIVE THE BOUNTY OR ANY OTHER MONEY WHICH IS DUE AND UNPAID. THE
MATTER HAS BEEN THE SUBJECT OF NUMEROUS LETTERS IN ANSWER TO YOUR MANY
INQUIRIES.
THE PAPER, OF WHICH THE ENCLOSURE RECEIVED WITH YOUR LETTER IS A
COPY, IS AN APPLICATION FOR A PENSION AND IS NOT A "CLAIM FOR ARREARS OF
PAY, BOUNTY, OR OTHER ALLOWANCES GROWING OUT OF THE SERVICE OF
VOLUNTEERS WHO SERVED IN THE ARMY OF THE UNITED STATES DURING THE CIVIL
WAR.' AS YOU HAVE BEEN ADVISED, THE FILES OF OUR OFFICE REVEAL NO RECORD
OF ANY CLAIM FILED BY SOLOMON BLUE DURING HIS LIFETIME--- OR BY ANY
OTHER PERSON IN HIS CASE AFTER HIS DEATH--- FOR BOUNTY OR ANY OTHER
EMOLUMENT ACCRUING ON ACCOUNT OF HIS MILITARY SERVICE. EVEN IF SOLLY
BLUE HAD FILED SUCH A CLAIM ON OR BEFORE DECEMBER 31, 1912, THE FILING
OF HIS CLAIM WOULD NOT AUTHORIZE OUR OFFICE TO RECEIVE OR CONSIDER A
CLAIM FILED SUBSEQUENT TO DECEMBER 31, 1912, BY OTHER HEIRS OR LEGAL
REPRESENTATIVES OF THE SOLDIER. IN OTHER WORDS, UNLESS THE CLAIM OF A
GRANDCHILD WAS FILED ON OR BEFORE DECEMBER 31, 1912, THE CONSIDERATION
OF SUCH A CLAIM IS PRECLUDED BY THE PROVISIONS OF THE ACT OF DECEMBER
22, 1911, 37 STAT. 47, 49. LIKEWISE, THE FILING OF A CLAIM BY ONE
GRANDCHILD ON OR BEFORE DECEMBER 31, 1912, WOULD NOT AUTHORIZE OUR
OFFICE TO RECEIVE OR CONSIDER A CLAIM FILED BY ANY OTHER GRANDCHILD
AFTER THAT DATE. UNDER THE CIRCUMSTANCES, ADDITIONAL CORRESPONDENCE
FROM YOU CONCERNING THE MATTER WILL BE FILED WITHOUT FURTHER ACTION.
B-128834, SEP. 24, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTER DATED AUGUST 3, 1956, WITH ENCLOSURES,
FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATIVE TO
AN ERROR ALLEGED BY INTERNATIONAL BUSINESS MACHINES
CORPORATION TO HAVE BEEN MADE IN ITS BID WHICH IS THE BASIS FOR
PURCHASE ORDER NO. CP 6-3320-D, DATED OCTOBER 13, 1955.
THE CHEMICAL CORPS RESEARCH PROCUREMENT OFFICE, ARMY CHEMICAL CENTER,
MARYLAND, SENT A REQUEST FOR QUOTATION (DD FORM 747) TO THE
INTERNATIONAL BUSINESS MACHINES CORPORATION, BALTIMORE, MARYLAND, FOR
300,000 EACH OF TWO TYPES OF TABULATING CARDS. THE REQUEST PROVIDED FOR
DELIVERY, F.O.B. EDGEWOOD, MARYLAND, IF BY RAIL, FREIGHT OR EXPRESS;
OTHERWISE F.O.B. ARMY CHEMICAL CENTER, MARYLAND. THE CORPORATION, ON
OCTOBER 5, 1955, QUOTED A PRICE OF $1.05 AND $1.06 PER THOUSAND FOR
ITEMS ONE AND TWO, RESPECTIVELY, AND STATED THAT THE FORMS WERE TO BE
MANUFACTURED AT WASHINGTON, D.C. NO EXCEPTION WAS TAKEN WITH RESPECT TO
DELIVERY. ON OCTOBER 13, 1955, PURCHASE ORDER NO. CP 6-3320-D WAS
ISSUED TO THE INTERNATIONAL BUSINESS MACHINES CORPORATION FOR THE FORMS.
BY LETTER DATED OCTOBER 25, 1955, THE CORPORATION ADVISED THE
CONTRACTING OFFICER THAT THERE HAD BEEN OMITTED FROM ITS QUOTATION OF
OCTOBER 5 A NOTATION THAT THE PRICES WERE BASED ON AN F.O.B. FACTORY
BASIS; AND RETURNED THE PURCHASE ORDER FOR CORRECTION. BY LETTER DATED
OCTOBER 28, THE CONTRACTING OFFICE ADVISED THE CORPORATION THAT THE
PURCHASE ORDER WAS ISSUED IN ACCORDANCE WITH ITS WRITTEN QUOTATION,
WHICH PROVIDED FOR DELIVERY F.O.B. DESTINATION; THAT SINCE THE ORDER
HAD BEEN ISSUED THAT OFFICE HAD NO AUTHORITY TO CHANGE IT; THAT THE
ORDER WAS RETURNED THEREWITH AND THAT IT WOULD BE NECESSARY FOR THE
CORPORATION TO PROCEED WITH THE ORDER IN ITS PRESENT FORM; THAT THE
CORPORATION, HOWEVER, COULD SUBMIT A CLAIM TO THE GENERAL ACCOUNTING
OFFICE, THROUGH THE CONTRACTING OFFICER, FOR THE ALLEGED INCREASED COST;
AND THAT, IN THE MEANTIME, THE CORPORATION WOULD BE EXPECTED TO PERFORM
IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE PURCHASE ORDER. THE
CORPORATION FURNISHED THE FORMS CALLED FOR BY THE PURCHASE ORDER AND
SUBSEQUENTLY SUBMITTED AN INVOICE COVERING THE COST OF TRANSPORTING THE
MATERIAL FROM WASHINGTON, D.C., TO THE ARMY CHEMICAL CENTER, EDGEWOOD,
MARYLAND.
IT IS REPORTED THAT THE PURCHASE ORDER ISSUED BY THE GOVERNMENT TO
THE INTERNATIONAL BUSINESS MACHINES CORPORATION CONTAINED VARIOUS
PROVISIONS, INCLUDING A "DISPUTES" ARTICLE AND A ,NONDISCRIMINATION"
ARTICLE WHICH WERE NOT CONTAINED IN THE REQUEST FOR QUOTATION. SUCH
BEING THE FACTS, THERE WAS NO UNQUALIFIED ACCEPTANCE BY THE GOVERNMENT
OF THE CORPORATION'S OFFER. THUS, THE PURCHASE ORDER CONSTITUTED A
COUNTER OFFER BY THE GOVERNMENT AND IT WAS REFUSED AND RETURNED BY THE
CORPORATION BY LETTER DATED OCTOBER 25. WHILE THE CORPORATION
THEREAFTER FURNISHED THE FORMS, IT APPEARS THAT IT MAY HAVE DONE SO WITH
THE UNDERSTANDING THAT IT COULD FILE A CLAIM WITH OUR OFFICE FOR THE
INCREASE COSTS IN ACCORDANCE WITH THE ADVICE CONTAINED IN THE
CONTRACTING OFFICER'S LETTER OF OCTOBER 28. IN SUCH CIRCUMSTANCES IT
WOULD NOT BE PROPER TO HOLD THAT THE CORPORATION WAIVED ITS RIGHTS WITH
REGARD TO THE CLAIM AT THAT TIME.
ACCORDINGLY, SINCE THE PURPORTED ACCEPTANCE BY THE GOVERNMENT OF THE
QUOTATION SUBMITTED BY INTERNATIONAL BUSINESS MACHINES CORPORATION DID
NOT CONSTITUTE A VALID AND BINDING CONTRACT, THE CLAIM FOR THE COST OF
TRANSPORTING THE FORMS FROM WASHINGTON, D.C., TO THE ARMY CHEMICAL
CENTER, MARYLAND, MAY BE PAID.
B-128983, SEP. 24, 1956
TO MR. JOSEPH G. BOLEK:
WE REFER TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR SETTLEMENT
DATED JUNE 26, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF
COMMERCIAL AIR FARE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, ON
MAY 14, 1955, INCIDENT TO YOUR RETURN TO THE UNITED STATES UNDER
REPATRIATION ORDERS. THE DISALLOWANCE WAS PREDICATED UPON THE REPORT OF
THE DEPARTMENT OF THE ARMY THAT AT THE TIME OF YOUR RETURN TO THE UNITED
STATES YOU ELECTED TO RETURN BY COMMERCIAL AIR NOTWITHSTANDING THE
AVAILABILITY OF GOVERNMENT AIR TRANSPORTATION.
IN COMPLIANCE WITH YOUR REQUEST WE HAVE REVIEWED THE RECORD IN YOUR
CASE AND FIND THAT THE TRAVEL AUTHORIZATION DATED MAY 14, 1955, UNDER
WHICH YOU RETURNED TO THE UNITED STATES DIRECTED YOU TO REPORT TO THE
AIR TRAFFIC CENTER, FRANKFURT, GERMANY, BETWEEN 0800 AND 1800 HOURS ON
MAY 16, 1955. APPARENTLY YOU PREMATURELY REPORTED TO THE AIR TRAFFIC
CENTER ON MAY 14, 1955, AND UPON BEING INFORMED, AS ALLEGED IN YOUR
LETTER, THAT NO DEFINITE DATE COULD BE GIVEN WHEN SPACE UPON A MILITARY
AIR TRANSPORT SERVICE PLANE WOULD BE AVAILABLE YOU IMMEDIATELY DECIDED
TO USE COMMERCIAL AIR TRANSPORTATION WITH THE HOPE OR EXPECTATION OF
BEING REIMBURSED THE AMOUNT OF YOUR FARE.
WHILE WE ARE UNAWARE OF THE NATURE OF THE EMERGENCY IN YOUR CASE IT
MAY BE PRESUMED THAT THE AUTHORIZING OFFICER AT YOUR FORMER HEADQUARTERS
WAS FAMILIAR WITH THE FACTS AND IN DRAFTING YOUR TRAVEL ORDERS CONCLUDED
THAT YOUR NEEDS WOULD BE SERVED BY REPORTING AT THE AIR TRAFFIC CENTER
ON THE DATE DIRECTED THEREIN. WHETHER GOVERNMENT AIR TRANSPORTATION
WOULD HAVE BEEN AVAILABLE TO YOU ON OR IMMEDIATELY AFTER MAY 16, 1955,
CAN NOW BE ONLY A MATTER OF SPECULATION.
IN REGARD TO THE MATTER OF THE NONAVAILABILITY OF QUARTERS, WHICH
APPEARS TO HAVE INFLUENCED YOUR DECISION TO USE COMMERCIAL AIR
TRANSPORTATION WITHOUT FURTHER WAITING FOR GOVERNMENT TRANSPORTATION,
YOUR TRAVEL ORDERS AUTHORIZED $8 PER DIEM IN LIEU OF SUBSISTENCE DURING
INVOLUNTARY DELAYS EN ROUTE TO THE UNITED STATES. WE ARE UNAWARE OF ANY
REASON WHY PRIVATE QUARTERS COULD NOT HAVE BEEN OBTAINED IN FRANKFURT.
ACCORDINGLY, CONCERNING THAT PART OF THE RECORD, WE CAN ONLY CONCLUDE
THAT THE UNAVAILABILITY OF GOVERNMENT QUARTERS DOES NOT ALONE JUSTIFY
YOUR PREMATURE DEPARTURE FROM FRANKFURT BY COMMERCIAL AIR.
AS A DIRECT CONSEQUENCE, HOWEVER, OF WHAT TRANSPIRED IN YOUR CASE THE
DEPARTMENT OF THE ARMY IMMEDIATELY DIRECTED REMEDIAL ACTION AS SHOWN BY
FIRST INDORSEMENT OF JULY 11, 1955, FROM HEADQUARTERS, UNITED STATES
ARMY, EUROPE, TO THE COMMANDING GENERAL, NORTHERN AREA COMMAND, WHICH
READS AS FOLLOWS:
"1. THE DIFFICULTY EXPERIENCED BY MR. BOLEK IN OBTAINING
TRANSPORTATION IN CONNECTION WITH EMERGENCY LEAVE TO THE UNITED STATES
IS REGRETTED. IT IS RECOGNIZED, HOWEVER, THAT THE INCIDENT COULD NOT BE
AVOIDED, DUE TO THE ABSENCE OF SPECIFIC AUTHORITY FOR SUCH
TRANSPORTATION FOR CIVILIAN EMPLOYEES. THIS CASE HAS ALSO BEEN BROUGHT
TO THE ATTENTION OF THIS HEADQUARTERS BY MR. BOLEK'S BROTHER, THROUGH
CONGRESSMAN O-BRIEN. A COPY OF THIS CORRESPONDENCE IS INCLOSED FOR YOUR
INFORMATION.
"2. TO AVOID THE OCCURRENCE OF INCIDENTS SIMILAR TO THAT PRESENTED
BY BASIC LETTER, THE DEPARTMENT OF THE ARMY WAS QUERIED RECENTLY AS TO
THE EXISTENCE OF AUTHORITY FOR EMERGENCY LEAVE FOR CIVILIAN EMPLOYEES.
AS A RESULT, IT IS NOW POSSIBLE TO ISSUE TRAVEL ORDERS TO CIVILIAN
EMPLOYEES IN CONNECTION WITH EMERGENCY LEAVE, AUTHORIZING SPACE
REQUIREMENT TRANSPORTATION TO AND FROM THE UNITED STATES PORT OF ENTRY.
TRAVEL ORDERS WILL CITE MESSAGE DA 581875 AND AR 96-25 AS AUTHORITY. AN
AIR PRIORITY OF 2D OR HIGHER, DEPENDENT UPON THE TYPE OF EMERGENCY
INVOLVED, MAY BE ASSIGNED BY THE ORDER ISSUING OFFICIAL. IN THE VERY
NEAR FUTURE AREA COMMANDERS WILL BE ABLE TO SECURE AIR PRIORITY
DESIGNATORS FOR EMERGENCY LEAVE TRAVEL ORDERS BY DIRECT CONTACT WITH THE
AIR TRAFFIC CENTER, FRANKFURT. SPECIFIC INSTRUCTIONS WILL BE ISSUED
RELATIVE TO THIS PROCEDURE. IN THE INTERIM, AIR SPACE ALLOTTED FOR USE
OF YOUR COMMAND FOR PERMANENT CHANGE OF STATION MAY BE USED FOR
EMERGENCY LEAVE TRAVEL. APPROPRIATE PRIORITIES MAY BE ASSIGNED.
"3. WITH REGARD TO MATTER OF MR. BOLEK BEING REIMBURSED FOR PERSONAL
FUNDS EXPENDED IN SECURING COMMERCIAL AIR TRANSPORTATION TO THE UNITED
STATES, HE SHOULD BE ADVISED THAT UNDER EXISTING LAWS AND REGULATIONS,
THERE IS NO AUTHORITY TO REIMBURSE AN EMPLOYEE FOR TRANSPORTATION
PROCURED FROM PERSONAL FUNDS FOR PERSONAL REASONS, IF GOVERNMENT
TRANSPORTATION WAS AVAILABLE WITHIN THIRTY DAYS FROM THE DATE SUCH
TRANSPORTATION WAS REQUESTED. SINCE RECORDS INDICATE THAT DURING THE
PERIOD 10 - 24 MAY 1955, THE MAXIMUM DELAY ON ANY PRIORITY CLASS OF
PASSENGER WAS THREE DAYS, AND THE NORMAL DELAY WAS 24 HOURS, IT WILL NOT
BE POSSIBLE TO REIMBURSE MR. BOLEK FOR ANY PART OF HIS TRANSPORTATION
VIA PAN AMERICAN AIRWAYS FROM FRANKFURT TO NEW YORK. HE MAY, HOWEVER,
BE REIMBURSED FOR THE COST OF AIR TRANSPORTATION FROM NEW YORK TO
CHICAGO, IN ADDITION TO CONSTRUCTIVE COST OF PER DIEM (AND TRAVEL TIME)
OVER THE ENTIRE ROUTE.'
SUBSEQUENTLY, ON JULY 20, 1955, THE COMMANDING GENERAL, NORTHERN AREA
COMMAND, RECEIVED THE FOLLOWING COMMUNICATION FROM THE COMMANDER IN
CHIEF, UNITED STATES ARMY, EUROPE:
"DA 330836. SUBJECT: EMERGENCY DEPARTURE JOSEPH BOLEK, CIVILIAN
EMPLOYEE. FOLLOWING IS QUOTED FROM REFERENCED MESSAGE: "SINCE
EMERGENCY APPARENTLY WAS NOT RECOGNIZED IN FURNISHING TRANSPORTATION TO
BOLEK REIMBURSEMENT IS CONSIDERED APPROPRIATE AS PROVIDED IN CPR
5E.8-5.' DISREGARD CONTENT OF PARAGRAPH 3, 1ST INDORSEMENT GPA 300.4,
DATED 11 JULY FROM THIS ADQUARTERS.'
APPARENTLY IN THE LIGHT OF THE LIBERALIZED REGULATIONS DISCLOSED BY
THE ABOVE-QUOTED CORRESPONDENCE THE EUROPEAN COMMAND RECOMMENDED PAYMENT
OF YOUR CLAIM NOTWITHSTANDING THE FACT THAT THE REGULATIONS IN FORCE AT
THE TIME OF YOUR TRAVEL PROVIDED THAT YOU WOULD BE ENTITLED TO
REIMBURSEMENT FOR COST OF TRAVEL BY COMMERCIAL AIR TRANSPORT ONLY IF
GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE WITHIN 30 DAYS AFTER THE
DATE OF YOUR APPLICATION THEREFOR. AS A GENERAL RULE ADMINISTRATIVE
REGULATIONS MAY BE APPLIED ONLY PROSPECTIVELY AND THUS IT APPEARS THE
RECOMMENDATION REFERRED TO ABOVE HAS NO BASIS IN LAW. HOWEVER, IN VIEW
OF THE FACT THAT YOU UNDOUBTEDLY WOULD HAVE RECEIVED GOVERNMENT
TRANSPORTATION WITHIN 30 DAYS WITH ITS CONSEQUENT COST TO THE
GOVERNMENT, THAT THE REGULATIONS PERTAINING TO CIVILIAN PRIORITIES IN
AIR TRANSPORTATION WERE LIBERALIZED AS A DIRECT RESULT OF WHAT
TRANSPIRED IN YOUR CASE AND THE FACT THAT THE EUROPEAN COMMAND BELIEVED
YOUR CLAIM TO BE FOR ALLOWANCE ON THE MERITS, WE ARE WARRANTED IN
ALLOWING YOU THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT HAD YOU USED A
MILITARY AIR TRANSPORT SERVICE PLANE IN RETURNING TO THE UNITED STATES.
WE ARE INFORMED THAT THE COST RATE OF THAT SERVICE FROM FRANKFURT TO NEW
YORK IS $150 AND A CHECK FOR THAT AMOUNT WILL BE ISSUED TO YOU IN
REGULAR COURSE.
THE REMAINDER OF YOUR CLAIM MUST BE DISALLOWED FOR THE REASONS STATED
ABOVE AND TO THAT EXTENT OUR SETTLEMENT OF JUNE 26, 1956, IS SUSTAINED.
B-128987, SEP. 24, 1956
TO THE SECRETARY OF COMMERCE:
BY LETTER OF AUGUST 15, 1956, THE ASSISTANT SECRETARY FOR
ADMINISTRATION REQUESTS OUR DECISION WHETHER FUNDS AVAILABLE TO THE
BUREAU OF FOREIGN COMMERCE MAY BE USED TO PAY THE SALARY AND EXPENSES,
INCLUDING TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE, TO
EMPLOYEES OF THE BUREAU IN ORDER TO ATTEND A TRAINING COURSE CONDUCTED
BY THE DEPARTMENT OF THE ARMY AT REDSTONE ARSENAL, HUNTSVILLE, ALABAMA,
AND THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS. THE COURSES
COVERING VARIOUS PHASES OF PERSONNEL MANAGEMENT ARE STATED TO VARY FROM
ONE TO THREE WEEKS EACH. THE SUBMISSION EXPLAINS THAT BECAUSE OF THE
HIGHLY SPECIALIZED AND TECHNICAL NATURE OF THE WORK PERFORMED MOST
PERSONS HOLDING THE EXECUTIVE POSITIONS HERE INVOLVED MUST NECESSARILY
POSSESS HIGHLY SPECIALIZED BACKING IN ECONOMICS OR FOREIGN TRADE AND
THAT ORDINARILY PERSONS WHO HAVE THESE QUALIFICATIONS HAVE NOT HAD
MANAGEMENT TRAINING. ALSO, WE UNDERSTAND THAT THE DEPARTMENT OF THE
ARMY HAS AGREED TO PERMIT ATTENDANCE AT THE MANAGEMENT COURSES, WITHOUT
CHARGE, OF A LIMITED NUMBER OF BUREAU OF FOREIGN COMMERCE PERSONNEL.
NO SPECIFIC AUTHORITY IS FOUND IN THE APPROPRIATION FOR 1957 FOR THE
BUREAU OF FOREIGN COMMERCE, ACT OF JUNE 20, 1956, 70 STAT. 316, FOR
ATTENDANCE OF THE EMPLOYEES AT COURSES OF INSTRUCTION OR TRAINING.
IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THE VARIOUS
DEPARTMENTS AND AGENCIES OF THE GOVERNMENT MAY AUTHORIZE OR ASSIGN
EMPLOYEES TO ATTEND COURSES OF INSTRUCTION OR TRAINING 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 THE
TYPE WHICH THE EMPLOYEE NORMALLY WOULD BE EXPECTED TO ATTEND AT HIS OWN
EXPENSE. SEE 34 COMP. GEN. 631. THE SAME RULE IS APPLICABLE TO
IN-SERVICE TRAINING THAT IS APPLICABLE TO TRAINING RECEIVED FROM PRIVATE
SOURCES. SEE 15 COMP. GEN. 585.
WHILE THE ATTENDANCE OF EMPLOYEES AT THE MANAGEMENT COURSE MIGHT WELL
RESULT IN THE IMPROVEMENT OF YOUR INTERNAL MANAGEMENT WE ARE OF THE VIEW
THAT THE IMMEDIATE ATTENDANCE AT SUCH A COURSE IS NOT SO ESSENTIAL TO
THE PROPER PERFORMANCE OF THE DUTIES AND FUNCTIONS IMPOSED UPON THE
BUREAU OF FOREIGN COMMERCE BY LAW (AS DISTINGUISHED FROM THE GOVERNMENT
SERVICES GENERALLY) AS TO OBVIATE THE NECESSITY FOR THE BUREAU'S
PROCURING SPECIAL AUTHORITY FROM THE CONGRESS FOR THE EXPENSES OF SUCH
TRAINING. SEE 34 COMP. GEN. 719; 35 ID. 375, B-125742, DECEMBER 30,
1955, AND B-126370, JANUARY 11, 1956.
B-129208, SEP. 24, 1956
TO MR. HARRY T. THOMPSON, CONTRACTING OFFICER, NATIONAL CAPITAL
PARKS:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1956, REQUESTING
OUR ADVICE AS TO WHETHER AN AWARD OF A CONTRACT MAY BE MADE TO THE LOW
BIDDER UNDER THE CIRCUMSTANCES DESCRIBED BELOW.
INVITATION FOR BIDS NO. 14-10-028-1037, DATED JULY 27, 1956, COVERED
CERTAIN CONSTRUCTION WORK TO BE PERFORMED IN ROCK CREEK PARK,
WASHINGTON, D.C. THE INVITATION CALLED FOR LUMP SUM OR UNIT PRICES FOR
EACH OF 28 ITEMS OF WORK. IN ADDITION THE INVITATION PROVIDED FOR THE
INCLUSION OF ALTERNATE UNIT PRICES FOR "A" EARTH FILL AND "B" RIPRAP IF
MATERIAL THEREFOR COULD BE PROVIDED BY THE GOVERNMENT. PARAGRAPH 4-4 AT
PAGE 15 OF THE SPECIFICATIONS STATED THAT "AN ALTERNATIVE BID SHALL BE
SUBMITTED AS CALLED FOR IN SECTION 21 OF THESE SPECIFICATIONS AND ON THE
STANDARD GOVERNMENT FORM OF BID.' SECTION 21-1 AT PAGE 65 OF THE
SPECIFICATIONS PROVIDED THAT "THE RIGHT IS RESERVED TO ACCEPT
ALTERNATIVE BIDS AS THE INTEREST OF THE UNITED STATES MAY DIRECT.'
SECTION 4-3 (A) 3 OF THE SPECIFICATIONS REQUIRED THE EMPLOYMENT BY
THE CONTRACTOR OF AN APPROVED FIRM OR INDIVIDUAL AS FIELD CONSULTANT IN
CONNECTION WITH PRESTRESSING OPERATIONS, AND SECTION 7-1, AT PAGE 37,
STATES THAT:
"* * * THE NAME OF THE PRESTRESSING CONSULTANT AND THE NAME OF THE
SYSTEM PROPOSED TO BE USED FOR JACKING AND ANCHORAGE SHALL BE STATED IN
THE PROPOSAL, AS PROVIDED, AT THE END OF THE SCHEDULE OF PRICES.'
PAGE 4 OF THE BID PRICE SCHEDULE INCLUDED SPACES FOR THE INSERTION OF
ALTERNATIVE BIDS "A" AND ,B" AND THE NAME OF THE PROPOSED PRESTRESSING
CONSULTANT AND THAT OF THE PROPOSED PRESTRESSING SYSTEM.
THE LOW BIDDER, THE GENERAL EXCAVATING COMPANY, FAILED TO SUBMIT
FIGURES FOR EITHER ALTERNATE BID AND, IN ADDITION, FAILED TO INSERT IN
THE BID THE NAME OF THE PRESTRESSING CONSULTANT AND OF THE PRESTRESSING
SYSTEM TO BE USED. TRIANGLE CONSTRUCTION COMPANY, INC., THE SECOND LOW
BIDDER, CONTENDS THAT THE BID OF THE GENERAL EXCAVATING COMPANY SHOULD
NOT BE CONSIDERED BECAUSE OF THE OMISSIONS IN GENERAL'S BID.
IT IS STATED IN YOUR LETTER OF SEPTEMBER 11, 1956, THAT ALTERNATES
"A" AND "B" WERE INCLUDED IN THE INVITATION BECAUSE OF THE POSSIBILITY
THAT THE GOVERNMENT MIGHT BE ABLE TO OBTAIN, WITHOUT COST TO IT,
SUITABLE FILL OR RIPRAP MATERIAL TO BE USED IN CONNECTION WITH THE WORK
CONTEMPLATED UNDER THE INVITATION. IT IS POINTED OUT, HOWEVER, THAT
WHETHER A SUFFICIENT AMOUNT OF THIS MATERIAL, OR INDEED ANY OF SUCH
MATERIAL, WOULD BE AVAILABLE WAS PURELY SPECULATIVE. FURTHER, IT IS
REPORTED THAT, EVEN ASSUMING THAT THE REQUISITE AMOUNT OF SUCH MATERIAL
WERE AVAILABLE, THE COST TO THE GOVERNMENT, UNDER THE LOW BID, WOULD
STILL BE MORE THAN $33,000 LESS THAN THE COST UNDER THE BID OF THE
TRIANGLE CONSTRUCTION COMPANY, INC., EVEN AT ITS ALTERNATE PRICES ON THE
BASIS OF GOVERNMENT FURNISHED MATERIAL.
IT IS ALSO INDICATED THAT, WHILE THE NAMES OF THE PRESTRESSING
CONSULTANT AND PRESTRESSING SYSTEM WERE OMITTED FROM THE BID OF THE
GENERAL EXCAVATING COMPANY, THAT INFORMATION WAS VERBALLY SUPPLIED BY
ITS REPRESENTATIVE BEFORE ITS BID WAS OPENED, AND THE VERBAL STATEMENT
WAS CONFIRMED IN WRITING BY SUBSEQUENT LETTER.
AS TO THE FIRST OBJECTION, FAILURE OF THE LOW BIDDER TO COMPLETE
ALTERNATES "A" AND "B," SINCE THE ACCEPTANCE OF THE LOW BID WOULD RESULT
IN THE LOWEST PRICE TO THE GOVERNMENT, EVEN IF THE MATERIAL COULD BE
FURNISHED BY THE GOVERNMENT, NO REASON IS SEEN FOR REJECTING THE LOW
BID, THERE BEING NO BASIS ON WHICH IT MAY BE CONTENDED THAT THE
ACCEPTANCE OF THE LOW BID WITH SUCH OMISSIONS WOULD DISCRIMINATE AGAINST
THE OTHER BIDDERS. FURTHER, THE RIGHT RESERVED IN THE GOVERNMENT TO
ACCEPT ALTERNATE BIDS CLEARLY IMPLIES THE COLLATERAL RESERVATION TO
REJECT THEM WHEN IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO.
CLEARLY, THE REJECTION OF THE ALTERNATE BIDS WOULD NOT PRECLUDE THE
ACCEPTANCE OF THE MAIN BID. SIMILARLY, WE SEE NO REASON WHY THE MAIN
BID MAY NOT BE ACCEPTED EVEN THOUGH THE ALTERNATES HAVE BEEN OMITTED.
IN REGARD TO THE SECOND OBJECTION, FAILURE OF THE LOW BIDDER TO
INCLUDE IN THE BID THE NAME OF THE PRESTRESSING CONSULTANT AND THE
PRESTRESSING SYSTEM, IT APPEARS THAT THESE STATEMENTS WERE REQUIRED AS A
MATTER OF INFORMATION FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT
RATHER THAN AS CONDITIONS OF THE BID, AND THE FURNISHING OF THE NAMES
DID NOT AFFECT THE OBLIGATION OF THE BIDDER, IN THE EVENT OF AWARD OF A
CONTRACT, TO EMPLOY A CONSULTANT AND SYSTEM ACCEPTABLE TO THE
GOVERNMENT. WHILE THE INVITATION MIGHT HAVE BEEN MORE CLEARLY WORDED TO
THAT EFFECT, WE ARE INCLINED TO THE VIEW THAT ACCEPTANCE OF THE BID
WOULD NOT BIND THE GOVERNMENT NOT TO REQUIRE A CHANGE OF CONSULTANT OR
SYSTEM IF THOSE NAMED SHOULD THEREAFTER BE DETERMINED TO BE
UNSATISFACTORY. IN ANY EVENT, THE REQUESTED INFORMATION WAS IN FACT
FURNISHED PRIOR TO BID OPENING AND, WHILE IT MIGHT HAVE BEEN REQUIRED TO
BE REDUCED TO WRITING, THE FAILURE TO DO SO MAY BE REGARDED AS AN
INFORMALITY WHICH THE CONTRACTING OFFICER COULD PROPERLY WAIVE.
IT IS NOTED THAT THE PROTESTING BIDDER, IN A LETTER DATED AUGUST 25,
1956, CONTENDS THAT THE COST OF MATERIAL ALONE REQUIRED FOR BID ITEM NO.
7 WOULD EXCEED THE FIGURE SUBMITTED BY THE LOW BIDDER. WE ARE ADVISED
THAT WHILE THAT STATEMENT IS TRUE AN ANALYSIS OF THE BIDS INDICATES THAT
SOME OF THE COST, INCLUDED BY THE PROTESTING BIDDER UNDER ITEM NO. 7,
WAS INCLUDED BY THE LOW BIDDER UNDER ITEM NO. 9 AS THE RESULT OF
DIFFERENT METHODS OF ALLOCATION OF COSTS USED BY THE RESPECTIVE BIDDERS.
SINCE THE AWARD IS TO BE MADE ON THE BASIS OF THE TOTAL WORK, THE
DIFFERENCE IN ALLOCATION OF COSTS TO ITEMS NOS. 7 AND 9 IS NOT DEEMED TO
BE MATERIAL.
ACCORDINGLY, SINCE THE DEFICIENCIES IN THE LOW BID NEITHER GO TO THE
SUBSTANCE OF THE BID NOR WORK AN INJUSTICE TO THE OTHER BIDDERS, WE
PERCEIVE NO REASON WHY THE AWARD MAY NOT BE MADE TO THE LOW BIDDER. CF.
35 COMP. GEN. 98, 99.
B-118853, SEP. 21, 1956
TO MOORE-MCCORMACK LINES, INC. :
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 28, 1956, RELATING TO THE
CLAIM ASSERTED AGAINST YOU BY THIS OFFICE FOR SUMS AGGREGATING
$1,385.60, REPRESENTING OVERPAYMENTS FOR THE TRANSPORTATION OF HOUSEHOLD
GOODS, ETC., FROM HOBOKEN, NEW JERSEY, TO OSLO, NORWAY, UNDER GOVERNMENT
BILLS OF LADING, THE SHIPMENTS INVOLVED HAVING MOVED DURING THE CALENDAR
YEAR 1951.
IN OUR DECISION OF AUGUST 6, 1956, WE APPLIED THE RATES INCLUDED IN A
PUBLISHED TARIFF AND WHICH, BY THE TERMS OF THE TARIFF, WERE MADE
APPLICABLE TO SHIPMENTS OFFERED BY THE MILITARY SEA TRANSPORTATION
SERVICE AND IN CONNECTION WITH THE MUTUAL DEFENSE ASSISTANCE PACT TO
SPECIFIED ,BASE PORTS," INCLUDING OSLO, NORWAY. IN YOUR LETTER OF APRIL
19, 1956, YOU STATED THAT THE FILING OF THE "EMERGENCY RATES" COVERED BY
PAGE AA OF NORTH ATLANTIC BALTIC FREIGHT CONFERENCE TARIFF NO. 8, ISSUED
MARCH 6, 1951, AS AMENDED JULY 7, 1951, WAS INTENDED MERELY TO COMPLY
WITH THE REQUIREMENTS OF THE NORTH ATLANTIC BALTIC CONFERENCE THAT
COPIES OF ALL CONTRACT RATES BE FURNISHED, AND THAT YOUR FAILURE TO
INCLUDE THE PROVISIONS OF REVISION NO. 2 WAS AN INADVERTENT OVERSIGHT.
AT THAT TIME YOU DID NOT CONTEND SPECIFICALLY THAT THE RATES APPLIED BY
THIS OFFICE WERE INAPPLICABLE TO THESE SHIPMENTS BUT RATHER THAT THE
RESULT REACHED--- DUE TO INADVERTENT OVERSIGHT ON YOUR PART--- WAS ONE
NEVER INTENDED BY YOU. IT WAS OUR VIEW, AS SET FORTH IN THE DECISION OF
AUGUST 6, 1956, THAT THE REPORTED ERROR OR OVERSIGHT FURNISHES NO BASIS
FOR THE APPLICATION OF RATES OTHER THAN THOSE ACTUALLY INCLUDED IN THE
TARIFF AS PUBLISHED.
YOU NOW QUESTION THE CORRECTNESS OF THE CONCLUSION REACHED IN OUR
DECISION OF AUGUST 6, BECAUSE YOU STATE THAT THE EMERGENCY RATES ON PAGE
AA OF THE INVOLVED TARIFF COULD ONLY BE ALTERNATE RATES ON OTHER PAGES
OF THE TARIFF, THEREBY OBVIATING THE NECESSITY OF KEEPING SEPARATE
ACCOUNTS OF THE COST OF HANDLING AT THE LOADING AND DISCHARGING PORTS.
YOU STATE FURTHER THAT YOU SERIOUSLY DOUBT THAT THE TERM "FREE IN AND
FREE OUT TO VESSEL" WITHOUT FURTHER QUALIFICATION, HAS EVER BEEN
CONSTRUED TO IMPLY THAT THE VESSEL IS TO DO THE LOADING AND DISCHARGING
AND THEREAFTER BILL THE OWNER OF THE GOODS FOR THE COST OF SUCH
SERVICES. FOR THE FOREGOING REASONS YOU REQUEST RECONSIDERATION OF THE
DECISION OF AUGUST 6, 1956.
AS UNDERSTOOD HERE, YOUR PRESENT CONTENTION APPEARS TO BE THAT THE
EMERGENCY RATES ON PAGE AA OF THE TARIFF ARE NOT THE RATES SPECIFICALLY
SET FORTH THEREIN AS APPLICABLE TO THE SHIPMENTS HERE
INVOLVED, BUT THAT SUCH "EMERGENCY RATES" COULD ONLY BE ALTERNATE
RATES SET FORTH ON OTHER PAGES OF THE TARIFF. IT IS OUR VIEW THAT THE
CITED TARIFF CANNOT BE SO CONSTRUED SINCE THE LANGUAGE AND INTENT OF
PAGE AA ARE SO CLEAR AS NOT TO PERMIT OF SUCH INTERPRETATION. THE RATES
ON PAGE AA SUPERSEDE THE TARIFF RATES WHICH ORDINARILY MIGHT HAVE
APPLIED ON SHIPMENTS SUCH AS THOSE INVOLVED HEREIN, AND ARE THE ONLY
RATES HELD OUT AS BEING APPLICABLE. IN APPLYING THE EMERGENCY RATES TO
THESE SHIPMENTS WE HAVE DONE NO MORE THAN UTILIZE THE RATES DULY
PUBLISHED AND HELD OUT BY THE TARIFF AS APPLICABLE. IN OTHER WORDS, OUR
ACTION MERELY GIVES EFFECT TO THE TARIFF PROVISIONS.
WITH REFERENCE TO YOUR STATEMENT THAT YOU SERIOUSLY DOUBT THAT THE
TERM "FREE IN AND FREE OUT TO VESSEL" WITHOUT FURTHER QUALIFICATION, HAS
EVER BEEN CONSTRUED TO IMPLY THAT THE VESSEL IS TO DO THE LOADING AND
DISCHARGING AND THEREAFTER BILL THE OWNER OF THE GOODS FOR THE COST OF
SUCH SERVICES, YOUR ATTENTION IS INVITED TO THE FOLLOWING STATEMENT IN
PARAGRAPH TWO OF YOUR LETTER OF APRIL 19, 1956:
"* * * WE WISH TO POINT OUT THAT ALL CARGO LOADED UNDER CONTRACT MST
41 IS ON A "FREE IN AND OUT" BASIS AND WHEN WE DO THE STEVEDORING OF
SAME WE DO SO UNDER ARMY CONTRACT DA 30-182-TC-263 OR
NAVY CONTRACT N600S-10678, WHICHEVER "SHIPPER SERVICE" IS
RESPONSIBLE.'
UPON RECONSIDERATION OF THE MATTER WE FIND NO BASIS FOR A DIFFERENT
CONCLUSION FROM THAT REACHED IN THE DECISION OF AUGUST 6, 1956.
ACCORDINGLY, WE AGAIN REQUEST THAT YOU TRANSMIT HERE WITHIN THIRTY DAYS
YOUR CHECK FOR $1,385.60, MADE PAYABLE TO THE TREASURER OF THE UNITED
STATES, IN ORDER THAT THIS MATTER MAY BE CLOSED.
B-128550, B-128690, SEP. 21, 1956
TO THE SECRETARY OF THE ARMY:
YOUR ATTENTION IS DIRECTED TO OUR LETTER OF JULY 25, 1956, TO THE
DIRECTOR OF CIVILIAN PERSONNEL, AND HIS REPLY THERETO OF AUGUST 25,
1956, CONCERNING ORAL STATEMENTS MADE TO MR. LESLIE L. CROOK, A
FIREFIGHTER, WALTER REED ARMY MEDICAL CENTER, IN CONNECTION WITH
COMPENSATION FOR SERVICES IN EXCESS OF HIS REGULAR TOUR OF DUTY OF 72
HOURS PER WEEK. THE MATTER WAS REFERRED HERE FOR OUR COMMENTS BY
SENATOR OLIN D. JOHNSTON BECAUSE THE STATEMENTS TO MR. CROOK APPARENTLY
AROSE OUT OF ACTION BY OUR OFFICE IN QUESTIONING THE ADDITIONAL OVERTIME
PAYMENTS TO MR. CROOK AND OTHER EMPLOYEES AT THE HOSPITAL.
THE RECORDS SHOW THAT INFORMAL INQUIRIES WERE RECENTLY ISSUED BY OUR
AUDITORS QUESTIONING CERTAIN OVERTIME PAYMENTS TO MR. CROOK AND OTHER
EMPLOYEES FOR SERVICES IN EXCESS OF THEIR REGULAR TOUR OF DUTY OF 72
HOURS PER WEEK WHICH PAYMENTS WERE IN ADDITION TO THE PREMIUM
COMPENSATION ON AN ANNUAL BASIS (15 PERCENT) DETERMINED AS PAYABLE UNDER
THE PROVISION OF SECTION 401 (A) (1) OF THE FEDERAL EMPLOYEES PAY ACT OF
1945, AS AMENDED. IN VIEW OF THE NATURE OF SENATOR JOHNSTON'S LETTER TO
OUR OFFICE, AS WELL AS THAT OF A SIMILAR LETTER FROM SENATOR BUTLER
CONCERNING ANOTHER FIREFIGHTER AT THE HOSPITAL, WE HAVE MADE A REVIEW OF
THE LEGAL BASIS FOR PAYMENT OF OVERTIME COMPENSATION IN ADDITION TO THE
PREMIUM PERCENTAGE COMPENSATION PRESENTLY BEING PAID TO MR. CROOK AND
OTHER FIREFIGHTERS UNDER SECTION 401 (A) (1) OF THE FEDERAL EMPLOYEES
PAY ACT OF 1945, AS AMENDED. AFTER EXAMINING THE LEGISLATIVE HISTORY OF
THE AMENDATORY ENACTMENT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, IT IS OUR
VIEW THAT NO OVERTIME COMPENSATION IS ALLOWABLE TO MR. CROOK AND THE
OTHER EMPLOYEES INVOLVED WHICH IS IN ADDITION TO THE 15 PERCENT PREMIUM
COMPENSATION OTHERWISE BEING PAID UNDER SECTION 401 (A) (1) OF THE
FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.
IRRESPECTIVE OF THE FOREGOING, IT WOULD SEEM THAT IN VIEW OF THE
CONSIDERABLE AMOUNT OF OVERTIME REQUIRED OF MR. CROOK (67 HOURS) IN A
PERIOD OF APPROXIMATELY ONE YEAR, THAT, A SURVEY WOULD BE WARRANTED OF
THE WORK SITUATION AT THE WALTER REED HOSPITAL TO DETERMINE WHETHER A
HIGHER RATE OF PREMIUM COMPENSATION SHOULD BE ADOPTED OR PROPOSED TO THE
CIVIL SERVICE COMMISSION FOR APPROVAL AS THE CASE MIGHT BE. SEE
SECTIONS 25.254 (B) AND 25.274 OF THE COMMISSIONS' REGULATIONS. WE ARE
ADVISING SENATORS JOHNSTON AND BUTLER OF THIS SUGGESTION AND THAT YOU
WILL ADVISE THEM OF YOUR FINDINGS IN THE MATTER.
B-128557, SEP. 21, 1956
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS, ADMINISTRATION:
REFERENCE IS MADE TO TWO LETTERS DATED MAY 25, 1956, FROM MR. F. W.
KELSEY, CONTROLLER, VETERANS ADMINISTRATION. IN ONE LETTER A REQUEST IS
MADE FOR THE RELIEF OF MARGARET E. PIERSON, AUTHORIZED CERTIFYING
OFFICER, PURSUANT TO PUBLIC LAW 389, 77TH CONGRESS, 31 U.S.C. 82C. IN
THE SECOND LETTER IT IS REQUESTED THAT WE GIVE FAVORABLE CONSIDERATION,
UNDER PUBLIC LAW 334, 69 STAT. 626, TO MISS PIERSON'S CLAIM, FORWARDED
WITH THE LETTER, FOR $223.58, WHICH IS THE AMOUNT DEPOSITED BY HER TO
CLEAR AN EXCEPTION STATED BY THIS OFFICE FOR ERRONEOUS AND ILLEGAL
PAYMENTS CERTIFIED BY HER AS BEING CORRECT.
WITH RESPECT TO THE FIRST REQUEST FOR RELIEF, OUR OFFICE, UNDER THE
AUTHORITY OF SECTION 2 OF THE ACT OF DECEMBER 29, 1941 (55 STAT. 875,
31 U.S.C. 82C), COULD HAVE RELIEVED MISS PIERSON HAD A TIMELY REQUEST
FOR RELIEF BEEN SUBMITTED HERE PRIOR TO THE EXTINGUISHMENT OF HER
LIABILITY TO THE UNITED STATES. HOWEVER, OUR RELIEF AUTHORITY UNDER
THAT STATUTE DOES NOT EXTEND TO THE REFUNDING OF AMOUNTS PAID BY THE
OFFICER AS REIMBURSEMENT OF AN ERRONEOUS PAYMENT. COMPARE OUR DECISION
OF JULY 19, 1951, B-101301, TO THE THEN ADMINISTRATOR OF VETERANS'
AFFAIRS INVOLVING OUR AUTHORITY TO AUTHORIZE REFUNDS UNDER A SIMILAR
STATUTE.
AS TO MISS PIERSON'S CLAIM FOR REIMBURSEMENT, PUBLIC LAW 334, 69
STAT. 626, PROVIDES IN PART:
"THIS ACT SHALL BE APPLICABLE ONLY TO THE ACTUAL PHYSICAL LOSS OR
DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES,
OR PAPERS, AND SHALL NOT INCLUDE DEFICIENCIES IN THE
ACCOUNTS OF SUCH OFFICERS OR AGENTS RESULTING FROM ILLEGAL OR
ERRONEOUS PAYMENTS.'
SINCE THE EXCEPTIONS RAISED AGAINST MISS PIERSON WERE FOR ERRONEOUS
AND ILLEGAL PAYMENTS, SHE DOES NOT FALL WITHIN THE CLASS OF CERTIFYING
OFFICERS WHO MAY BE ELIGIBLE FOR A REFUND UNDER THE PROVISIONS OF PUBLIC
LAW 334. HOWEVER, IT APPEARS FROM THE INFORMATION NOW AVAILABLE THAT
MISS PIERSON MAY BE ENTITLED TO A REFUND OF $56, THE AMOUNT RECOVERED
SUBSEQUENT TO HER REMITTANCE EXTINGUISHING THE EXCEPTION. THIS PHASE OF
THE CASE HAS BEEN REFERRED TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION
AND MISS PIERSON WILL BE ADVISED OF OUR CONCLUSION.
B-129061, SEP. 21, 1956
TO MR. WILLIAM E. FISHER:
YOUR LETTER OF JULY 20, 1956, REQUESTS REVIEW OF THE ACTION TAKEN BY
OUR CLAIMS DIVISION ON THE VOUCHER RELEASED ON JUNE 7, 1956, IN THE
SETTLEMENT OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF
TRANSPORTATION OF YOUR WIFE FROM NEW CUMBERLAND GENERAL DEPOT, NEW
CUMBERLAND, PENNSYLVANIA, TO SALEM, OREGON, DURING THE PERIOD NOVEMBER 2
TO 12, 1955.
BY ORDERS DATED OCTOBER 18, 1955, YOU WERE RELEASED FROM ASSIGNMENT
AT NEW CUMBERLAND GENERAL DEPOT AND DIRECTED TO REPORT TO FORT LEWIS,
WASHINGTON, ON OR BEFORE DECEMBER 13, 1955, FOR SHIPMENT TO ALASKA. YOU
WERE AUTHORIZED 30 DAYS' LEAVE EN ROUTE AND YOUR ORDERS SHOW YOUR LEAVE
ADDRESS AS C/O ORVILL GRIMM, SALEM, OREGON. YOU AND YOUR WIFE TRAVELED
TO SALEM, OREGON, WHERE SHE REMAINED UNTIL DECEMBER 1. IT APPEARS THAT
IMMEDIATELY AFTER YOU REPORTED TO FORT LEWIS, YOUR WIFE TRAVELED TO
TACOMA, WASHINGTON, WHERE SHE RESIDED FROM DECEMBER 2 TO 12 WHEN YOU
BOTH RETURNED TO BALTIMORE, MARYLAND, AFTER YOUR DISCHARGE FROM THE
SERVICE. YOU WERE ALLOWED MILEAGE FOR YOUR WIFE'S TRAVEL COMPUTED ON
THE DISTANCE BETWEEN NEW CUMBERLAND AND YOUR HOME OF RECORD, ELLICOTT
CITY, MARYLAND. YOUR CLAIM FOR THE COST OF YOUR WIFE'S TRAVEL TO SALEM
WAS DISALLOWED FOR THE REASON THAT THE RECORD DID NOT SHOW SHE
ESTABLISHED A RESIDENCE AT THAT PLACE. IN YOUR LETTER YOU SAY YOUR WIFE
ESTABLISHED A RESIDENCE IN SALEM AND LEFT THERE FOR TACOMA, WASHINGTON,
BECAUSE SHE WAS PREGNANT AND MEDICAL AND HOSPITAL BILLS WERE HIGH. YOU
ENCLOSED A STUB OF AN ELECTRIC BILL WHICH SHOWED SERVICE WAS RENDERED TO
YOU AT A SALEM ADDRESS FOR THE PERIOD ENDING DECEMBER 3, 1955.
THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES
AT PUBLIC EXPENSE UPON CHANGE OF PERMANENT STATION IS AUTHORIZED BY
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
815. PARAGRAPH 7008-3 OF THE JOINT TRAVEL REGULATIONS, RELATING TO A
PERMANENT CHANGE OF STATION OF A MEMBER FROM A STATION WITHIN THE UNITED
STATES TO A STATION OUTSIDE THE UNITED STATES OR IN ALASKA, PROVIDES
THAT WHEN THE DEPENDENTS OF THE MEMBER ARE NOT AUTHORIZED TO TRAVEL TO
THE MEMBER'S NEW STATION AT THE TIME HE DEPARTS FROM HIS OLD STATION,
TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED
FROM THE PLACE THEY WERE LOCATED AT THE TIME OF RECEIPT OF THE ORDERS TO
ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE. ALSO,
PARAGRAPH 7057 OF THE REGULATIONS PROVIDES THAT A MEMBER IS ENTITLED TO
TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE FROM HIS OLD
STATION TO OTHER THAN HIS NEW STATION NOT TO EXCEED THE COST FROM THE
OLD TO THE NEW STATION. HOWEVER, TRAVEL OF DEPENDENTS MAY NOT BE
CONSIDERED TO BE WITHIN THE INTENT AND PURPOSE OF THE LAW AND
REGULATIONS AUTHORIZING SUCH TRAVEL UNLESS SUCH TRAVEL ACTUALLY IS
PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AND IS
INCIDENT TO A CHANGE OF STATION OF THE PERSON IN THE ARMED SERVICES.
REIMBURSEMENT FOR TRAVEL OF DEPENDENTS TO A PLACE OF TEMPORARY RESIDENCE
FOR SUCH PURPOSES AS A VISIT OR FOR SPENDING A VACATION WITH THE MEMBER
WHILE HE IS ON LEAVE IS NOT AUTHORIZED. SEE 33 COMP. GEN. 431.
WHILE YOU SAY YOUR WIFE ESTABLISHED A RESIDENCE AT SALEM AND ALSO AT
TACOMA IT APPEARS THAT THEY WERE ONLY TEMPORARY RESIDENCES AND THAT, AS
FAR AS THE PRESENT RECORD SHOWS, SALEM WAS ONLY A LEAVE ADDRESS, SINCE
YOUR WIFE PROCEEDED TO TACOMA WHEN YOU REPORTED TO FORT LEWIS FOR DUTY
AND FURTHER ASSIGNMENT. UNDER SUCH CIRCUMSTANCES, REIMBURSEMENT FOR THE
COST OF THE TRANSPORTATION INCURRED BY YOUR WIFE IS NOT AUTHORIZED, AND
THE SETTLEMENT OF JUNE 7, 1956, WAS CORRECT AND IS SUSTAINED.
B-129104, SEP. 21, 1956
TO STAFF SERGEANT CHARLES E. JAMIESON, USAF:
YOUR LETTER OF AUGUST 20, 1956, REQUESTS REVIEW OF OUR SETTLEMENT
DATED AUGUST 14, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF
YOUR WIFE'S TRAVEL FROM SAN RAFAEL, CALIFORNIA, TO CENTRAL FALLS, RHODE
ISLAND, DECEMBER 18 TO 22, 1953, INCIDENT TO YOUR CHANGE OF STATION
ORDERS DATED JUNE 2, 1953.
BY ORDERS DATED JUNE 2, 1953, HEADQUARTERS, 567TH AIR DEFENSE GROUP,
MCCHORD AIR FORCE BASE, WASHINGTON, YOU WERE RELIEVED FROM ASSIGNMENT
AND DUTY AT THAT STATION AND DIRECTED TO PROCEED TO A PORT OF
EMBARKATION FOR MOVEMENT TO AN OVERSEAS DESTINATION. INCIDENT TO SUCH
CHANGE OF STATION YOU EXECUTED A VOUCHER ON WHICH YOU CLAIMED
REIMBURSEMENT FOR THE TRAVEL OF YOUR WIFE FROM SAN RAFAEL, CALIFORNIA,
TO CENTRAL FALLS, RHODE ISLAND, DURING THE PERIOD JUNE 11 TO 16, 1953.
ON THE BASIS OF YOUR CERTIFICATION THAT THE TRAVEL WAS PERFORMED AS
CLAIMED, YOU WERE PAID $197.94 ON VOUCHER NO. 362, JULY 1953 ACCOUNTS OF
CAPTAIN A. C. SCHILKE, SYMBOL 225-486. THIS TRAVEL HAD NOT BEEN
PERFORMED AS CERTIFIED BY YOU IN YOUR CLAIM AND YOU REPAID THE SUM OF
$197.94 TO THE GOVERNMENT AFTER AN EXCEPTION WAS TAKEN TO THE PAYMENT
UPON THE AUDIT OF THE VOUCHER. ON MARCH 20, 1956, YOU SUBMITTED A CLAIM
FOR REIMBURSEMENT OF YOUR WIFE'S TRAVEL FROM SAN RAFAEL, CALIFORNIA, TO
CENTRAL FALLS, RHODE ISLAND, DURING THE PERIOD DECEMBER 18 TO 22, 1953,
INCIDENT TO THE SAME CHANGE OF STATION ORDERS. THE CLAIM WAS DISALLOWED
BY THE SETTLEMENT OF AUGUST 14, 1956.
IN YOUR LETTER OF AUGUST 20, 1956, YOU SAY YOU FEEL YOU ARE ENTITLED
TO PAYMENT OF YOUR CLAIM FOR THE REASON THAT YOUR WIFE PERFORMED THE
TRAVEL INCIDENT TO YOUR PERMANENT CHANGE OF STATION ORDERS. YOUR RIGHT,
HOWEVER, TO REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR WIFE DOES NOT
DEPEND ENTIRELY UPON THE FACT THAT SHE PERFORMED THE TRAVEL. THE JOINT
TRAVEL REGULATIONS PROVIDE FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS,
WITHIN CERTAIN LIMITATIONS, AFTER THE TRAVEL HAS BEEN COMPLETED. YOU
SAY THAT YOU WERE UNAWARE THAT THE TRAVEL HAD NOT BEEN PERFORMED ON THE
DATES INDICATED ON THE VOUCHER ON WHICH YOU RECEIVED PAYMENT;
NEVERTHELESS, YOU STATED IN THE VOUCHER THAT THE TRAVEL HAD BEEN
PERFORMED ON SUCH DATES AND CERTIFIED THE VOUCHER AS BEING CORRECT IN
ALL RESPECTS. SINCE YOUR WIFE HAD NOT PERFORMED THE TRAVEL, THE CLAIM
WAS A FALSE CLAIM AND AS A RESULT YOU RECEIVED MONEYS TO WHICH YOU WERE
NOT ENTITLED.
SECTION 2514, TITLE 28, OF THE UNITED STATES CODE PROVIDES:
"A CLAIM AGAINST THE UNITED STATES SHALL BE FORFEITED TO THE UNITED
STATES BY ANY PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY
FRAUD AGAINST THE UNITED STATES IN THE PROOF, STATEMENT, ESTABLISHMENT,
OR ALLOWANCE THEREOF.
"IN SUCH CASES THE COURT OF CLAIMS SHALL SPECIFICALLY FIND SUCH FRAUD
OR ATTEMPT AND RENDER JUDGMENT OF FORFEITURE.'
THE FRAUDULENT PRESENTATION OF A CLAIM AGAINST THE UNITED STATES FOR
A GREATER AMOUNT THAN IS DUE, OR FOR AN AMOUNT THAT IS NOT DUE, VITIATES
AND DESTROYS THE CLAIMANT'S RIGHT IN THE ENTIRE CLAIM. IN SUCH A
SITUATION, NO AMOUNT MAY BE PAID ON THE ACCOUNT EVEN THOUGH THE CLAIMANT
LATER ALTERS HIS STATEMENT TO REFLECT THE TRUE FACTS AND THE ENTIRE
PAYMENT ON THEIR FALSE VOUCHER MUST BE RECOVERED. IN YOUR CASE, YOU
WERE NOT ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN
RAFAEL TO CENTRAL FALLS, SINCE SHE HAD NOT TRAVELED FROM SAN RAFAEL AS
ALLEGED. PAYMENT MAY NOT NOW BE MADE ON THE BASIS THAT SHE ACTUALLY
TRAVELED FROM SAN RAFAEL TO CENTRAL FALLS INCIDENT TO YOUR CHANGE OF
STATION AT A LATER DATE.
ACCORDINGLY, THE SETTLEMENT OF AUGUST 14, 1956, WAS CORRECT AND IS
SUSTAINED.
B-129172, SEP. 21, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF SEPTEMBER 7, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), REQUESTING A
DECISION AS TO WHETHER ITEM 17 PROPERLY MAY BE DELETED FROM CONTRACT NO.
N62649S-3320 WITH NAKAZAWA SHOTEN, YOKOSUKA, JAPAN, DUE TO AN ERROR
ALLEGED BY THE COMPANY TO HAVE BEEN MADE IN ITS BID ON THAT ITEM.
THE UNITED STATES NAVAL SUPPLY DEPOT, YOKOZUKA, JAPAN, BY SALES
CATALOG NO. B-4-57, REQUESTED BIDS--- TO BE OPENED ON AUGUST 6, 1956---
ON VARIOUS ITEMS OF SURPLUS MATERIALS. ITEM 17 CONSISTED OF
MISCELLANEOUS SHIPS REPAIR PARTS AND REQUESTED BIDS ON A LOT BASIS. IN
RESPONSE TO THE INVITATION, NEKAZAWA SHOTEN SUBMITTED A BID OFFERING TO
PURCHASE, AMONG OTHERS, ITEM 17 FOR THE AMOUNT OF YEN 207,000.00. THE
BID OF NAKAZAWA SHOTEN, ON ITEMS 2, 6, 10 AND 17 WAS ACCEPTED ON
AUGUST 8, 1956, UNDER CONTRACT NO. N62649S-3320.
IT IS REPORTED THAT ON AUGUST 6, 1956, THE DATE THE BIDS WERE OPENED,
NAKAZAWA SHOTEN ALLEGED THAT AN ERROR HAD BEEN MADE IN ITS BID ON ITEM
17 IN THAT THE PRICE SHOULD HAVE BEEN YEN 20,700.00
RATHER THAN YEN 207,000.00. THE VERBAL ALLEGATION OF ERROR WAS
CONFIRMED BY LETTER DATED AUGUST 7, 1956, AND THERE WAS SUBMITTED IN
SUPPORT THEREOF A COPY OF THE INVITATION ON WHICH THE PRICES THE COMPANY
INTENDED TO BID WERE WRITTEN AT THE TIME THE MATERIAL WAS INSPECTED. IT
IS ALLEGED THAT THE ERROR WAS MADE BY THE CLERK OF THE COMPANY IN
TRANSCRIBING THE PRICES FROM THE WORK COPY TO THE BID FORM SUBMITTED.
THE RECORD SHOWS THAT THE SIX OTHER BIDS RECEIVED ON ITEM 17 WERE IN
THE AMOUNTS OF YEN 37,000.00, YEN 35,500.00, YEN 31,900.00, YEN
30,600.00, YEN 20,000.00 AND YEN 13,600.00. THE PRICE OF YEN 207,000.00
QUOTED BY NAKAZAWA SHOTEN IS SUBSTANTIALLY IN EXCESS OF THE AMOUNTS
QUOTED BY THE OTHER BIDDERS FOR THE MATERIAL, WHEREAS THE ALLEGED
INTENDED PRICE OF YEN 20,700.00 IS IN LINE WITH THE OTHER BIDS.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS TO BE
LITTLE DOUBT THAT AN ERROR WAS MADE ON ITEM 17 OF THE BID, AS ALLEGED.
SINCE THE ERROR WAS ALLEGED AND EXPLAINED BY THE COMPANY PRIOR TO AWARD,
THE ACCEPTANCE OF THE BID AS TO ITEM 17 MAY NOT BE CONSIDERED AS
CONSUMMATING A VALID AND BINDING CONTRACT. ACCORDINGLY, ITEM 17 SHOULD
BE DELETED FROM THE CONTRACT NO. N62649S-3320.
THE PAPERS, WITH THE EXCEPTION OF THE MEMORANDUM DATED AUGUST 23,
FROM THE COMMANDING OFFICER, NAVY NO. 3923, TO THE BUREAU OF SUPPLIES
AND ACCOUNTS, WASHINGTON, D.C., ARE RETURNED HEREWITH.
B-116968, SEP. 20, 1956
TO THE SECRETARY OF STATE:
REFERENCE IS MADE TO A COMMUNICATION DATED AUGUST 24, 1956, FROM THE
ACTING SECRETARY OF STATE, ENCLOSING A COPY OF A NOTE FROM THE EMBASSY
OF THE PHILIPPINES TRANSMITTING COPY OF A LETTER DATED
JUNE 22, 1956, FROM MR. JOSE M. BIADO TO THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, IN WHICH MR. BIADO REQUESTS RECONSIDERATION
OF OUR SETTLEMENT DATED DECEMBER 8, 1950, WHICH DISALLOWED HIS CLAIM FOR
MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, INCIDENT TO HIS
SERVICE AS AN ENLISTED MEMBER OF THE PHILIPPINE SCOUTS.
BY OUR DECISION OF OCTOBER 22, 1953, B-116968, THE SETTLEMENT OF
DECEMBER 8, 1950, WAS REVIEWED AT MR. BIADO'S REQUEST AND FOUND TO BE
CORRECT FOR REASONS MORE PARTICULARLY STATED THEREIN UNDER DATE OF JUNE
14, 1954, THE CORRECTNESS OF THE SETTLEMENT WHICH DISALLOWED MR. BIADO'S
CLAIM WAS AGAIN CAREFULLY CONSIDERED, AND FOR REASONS STATED THE ACTION
PREVIOUSLY TAKEN WAS ADHERED TO. ALSO, MR. BIADO'S CLAIM WAS THE
SUBJECT OF OFFICE LETTERS DATED JANUARY 11, APRIL 6, AND JUNE 6, 1955,
TO HIM. ENCLOSED FOR YOUR INFORMATION AND USE ARE COPIES OF THE
DECISIONS DATED OCTOBER 22,
1953, AND JUNE 14, 1954, AND THE LETTERS OF JANUARY 11, APRIL 6, AN
JUNE 6, 1955, WHICH, IT WILL BE SEEN, ARE SELF-EXPLANATORY.
IT IS BELIEVED THAT THE CONTENTS OF THE ENCLOSURES FURNISH AN
ADEQUATE BASIS UPON WHICH AN APPROPRIATE REPLY MAY BE MADE TO THE
PHILIPPINE EMBASSY.
B-127063, SEP. 20, 1956
TO MR. WALTER C. MILOSEVICH, ETC, UNITED STATES NAVY:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 28, 1956, WITH ENCLOSURES,
FORWARDED HERE BY THE DEPARTMENT OF THE NAVY CONCERNING YOUR CLAIM FOR
COMMUTED RATIONS FOR THE PERIOD FEBRUARY 17, 1953, TO MAY 16, 1955,
INCIDENT TO YOUR SERVICE AS CHIEF ELECTRONICS TECHNICIAN, UNITED STATES
NAVY.
YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 20, 1956, OF OUR
CLAIMS DIVISION FOR THE REASON THAT YOU FAILED TO SECURE ADVANCE OR
CONTEMPERANEOUS APPROVAL, IN WRITING, BY YOUR COMMANDING OFFICER OF YOUR
APPLICATION FOR SUCH RATION ALLOWANCE AS REQUIRED BY NAVY DEPARTMENT
REGULATIONS. YOU WERE ALSO ADVISED THAT THE REQUEST OF MAY 16, 1955, BY
YOUR COMMANDING OFFICER THAT YOU BE PAID SUCH AN ALLOWANCE FOR THE
PERIOD INVOLVED MAY NOT BE GIVEN RETROACTIVE EFFECT. YOU URGE THAT YOUR
CLAIM BE ALLOWED ON THE BASIS THAT WHEN YOU SUBMITTED A REQUEST FOR
COMMUTED RATIONS ON FEBRUARY 16, 1953, YOU WERE REQUIRED TO SURRENDER
YOUR GENERAL MESS PASS AND THAT YOUR REQUEST WAS NOT APPROVED DUE TO AN
ADMINISTRATIVE ERROR.
SECTION 301 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812,
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.' SECTION 3 (C) OF EXECUTIVE ORDER NO. 10119, MARCH 27, 1950,
ISSUED UNDER AUTHORITY OF SECTION 301 STATES THAT THE TERM "WHEN
PERMISSION TO MESS SEPARATELY IS RANTED" SHOULD BE CONSIDERED APPLICABLE
IN THE CASE OF ENLISTED MEMBERS ON DUTY AT STATIONS WHERE A MESS FOR
SUBSISTING ENLISTED MEMBERS IS AVAILABLE AND WHEN SUCH ENLISTED MEMBERS
ARE AUTHORIZED TO SUBSIST THEMSELVES INDEPENDENTLY. PARAGRAPH A-4404,
CHANGE NO. 4, BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT AT THE TIME OF
YOUR REQUEST FOR PAYMENT OF COMMUTED RATIONS, PROVIDED THAT THE
COMMANDING OFFICER'S APPROVAL OF REQUESTS FOR COMMUTATION OF RATIONS WAS
NOT TO BE MADE RETROACTIVELY, AND THAT PAYMENT OF COMMUTED RATIONS
SHOULD COMMENCE ON THE DATE FOLLOWING THE DATE OF THE COMMANDING
OFFICER'S APPROVAL. SINCE THERE IS NO SHOWING THAT YOU WERE GRANTED
AUTHORITY PRIOR TO ANY PORTION OF THE PERIOD OF YOUR CLAIM TO MESS
SEPARATELY, YOU HAVE NOT MET THE CONDITIONS OF THE REGULATIONS AND THERE
IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.
RESPECTING YOUR 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. 608; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V.
UNITED STATES, 148 U.S. 573; BART 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-127139, SEP. 20, 1956
TO NYLOS TRADING CO., INC. :
REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 31, 1956, WITH
ENCLOSURES, AND PREVIOUS CORRESPONDENCE, REFERRING TO OUR OFFICE LETTER
DATED JULY 10, 1956, REGARDING THE DISALLOWANCE OF YOUR CLAIM FOR
$5,017.67, AS ADDITIONAL COSTS ALLEGED TO BE DUE ON ACCOUNT OF THE
FAILURE OF THE GOVERNMENT TO GIVE TIMELY NOTICE TO THE SHIPMASTERS OF
THE S.S. FIRENZE AND THE S.S. NORLANDA WITH REGARD TO THE PORTS OF
DISCHARGE OF THE VESSELS' CARGOES.
YOU ALLEGE THAT YOU DID NOT RECEIVE THE TELEGRAM OF SEPTEMBER 9,
1953, FROM THE RECEIVING AGENCY, KOREA CIVIL ASSISTANCE COMMAND,
ADVISING YOU THAT INCHON WOULD BE THE PORT OF DISCHARGE FOR THE S.S.
FIRENZE AND REQUESTING THAT YOU NOTIFY THE SHIPMASTER TO THAT EFFECT. A
COPY OF THE TELEGRAM IS NOT OF RECORD HERE AND IT IS REPORTED THAT ALL
COPIES OF MESSAGES WERE DESTROYED AFTER A PERIOD OF 10 MONTHS. HOWEVER,
THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THE MESSAGE WAS SENT TO YOU.
OUR OFFICE, HAVING NO FIRSTHAND KNOWLEDGE OF THE FACTS, MUST
NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE IN THIS
RESPECT. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE
PRESUMPTION OF THE CORRECTNESS THEREOF, IT IS THE INVARIABLE RULE OF THE
ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS
AS REPORTED BY THE ADMINISTRATIVE OFFICERS. THERE IS NOTHING IN THE
PRESENT RECORD TO JUSTIFY THE APPLICATION OF A DIFFERENT RULE TO THIS
CASE.
YOU ACKNOWLEDGE THAT YOU RECEIVED THE TELEGRAM OF OCTOBER 10, 1953,
ADVISING YOU OF THE PORTS OF DISCHARGE FOR THE S.S. FIRENZE AND THE S.S.
NORLANDA AND REQUESTING THAT YOU ADVISE THE SHIPMASTERS ACCORDINGLY.
YOU CONTEND THAT YOU DID NOT NOTIFY THE SHIPMASTERS OF THE DISCHARGE
PORTS DUE TO THE FACT THAT A SHIPMASTER OF A THIRD VESSEL CARRYING CARGO
UNDER THE INSTANT CONTRACT, THE S.S. POLIFEMO, HAD PREVIOUSLY BEEN
NOTIFIED DIRECT AS TO THE PORT OF DISCHARGE. IT APPEARS TO BE YOUR
CONTENTION THAT SUCH PROCEDURE SET A PATTERN TO BE FOLLOWED ON ALL
SHIPMENTS UNDER THE CONTRACT. THE CONTRACT IS SILENT AS TO THE PARTY TO
BE ADVISED AS TO THE DISCHARGE PORT. HOWEVER, SINCE YOU WERE A PARTY TO
THE CONTRACT AND THE SHIPMASTERS WERE NOT, AND SINCE YOU WERE ADVISED AS
TO THE PORTS OF DISCHARGE AND WERE REQUESTED TO ADVISE THE SHIPMASTERS
ACCORDINGLY, IT WOULD APPEAR THAT PRUDENT BUSINESS ADMINISTRATION WOULD
REQUIRE SUCH A COURSE. AS YOU WERE ADVISED IN THE LETTER OF JULY 10,
1956, THE CLAIM IS OF SUCH DOUBTFUL VALIDITY IN FACT AND LAW AS TO
WARRANT OUR OFFICE TO DENY PAYMENT. IN INSTANCES WHERE THE FACTS
INVOLVED RAISE A QUESTION AS TO THE PROPRIETY OR VALIDITY OF A CLAIM "IT
IS THE UNDOUBTED RIGHT AND DUTY" OF THE ACCOUNTING OFFICERS OF THE
GOVERNMENT TO REJECT A CLAIM IN WHOLE OR IN PART "AS THEIR JUDGMENT
DICTATES"--- LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291--- LEAVING
THE CLAIMANTS TO PROSECUTE THEIR CASES IN A COURT OF LAW.
ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN BY OUR OFFICE IN THE MATTER
IS AFFIRMED.
B-128816, SEP. 20, 1956
TO CAPTAIN FRANK BERRISH, FG, FINANCE AND ACCOUNTING OFFICER,
DEPARTMENT OF THE ARMY:
YOUR LETTER OF JUNE 27, 1956, REQUESTS OUR DECISION AS TO WHETHER YOU
MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER IN FAVOR OF WILLIAM J.
JOHNS FOR QUARTERS ALLOWANCE DURING THE PERIOD FROM JULY 21, 1954,
THROUGH DECEMBER 31, 1954, AND FEBRUARY 3, 1955, THROUGH MAY 26, 1955,
WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY ASSIGNED TO
OVERSEAS DUTY IN LEGHORN, ITALY WITH 7617 USFA SUPPORT COMMAND, APO 19,
U.S. ARMY.
THE ATTACHMENTS TO YOUR LETTER INDICATE THAT THIS EMPLOYEE WAS
RECRUITED IN THE UNITED STATES TO THE POSITION OF CHIEF, MACHINE RECORDS
BRANCH. IT IS ALLEGED BY THE EMPLOYEE THAT HE RECEIVED
COMMITMENT FROM THE OVERSEAS PERSONNEL BRANCH OF THE ARMY IN
WASHINGTON, D.C., THAT HE WOULD BE AUTHORIZED TO LIVE IN PRIVATE
QUARTERS AND THAT HE WOULD RECEIVE FOR THAT PURPOSE A MONETARY QUARTERS
ALLOWANCE OF $100 PER MONTH DURING THE ENTIRE PERIOD OF EMPLOYMENT
OVERSEAS. THIS EMPLOYEE OCCUPIED PRIVATE QUARTERS IN LEGHORN, ITALY,
AND RECEIVED QUARTERS ALLOWANCE UNTIL HE WAS
ADVISED THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR HIS USE, AT WHICH
TIME PAYMENT OF THE QUARTERS ALLOWANCE CEASED. THE EMPLOYEE CONTINUED
TO OCCUPY PRIVATE QUARTERS AND ASSERTS HIS ENTITLEMENT TO QUARTERS
ALLOWANCE IS BASED UPON THE ASSURANCES MADE TO HIM AT THE TIME OF
EMPLOYMENT.
AUTHORITY FOR THE PAYMENT OF ALLOWANCES FOR LIVING QUARTERS IS
GOVERNED BY THE ACT OF JUNE 26, 1930, 46 STAT. 818, 5 U.S.C. 118A, WHICH
READS, IN PART, AS FOLLOWS:
"THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE
DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN
OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A
FOREIGN COUNTY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS,
INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS
AND WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE
FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT * * "
BY EXECUTIVE ORDER NO. 10011 DATED OCTOBER 22, 1948, THE SECRETARY OF
STATE WAS AUTHORIZED AND DIRECTED TO EXERCISE THE STATUTORY AUTHORITY
VESTED IN THE PRESIDENT TO APPROVE REGULATIONS PRESCRIBED BY HEADS OF
DEPARTMENTS GOVERNING THE GRANTING OF QUARTERS ALLOWANCES TO ALL
CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT ON FOREIGN DUTY.
PARAGRAPH 233.4 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS,
FOREIGN AREAS), AS APPROVED BY THE SECRETARY OF STATE AND IN EFFECT
DURING THE PERIOD HERE INVOLVED, READS:
"WHEN AN EMPLOYEE TO WHOM A QUARTERS ALLOWANCE HAS BEEN GRANTED IS
FURNISHED GOVERNMENT-OWNED OR LEASED QUARTERS AT NO PERSONAL COST, SUCH
GRANT SHALL TERMINATE ON THE DATE PRIOR TO THAT ON WHICH THE GOVERNMENT
QUARTERS ARE MADE AVAILABLE TO HIM, UNLESS HE OCCUPIES GOVERNMENT-OWNED
OR LEASED QUARTERS ONLY DURING THE TEMPORARY ABSENCE OF THE REGULAR
OCCUPANT AND AT THE SAME TIME IS OBLIGATED TO MAINTAIN HIS OWN
QUARTERS.'
THE PAYMENT OF ALLOWANCES FOR QUARTERS IS SPECIFICALLY PRECLUDED
DURING ANY PERIOD FOR WHICH GOVERNMENT QUARTERS ARE DETERMINED TO BE
AVAILABLE. THE RECORD INDICATES IN THIS CASE THAT, DURING THE PERIOD
FOR WHICH CLAIM IS MADE FOR QUARTERS ALLOWANCE, ADEQUATE GOVERNMENT
QUARTERS WERE AVAILABLE FOR OCCUPANCY BY THE EMPLOYEE. WHILE IT MAY BE
THAT THE PARTICULAR SUITE IN THE BOQ ASSIGNED TO MR. JOHNS WAS OCCUPIED
BY ANOTHER PERSON DURING PART OF THE PERIOD IN QUESTION, NEVERTHELESS,
THERE IS NO SHOWING THAT OTHER QUARTERS COULD NOT HAVE BEEN MADE
AVAILABLE TO MR. JOHNS HAD HE BEEN WILLING TO ACCEPT THEM.
IT IS REGRETTABLE THAT THIS EMPLOYEE MAY HAVE BEEN LED TO BELIEVE
THAT HE WOULD RECEIVE THE QUARTERS ALLOWANCE DURING HIS ENTIRE TOUR OF
DUTY OVERSEAS, HOWEVER, IT IS A WELL ESTABLISHED PRINCIPAL OF LAW THAT
WHEN AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED
IN HIM HIS ACT FROM A LEGAL STANDPOINT IS NO LONGER AN ACT OF THE
GOVERNMENT. LIKEWISE, ANYONE ENTERING INTO A CONTRACT WITH AN OFFICER
OR EMPLOYEE OF THE GOVERNMENT IS CHARGED WITH NOTICE OF THE LIMITATIONS
PLACED UPON THE AUTHORITY OF THE OFFICER OR EMPLOYEE TO OBLIGATE THE
UNITED STATES. THEREFORE, ANY ASSURANCES GIVEN TO THIS EMPLOYEE WERE
SUBJECT TO MODIFICATION BECAUSE OF THE FACTUAL CHANGE IN CIRCUMSTANCES
AT LEGHORN, ITALY, ON ACCOUNT OF SUBSEQUENT AVAILABILITY OF GOVERNMENT
QUARTERS.
IN VIEW OF THE LAW AND REGULATIONS AND THE FACTS AS REPORTED, NO
BASIS EXISTS FOR THE PAYMENT OF THE ALLOWANCES CLAIMED. ACCORDINGLY,
THE VOUCHER RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.
B-128981, SEP. 20, 1956
TO CAPTAIN P. E. WAMPLER, FINANCE AND ACCOUNTING DEPARTMENT OF THE
ARMY:
YOUR LETTER OF JULY 20, 1956, FILE NO. ORDTL 02.23, FORWARDED HERE BY
2D IND., OFFICE, CHIEF OF FINANCE, FINEK 248.7, REQUESTS OUR DECISION
WHETHER YOU MAY PAY THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR.
JOHN W. UTECHT, A CIVILIAN EMPLOYEE OF THE ARMY, FOR $2 AS REIMBURSEMENT
FOR AN INSURANCE PREMIUM PAID BY MR. UTECHT AND ADMINISTRATIVELY
SUSPENDED FROM A PRIOR VOUCHER.
TRAVEL ORDER DATED MAY 29, 1956, AUTHORIZED THE EMPLOYEE TO PERFORM
TRAVEL FOR TEMPORARY DUTY AT PLACES WITHIN THE UNITED STATES. PURSUANT
TO THIS ORDER, TRAVEL WAS PERFORMED BY THE EMPLOYEE FROM WASHINGTON,
D.C. TO EGLIN AIR FORCE BASE, FLORIDA, AND RETURN ON A NONSCHEDULED
MILITARY AIRCRAFT. YOU SAY THAT THE INSURANCE CARRIED BY THE EMPLOYEE
IS INOPERATIVE DURING PERIODS OF FLIGHT ON NONSCHEDULED MILITARY FLIGHTS
AND, THEREFORE, THE EMPLOYEE PURCHASED ADDITIONAL INSURANCE FOR WHICH
REIMBURSEMENT IS NOW CLAIMED. THE COMMERCIAL RATE FOR FIRST-CLASS ROUND
TRIP AIR FARE WOULD HAVE BEEN $95.76 FOR THE IDENTICAL TRAVEL.
REIMBURSEMENT OF EXPENSES IN CONNECTION WITH AUTHORIZED TRAVEL IS
LIMITED TO THOSE SPECIFIED IN THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS OR IF NOT ENUMERATED THEREIN TO "MISCELLANEOUS EXPENDITURES
* * * WHEN NECESSARILY INCURRED BY THE TRAVELER IN CONNECTION WITH THE
TRANSACTION OF OFFICIAL BUSINESS.' SEE PARAGRAPH 79, SCTR. THERE IS NO
SPECIFIC PROVISION IN THE REGULATIONS COVERING INSURANCE PREMIUMS.
MOREOVER, THE PURCHASE OF INSURANCE ON THE PERSON OF AN EMPLOYEE IS FOR
HIS OWN PROTECTION AND ORDINARILY MAY NOT BE CONSIDERED A NECESSARY
INCIDENTAL EXPENSE TO HIS OFFICIAL BUSINESS. CF. 28 COMP. GEN. 679.
ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS RETAINED HERE, IS NOT
AUTHORIZED.
B-129013, SEP. 20, 1956
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO LETTER DATED AUGUST 16, 1956, FROM THE DEPUTY
ADMINISTRATOR OF YOUR ADMINISTRATION PRESENTING FOR DECISION THE
QUESTION AS TO WHETHER THE VETERANS ADMINISTRATION HOSPITAL AT FORT
THOMAS, KENTUCKY, MAY LEGALLY ENTER INTO A CONTRACT WITH THE CITY OF
FORT THOMAS FOR THE FURNISHING OF FIRE PROTECTION SERVICES TO THE
HOSPITAL AT A COST OF $4,800 PER ANNUM, IN VIEW OF OUR DECISIONS 25
COMP. GEN. 599 AND 35 ID. 311 HOLDING THAT SUCH SERVICES ARE REQUIRED TO
BE FURNISHED WITHOUT CHARGE.
IT APPEARS FROM THE DEPUTY ADMINISTRATOR'S LETTER, AS SUPPLEMENTED BY
LETTER DATED SEPTEMBER 5, 1956, FROM YOUR DEPUTY GENERAL COUNSEL, THAT
THE VETERANS ADMINISTRATION HOSPITAL OCCUPIES AN AREA OF APPROXIMATELY
116 ACRES LOCATED WHOLLY WITHIN THE LIMITS OF THE CITY OF FORT THOMAS.
IT ALSO APPEARS THAT EXCLUSIVE JURISDICTION OVER THIS AREA WAS CEDED TO
THE UNITED STATES, WITH CERTAIN RESERVATIONS NOT MATERIAL HERE, BY A
SPECIAL ACT OF CESSION APPROVED FEBRUARY 29, 1888 (KENTUCKY ACTS, 1887,
CHAPTER 325, P. 26), WHICH PROVIDES, IN PERTINENT PART, THAT THE "SAID
TRACT OF LAND, AND THE IMPROVEMENTS WHICH MAY BE ERECTED THEREON, SHALL
BE EXEMPT FROM STATE, COUNTY, AND MUNICIPAL TAXES SO LONG AS IT SHALL
REMAIN THE PROPERTY OF THE UNITED STATES.' IT FURTHER APPEARS THAT THE
HOSPITAL HAS REQUESTED THE CITY OF FORT THOMAS TO PROVIDE FIRE
PROTECTION SERVICES IN ORDER THAT THE FIRE DEPARTMENT NOW OPERATED BY
THE HOSPITAL CAN BE ELIMINATED. THE CITY CONTENDS, HOWEVER, THAT SINCE
IT IS CLASSIFIED AS A FOURTH CLASS CITY UNDER SECTION 86.160, KENTUCKY
REVISED STATUTES, IT IS NOT REQUIRED TO FURNISH SUCH FIRE PROTECTION
SERVICES WITHOUT REIMBURSEMENT, AND THE CITY HAS SUBMITTED A PROPOSAL TO
PROVIDE THE NECESSARY SERVICES AT AN ANNUAL RATE OF $4,800, PAYABLE
MONTHLY.
AS INDICATED IN THE DECISIONS CITED BY THE DEPUTY ADMINISTRATOR,
CONTRACTS ENTERED INTO WITH MUNICIPALITIES FOR FURNISHING FIRE
PROTECTION TO FACILITIES OF THE FEDERAL GOVERNMENT LOCATED WITHIN THEIR
BOUNDARIES DO NOT GIVE RISE TO VALID ENFORCEABLE OBLIGATIONS. THIS IS
IN ACCORDANCE WITH THE PRINCIPLE, RECOGNIZED BY THE OVERWHELMING WEIGHT
OF AUTHORITY, THAT THE FURNISHING OF FIRE PROTECTION IS A GOVERNMENTAL
FUNCTION. IT IS ALSO WELL ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE
PROVIDING THEREFOR, NEITHER THE GOVERNMENTAL BODY NOR ITS OFFICERS ARE
LIABLE IN DAMAGES FOR ACTS OF OMISSION OR COMMISSION, MISFEASANCE OR
NONFEASANCE, WITH REFERENCE TO THE PERFORMANCE OF THIS GOVERNMENTAL
FUNCTION, AND THAT SUCH LIABILITY MAY NOT BE CREATED BY CONTRACT. SEE
UNITED STATES V. CITY OF SAULTE STE. MARIE, DECIDED MARCH 23, 1905, BY
THE UNITED STATES DISTRICT COURT FOR THE W. D. OF MICHIGAN, 137 F. 258.
SEE, ALSO, DAVIS V. CITY OF LEBANON, DECIDED BY THE COURT OF APPEALS OF
KENTUCKY JUNE 12, 1900, 57 S.W. 471; PERKINS V. CITY OF LAWRENCE (KAN.
1955), 281 P.2D 1077; SHEA V. CITY OF PORTSMOUTH (N.H. 1953), 94 A.2D
902; COLUMBUS V. MCILWAIN (MISS. 1949), 28 S.2D 921; HUGHES V. STATE
(N.Y. 1937), 299 N.Y.S. 387; RICHARDSON V. HANNIBAL (MC. 1932), 50 S.W.
2D 648, 84 A.L.R. 508, AND ANNOTATION AT 514.
IT DOES NOT APPEAR THAT ANY PROVISION HAS BEEN MADE UNDER THE
KENTUCKY REVISED STATUTES AUTHORIZING CITIES TO FURNISH FIRE PROTECTION
BY CONTRACT. SECTION 86.160, CHAPTER 86 KRS, RELATING TO THE
ORGANIZATION AND GOVERNMENT OF CITIES OF THE FOURTH CLASS, REFERRED TO
BY THE CITY OF FORT THOMAS, PROVIDES THAT THE CITY COUNCIL MAY, WITHIN
THE CITY, PROVIDE FOR THE PREVENTION AND EXTINGUISHMENT OF FIRES, AND
ESTABLISH AND REGULATE FIRE COMPANIES.
UNDER CHAPTER 92, KRS, FINANCE AND REVENUE OF CITIES OTHER THAN THE
FIRST CLASS, SECTION 92.280 PROVIDES THAT THE "LEGISLATIVE BODY OF EACH
CITY OF THE SECOND TO THE SIXTH CLASS SHALL PROVIDE EACH YEAR, BY
ORDINANCE, FOR THE ASSESSMENT OF ALL REAL AND PERSONAL PROPERTY WITHIN
THE CORPORATE LIMITS THAT IS SUBJECT TO TAXATION FOR CITY PURPOSES" AND
CITIES OF ALL CLASSES ARE AUTHORIZED UNDER SECTION 92.281 "TO USE THE
REVENUES THEREFROM FOR SUCH PURPOSES AS MAY BE PROVIDED BY THE
LEGISLATIVE BODY OF THE CITY.' IN THIS CONNECTION, THE CONSTITUTION OF
THE COMMONWEALTH OF KENTUCKY EXPRESSLY PROVIDES UNDER SECTIONS 3 AND 170
THAT "PUBLIC PROPERTY USED FOR PUBLIC PURPOSES" IS EXEMPT FROM ALL
TAXATION INCLUDING INSTITUTIONS NOT OPERATED FOR PROFIT, SUCH AS
INFIRMARIES AND HOSPITALS. SEE MASON COUNTY V. HAYSWOOD HOSPITAL OF
MAYSVILLE (CT. OF APPEALS OF KENTUCKY NOV. 23, 1915), 179 S.W. 1050.
AND, CHAPTER 95, KRS, RELATIVE TO CITY POLICE AND FIRE DEPARTMENTS,
EXPRESSLY PROVIDES UNDER SECTION 95.380 FOR THE USE OF FIRE APPARATUS
OUTSIDE CITY LIMITS "IN THE EXERCISE OF A GOVERNMENTAL FUNCTION" IN
PERTINENT PART, AS FOLLOWS:
"95.380 (2741U-3) USE OF FIRE APPARATUS OUTSIDE CITY LIMITS, CITIES
OF ALL CLASSES.
"/1) ANY CITY IN THE STATE OWNING OR CONTROLLING FIRE APPARATUS MAY
TAKE IT TO EXTINGUISH FIRES TO ANY POINT IN THE COUNTY IN WHICH THAT
CITY IS LOCATED, INTO A SMALLER TERRITORY IN THAT COUNTY, OR INTO AREAS
OF ANOTHER COUNTY OR STATE, AS DETERMINED BY THE CITY LEGISLATIVE BODY.
THE APPARATUS SHALL BE SO USED ONLY IN CONFORMITY WITH REASONABLE TERMS
AND REGULATIONS WHICH THE CITY LEGISLATIVE BODY MAY PRESCRIBE.
"/2) NEITHER THE CITY NOR ITS OFFICERS OR EMPLOYEES SHALL BE LIABLE
IN ANY MANNER ON ACCOUNT OF THE USE OF THE APPARATUS AT ANY POINT
OUTSIDE OF THE CORPORATE LIMITS OF THE CITY. THE APPARATUS SHALL BE
DEEMED TO BE EMPLOYED IN THE EXERCISE OF A GOVERNMENTAL FUNCTION OF
CITY.
"/3) ALL CITY OR FIRE PROTECTION DISTRICT FIREMEN, FULL PAID OR
VOLUNTEER, SERVING AT A FIRE OR DOING FIRE PREVENTION WORK OUTSIDE THE
CORPORATE LIMITS OF A CITY OR A FIRE PROTECTION DISTRICT SHALL BE
CONSIDERED AS SERVING IN THEIR REGULAR LINE OF DUTY, AS THOUGH THEY WERE
SERVING WITHIN THE CORPORATE LIMITS. * * *"
THUS, IT IS SEEN THAT UNDER THE LAW OF KENTUCKY FOURTH CLASS CITIES,
SUCH AS THE CITY OF FORT THOMAS, ARE AUTHORIZED TO OBTAIN REVENUES FOR
DEFRAYING THE COST OF FURNISHING FIRE PROTECTION BY LEVYING TAXES ON
PROPERTY LOCATED WITHIN THEIR CORPORATE LIMITS. IT IS SEEN, ALSO, THAT
THE PROPERTY OF THE UNITED STATES, HERE IN QUESTION, IS EXEMPT FROM ALL
STATE AND LOCAL TAXES NOT ONLY BY VIRTUE OF THE FACT THAT THE FACILITY
IS OWNED BY THE UNITED STATES, BUT BECAUSE IT IS A HOSPITAL OWNED AND
OPERATED FOR PUBLIC PURPOSES. CONSEQUENTLY, IT APPEARS THAT THE
PROPOSAL OF THE CITY OF FORT THOMAS TO CHARGE THE FEDERAL GOVERNMENT FOR
SUCH FIRE PROTECTION AS IS AVAILABLE UNDER THE STATE LAW IS AN
UNJUSTIFIABLE ATTEMPT TO DISCRIMINATE AGAINST THE HOSPITAL PROPERTY
WHICH WOULD, IF ACCEPTED, HAVE THE EFFECT OF NULLIFYING THE TAX EXEMPT
STATUS OF THAT PROPERTY.
MOREOVER, UNDER THE LAW OF THE COMMONWEALTH OF KENTUCKY ALL CITIES
FROM THE FIRST TO THE SIXTH CLASS AND, THEREFORE, INCLUDING THE FOURTH
CLASS CITY OF FORT THOMAS, ARE ACTING IN A GOVERNMENTAL CAPACITY WHEN
FURNISHING FIRE PROTECTION SERVICE, AND THIS IS SO WHETHER SUCH SERVICES
ARE PERFORMED WITHIN OR WITHOUT THE CITY CORPORATE LIMITS. CF. 34 COMP.
GEN. 195, AND B-123294, MAY 2, 1955. THUS, ALTHOUGH THE HOSPITAL IS
LOCATED IN A FEDERAL ENCLAVE AND THEREFORE IS OUTSIDE THE JURISDICTIONAL
LIMITS OF THE CITY, WITH THE EXCEPTION OF THE RESERVATIONS CONTAINED IN
THE SPECIAL ACT OF CESSION, NEVERTHELESS, THE STATE LAW EXPRESSLY
PROVIDES THAT ALL FIRE PROTECTION SHALL BE DEEMED TO BE "IN THE EXERCISE
OF A GOVERNMENTAL FUNCTION" OF THE CITY. THE EXERCISE OF THIS
AUTHORIZED GOVERNMENTAL FUNCTION MANIFESTLY CARRIES WITH IT NO POWER TO
INTERPOSE CONDITIONS NOT PROVIDED BY LAW. HENCE, THE PROPOSED CONTRACT
"TO FURNISH TO THE GOVERNMENT FIRE PROTECTION SERVICE FOR THE VETERANS
ADMINISTRATION HOSPITAL AT FORT THOMAS, KENTUCKY, AS MAY BE REQUIRED" IN
CONSIDERATION OF MONTHLY PAYMENTS TO THE CITY "AT THE RATE OF $4,800 PER
YEAR" IS ULTRA VIRES AND COULD, THEREFORE, HAVE NO BINDING FORCE ON THE
CITY. FURTHERMORE, THE GOVERNMENT WOULD BE ENTITLED TO NO GREATER FIRE
PROTECTION SERVICES UNDER SUCH AN ARRANGEMENT THAN IF THE CONTRACT HAD
NOT BEEN WRITTEN. CF. UNITED STATES V. CITY OF SAULTE STE. MARIE,
SUPRA; ALSO, B-126228, JANUARY 6, 1956, AND B-125617, APRIL 11, 1956.
ACCORDINGLY, IN ANSWER TO THE QUESTION PRESENTED, IT REASONABLY
FOLLOWS THAT THE VETERANS ADMINISTRATION MAY NOT LEGALLY ENTER INTO THE
PROPOSED CONTRACT.
B-129247, SEP. 20, 1956
TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1956, WITH
ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN
CONCERNING AN ERROR THE DENNEY TAG COMPANY ALLEGES IT MADE IN ITS BID
OPENED ON SEPTEMBER 5, 1956.
THE GOVERNMENT PRINTING OFFICE REQUESTED BIDS UNDER JACKET NO.
396000, FOR FURNISHING 510,000 TAGS, SIZE 2 3/8 BY 4 3/4 INCHES, PRINTED
FACE AND BACK ON 13 S.U. MANILA TAG NO. 5 TO BE FURNISHED BY THE
CONTRACTOR AND SHIPMENT TO BE MADE ON OR BEFORE OCTOBER 26, 1956. THE
SPECIFICATIONS ALSO REQUIRED THAT THE TAGS BE STRINGED WITH A PLAIN
DOUBLE LOOP WITH NO. 9 6-PLY TWINE 12 INCHES LONG. IN RESPONSE THE
DENNEY TAG COMPANY SUBMITTED A BID DATED AUGUST 31, 1956, OFFERING TO
FURNISH THE TAGS AT A PRICE OF $1.40 PER THOUSAND OR FOR A TOTAL PRICE
OF $714. THE NINE OTHER BIDS ON THE TAGS RANGED FROM $1,361.70 TO
$1,759.50.
YOU STATE THAT, SINCE THE BID OF THE DENNEY TAG COMPANY WAS OUT OF
LINE WITH THE OTHER BIDS, THE COMPANY WAS REQUESTED BY TELEGRAM DATED
SEPTEMBER 7, 1956, TO REVIEW THE SPECIFICATIONS AND CONFIRM ITS BID
PRICE.
BY LETTER DATED SEPTEMBER 7, 1956, THE DENNEY TAG COMPANY ADVISED
THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT IT HAD FAILED TO INCLUDE
THE COST OF THE STRINGS IN ITS BID PRICE AND THAT THE CORRECT PRICE FOR
THE TAGS WITH THE STRINGS IS $2.85 PER THOUSAND OR $1,453.50 FOR THE
REQUIRED QUANTITY. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY
SUBMITTED ITS ORIGINAL ESTIMATE SHEET.
ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE IS NO DOUBT
THAT THE COMPANY MADE AN ERROR IN ITS BID IN THAT IT FAILED TO INCLUDE
THE COST OF THE STRINGS. ACCORDINGLY, SINCE IT WAS BELIEVED THAT THE
BID OF THE DENNEY TAG COMPANY WAS ERRONEOUS, AND SINCE SUCH BID WAS
CONFIRMED AND THE ERROR WAS EXPLAINED BY THE BIDDER PRIOR TO AWARD, THE
BID OF THE DENNEY TAG COMPANY MAY BE DISREGARDED.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTOR'S LETTER OF
SEPTEMBER 7, 1956, AND ITS ESTIMATE SHEET, ARE RETURNED.
B-119798, SEP. 19, 1956
TO MR. GUILFORD MOE:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1956, FORWARDED
HERE BY THE NATIONAL SERVICE OFFICER OF AMVETS, WASHINGTON, D. C.,
REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 26, 1955, WHICH DISALLOWED
YOUR CLAIM FOR PER DIEM INCIDENT TO TEMPORARY DUTY PERFORMED BY YOU AS
AN ENLISTED MEMBER OF THE UNITED STATES ARMY AT HIROSHIMA, JAPAN, DURING
THE PERIOD JULY 8 TO 29, 1952.
UNDER ORDERS OF HEADQUARTERS, CAMP KOBE, APO 317, DATED JULY 7, 1952,
YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 7 TO SAKA, HIROSHIMA,
JAPAN, FOR TEMPORARY DUTY OF APPROXIMATELY 20 DAYS'
DURATION IN CONNECTION WITH REPAIRS TO UNITED STATES ARMY VESSELS.
THE ORDERS CONTAINED THE PROVISION "NO PER DIEM AUTHORIZED.' YOU STATED
IN YOUR CLAIM THAT YOU PROCEEDED FROM CAMP KOBE TO
HIROSHIMA ON JULY 8 AND RETURNED TO CAMP KOBE ON JULY 29, AND THAT NO
GOVERNMENT QUARTERS OR MEALS WERE FURNISHED TO YOU DURING THE PERIOD.
ALSO YOU STATED THAT YOU HAD PERFORMED TEMPORARY DUTY AT HIROSHIMA AND
RECEIVED PER DIEM FOR A PERIOD OF MORE THAN FOUR MONTHS PRIOR TO JULY 1,
1952, AND THAT WHEN YOU WERE ASKED TO CARRY OUT THE DUTY DIRECTED BY THE
ORDERS OF JULY 7 WITHOUT PER DIEM IT WAS PROMISED THAT PROPER ORDERS
WOULD BE WRITTEN AS SOON AS FUNDS WERE AVAILABLE. EVIDENCE WAS
SUBMITTED WITH YOUR CLAIM INDICATING THAT THE RESTRICTING PROVISION WAS
PLACED IN YOUR ORDERS DUE TO A LACK OF FUNDS FOR PER DIEM PAYMENTS, AND
THAT WHEN FUNDS WERE MADE AVAILABLE ON OR ABOUT JULY 20, 1952, IT THEN
WAS CONSIDERED THAT REGULATIONS PREVENTED AN AMENDMENT TO YOUR ORDERS TO
AUTHORIZE THAT ALLOWANCE.
PARAGRAPH 4256-2, CHANGE 1, JOINT TRAVEL REGULATIONS, IN EFFECT FROM
APRIL 1, 1951, TO SEPTEMBER 30, 1952, AUTHORIZED THEATER COMMANDERS TO
PRESCRIBE LESSER RATES OF TRAVEL PER DIEM THAN THOSE ESTABLISHED
GENERALLY FOR THE ARMED FORCES IN APPENDIX B OF THOSE REGULATIONS, OR NO
TRAVEL PER DIEM, FOR MEMBERS OF THEIR COMMANDS WHEN THE TRAVEL DIRECTED
WAS FOR PERFORMANCE WHOLLY WITHIN THE THEATER AND A SPECIFIC TRAVEL RATE
HAD NOT BEEN ESTABLISHED FOR THE COUNTRY OR PLACE INVOLVED BY NAME.
PARAGRAPH 2B, CIRCULAR NO. 25, GENERAL HEADQUARTERS, FAR EAST COMMAND,
DATED MAY 30, 1951, AS AMENDED BY CIRCULAR NO. 33 OF THE SAME COMMAND
DATED AUGUST 3, 1951, ISSUED UNDER THAT AUTHORITY, PROVIDED "PER DIEM
ALLOWANCES WILL BE PRESCRIBED ONLY WHEN THERE IS AN EXPENSE OVER AND
ABOVE THE NORMAL EVERY DAY LIVING EXPENSE. AUTHORIZATION OR
NONAUTHORIZATION OF PER DIEM IN ORDERS WILL BE FINAL AND CONCLUSIVE.' IT
WAS CONTEMPLATED BY SUCH PROVISIONS THAT THE AUTHORITY ISSUING TRAVEL
ORDERS COULD DETERMINE CIRCUMSTANCES UNDER WHICH NO PER DIEM WOULD BE
PAYABLE ON THE BASIS OF HIS PERSONAL JUDGMENT AS TO THE NEED FOR FOR THE
ALLOWANCE. THE AUTHORIZATIONS EFFECTED UNDER THOSE PROVISIONS WERE MADE
FINAL AND CONCLUSIVE, AND CONSEQUENTLY ARE NOT OPEN TO QUESTION BY US
WHEN INVOLVED IN CASES FALLING WITHIN THE AUTHORITY VESTED IN THE
COMMANDER OF THE FAR EAST COMMAND BY PARAGRAPH 4256-2 OF THE JOINT
TRAVEL REGULATIONS, REGARDLESS OF THE REASONS FOR THEIR INCLUSION IN
TRAVEL ORDERS.
SINCE THE TRAVEL AND TEMPORARY DUTY INVOLVED WERE PERFORMED WHOLLY
WITHIN THE FAR EAST THEATER OF OPERATIONS, AND INASMUCH AS A SPECIFIC
PER DIEM TRAVEL RATE HAD NOT THEN BEEN ESTABLISHED FOR JAPAN, IT MUST BE
CONCLUDED THAT THE "NO PER DIEM AUTHORIZED" PROVISION OF YOUR ORDERS WAS
AN EFFECTIVE BAR TO YOUR RIGHT TO PER DIEM DURING THEIR PERIOD IN
QUESTION. CONSEQUENTLY, NO AUTHORITY EXISTS FOR THE PAYMENT OF YOUR
CLAIM AND THE SETTLEMENT OF JULY 26, 1955, IS SUSTAINED.
B-122844, SEPT. 19, 1956
TO ILLINOIS CENTRAL RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF THE SETTLEMENT OF
AUGUST 31, 1954 (CLAIM NO. TK-297507), WHICH DISALLOWED YOUR CLAIM, PER
BILL N-2712-A, FOR $174.82 AS A PART OF THE CHARGES ALLEGED TO BE DUE
FOR TRANSPORTING THREE SHIPMENTS OF RUBBER TIRES AND TUBES FROM THE
RESIDENT OFFICER IN CHARGE, U.S. NAVY CONTRACT NOY-3680, AKRON, OHIO, TO
THE RESIDENT OFFICER IN CHARGE, CONTRACT NOY-3680, NEW ORLEANS,
LOUISIANA, FOR EXPORT, ON BILLS OF LADING NOS. N-877674, N-877675, AND
N-877676, DATED JANUARY 19, 1943. THE AMOUNT DISALLOWED REPRESENTS THE
LAND GRANT DEDUCTED FROM THE COMMERCIAL CHARGES ON THESE SHIPMENTS.
YOU NOW REQUEST REVIEW OF THIS DISALLOWANCE AND FURNISH A COPY OF A
LETTER DATED MAY 3, 1943, FROM LIEUTENANT M. L. JOHNSTON, U.S.N.R., IN
WHICH HE REQUESTED THE RETURN OF THESE BILLS OF LADING AND STATED THAT
IT HAD BEEN FOUND THAT THESE SHIPMENTS SHOULD HAVE MOVED ON PREPAID
COMMERCIAL BILLS OF LADING. YOU TAKE THE POSITION THAT THIS LETTER
CONCLUSIVELY SHOWS THAT "TITLE TO THE PROPERTY DID NOT PASS TO THE
GOVERNMENT UNTIL ACCEPTED AT NEW ORLEANS, LOUISIANA.' CONSEQUENTLY, THAT
LAND GRANT WAS NOT PROPERLY DEDUCTIBLE FROM THE COMMERCIAL CHARGES.
A COPY OF THE LETTER OF MAY 3, 1943, RELIED UPON BY YOU, WAS
FORWARDED TO THE BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE
NAVY, FOR A REPORT ON THIS MATTER. IN RESPONSE, THAT BUREAU TRANSMITTED
HERE A REPORT FROM THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE
NAVY, DATED MAY 10, 1956, TOGETHER WITH COPIES OF THE PURCHASE ORDERS
(NOS. B-9273 AND EH-4652) FOR THESE TIRES AND CHANGE ORDERS THERETO;
ALSO, THE ACKNOWLEDGMENT COPY OF THE B. F. GOODRICH COMPANY,
INTERNATIONAL DIVISION, ORDER NO. 12-7376-A, EXPORT. CHANGE ORDER NO. 3
TO ORDER NO. B-9273, AND CHANGE ORDER NO. 1 TO ORDER NO. EH-4652, BOTH
DATED JANUARY 15, 1943, PROVIDE THAT THE
TIRES AND TUBES ON THESE ORDERS WILL BE SHIPPED ON GOVERNMENT BILLS
OF LADING, AND THAT THE SUPPLIER WILL ALLOW THE GOVERNMENT "FULL CREDIT
FOR COMMERCIAL FREIGHT FROM POINT OF SHIPMENT TO NEW ORLEANS, LA.' THE
SUPPLIER'S ORDER NO. 12-7376-A, EXPORT, CLEARLY SHOWS THE TERMS OF THE
ORDER AS "FOB AKRON," AND THE EXPECTED DATE OF SHIPMENT AS JANUARY 19,
1943. THE SHIPMENTS WERE MADE ON THAT DATE. THE REPORT ALSO SHOWS THAT
"TITLE TO THE SHIPPED MATERIAL WAS ACCEPTED FOR THE GOVERNMENT BY THE
RESIDENT OFFICER IN CHARGE AND SHIPPED BY HIM TO NEW ORLEANS FOR
EXPORT.' THIS STATEMENT IS SUPPORTED BY THE GOVERNMENT BILLS OF LADING
WHICH SHOW THE "F.O.B. POINT NAMED IN CONTRACT" TO BE AKRON, OHIO.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF
YOUR CLAIM IS SUSTAINED.
B-125544, SEP. 19, 1956
TO MRS. PEARL JONES SUMNER:
WE REFER TO YOUR LETTERS OF AUGUST 11 AND 31, 1956, RELATIVE TO YOUR
CLAIM FOR UNPAID COMPENSATION DUE THE ESTATE OF BEN J. SUMNER, A FORMER
EMPLOYEE OF THE DEPARTMENT OF THE ARMY, OFFICE OF VICKSBURG,
MISSISSIPPI.
THE SETTLEMENT OF THE CLAIM FOR THE UNPAID COMPENSATION DUE THE
DECEDENT, BEN J. SUMNER, IS CONTINGENT UPON OUR OFFICE BEING FURNISHED A
CERTIFIED COPY OF A DECREE OF A COURT OF COMPETENT JURISDICTION SHOWING
A FINAL DETERMINATION BY SUCH COURT THAT YOU ARE ACTUALLY THE LEGAL
WIDOW OF THE DECEDENT. SUCH EVIDENCE WAS REQUESTED FROM YOU BY OUR
LETTER OF APRIL 25, 1956, B-125544, ADDRESSED TO YOU IN CARE OF MR.
LAITY. UNTIL SUCH EVIDENCE IS FURNISHED ACTION ON YOUR CLAIM MUST
BE HELD IN ABEYANCE.
IF YOU CARE TO REVOKE THE POWER OF ATTORNEY GRANTED MR. HARRY A.
LAITY, AUTHORIZING HIM TO RECEIVE ANY AMOUNT THAT MAY BE FOUND DUE YOU
BY THE COURT IN AN ACTION SUGGESTED IN THE PRECEDING PARAGRAPH, PLEASE
SO ADVISE US WHEN THE COURT ACTION IS COMPLETED.
THE ENCLOSURES FORWARDED WITH YOUR LETTER OF AUGUST 31, 1956, ARE
RETURNED HEREWITH.
B-126558, SEPT. 19, 1956
TO HIGHWAY TRANSPORTATION COMPANY:
REFERENCE IS MADE TO YOUR REQUEST FOR A REVIEW OF THE AUDIT AND
DEDUCTION ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON YOUR BILLS FOR
TRANSPORTATION SERVICES COVERING SHIPMENTS OF INCOMPLETE BOMB BODIES
FILLED WITH INFLAMMABLE MATERIALS, DESCRIBED ON THE BILLS OF LADING AS
INCENDIARY BOMBS, M69.
THE QUESTION AS TO THE ALLOWABLE CHARGES FOR THESE M69 BOMBS WAS
CONSIDERED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
JERSEY IN THE CASE OF UNITED STATES V. THOMAS APICELLA CIVIL NO.
C-650-53, AND IT WAS DECIDED BY THE COURT THAT THESE M69 BOMBS WERE NOT
RATABLE AS EXPLOSIVE AMMUNITION. THAT CASE IS NOW PENDING IN THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, THOMAS APICELLA V. UNITED
STATES, NO. 12018. ALSO THE QUESTION AS TO WHETHER A RATING PROVIDED
FOR INCENDIARY BOMBS IS PROPERLY APPLICABLE TO BOMB BODIES, FILLED WITH
NAPALM GEL IS PENDING IN THE SUPREME COURT OF THE UNITED STATES ON
CERTIORARI IN CONNECTION WITH A DECISION OF THE COURT OF CLAIMS IN
WESTERN PACIFIC RAILROAD COMPANY V. UNITED STATES, C.CLS. NO. 42-54.
IN THESE CIRCUMSTANCES NO FURTHER ACTION WILL BE TAKEN TOWARD COLLECTION
OF THE OVERPAYMENTS STILL OUTSTANDING, PENDING A FINAL JUDICIAL
DETERMINATION OF THE QUESTION INVOLVED, EXCEPT AS A DUE PROTECTION OF
THE INTERESTS OF THE UNITED STATES IN THE INTERIM MAY REQUIRE OTHERWISE.
ACTION ON YOUR CLAIMS TO RECOVER ANY SUMS THAT MAY HAVE BEEN COLLECTED
TO ADJUST SUCH OVERPAYMENTS WILL LIKEWISE BE SIMILARLY HELD IN ABEYANCE.
B-126558, SEP. 19, 1956
TO MRS. PEARL JONES SUMNER:
WE REFER TO YOUR LETTERS OF AUGUST 11 AND 31, 1956, RELATIVE TO YOUR
CLAIM FOR UNPAID COMPENSATION DUE THE ESTATE OF BEN J. SUMNER, A FORMER
EMPLOYEE OF THE DEPARTMENT OF THE ARMY, OFFICE OF VICKSBURG,
MISSISSIPPI.
THE SETTLEMENT OF THE CLAIM FOR THE UNPAID COMPENSATION DUE THE
DECEDENT, BEN J. SUMNER, IS CONTINGENT UPON OUR OFFICE BEING FURNISHED A
CERTIFIED COPY OF A DECREE OF A COURT OF COMPETENT JURISDICTION SHOWING
A FINAL DETERMINATION BY SUCH COURT THAT YOU ARE ACTUALLY THE LEGAL
WIDOW OF THE DECEDENT. SUCH EVIDENCE WAS REQUESTED FROM YOU BY OUR
LETTER OF APRIL 25, 1956, B-125544, ADDRESSED TO YOU IN CARE OF MR.
LAITY. UNTIL SUCH EVIDENCE IS FURNISHED ACTION ON YOUR CLAIM MUST BE
HELD IN ABEYANCE.
IF YOU CARE TO REVOKE THE POWER OF ATTORNEY GRANTED MR. HARRY A.
LAITY, AUTHORIZING HIM TO RECEIVE ANY AMOUNT THAT MAY BE FOUND DUE YOU
BY THE COURT IN AN ACTION SUGGESTED IN THE PRECEDING PARAGRAPH, PLEASE
SO ADVISE US WHEN THE COURT ACTION IS COMPLETED.
THE ENCLOSURES FORWARDED WITH YOUR LETTER OF AUGUST 31, 1956, ARE
RETURNED HEREWITH.
B-126741, SEP. 19, 1956
TO THE PENNSYLVANIA RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR FILE 149-8/62234 CONCERNING YOUR CLAIM FOR
REFUND OF $32.30 OF THE AMOUNT DEDUCTED FROM YOUR BILL NO. 8/205822 TO
RECOVER AN OVERPAYMENT IN THE CHARGE FOR THE TRANSPORTATION ON A
SHIPMENT OF FREIGHT AUTO BODIES FROM PIQUA, OHIO, TO NEW CUMBERLAND,
PENNSYLVANIA, ON GOVERNMENT BILL OF LADING WQ-6837804 DATED FEBRUARY 23,
1943.
THE QUESTION PRESENTED CONCERNS THE USE OF A RATE PUBLISHED IN ITEM
2420 OF CENTRAL FREIGHT ASSOCIATION EXCEPTION TARIFF NO. 130-B FOR A
SHIPMENT OF FREIGHT BODIES IN A CAR EXCEEDING 50 FEET, 6 INCHES IN
LENGTH. YOUR CHARGE IS BASED APPARENTLY UPON THE USE OF A MINIMUM
WEIGHT DERIVED THROUGH THE USE OF RULE 34 OF THE CLASSIFICATION. THE
OPERATION OF RULE 34, IN CONNECTION WITH WEIGHTS PROVIDED IN THE
CLASSIFICATION, IS DEPENDENT UPON THE EXISTENCE OF AN APPLICABLE
CONSOLIDATED FREIGHT CLASSIFICATION MINIMUM WEIGHT FOR THE COMMODITY IN
A STANDARD LENGTH CAR. THE MINIMUM WEIGHT SPECIFIED IN THE
CLASSIFICATION FOR THIS COMMODITY, WHEN SHIPPED IN A STANDARD CAR, IS
REMOVED FROM AVAILABILITY THROUGH THE OPERATION OF THE EXCEPTIONS
AFFORDED IN CFA EXCEPTION TARIFF NO. 130-S. THERE BEING NO APPLICABLE
MINIMUM WEIGHT PROVIDED IN THE CLASSIFICATION FOR THIS COMMODITY IN
STANDARD CARS, THE BASIS FOR THE OPERATION OF RULE 34 IN CONNECTION WITH
WEIGHTS PRESCRIBED IN THE CLASSIFICATION IS REMOVED. SO FAR AS THE
SUPPLEMENTING MINIMUM WEIGHTS PRESCRIBED IN THE EXCEPTIONS ARE
CONCERNED, THE EXCEPTION TARIFF ITSELF PROVIDES THAT RULE 34 IS NOT FOR
APPLICATION.
B-127089, SEP. 19, 1956
TO SWETS AND ZEITLINGER:
REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1956, REQUESTING
REVIEW OF THAT PART OF OUR SETTLEMENT DATED MAY 1, 1956, WHICH
DISALLOWED $91.90 OF THE AMOUNT CLAIMED FOR CERTAIN PERIODICALS
FURNISHED THE UNITED STATES DEPARTMENT OF AGRICULTURE UNDER CONTRACT NO.
12-01-100-16, DATED NOVEMBER 5, 1954.
ON SEPTEMBER 17, 1954, THE DEPARTMENT OF AGRICULTURE INVITED BIDS ON
THE COST OF FURNISHING CERTAIN FOREIGN PERIODICALS PUBLISHED DURING THE
CALENDAR YEAR 1955. INCLUDED AMONG THE PUBLICATIONS LISTED IN THE
INVITATION WERE ANNALS OF APPLIED BIOLOGY AND JOURNAL OF AGRICULTURAL
SCIENCE. AFTER YOUR BID ON A NUMBER OF THE ITEMS, INCLUDING THE ONES
NAMED, WAS ACCEPTED AND THE ORDERS WERE FILLED, YOU ALLEGED THAT YOUR
BID WAS IN ERROR IN THAT IT WAS ANTICIPATED THAT THE ANNALS OF APPLIED
BIOLOGY FOR 1955 WOULD BE PUBLISHED IN ONE INSTEAD OF TWO VOLUMES AND
THAT THE JOURNAL OF AGRICULTURAL SCIENCE WOULD BE PUBLISHED IN ONE
INSTEAD OF ONE AND ONE-HALF VOLUMES. YOUR CLAIM FOR $150 AS ADDITIONAL
COSTS INCURRED IN CONNECTION WITH THE FURNISHING OF THESE PUBLICATIONS
UNDER THE CONTRACT WAS DISALLOWED BY OUR SETTLEMENT OF DECEMBER 7, 1955.
IN YOUR LETTER OF FEBRUARY 3, 1956, YOU REQUESTED RECONSIDERATION OF
THE MATTER. YOU STATED THAT AT THE TIME THE INVITATION WAS ISSUED THE
PUBLISHER DID NOT KNOW THE EXACT NUMBER OF VOLUMES UNDER EACH SUBJECT
THAT WOULD BE PUBLISHED AND THAT THE EXACT NUMBER WAS ANNOUNCED FOR THE
FIRST TIME DURING THE LATTER PART OF DECEMBER 1954. AFTER CONSIDERING
ALL FACTORS IN THE MATTER, IT WAS CONCLUDED THAT YOU HAD MADE AN ERROR
IN YOUR BID AND THAT THE UNIT PRICES QUOTED WOULD BE CONSIDERED AS BEING
FOR ONE VOLUME ONLY. ALTHOUGH YOU DID NOT FURNISH ANY CONCLUSIVE
EVIDENCE AS TO THE AMOUNT YOU INTENDED TO BID ON AN ANNUAL BASIS IT WAS
SATISFACTORILY ESTABLISHED THAT DURING THE CALENDAR YEAR 1955 THERE WAS
PUBLISHED THE EQUIVALENT OF ONE-HALF VOLUME IN ADDITION TO ONE VOLUME
THERETOFORE PUBLISHED AS THE JOURNAL OF AGRICULTURAL SCIENCE. LIKEWISE
AS TO THE ANNALS ON APPLIED BIOLOGY THERE WAS PUBLISHED THE EQUIVALENT
OF ONE VOLUME IN ADDITION TO THE ONE VOLUME NORMALLY PUBLISHED IN ONE
YEAR. CONSEQUENTLY, BY LETTER OF MAY 1, 1956, YOU WERE ADVISED THAT ON
THIS BASIS YOUR CLAIM WAS AUTHORIZED FOR PAYMENT IN THE AMOUNT OF $58.10
AND THAT THE BALANCE OF $91.90 WAS DISALLOWED.
IN THE LETTER OF JULY 13, 1956, YOU STATED THAT AS A "GO-BETWEEN" YOU
HAD CHARGED THE UNITED STATES GOVERNMENT THE AMOUNT THE PUBLISHERS HAD
CHARGED YOU FOR THE PUBLICATIONS AND THAT THE AMOUNT DISALLOWED BY OUR
OFFICE WAS TO LOSS TO YOU. YOU CONCLUDED THAT THE WHOLE MATTER TURNS ON
YOUR STATEMENT THAT "IT IS THE TASK OF YOUR OFFICE TO SEE TO IT THAT THE
GOVERNMENT OR SUBSCRIBER RECEIVES WHAT IT IS ENTITLED TO, BUT IN OUR
OPINION, NOT TO DUPE THE BOOKSELLER (THE MIDDLE MAN) ON TECHNICAL
GROUNDS.'
IT APPEARS THAT YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE
PERIODICALS DELIVERED--- CHANGES IN METHOD OF PUBLICATION CONSIDERED---
AND NOW WISH ADDITIONAL AMOUNTS TO COMPENSATE YOU FOR YOUR ALLEGED
LOSSES. IT IS REGRETTED THAT YOU INCURRED LOSSES IN THE PERFORMANCE OF
THE CONTRACT. OUR OFFICE, HOWEVER, AS WELL AS ALL AGENTS AND OFFICERS
OF THE UNITED STATES, HAS NO AUTHORITY TO WAIVE CONTRACTUAL RIGHTS WHICH
HAVE ACCRUED TO THE GOVERNMENT, OR TO MODIFY EXISTING CONTRACTS WITHOUT
A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORP. V.
UNITED STATES, 27 F.2D 389, AND PACIFIC HARDWARE AND STEEL COMPANY V.
UNITED STATES, 49 C.CLS. 327, 335. AS YOU HAVE BEEN PAID THE FULL
CONTRACT PRICE FOR THE PERIODICALS FURNISHED, THERE IS NO LEGAL OR OTHER
BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH PRICES.
B-127219, SEPT. 19, 1956
TO MR. JOSEPH P. NUZZI:
CONSIDERATION HAS BEEN GIVEN TO YOUR LETTERS CONCERNING THE
GOVERNMENT'S CLAIM AGAINST YOU IN THE PRINCIPAL SUM OF $2,854.78,
REPRESENTING OVERPAYMENTS MADE FOR THE TRANSPORTATION OF REPARABLE
AIRPLANE ENGINES DURING 1949.
YOU QUESTION THE CORRECTNESS OF THE AUDIT IN WHICH THE OVERPAYMENTS
WERE DETERMINED ON TWO GROUNDS: (1) THE ENGINES TRANSPORTED WERE IN
FACT SHIPPED LOOSE; AND (2) THE MINIMUM WEIGHT PRESCRIBED FOR
APPLICATION WITH THE RATES USED WAS A TRUCKLOAD, RATHER THAN A VOLUME,
MINIMUM WEIGHT. BECAUSE YOU WERE CERTIFICATED AS A CONTRACT CARRIER TO
PERFORM THESE SERVICES, YOU ALSO QUESTION THE PROPRIETY OF THE REFERENCE
ON THE CERTIFICATE OF INDEBTEDNESS DATED JANUARY 7, 1955, TO SECTION 322
OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, WHICH PROVIDES W
STATUTORY RESERVATION TO THE UNITED STATES OF A RIGHT OF SETOFF AGAINST
COMMON CARRIERS.
BILLS OF LADING WX 8384239, WX 8384326, WX 8386244, WX 8386224, AND
WX 8386336, ALL COVERED SHIPMENTS OF REPARABLE AIRPLANE ENGINES, WHICH
ORIGINATED AT WESTOVER AIR BASE, CHICOPEE, MASSACHUSETTS. ALTHOUGH THE
BILLS OF LADING DESCRIBE THE ENGINES AS BEING IN BOXES OR IN CRATES, YOU
URGE THAT THEY WERE SHIPPED UNCRATED TO PERMIT LOADING IN THE C-54
TRANSPORT PLANES IN WHICH THEY WERE FLOWN HERE FROM THE BERLIN AIRLIFT,
AND THAT THEY WERE OFF-LOADED AT THE MATS TERMINAL, WESTOVER, DIRECT TO
YOUR TRUCKS WITHOUT CRATING. HOWEVER, WE HAVE BEEN ADVISED BY THE
COMMANDING OFFICER, 1600TH AIR TRANSPORT WING, MILITARY AIR TRANSPORT
SERVICE, WESTOVER AIR BASE, THAT THE ENGINES SHIPPED ON EACH OF THESE
BILLS OF LADING WERE IN CRATES. WHETHER THESE ENGINES WERE OR WERE NOT
SHIPPED IN BOXES OR CRATES IS A QUESTION OF FACT UPON WHICH THE
DETERMINATION OF THE ADMINISTRATIVE OFFICE IS CONTROLLING IN THE
ABSENCE, AS HERE, OF COMPETENT EVIDENCE TO THE CONTRARY. SEE, IN THIS
CONNECTION, 14 COMP. GEN. 927; 16 ID. 325.
BILL OF LADING WX 8382189, APRIL 30, 1949, COVERED 18 BOXES OF
AIRPLANE ENGINES, WEIGHING 35,515 POUNDS, LOADED ON THREE SEPARATE
TRUCKS. FOR THE SERVICE FURNISHED, YOU COLLECTED CHARGES OF $2,520,
BASED UPON A MINIMUM WEIGHT OF 16,000 POUNDS PER TRUCK AT $5.25 PER
SHOULD NOT HAVE EXCEEDED $1,864.54, COMPUTED AT THE ACTUAL WEIGHT AND
THE RATE OF $5.25 PER 100 POUNDS, AND REQUESTED REFUND OF THE RESULTING
OVERPAYMENT, $655.46. BILL OF LADING WX 8384426, JUNE 23, 1949, COVERED
A SHIPMENT OF 14 ENGINES, WEIGHING 27,670 POUNDS. ALTHOUGH THE RECORD
HERE IS SILENT AS TO THE NUMBER OF TRUCKS USED TO TRANSPORT THESE
ENGINES, YOU COLLECTED CHARGES OF $1,680, BASED UPON THE USE OF TWO
TRUCKS, AT A MINIMUM WEIGHT OF 16,000 POUNDS EACH. OUR TRANSPORTATION
DIVISION REQUESTED REFUND OF $227.32, THE DIFFERENCE BETWEEN THE CHARGES
PAID AND $1,452.68, THE CHARGES BASED UPON THE ACTUAL WEIGHT.
YOU PUBLISHED AND FILED WITH THE INTERSTATE COMMERCE COMMISSION YOUR
CONTRACT CARRIER SCHEDULE OF MINIMUM RATES AND CHARGES, HF-I.C.C. NO. 5,
EFFECTIVE APRIL 11, 1949, TO APPLY ON THIS TRAFFIC.
THE SCHEDULE ESTABLISHED THE RATE OF $5.25 PER 100 POUNDS BETWEEN TH
ORIGIN AND DESTINATION OF THESE SHIPMENTS, AND PROVIDED, IN RULE 1,
"MINIMUM WEIGHT PER SHIPMENT: RATES NAMED HEREIN ARE SUBJECT TO A
MINIMUM WEIGHT OF 16,000 POUNDS PER SHIPMENT.' ALSO AVAILABLE FOR
APPLICATION ON THESE SHIPMENTS WAS YOUR "U.S. GOVERNMENT QUOTATION NO.
2," EFFECTIVE DECEMBER 23, 1948, EXPIRED JUNE 23, 1949. THIS QUOTATION
ALSO OFFERED THE $5.25 RATE, AND PROVIDED "MINIMUM WEIGHT 16,000 NO., "
YOU NOW URGE THAT THESE WERE TRUCKLOAD MINIMA APPLICABLE TO EACH OF A
NUMBER OF TRUCKS NEEDED TO TRANSPORT A SINGLE SHIPMENT, RATHER THAN
VOLUME MINIMA AS APPLIED IN OUR AUDIT.
A VOLUME MINIMUM WEIGHT IS DISTINGUISHED FROM A TRUCKLOAD MINIMUM
WEIGHT IN THIS RESPECT: IT IS THE MINIMUM APPLICABLE WHEN A SHIPPER
TENDERS TO A CARRIER FOR TRANSPORTATION, AT ONE TIME, A SINGLE SHIPMENT
OR VOLUME, OF A COMMODITY, EVEN THOUGH THE AMOUNT TENDERED MAY EXCEED
THE CARRYING CAPACITY OF THE LARGEST AVAILABLE VEHICLE, AND MAY REQUIRE
THE USE OF TWO OR MORE VEHICLES; THE TRUCKLOAD MINIMUM WEIGHT IS THE
QUANTITY THE CARRIER CAN TRANSPORT IN A SINGLE VEHICLE. SEE STOVES FROM
ALABAMA AND TENNESSEE TO INTERSTATE POINTS, 4 M.C.C. 641 (FOOTNOTE);
COMMODITY RATES FROM GULF PORTS TO ALABAMA, GEORGIA AND TENNESSEE, 10
M.C.C. 106 (FOOTNOTE). THE PROVISION IN RULE 1 OF YOUR CONTRACT CARRIER
SCHEDULE, MF-I.C.C. NO. 5, FOR A MINIMUM WEIGHT OF 16,000 POUNDS PER
SHIPMENT, IS CLEARLY A VOLUME MINIMUM, ACCORDING TO THE ABOVE
DEFINITION. SINCE
THE BASIS PROVIDED IN SCHEDULE MF-I.C.C. NO. 5 PRODUCES THE CHARGES
DETERMINED TO BE PROPER BY OUR TRANSPORTATION DIVISION, IT IS
UNNECESSARY TO CONSTRUE THE MINIMUM WEIGHT PROVISION IN YOUR ,U.S.
GOVERNMENT QUOTATION NO. 2.' IT MAY BE POINTED OUT, HOWEVER, THAT THIS
QUOTATION WAS AN OFFER FROM YOU TO TRANSPORT GOVERNMENT PROPERTY
ACCORDING TO THE TERMS AND CONDITIONS SPECIFIED; THAT IF ACCEPTED AND
ACTED UPON BY THE UNITED STATES, THE OFFER RIPENED INTO A CONTRACT; AND
THAT IN ACCORDANCE WITH THE BASIC RULE OF CONSTRUING AMBIGUOUS
INSTRUMENTS AGAINST THE MAKER, THE GOVERNMENT WOULD BE ENTITLED TO THE
MORE FAVORABLE INTERPRETATION THAT A 16,000 POUND VOLUME MINIMUM WEIGHT
WAS INTENDED.
SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 955, PROVIDES
FOR THE PAYMENT OF COMMON CARRIERS' BILLS FOR TRANSPORTATION PROMPTLY
UPON PRESENTATION, WITHOUT PRIOR AUDIT HERE, AND MAKES
SPECIFIC STATUTORY RESERVATION TO THE UNITED STATES OF THE RIGHT TO
SET OFF SUBSEQUENTLY DISCOVERED OVERPAYMENTS FROM AMOUNTS OTHERWISE DUE
THOSE CARRIERS. ALTHOUGH YOU OPERATED AS A CONTRACT CARRIER IN RELATION
TO THESE SHIPMENTS, YOU WERE ACCORDED THE BENEFITS OF THIS STATUTE---
PROMPT PAYMENT OF YOUR BILLS WITHOUT PRIOR AUDIT HERE--- AND YOU SHOULD
NOT NOW COMPLAIN AT THE IMPOSITION OF ITS BURDEN. ASIDE FROM THIS
STATUTE, HOWEVER, THE UNITED STATES POSSESSES THE COMMON-LAW RIGHT OF
SETOFF. LIKE ANY OTHER CREDITOR, THE GOVERNMENT IS ENTITLED TO APPLY
AMOUNTS DUE FROM IT TO A CLAIMANT TOWARD THE EXTINGUISHMENT OF THAT
CLAIMANT'S INDEBTEDNESS TO THE UNITED STATES. SEE MCKNIGHT V. UNITED
STATES, 13 C.CLS. 292, AFFIRMED 98 U.S. 179; UNITED STATES V. MUNSEY
TRUST CO., 332 U.S. 234.
THE AUDIT ACTION TAKEN IN OUR TRANSPORTATION DIVISION WAS CONSISTENT
WITH THE FOREGOING PRINCIPLES AND IS SUSTAINED. THE PRINCIPAL AMOUNT OF
THE DEBT, $2,854.78, SHOULD BE REFUNDED PROMPTLY; OTHERWISE THE MATTER
WILL BE REFERRED TO THE ATTORNEY GENERAL OF THE UNITED STATES FOR
ACTION.
B-127548, SEP. 19, 1956
TO ASSISTANT TRAFFIC MANAGER:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1956, REQUESTING
REVIEW OF THE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS FOR $97.63 AND
$56.02, REPRESENTING ADDITIONAL FREIGHT CHARGES ALLEGED TO BE DUE FOR
THE TRANSPORTATION OF TWO TRUCK-MOUNTED AIR COMPRESSORS SHIPPED UNDER
BILLS OF LADING WW-7482607 AND WT-6014208 IN 1948 AND 1951,
RESPECTIVELY.
ONE BILL OF LADING IDENTIFIES THE COMPRESSOR AS A LEROI MODEL, 105
GA, AIR COMPRESSOR MOUNTED ON A 2 1/2 TON, 6 BY 6, TRUCK CHASSIS, AND
THE OTHER BILL OF LADING APPEARS TO HAVE COVERED THE SAME KIND OF
COMPRESSOR. THIS ARTICLE IS ILLUSTRATED AND DESCRIBED IN ARMY TECHNICAL
MANUAL TM 9-2800. IT IS APPARENT FROM THE INFORMATION IN THE MANUAL
THAT THE TRUCK-MOUNTED AIR COMPRESSOR WAS DESIGNED TO OPERATE AS A
MOBILE UNIT AND THERE IS NOTHING IN THE RECORD HERE TO INDICATE THAT THE
COMPRESSOR COULD BE READILY REMOVED FROM THE TRUCK FOR USE OR, IF THE
COMPRESSOR WERE REMOVED, THAT THE MOTOR VEHICLE--- WITHOUT STRUCTURAL
ALTERATIONS--- COULD BE USED FOR ANOTHER PURPOSE. IT SEEMS REASONABLE
TO CONCLUDE, THEREFORE, THAT THE UNIT WAS A SELF-PROPELLED AIR
COMPRESSOR RATHER THAN A COMBINATION ARTICLE AND, CONSEQUENTLY, THE
COMBINATION ARTICLE RULE OF THE GOVERNING FREIGHT CLASSIFICATION WOULD
NOT APPLY TO DETERMINE THE CHARGES FOR THE TRANSPORTATION OF THE
ARTICLE. SEE, IN THIS CONNECTION, STEWART AND STEVENSON SERVICES, INC.
V. BALTIMORE AND OHIO RAILROAD COMPANY, 276 I.C.C. 156, 157. THIS
CONCLUSION IS SUPPORTED FURTHER BY HARRISON CONSTRUCTION CO. V.
CINCINNATI, N.O. AND T.P. RY. CO., 266 I.C.C., 313, 316-318, WHEREIN IT
WAS HELD THAT A TRUCK-MOUNTED CONCRETE MIXER WAS A SELF-PROPELLED
CONCRETE-MIXING MACHINE RATHER THAN A COMBINATION ARTICLE AND WAS
SUBJECT TO THE RATING APPLICABLE ON "MACHINERY OR MACHINES, N.O.I.B.N.'
SIMILARLY, IN OAKLAND TRUCK SALES CO. V. BALTIMORE AND O.R. CO., 270
I.C.C. 548, IT WAS HELD THAT A TRUCK-MOUNTED CRANE WAS A SELF-PROPELLED
CRANE RATHER THAN A COMBINATION ARTICLE AND WAS SUBJECT TO THE RATING
APPLICABLE ON "CRANES OR DERRICKS, N.O.I.B.N.'
THE CLASSIFICATION DESCRIPTION IN ITEM 60280 OF NATIONAL MOTOR
FREIGHT CLASSIFICATIONS NOS. 10 AND 11--- "COMPRESSORS, AIR, WITH OR
WITHOUT AIR TANKS, HOSE OR NOZZLES, MOUNTED OR NOT OUNTED"--- TO WHICH
ITEM 7420 OF SOUTHWESTERN MOTOR FREIGHT BUREAU EXCEPTIONS TARIFF NO. 15
SERIES REFERS, IS NOT RESTRICTED TO STATIONARY AIR COMPRESSORS AND
APPARENTLY INCLUDES SELF-PROPELLED AIR COMPRESSORS. IT APPEARS,
THEREFORE, THAT THE RATING PUBLISHED IN CONNECTION WITH THE SAID
DESCRIPTION IS APPLICABLE ON THE SHIPMENTS IN THIS CASE.
THE SETTLEMENTS, WHICH WERE CONSISTENT WITH THE FOREGOING, ARE NOT
SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, ARE SUSTAINED.
B-127814, SEP. 19, 1956
MRS. BERNICE E. HUNTLEY:
FURTHER REFERENCE IS MADE TO A LETTER DATED AUGUST 13, 1956, FROM MR.
W. E. CUMBERLAND IN RESPONSE TO OUR LETTER DATED AUGUST 7, 1956, TO YOU,
WHICH SUSTAINED THE PRIOR DETERMINATION OF YOUR INDEBTEDNESS TO THE
UNITED STATES IN THE AMOUNT OF $1,070 ON ACCOUNT OF ERRONEOUS PAYMENTS
OF FAMILY ALLOWANCE MADE TO YOU DURING THE PERIOD JUNE 1, 1942, TO
AUGUST 31, 1945, AS THE ALLEGED WIFE OF MR. HERBERT L. HUNTLEY.
MR. CUMBERLAND'S LETTER STATES NO RELEVENT FACTS NOT PREVIOUSLY
CONSIDERED AND HENCE DOES NOT WARRANT ANY MODIFICATION OR
RECONSIDERATION OF THE PRIOR ACTION IN THE MATTER. OUR OFFICE IS
REQUIRED BY LAW TO SETTLE CLAIMS AND DEMANDS BY THE GOVERNMENT (31
U.S.C. 71), AND THAT AUTHORITY INCLUDES THE DUTY OF EFFECTING THE
COLLECTION OF DEBTS DUE THE GOVERNMENT.
IT IS UNDERSTOOD THAT YOU ARE EMPLOYED BY THE GENERAL SERVICES
ADMINISTRATION. WE HAVE REQUESTED THAT OFFICE TO CONSIDER YOUR CASE
UNDER THE PROVISIONS OF THE ACT OF JULY 15, 1954, 68 STAT. 482--- AN ACT
TO AUTHORIZE THE COLLECTION OF INDEBTEDNESS OF MILITARY AND CIVILIAN
PERSONNEL RESULTING FROM ERRONEOUS PAYMENTS--- WITH A VIEW TO APPLYING A
PORTION OF YOUR COMPENSATION TO LIQUIDATE SUCH INDEBTEDNESS. YOU
UNDOUBTEDLY WILL BE GIVEN AN OPPORTUNITY TO EXPLAIN YOUR FINANCIAL
STATUS IN ORDER TO ASSIST THAT OFFICE IN DETERMINING WHAT COLLECTION
PROCEDURE SHOULD BE ADOPTED IN YOUR CASE.
B-128035, SEP. 19, 1956
TO MR. P. W. PUNNETT:
FURTHER REFERENCE IS MADE TO YOUR LETTER, REQUESTING RECONSIDERATION
OF OUR SETTLEMENT OF APRIL 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR $75
FOR SERVICES RENDERED THE UNITED STATES NAVAL RESEARCH AND DEVELOPMENT
FACILITY, BAYONNE, NEW JERSEY, ON NOVEMBER 23, 1954, AS A CONSULTANT ON
COFFEE BREWING.
YOUR CLAIM WAS DISALLOWED BECAUSE IT WAS COMMON PRACTICE FOR
PERSONNEL OF THE FACILITY TO INFORMALLY EXCHANGE ADVICE AND INFORMATION,
WITHOUT CHARGE, WITH MEMBERS OF THE INDUSTRY AND THE SCIENTIFIC WORLD,
INCLUDING INDEPENDENT CONSULTANTS. AT THE TIME YOU WERE CONTACTED YOU
AGREED TO DISCUSS THE MATTER OF COFFEE BREWING WITH THE PERSONNEL OF THE
FACILITY AND THERE APPARENTLY WAS NO UNDERSTANDING THAT YOU EXPECTED
REMUNERATION FOR YOUR SERVICES.
IN VIEW OF THE ARGUMENTS ADVANCED BY YOU, YOUR LETTER WAS FORWARDED
TO THE DEPARTMENT OF THE NAVY FOR A FURTHER REPORT. A REPORT NOW HAS
NOW BEEN RECEIVED BY OUR OFFICE AND BOTH MR. KATZENSTEIN AND MR.
BENARDE, WHO CONSULTED WITH YOU, DENY THAT THERE WAS ANY DISCUSSION OF
FEES OR ANY CONVERSATION WITH YOU WHICH WOULD LEAD THEM TO BELIEVE THAT
YOU WERE CHARGING THE DEPARTMENT OF THE NAVY FOR YOUR VISIT.
THE DEPARTMENT OF THE NAVY, HOWEVER, STATES THAT YOUR DISCUSSIONS
WITH REPRESENTATIVES OF THE FACILITY WERE OF BENEFIT TO THE GOVERNMENT
AND, IN THE ABSENCE OF A CONTRACT OR AGREEMENT, RECOMMENDS THAT $50 BE
ALLOWED YOU AS THE REASONABLE VALUE OF YOUR SERVICES. IN THE LIGHT OF
THAT RECOMMENDATION, OUR CLAIMS DIVISION TODAY IS BEING INSTRUCTED TO
ALLOW $50 IN FULL SETTLEMENT OF YOUR CLAIM AND YOU ARE ADVISED THAT A
CHECK FOR THAT AMOUNT WILL BE RECEIVED BY YOU IN REGULAR COURSE.
B-128789, SEP. 19, 1956
TO MR. NEAL J. PRICE, AUTHORIZED CERTIFYING OFFICER, INTERNATIONAL
COOPERATION ADMINISTRATION:
YOUR LETTER OF JULY 30, 1956, REQUESTS A DECISION WHETHER YOU MAY
CERTIFY FOR PAYMENT THE VOUCHER THEREWITH SUBMITTED IN FAVOR OF THOMAS
R. SMITH FOR $257.64 COVERING PER DIEM AND TRANSPORTATION EXPENSES
DURING THE PERIOD DECEMBER 9, 1955, TO APRIL 18, 1956, FOR HIMSELF AND
WIFE FOR TRAVEL FROM TAIPEI, TAIWAN, TO WASHINGTON, D.C., AND RETURN BY
AN INDIRECT ROUTE.
YOU SAY THAT TRANSPORTATION WAS PROCURED BY THE INTERNATIONAL
COOPERATION ADMINISTRATION BY AN INDIRECT ROUTE UTILIZING BOTH TOURIST
AND FIRST-CLASS ACCOMMODATIONS AT A COST OF $3,401.60. AT THE TIME OF
PURCHASE THE MISSION WAS BILLED FOR THE EQUIVALENT OF TWO ROUND TRIP
FIRST-CLASS FARES AND TWO BERTHS VIA THE DIRECT ROUTE TO THE POINTS
AUTHORIZED--- GREAT FALLS, MONTANA, AND WASHINGTON, D.C., FOR
CONSULTATION--- AT A COST OF $3,072.40 THE DIFFERENCE BEING PAID BY MR.
SMITH. SPECIFICALLY YOU REQUEST A DECISION WHETHER IN ESTIMATING THE
AMOUNT TO BE ALLOWED THE TRAVELER THE COMPUTATION SHOULD BE BASED ON THE
KIND OF TRANSPORTATION ACTUALLY UTILIZED OR UPON THE LOWEST FIRST-CLASS
FARE BY THE DIRECT ROUTE. YOUR DOUBT IN THE MATTER ARISES FROM 22 COMP.
GEN. 1109 AND 23 ID. 199, RENDERED IN 1943, INDICATING THAT IF LESS
THAN FIRST-CLASS ACCOMMODATIONS ACTUALLY ARE USED THE ESTIMATED COST
SHOULD BE COMPUTED ON THE BASIS OF LIKE ACCOMMODATIONS BY THE DIRECT
ROUTE.
AT THE TIME THE TWO DECISIONS WERE RENDERED PARAGRAPH 10 OF THE
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, REVISION OF JANUARY 30,
1942, PROVIDED AS FOLLOWS:
"10. INDIRECT-ROUTE TRAVEL.--- IN CASE A PERSON TRAVELS BY AN
INDIRECT ROUTE FOR HIS OWN PERSONAL CONVENIENCE, THE EXTRA EXPENSE WILL
BE BORNE BY HIMSELF AND REIMBURSEMENT FOR EXPENSES WILL BE BASED ONLY ON
SUCH CHARGES AS WERE ACTUALLY INCURRED, NOT TO EXCEED WHAT WOULD HAVE
BEEN INCURRED BY THE MOST ECONOMICAL USUALLY TRAVELED ROUTE. * * *"
IN THE SUBSEQUENT REVISIONS BEGINNING WITH OCTOBER 1, 1950, THE
UNDERLINED WORDS WERE OMITTED. IN DECISION B-119418 OF MAY 17, 1954,
REFERRED TO IN YOUR SUBMISSION AND PUBLISHED IN 33 COMP. GEN. 553, WE
HELD, QUOTING FROM THE SYLLABUS---
"UNDER SECTION 3 OF EXECUTIVE ORDER NO. 9805, AS AMENDED, WHICH
PROVIDES THAT THE COST TO THE GOVERNMENT FOR THE TRANSPORTATION OF THE
IMMEDIATE FAMILY OF TRANSFERRED EMPLOYEES SHALL NOT EXCEED THE COST OF
TRANSPORTATION BY A USUALLY TRAVELED ROUTE, AND PARAGRAPH 13A (1) OF THE
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH PROVIDES FOR THE
ALLOWANCE OF ONE LOWER BERTH FOR EACH TRAVELER, A TRANSFERRED EMPLOYEE
WHOSE THREE DEPENDENTS OCCUPIED ONE LOWER AND ONE UPPER BERTH IN THE
PERFORMANCE OF TRAVEL OVER A CIRCUITOUS ROUTE MAY BE ALLOWED THE
COMPARATIVE COST OF THREE LOWER BERTHS IN THE COMPUTATION OF THE EXCESS
COST SUSTAINED BY THE GOVERNMENT ON ACCOUNT OF THE INDIRECT TRAVEL.'
THAT DECISION CORRECTLY STATES THE RULE TO BE FOLLOWED SINCE THE
REVISION OF STANDARDIZED GOVERNMENT TRAVEL REGULATIONS IN 1950 EXCEPT
WHERE, AS IN THE CASE OF THE FOREIGN SERVICE AND INTERNATIONAL
COOPERATION ADMINISTRATION, MORE RESTRICTIVE REGULATIONS HAVE BEEN
ADOPTED. INTERNATIONAL COOPERATION ADMINISTRATION MANUAL, ORDER NO.
560.2, III, G., 12, PROVIDES AS OLLOWS:
"AN EMPLOYEE AND MEMBERS OF HIS FAMILY MAY ELECT, WITHOUT AMENDMENT
OF THE TRAVEL AUTHORIZATION, TO PERFORM TRAVEL OR INCUR EXPENSES FOR
TRANSPORTATION BY OTHER THAN USUALLY TRAVELED ROUTES OR BY MEANS OF
TRANSPORTATION NOT USUALLY EMPLOYED OR, UNDER THE CIRCUMSTANCES
SPECIFIED BELOW, BETWEEN PLACES OTHER THAN THOSE SPECIFIED IN THE TRAVEL
AUTHORIZATION: PROVIDED, THAT ACTUAL TRAVEL EXPENSES INCURRED AND PER
DIEM FOR EACH AUTHORIZED TRAVELER WILL BE ALLOWED IN AN AMOUNT NOT TO
EXCEED THE AMOUNT WHICH WOULD HAVE BEEN INVOLVED IN DIRECT TRAVEL
BETWEEN THE POINTS SPECIFIED IN THE TRAVEL AUTHORIZATION ON THE BASIS OF
THE LOWEST FIRST-CLASS ACCOMMODATIONS OR IF LESS THAN FIRST CLASS IS
ACTUALLY USED, ON THE BASIS OF ACCOMMODATION USED; AND THE ACTUAL
EXPENSES FOR TRANSPORTATION OF EFFECTS, OR OF REMAINS IN THE CASE OF
DEATH, WILL BE ALLOWED IN AN AMOUNT NOT TO EXCEED THE COST WHICH WOULD
HAVE BEEN INVOLVED IN DIRECT TRANSPORTATION BETWEEN THE POINTS SPECIFIED
IN THE TRAVEL AUTHORIZATION.'
A SIMILAR RESTRICTION APPEARS IN SECTION 3.5 OF THE FOREIGN SERVICE
TRAVEL REGULATIONS.
ACCORDINGLY, IN THE COMPUTATION OF THE EXCESS COST TO BE CHARGED TO
THE EMPLOYEE THE PORTION TO BE CHARGED TO THE INTERNATIONAL COOPERATION
ADMINISTRATION APPROPRIATION SHOULD BE COMPUTED AT THE CONSTRUCTIVE
COSTS BY THE DIRECT ROUTE OF THE CLASS OR CLASSES OF ACCOMMODATIONS
ACTUALLY USED RATHER THAN UPON THE COST OF ALL FIRST CLASS TRAVEL. THE
VOUCHER IS RETURNED HEREWITH FOR APPROPRIATE ADJUSTMENT BY DEDUCTION OF
ANY UNPAID EXCESS COST SO COMPUTED BEFORE CERTIFICATION FOR PAYMENT.
B-128823, SEP. 19, 1956
TO MR. ERNEST A. BLANK:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 25, 1956, CONCERNING YOUR
CLAIM AS DESIGNATED BENEFICIARY FOR THE ARREARS OF PAY AND ALLOWANCES
DUE IN THE CASE OF YOUR LATE GRANDSON, FRANKLIN D. BLANK, WHO DIED
JANUARY 3, 1956, WHILE SERVING AS AIRMAN THIRD CLASS, UNITED STATES AIR
FORCE, WHICH CLAIM WAS DENIED BY LETTER DATED JUNE 22, 1956, OF OUR
CLAIMS DIVISION.
YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED ON THE BASIS THAT YOU WERE
DESIGNATED BENEFICIARY BY THE DECEDENT AND, AS SUCH, WERE ENTITLED TO
THE ARREARS OF PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE ACT OF
JULY 12, 1955, PUBLIC LAW 147, 84TH CONGRESS, 69 STAT. 295.
THE ACT OF JULY 12, 1955, PROVIDES THAT IN THE SETTLEMENT OF THE
ACCOUNT OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES, THE AMOUNT
FOUND DUE SHALL BE PAID, FIRST, TO THE BENEFICIARY OR BENEFICIARIES
NAMED IN A WRITTEN DESIGNATION EXECUTED BY THE MEMBER PRIOR TO HIS
DEATH, AND SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR
WIDOWER OF SUCH MEMBER. THE ACT FURTHER PROVIDES THAT DESIGNATIONS OF
BENEFICIARY UNDER THE ACT SHALL BE MADE UNDER REGULATIONS PROMULGATED BY
THE SECRETARIES OF THE DEPARTMENTS CONCERNED, AND THAT IN THE ABSENCE OF
SUCH A DESIGNATION UNDER THE ACT SHALL BE MADE UNDER REGULATIONS
PROMULGATED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED, AND THAT IN
THE ABSENCE OF SUCH A DESIGNATION UNDER THE ACT ANY DESIGNATION OF
BENEFICIARY MADE FOR THE PURPOSES OF ANY SIX MONTHS' DEATH GRATUITY AND
RECEIVED IN THE DEPARTMENT CONCERNED BEFORE JANUARY 1, 1956, SHALL BE
CONSIDERED AS A DESIGNATION BENEFICIARY FOR THE PURPOSES OF THE ACT.
THE PAYMENT OF A SIX MONTHS' DEATH GRATUITY IN THE CASE OF DECEASED
MEMBERS OF THE AIR FORCE IS GOVERNED BY THE ACT OF DECEMBER 17, 1919, AS
AMENDED, 10 U.S.C. 903, AND PROVIDES THAT AN AMOUNT EQUAL TO SIX MONTHS'
PAY AT THE RATE RECEIVED BY A DECEASED MEMBER AT THE TIME OF HIS DEATH
SHALL BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR
CHILDREN OF SUCH DECEASED MEMBER. IF THERE BE NO SUCH WIDOW OR CHILD,
PAYMENT IS AUTHORIZED IN FAVOR OF ANY OTHER DEPENDENT RELATIVE
PREVIOUSLY DESIGNATED BY SUCH MEMBER.
UNDER THE ACT OF DECEMBER 17, 1919, MENTIONED ABOVE, THE DESIGNATION
OF SOMEONE OTHER THAN THE WIDOW OR CHILD CANNOT DEFEAT THE RIGHT OF THE
WIDOW OR CHILD TO THE GRATUITY. THUS, ANY DESIGNATION OF "ANY OTHER
DEPENDENT RELATIVE" IS CONDITIONAL IN THAT A RIGHT TO RECEIVE THE
GRATUITY DOES NOT ATTACH UNLESS THE DECEDENT IS NOT SURVIVIED BY A WIDOW
OR CHILD. IT IS OUR VIEW THAT THE REFERENCE IN SECTION 4 OF THE ACT OF
JULY 12, 1955, TO ANY DESIGNATION OF BENEFICIARY ,MADE FOR THE PURPOSES
OF ANY SIX MONTHS' DEATH GRATUITY" REFERS TO A BENEFICIARY ENTITLED TO
RECEIVE THE GRATUITY AS DISTINGUISHED FROM A PERSON NAMED CONDITIONALLY
AND WHO HAS NO RIGHT AS A BENEFICIARY WHERE A WIDOW OR CHILD SURVIVE.
WHILE, AS YOU WERE ADVISED IN THE SETTLEMENT OF JUNE 22, 1956, THE
RECORD SHOWS THAT THE DECEDENT DESIGNATED YOU TO RECEIVE THE SIX MONTHS'
DEATH GRATUITY, SUCH DESIGNATION WAS CONTINGENT UPON HIS NOT BEING
SURVIVED BY A WIDOW OR ELIGIBLE CHILD. SINCE THE DECEDENT WAS SURVIVED
BY A WIDOW, HIS DESIGNATION OF YOU AS HIS BENEFICIARY WAS NOT EFFECTIVE
FOR THE PURPOSES OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AT THE
TIME OF HIS DEATH, AND IT FOLLOWS THAT SUCH DESIGNATION OF BENEFICIARY
WAS WITHOUT EFFECT FOR THE PURPOSES OF THE ACT OF JULY 12, 1955.
ACCORDINGLY, THE CLAIMS DIVISION ACTION OF JUNE 22, 1956, DENYING YOUR
CLAIM AND ALLOWING THE ARREARS OF PAY AND ALLOWANCES TO THE WIDOW OF THE
DECEDENT WAS CORRECT AND IS SUSTAINED.
B-128982, SEP 19, 1956
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
ERNEST M. FLEISCHER, SECOND LIEUTENANT:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1956, REQUESTING REVIEW
OF OUR SETTLEMENT OF JULY 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR
ACTIVE DUTY PAY AND ALLOWANCES FOR ONE DAY, JUNE 27, 1955, INCIDENT TO
YOUR BEING ORDERED TO ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE U. S.
ARMY RESERVE UNDER ORDERS OF HEADQUARTERS FIFTH ARMY, CHICAGO, ILLINOIS,
DATED JANUARY 6, 1955.
YOU WERE DIRECTED BY THE ORDERS OF JANUARY 6, 1955, TO PROCEED ON
JUNE 27, 1955, FROM YOUR RESIDENCE AT CAMBRIDGE, MASSACHUSETTS, TO THE
FINANCE SCHOOL, FORT BENJAMIN HARRISON, INDIANA, WHERE YOU WERE TO
REPORT JUNE 30, 1955, ON TEMPORARY DUTY FOR THE PURPOSE OF ATTENDING A
COURSE OF INSTRUCTION. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS
AUTHORIZED. YOU STATED IN PRESENTING YOUR CLAIM THAT YOU LEFT CAMBRIDGE
BY PRIVATELY OWNED CAR ON JUNE 10, 1955, AND THAT YOU SIGNED IN AT FORT
BENJAMIN HARRISON AT 4:00 P.M. ON JUNE 30, 1955. YOU RECEIVED ACTIVE
DUTY PAY AND ALLOWANCES COMMENCING ON JUNE 28 BUT CONTEND THAT THE
COMMENCING DAY FOR PAY PURPOSES SHOULD HAVE BEEN JUNE 27.
SECTION 201(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807,
CONTAINS A PROVISO AS FOLLOWS:
"*** THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT,
IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO
EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE
THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND
FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED
IN ORDERS FOR SUCH MEMBERS: ***"
EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS
PURSUANT TO THAT SECTION, PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED
CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR
ACTIVE DUTY AND TRAVEL IS SO PERFORMED, THE TRAVEL TIME TO BE INCLUDED
AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300
MILES TRAVELED, AND ONE DAY FOR EACH FRACTION OF 300 MILES IN EXCESS OF
150 MILES TRAVELED. IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED
MAY PRESCRIBE, WITH RESPECT TO PERSONNEL WITHIN THEIR RESPECTIVE
DEPARTMENTS, SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY
OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. INASMUCH AS THE ORDERS
OF JANUARY 6, 1955, SPECIFICALLY AUTHORIZED TRAVEL BY PRIVATELY OWNED
CONVEYANCE IT APPEARS THAT YOU WERE PROPERLY ENTITLED UNDER EXECUTIVE
ORDER NO. 10153 TO THREE DAYS OF TRAVEL TIME TO COUNT AS ACTIVE DUTY
TIME, AS YOU CONTEND.
PARAGRAPH 9B(1), CHANGES NO. 2, ARMY REGULATIONS 35-1320 DATED
FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED
OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND
NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE
DUTY." THERE APPEARS TO HAVE BEEN NO REQUIREMENT THAT YOU PERFORM ANY
DUTY ON JUNE 30, 1955, OTHER THAN THAT OF REPORTING IN AT FORT BENJAMIN
HARRISON, WHICH APPARENTLY COULD HAVE BEEN DONE AT ANY HOUR OF THAT DAY.
CONSEQUENTLY, THERE APPEARS TO BE NO REASON WHY TRAVEL NECESSARY IN
COMPLYING WITH YOUR ORDERS ALSO COULD NOT HAVE BEEN PERFORMED ON THAT
DAY AND HENCE, THE DATE THAT YOU NECESSARILY WERE REQUIRED TO BEGIN TO
COMPLY WITH YOUR ORDERS TO PERMIT TRAVEL BY PRIVATELY OWNED CONVEYANCE,
ALLOWING TRAVEL TIME OF THREE DAYS FOR THAT MODE OF TRANSPORTATION AS
AUTHORIZED BY EXECUTIVE ORDER NO. 10153, WAS JUNE 28. YOUR RIGHT TO PAY
AND ALLOWANCES, THEREFORE, NECESSARILY MUST BE CONSIDERED TO COMMENCE ON
THAT DATE. ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF
THE ADDITIONAL AMOUNT CLAIMED AND THE SETTLEMENT OF JULY 30, 1956, IS
SUSTAINED.
B-129217, SEP. 19, 1956
TO HONORABLE JEROME C. HUNSAKER, CHAIRMAN, NATIONAL ADVISORY
COMMITTEE FOR AERONAUTICS:
REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 13, 1956, WITH
ENCLOSURES, FROM MR. E. H. CHAMBERLIN, EXECUTIVE OFFICER, TRANSMITTING
FOR CONSIDERATION THE MATTER OF A MISTAKE IN BID ALLEGED BY THE
GILLILAND INSTRUMENT COMPANY, OAKLAND, CALIFORNIA, IN CONNECTION WITH
NACA INVITATION NO. A-15922. A DECISION IS REQUESTED AS TO WHETHER, IN
VIEW OF THE FACTS SET FORTH IN THE LETTER OF SEPTEMBER 13, AND
ENCLOSURES, THE BID OF THE GILLILAND INSTRUMENT COMPANY CAN BE CORRECTED
BY THE AMOUNT CLAIMED TO BE IN ERROR.
THE RECORD SHOWS THAT BY INVITATION NO. A-15922, DATED JULY 30, 1956,
THE PROCUREMENT OFFICER, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS,
MOFFETT FIELD, CALIFORNIA, SOLICITED BIDS FOR THE DESIGN, FABRICATION
AND DELIVERY OF TWO STRAIN GAGE OUTPUT TRANSLATORS TO THE NACA AMES
AERONAUTICAL LABORATORY, MOFFETT FIELD, CALIFORNIA, THE BIDS TO BE
OPENED AT 3 P.M. ON AUGUST 20, 1956--- SUBSEQUENTLY EXTENDED TO AUGUST
28, 1956. IN RESPONSE TO THE INVITATION, THE GILLILAND INSTRUMENT
COMPANY OFFERED TO FURNISH THE EQUIPMENT FOR A TOTAL BID PRICE OF
$61,475.
IT IS REPORTED THAT UPON OPENING OF THE BIDS AND PRIOR TO AWARD THE
FIELD CONTRACTING OFFICER NOTED THE DISPARITY IN PRICES BETWEEN THE LOW
BID OF THE GILLILAND INSTRUMENT COMPANY AND THE OTHER BIDS RECEIVED;
THAT ON AUGUST 29, 1956, A MEETING WAS HELD BETWEEN REPRESENTATIVES OF
THE GILLILAND COMPANY AND THE NACA AMES LABORATORY TO DISCUSS THE
PROPOSED AWARD OF A CONTRACT AND AT THAT TIME THE COMPANY STATED THAT AN
ERROR HAD BEEN MADE IN EXTENDING AN ITEM ON ITS ESTIMATE SHEETS.
RESPECTING THE ALLEGATION OF MISTAKE, THE EXECUTIVE OFFICER STATES THAT
AN EXAMINATION OF THE COMPANY'S ORIGINAL ESTIMATE SHEETS INDICATES THAT
AN ERROR WAS MADE AS ALLEGED. HE ALSO POINTED OUT THAT IF THE BID IS
INCREASED BY THE SUM OF $3,182.50--- THE AMOUNT OF THE CLAIMED ERROR---
THEREBY MAKING THE CORRECT BID PRICE $64,657.50, IT WOULD STILL BE MORE
THAN $10,000 LOWER THAN THE NEXT BID RECEIVED.
THE EVIDENCE PRESENTED APPEARS TO ESTABLISH THE EXISTENCE OF A
MISTAKE IN BID. ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND EXPLAINED
PRIOR TO AWARD AND THE INTENDED BID PRICE FULLY ESTABLISHED, THE BID OF
THE GILLILAND INSTRUMENT COMPANY MAY BE CORRECTED TO SHOW THE PRICE OF
$64,657.50, AND AS SO CORRECTED MAY BE CONSIDERED IN MAKING THE AWARD.
IN THE EVENT OF AN AWARD TO THE GILLILAND INSTRUMENT COMPANY, A
REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.
THE PAPERS TRANSMITTED WITH THE LETTER OF SEPTEMBER 13 ARE RETURNED
HEREWITH.
B-126372, SEP. 18, 1956
TO THE HONORABLE JAMES R. DURFEE, CHAIRMAN CIVIL AERONAUTICS BOARD:
YOUR LETTER OF AUGUST 9, 1956, REQUESTS A DECISION ON THE FOLLOWING
QUESTION CONCERNING WHAT CONSTITUTES AN UNLIQUIDATED OBLIGATION AGAINST
THE APPROPRIATION "13 TIMES 1236 PAYMENTS TO AIR CARRIERS, CIVIL
AERONAUTICS BOARD:"
"/A) SHOULD THE BOARD, UNDER THE TYPE OF APPROPRIATION INVOLVED,
REPORT ANY AMOUNT AS REPRESENTING UNLIQUIDATED OBLIGATIONS$ .
"/B) IF THE ANSWER TO QUESTION (A) IS IN THE AFFIRMATIVE, SHOULD THE
AMOUNT TO BE REPORTED AS UNLIQUIDATED OBLIGATIONS REPRESENT ONLY THE
UNPAID BILLS RECEIVED FROM THE CARRIERS, OR SHOULD SUCH UNLIQUIDATED
OBLIGATIONS ALSO INCLUDE AN ESTIMATE OF BILLS NOT YET RECEIVED?
"/C) ALSO, DEPENDENT UPON THE ANSWER TO QUESTION (A), SHOULD THE
AMOUNT REPORTED AS UNLIQUIDATED OBLIGATIONS FOR AIR CARRIERS UNDER
TEMPORARY RATES AS OF JUNE 30TH INCLUDE AN ESTIMATE OF WHAT WILL BE DUE
THOSE CARRIERS AT SUCH TIME AS THE RATES ARE FINALIZED?
"/D) IF THE ANSWERS TO QUESTIONS (B) AND (C) ARE IN THE AFFIRMATIVE,
WILL ESTIMATES OF BILLS TO BE RECEIVED AND OF THE EFFECT OF RATE ORDERS
TO BE ISSUED MEET THE DOCUMENTARY EVIDENCE REQUIREMENTS OF SECTION 1311
(A) ? "
THE SPECIFIC LANGUAGE OF THE APPROPRIATION "13 TIMES 1236" FOR 1956
(69 STAT. 228) IS AS FOLLOWS:
"PAYMENTS TO AIR CARRIERS: FOR PAYMENTS TO AIR CARRIERS OF SO MUCH
OF THE COMPENSATION FIXED AND DETERMINED BY THE CIVIL AERONAUTICS BOARD
UNDER SECTION 406 OF THE CIVIL AERONAUTICS ACT OF 1938, AS AMENDED (49
U.S.C. 486), AS IS PAYABLE BY THE CIVIL AERONAUTICS BOARD PURSUANT TO
REORGANIZATION PLAN NO. 10 OF 1953; $52,500,000, TO REMAIN AVAILABLE
UNTIL EXPENDED.'
THIS APPROPRIATION IS MADE TO MEET EXPENDITURES FOR THE SUBSIDY
PORTION OF THE MAIL RATE AS AND WHEN THE PAYMENTS BECOME DUE.
OBLIGATIONS ON THE PART OF THE GOVERNMENT ARE INCURRED WHEN THE CARRIERS
CONDUCT OPERATIONS UNDER TEMPORARY OR FINAL MAIL RATE ORDERS ESTABLISHED
BY THE CIVIL AERONAUTICS BOARD UNDER THE PROVISIONS OF SECTION 406 OF
THE CIVIL AERONAUTICS ACT OF 1938, AS AMENDED. 34 COMP. GEN. 158. THE
AMOUNT OF THE APPROPRIATION IS NOT A DOLLAR LIMITATION ON OBLIGATIONAL
AUTHORITY.
THE BOARD DOES NOT RECORD ANY OBLIGATION IN ITS FORMAL ACCOUNTS PRIOR
TO PAYMENT. WHILE THE BILLS ARE RECORDED AS RECEIVED PRIMARILY FOR
SUPPLEMENTAL ACCOUNTING PURPOSES, THEY ARE NOT RECORDED AS OBLIGATIONS
UNDER THE APPROPRIATION. NO OBLIGATION AGAINST THE APPROPRIATION IS
RECORDED UNTIL A VOUCHER AND SCHEDULE OF PAYMENTS IS CERTIFIED TO THE
DISBURSING OFFICER FOR PAYMENT. THAT VOUCHER IS RECORDED SIMULTANEOUSLY
AS AN OBLIGATION AND EXPENDITURE SO THAT THE BOARD'S FORMAL CONTROL
ACCOUNTS DO NOT AT ANY TIME REFLECT AN UNLIQUIDATED OBLIGATION UNDER THE
APPROPRIATION.
IN THESE CIRCUMSTANCES WE HAVE NO OBJECTION TO THE PRESENT PROCEDURES
USED FOR RECORDING OBLIGATIONS IN THE FORMAL CONTROL ACCOUNTS. YET,
SECTION 1311 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, 68 STAT.
830, CONTEMPLATES THAT UNLIQUIDATED OBLIGATIONS OF THE GOVERNMENT
AGAINST EACH APPROPRIATION OR FUND UNDER THE CONTROL OF EACH FEDERAL
AGENCY SHALL BE INCLUDED IN THE REPORT REQUIRED BY THAT SECTION. ALL OF
THE UNLIQUIDATED OBLIGATIONS AS OF JUNE 30 OF EACH FISCAL YEAR,
THEREFORE, SHOULD BE REPORTED EVEN THOUGH SUCH OBLIGATIONS ARE NOT
RECORDED IN THE FORMAL CONTROL ACCOUNTS AND THEY MAY EXCEED THE AMOUNT
OF CASH IN THE APPROPRIATION OR FUND.
THE UNLIQUIDATED OBLIGATIONS TO BE REPORTED ARE NOT RESTRICTED TO THE
UNPAID BILLS RECEIVED AT THE DATE OF THE REPORT IF YOU OTHERWISE CAN
ESTABLISH THAT THE CARRIER HAS PERFORMED SERVICES UNDER TEMPORARY OR
FINAL RATE ORDERS IN EFFECT AND HAVE WRITTEN EVIDENCE FROM WHICH
REASONABLY ACCURATE ESTIMATES CAN BE MADE.
AN ESTIMATE OF WHAT MIGHT BE DUE CARRIERS OPERATING UNDER TEMPORARY
RATE ORDERS IN SUBSEQUENT FISCAL YEARS WHEN RATE ORDERS ARE FINALIZED---
IN EXCESS OF THE AMOUNT DUE UNDER THE TEMPORARY RATES--- IS NOT AN
OBLIGATION AS DEFINED IN SECTION 1311 (A) (5). THE ONLY SUBSIDY PAYABLE
,PURSUANT TO AGREEMENT AUTHORIZED BY, LAW," PRIOR TO THE ISSUANCE OF THE
FINAL ORDER IS THE SUBSIDY DUE UNDER THE TEMPORARY RATE ORDERS.
THE DOCUMENTARY EVIDENCE REQUIRED BY SECTION 1311 OF THE SUPPLEMENTAL
APPROPRIATION ACT, 1955, UNDER THIS TYPE OF PROGRAM WOULD BE THE CIVIL
AERONAUTICS ACT OF 1938, AS AMENDED, THE TEMPORARY OR FINAL RATE ORDERS
ISSUED THEREUNDER, AND WRITTEN EVIDENCE REASONABLY ESTABLISHING THE
AMOUNT OF SUBSIDY PAYMENTS EARNED BY THE CARRIERS.
B-126709, SEP. 18, 1956
TO CENTRAL OF GEORGIA RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR LETTER, PER FILE N-22073-G, REQUESTING
RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM, PER SUPPLEMENTAL BILL
NO. N-5-22073-A-G-R-971-10, FOR $3,368.70, REPRESENTING ADDITIONAL
CHARGES ALLEGED TO BE DUE FOR THE TRANSPORTATION OF MOTOR FREIGHT
VEHICLES FROM ROSSFORD ORDNANCE DEPOT, TOLEDO, OHIO, TO FORT BENNING,
GEORGIA, DURING AUGUST 1943.
IN YOUR REQUEST FOR REVIEW, YOU ASSERT THAT THE PRESENT CLAIM SHOULD
BE ALLOWED SINCE THE ISSUE IN QUESTION IS NO DIFFERENT FROM THAT
INVOLVED IN CLAIM TK-481371, SUPPLEMENTAL BILL NO.
N-5-22492-B-G-R-1011-10, WHICH WAS ALLOWED BY OUR TRANSPORTATION
DIVISION IN SETTLEMENT CERTIFICATE NO. T-619448, DATED DECEMBER 3, 1954.
HOWEVER, THAT CLAIM WAS DECIDED IN YOUR FAVOR AFTER AN INVESTIGATION
REVEALED THAT THE SHIPMENTS THERE INVOLVED CONSISTED OF L L/2 TON FORD
TRUCK CHASSIS, KNOCKED DOWN, WITH STEEL AUTO BODY PARTS, SET UP, THUS
CONSTITUTING PARTS AND PIECES OF A COMPLETE FREIGHT TRUCK. THEREFORE,
RULE 19 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 15--- THAT ARTICLES
MUST BE TAKEN APART IN SUCH A MANNER AS TO MATERIALLY REDUCE THE SPACE
OCCUPIED BEFORE KNOCKED DOWN RATINGS APPLY--- HAD NOT BEEN COMPLIED WITH
AND RULE 20--- THAT PARTS OR PIECES CONSTITUTING A COMPLETE ARTICLE WILL
BE CHARGED AT A RATING OR RATE PROVIDED FOR THE COMPLETE ARTICLE--- WAS
DETERMINED TO BE APPLICABLE.
IN THE PRESENT CLAIM, THE GOVERNMENT BILLS OF LADING COVERING THE
SHIPMENTS DESCRIBE THE COMMODITY AS:
MOTOR FREIGHT VEHICLES, 2 1/2 TON 6 BY 6
SWB GMC M 37 GUN MOUNTS WO/W
TOP BOXED FOR EXPORT
NO BODIES
ALL VEHICLES ON TR 57335 ARE TO BE
UNBOXED, REPROCESSED AND SET UP ON WHEELS.
THE WORDS "TOP BOXED FOR EXPORT, NO BODIES" MEAN "TWIN UNIT PACKED"
OR, IN OTHER WORDS, THE SHIPMENTS CONSISTED OF KNOCKED DOWN CHASSIS AND
CABS ONLY, NOT COMPLETE VEHICLES. THEREFORE, RULE 19 OF THE
CLASSIFICATION WAS CONSIDERED TO HAVE BEEN COMPLIED WITH AND THE MAXIMUM
REASONABLE RATE WAS DETERMINED TO BE 40 PERCENT OF THE FIRST-CLASS RATE,
IN ACCORDANCE WITH THE DECISIONS RENDERED IN HARRISON CONSTRUCTION CO.
V. PENNSYLVANIA R. CO., 280 I.C.C. 279, AND GRAFTON COAL CO. V. B. AND
O.R. CO., 280 I.C.C. 435.
IN THE HARRISON CASE THE COMMISSION HAD BEFORE IT THE QUESTION OF THE
PROPER RATE TO APPLY ON FIVE CARLOADS OF 2 1/2-TON FREIGHT CHASSIS,
KNOCKED DOWN, BOXED, WHICH HAD BEEN SOLD BY THE WAR ASSETS
ADMINISTRATION AS SURPLUS WAR DEPARTMENT VEHICLES AND WERE SHIPPED BY
THE COMPLAINANT, WHO PAID THE FREIGHT CHARGES BASED ON THE THIRD-CLASS
RATE. AFTER DISCUSSING THE LOADING CHARACTERISTICS OF VEHICLES SO
KNOCKED-DOWN AND PACKED, AS COMPARED WITH THE TRANSPORTATION
CHARACTERISTICS OF CERTAIN TYPES OF AUTOMOBILES AND AUTOMOBILE PARTS
HAVING LOWER RATINGS AND HIGHER MINIMUM WEIGHTS, THE COMMISSION FOUND
THAT THE RATING WAS DESIGNED FOR APPLICATION ON RELATIVELY LIGHT-LOADING
FREIGHT CHASSIS TRANSPORTED IN A LARGELY SET-UP CONDITION FROM THE POINT
OF MANUFACTURE TO THE POINT OF ASSEMBLY. THE COMMISSION THEN STATED, AT
PAGES 283 AND 284, THAT---
"IT IS CLEAR FROM THE FOREGOING THAT THE THIRD-CLASS RATING ON
AUTOMOBILE CHASSIS, KNOCKED DOWN, WAS NEVER INTENDED TO APPLY ON CHASSIS
TAKEN APART AND COMPACTLY BOXED OR CRATED AS WERE THESE SHIPMENTS. * *
*. THESE VEHICLES WERE DESIGNED AND PACKED FOR MILITARY OPERATIONS AND
WERE COMPACTLY AND SECURELY BOXED TO CONSERVE CARGO SPACE IN OCEAN-GOING
VESSELS AND IN STORAGE, TO WITHSTAND THE HAZARDS OF OVERSEAS SHIPPING,
AND TO EFFECT A REDUCTION IN TRANSPORTATION CHARGES.
"* * * WHERE, AS HERE, THE FACTS DISCLOSED INDICATE THAT THE RATE
CHARGED WAS NEVER INTENDED FOR APPLICATION ON THE SHIPMENTS CONSIDERED,
AND THAT THE GENERAL BASIS FOR MOTOR FREIGHT VEHICLES, OR PARTS THEREOF,
SUBJECT TO A MINIMUM OF 24,000 POUNDS OR MORE, WAS AND IS 40 PERCENT OF
FIRST CLASS * * * OR LOWER, IT IS PLAIN THAT THE RATE COLLECTED IS SO
EXCESSIVE AS BE UNREASONABLE FOR ANY VOLUME OF THIS PARTICULAR TRAFFIC.'
THE COMMISSION THEREFORE HELD THAT THE CHARGES PAID WERE UNREASONABLE
TO THE EXTENT THAT THEY EXCEEDED CHARGES COMPUTED ON THE BASIS OF THE
CLASS-40 RATE AND AWARDED REPARATION, WITH INTEREST, TO THAT BASIS.
IN THE GRAFTON CASE THE VEHICLES INVOLVED WERE CHASSIS FOR 10-TON 6
BY 4 TRUCKS AND WERE KNOCKED DOWN ONLY TO THE EXTENT THAT THE WHEELS,
CABS, AND FENDERS HAD BEEN REMOVED. EACH VEHICLE WAS PACKED IN A HEAVY
WOODEN CASE. THE WEIGHT OF EACH VEHICLE, AS BOXED, WAS 21,915 POUNDS,
AND 2 BOXES WERE LOADED ON EACH OF FIVE OPEN CARS 41 FEET OR LESS IN
LENGTH. IN THIS CONNECTION, THE COMMISSION STATED, AT PAGE 438 THAT---
"WE THERE (IN THE HARRISON CASE) FOUND IT WAS BECAUSE OF THE METHOD
OF PACKING THAT THE CARS USED COULD BE AND WERE LOADED GREATLY IN EXCESS
OF THE ESTABLISHED MINIMUM WEIGHT (15,000 POUNDS ON CHASSIS, KNOCKED
DOWN); THAT THE RATE CHARGED WAS NEVER INTENDED FOR APPLICATION ON SUCH
SHIPMENTS; AND THAT THE RATE COLLECTED (THIRD CLASS) WAS SO EXCESSIVE
AS TO BE UNREASONABLE FOR ANY VOLUME OF THE TRAFFIC CONSIDERED. WE
AWARDED REPARATION TO THE BASIS OF THE CLASS 40 RATE. SIMILAR TREATMENT
IS WARRANTED HERE.'
SINCE THE ACTION OF OUR TRANSPORTATION DIVISION IN THE SETTLEMENT OF
YOUR CLAIM WAS CONSISTENT WITH THE FINDINGS IN THE HARRISON AND GRAFTON
CASES, IT IS SUSTAINED.
B-127682, SEP. 18, 1956
TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, UNDER FILE G 619754, FOR REVIEW OF
THE SETTLEMENT OF YOUR BILL NO. 619754 AND OTHERS, FOR THE
TRANSPORTATION OF SHIPMENTS OF NITRO GUANIDINE, EACH WEIGHING 46,400
POUNDS, FROM PORT ROBINSON, ONTARIO, CANADA, TO DE SOTA, KANSAS, DURING
APRIL AND MAY, 1953.
YOU CLAIMED ORIGINALLY AND WERE PAID FOR THIS TRANSPORTATION CHARGES
COMPUTED ON THE BASIS OF A RATE OF 76 CENTS PER 100 POUNDS, CARLOAD
MINIMUM WEIGHT 60,000 POUNDS, FROM PORT ROBINSON, CANADA, TO BUFFALO,
NEW YORK, KANSAS, BOTH RATES BEING SUBJECT TO AN INCREASE OF 15 PERCENT.
LATER, YOU CLAIMED ADDITIONAL AMOUNTS REPRESENTING A SURCHARGE OF ONE
PERCENT. THESE BILLS WERE AUDITED BY OUR TRANSPORTATION DIVISION IN THE
LIGHT OF A LETTER DATED MAY 4, 1953 FROM YOUR GENERAL AGENT, J. C.
BATHAM, AT WASHINGTON, D.C., TO THE OFFICE OF CHIEF OF TRANSPORTATION,
DEPARTMENT OF DEFENSE, READING, IN PERTINENT PART, AS FOLLOWS:
"REFERRING TO MY CONVERSATION WITH YOU TODAY, I AM QUOTING BELOW
LETTER ADDRESSED TO THE OFFICE OF CHIEF OF TRANSPORTATION ON MARCH THE
30TH.
" "REFERRING TO OUR TELEPHONE CONVERSATION OF THE PAST SEVERAL DAYS
REGARDING THE APPLICATION OF SECTION 22 QUOTATION ON AMMUNITION AND
EXPLOSIVES FROM FORT (PORT) ROBINSON, ONTARIO, TO DE SOTA, KANSAS.
" "OUR GENERAL OFFICE ADVISED ME ON TELEPHONE THAT U.S. LINES WOULD
PROTECT THE RATE OF 65 PERCENT OF THE FIRST CLASS FROM THE BORDER TO DE
SOTO, AND THE CANADIAN LINES WOULD PROTECT 75 PERCENT OF THE FIRST CLASS
FROM ORIGIN TO BORDER. IN OTHER WORDS, A COMBINATION OF 75-65 PERCENT
OF THE FIRST CLASS RATE WOULD BE PROTECTED ON THIS MOVEMENT.' "
SUCH A BASIS RESULTED IN THE DISPUTED OVERPAYMENTS WHICH WERE
COLLECTED BY DEDUCTION IN MAKING PAYMENT OF AMOUNTS OTHERWISE DUE YOU.
THEREAFTER, YOU CLAIMED THE AMOUNTS DEDUCTED AND THESE CLAIMS WERE
DISALLOWED BY OUR TRANSPORTATION DIVISION.
IN YOUR PRESENT SUBMISSION, YOU SUBMIT COPIES OF CERTAIN
CORRESPONDENCE RELATING TO SHIPMENTS FROM PORT ROBINSON, ONTARIO. YOU
REQUEST THAT THIS MATTER BE REVIEWED, AND THAT IF SUCH REVIEW DISCLOSES
THAT MR. BATHAM'S LETTER IS NOT IN FACT A SECTION 22 QUOTATION, YOU BE
ALLOWED CHARGES ON THE BASIS OF REGULARLY PUBLISHED TARIFF RATES.
THE RECORD HERE SHOWS THAT AT THE TIME THESE SHIPMENTS WERE
CONTEMPLATED THERE WERE AVAILABLE ON THE SUBJECT COMMODITY RATINGS OF
CLASS 75-A TO BUFFALO AND CLASS 75 BEYOND. IT IS REASONABLE TO ASSUME
THAT THE REQUEST FOR A SECTION 22 QUOTATION WAS UNDERSTOOD AS AN EFFORT
TO SECURE RATES ON THE ANTICIPATED MOVEMENTS WHICH WERE LESS THAN THE
PUBLISHED RATES. IT SEEMS CLEAR ENOUGH THAT THE CARRIER WAS WELL AWARE
OF THE UNDERTAKING BY ITS AGENT TO AFFORD THE GOVERNMENT BENEFITS NOT
AVAILABLE UNDER PUBLISHED TARIFFS. THERE SEEMS TO BE NO QUESTION THAT
YOUR CHICAGO OFFICE HAD AUTHORITY TO QUOTE REDUCED RATES AND THAT THE
REDUCED RATE BASIS SUBMITTED BY YOUR WASHINGTON AGENT WAS CONSISTENT
WITH THAT AUTHORITY. UNDER THE CIRCUMSTANCES THE ARRANGEMENT AS MADE BY
YOUR
AGENT WAS GIVEN PROPER EFFECT IN OUR AUDIT, WHICH TOOK ADVANTAGE OF
THE CONCESSION THUS MADE.
ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN MODIFYING OUR AUDIT BASIS,
WHICH DOES NOT APPEAR TO
B-128613, SEP. 18, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO LETTERS DATED JULY 12, 1956, AND AUGUST 30,
1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), WHO
REQUESTS A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR
OWENS-CORNING FIBERGLAS CORPORATION ALLEGES IT MADE IN ITS BID ON WHICH
PURCHASE ORDER 106-4132 IS BASED.
INVITATION NO. ENG-30-347-56-30, DATED FEBRUARY 27, 1956, FOR
PROCUREMENT OF 31,000 SQUARE FEET OF TWO INCH THICK FIBREGLASS BATT TYPE
INSULATION, REQUIRED AMERICAN SOURCES TO QUOTE FOB VENDOR'S PLANT AND
CANADIAN SOURCES TO QUOTE FOB JOB SITE, FT. CHURCHILL, MANITOBA.
OWENS-CORNING FIBERGLAS CORPORATION SUBMITTED A BID FOR $23 PER THOUSAND
SQUARE FEE; FOB NEWARK, OHIO. INSULATION INDUSTRIES LTD., SUBMITTED A
BID FOR $57 PER THOUSAND SQUARE FEET, FOB FT. CHURCHILL. THESE WERE THE
ONLY BIDS RECEIVED ON THE ITEM IN QUESTION. ON MARCH 22, 1956, THE
AWARD WAS MADE TO OWENS-CORNING FIBERGLAS CORPORATION BY PURCHASE ORDER
106-4132. ON APRIL 2, 1956, AFTER RECEIPT OF THE ORDER, AND BEFORE
DELIVERY, THE VENDOR ALLEGED AND SUPPORTED BY PRICE SHEETS THAT DUE TO
AN ERROR IN READING ITS OWN CATALOG, THE PRICE OF $23 FOR ONE INCH
INSULATION WAS QUOTED INSTEAD OF $46 FOR THE TWO INCH INSULATION
REQUIRED. THE VENDOR REQUESTS THAT THE PURCHASE ORDER BE CORRECTED TO
REFLECT ITS CATALOG PRICE FOR THE TWO INCH INSULATION.
ACCORDING TO THE STATEMENT OF THE CONTRACTING OFFICER,"THERE WAS
NOTHING IN VENDOR'S BID TO INDICATE THAT A MISTAKE HAD BEEN MADE.' IN
ADDITION, THE ASSISTANT DIVISION ENGINEER POINTS OUT ,THE ITEM IS A
SPECIAL PROCUREMENT WITH NO PREVAILING OR CONTROLLED PRICE.'
THE QUESTION FOR CONSIDERATION IS WHETHER A VALID CONTRACT WAS
CONSUMMATED BY ACCEPTANCE OF THE VENDOR'S BID.
THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS. RESPONSIBILITY
FOR THE BID PREPARATION RESTED UPON THE BIDDER. THE BID WAS REGULAR ON
ITS FACE. THE MISTAKE WAS DUE SOLELY TO THE BIDDER'S CARELESSNESS,
NEGLIGENCE OR OVERSIGHT IN READING ITS OWN CATALOG, AND WAS NOT
CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. CONSIDERING THE
TRANSPORTATION COSTS INVOLVED IN THE OWENS-CORNING BID, WHICH IS THE
ONLY PROPER BASIS FOR EVALUATING THE BIDS AS RECEIVED, IT APPEARS THAT
THE TOTAL COST OF THE GOVERNMENT FOR 31,000 SQUARE FEET OF THE MATERIAL
AT THE JOB SITE SHOULD HAVE BEEN $1,349 ON A PROPER FREIGHT RATE, AND
WAS IN FACT APPROXIMATELY $1,700 AT THE RATE ACTUALLY CHARGED BY THE
CARRIER. COMPARED WITH THE COMPARABLE COST OF $1,767 AT THE PRICE
QUOTED BY INSULATION INDUSTRIES LTD., THE BID OF OWENS-CORNING CANNOT BE
CONSIDERED TO HAVE BEEN SO LOW AS TO PUT THE CONTRACTING OFFICER ON
NOTICE OF POSSIBLE ERROR. THE ACCEPTANCE WAS THEREFORE IN COMPLETE GOOD
FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE
RIGHTS AND LIABILITY OF THE PARTIES. THE LAW DOES NOT AUTHORIZE THE
WAIVER OF CONTRACT RIGHTS WHICH HAVE VESTED IN THE GOVERNMENT.
ACCORDINGLY, THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS
MATTER.
ONE COPY OF THE SUBMISSION AND ENCLOSURES WILL BE RETAINED IN OUR
FILES. THE OTHERS ARE RETURNED HEREWITH.
B-128679, SEP. 18, 1956
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO A REPORTED DATED AUGUST 30, 1956, FROM THE
DEPUTY FOR PROCUREMENT AND PRODUCTION, FURNISHED IN RESPONSE TO A
REQUEST FROM THIS OFFICE DATED JULY 30, 1956, FOR INFORMATION AND THE
VIEW OF YOUR DEPARTMENT RELATIVE TO THE QUESTION PRESENTED BY BYRNE A.
BOWMAN, ATTORNEY AT LAW, 418 COMMERCE EXCHANGE BUILDING, OKLAHOMA CITY,
OKLAHOMA, AS TO THE ALLEGED ACTION OF THE DEPARTMENT OF THE AIR FORCE IN
EMPLOYING AGENCIES FOR THE BLIND IN THE SEGREGATION OF AIRCRAFT ENGINE
HARDWARE.
IN THE REPORT IT IS STATED, IN SUBSTANCE, THAT IN UTILIZING THE
SERVICES OF APPROVED AGENCIES FOR THE BLIND IN THE SEGREGATION OF
AIRCRAFT ENGINE HARDWARE THE AIR FORCE HAS FOLLOWED THE OPINION OF THE
COUNSEL TO THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS THAT THE
WAGNER-O-DAY ACT OF JUNE 25, 1938, 52 STAT. 1196, PERMITS SUCH
CONTRACTS.
THE CITED STATUTE AS AMENDED PROVIDES (41 U.S.C. 46-48):
"SEC. 46. COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS; CREATION;
MEMBERS.
"THERE IS CREATED A COMMITTEE TO KNOWN AS THE COMMITTEE ON PURCHASES
OF BLIND-MADE PRODUCTS (HEREINAFTER REFERRED TO AS THE "COMMITTEE") TO
BE COMPOSED OF A PRIVATE CITIZEN CONVERSANT WITH THE PROBLEMS INCIDENT
TO THE EMPLOYMENT OF THE BLIND AND A REPRESENTATIVE OF EACH OF THE
FOLLOWING GOVERNMENT DEPARTMENTS: THE NAVY DEPARTMENT, THE WAR
DEPARTMENT, THE TREASURY DEPARTMENT, THE DEPARTMENT OF AGRICULTURE, THE
DEPARTMENT OF COMMERCE, AND THE DEPARTMENT OF THE INTERIOR. THE MEMBERS
OF THE COMMITTEE SHALL BE APPOINTED BY THE PRESIDENT, SHALL SERVE
WITHOUT ADDITIONAL COMPENSATION, AND SHALL DESIGNATE ONE OF THEIR NUMBER
TO BE CHAIRMAN. * * *
"SEC. 47. SAME; FAIR MARKET PRICE, DETERMINATION, REVISION;
DISTRIBUTION OF ORDERS.
"IT SHALL BE THE DUTY OF THE COMMITTEE TO DETERMINE THE FAIR MARKET
PRICE OF ALL BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES MANUFACTURED
BY THE BLIND AND OFFERED FOR SALE TO THE FEDERAL GOVERNMENT BY ANY
NON-PROFIT-MAKING AGENCY FOR THE BLIND ORGANIZED UNDER THE LAWS OF THE
UNITED STATES OR OF ANY STATE, TO REVISE SUCH PRICES FROM TIME TO TIME
IN ACCORDANCE WITH CHANGING MARKET CONDITIONS, AND TO MAKE SUCH RULES
AND REGULATIONS REGARDING SPECIFICATIONS, TIME OF DELIVERY,
AUTHORIZATION OF A CENTRAL NON-PROFIT-MAKING AGENCY TO FACILITATE THE
DISTRIBUTION OF ORDERS AMONG THE AGENCIES OF THE BLIND, AND OTHER
RELEVANT MATTERS OF PROCEDURE AS SHALL BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS SECTION AND SECTIONS 46 AND 48 OF THIS TITLE:
PROVIDED, THAT NO CHANGE IN PRICE SHALL BECOME EFFECTIVE PRIOR TO THE
EXPIRATION OF FIFTEEN DAYS FROM THE DATE ON WHICH SUCH CHANGE IS MADE BY
THE COMMITTEE. * * *
"SEC. 48. SAME; PROCUREMENT AT DETERMINED PRICE.
"ALL BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES HEREAFTER
PROCURED IN ACCORDANCE WITH APPLICABLE FEDERAL SPECIFICATIONS BY OR FOR
ANY FEDERAL DEPARTMENT OR AGENCY SHALL BE PROCURED FROM SUCH
NON-PROFIT-MAKING AGENCIES FOR THE BLIND IN ALL CASES WHERE SUCH
ARTICLES ARE AVAILABLE WITHIN THE PERIOD SPECIFIED AT THE PRICE
DETERMINED BY THE COMMITTEE TO BE THE FAIR MARKET PRICE FOR THE ARTICLE
OR ARTICLES SO PROCURED: PROVIDED, THAT THIS SECTION AND SECTIONS 46
AND 47 OF THIS TITLE SHALL NOT APPLY IN ANY CASES WHERE BROOMS AND MOPS
ARE AVAILABLE FOR PROCUREMENT FROM ANY FEDERAL DEPARTMENT AGENCY AND
PROCUREMENT THEREFROM IS REQUIRED UNDER THE PROVISIONS OF ANY LAW IN
EFFECT ON JUNE 25, 1938, OR IN CASES WHERE BROOMS AND MOPS ARE PROCURED
FOR USE OUTSIDE CONTINENTAL UNITED STATES. * * *"
IT APPEARS FROM THE "SCHEDULE OF BLIND-MADE PRODUCTS" PUBLISHED BY
THE COMMITTEE IN ACCORDANCE WITHE THE REGULATIONS PROMULGATED UNDER THE
STATUTE (41 C.F.R., CHAPTER 3) THAT PRIOR TO OCTOBER 1, 1955, THERE WERE
INCLUDED ONLY "COMMODITIES MANUFACTURED" BY THE BLIND, IN STRICT
CONFORMITY WITH THE LANGUAGE OF THE ACT. ON THAT DATE THE ITEM "SORTING
SERVICE FOR AIRCRAFT ENGINE HARDWARE (NUTS AND BOLTS)" WAS ADDED AS ITEM
NO. 103-S-75. THE COMMITTEE HAS FURNISHED A COPY OF A LETTER DATED
AUGUST 24, 1955, FROM THE SECRETARY TO THE CHAIRMAN, RECOMMENDING THAT
THE ITEM IN QUESTION BE INCLUDED IN THE SCHEDULE, AND THAT THE PRICE FOR
SUCH SERVICE BE FIXED AT $0.58 PER POUND. IT WAS REPORTED THEREIN THAT
A TRIAL OPERATION HAD BEEN CARRIED OUT DURING THE PERIOD JANUARY 1 TO
MAY 31, 1955, AT THE GEORGIA FACTORY FOR THE BLIND WHICH SHOWED A COST
OF $5,760.57, AS AGAINST A COST OF $16,195.20 FOR THE SAME OPERATIONS IN
AIR FORCE SHOPS, ACCORDING TO THE DIRECTOR OF PROCUREMENT AND
PRODUCTION, WARNER ROBINS AIR MATERIAL AREA.
THE WORD "COMMODITY" IS DEFINED IN WEBSTER'S NEW INTERNATIONAL
DICTIONARY AS FOLLOWS:
"2. THAT WHICH AFFORD CONVENIENCE, ADVANTAGE, OR PROFIT, ESPECIALLY
IN COMMERCE, INCLUDING EVERYTHING MOVABLE THAT IS BOUGHT AND SOLD
(EXCEPT ANIMALS),--- GOODS, WARES, MERCHANDISE, PRODUCE
OF LAND AND MANUFACTURES, ETC. * * *
"4. AN ELEMENT OF WEALTH; AN ECONOMIC GOOD * * * COMMODITY HAS BEEN
SOMETIMES USED TO INCLUDE SERVICES AS WELL AS PHYSICAL THINGS, BUT THIS
USAGE IS NOT GENERAL.'
SEE, ALSO, 15 G.J.S. 587-8; WORDS AND PHRASES, VOLUME 7A,
"COMMODITY," PAGES 594-5.
IN COURT DECISIONS, THE WORD "COMMODITY" IS USED ALMOST EXCLUSIVELY
TO MEAN TANGIBLE THINGS. THE COURT STATED IN DAVIS V. BOSTON AND MAINE
R. COMPANY, 89 F.2 368, 374: "LABOR IS NOT A COMMODITY.' IN HARRELSON
V. TYLER, 281 MO. 383, 219 S.W. 908, 913, IT IS STATED:
"* * * LABOR, WHETHER PHYSICAL, OR INTELLECTUAL, OR A COMBINATION OF
THE TWO, IS NOT BY ANY FAIR RULE OF CONSTRUCTION A "PRODUCT OR
COMMODITY" THAT IS THE SUBJECT OF "IMPORTATION, TRANSPORTATION,
MANUFACTURE, PURCHASE, OR SALE," WITHIN THE MEANING OF THE WORDS AS USED
IN THE STATUTE.'
IN VIEW OF THE FOREGOING, AND PARTICULARLY SINCE THE ACT OF JUNE 25,
1938, REFERS ONLY TO ,BROOMS AND MOPS AND OTHER SUITABLE COMMODITIES
MANUFACTURED BY THE BLIND AND OFFERED FOR SALE TO THE FEDERAL
GOVERNMENT," WE PERCEIVE NO SOUND BASIS FOR REGARDING IT AS APPLICABLE
TO LABOR OR SERVICES OR ANYTHING OTHER THAN TANGIBLE ARTICLES PRODUCED
BY THE BLIND. OF COURSE, THERE IS NOTHING TO PREVENT THE BLIND, OR AN
AGENCY FOR THE BLIND, FROM CONTRACTING TO PERFORM FOR THE GOVERNMENT
LABOR OR SERVICES WHICH THEY ARE EQUIPPED TO RENDER, BUT SUCH CONTRACTS
SHOULD BE MADE PURSUANT TO REGULAR CONTRACTING PROCEDURE RATHER THAN
UNDER THE SPECIAL PROCEDURE SET UP UNDER 41 U.S.C. 46-48, IN THE ABSENCE
OF SPECIFIC LEGISLATIVE AUTHORITY. FUTURE ACTION IN YOUR DEPARTMENT
SHOULD BE TAKEN ACCORDINGLY. HOWEVER, CONSIDERING THE PECULIAR
CIRCUMSTANCES OF THIS MATTER AND SINCE THE ACTION HERETOFORE TAKEN BY
YOUR DEPARTMENT AND THE COMMITTEE ON PURCHASES OF BLIND-MADE PRODUCTS
APPEARS TO HAVE BEEN TAKEN IN GOOD FAITH AND THE GOVERNMENT IS RECEIVING
THE BENEFIT OF THE SERVICES AT A COST DETERMINED BY THE COMMITTEE TO BE
REASONABLE, THIS OFFICE OFFERS NO OBJECTION TO THE COMPLETION OF CURRENT
CONTRACTS.
A COPY OF THIS DECISION IS BEING SENT TO THE COMMITTEE ON PURCHASES
OF BLIND-MADE PRODUCTS AND TO BYRNE A. BOWMAN, ESQUIRE.
B-128699, SEP. 18, 1956
TO CRAFTSMAN PRESS, INCORPORATED:
REFERENCE IS MADE TO LETTER DATED AUGUST 22, 1956, FROM JESSE B.
MESSITTE, ESQUIRE, REQUESTING ON YOUR BEHALF RECONSIDERATION OF DECISION
DATED JULY 31, 1956, TO THE SECRETARY OF THE NAVY, B-128699.
IT WAS HELD IN THE DECISION THAT, ALTHOUGH THE BID OF CRAFTSMAN
PRESS, INCORPORATED, CONTAINED NO EXPRESS QUALIFICATION, THE PRICES
QUOTED ON ITEMS 10 AND 20 WERE SUCH THAT IT CLEARLY INDICATED
THAT THE BIDDER HAD MADE AN ERROR OR WAS QUOTING ON A BASIS NOT
COMPLYING WITH THE SPECIFICATION REQUIREMENTS; THAT THE BIDDER HAD
CONFIRMED THE FACT THAT ITS BID ON THE TWO ITEMS WAS NOT INTENDED TO BE
BASED ON SPECIFICATION REQUIREMENTS; AND THAT, WHILE THE BIDDER AGREED,
AFTER THE BID OPENING, TO ABIDE BY THE REQUIREMENTS OF THE
SPECIFICATIONS AT THE SAME PRICES, IT COULD NOT BE PERMITTED TO DO SO
AND THAT THE BID SHOULD BE DISREGARDED.
IN SUPPORT OF THE REQUEST FOR RECONSIDERATION, IT IS CONTENDED THAT
THE BID OF CRAFTSMAN PRESS WAS WITHOUT QUALIFICATION OR RESERVATION OF
ANY KIND AND ON ITS FACE MET THE CONDITIONS AND REQUIREMENTS OF THE
INVITATION IN ALL RESPECTS; THAT THE REQUIREMENTS OF THE INVITATION
WERE FULLY UNDERSTOOD; AND THAT THE BID ON THE VARIOUS ITEMS, INCLUDING
ITEMS 10 AND 20, WERE MADE ON THE BASIS THEREOF FOR SOUND BUSINESS
REASONS. IT IS FURTHER CONTENDED THAT THE STATEMENTS MADE IN THE SECOND
PARAGRAPH OF THE LETTER OF JUNE 22, 1956, SHOULD BE DISREGARDED AS
SURPLUSAGE SINCE CRAFTSMAN PRESS STATED THAT IT WOULD HOLD TO ITS BID
AND CONFIRMED ITS BID PRICES ON ITEMS 10 AND 20 AND STATED THAT IT WOULD
FURNISH NEGATIVES FULLY IN ACCORDANCE WITH THE SPECIFICATION
REQUIREMENTS.
THE PRICES QUOTED BY CRAFTSMAN PRESS ON ITEMS 10 AND 20 WERE SUCH
THAT IT APPEARED OBVIOUS THAT AN ERROR HAD BEEN MADE OR THAT THE BID ON
THE TWO ITEMS WAS NOT BASED UPON SPECIFICATION REQUIREMENTS. IN VIEW
THEREOF, THE CONTRACTING OFFICER REQUESTED THE BIDDER TO CONFIRM ITS BID
PRICES ON THE ITEMS AND THAT IT UNDERSTOOD THE REQUIREMENTS OF THE
SPECIFICATIONS. IN A LETTER DATED JUNE 22, 1956, THE BIDDER INDICATED
THAT THE PRICES QUOTED ON ITEMS 10 AND 20 WERE BASED ON
PROCESS NOT MEETING THE SPECIFICATION REQUIREMENTS, AND THAT IF THAT
PROCESS WAS NOT ACCEPTABLE, IT WOULD HOLD TO ITS BID PRICES ON THE ITEMS
AND FURNISH NEGATIVES FULLY IN ACCORDANCE WITH THE SPECIFICATION
REQUIREMENTS.
NOTWITHSTANDING THE ADDITIONAL EVIDENCE NOW FURNISHED, THE EVIDENCE
RELIED UPON IN DISREGARDING THE BID OF CRAFTSMAN PRESS CLEARLY
ESTABLISHED THAT THE BIDDER DID NOT INTEND TO FULLY COMPLY WITH THE
SPECIFICATIONS FOR THE PRICES QUOTED. FURTHERMORE THE BID AS SUBMITTED
WAS AN UNBALANCED BID AND, BECAUSE OF THE UNBALANCED BID, THE GOVERNMENT
WOULD HAVE HAD TO PERMIT THE BIDDER TO WITHDRAW IF IT HAD CHOSEN TO
ALLEGE ERROR. THE BIDDER PLACED ITSELF IN THE POSITION WHERE, AFTER THE
OPENING OF THE BIDS, IT HAD THE OPTION OF ALLEGING THAT THE PRICES
QUOTED ON ITEMS 10 AND 20 EITHER WERE OR WERE NOT BASED ON SPECIFICATION
REQUIREMENTS.
ACCORDINGLY, THERE APPEARS NO SOUND BASIS TO MODIFY THE CONCLUSION
REACHED IN THE DECISION OF JULY 31, 1956.
B-128723, SEP. 18, 1956
TO BOETEFUER DECORATING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1956, WITH
ENCLOSURES, WHEREIN YOU ALLEGE THAT ERRORS WERE MADE IN YOUR BID DATED
JUNE 28, 1956, ON WHICH CONTRACT NO. NBY-6161 IS BASED.
THE DISTRICT PUBLIC WORKS OFFICER, U.S. NAVAL BASE, PHILADELPHIA,
PENNSYLVANIA, BY SPECIFICATION NO. 6161/56, REQUESTED BIDS--- TO BE
OPENED JUNE 28, 1956--- FOR FURNISHING LABOR AND MATERIALS AND
PERFORMING ALL WORK REQUIRED FOR THE INTERIOR PAINTING OF BUILDING NO.
16 AT THE U.S. NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. IN RESPONSE
YOU SUBMITTED A BID DATED JUNE 28, 1956, OFFERING TO PERFORM THE WORK
FOR THE LUMP SUM OF $33,775. BY LETTER DATED JUNE 29, 1956, YOU WERE
ADVISED THAT YOUR BID HAD BEEN ACCEPTED AND YOU WERE DIRECTED TO PROCEED
WITH THE WORK.
BY LETTER DATED JULY 10, 1956, YOU ADVISED THE OFFICER-IN-CHARGE OF
CONSTRUCTION THAT CERTAIN ERRORS WERE MADE IN YOUR BID AND YOU REQUESTED
A CONFERENCE FOR THE PURPOSE OF DISCUSSING SUCH ERRORS. ON JULY 16,
1956, A CONFERENCE WAS HELD IN THE OFFICE OF THE OFFICER-IN-CHARGE OF
CONSTRUCTION AND AT THAT CONFERENCE AND BY LETTER DATED JULY 19, 1956,
YOU WERE ADVISED THAT, SINCE ERROR WAS ALLEGED BY YOU AFTER AWARD, YOUR
REQUEST FOR RELIEF UNDER THE CONTRACT WOULD HAVE TO BE ADDRESSED TO THE
COMPTROLLER GENERAL OF THE UNITED STATES.
IN YOUR LETTER DATED JULY 23, 1956, TO THIS OFFICE, YOU REQUESTED
THAT YOU BE RELIEVED FROM PERFORMANCE OF THE CONTRACT. YOU ALLEGE THAT
YOU FAILED TO TRANSFER ONE ITEM OF 2,800 BROKEN WINDOW PANES FROM YOUR
ORIGINAL TAKEOFF SHEET TO YOUR SUMMARY ESTIMATE SHEET AND THAT SUCH
ERROR AMOUNTS TO $8,400 (2,800 PANES AT $3 PER LIGHT); THAT YOUR
ESTIMATOR FAILED TO WRITE ON YOUR TAKEOFF SHEET AN ITEM OF CRANES
AMOUNTING TO $1,600 (40 DAYS WORK AT $40 PER DAY); AND THAT YOU ALSO
UNDERESTIMATED THE LENGTH OF THE BUILDING BY 48 FEET. IN SUPPORT OF THE
ALLEGATION OF ERROR, THERE WAS FURNISHED PHOTOSTATIC COPIES OF YOUR
ORIGINAL TAKEOFF SHEET AND SUMMARY ESTIMATE SHEET.
THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN RESPONSE
TO THE INVITATION WAS UPON YOU. IF, AS STATED, YOU MADE CERTAIN ERRORS
OF OMISSION ON YOUR ORIGINAL TAKEOFF SHEET AND SUMMARY ESTIMATE SHEET,
SUCH ERRORS WERE DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WERE
IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V.
SANDERS ET AL., 93 U.S. 55, 61. ANY ERRORS THAT WERE MADE IN THE BID
WERE UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DO 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, 20
COMP. GEN. 652; AND 26 ID. 415.
THE PRIMARY QUESTION INVOLVED IS NOT WHETHER YOU MADE AN ERROR IN
YOUR BID, BUT WHETHER THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND
BINDING CONTRACT. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDS
ON THE PROJECT WERE IN THE AMOUNTS OF $43,215, $73,750 AND $73,765, AND
IT IS REPORTED THAT THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK IS
$35,000. THE CONTRACTING OFFICER (OFFICER-IN-CHARGE OF CONSTRUCTION)
HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR
IN YOUR BID PRIOR TO AWARD SINCE THE DIFFERENCE OF $9,440 BETWEEN
YOUR BID AND THE NEXT LOWEST BID RECEIVED ON THE PROJECT IS NOT UNUSUAL
IN PAINTING WORK, AND BECAUSE YOU HAD PREVIOUSLY PERFORMED OTHER WORK
FOR THE DEPARTMENT OF THE NAVY AT COMPARATIVELY LOW COST. IN VIEW OF
THE WIDE RANGE IN THE BIDS RECEIVED ON THE PROJECT AND THE FACT THAT
YOUR BID WAS IN LINE WITH THE GOVERNMENT'S ESTIMATE, IT DOES NOT APPEAR
THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE
PROBABILITY OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED
YOUR ORIGINAL WORKSHEETS IN SUPPORT OF YOUR ALLEGATION OF ERROR, IT DOES
NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE
OF THE FACTORS USED BY YOU IN COMPUTING YOUR BID PRICE ON THE PROJECT.
SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN
GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD.
THE ACCEPTANCE OF THE BID, IN THE CIRCUMSTANCES INVOLVED, 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.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS NO
LEGAL BASIS FOR EITHER INCREASING THE PRICE SPECIFIED IN CONTRACT NO.
NBY-6161 OR FOR CANCELLING THE CONTRACT. WE HAVE NO LEGAL AUTHORITY TO
RELIEVE CONTRACTORS FROM THE CONSEQUENCES OF AN ERRONEOUS BID, AFTER
ACCEPTANCE, UNLESS THE ACCEPTANCE OF THE BID WAS UNDER SUCH
CIRCUMSTANCES AS WOULD JUSTIFY THE IMPUTATION OF BDA FAITH TO THE
OFFICER ACCEPTING IT.
B-129066, SEP. 18, 1956
TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1956, REQUESTING TO BE
ADVISED IF WE WOULD OBJECT TO THE SURGEON GENERAL AMENDING CONTRACT NO.
I-L-IND-42562 BETWEEN THE UNITED STATES AND THE BOARD OF COUNTY
COMMISSIONERS OF BERNALILLO COUNTY, STATE OF NEW MEXICO, AND THE BOARD
OF TRUSTEES OF BERNALILLO COUNTY HOSPITAL.
IT IS STATED IN YOUR LETTER THAT PURSUANT TO THE PROVISIONS OF PUBLIC
LAW 438 (81ST CONGRESS, 1ST SESSION), AUTHORIZING FEDERAL ASSISTANCE FOR
THE CONSTRUCTION AND OPERATION OF A COUNTY HOSPITAL AT ALBUQUERQUE, NEW
MEXICO, FOR CARE AND TREATMENT OF INDIANS, A CONTRACT GOVERNING THE
HOSPITAL AND MEDICAL CARE OF INDIANS, WAS ENTERED INTO BY THE ACTING
COMMISSIONER OF INDIAN AFFAIRS ON JUNE 18, 1952. YOU FURTHER STATE IN
YOUR LETTER THAT THE CONTRACT PROVIDED IN PARAGRAPH 1 THAT THE COUNTY
AND TRUSTEES WERE TO "PROVIDE ALL MEDICAL, SURGICAL AND OBSTETRICAL
SERVICES AND CARE ...' TO INDIANS, AND IN PARAGRAPH 3, THE CONTRACT
FURTHER PROVIDED THAT THE COUNTY AND TRUSTEES WOULD FURNISH "ALL
PERSONNEL, INCLUDING MEDICAL AND SURGICAL STAFF FACILITIES ...'
PARAGRAPH 8 PROVIDED THAT THE COMMISSIONER OF INDIAN AFFAIRS WOULD
REIMBURSE THE TRUSTEES FOR THE CARE AND TREATMENT OF INDIANS "AT RATES
NOT IN EXCESS OF THE AVERAGE ANNUAL PER DIEM COST OF OPERATION AND
MAINTENANCE FOR THE INDIAN HOSPITAL.' THE CONTRACT FURTHER PROVIDED THAT
THE AVERAGE ANNUAL PER DIEM COST OF OPERATION AND MAINTENANCE WAS TO BE
DETERMINED BY DIVIDING "THE TOTAL COST OF OPERATING AND MAINTAINING THE
HOSPITAL FOR ONE YEAR ... BY THE NUMBER OF HOSPITAL DAYS ACCRUED DURING
SAID YEAR AND THE RESULTING QUOTIENT SHALL BE THE AVERAGE ANNUAL PER
DIEM COST PER BED ...'
THE CONTRACT RESERVED TO THE COMMISSIONER OF INDIAN AFFAIRS THE RIGHT
TO PASS ON ALL ITEMS ENTERING INTO THE COMPUTATION OF THE AVERAGE ANNUAL
PER DIEM COST OF OPERATION AND MAINTENANCE.
YOU STATE THAT AFTER THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE
OF YOUR DEPARTMENT SUCCEEDED TO THE RESPONSIBILITIES AND DUTIES OF THE
COMMISSIONER OF INDIAN AFFAIRS ON JULY 1, 1955, PURSUANT TO PUBLIC LAW
568, 83D CONGRESS, 2ND SESSION (42 U.S.C. 2001, ET SEQ.), THE COUNTY AND
HOSPITAL AUTHORITIES ADVISED THAT THEY WERE INCLUDING IN THE ANNUAL COST
OF OPERATION AND MAINTENANCE OF THE HOSPITAL THE COST OF PROVIDING TO
THE INDIANS MEDICAL SERVICES OF PHYSICIANS WHO WERE NOT EMPLOYEES OF THE
HOSPITAL AND REQUESTED THAT THEY BE GIVEN PERMISSION TO DISCONTINUE THAT
PRACTICE. YOU ALSO REPORT THAT AS A RESULT OF INCLUDING IN THE ANNUAL
COST OF OPERATION AND MAINTENANCE THOSE COSTS CHARGED BY NON-RESIDENT
PHYSICIANS ATTENDING INDIANS FOR WHOM THE HOSPITAL WAS RECEIVING
REIMBURSEMENT, THE HOSPITAL WAS BEING REIMBURSED FOR THOSE SERVICES AT
SUBSTANTIALLY LESS THAN THE ACTUAL COST TO THE HOSPITAL. YOU ADVISE
THAT THIS SITUATION RESULTS FROM THE FACT THAT NON-RESIDENT PHYSICIANS
FURNISH SERVICES TO INDIGENT NON-INDIAN PATIENTS AT NO CHARGE TO THE
HOSPITAL, AND THE FACT THAT THE COSTS CHARGED BY THESE NON-RESIDENT
PHYSICIANS FOR TREATMENT OF INDIANS ARE INCLUDED IN THE TOTAL COST WHICH
UNDER THE FORMULA IS DIVIDED BY THE NUMBER OF HOSPITAL DAYS ACCRUED BY
BOTH INDIAN AND NON-INDIAN PATIENTS WHEN COMPUTING THE AVERAGE PER DIEM
COSTS.
IT IS YOUR POSITION THAT THE INTERPRETATION OF THE TERMS OF THE
CONTRACT REQUIRING THE HOSPITAL TO FURNISH ALL MEDICAL SERVICES,
INCLUDING SERVICES PROVIDED BY NON-RESIDENT PHYSICIANS, IS NOT IN
ACCORD WITH THE CUSTOMARY METHODS OF HOSPITAL OPERATION, AND YOU DO
NOT CONSIDER THAT THE STATUTE REQUIRES THAT SUCH TOTAL MEDICAL CARE BE
PROVIDED BY THE HOSPITAL. YOU REPORT THAT IN THE USUAL HOSPITAL
OPERATION, GENERAL MEDICAL ATTENTION AND CARE ARE NORMALLY PROVIDED BY
RESIDENT PHYSICIANS AND INTERNS WHO ARE EMPLOYED AS ESSENTIAL STAFF OF
THE HOSPITAL. YOU STATE THAT THE PHRASE "CARE AND TREATMENT" AS
CONTAINED IN SECTION 1 (B) OF PUBLIC LAW 438 WOULD ORDINARILY BE TAKEN
AS REFERRING TO GENERAL MEDICAL STAFF SERVICES, THE COST OF WHICH MAY BE
APPROPRIATELY CONSIDERED AS A PART OF THE COST OF OPERATING THE
HOSPITAL, AS WELL AS APPROPRIATE FOR INCLUSION IN COMPUTING THE AVERAGE
COST FOR REIMBURSEMENT.
IT IS YOUR CONTENTION, HOWEVER, THAT WHEN THE HOSPITAL IS REQUIRED TO
OBTAIN THE SERVICES OF NON-RESIDENT PHYSICIANS FOR INDIAN PATIENTS AND
THOSE NON-RESIDENT PHYSICIANS ARE NOT EMPLOYEES OF THE HOSPITAL STAFF,
IT IS INAPPROPRIATE TO INCLUDE THE COST OF SUCH SERVICES IN THE COST OF
OPERATION AND MAINTENANCE OF THE ENTIRE HOSPITAL, ESPECIALLY WHERE SUCH
INCLUSION RESULTS IN REIMBURSEMENT AT LESS THAN THE FULL COST OF
PROVIDING THE REQUIRED MEDICAL SERVICES TO INDIAN PATIENTS. YOU ALSO
CONTEND THAT, UNDER ORDINARY HOSPITAL OPERATIONS, PHYSICIANS' SERVICES
BEYOND THOSE PROVIDED BY THE HOSPITAL STAFF, WHICH ARE RENDERED ON A FEE
BASIS, ARE ARRANGED AND PAID FOR BY THE PATIENT.
IN VIEW OF THE ABOVE FACTS YOU PROPOSE TO AMEND THE CONTRACT TO
PROVIDE FULL REIMBURSEMENT OF CHARGES INCURRED BY THE HOSPITAL FOR THE
PROVISION OF MEDICAL CARE TO INDIANS BY PHYSICIANS NOT EMPLOYED BY IT AS
MEMBERS OF ITS RESIDENT STAFF. YOU ALSO PROPOSE TO INCLUDE A PROVISION
REQUIRING THAT PAYMENT SHALL BE MADE FOR SUCH SERVICES IN ACCORDANCE
WITH A SCHEDULE OF FEES WHICH SHALL BE SUBJECT TO APPROVAL BY THE
SURGEON GENERAL.
PUBLIC LAW 438 AUTHORIZED FEDERAL ASSISTANCE FOR THE CONSTRUCTION AND
MAINTENANCE OF A COUNTY HOSPITAL AT ALBUQUERQUE, NEW MEXICO, TO MAKE
AVAILABLE HOSPITAL FACILITIES FOR THE TREATMENT OF INDIANS AND PROVIDED
IN SECTION 1 (B):
"THAT SUCH HOSPITAL SHALL BE CONSTRUCTED, OPERATED, AND MAINTAINED BY
THE COUNTY OF BERNALILLO, STATE OF NEW MEXICO, OR ITS SUCCESSOR
OPERATOR, IN ACCORDANCE WITH STANDARDS ACCEPTABLE TO THE STATE OF NEW
MEXICO, AND SHALL BE AVAILABLE TO ALL INDIANS: PROVIDED FURTHER, THAT
THE COMMISSIONER OF INDIAN AFFAIRS SHALL REIMBURSE THE COUNTY OF
BERNALILLO, OR ANY SUCCESSOR OPERATOR OF SUCH HOSPITAL, FOR THE CARE AND
TREATMENT OF INDIANS ELIGIBLE UNDER THE REGULATIONS OF THE SECRETARY OF
THE INTERIOR FOR HOSPITAL AND MEDICAL EXPENSES WHO MAY BE ADMITTED TO OR
TREATED IN SAID HOSPITAL UNDER THE PROVISIONS OF THE ACT OF APRIL 16,
1934, AS AMENDED (U.S.C. TITLE 25, SECS. 452-454), AT RATES NOT IN
EXCESS OF THE AVERAGE ANNUAL PER DIEM COST OF OPERATION AND MAINTENANCE
FOR THE ENTIRE HOSPITAL, BUT IN NO EVENT SHALL THE AMOUNT OF SUCH
PAYMENT BY THE COMMISSIONER OF INDIAN AFFAIRS BE LESS THAN THE AVERAGE
ANNUAL PER DIEM COST OF OPERATION AND MAINTENANCE FOR 80 PERCENTUM OF
THE BEDS REQUIRED TO BE MADE AVAILABLE. THE METHOD OF DETERMINING
AVERAGE ANNUAL PER DIEM COST OF OPERATION AND MAINTENANCE SHALL BE
AGREED UPON BETWEEN THE COUNTY OF BERNALILLO AND THE COMMISSIONER OF
INDIAN AFFAIRS IN THE CONTRACT BETWEEN THE RELATING TO SUCH HOSPITAL
...'
THE OBVIOUS PURPOSE OF THIS LEGISLATION WAS TO PROVIDE FOR THE
CONSTRUCTION, OPERATION, AND MAINTENANCE OF HOSPITAL FACILITIES FOR
INDIANS UNDER THE DIRECTION OF THE COUNTY OF BERNALILLO. IT IS APPARENT
THAT THE STATUTE CONTEMPLATED THAT THE HOSPITAL WAS TO BE REIMBURSED BY
THE FEDERAL GOVERNMENT WITHIN THE LIMITS OF A GIVEN FORMULA FOR THE
COSTS OF CARE AND TREATMENT OF THOSE INDIANS WHO WERE QUALIFIED TO
RECEIVE MEDICAL ATTENTION THROUGH THE FACILITIES AND SERVICES PROVIDED
BY THE HOSPITAL. FURTHERMORE, INASMUCH AS PUBLIC LAW 438 DOES NOT
REQUIRE THAT THE HOSPITAL PROVIDE THE SERVICES OF SPECIALISTS ON ITS
STAFF, IT CAN BE REASONABLY ASSUMED THAT THE STATUTE INTENDED THE
HOSPITAL TO ARRANGE FOR THE SERVICES OF SPECIALISTS WHEN NEEDED WITHOUT
ANY FINANCIAL LOSS TO THE HOSPITAL. THE RESPONSIBILITY FOR CONSERVATION
OF THE HEALTH OF THE INDIANS WOULD REQUIRE THE HOSPITAL AND ITS STAFF TO
DO THIS AS A MINIMUM.
IN VIEW OF THESE CONSIDERATIONS WE AGREE THAT THE STATUTE DOES NOT
REQUIRE THAT THE HOSPITAL, IN PROVIDING TOTAL MEDICAL CARE, SHOULD
FURNISH NON-RESIDENT MEDICAL SERVICES AT ITS EXPENSE. WE ARE ALSO OF
THE OPINION, HOWEVER, THAT THE STATUTES CONTEMPLATE THAT THE HOSPITAL
WILL ASSURE THAT THE INDIANS UNDER THE CARE OF THE GOVERNMENT WHO ARE
PROPERLY QUALIFIED FOR ADMITTANCE WILL RECEIVE THE ADEQUATE MEDICAL
ATTENTION WHICH THE HOSPITAL DEEMS NECESSARY IN THE INDIVIDUAL CASES.
UNDER THE TERMS OF THE PRESENT CONTRACT IT WOULD APPEAR THAT THE
HOSPITAL HAS BEEN REQUIRED TO FURNISH AND PAY FOR THE SERVICES OF
NON-RESIDENT PHYSICIANS WHERE NECESSARY WHICH HAS RESULTED IN A LOSS TO
THE HOSPITAL. WERE THIS SITUATION TO CONTINUE, IT WOULD BE AT LEAST
POSSIBLE THAT IN SOME INSTANCES THE HOSPITAL MIGHT REFRAIN FROM
OBTAINING THE NECESSARY OUTSIDE MEDICAL SERVICES TO AVOID SUSTAINING A
MONETARY LOSS. AMENDING THE CONTRACT TO PROVIDE THAT THE HOSPITAL COULD
BE REIMBURSED FOR THOSE COSTS INCURRED FOR THE SERVICES OF NON-RESIDENT
PHYSICIANS WOULD THEREFORE BENEFIT THE GOVERNMENT IN THAT IT WOULD
ASSURE THAT THE RESPONSIBILITY OF THE FEDERAL GOVERNMENT TO PROVIDE
ADEQUATE MEDICAL TREATMENT FOR QUALIFIED INDIANS WAS BEING PROPERLY AND
FULLY DISCHARGED. WE HAVE NO OBJECTION TO THE PROPOSED MODIFICATION OF
THE CONTRACT.
B-99995, SEP. 18, 1956
TO MISSOURI PACIFIC RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE 6-GP-13998-A, FOR REVIEW
OF OUR SETTLEMENT DATED JUNE 21, 1955, WHICH DISALLOWED YOUR CLAIM PER
BILL NO. S-13998-A, FOR $1,619.07 ADDITIONAL TO THE AMOUNT OF $1,237.40
PAID ON YOUR BILL NO. 13998 FOR THE TRANSPORTATION OF 1,215 BOXES OF
,AMMUNITION FOR CANNON WITH SMOKE PROJECTILES" FROM OGDEN, UTAH, TO PINE
BLUFF, ARKANSAS, UNDER GOVERNMENT BILL OF LADING NO. WQ-14021173, DATED
MARCH 22, 1943.
FOR THIS SERVICE YOU CLAIMED ORIGINALLY, AND WERE PAID ON YOUR BILL
NO. 13998, THE AMOUNT OF $ 3,076.57, COMPUTED ON THE BASIS OF A WEIGHT
OF 80,190 POUNDS AT A RATE OF $4.64 PER 100 POUNDS REDUCED TO $3.8366 BY
DEDUCTIONS FOR LAND GRANT. IN THE AUDIT OF THE PAYMENT VOUCHER OUR
TRANSPORTATION DIVISION FOUND THAT THE ALLOWABLE CHARGES WERE $1,237.40,
COMPUTED ON THE BASIS OF A COMMODITY RATE OF $1.90 PER 100 POUNDS
PUBLISHED IN ITEM NO. 2165 OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF
NO. 3-P, AGENT L. E. KIPP'S I.C.C. NO. 1483 AS BEING APPLICABLE ON
"EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED, IN BOXES.' THE AUDIT BASIS
REFLECTED AN OVERPAYMENT OF $1,839.17 ($3,076.57 LESS $1,237.40), WHICH
IS REPORTED TO HAVE BEEN ADJUSTED BY APPROPRIATE DEDUCTION FROM AN
AMOUNT OTHERWISE FOUND DUE ON YOUR BILL NO. 67043.
IN REQUESTING A REVIEW OF THE MATTER YOU APPARENTLY TAKE THE POSITION
THAT THE ARTICLES SHIPPED SHOULD BE CLASSIFIED AND RATED UNDER ITEM NO.
1865 OF CONSOLIDATED FREIGHT CLASSIFICATION NO. 15, WHICH NAMES, UNDER
THE GENERAL CAPTION "AMMUNITION, EXPLOSIVE, INCENDIARY OR GAS, SMOKE OR
TEAR PRODUCING," A FIRST-CLASS RATING FOR "PROJECTILES, FOR CANNON,
LOOSE OR IN PACKAGES," IN CARLOADS. IN THIS CONNECTION, YOU STATE THAT
THE INTERSTATE COMMERCE COMMISSION HAD CONSISTENTLY HELD THAT COMMODITY
TARIFFS MUST BE STRICTLY CONSTRUED AND THAT UNTIL THE SPECIFIC COMMODITY
DESCRIPTION IS PHYSICALLY INCORPORATED INTO THE COMMODITY TARIFF THE
CLASS RATE MUST BE APPLIED. YOU SUGGEST THAT WE ARE RELYING ON THE RULE
OF ANALOGY. AS INDICATED IN OUR DECISION OF SEPTEMBER 13, 1956,
B-126952, CONCERNING YOUR FILE 6-GR-48238-B, ON A QUESTION SIMILAR TO
THAT INVOLVED HERE, OUR OFFICE IS NOT RELYING ON THE RULE OF ANALOGY,
BUT IS BASING ITS POSITION ON THE PREMISE THAT THE ARTICLES ARE IN FACT
"CARTRIDGES" WITHIN THE GENERALLY ACCEPTED MEANING OF SUCH TERMS AND
THAT THE COMMODITY RATE USED IN OUR AUDIT SPECIFICALLY APPLIES TO THE
SUBJECT SHIPMENT. THE PROPRIETY OF APPLYING THE RATE ON "CARTRIDGES" ON
ARTICLES HAVING GENERAL CHARACTERISTICS SIMILAR TO THOSE UNDER
CONSIDERATION IN THIS INSTANCE WAS DISCUSSED IN THE ABOVE-MENTIONED
DECISION B-126952, AND THE REASONS THERE GIVEN IN SUPPORT OF SUCH RATE
APPEAR TO BE EQUALLY APPLICABLE IN THE PRESENT MATTER.
ACCORDINGLY, AS OUR SETTLEMENT ON YOUR BILL NO. S-13998-A WAS
CONSISTENT WITH THE FOREGOING, IT IS SUSTAINED.
B-127766, SEP. 17, 1956
TO MR. H. M. COOPER:
RECEIPT IS ACKNOWLEDGED OF YOUR LETTERS DATED AUGUST 20 AND SEPTEMBER
1, 1956, MAKING REFERENCE TO OUR DECISION OF JULY 26, 1956, B-127766,
ADDRESSED TO YOU AT BOX 261, HOLLY, COLORADO, WHICH SUSTAINED GENERAL
ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 25, 1956, WHEREIN YOUR WERE
INFORMED THAT THIS OFFICE WAS WITHOUT AUTHORITY TO ALLOW YOUR CLAIM FOR
DAMAGES SUSTAINED AS A RESULT OF THE REPEATED FLOODING SINCE 1944 OF
YOUR FARMLAND SITUATED IN THE VICINITY OF CHAMBERSBURG (PIKE COUNTY),
ILLINOIS.
IN YOUR LETTER OF AUGUST 20, YOU REQUEST THAT YOUR CLAIM BE REOPENED
AND PROMPTLY ALLOWED--- IT BEING YOUR CONTENTION (1) THAT THE CORPS OF
ENGINEERS, DEPARTMENT OF THE ARMY, HAS DEPRIVED YOU OF YOUR INCOME AND
PROPERTY WITHOUT DUE PROCESS OF LAW, AND,/2) THAT THE RESTORATION OR
RECONSTRUCTION OF THE SO-CALLED CHAMBERSBURG LEVEE BY THE
ABOVE-MENTIONED AGENCY WAS NOT LEGALLY AUTHORIZED, IN THAT THE
APPLICATION THEREFOR DID NOT CONTAIN SIGNATURES OF CERTAIN INDIVIDUALS
AS REQUIRED BY LAW.
BY PREVIOUS CORRESPONDENCE YOU WERE NOTIFIED THAT YOUR CLAIM IS ONE
SOUNDING IN TORT, AND THAT THIS OFFICE IS NOT AUTHORIZED TO CONSIDER OR
SETTLE TORT CLAIMS AGAINST THE UNITED STATES ARISING IN ANY FEDERAL
AGENCY OTHER THAN THE GENERAL ACCOUNTING OFFICE IN ANY AMOUNT. IN THE
DECISION IT WAS POINTED OUT THAT JURISDICTION TO DETERMINE AND SETTLE
TORT CLAIMS AGAINST THE UNITED STATES FOR MONEY DAMAGES IN EXCESS OF
$1,000 IS VESTED EXCLUSIVELY IN THE COURTS, AND THAT UNDER EXISTING
LAW THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THAT PURPOS
ACTING ON BEHALF OF THE UNITED STATES, IS VESTED WITH DISCRETIONARY
AUTHORITY TO CONSIDER AND SETTLE TORT CLAIMS AGAINST THE UNITED STATES
FOR MONEY DAMAGES OF $1,000 OR LESS. IN PARAGRAPH 4 OF OUR LETTER,
THERE WAS QUOTED 28 U.S.C. 1331 AND THERE WAS CITED 28 U.S.C. 1346 (2)
(B), AS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS IN SUCH
MATTERS.
YOUR RECENT LETTER CONTAINS NO FACTS OR INFORMATION WHICH WOULD
WARRANT ANY MODIFICATION OF THE CONCLUSION REACHED IN OUR DECISION OF
JULY 26, 1956.
B-128155, SEP. 17, 1956
TO MR. WILLIAM H. BURGHER:
YOUR LETTER OF AUGUST 15, 1956 (WITH ENCLOSURES), ADDRESSED TO THE
PRESIDENT OF THE UNITED STATES, CONCERNING YOUR CLAIM FOR COMPENSATION
ALLEGED TO BE DUE FOR OVERTIME SERVICES RENDERED THE GOVERNMENT DURING
1942, HAS BEEN REFERRED TO THIS OFFICE FOR ACKNOWLEDGEMENT AND
CONSIDERATION.
AN EXAMINATION OF OUR FILE DISCLOSES THAT YOUR CLAIM (LETTER DATED
DECEMBER 2, 1955), WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON
DECEMBER 7, 1955. INASMUCH AS MORE THAN 10 YEARS HAD ELAPSED SINCE SUCH
CLAIM FIRST ACCRUED AND CONSIDERATION THEREOF WAS BARRED BY THE
PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, THE CLAIM WAS
RETURNED TO YOU UNDER DATE OF JANUARY 13, 1956, WITH A COPY OF THE
ABOVE-CITED ACT, SECTION 2 OF WHICH READS, AS FOLLOWS:
"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.'
OUR RECORD FURTHER SHOWS THAT SINCE JANUARY 1956, THIS OFFICE HAS
ACKNOWLEDGED THREE PREVIOUS LETTERS RELATING TO THE CLAIM WHICH YOU
ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, AND IN EACH INSTANCE
YOU WERE INFORMED THAT FURTHER CONSIDERATION THEREOF WAS NOT POSSIBLE.
SINCE OUR OFFICE CANNOT WAIVE OR DISREGARD THE STATUTORY PROVISIONS
WHICH SPECIFICALLY PRECLUDE CONSIDERATION OF YOUR CLAIM, IT WILL BE
NECESSARY TO FILE, WITHOUT REPLY, ANY CORRESPONDENCE
B-128214, SEP. 17, 1956
TO MR. HENRY L. WITHAM:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 2, 1956, RELATIVE TO THE
MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF
$2,173.22 ARISING AS THE RESULT OF YOUR DEFAULT UNDER LOAN NO.
LHG-57098-MASS. MADE WITH THE CAPE ANN SAVINGS BANK, GLOUCESTER,
MASSACHUSETTS, AND GUARANTEED BY THE VETERANS ADMINISTRATION PURSUANT TO
THE PROVISIONS OF TITLE III OF THE SERVICEMEN'S READJUSTMENT ACT OF
1944, AS AMENDED, 38 U.S.C. 694 AND FOLLOWING SECTIONS. YOU ADVISED IN
YOUR LETTER THAT YOU WERE FINANCIALLY UNABLE TO PAY THE AMOUNT OWED AND
REQUESTED THAT FURTHER ACTION AGAINST YOU BE DELAYED UNTIL YOU
COMMUNICATED WITH YOUR CONGRESSMAN.
YOU ARE ADVISED THAT OUR OFFICE IS IN RECEIPT OF A LETTER FROM
CONGRESSMAN WILLIAM H. BATES ENCLOSING YOUR LETTER TO HIM AND REQUESTING
A REVIEW OF THE MATTER AND ADVICE AS TO WHETHER THE DEBT COULD BE
RETIRED ON A TIME BASIS IF IT CANNOT BE CANCELLED.
OUR OFFICE REQUESTED INFORMATION FROM THE VETERANS ADMINISTRATION
REGIONAL OFFICE AT BOSTON, MASSACHUSETTS, CONCERNING THE MANNER IN WHICH
THE INDEBTEDNESS WAS INCURRED AND ALSO WHETHER THE CASE HAD BEEN
CONSIDERED FOR WAIVER. IN CORRESPONDENCE RECENTLY RECEIVED FROM THAT
OFFICE WE ARE ADVISED THAT A LOAN OF $8,000 WAS MADE TO YOU ON JUNE 9,
1948, BY THE CAPE ANN SAVINGS BANK, GLOUCESTER, MASSACHUSETTS, FOR THE
PURPOSE OF PURCHASING A HOME WHICH LOAN WAS GUARANTEED BY THE VETERANS
ADMINISTRATION UNDER THE SERVICEMEN'S READJUSTMENT ACT OF 1944 SUPRA.
AFTER DEFAULT BY YOU IN THE PAYMENTS THE PROPERTY WAS FORECLOSED BY THE
BANK IN SEPTEMBER 1950, AND THEREAFTER THE VETERANS ADMINISTRATION PAID
THE BANK THE TOTAL SUM OF $8,585.38 TO ACQUIRE TITLE TO THE SUBJECT
PROPERTY. YOU RECEIVED A CREDIT OF $6,400, REPRESENTING THE PROCEEDS OF
THE FORECLOSURE SALE, LEAVING A DEFICIENCY OF $2,185.38. SUBSEQUENT
THERETO YOU WERE CREDITED WITH TWO INSURANCE REBATES OF $10.21 AND $1.95
REDUCING THE INDEBTEDNESS TO $2,173.22. WE WERE ADVISED ALSO THAT YOUR
CASE WAS CONSIDERED BY THE REGIONAL OFFICE LOAN GUARANTY COMMITTEE ON
WAIVERS AND COMPROMISES WITH THE FOLLOWING FINDING:
"* * * "NOT INEQUITABLE OR AGAINST GOOD CONSCIENCE TO COLLECT
INDEBTEDNESS. A REASONABLE REPAYMENT SCHEDULE WHEREBY THE VETERAN COULD
ELIMINATE THIS DEBT WOULD NOT WORK ANY UNDUE HARDSHIP UPON HIM.' "
IT IS NOTED IN YOUR CORRESPONDENCE TO OUR OFFICE AND TO CONGRESSMAN
BATES THAT YOU STATE YOU ARE FINANCIALLY UNABLE TO MAKE ANY PAYMENTS ON
THIS INDEBTEDNESS. IT IS NOT CERTAIN, HOWEVER, WHETHER YOU HAVE
CONSIDERED TENDERING A COMPROMISE OFFER IN AN AMOUNT LESS THAN THE
STATES INDEBTEDNESS WHICH THE VETERANS ADMINISTRATION MAY CONSIDER UNDER
ITS AUTHORIZATION TO SO COMPROMISE THESE CLAIMS PROVIDED IN SECTION 509
OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED, 38 U.S.C.
694J. SUCH AN OFFER, IF ACCEPTED, WOULD OPERATE IN FULL SATISFACTION OF
THE DEBT.
IT IS REQUESTED, THEREFORE, THAT YOU ADVISE OUR OFFICE AS TO WHETHER
YOU ARE ABLE TO MAKE SUCH AN OFFER OF COMPROMISE AND THE AMOUNT WHICH
YOU WOULD BE ABLE TO RAISE FOR THIS PURPOSE. UPON RECEIPT OF SUCH
ADVICE FROM YOU WE SHALL REFER THE MATTER TO THE VETERANS ADMINISTRATION
FOR CONSIDERATION. ALSO OUR OFFICE WILL BE GLAD TO CONSIDER ANY
REASONABLE ARRANGEMENT YOU MAY WISH
B-128405, SEP. 17, 1956
TO LEVINE, REMBAR AND ZOLETAR:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1956, AND ACCOMPANYING
MEMORANDUM, REQUESTING ON BEHALF OF YOUR CLIENT, JOHN REINER AND
COMPANY, RECONSIDERATION OF OUR DECISION OF AUGUST 3, 1956, B-128405, TO
THE SECRETARY OF THE ARMY, HOLDING THAT THE AWARD OF A CONTRACT TO YOUR
CLIENT PURSUANT TO INVITATION NO. DA-ENG-11-184-56-F-707 SHOULD BE
CANCELLED.
THE INVITATION CONTAINED A "DESIRED" DELIVERY SCHEDULE. IN ADDITION,
THE INVITATION PROVIDED THAT:
"IN THE EVENT BIDDER IS UNABLE TO MAKE DELIVERIES IN ACCORDANCE WITH
THE FOREGOING SCHEDULE, HE SHALL SET FORTH IN THE SPACE BELOW HIS
PROPOSED DELIVERY SCHEDULE:
"BIDS OFFERING A PROPOSED DELIVERY SCHEDULE WHICH WILL EXTEND THE
TIME FOR THE DELIVERY OF THE QUANTITIES AS CALLED FOR IN ANY DELIVERY
PERIOD OF THE FOREGOING DELIVERY SCHEDULE BY MORE THAN 60
DAYS, MAY BE CAUSE FOR REJECTION OF BID.
"IN THE EVENT A BIDDER DOES NOT SET FORTH A PROPOSED DELIVERY
SCHEDULE THE GOVERNMENT'S DELIVERY SCHEDULE AS HEREINABOVE SET FORTH
SHALL BE BIDDER'S PROPOSED DELIVERY SCHEDULE.'
THE LOW BIDDER, JOHN REINAR AND COMPANY, SUBMITTED A DELIVERY
SCHEDULE WHICH EXTENDED THE ,DESIRED" SCHEDULE BY 120 DAYS. THE SECOND
LOW BIDDER, THE UNITED STATES MOTORS CORPORATION, OFFERED TO MEET THE
"DESIRED" SCHEDULE. UPON A DETERMINATION THAT THE DELIVERY SCHEDULE
OFFERED BY THE LOW BIDDER WAS SATISFACTORY TO THE REQUISITIONING AGENCY,
AWARD WAS MADE TO JOHN REINER AND COMPANY. BY LETTER OF JUNE 27, 1956,
UNITED PROTESTED THE AWARD ON THE GROUNDS THAT:
1. THEY WERE THE LOW BIDDER COMPLYING IN ALL RESPECTS TO THE TERMS
AND CONDITIONS OF THE INVITATION.
2. NO EXCEPTIONS OR ALTERNATE BIDS WERE ACCEPTABLE UNDER THE
PROVISIONS OF THE INVITATION.
3. IF DELIVERY IS OF IMPORTANCE TO THE REQUISITIONING AGENCIES AS
INDICATED BY THE DELIVERY REQUIREMENTS, NO EXCEPTION SHOULD BE
CONSIDERED UNLESS A LIKE EXCEPTION IS EXTENDED TO ALL BIDDERS.
4. IF DELIVERY IS NOT OF CONSEQUENCE TO THE REQUISITIONING AGENCIES,
THEN A RESTRICTIVE OR SUGGESTIVE CLAUSE THAT REFERS TO THE POSSIBLE
REJECTION OF A BID EXCEEDING BY MORE THAN SIXTY DAYS THE DESIRED
DELIVERY, SHOULD NOT HAVE BEEN INCLUDED IN THE INVITATION.
IN OUR DECISION OF AUGUST 3, 1956, HOLDING THAT THE AWARD SHOULD BE
CANCELLED, WE STATED:
"IF THE REQUISITIONING AGENCY DID NOT ACTUALLY REQUIRE DELIVERY ON
THE DATES SPECIFIED THEN THE DATES SHOULD HAVE BEEN EXTENDED IN LINE
WITH THE GOVERNMENT'S REQUIREMENT, OR SOME ALTERNATIVE SHOULD HAVE BEEN
LEFT TO THE BIDDERS TO OFFER LONGER DELIVERY SCHEDULES AT LOWER PRICES,
IN WHICH EVENT, OF COURSE, SOME METHOD OF EVALUATING THE BIDS ACCORDING
TO PRICE AND DELIVERY DATES SHOULD HAVE BEEN STATED. * * *"
IN YOUR MEMORANDUM SUBMITTED IN SUPPORT OF YOUR REQUEST FOR
RECONSIDERATION YOU CONTEND THAT THE PROVISIONS OF THE INVITATION AS TO
TIME OF DELIVERY WERE "CLEAR AND UNAMBIGUOUS AND AFFORDED ALL BIDDERS
EQUAL OPPORTUNITY TO COMPETE FOR THE BUSINESS," THAT THE RESERVATION OF
THE RIGHT TO CONSIDER BIDS EXTENDING THE DESIRED SCHEDULE MORE THAN 60
DAYS IS LEGALLY UNASSAILABLE, AND THAT A STATEMENT IN THE INVITATION OF
THE METHOD OF EVALUATING BIDS ACCORDING TO PRICE AND DELIVERY IN SUCH
CASES IS NOT REQUIRED BY STATUTE AND WOULD IMPOSE AN "INTOLERABLE
BURDEN" ON THE PURCHASING OFFICERS. YOUR FURTHER INDICATE THAT WORK WAS
COMMENCED BY REINER BETWEEN THE TIME OF AWARD, JUNE 29, 1956, AND THE
RECEIPT OF A COMMUNICATION DATED AUGUST 3, 1956, FROM THE ARMY, TO
SUSPEND PERFORMANCE UNDER THE CONTRACT, INDICATING THE POSSIBILITY THAT
CANCELLATION OF THE CONTRACT AT THIS TIME WILL RESULT IN ADDITIONAL
COSTS TO THE GOVERNMENT.
THE PURPOSE OF STATUTES REQUIRING CERTAIN PUBLIC CONTRACTS TO BE LEFT
TO THE LOWEST RESPONSIBLE BIDDER AFTER ADVERTISING IS TO GIVE ALL
PERSONS EQUAL RIGHT TO COMPETE FOR GOVERNMENT CONTRACTS, TO PREVENT
UNJUST FAVORITISM, OR COLLUSION OR FRAUD IN AWARDING GOVERNMENT
CONTRACTS, AND TO SECURE FOR THE GOVERNMENT THE BENEFITS WHICH FLOW FROM
FREE AND UNRESTRICTED COMPETITION. SEE UNITED STATES V. BROOKRIDGE
FARM, 111 F.2D 461, AFFIRMING 27 F.SUPP. 909. IN ORDER FOR BIDDERS TO
COMPETE ON EQUAL TERMS WHEN SUBMITTING BIDS IN RESPONSE TO AN
ADVERTISEMENT FOR BIDS, THE SPECIFICATIONS AND INVITATION MUST BE
SUFFICIENTLY DEFINITE TO ENABLE THE PREPARATION AND EVALUATION OF BIDS
ON A COMMON BASIS. SEE ANNOTATIONS IN 30 L.R.A.N.S. 214-221. CONTRACTS
AWARDED UNDER SPECIFICATIONS AND INVITATIONS WHICH ARE NOT SO DRAWN AS
TO PERMIT COMPETITION ON AN EQUAL BASIS ARE VOIDABLE. UNITED STATES V.
BROOKRIDGE FARM, SUPRA. BIDDERS CANNOT COMPETE ON AN EQUAL BASIS AS
REQUIRED BY LAW UNLESS THEY KNOW IN ADVANCE THE BASIS ON WHICH THEIR
BIDS WILL BE EVALUATED. DECISION OF MARCH 17, 1955, B-120741.
THE PROVISION IN THE INVITATION STATING THAT BIDS PROPOSING DELIVERY
SCHEDULES MORE THAN 60 DAYS LATER THAN THE DESIRED SCHEDULE MAY BE
REJECTED, CLEARLY IMPLIES THAT TIME OF DELIVERY WAS TO BE A FACTOR IN
EVALUATING THE BIDS. THE INVITATION, HOWEVER, CONTAINS NO INDICATION OF
HOW PRICE AND DELIVERY WERE TO BE EQUATED IN AWARDING THE CONTRACT.
INTERESTED BIDDERS COULD NOT KNOW WHETHER TO SACRIFICE PRICE FOR
DELIVERY WITHIN THE DESIRED SCHEDULE (OR THE DESIRED SCHEDULE PLUS 60
DAYS), WHETHER THE PRICE SHOULD BE MINIMIZED REGARDLESS OF DELIVERY
TIME, OR WHETHER SOME COMPROMISE BETWEEN THE TWO FACTORS SHOULD BE
REACHED. THE NET EFFECT OF THE PROVISION AS TO TIME OF DELIVERY WAS TO
PERMIT THE PURCHASING AGENCY TO EVALUATE THE BIDS ON A BASIS DETERMINED
AFTER THE BIDS ARE OPENED. IT COULD HARDLY BE SAID THAT SUCH PROCEDURE
WOULD EFFECTUATE THE PURPOSES OF THE STATUTES GOVERNING PUBLIC
PROCUREMENT.
IN SUPPORT OF THE CONTENTION STATED AT PAGES 5-6 OF YOUR MEMORANDUM
THAT THE RESERVATION OF THE RIGHT TO CONSIDER BIDS EXTENDING THE
DELIVERY TIME MORE THAN 60 DAYS (WITHOUT ANY STATED BASIS OF EVALUATION)
IS LEGALLY UNASSAILABLE, YOU CITE 34 COMP. GEN. 119. THAT CASE INVOLVED
AN INVITATION FOR THE LEASING OF BUILDING SPACE WHICH STATED THAT THE
GOVERNMENT DESIRED THE SPACE IN A GIVEN AREA BUT THAT SPACE IN OTHER
LOCATIONS WOULD BE CONSIDERED, AND THAT LOCATION OF SPACE, ACCESSIBILITY
BY THE PUBLIC AND CONVENIENCE OF TRANSPORTATION WOULD BE FACTORS IN
MAKING AN AWARD.
IT WAS THERE STATED THAT WE WOULD NOT BE DISPOSED TO DISAGREE WITH AN
AWARD OF THE LEASE FOR SPACE OUTSIDE THE DESIRED AREA UPON AN
ADMINISTRATIVE DETERMINATION THAT SUCH SPACE WAS ACCESSIBLE TO THE
PUBLIC AND CONVENIENTLY REACHED BY PUBLIC TRANSPORTATION. WE STATED AT
PAGE 120 THAT UNDER SUCH CIRCUMSTANCES "THERE IS PERCEIVED NO LEGAL
BASIS UPON WHICH THIS OFFICE WOULD BE WARRANTED IN QUESTIONING THIS
ASPECT OF THE BID;, IN THE NEXT SENTENCE OF THE SAME PARAGRAPH WE
ADDED,"AT THE SAME TIME, THERE IS SOME MERIT IN THE ARGUMENT THAT UNDER
THE TERMS OF THE INVITATION THE WAY IS OPEN FOR THE ADMINISTRATIVE
AGENCY TO EVALUATE THE BIDS IN ALMOST ANY MANNER IT CHOOSES;, IN THAT
CASE SOME BASIS FOR EVALUATION OF BIDS OFFERING SITES IN LOCATIONS
OUTSIDE THE DESIRED AREA WAS STATED IN THE INVITATION, I.E.,
ACCESSIBILITY TO THE PUBLIC AND CONVENIENCE OF TRANSPORTATION. IN THE
PRESENT CASE EVEN LESS BASIS FOR EVALUATION WAS PROVIDED. ACCORDINGLY,
AND SINCE 34 COMP. GEN. 119 WAS DECIDED ON OTHER GROUNDS, WE DO NOT
REGARD THAT CASE AS A PRECEDENT ADEQUATE TO SUPPORT THE POSITION THAT
THE PROVISIONS AS TO TIME OF DELIVERY ARE "LEGALLY
UNASSAILABLE" IN THE INSTANT CASE.
SINCE, AS PREVIOUSLY STATED, BIDDERS CANNOT COMPETE ON AN EQUAL BASIS
UNLESS THEY KNOW IN ADVANCE THE BASIS FOR EVALUATING THEIR BIDS, OUR
DECISION OF AUGUST 3, 1956, HOLDING THAT THE AWARD SHOULD BE CANCELLED
MUST BE SUSTAINED. THE FACT THAT TO REQUIRE THE METHOD OF EVALUATING
BIDS TO BE STATED IN THE INVITATION WOULD IMPOSE A BURDEN ON THE
PURCHASING AGENCY WOULD NOT, OF COURSE, AFFECT THE LEGALITY OF AN
INVITATION WHICH PROVIDES NO BASIS FOR EVALUATION. WHILE EASE OF
HANDLING IS A FACTOR WHICH IS OF MAJOR IMPORTANCE TO GOVERNMENT
CONTRACTING AGENCIES, IT CANNOT BE USED TO JUSTIFY ACTIONS CONTRARY TO
THE PURPOSE FOR WHICH THE APPLICABLE STATUTES WERE ENACTED.
YOU CONTEND ALSO THAT, IN ANY EVENT, SAVINGS WOULD ACCRUE TO THE
UNITED STATES IF THE PROCUREMENT WERE CARRIED OUT UNDER THE AWARD TO
REINER IN VIEW OF THE RECENT INCREASE IN THE PRICE OF MATERIALS AND
OTHER CONSIDERATIONS BUT AS WE HAVE STATED MANY TIMES WE FEEL THAT THE
PRESERVATION OF THE COMPETITIVE BIDDING SYSTEM IS MORE BENEFICIAL TO THE
GOVERNMENT FROM A LONG-RANGE STANDPOINT THAN A PECUNIARY SAVING REALIZED
IN AN INDIVIDUAL CASE. YOU ALSO REFER TO OTHER DECISIONS IN WHICH WE
HAVE NOT REQUIRED CANCELLATION OF THE AWARD BUT HAVE DIRECTED THAT THE
PROCEDURE BE AMENDED AS TO FUTURE PROCUREMENTS. WHILE WE HAVE TAKEN
SUCH ACTION IN CERTAIN CASES, WE FEEL THAT THE CIRCUMSTANCES OF THE
PRESENT CASE ARE SUCH THAT A DEPARTURE FROM OUR PREVIOUS DECISION THAT
THE AWARD SHOULD BE CANCELLED WOULD NOT BE WARRANTED.
B-128617, SEP. 17, 1956
TO TORO TURF EQUIPMENT COMPANY:
FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JULY 14, 1956,
PROTESTING THE AWARD OF A CONTRACT PURSUANT TO INVITATION NO.
DA-09-177-56-55 ISSUED AT FORT MCPHERSON, GEORGIA.
IN THE TELEFAX IT WAS STATED THAT SINCE THE PRICE BID ON ITEM 1 BY
YOUR COMPANY WAS THE LOWEST SUBMITTED IT SHOULD HAVE BEEN ACCEPTED. IT
WAS ALSO STATED THAT THE REASONS FOR REJECTING YOUR BID WERE ERRONEOUS
AND UNREASONABLE.
IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE ARMY HAS FURNISHED
A COPY OF THE INVITATION AND A REPORT OF THE FACTS IN THE MATTER OF THE
PROCUREMENT. IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING MOWING
EQUIPMENT TO VARIOUS INSTALLATIONS WITHIN THE THIRD ARMY AREA. TWO BIDS
WERE RECEIVED IN RESPONSE TO THE INVITATION AND AWARD WAS MADE TO THE
EVANS IMPLEMENT COMPANY. ALTHOUGH YOUR COMPANY SUBMITTED A LOWER BID ON
ITEM 1, YOUR BID WAS REJECTED BECAUSE THE EQUIPMENT OFFERED BY YOU DID
NOT MEET THE SPECIFICATIONS. THE DEPARTMENT EXPLAINS THE BASIS FOR ITS
ACTION IN REJECTING YOUR BID AS FOLLOWS:
"3. THE FOLLOWING TECHNICAL AND ECONOMICAL REASONS ARE CONSIDERED
ADEQUATE AND SUFFICIENT TO SUBSTANTIATE REJECTION OF THE LOW BID
SUBMITTED BY TORO TURF EQUIPMENT COMPANY IN THIS INSTANCE.
"A. THE THREE-GANG TORO MOWER WILL CUT AT A HEIGHT OF 2 1/2 INCHES
MAXIMUM. A MAXIMUM HEIGHT OF 3 1/2 INCHES IS REQUIRED FOR GOOD
MANAGEMENT OF GRASSED AREAS.
"B. THE REELS ON THE TORO MOWERS ARE NOT HEAVY DUTY AND DO NOT MEET
SPECIFICATIONS AS TO THICKNESS OF BLADES AND THE IRON SPIDERS AND STEEL
DISC SUPPORTING REEL BLADES ARE NOT CONSTRUCTED TO WITHSTAND ROUGH USE
AS WILL BE REQUIRED IN R AND U GROUNDS MAINTENANCE.
"C. SPARE PARTS SUPPORT FOR WORTHINGTON MOWERS FOR ALL STATION AREAS
IS CONSISTENTLY BETTER THAN THAT PROVIDED FOR TORO EQUIPMENT. SPARE
PARTS FOR THE WORTHINGTON MOWERS (ITEMS 1 AND 2) TO BE SUPPLIED BY EVANS
IMPLEMENT COMPANY ARE INTERCHANGEABLE, THEREBY ELIMINATING THE NECESSITY
OF STOCKAGE OF PARTS FOR TWO DIFFERENT MOWERS.
"D. COMPLETE DELIVERY CAN BE EFFECTED BY EVANS IMPLEMENT COMPANY ON
OR BEFORE 1 AUGUST 1956. THE TORO EQUIPMENT COMPANY CANNOT COMPLETE
DELIVERY ON ALL ITEMS PRIOR TO 1 SEPTEMBER 1956. THE MOWERS ARE
URGENTLY REQUIRED AT THE VARIOUS INSTALLATIONS.
"4. INFORMATION IS ALSO FURNISHED THAT IN THE EVENT THAT THE EVANS
IMPLEMENT COMPANY HAD SUBMITTED A BID FOR MOWERS EQUIPPED WITH STANDARD
REELS (EQUIVALENT TO TORO) INSTEAD OF HEAVY DUTY REELS, THAT COMPANY
WOULD HAVE UNDERBID THE TORO TURF EQUIPMENT COMPANY. THE BIDS SUBMITTED
BY THE EVANS IMPLEMENT COMPANY WERE IN COMPLIANCE WITH THE
SPECIFICATIONS IN THE INVITATION FOR BIDS CALLING FOR HEAVY DUTY REELS.'
THE FACTS CLEARLY SHOW THAT THE CONTRACT WAS AWARDED TO THE EVANS
IMPLEMENT COMPANY ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT
YOUR BID WAS NOT RESPONSIVE TO THE ADVERTISED SPECIFICATIONS IN ALL
MATERIAL RESPECTS. THE CONTRACTING OFFICER NECESSARILY IS VESTED WITH A
CERTAIN AMOUNT OF DISCRETION IN SUCH MATTERS AND, IN THE ABSENCE OF A
CLEAR SHOWING OF BAD FAITH OR COMPLETE DISREGARD OF THE FACTS, WE WOULD
NOT BE WARRANTED IN HOLDING THAT THE ADMINISTRATIVE ACTION WAS ILLEGAL.
IN THE CIRCUMSTANCES, IT IS OUR CONCLUSION THAT THE AWARD TO THE
EVANS IMPLEMENT COMPANY RESULTED IN A BINDING LEGAL OBLIGATION.
B-128644, SEP. 17, 1956
TO BRUNS OIL AND SERVICE COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1956, RELATIVE TO
YOUR CLAIM IN THE AMOUNT OF $150.70, REPRESENTING AN AMOUNT ALLEGED TO
BE DUE BY REASON OF AN INCREASE IN THE PRICE OF FUEL OIL DELIVERED BY
YOU UNDER CONTRACT NO. ASP-10850, DATED OCTOBER 13, 1954. A LETTER
DATED AUGUST 24, 1956, HAS BEEN RECEIVED FROM THE HONORABLE ROBERT MALE,
REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 20, 1956, DENYING
YOUR CLAIM.
AS WE NOTED IN OUR PREVIOUS DECISION TO YOU, ESCALATION CLAUSES SUCH
AS THAT CONTAINED IN THE SUBJECT CONTRACT HAVE CONSISTENTLY BEEN HELD BY
OUR OFFICE TO ESTABLISH CONDITIONS PRECEDENT TO THE CONSIDERATION OF
CLAIMS ASSERTED THEREUNDER. SEE 22 COMP. GEN. 13; 17 ID. 744. SUCH
CONDITIONS MUST BE EXACTLY FULFILLED OR NO LIABILITY CAN ARISE ON THE
PROMISE WHICH THE CONDITIONS QUALIFY. SHEKETOFF V. PREVEDINE, (CONN.),
51 A.2D 922; 171 A.D.R. 1009. PERFORMANCE OF A CONDITION MAY NOT BE
EXCUSED EVEN THOUGH PERFORMANCE BECOMES IMPOSSIBLE BECAUSE OF AN ACT OF
GOD OR ANY OTHER REASON AND EVEN THOUGH SUCH IMPOSSIBILITY AROSE WITHOUT
ANY FAULT ON THE PART OF THE PARTY REQUIRED TO PERFORM THE CONDITION,
MIZELL V. BURNETT, (N.C.), 69 AM. DEC. 744; OAKLEY V. MORTON, (N.Y.),
62 AM. DEC. 49; 12 AM. JUR. 884. IN THE ABSENCE OF THE PRESCRIBED
NOTICE, REGARDLESS OF THE REASON THEREFOR, THE CONTRACT VESTED IN THE
GOVERNMENT THE RIGHT TO OBTAIN THE FUEL OIL AT THE PRICE FIXED BY THE
CONTRACT OR AS LAST MODIFIED IN ACCORDANCE WITH THE ESCALATION
CONDITIONS. NO OFFICER OR AGENT OF THE GOVERNMENT HAS THE AUTHORITY TO
WAIVE SUCH VESTED RIGHT WITHOUT A COMPENSATING BENEFIT TO THE
GOVERNMENT. BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS.
584; PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 C.CLS. 327.
ACCORDINGLY, WE MUST ADVISE YOU THAT THERE IS NO AUTHORITY IN OUR
OFFICE TO ALLOW PAYMENT OF THE REQUESTED INCREASE IN PRICE, AND OUR
PRIOR DECISION MUST THEREFOR BE SUSTAINED.
B-128885, SEP. 17, 1956
TO LIEUTENANT GENERAL LEWIS B. HERSHEY, DIRECTOR, SELECTIVE SERVICE
SYSTEM:
YOUR LETTER OF AUGUST 8, 1956, REQUESTS OUR DECISION WHETHER, IN THE
CIRCUMSTANCES DESCRIBED HEREINAFTER, EMPLOYMENT OF MRS. BETH G. WHITE
BY LOCAL BOARD NO. 33, PROVO, UTAH, AND PAYMENT OF COMPENSATION FOR HER
SERVICES CONSTITUTES A VIOLATION OF THE DUAL COMPENSATION PROHIBITION OF
THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST
29, 1916, 39 STAT. 582, 5 U.S.C. 58.
YOU SAY THAT BY NOTIFICATION OF PERSONNEL ACTION DATED JANUARY 5,
1956, ISSUED BY THE DEPARTMENT OF AGRICULTURE, FARMERS HOME
ADMINISTRATION, SALT LAKE CITY, UTAH, MRS. WHITE WAS REINSTATED,
EFFECTIVE THAT DATE, AS A PART-TIME EMPLOYEE AS A CLERK-TYPIST GS-2
(ASSISTANT COUNTY OFFICE CLERK), $1.67 PER HOUR $3,470 PER ANNUM), WITH
A TOUR OF DUTY OF 20 HOURS PER WEEK TO BE PERFORMED FROM 1 P.M. TO 5
P.M. EACH DAY, MONDAY THROUGH FRIDAY. SUBSEQUENTLY, MRS. WHITE WAS
GIVEN AN EXCEPTED APPOINTMENT EFFECTIVE MAY 28, 1956, AS A CERK
UNCLASSIFIED, $2,960 PER NUM,"WHEN ACTUALLY EMPLOYED" WITH LOCAL BOARD
NO. 33, UTAH COUNTY, PROVO, UTAH; "AGGREGATE COMPENSATION NOT TO EXCEED
$1,100 PER ANNUM.' YOUR QUESTION IS WHETHER PART-TIME AND W.A.E.
EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM MAY ALSO SECURE PART-TIME OR
W.A.E. EMPLOYMENT WITH OTHER AGENCIES OF THE FEDERAL GOVERNMENT AND
RECEIVE COMPENSATION FOR THEIR EMPLOYMENT AS LONG AS THERE IS NO
CONFLICT OF DUTIES OR HOURS OF EMPLOYMENT.
SECTION 6 OF THE ACT OF MAY 10, 1916, SUPRA, PROVIDES IN PART AS
FOLLOWS:
"THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW NO MONEY
APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO
ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF
SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, * * * "
THE BASIC RULE TO BE APPLIED IS WELL STATED IN 8 COMP. GEN. 261:
"* * * THE LIMITATION IN THE STATUTES OF 916, SUPRA, HAS REFERENCE TO
THE RATE OF THE COMBINED SALARIES RATHER THAN TO THE AGGREGATE AMOUNT
RECEIVED DURING THE YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS
AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER
POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY
THE STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS
BASED, WHETHER PER ANNUM, PER DIEM, PER HOUR, OR PIECEWORK IF THE
REMUNERATION CONSTITUTES SALARY AS DISTINGUISHED FROM FEES. * * *"
THE ONLY CLASSIFICATION OF EMPLOYMENT NOT SUBJECT TO THE PROHIBITION
OF THE 1916 ACT, WHERE A SALARY IS THE METHOD OF COMPENSATION, IS
PART-TIME OR INTERMITTENT EMPLOYMENT WHERE THE COMPENSATION IN BOTH
POSITIONS IS PAYABLE ONLY "WHEN ACTUALLY EMPLOYED.' SEE 15 COMP. GEN.
751; A-92859, DATED MARCH 4, 1938.
AN APPOINTMENT TO A POSITION WITH PART-TIME EMPLOYMENT, BUT WITH A
REGULAR TOUR OF DUTY, AND COMPENSATION NOT LIMITED TO "WHEN ACTUALLY
EMPLOYED" IS SUBJECT TO THE LIMITATION OF THE 1916 ACT EVEN THOUGH THE
OTHER POSITION IS ON A W.A.E. BASIS. SEE DECISION B-55503 DATED MARCH
28, 1946; 18 COMP. GEN. 614.
IN 11 COMP. GEN. 200 WE HELD THAT THE EMPLOYMENT ON DIFFERENT DAYS OF
THE SAME PERSON IN TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS
OF THE GOVERNMENT DOES NOT VIOLATE THE 1916 ACT IF THE EMPLOYEE CANNOT
POSSIBLY RECEIVE AN AGGREGATE COMPENSATION IN EXCESS OF $ 2,000. LATER
DECISIONS ADHERE TO THE SAME PRINCIPLE. SEE 18 COMP. GEN. 614, 20
COMP. GEN. 407. IN THE FORMER CASE, THE RULE THAT IS DETERMINATIVE OF
MRS. WHITE'S SITUATION IS SET FORTH:
"* * * UNLESS THE TERMS OF THE APPOINTMENTS * * * SO LIMITED THE
NUMBER OF HOURS OF SERVICE PER DAY OR DAYS OF SERVICE PER YEAR AS TO FIX
THE ANNUAL RATE OF COMPENSATION AT AN AMOUNT WHICH, TOGETHER WITH THE
RATE OF COMPENSATION FOR THE (OTHER) POSITION * * * WOULD NOT EXCEED
$2,000, PAYMENT OF SALARY OR COMPENSATION UNDER BOTH POSITIONS IS NOT
AUTHORIZED.'
APPLYING THE PRINCIPLES OF THE ABOVE-QUOTED DECISIONS TO THE FACTS AS
REPORTED HERE, THERE SEEMS NO DOUBT BUT THAT PAYMENTS TO MRS. WHITE FOR
WORK PERFORMED AS A CLERK FOR LOCAL BOARD NO. 33 IN ADDITION TO HER
SALARY AS ASSISTANT COUNTY OFFICE CLERK, COVERING THE SAME PERIOD, WOULD
CONSTITUTE DUAL SALARIES AT A COMBINED RATE OF MORE THAN $2,000 PER
ANNUM AND, AS SUCH, WOULD BE IN CONTRAVENTION OF THE 1916 ACT.
B-128913, SEP. 17, 1956
TO BRIGADIER GENERAL JOHN W. N. SCHULZ (RETIRED):
REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1956, CONCERNING
YOUR CLAIM AS FATHER AND THAT OF ETTIE L. SCHULZ AS MOTHER FOR THE SIX
MONTHS' DEATH GRATUITY BELIEVED TO BE DUE IN THE CASE OF YOUR LATE SON,
JOHN W. N. SCHULZ, JR., WHO DIED MARCH 21, 1941, WHILE SERVING AS SECOND
LIEUTENANT, UNITED STATES ARMY.
IN YOUR ORIGINAL CLAIM, AS CONTAINED IN YOUR LETTER OF AUGUST 12,
1955, RECEIVED IN OUR OFFICE ON DECEMBER 7, 1955, FROM THE DEPARTMENT OF
THE ARMY, YOU STATED THAT A CLAIM FOR THE GRATUITY WAS NOT MADE AT THE
TIME OF THE DEATH OF YOUR SON SINCE PARENTS WERE NOT ELIGIBLE
BENEFICIARIES OF THE GRATUITY EXCEPT IN CASES INVOLVING ACTUAL
DEPENDENCY OF THE PARENTS AND THAT IT WAS YOUR UNDERSTANDING THAT THE
LAW WAS SUBSEQUENTLY CHANGED SO AS TO ESTABLISH ELIGIBILITY OF PARENTS
FOR THE GRATUITY REGARDLESS OF ACTUAL DEPENDENCY. BY LETTER DATED MARCH
9, 1956, OUR CLAIMS DIVISION ADVISED YOU THAT THE ACT OF DECEMBER 17,
1919, 41 STAT. 367, LIMITING THE PAYMENT OF THE GRATUITY TO THE WIDOW,
CHILDREN, OR OTHER DESIGNATED DEPENDENT RELATIVES, WAS AMENDED BY THE
ACT OF DECEMBER 17, 1943, 57 STAT. 599, TO AUTHORIZE THE SECRETARY OF
WAR (NOW THE SECRETARY OF THE ARMY) TO MAKE A DETERMINATION AS TO THE
DEPENDENT RELATIVE ENTITLED TO THE GRATUITY WHERE THE DECEDENT WAS NOT
SURVIVED BY A WIDOW, CHILDREN, OR PREVIOUSLY DESIGNATED BENEFICIARY.
YOU WERE FURTHER ADVISED, HOWEVER, THAT SUCH AMENDMENT WAS NOT FOR
CONSIDERATION IN YOUR CASE SINCE YOUR CLAIM WAS NOT FILED IN THE GENERAL
ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE CLAIM ACCRUED AS
REQUIRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.
IN YOUR LETTER OF AUGUST 7, 1956, IT IS URGED, SINCE YOU SERVED IN
THE MILITARY FORCES OF THE UNITED STATES UNTIL NOVEMBER 30, 1946, THAT
THE CLAIM BE ALLOWED ON THE BASIS OF THE PROVISO IN THE ACT OF OCTOBER
9, 1940, 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 ITS ACCRUAL, SUCH CLAIM MAY
BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.
RESPECTING THE CLAIM OF THE MOTHER OF THE DECEDENT, YOU ARE ADVISED
THAT THE PROVISO OF THE ACT OF OCTOBER 9, 1940, UNDER ITS PLAIN TERMS,
RELATES TO CLAIMS OF PERSONS SERVING IN THE MILITARY OR NAVAL FORCES OF
THE UNITED STATES. IT IS ASSUMED THAT SHE HAS HAD NO SUCH SERVICE SINCE
THE CLAIM ACCRUED IN 1941, AND, HENCE, THE PROVISO IS NOT FOR
APPLICATION IN HER CASE.
AS TO YOUR CLAIM, YOU ARE ADVISED THAT SECTION 205 OF THE SOLDIERS'
AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. APP. 525, REQUIRES
THE EXCLUSION OF ALL PERIODS OF MILITARY SERVICE WHEN COMPUTING PERIODS
LIMITED BY LAW AND, THEREFORE, YOUR CLAIM IS NOT BARRED BY THE 1940 ACT.
THERE IS NO EVIDENCE, HOWEVER, THAT THE SECRETARY OF THE ARMY HAS
DESIGNATED YOU AS A DEPENDENT RELATIVE TO RECEIVE THE GRATUITY. UNDER
THE EXPRESS PROVISIONS OF THE ACT OF DECEMBER 17, 1943, THE QUESTION
WHETHER THE FATHER IS A "DEPENDENT RELATIVE" WITHIN THE CONTEMPLATION OF
THE GRATUITY STATUTE IS SOLELY FOR DETERMINATION BY THE SECRETARY OF THE
ARMY. HENCE, UNLESS AND UNTIL IT BE DETERMINED BY THE SECRETARY OF THE
ARMY THAT YOU ARE A PROPER DEPENDENT RELATIVE TO RECEIVE THE SIX MONTHS'
DEATH GRATUITY, NO FURTHER CONSIDERATION MAY BE GIVEN TO YOUR CLAIM FOR
SUCH GRATUITY.
ANY FURTHER INQUIRY IN THAT RESPECT SHOULD BE ADDRESSED TO THE
SECRETARY OF THE ARMY.
B-128928, SEP. 17, 1956
TO P AND Z COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1956,
PROTESTING THE AWARD OF CONTRACTS UNDER BID INVITATION NO.
(IFB/-05-613-56-28 FOR THE CONSTRUCTION OF FOUNDATION SUB-PIERS FOR THE
ACADEMIC COMPLEX AND THE CADET QUARTERS COMPLEX OF THE AIR FORCE
ACADEMY.
THE REPORT OF THE DEPARTMENT OF THE AIR FORCE INDICATES THAT BIDS
WERE OPENED ON JULY 24, 1956.
SIX BIDS WERE RECEIVED. A. R. BECK COMPANY SUBMITTED A BID OF
$178,955 FOR ITEM NO. 1, $205,876 FOR ITEM NO. 2, AND $369,625 FOR ITEMS
NOS. 1 AND 2 COMBINED. SAXTET FOUNDATION COMPANY SUBMITTED A BID OF
$246,150 FOR ITEM NO. L, $156,070 FOR ITEM NO. 2, AND $362,366 FOR ITEMS
1 AND 2 COMBINED. YOUR COMPANY SUBMITTED A BID OF $ 206,666 FOR ITEM
NO. 1, $ 166,666 FOR ITEM NO. 2, AND $ 362, 366 FOR ITEMS 1 AND 2
COMBINED.
AFTER THE BIDS HAD BEEN OPENED AND READ AND BEFORE AN AWARD HAD BEEN
MADE, THE AIR FORCE CONTRACT OFFICER AND HIS REPRESENTATIVES NOTED THAT
A MISTAKE MIGHT HAVE BEEN MADE IN THE BECK COMPANY'S BID SINCE IT
CONTAINED A HIGHER PRICE FOR ITEM NO. 1 THAN ITEM NO. 2, WHEREAS ALL
OTHER BIDDERS QUOTED A LOWER PRICE FOR ITEM NO. 1, AND, FURTHERMORE,
THEY WERE AWARE THAT THE PROJECT ENGINEER HAD ESTIMATED THAT THE FIRST
ITEM ENTAILED A GREATER QUANTITY OF WORK THAN THE SECOND. THE APPARENT
DISCREPANCY WAS POINTED OUT TO THE REPRESENTATIVE OF THE BECK COMPANY
WHO IMMEDIATELY ALLEGED THAT A MISTAKE HAD BEEN MADE AND IN SUPPORT OF
THAT POSITION PRODUCED ORIGINAL WORKSHEETS WHICH SHOWED CLEARLY THAT THE
PRICES FOR ITEMS 1 AND 2 HAD BEEN TRANSPOSED ON THE BID. ON THE SAME
DAY, THE BECK COMPANY SUBMITTED A LETTER TO THE CONTRACTING OFFICER
EXPLAINING THAT THE SPECIFICATIONS ENTITLED,"FOUNDATIONS, CADET QUARTERS
COMPLEX, ACADEMIC COMPLEX," DATED JUNE 22, 1956, LISTED THE CADET
QUARTERS COMPLEX FIRST AND THE ACADEMIC COMPLEX SECOND. THE LETTER
EXPLAINED THAT THE BECK COMPANY BEGAN TO CARRY THE ORDER OF THE WORK IN
THE SAME SEQUENCE SHOWN IN THE SPECIFICATIONS AND CONTINUED THAT
SEQUENCE IN COMPUTING THEIR BID. THROUGH INADVERTENCE WHEN THEY ENTERED
THE AMOUNTS IN THE BID FORM THE SAME SEQUENCE WAS CONTINUED AND THE
PRICE FOR THE CADET QUARTERS COMPLEX WAS INSERTED AFTER ITEM NO. 1
INSTEAD OF THE PRICE INTENDED FOR THE ACADEMIC COMPLEX AS CALLED FOR BY
THE INVITATION.
ON THE BASIS OF THE FACTS SET OUT ABOVE, PERMISSION WAS GRANTED TO
THE BECK COMPANY TO CORRECT THE BID BY TRANSPOSING THE PRICES ORIGINALLY
SUBMITTED FOR ITEMS 1 AND 2. SINCE BECK'S BID FOR ITEM NO. 1 REMAINED
THE LOWEST BID, AWARD WAS MADE TO THEM FOR THAT PORTION OF THE WORK.
YOU PROTESTED THE AWARD TO THE BECK COMPANY ON THE BASIS THAT THE
ERROR MADE WAS NOT "OBVIOUS OR APPARENT" AND THEREFORE THE CORRECTION
SHOULD NOT HAVE BEEN PERMITTED.
THE GENERAL RULE APPLICABLE IN THIS TYPE OF SITUATION IS THAT A
BIDDER MAY NOT FREELY CHANGE HIS BID AFTER THE DATE OF OPENING TO THE
PREJUDICE OF OTHER BIDDERS. NEVERTHELESS, THE STATUTES REQUIRING
ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST
RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING
BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS
PROCUREMENT ACTIVITIES. THEREFORE, IT HAS BEEN HELD CONSISTENTLY THAT
WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER OPENING OF BIDS AND BEFORE
AWARD, AND THERE IS PRESENTED IMMEDIATELY CONVINCING EVIDENCE SHOWING
THAT A MISTAKE WAS MADE, WHAT IT CONSISTS OF, HOW IT OCCURRED, AND WHAT
THE BID PRICES WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF
THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED, SO
THAT IF THE CORRECTED BID IS THE LOWEST RESPONSIBLE BID RECEIVED, THE
GOVERNMENT MAY HAVE THE BENEFIT OF IT. THIS PRINCIPLE IS NOT
REGARDED AS PREJUDICIAL TO OTHER BIDDERS SINCE ITS APPLICABILITY
DEPENDS ON THE CLEAR ESTABLISHMENT OF THE BID WHICH WAS ACTUALLY
INTENDED AND WOULD HAVE BEEN SUBMITTED EXCEPT FOR THE ERROR; AND,
CONSEQUENTLY, THE BIDDER GAINS NO ADVANTAGE FROM HIS KNOWLEDGE OF OTHER
BIDS SUBMITTED
AS HE WOULD IF THE REQUIREMENT WERE READVERTISED.
IN THE INSTANT CASE, THE IMMEDIATE NOTIFICATION TO THE CONTRACTING
OFFICER OF THE ALLEGED ERROR AND THE SIMULTANEOUS PRODUCTION OF THE
WORKSHEETS IN SUPPORT OF THE ALLEGATION APPEAR TO PRECLUDE ANY DOUBT OF
THE ERROR OR THE PRICE INTENDED TO BE BID.
WHILE THE MISTAKE INVOLVED WAS NOT, STRICTLY SPEAKING, AN OBVIOUS
CLERICAL ERROR OF THE KIND WHICH CONTRACTING OFFICERS ARE AUTHORIZED TO
CORRECT WITHOUT SUBMISSION TO HIGHER AUTHORITY, WE ARE SATISFIED FROM
THE RECORD THAT THE ACTION TAKEN WAS WHAT WOULD HAVE BEEN DIRECTED HAD
THE MATTER BEEN REFERRED TO US FOR ADVANCE DECISION. WE THEREFORE
PERCEIVE NO PROPER BASIS UPON WHICH WE COULD OBJECT TO THE ACCEPTANCE OF
THE CORRECTED BID OF THE A. R. BECK FOUNDATION COMPANY.
AS TO YOUR FURTHER COMPLAINT THAT THE SEPARATE AWARD OF ITEMS 1 AND 2
TO THE CONTRACTORS, AT A PRICE ONLY $ 720 LESS THAN YOUR BID FOR THE
COMBINED WORK, WAS NOT JUSTIFIED, YOU ARE ADVISED THAT THE DETERMINATION
OF WHICH COURSE OF ACTION IS IN THE BEST INTERESTS OF THE GOVERNMENT IS
A MATTER WITHIN THE SOUND DISCRETION OF THE ADMINISTRATIVE AGENCY. IN
THE ABSENCE OF CLEAR AND FLAGRANT ABUSE, WHICH DOES NOT HERE APPEAR, WE
CANNOT UNDERTAKE TO INTERFERE WITH SUCH
B-128951, SEP. 17, 1956
TO THE SANITARY DISTRICT OF ROCKFORD:
REFERENCE IS MADE TO LETTER OF JULY 19, 1956, FROM YOUR DISTRICT
ENGINEER, IN EFFECT, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 18,
1956, WHICH DISALLOWED A BALANCE OF $505 ALLEGED TO BE DUE FOR CERTAIN
SEWAGE DISPOSAL SERVICES FURNISHED AT CAMP GRANT, ILLINOIS, AFTER
APPLYING A PRIOR OVERPAYMENT OF $350 BY THE UNITED STATES FOR SIMILAR
SERVICES FURNISHED DURING THE MONTH OF JUNE 1946, UNDER CONTRACT NO.
W-6116-QM-4, AS STATED IN OUR DEMAND LETTER DATED JULY 6, 1956.
THERE APPEARS TO BE NO DISPUTE AS TO THE REPORTED OVERPAYMENT OF $350
MADE TO YOU ON VOUCHER NO. 14973, JULY 1946 ACCOUNTS OF COLONEL JOHN L.
SCOTT, F.D. HOWEVER, WITH REGARD TO THE AMOUNT OF $855 CLAIMED TO BE
DUE YOU FOR SEWAGE CHARGES, THE FILE CONTAINS A COPY OF YOUR BILL DATED
APRIL 29, 1949, ON WHICH YOU LISTED THE FOLLOWING ITEMS: (1) BILLED
FEBRUARY 1, 1948--- $435; (2) ONE YEAR AT THE MINIMUM CHARGE OF $30 PER
MONTH--- $360; AND (3) TWO MONTHS (MARCH AND APRIL 1949) AT $30 PER
MONTH--- $60.
YOUR CLAIM FOR THE CHARGES BILLED BY YOU WAS DISALLOWED BECAUSE THE
CHARGES COVERED A PERIOD SUBSEQUENT TO THE CONVEYANCE BY THE GOVERNMENT
IN 1947 OF A CONSIDERABLE PORTION OF THE AREA COMPRISING CAMP GRANT,
WHICH INCLUDED, AMONG OTHER THINGS, THE SEWAGE DISPOSAL SYSTEM, TO THE
GREATER ROCKFORD AIRPORT AUTHORITY FOR USE AS AN AIRPORT. IN THE LETTER
REQUESTING REVIEW, REFERENCE IS MADE TO THE INSTRUMENTS OF CONVEYANCE,
COPIES OF WHICH ARE ON FILE IN OUR OFFICE, AND IT IS STATED THAT THE
BILLING IN QUESTION ACCRUED PRIOR TO THE DATE OF SUCH TRANSFER. IT IS
NOTED FROM YOUR STATEMENTS THAT THE GREATER ROCKFORD AIRPORT AUTHORITY
ACCEPTED THE CONVEYANCE AS OF NOVEMBER 25, 1947, AND YOU APPARENTLY
CONCEDE THAT THE GOVERNMENT IS NOT OBLIGATED TO PAY FOR SEWAGE DISPOSAL
SUBSEQUENT TO THE DATE OF TRANSFER OF THE LAND. THUS THE MATTER
RESOLVES ITSELF INTO A QUESTION AS TO WHETHER THE AMOUNT OF $855 CLAIMED
COVERS A PERIOD PRIOR TO THE CONVEYANCE BY THE GOVERNMENT OF THE LAND TO
THE GREATER ROCKFORD AIRPORT AUTHORITY.
IT WILL BE NOTED FROM YOUR ITEMIZATION APPEARING ON THE BILL OF APRIL
29, 1949, THAT THE AMOUNT OF $60 FOR MARCH AND APRIL 1949 WOULD NOT BE A
VALID CHARGE AGAINST THE GOVERNMENT. PRESUMABLY THE SECOND ITEM OF $360
ON THIS BILL COVERS THE YEAR IMMEDIATELY PRIOR TO MARCH 1949, OR FROM
MARCH 1, 1948, TO FEBRUARY 28, 1949. THE BALANCE OF $435 CLAIMED IS
MERELY LISTED AS "BILLED FEBRUARY 1, 1948" AND NO SHOWING HAS BEEN MADE
AS TO WHAT PERIOD THIS CHARGE COVERS. THUS INSOFAR AS THE RECORDS OF
OUR OFFICE ARE CONCERNED, THERE IS NO BASIS FOR CONCLUDING THAT THE
AMOUNT OF $855 IS A PROPER CHARGE AGAINST THE GOVERNMENT AND AGAINST
WHICH THE ACKNOWLEDGED OVERPAYMENT OF $350 MAY BE SET OFF.
ACCORDINGLY, UPON THE PRESENT RECORD THE ACTION TAKEN BY OUR OFFICE
IN THE SETTLEMENT OF MAY 18, 1956, AND THE DEMAND LETTER OF JULY 6,
1956, IS SUSTAINED.
B-128985, SEP. 17, 1956
TO MR. LAWRENCE N. PATTERSON:
YOUR LETTER OF AUGUST 1, 1956, REQUESTS REVIEW OF SETTLEMENT DATED
JULY 18, 1956, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE
PERIOD JUNE 6 TO SEPTEMBER 22, 1955.
BY ORDERS DATED JUNE 1, 1955, YOU WERE ASSIGNED TO INDIANTOWN GAP
MILITARY RESERVATION, PENNSYLVANIA, ON TEMPORARY DUTY. YOU WERE
DIRECTED TO REPORT WITH NECESSARY CLOTHING AND EQUIPMENT FOR FIELD-TYPE
DUTY. YOUR CLAIM FOR PER DIEM FOR THE PERIOD OF THAT DUTY WAS
DISALLOWED
FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS DO NOT AUTHORIZE PE
DIEM FOR PERIODS OF FIELD DUTY.
IN YOUR LETTER YOU ADMIT THAT THE ORDERS OF JUNE 1, 1955, PROHIBIT
THE PAYMENT OF PER DIEM; HOWEVER, YOU SAY THE ORDERS ARE ERRONEOUS FOR
THE REASON THAT AFTER ARRIVAL AT YOUR PLACE OF TEMPORARY DUTY YOU WERE
ORDERED TO AND DID PERFORM NORMAL STATION-TYPE TEMPORARY DUTY. IT
APPEARS TO BE YOUR CONTENTION THAT THE DUTY YOU PERFORMED ENTITLES YOU
TO PER DIEM. HOWEVER, THE HEADQUARTERS WHERE YOU PERFORMED THE DUTY IN
QUESTION HAS REFUSED TO CERTIFY THAT YOU DID NOT PERFORM FIELD DUTY
DURING THE PERIOD OF YOUR CLAIM.
GENERALLY PER DIEM IS AUTHORIZED, UNDER THE PROVISIONS OF THE JOINT
TRAVEL REGULATIONS, FOR PERFORMANCE OF TEMPORARY DUTY. SEE PARAGRAPHS
4200 AND 4201 FOR THE AUTHORIZATION AND THE EXCEPTIONS. TEMPORARY DUTY
IS DEFINED (PARAGRAPH 3003-2) AS DUTY AT A LOCATION OTHER THAN A
PERMANENT STATION TO WHICH A MEMBER IS ORDERED TO TEMPORARY DUTY UNDER
ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A NEW STATION OR FOR
RETURN TO THE OLD PERMANENT STATION.
YOU HAVE SUBMITTED NO ORDERS DIRECTING YOU TO PERFORM TEMPORARY DUTY
OF A TYPE WHICH WOULD GIVE RISE TO A RIGHT TO PER DIEM, IT BEING
EXPRESSLY PROVIDED THAT PER DIEM IS NOT PAYABLE FOR FIELD DUTY, AND
HENCE YOU HAVE FAILED TO MEET THE FIRST AND BASIC CONDITION NECESSARY TO
ESTABLISH A RIGHT TO SUCH AN ALLOWANCE. ALSO, FROM THE INFORMATION YOU
HAVE SUBMITTED IT SEEMS CLEAR THAT NO SUCH ORDERS ACTUALLY WERE
PREPARED.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, IT IS NOT
ESTABLISHED THAT YOU ARE ENTITLED TO PER DIEM DURING THE PERIOD OF YOUR
CLAIM AND THE SETTLEMENT OF JULY 18, 1956, IS SUSTAINED.
B-128994, SEP. 17, 1956
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO LETTER DATED AUGUST 14, 1946, FROM THE
ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, TRANSMITTING A COPY
OF A REPORT ON AN INVESTIGATION CONDUCTED BY YOUR DEPARTMENT OF GASOLINE
AND OIL PURCHASES ON AN EXPIRED GOVERNMENT CREDIT CARD BY, AND FOR THE
PERSONAL USE OF, RAYMOND BARRONE, A WAE EMPLOYEE OF THE BUREAU OF INDIAN
AFFAIR, ANADARKO, OKLAHOMA. OUR DECISION IS REQUESTED AS TO WHETHER, IN
THE LIGHT OF THE FACTS HEREINAFTER STATED, ANY PART OF THE EMPLOYEE'S
FUNDS WHICH ARE NOW HELD BY THE BUREAU OF INDIAN AFFAIRS MAY BE PAID TO
THE TEXAS COMPANY TO COVER TRANSACTIONS OF BARRONS WHICH WERE BILLED TO
THE BUREAU BUT DISALLOWED BECAUSE OF THE IRREGULARITIES.
IT APPEARS FROM THE RECORD THAT THE REPORTED IRREGULAR PURCHASES
OCCURRED DURING THE PERIOD JULY 1 THROUGH DECEMBER 11, 1955, AND WERE
FIRST NOTED ON DECEMBER 16, 1955, BY THE AREA ROAD ENGINEER, LAWRENCE C.
BERNARD, WHEN HE EXAMINED THE TEXAS COMPANY INVOICES FOR THE MONTH
ENDING DECEMBER 1. MR. BARRONE, UPON BEING CONFRONTED WITH THE INVOICES
WHICH INCLUDED 11 IRREGULAR PURCHASES TOTALLING $28.35, PAID THAT AMOUNT
IN CASH TO THE AREA ROAD ENGINEER. THIS PAYMENT WAS TURNED IN TO THE
AREA OFFICE. THE VENDOR VOUCHERS COVERING THESE PURCHASES WERE
DISALLOWED BY THE BUREAU BECAUSE OF THE IRREGULARITIES. DISCOVERY OF
THESE UNAUTHORIZED PURCHASES LED TO AN AUDIT OF THE VOUCHERS PAID TO THE
TEXAS COMPANY SINCE JULY 1, 1955, WHICH REVEALED THAT $115.97 HAD BEEN
PAID BY THE BUREAU TO THE TEXAS COMPANY FOR IRREGULAR PURCHASES OF
GASOLINE AND OIL BY BARRONE. THE TEXAS COMPANY STATEMENT FOR THE MONTH
ENDING JANUARY 4, 1956, INCLUDED THREE INVOICES FOR UNAUTHORIZED
PURCHASES BY BARRONE AMOUNTING TO $9.43, AND PAYMENT THEREFOR WAS NOT
MADE BY THE BUREAU. ON FEBRUARY 1, 1956, BARRONE WAS ADVISED BY WATSON
S. GARDNER, HIGHWAY CONSTRUCTION AND MAINTENANCE ENGINEER, THAT
ADDITIONAL INVOICES BEARING HIS NAME HAD BEEN DISCOVERED AND HE WAS
REQUESTED TO ENDORSE HIS SALARY CHECK OVER TO THE BUREAU TO PAY FOR
THESE ADDITIONAL PURCHASES. BARRONE ENDORSED THE SALARY CHECK IN THE
AMOUNT OF $109.37, AS REQUESTED IN ADDITION TO THE CASH REMITTANCE
($28.35) AND ENDORSED CHECK ($109.37), UNPAID SALARY IN THE AMOUNT OF
$27.28 HAS BEEN IMPOUNDED FOR THE PROTECTION OF THE GOVERNMENT, MAKING A
TOTAL OF $165.
IT IS STATED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT
IT HAS BEEN DETERMINED THAT THE BUREAU IS ENTITLED TO REIMBURSEMENT FROM
THE IMPOUNDED FUNDS FOR UNAUTHORIZED PURCHASES PAID BY IT TO THE VENDOR
TO THE EXTENT OF $115.97. IN REGARD TO THE BALANCE OF IMPOUNDED FUNDS,
IT IS STATED THAT IT HAS BEEN RECOMMENDED THAT A PAYMENT OF $37.78
SHOULD BE MADE TO THE TEXAS COMPANY TO COVER THESE TRANSACTIONS OF
BARRONE WHICH WERE DISALLOWED BEFORE PAYMENT BY THE BUREAU.
IT IS FURTHER STATED THAT YOUR DEPARTMENT IS RELUCTANT TO ACT
AFFIRMATIVELY UPON THIS PROPOSAL BECAUSE SUCH A PAYMENT WOULD REQUIRE
DIVERSION OF A PART, AT LEAST, OF WITHHELD SALARY. DOUBT IS ALSO
EXPRESSED CONCERNING THE USE OF THE CASH WHICH BARRONE PAID TO THE
BUREAU.
WHILE ORDINARILY THE UNITED STATES WILL NOT ACT AS AN AGENT OR
TRUSTEE FOR THE COLLECTION OF PRIVATE DEBTS, THE CIRCUMSTANCES UNDER
WHICH THE PAYMENT BY ENDORSED CHECK AND CASH REMITTANCE WERE MADE APPEAR
TO CONSTITUTE SUFFICIENT JUSTIFICATION FOR PAYMENT TO THE TEXAS COMPANY
OF THE AMOUNT DISALLOWED BY THE BUREAU. HERE, THE EMPLOYEE VOLUNTARILY
SUBMITTED A CASH REMITTANCE AND ENDORSED HIS SALARY CHECK TO BE APPLIED
TOWARD PURCHASES OF GASOLINE AND OIL EVIDENCED BY INVOICES, SOME OF
WHICH HAD BEEN PAID BY THE BUREAU TO THE VENDOR AND OTHERS WHICH HAD
BEEN DISALLOWED. UNDER THESE CIRCUMSTANCES, THERE WOULD NOT APPEAR TO
BE INVOLVED A DIVERSION OF SALARY WITHIN THE MEANING OF SECTION 3477,
REVISED STATUTES, 31 U.S.C. 203, WHICH PROHIBITS THE ASSIGNMENT OF ANY
CLAIMS AGAINST THE UNITED STATES, OR SECTION 3620, REVISED STATUTES, 31
U.S.C. 492, WHICH REQUIRES DISBURSING OFFICERS OF THE GOVERNMENT TO PAY
PUBLIC MONEYS ONLY IN FAVOR OF THE PERSON TO WHOM PAYMENT IS DUE.
ACCORDINGLY, AND SINCE THERE IS NO QUESTION AS TO THE AUTHORITY OF THE
BUREAU TO WITHHOLD FROM THE UNPAID SALARY AN AMOUNT SUFFICIENT WHEN
ADDED TO THE BALANCE OF THE PAYMENT BY CHECK ENDORSEMENT TO MEET
BARRONE'S INDEBTEDNESS TO THE BUREAU, NO OBJECTION WILL BE INTERPOSED BY
OUR OFFICE TO A PAYMENT OF $37.78 TO THE TEXAS COMPANY.
B-129051, SEP. 17, 1956
TO MR. ROBERT I. GAINES:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1956, RELATIVE TO YOUR
INDEBTEDNESS TO THE UNITED STATES ARISING FROM AN APPARENT OVERPAYMENT
OF PER DIEM FOR THE PERIOD APRIL 6 TO 30, 1944, WHILE YOU WERE SERVING
AS SECOND LIEUTENANT, ARMY AIR CORPS.
BY ORDERS DATED APRIL 5, 1944, UPON COMPLETION OF A COURSE OF
INSTRUCTION AT ARMY AIR FORCE TECHNICAL SCHOOL, YALE UNIVERSITY, NEW
HAVEN, CONNECTICUT, YOU WERE TRANSFERRED TO BOCA RATON ARMY AIR FIELD,
BOCA RATON, FLORIDA, WITH TEMPORARY DUTY EN ROUTE AT HARVARD UNIVERSITY,
CAMBRIDGE, MASSACHUSETTS. SINCE THE ORDERS DID NOT PROVIDE FOR THE
PAYMENT OF A PER DIEM ALLOWANCE FOR SUCH TEMPORARY DUTY, WE TOOK
EXCEPTION TO THE PAYMENT TO YOU OF PER DIEM FOR THE PERIOD OF TEMPORARY
DUTY AND RELATED TRAVEL. THOSE ORDERS WERE AMENDED BY ORDERS DATED
SEPTEMBER 21, 1944, TO PROVIDE FOR PER DIEM FOR THE TRAVEL AND TEMPORARY
DUTY. THE AMENDATORY ORDERS CONTAIN A STATEMENT THAT BECAUSE OF A
CLERICAL ERROR THE ORIGINAL ORDERS DID NOT CONTAIN A PROVISION FOR
PAYMENT OF PER DIEM WHILE YOU WERE ON TEMPORARY DUTY AT HARVARD
UNIVERSITY, AND THERE HAS BEEN FURNISHED A SEPARATE ADMINISTRATIVE
EXPLANATION OF HOW THE ERROR OCCURRED. BASED ON ALL THE INFORMATION NOW
AVAILABLE, IT APPEARS THAT THE ORDERS WERE AMENDED TO SHOW THE ORIGINAL
INTENT AND HENCE, IT IS CONCLUDED THAT THE PAYMENT WAS AUTHORIZED.
ACCORDINGLY, THE DEBT CHARGE AGAINST YOU WILL BE CANCELED.
B-129139, SEP. 17, 1956
TO MR. THOMAS L. MCCLELLAND:
YOUR LETTER OF AUGUST 22, 1956, REQUESTS A REVIEW OF OUR OFFICE
SETTLEMENT DATED JUNE 18, 1956, WHICH DISALLOWED YOUR CLAIM FOR
REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THE SHIPMENT OF YOUR
HOUSEHOLD EFFECTS FROM PHILADELPHIA, PENNSYLVANIA, TO FANWOOD, NEW
JERSEY, UPON A PERMANENT CHANGE OF STATION.
THE RECORD INDICATES THAT THE TRAVEL OF YOURSELF AND YOUR FAMILY AND
THE TRANSPORTATION OF YOUR HOUSEHOLD AND PERSONAL EFFECTS WERE
AUTHORIZED BY NOTIFICATION OF PERSONNEL ACTION DATED DECEMBER 5, 1952,
INCIDENT TO CHANGE OF YOUR OFFICIAL STATION FROM PHILADELPHIA,
PENNSYLVANIA, TO NEW YORK, NEW YORK, EFFECTIVE DECEMBER 7, 1952, IN
ACCORDANCE WITH EXECUTIVE ORDER 9805, AS AMENDED.
IT IS SHOWN THAT THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS WEIGHING
11,960 POUNDS, TO FANWOOD, NEW JERSEY, DID NOT BEGIN UNTIL MARCH 14,
1956, OR APPROXIMATELY 39 MONTHS SUBSEQUENT TO THE EFFECTIVE DATE OF
YOUR TRANSFER. YOUR CLAIM FOR $281.40 WAS DISALLOWED BY THE SETTLEMENT
OF JUNE 18, 1956, FOR THE REASON THAT SUCH TRANSPORTATION WAS NOT BEGUN
WITHIN THE TWO-YEAR TIME LIMIT IMPOSED BY SECTION 5 OF EXECUTIVE ORDER
NO. 9805, AS AMENDED. THAT SECTION READS, IN PERTINENT PART, AS
FOLLOWS:
"TIME LIMIT. ALL TRAVEL AND TRANSPORTATION ALLOWABLE UNDER THESE
REGULATIONS SHALL BEGIN WITHIN TWO YEARS FROM THE EFFECTIVE DATE OF THE
TRANSFER OF THE EMPLOYEE * * *.'
THE EFFECTIVE DATE OF TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL
STATION TO ANOTHER IN THE SAME DEPARTMENT OR AGENCY IS THE DATE HE
ENTERS UPON DUTY AT THE NEW OFFICIAL STATION. 26 COMP. GEN. 293, 28
COMP. GEN. 285, 288, 29 COMP. GEN. 100. INASMUCH AS YOU ARRIVED AT
YOUR NEW STATION IN DECEMBER 1952, YOUR TRANSFER WAS EFFECTIVE AT THAT
TIME AND THE TIME LIMIT PRESCRIBED BY THE QUOTED REGULATION EXPIRED
DURING DECEMBER 1954.
THE PAYMENT FOR TRAVEL EXPENSES OF AN EMPLOYEE'S FAMILY AND FOR THE
TRANSPORTATION OF HIS HOUSEHOLD EFFECTS IS BY WAY OF REDUCING THE BURDEN
NECESSITATED BY A TRANSFER OF OFFICIAL STATION.
AT THE TIME OF ISSUANCE OF THE CITED EXECUTIVE ORDER, IT WAS
NECESSARY TO SET FORTH A TIME LIMIT BEYOND WHICH THE TRAVEL OF FAMILY OR
TRANSPORTATION OR HOUSEHOLD EFFECTS WOULD NOT BE CONSIDERED INCIDENT TO
THE EMPLOYEE'S OWN TRANSFER. TO HOLD, AS URGED BY YOU, THAT THE
TRANSPORTATION OF HOUSEHOLD EFFECTS CAN BE ACCOMPLISHED AT ANY TIME,
PROVIDED AN EMPLOYEE ACTUALLY TRAVELS WITHIN TWO YEARS AFTER THE
EFFECTIVE DATE OF HIS TRAVEL ORDERS, WOULD BE A CLEAR VIOLATION OF THE
LANGUAGE AND THE INTENT OF THE REGULATION QUOTED ABOVE. NEITHER THE
INTERSTATE COMMERCE COMMISSION NOR OUR OFFICE IS AUTHORIZED TO WAIVE OR
DISREGARD ITS MANDATORY PROVISIONS.
ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF JUNE 18, 1956, IS FOUND
CORRECT AND MUST BE SUSTAINED.
B-117556, SEP. 14, 1956
TO NATIONAL SURETY CORPORATION:
REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER OF AUGUST 22, 1956,
RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ARISING FROM THE
DEFAULT OF SUPERIOR CONSTRUCTION COMPANY UNDER CONTRACT NO. I2R-18869.
THIS OFFICE, OF COURSE, HAS NO FIRST-HAND INFORMATION RELATIVE TO THE
FACTS OF THE MATTER, BUT MUST RELY UPON THE RECORDS AND STATEMENTS OF
THE OFFICIALS CHARGED WITH ADMINISTRATION OF THE CONTRACT. SINCE WE
HAVE NO FACILITIES OR PROCEDURES FOR RESOLVING DISPUTED QUESTIONS OF
FACT, WE FOLLOW THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE
GOVERNMENT TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS ON SUCH
QUESTIONS IN THE ABSENCE OF EVIDENCE CLEARLY SUFFICIENT TO OVERCOME THE
PRESUMPTION OF THE CORRECTNESS THEREOF. 31 COMP. GEN. 288.
WITH RESPECT TO THE INCONSISTENCY REFERRED TO BY YOUR ATTORNEY, IN
THAT OUR LETTER OF JUNE 6, 1955, CONTAINED A STATEMENT, IN SUBSTANCE,
THAT ADJUSTMENTS OF GRADES IN THE PARKING AREA RESULTED IN "A
SUBSTANTIAL INCREASE IN THE VOLUME OF EXCAVATION," WHEREAS IT WAS STATED
IN OUR LETTER OF AUGUST 3, 1956, THAT "IT IS REPORTED THAT FURTHER
INVESTIGATION REVEALS THAT NO PART OF THE OVERRUN IN EXCAVATION WAS DUE
TO ANY REVISION OF SLOPES IN THE PARKING AREA," IT WOULD SEEM THAT THE
USE OF THE WORDS "FURTHER INVESTIGATION REVEALS" CONSTITUTES A COMPLETE
EXPLANATION.
YOUR ATTORNEY'S CONTENTION AS TO THE ALLEGED UNDERESTIMATION OF THE
"QUANTITY OF EXCAVATION, ETC., USED AS A BASIS FOR RECEIVING BIDS" AND
HIS CONTENTION AS TO THE ALLEGED UNDUE DELAY IN AWARDING THE COMPLETION
CONTRACT WERE COVERED IN OUR LETTER OF JUNE 6, 1955, INSOFAR AS THE
INFORMATION HERE AVAILABLE PERMITS. LIKEWISE, HIS CONTENTION AS TO
ALLEGED EXCESSIVE COST OF ADMINISTRATION AND SUPERVISION WAS COVERED AS
COMPLETELY AS AVAILABLE INFORMATION WOULD PERMIT IN OUR LETTER OF AUGUST
3, 1956.
FOR THE REASONS INDICATED, THERE APPEARS TO BE NO BASIS FOR FURTHER
DELAYING THE REFERENCE OF THIS MATTER TO THE DEPARTMENT OF JUSTICE.
ACCORDINGLY, SUCH REFERENCE WILL BE MADE AS PROMPTLY AS PRACTICABLE.
B-127226, SEP. 14, 1956
TO MR. D. A. DROEGE:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1956, FORWARDED TO OUR
OFFICE BY REPRESENTATIVE BARTLETT, REQUESTING REVIEW OF OUR SETTLEMENT
OF YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES
INCURRED BY YOU INCIDENT TO TRAVEL TO THE CONTINENTAL UNITED STATES FOR
THE PURPOSE OF TAKING ANNUAL LEAVE.
IN YOUR LETTER IT IS STATED BY YOU THAT:
"THE SUMMARY OF THE SOLICITOR'S LETTER WHICH YOU QUOTE IS NOT ALL
FACT: 1) THE FOURTH SENTENCE IS NOT CORRECT AS I RETURNED TO ST. LOUIS,
MISSOURI THE SUMMER OF 1950 ON APPROVED ANNUAL LEAVE. 2) I AGREED TO
RETURN TO ALASKA TO SERVE ANOTHER TOUR OF DUTY PRIOR TO DEPARTING FROM
ANCHORAGE. PLEASE REFER TO MY LETTER DATED DECEMBER 15, 1954, WHICH WAS
APPROVED BY THE DISTRICT SUPERINTENDENT WHO WAS MY IMMEDIATE SUPERIOR
AND WHO APPROVED MY ANNUAL LEAVE PRIOR TO DEPARTING FROM MY DUTY
STATION. I DEPARTED ON LEAVE DECEMBER 21, 1954.'
THE FACT THAT YOU RETURNED TO THE UNITED STATES ON ANNUAL LEAVE AT
YOUR OWN EXPENSE IN 1950, IS NOT NOW MATERIAL TO YOUR PRESENT CLAIM
WHICH ARISES UNDER A LATER STATUTE.
THE LETTER OF DECEMBER 15, 1954, REFERRED TO BY YOU IS AN EXPRESSION
OF YOUR OWN INTERPRETATION OF PUBLIC LAW 600, 60 STAT. 806, AS AMENDED,
AND A REQUEST THAT THE MATTER BE FORWARDED BY THE POSTAL AUTHORITIES TO
OUR OFFICE FOR A RULING. IT IS NOT A WRITTEN AGREEMENT ENTERED INTO
BETWEEN YOU AND THE POST OFFICE DEPARTMENT FOR YOU TO RETURN AND SERVE A
SPECIFIC PERIOD OF DUTY IN ALASKA. THEREFORE, WHILE YOUR SUPERVISOR MAY
HAVE HAD AUTHORITY TO GRANT ANNUAL LEAVE, THE QUESTION OF PAYING YOUR
TRAVEL AND TRANSPORTATION EXPENSES TO THE UNITED STATES INCIDENT
THERETO, WAS REFERRED THROUGH CHANNELS TO THE POST OFFICE DEPARTMENT IN
WASHINGTON. THE DEPARTMENT ANSWERED THE QUESTION IN THE NEGATIVE.
THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, 5 U.S.C. 1084, AS
IMPLEMENTED BY REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET ON MAY 2,
1955, EFFECTIVE AUGUST 31, 1954, UNDER WHICH YOUR CLAIM WAS CONSIDERED,
PROVIDES THAT THE EXPENSES OF ROUND-TRIP TRAVEL OF EMPLOYEES AND
TRANSPORTATION OF THEIR IMMEDIATE FAMILIES FROM POSTS OF DUTY OUTSIDE
THE CONTINENTAL UNITED STATES TO THE PLACES OF
ACTUAL RESIDENCES AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS
POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE
SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE
RETURNING TO THEIR ACTUAL PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING
LEAVE PRIOR TO SERVING ANOTHER TOUR OF OVERSEAS DUTY UNDER A NEW WRITTEN
AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST.
THERE IS NOTHING IN THE RECORD THAT WOULD INDICATE THAT YOUR
ASSIGNMENT TO ALASKA EFFECTIVE OCTOBER 1, 1949, WAS FOR ANY SPECIFIC
PERIOD OF TIME OR THAT PRIOR TO DEPARTING FROM ALASKA IN DECEMBER 1954,
FOR LEAVE IN THE CONTINENTAL UNITED STATES YOU ENTERED INTO A NEW
WRITTEN AGREEMENT TO SERVE AN ADDITIONAL TOUR OF DUTY AS REQUIRED BY THE
APPLICABLE LAW AND REGULATIONS. ON THE CONTRARY, THERE IS ON FILE AN
ADMINISTRATIVE REPORT WHICH STATES THAT ALL TRANSFERS OF POSTAL
EMPLOYEES FROM THE CONTINENTAL UNITED STATES TO THE TERRITORIES AND
POSSESSIONS ARE ON A PERMANENT BASIS AND THE EMPLOYEES TRANSFERRED TO
THE TERRITORIES UNDER THESE CONDITIONS DO NOT AGREE TO PERFORM DUTY FOR
ANY FIXED PERIOD OF TIME AND EXECUTE NO AGREEMENT TO THAT EFFECT, WHICH
WAS THE SITUATION IN YOUR CASE.
YOUR LETTER SETS FORTH NO FACTS OR EVIDENCE NOT HERETOFORE CONSIDERED
AND SINCE, UPON REVIEW OF OUR SETTLEMENT, THE APPLICATION OF THE LAW IS
FOUND TO BE CORRECT, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND MUST
BE SUSTAINED.
B-128918, SEP. 14, 1956
TO MRS. ADELINE GIER SMITH:
REFERENCE IS MADE TO YOUR LETTERS OF JULY 25 AND SEPTEMBER 5, 1956,
REQUESTING REVIEW OF OUR SETTLEMENT OF NOVEMBER 15, 1955, WHEREIN YOU
WERE ALLOWED THE NET AMOUNT OF $1,626.05, UPON YOUR CLAIM FOR
COMPENSATION COVERING THE PERIOD MARCH 2, 1953, TO JANUARY 10, 1954,
DURING WHICH YOU WERE SEPARATED FROM EMPLOYMENT WITH THE NATIONAL
PRODUCTION AUTHORITY, DEPARTMENT OF COMMERCE.
THE RECORD SHOWS THAT YOU WERE SEPARATED FROM THE POSITION OF
COMMODITY INDUSTRY ANALYST, GS-9, $5,310 PER ANNUM, BY A
REDUCTION-IN-FORCE ACTION EFFECTIVE MARCH 1, 1953. ON JANUARY 10, 1954,
YOU WERE APPOINTED TO A POSITION IN THE FEDERAL TRADE COMMISSION. IT
FURTHER APPEARS THAT IN A LETTER DATED JUNE 10, 1955, THE CIVIL SERVICE
COMMISSION BOARD OF APPEALS AND REVIEW INFORMED THE DEPARTMENT OF
COMMERCE THAT IT WAS DETERMINED THAT YOUR REASSIGNMENT RIGHTS WERE NOT
DULY CONSIDERED BY THE DEPARTMENT IN EFFECTING YOUR REDUCTION IN FORCE,
AND RECOMMENDED THAT YOU BE RESTORED, RETROACTIVELY TO MARCH 2, 1953, TO
THE POSITION FOR WHICH THE BOARD HAD FOUND YOU SHOULD HAVE BEEN
REASSIGNED. THE LETTER STATES IN THIS CONNECTION AS FOLLOWS:
"IT IS THE DECISION OF THE BOARD OF APPEALS AND REVIEW, BASED UPON A
CAREFUL STUDY OF ALL THE EVIDENCE OF RECORD SUBMITTED IN CONNECTION WITH
MRS. SMITH'S APPEAL TO THE COMMISSION, THAT THE DEPARTMENT OF COMMERCE
HAS NOT DULY CONSIDERED AND PROPERLY DETERMINED HER REASSIGNMENT RIGHTS
IN CONNECTION WITH THIS REDUCTION IN FORCE. THIS DECISION IS BASED UPON
THE FACT THAT THE BOARD FINDS SHE MEETS THE REQUIREMENTS FOR
REASSIGNMENT UNDER THE RETENTION PREFERENCE REGULATIONS IN EFFECT AT THE
TIME OF THE REDUCTION IN FORCE, IN VIEW OF HER QUALIFICATIONS AND
RETENTION STANDING, TO THE POSITION OF SECRETARY (STENOGRAPHY), GS-7, IN
THE OFFICE OF THE SECRETARY, OCCUPIED AT THAT TIME BY A MRS. NANCY
JOHNSTON, AN EMPLOYEE IN A LOWER RETENTION SUBGROUP THAN MRS. SMITH,
AND MRS. SMITH HAD INDICATED THAT SHE WOULD ACCEPT REASSIGNMENT TO A
GS-7 POSITION IN LIEU OF SEPARATION FROM THE SERVICE.'
AS A RESULT OF THE CORRECTIVE ACTION RECOMMENDED BY THE CIVIL SERVICE
COMMISSION, THE DEPARTMENT OF COMMERCE ISSUED PERSONNEL ACTIONS ON
SEPTEMBER 13, 1955, WHICH (1) CANCELED YOUR REDUCTION IN FORCE, (2)
RESTORED YOU (RETROACTIVELY TO MARCH 2, 1953) TO THE POSITION OF
SECRETARY (STENOGRAPHY) GS-7, $4,955, PER ANNUM IN THE OFFICE OF THE
SECRETARY OF COMMERCE, AND (3) SEPARATED YOU EFFECTIVE JANUARY 10, 1954,
TO ACCEPT YOUR APPOINTMENT (IN LIEU OF REINSTATEMENT) WITH THE FEDERAL
TRADE COMMISSION.
IN THE ABOVE SETTLEMENT YOU RECEIVED CREDIT FOR COMPENSATION AT THE
RATE OF $4,955 PER ANNUM FROM MARCH 2, 1953, TO JANUARY 10, 1954, IN
ACCORDANCE WITH SECTION 6 (B) (3) OF THE ACT OF AUGUST 24, 1912, AS
AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. FROM THE GROSS
AMOUNT FOUND DUE THERE WERE DEDUCTED THE AMOUNTS--- INDICATED IN THE
SETTLEMENT--- REPRESENTING (1) LUMP-SUM PAYMENT FOR LEAVE, (2) EARNINGS
FROM OTHER EMPLOYMENT DURING THE PERIOD OF SEPARATION, (3) INCOME TAX
AND F.I.C.A., AND (4) RETIREMENT DEDUCTIONS.
IN REQUESTING REVIEW YOU CALL TO OUR ATTENTION A LETTER DATED JUNE
23, 1953, ADDRESSED TO YOU BE DONALD R. HARVEY, CHIEF WASHINGTON
RECRUITING BRANCH OF THE CIVIL SERVICE COMMISSION, STATING THAT YOU
APPEAR TO BE QUALIFIED FOR AT LEAST ONE POSITION IN GRADE GS-9 OCCUPIED
BY AN EMPLOYEE IN A LOWER RETENTION CATEGORY, AND THAT CORRECTIVE ACTION
WAS BEING REQUESTED OF THE DEPARTMENT OF COMMERCE IN YOUR CASE. IN VIEW
OF SUCH LETTER IT APPEARS TO BE YOUR BELIEF THAT THE COMPENSATION FOR
THE PERIOD OF SEPARATION SHOULD HAVE BEEN COMPUTED UPON THE BASIS OF
YOUR GRADE GS-9, $5,310 PER ANNUM SALARY, TAKING INTO CONSIDERATION THE
WITHIN-GRADE PROMOTIONS WHICH WOULD HAVE ACCRUED. YOU ALSO APPEAR TO
BELIEVE THAT YOU SHOULD HAVE BEEN ALLOWED TO KEEP THE LUMP-SUM LEAVE
PAYMENT WHICH YOU RECEIVED UPON YOUR SEPARATION BY REDUCTION IN FORCE.
THERE APPEARS NOTHING IN THE RECORD TO INDICATE THAT THE CIVIL
SERVICE COMMISSION ORDERED YOUR RESTORATION TO A GS-9 POSITION. RATHER,
THE RECORD IS CLEAR THAT UPON A RECOMMENDATION BY THE CIVIL SERVICE
COMMISSION BOARD OF APPEALS AND REVIEW, YOU WERE CONSTRUCTIVELY RESTORED
TO THE POSITION IN WHICH YOU SHOULD HAVE BEEN ASSIGNED INSTEAD OF BEING
SEPARATED. ACCORDINGLY, THE COMPENSATION PAYABLE UNDER THE ABOVE ACT OF
JUNE 10, 1948, WAS PROPERLY COMPUTED UPON THE BASIS OF YOUR COMPENSATION
IN GRADE GS-7. SEE 32 COMP. GEN. 449. CONCERNING YOUR REFERENCE TO
THE WITHIN-GRADE PROMOTIONS WHICH WOULD HAVE ACCRUED, YOU ARE ADVISED
THAT OUR OFFICE HAS HELD THAT SUCH PROMOTIONS, HAVING AN EFFECTIVE DATE
SUBSEQUENT TO THE EMPLOYEE'S REMOVAL, ARE NOT FOR CONSIDERATION IN THE
COMPUTATION OF BACK PAY. 35 COMP. GEN. 241.
REGARDING YOUR BELIEF THAT YOU SHOULD HAVE BEEN ALLOWED TO KEEP THE
LUMP-SUM PAYMENT FOR ANNUAL LEAVE, YOU ARE ADVISED THAT IN 28 COMP. GEN.
333, OUR OFFICE HELD, QUOTING FROM THE SYLLABUS---
"THE COMPENSATION PAYABLE UNDER SECTION 6 (B) (3) OF THE ACT OF
AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, TO AN EMPLOYEE
WHO WAS REINSTATED AFTER HAVING BEEN ERRONEOUSLY REMOVED DUE TO
REDUCTION IN FORCE SHOULD BE COMPUTED OVER THE ENTIRE PERIOD DURING
WHICH REMOVED AT THE RATE RECEIVED ON THE DATE OF REMOVAL, BUT THERE IS
TO BE DEDUCTED THEREFROM THE LUMP SUM PAID FOR ACCUMULATED AND CURRENT
ACCRUED LEAVE, INCLUDING THE AMOUNT OF TAX WITHHELD FROM SUCH LUMP-SUM
PAYMENT, THE ANNUAL LEAVE REPRESENTED BY THE LUMP SUM BEING FOR
RECREDITING TO THE EMPLOYEE'S LEAVE ACCOUNT.'
THIS DECISION IS SUPPORTED BY THE CASE OF SAMUEL P. LEVERETTE V. THE
UNITED STATES, C.CLS. NO. 47-53, DECIDED MAY 1, 1956, IN WHICH THE
COURT OF CLAIMS IN A LIKE SITUATION STATED:
"NOR WAS THE GENERAL ACCOUNTING OFFICER'S DEDUCTION OF THAT LUMP SUM
PAYMENT IN ITS BACK-PAY SETTLEMENT WITH PLAINTIFF WRONGFUL. PLAINTIFF'S
RECEIPT OF THAT PAYMENT IN LIEU OF ANNUAL LEAVE, AS REQUIRED BY 58 STAT.
845, ON HIS SEPARATION ON NOVEMBER 30, 1949, WAS ONE OF THE ATTRIBUTES
OF HIS SEPARATION. WHEN THE CIVIL SERVICE COMMISSION FOUND THAT
SEPARATION TO BE NULL AND VOID, AND PLAINTIFF WAS RESTORED PURSUANT TO
SECTION 6 (B) (3) OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, 355, HIS
RIGHT TO SUCH A PAYMENT NO LONGER EXISTED. THUS, THE DEFENDANT UPON
RECREDITING PLAINTIFF IN THE AMOUNT OF LEAVE REPRESENTED BY THE PRIOR
PAYMENT WAS ENTITLED TO RECOUP THE AMOUNT OF THAT PAYMENT.'
IN B-122137, MARCH 29, 1955, 34 COMP. GEN. 480, REFERRED TO IN YOUR
LETTER OF SEPTEMBER 5, 1956, THE DEPARTMENT OF JUSTICE WAS ORDERED BY
THE CIVIL SERVICE COMMISSION TO RESTORE THE EMPLOYEE TO A POSITION IN
HIS FORMER GRADE, WHICH WAS HIGHER THAN THE GRADE OF THE POSITION IN
WHICH HE WAS EMPLOYED IN ANOTHER AGENCY, WHEREAS IN YOUR CASE THE
COMMISSION MERELY ORDERED YOU RESTORED TO A GRADE GS-7 POSITION TO WHICH
YOU WERE APPOINTED IN THE FEDERAL TRADE COMMISSION.
IN THE CIRCUMSTANCES, OUR SETTLEMENT OF NOVEMBER 15, 1955, APPEARS TO
HAVE BEEN CORRECT AND IT
B-128968, SEP. 14, 1956
TO KING TYPOGRAPHIC SERVICE CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1956, WITH ENCLOSURE,
REQUESTING REVIEW OF OUR SETTLEMENT DATED JULY 17, 1956, WHICH
DISALLOWED YOUR CLAIM FOR $4,478 REPRESENTING ADDITIONAL COMPENSATION
ALLEGED TO BE DUE FOR THE PERFORMANCE OF CONTRACT NO. CST-4107, DATED
MARCH 9, 1955, WITH THE DEPARTMENT OF COMMERCE, NATIONAL BUREAU OF
STANDARDS. YOUR CLAIM COMPRISES THE AMOUNTS OF $2,303, $825, AND
$1,350, REPRESENTING HANDMADE CHARACTERS FURNISHED IN ADDITION TO THE
ESTIMATED AMOUNT, INCREASED LABOR COSTS DUE TO REVISED UNION PAY CLAUSE,
AND CHARACTERS RESET AND REPRINTED, RESPECTIVELY.
UNDER THE CONTRACT YOU AGREED TO SUPPLY SIX COPIES, IN PRINTED FORM,
OF THE TEN-THOUSAND CHARACTERS AND CORRESPONDING CODE NUMBERS AS FOUND
IN THE CHINESE TELECODE BOOK AND IN ACCORDANCE WITH PERTINENT
SPECIFICATIONS. THE CONTRACT PROVIDED FOR PAYMENT AT $0.85 PER UNIT OR
A TOTAL OF $8,500. THE RECORD SHOWS THE WORK WAS COMPLETED ON APRIL 24,
1956, AND THAT THE AGREED CONTRACT PRICE WAS PAID TO YOU DURING MAY
1956.
THE RECORD ALSO SHOWS THAT YOU ORIGINALLY PRESENTED YOUR CLAIM FOR
THE ADDITIONAL AMOUNT BY LETTER DATED NOVEMBER 7, 1955, AND, IN REPLY
THERETO, YOU WERE ADVISED BY THE CONTRACTING OFFICER IN HIS LETTER DATED
NOVEMBER 23, 1955, AS TO THE REASONS WHY YOUR CLAIM DID NOT APPEAR
COGNIZABLE UNDER THE TERMS OF YOUR CONTRACT. HOWEVER, A SUGGESTION WAS
MADE IN THE LETTER AS TO THE POSSIBILITY FOR PAYMENT OF A PORTION OF THE
COSTS IN CONNECTION WITH THE MISPLACEMENT OF THE FIDUCIAL MARKS. THIS
PROPOSAL BY THE CONTRACTING OFFICER WAS NEVER ACCEPTED BY YOU. THE
CONTRACTING OFFICER IN HIS SUBSEQUENT LETTER DATED MARCH 12, 1956,
ADVISED YOU AS TO THE ADMINISTRATIVE DISAPPROVAL OF YOUR ENTIRE CLAIM
AND EXPLAINED THAT THE MATTER WOULD BE TRANSMITTED TO OUR OFFICE FOR
DIRECT SETTLEMENT. IN HIS LETTER HE PARTICULARLY POINTED OUT THAT AS TO
THE WORK OF REDOING 2,700 CHARACTERS, THE CLAIM FOR THE ADDITIONAL
COMPENSATION COULD NOT BE ALLOWED SINCE THE MARKS ON THE SAMPLES
SUBMITTED FOR APPROVAL WERE NOT IN ACCORDANCE WITH THE SPECIFICATIONS.
THE ACTION IN THE SETTLEMENT DATED JULY 17, 1956, WAS TAKEN PURSUANT
TO THE GENERAL AUTHORITY VESTING IN OUR OFFICE TO CONSIDER ALL CLAIMS
FOR OR AGAINST THE UNITED STATES. SEE SECTION 236 OF THE REVISED
STATUTES, AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42
STAT. 24. ALSO IN THIS CONNECTION, SEE ILLINOIS SURETY CO. V. PEELER,
240 U.S. 214, 219-220.
IN YOUR REQUEST FOR REVIEW, WHILE ADDING NO MATERIAL ADDITIONAL
EVIDENCE NOT HERETOFORE CONSIDERED BY THE ADMINISTRATIVE OFFICE AND OUR
OFFICE, YOU STRESS APPLICATION OF THE ADMINISTRATIVE SUGGESTION MADE IN
THE LETTER OF NOVEMBER 23, 1955, AS EMPHASIZING THE MERIT OF YOUR CLAIM
AND YOU INDICATE THE DIFFICULTY YOU ENCOUNTERED IN PREPARING AN ESTIMATE
ON THE COMPLETED WORK. IT MAY BE, AS YOU CONTEND, THAT MORE COMPLETE
KNOWLEDGE OF THE SPECIFICATION DETAILS AT THE TIME OF YOUR PREPARATION
OF THE BID WOULD HAVE PROMPTED THE SUBMISSION OF A DIFFERENT QUOTATION.
NEVERTHELESS, THE ELECTION TO PRESENT YOUR PROPOSAL ON THE INFORMATION
AVAILABLE WAS YOUR OWN AND THE FACT THAT CERTAIN CHARACTERS WERE NOT
AVAILABLE AS ANTICIPATED AND NECESSITATED YOUR PRODUCTION OF THE SAME IN
NOWISE AFFECTS YOUR LEGAL RIGHTS AND OBLIGATIONS UNDER THE CONTRACT.
THE RESPONSIBILITY FOR THE ACTUAL PREPARATION OF THE PROPOSAL WAS
UPON YOU AS BIDDER AND FOR THAT REASON THE CASE OF FRAZIER-DAVIS
CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, APPEARS FOR
DIRECT APPLICATION. THE RIGHT WHICH VESTED IN THE GOVERNMENT UPON THE
ACCEPTANCE OF YOUR BID TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE
TERMS OF THE CONTRACT SO FORMED CANNOT BE GIVEN AWAY OR SURRENDERED BY
ANY OFFICER OF THE GOVERNMENT. PACIFIC HARDWARE AND STEEL COMPANY V.
UNITED STATES, 49 C.CLS. 327, 335. BAUSCH AND LOMB OPTICAL COMPANY V.
UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645. AS
TO YOUR CLAIM FOR $1,350, THE CONTRACTING OFFICER HAS REPORTED THAT THE
SPECIFICATIONS AND DRAWINGS WERE DEEMED ADEQUATE TO INDICATE THE CORRECT
LOCATION OF THE REQUIRED FIDUCIAL MARKS. IF YOU CONSIDERED THE WORK NOT
COVERED BY THE SPECIFICATIONS AND DRAWINGS, YOU SHOULD HAVE FOLLOWED THE
PROCEDURE SET FORTH IN PARAGRAPH 2 OF GENERAL PROVISIONS OF THE
CONTRACT. SINCE THAT PROCEDURE WAS NOT FOLLOWED, OUR OFFICE MAY NOT
GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM FOR $1,350.
FURTHERMORE, IT IS A SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS
ARE TO BE ENFORCED AS WRITTEN AND THAT THE FACT THAT SUPERVENING OR
UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE,
OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR TO
ENTITLE CONTRACTOR TO ADDITIONAL COMPENSATION, UNLESS SPECIFICALLY
PROVIDED IN THE CONTRACT. COLUMBUS RAILWAY, POWER AND LIGHT COMPANY V.
COLUMBUS 249 U.S. 399; PENN BRIDGE COMPANY V. UNITED STATES, 59 C.CLS.
892; DAY V. UNITED STATES, 245 U.S. 159. THE FACT, THEREFORE, THAT YOU
ERRONEOUSLY ASSUMED THAT THE WORK REQUIRED THE MAKING OF ONLY 300
CHARACTERS INSTEAD OF 2,603 CHARACTERS OR THAT YOU WERE REQUIRED TO PAY
HIGHER WAGES THAN YOU CONTEMPLATED DOES NOT ENTITLE YOU TO THE
ADDITIONAL COMPENSATION CLAIMED.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF JULY
17, 1956, IS SUSTAINED.
B-129075, SEP. 14, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 27, 1956, WITH ENCLOSURES
FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), RELATING TO A
MISTAKE IN BID ALLEGED BY THE CHOKAI SHOKAI COMPANY, LTD., TOKYO, JAPAN,
UNDER CONTRACT NO. N62649S-3138, (SALES INVITATION NO. B-98-56) ISSUED
BY THE U.S. NAVAL SUPPLY DEPOT, YOKOSUKA, JAPAN. IN VIEW OF THE FACTS
SET FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 27, A DECISION IS
REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE
MATERIAL READVERTISED.
THE RECORD SHOWS THAT BY INVITATION NO. B-98-56, DATED MARCH 29,
1956, THE DISPOSAL OFFICER, U.S. NAVAL SUPPLY DEPOT, YOKOSUKA, JAPAN,
OFFERED FOR SALE CERTAIN ITEMS OF GOVERNMENT-OWNED PROPERTY LOCATED AT
THE NAVAL AIR STATION, IWAKUNI, JAPAN, THE BIDS TO BE OPENED ON APRIL
27, 1956. IN RESPONSE TO THE INVITATION, CHOKAI SHOKAI COMPANY, LTD.,
SUBMITTED BIDS AS TO ITEMS 5, 6, 7, 8, 9 AND 10 OF THE BID INVITATION,
WHICH WERE ACCEPTED AS TO ITEMS 5, 6, 7, 8 AND 10, AND AWARD MADE UNDER
CONTRACT NO. N62649S-3138, DATED MAY 4, 1956.
IN ITS ORIGINAL FORM INVITATION NO. B-98-56 INCLUDED IN LOT 9 ONE
NORTHWEST SHOVEL, 16 TONS, USN NO. 42-01387, AND IN LOT 10 ONE 16 TON
NORTHWEST CRANE, USN NO. 42-00148, AND ONE NORTHWEST CRANE, 38 TONS,
USN NO. 42-00684. IT IS REPORTED THAT SUBSEQUENT TO THE ISSUANCE OF THE
SALES CATALOG BUT PRIOR TO THE OPENING OF THE BIDS, THE SUPPLY OFFICER
OF THE HOLDING ACTIVITY--- THE NAVAL AIR STATION AT IWAKUNI---
DETERMINED THAT THE 38 TON CRANE, BEARING USN NO. 42-11684, HAD BEEN
PLACED IN LOT 10 THROUGH ERROR. AN AMENDMENT TO THE CATALOG WAS
APPROVED FOR THE PURPOSE OF REMOVING THE 38 TON CRANE FROM LOT 10 AND
PLACING IT IN LOT 9, AND CHANGING THE 16 TON SHOVEL BEARING USN NO.
42-01387 FROM LOT 9 TO LOT 10. THE ACTUAL WORDING OF THE AMENDMENT WAS
AS OLLOWS: "LOT 9--- USN NO. 42-01387 WILL BE CHANGED TO USN NO.
42-00684. LOT 10--- USN NO. 42-11684 WILL BE CHANGED TO USN NO.
42-01387.'
BY A COMMUNICATION DATED AUGUST 6, 1956, IT WAS REPORTED THAT THE
AMENDMENT WAS MAILED TO ALL BIDDERS PRIOR TO THE BID OPENING AND THAT AN
ANNOUNCEMENT OF THE AMENDMENT WAS MADE AT 13.30 HOURS, APRIL 27, 1956,
PRIOR TO OPENING OF BIDS, AND THAT ALL BIDDERS WERE GIVEN AN OPPORTUNITY
TO ADJUST THEIR BIDS IN ACCORDANCE WITH THE AMENDMENT. IN THIS
CONNECTION, ATTENTION IS INVITED TO THE FOLLOWING PARAGRAPH FROM A
COMMUNICATION DATED JUNE 23, 1956:
"3. ON 27 APRIL PRIOR TO THE OPENING OF THE BIDS, ALL BIDDERS WERE
PRESENT AND EACH RECEIVED AN AMENDMENT ISSUED BY THE DISPOSAL OFFICER
ADVISING ALL BIDDERS OF THE CHANGE OF MATERIAL WHICH IS DESCRIBED IN
PARAGRAPH (1) OF THIS LETTER. ALL BIDDERS WERE AFFORDED AN OPPORTUNITY
TO CHANGE BID PRICES BEFORE PUBLICATION.'
BY LETTER OF MAY 14, 1956, MR. TADAO CHOKAI, PRESIDENT OF THE
CONTRACTING COMPANY, STATED THAT ON APRIL 20, 1956, HE INSPECTED LOTS 9
AND 10 AT THE IWAKUNI NAVAL AIR STATION AND APPARENTLY FOUND THEM TO BE
AS REPRESENTED IN THE CATALOG. IN FACT, IN THE COMMUNICATION OF JUNE
23, 1956, IT IS ADMITTED THAT AT THE TIME OF INSPECTION ALL ITEMS WERE
IDENTIFIED BY LOTS IN ACCORDANCE WITH THE ORIGINAL SALES CATALOG.
NOTWITHSTANDING THE STATEMENT IN THE COMMUNICATION OF AUGUST 6, 1956,
THAT THE AMENDMENT WAS MAILED TO ALL BIDDERS PRIOR TO THE BID OPENING---
NO MAILING DATE BEING SPECIFIED IT APPEARS TO BE REASONABLY ESTABLISHED,
AS INDICATED IN MR. SHOKAI'S LETTER OF MAY 14, 1956, THAT HE RECEIVED NO
NOTICE OF THE AMENDMENT UNTIL IMMEDIATELY PRIOR TO THE BID OPENING.
THAT STATEMENT IS SUPPORTED BY THE ABOVE-QUOTED PARAGRAPH WHICH
INDICATES THAT THE BIDDERS WERE FIRST FURNISHED THE AMENDMENT JUST PRIOR
TO THE BID OPENING.
THE CONTROVERSY IN THIS CASE APPEARS TO ARISE OUT OF THE FACT THAT
MR. SHOKAI WAS CONFUSED AS TO THE PURPOSES OF THE AMENDMENT, IT BEING
HIS STATED BELIEF THAT THE AMENDMENT WAS INTENDED TO ONLY CHANGE THE USN
NUMBER FROM ONE PIECE OF EQUIPMENT TO ANOTHER, AND THAT IT WAS NOT
INTENDED AS A CHANGE OF MATERIAL FROM ONE ITEM NUMBER TO ANOTHER ON THE
SALES CATALOG. LOOKING SOLELY AT THE LANGUAGE OF THE AMENDMENT, WHICH
DID NOT AFFECT THE RESPECTIVE DESCRIPTIONS OF ITEMS 9 AND 10, WE CANNOT
SAY THAT SUCH AN UNDERSTANDING WAS UNREASONABLE.
IT SEEMS TO BE CLEARLY ESTABLISHED THAT THE CONTRACTOR'S BID AS TO
ITEM 10 WAS BASED UPON THE EXPECTATION OF RECEIVING THE PROPERTY COVERED
THEREBY AS SET FORTH IN THE ORIGINAL SALES CATALOG, THAT IS TO SAY, TWO
CRANES HAVING AN ACQUISITION COST OF $60,000. THAT BID WAS NEVER
CHANGED. WHILE IT APPEARS THAT THERE WAS AN ATTEMPT ON THE PART OF THE
DISPOSAL OFFICER AT THE "LAST INUTE" TO ADVISE THE BIDDERS AS TO THE
CHANGE INTENDED TO BE EFFECTED BY THE AMENDMENT, IT DOES SEEM THAT THE
TIME ALLOWED TO CONSIDER AND ADJUST PRICES WAS HARDLY ADEQUATE, AND SO
FAR AS THE WRITTEN RECORD IS CONCERNED IT IS AT LEAST QUESTIONABLE
WHETHER THE LANGUAGE OF THE AMENDMENT WAS SUFFICIENT TO ACCOMPLISH ITS
STATED PURPOSE.
IT APPEARS THAT BY REASON OF LANGUAGE DIFFICULTIES OR OTHERWISE THE
BIDDER FAILED TO UNDERSTAND THE PURPOSE OF THE AMENDMENT, SO THAT IT
CANNOT BE SAID THAT THE BIDDER INTENDED TO ALLOW THE BID TO STAND AS
UNDER THE AMENDMENT AS INTERPRETED BY THE CONTRACTING OFFICER. IT IS
OUR VIEW THAT THERE MAY NOT BE IMPUTED TO THE BIDDER KNOWLEDGE WHICH, IN
FACT, IT COULD HAVE OBTAINED ONLY FROM A VERBAL ANNOUNCEMENT, AND THUS
IT FOLLOWS THAT ITS BID WAS FOR CONSIDERATION ONLY ON THE BASIS OF THE
ORIGINAL INVITATION.
A MEETING OF MINDS OF PARTIES IS A FUNDAMENTAL REQUISITE OF A
CONTRACT IT HAS BEEN HELD THAT TO CONSTITUTE A MEETING OF MINDS OF
PARTIES TO MAKE A CONTRACT ENFORCEABLE, ALL THE TERMS WHICH THE PARTIES
INTENDED TO INCLUDE IN FORMAL AGREEMENT MUST BE SHOWN TO HAVE BEEN
AGREED ON. AMERICAN MERCHANT MARINE INSURANCE COMPANY V. LETTON, 9 F.2D
799. UNDER THE FACTS REPORTED, IT IS NOT BELIEVED THAT IT CAN BE SAID
THERE WAS SUCH A MEETING OF THE MINDS OF THE CONTRACTING PARTIES AS TO
CONSTITUTE A VALID AND BINDING CONTRACT IN THIS CASE. ACCORDINGLY, ITEM
10 OF THE CONTRACT MAY BE CANCELLED WITHOUT LIABILITY TO THE CONTRACTOR.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.
THE PAPERS, WITH THE EXCEPTION OF THE STATEMENTS DATED JUNE 23 AND
AUGUST 6, 1956, ARE RETURNED HEREWITH.
B-129119, SEP. 14, 1956
TO LEO L. MIMNO, LIEUTENANT (JG), USCGR:
REFERENCE IS MADE TO YOUR COMMUNICATION OF AUGUST 24, 1956, FORWARDED
HERE BY HONORABLE THOMAS J. LANE, HOUSE OF REPRESENTATIVES, REQUESTING
REVIEW OF OUR SETTLEMENT OF JUNE 21, 1956, WHICH DISALLOWED YOUR CLAIM
FOR PER DIEM FOR THE PERIOD FROM NOVEMBER 17, 1955, TO JANUARY 21, 1956,
WHILE YOU WERE ON ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE U.S.
COAST GUARD RESERVE.
UNDER ORDERS OF THE COMMANDER, TWELFTH COAST GUARD DISTRICT, SAN
FRANCISCO, CALIFORNIA, DATED NOVEMBER 17, 1955, YOU WERE DIRECTED TO
PROCEED AND REPORT TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, SAN
FRANCISCO, CALIFORNIA,"FOR ASSIGNMENT TO TEMPORARY ADDITIONAL DUTY NOT
TO EXCEED SIXTY (60) DAYS' DURATION FOR SAFEKEEPING WHILE AWAITING TRIAL
BY GENERAL COURT-MARTIAL.' THE NECESSARY TRAVEL INVOLVED, DIRECTED FOR
PERFORMANCE VIA GOVERNMENT CONVEYANCE, WAS STATED TO BE REQUIRED BY THE
PUBLIC INTERESTS.
IT APPEARS THAT THOSE ORDERS WERE DELIVERED TO YOU AT YOUR PERMANENT
STATION, THE COAST GUARD AIR STATION AT SOUTH SAN FRANCISCO (NOT WITHIN
THE CORPORATE LIMITS OF SAN FRANCISCO) ON NOVEMBER 17. YOU LEFT THAT
STATION AND REPORTED TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, WERE
ASSIGNED ADDITIONAL DUTY WITH THE COMMANDING OFFICER, U.S. NAVAL
STATION, TREASURE ISLAND, SAN FRANCISCO, AND REPORTED AT THAT STATION,
ALL ON NOVEMBER 17. SIXTH ENDORSEMENT OF THE COMMANDANT, TWELFTH NAVAL
DISTRICT, DATED JANUARY 21, 1956, STATED THAT YOUR TEMPORARY ADDITIONAL
DUTY WAS COMPLETED THAT DAY AND THE COMMANDING OFFICER, U.S. NAVAL
STATION AT TREASURE ISLAND, WAS DIRECTED TO RELEASE YOU TO THE CUSTODY
OF A DESIGNATED COAST GUARD OFFICER WHO HAD BEEN DETAILED AS SENIOR
GUARD FOR YOUR TRANSPORTATION TO THE U.S. NAVAL RETRAINING COMMAND,
PORTSMOUTH, NEW HAMPSHIRE, AS A PLACE OF TEMPORARY CUSTODY. IT WAS
STATED THAT GOVERNMENT QUARTERS AND MESSING FACILITIES WERE AVAILABLE
AND WERE ASSIGNED WHILE YOUR WERE AT TREASURE ISLAND.
TRAVEL ALLOWANCES SUCH AS THE PER DIEM ALLOWANCE CLAIMED BY YOU ARE
AUTHORIZED FOR PAYMENT TO MILITARY PERSONNEL BY SECTION 303 (A) OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND BY PARAGRAPH 3050 OF
THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THAT STATUTORY
AUTHORITY, ONLY FOR PERIODS WHILE IN A TRAVEL STATUS PERFORMING TRAVEL
OR TEMPORARY DUTY AWAY FROM THEIR PERMANENT DUTY STATION UPON PUBLIC
BUSINESS. PARAGRAPH 3003 OF THE JOINT TRAVEL REGULATIONS DEFINES THE
TERM "TEMPORARY DUTY" (OF WHICH TEMPORARY ADDITIONAL DUTY IS A FORM) FOR
PER DIEM PURPOSES TO MEAN "DUTY AT A LOCATION OTHER THAN PERMANENT
STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO
TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A
NEW PERMANENT STATION OR FOR RETURN TO THE OLD PERMANENT STATION.'
PARAGRAPH 1150-10 OF THE REGULATIONS DEFINES A PERMANENT DUTY STATION AS
THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR
ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY, THE LIMITS OF WHICH WILL BE
THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS
STATIONED. IT IS CONTEMPLATED UNDER SUCH PROVISIONS THAT ENTITLEMENT TO
PER DIEM OR OTHER TRAVEL ALLOWANCE WILL NOT ARISE IN THE ABSENCE OF THE
REQUIRED ELEMENTS OF PERFORMING EITHER TRAVEL OR TEMPORARY DUTY ON
OFFICIAL BUSINESS AWAY FROM A DESIGNATED
PERMANENT DUTY STATION.
THE ORDERS OF NOVEMBER 17, 1955, DIRECTED YOU TO PROCEED TO SAN
FRANCISCO AND THERE REPORT FOR ASSIGNMENT TO TEMPORARY ADDITIONAL DUTY
WHILE AWAITING TRIAL. SUCH ORDERS DID NOT PROVIDE FOR RETURN TO THE OLD
PERMANENT STATION AS PROVIDED IN THE CITED REGULATIONS, AND NOTHING IN
THE RECORD INDICATES AN ADMINISTRATIVE INTENTION THAT YOU SHOULD BE
CONSIDERED AS REMAINING ATTACHED TO AND STATIONED AT THE COAST GUARD AIR
STATION AT SOUTH SAN FRANCISCO OR THAT IT WAS CONTEMPLATED THAT YOU
WOULD RETURN THERE AT THE CONCLUSION OF THE TEMPORARY ADDITIONAL DUTY TO
BE ASSIGNED. IT APPEARS, THEREFORE, THAT YOUR ONLY DUTY STATION DURING
THE PERIOD COVERED BY YOUR CLAIM WAS AT SAN FRANCISCO, YOUR "TEMPORARY
DUTY" ALSO BEING WITHIN SAN FRANCISCO. UNDER THE CIRCUMSTANCES SHOWN,
IT MUST BE CONSIDERED THAT YOUR STATUS DURING THE PERIOD COVERED BY YOUR
CLAIM WAS NOT THAT OF A PERSON PERFORMING TRAVEL OR TEMPORARY DUTY ON
OFFICIAL BUSINESS AWAY FROM A PERMANENT DUTY STATION WITHIN THE
CONTEMPLATION OF THE CITED REGULATIONS. ACCORDINGLY, THERE IS NO
AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JUNE 21,
1956, IS SUSTAINED.
YOUR ORIGINAL ORDERS OF NOVEMBER 17, 1955, WITH ENDORSEMENTS,
FORWARDED HERE BY MR. LANE, ARE ENCLOSED.
B-129167, SEP. 14, 1956
TO THE SECRETARY OF AGRICULTURE:
YOUR LETTER OF SEPTEMBER 6, 1956 REQUESTS A DECISION CONCERNING THE
LEGALITY OF TERMINATING CERTAIN ACREAGE RESERVE AGREEMENTS ENTERED INTO
UNDER SUBTITLE A OF THE SOIL BANK ACT, PUBLIC LAW 540, APPROVED MAY 28,
1956, 70 STAT. 188, 189, AND THE ENTERING INTO OF CERTAIN SUPPLEMENTAL
AGREEMENTS.
UNDER THE 1956 ACREAGE RESERVE AGREEMENTS, THE PRODUCER DESIGNATED
PARTICULAR TRACT OR TRACTS OF LAND ON HIS FARM AS THE ACREAGE RESERVE
WHICH WOULD BE WITHDRAWN FROM THE PRODUCTION OF THE COMMODITY COVERED BY
THE AGREEMENT. THE ACREAGE RESERVE WAS NOT TO BE GRAZED DURING 1956 NOR
WAS ANY CROP TO BE HARVESTED THEREFROM. ANY CROP GROWING ON THE ACREAGE
RESERVE WAS TO BE PLOWED UNDER OR OTHERWISE PHYSICALLY INCORPORATED INTO
THE SOIL, OR CLIPPED, MOWED, OR CUT TO PREVENT MATURING BY THE DATE
SPECIFIED IN THE REGULATIONS. SECTION 123 OF THE SOIL BANK ACT IMPOSES
A CIVIL PENALTY ON ANY PRODUCER WHO KNOWINGLY AND WILFULLY GRAZES OR
HARVESTS ANY CROP FROM ANY ACREAGE IN VIOLATION OF A CONTRACT ENTERED
INTO UNDER THE ACT EQUAL TO 50 PERCENTUM OF THE COMPENSATION PAYABLE FOR
COMPLIANCE WITH SUCH CONTRACT FOR THE YEAR IN WHICH THE VIOLATION
OCCURS.
SUCH PENALTY IS IN ADDITION TO ANY AMOUNTS REQUIRED TO BE FORFEITED
OR REFUNDED UNDER THE PROVISIONS OF THE AGREEMENT. AS REQUIRED BY
SECTION 103 (A) OF THE ACT, THE AGREEMENT PROVIDES THAT IN THE EVENT
THAT THERE HAS BEEN A VIOLATION OF THE AGREEMENT AND THAT SUCH VIOLATION
IS OF SUCH A SUBSTANTIAL NATURE AS TO WARRANT TERMINATION OF THE
AGREEMENT, THE PRODUCER SHALL FORFEIT ALL RIGHTS TO PAYMENTS UNDER THE
AGREEMENT; AND, THAT IN THE EVENT THAT THE SECRETARY DETERMINES THAT
THERE HAS BEEN A VIOLATION OF THE AGREEMENT BUT THAT SUCH VIOLATION IS
OF SUCH A NATURE AS NOT TO WARRANT TERMINATION OF THE AGREEMENT, THE
PRODUCER SHALL ACCEPT SUCH PAYMENT ADJUSTMENTS OR FORFEIT SUCH BENEFITS
UNDER THE AGREEMENT AS THE SECRETARY MAY DETERMINE TO BE APPROPRIATE.
YOUR LETTER STATES THAT AS A RESULT OF THE DELAY IN THE PASSAGE OF
THE SOIL BANK ACT, THERE WAS INSUFFICIENT TIME WITHIN WHICH ADEQUATELY
TO EXPLAIN THE PROGRAM TO PRODUCERS AND STILL CARRY OUT THE MANDATE OF
THE CONGRESS TO PUT THIS PROGRAM INTO EFFECT FOR 1956 AND, THEREFORE,
THE PROGRAM HAD TO BE INAUGURATED WITHOUT AMPLE OPPORTUNITY TO ACQUAINT
THE FIELD STAFF FULLY WITH THE REQUIREMENTS OF THE PROGRAM. YOU REPORT
THAT DUE TO THE LACK OF COMPLETE INFORMATION IN THE FIELD,
THE PRESSURE TO MEET THE DEADLINE FOR SIGNING AGREEMENT, AND THE
NECESSITY, IN MANY CASES, OF USING INEXPERIENCED FIELD PERSONNEL, MANY
PRODUCERS WERE NOT PROPERLY INFORMED OF THE NATURE AND EXTENT OF THEIR
OBLIGATIONS UNDER THE 1956 ACREAGE RESERVE AGREEMENT. YOU FURTHER
REPORT THAT THERE WAS A GENERAL MISUNDERSTANDING THAT THE AGREEMENT
MERELY PLACED A CEILING ON THE NUMBER OF ACRES ON WHICH THE PRODUCER WAS
ELIGIBLE TO EARN A PAYMENT AND DID NOT CONSTITUTE AN OBLIGATION ON
HIS PART TO PARTICIPATE IN THE PROGRAM TO THE EXTENT OF THE TOTAL
NUMBER OF ACRES SHOWN AS THE ACREAGE RESERVE IN THE AGREEMENT; AND,
THAT SUCH PRODUCERS UNDERSTOOD THAT IF THEY EARNED A PAYMENT ON A
PORTION OF THE ACREAGE COVERED BY THE AGREEMENT, THEY WOULD BE PAID AT
THE SPECIFIED RATE FOR SUCH PARTIAL PERFORMANCE, AND THAT IF THEY FAILED
TO PERFORM AT ALL, THEIR ONLY LOSS WOULD BE A FORFEITURE OF THE
COMPENSATION PAYABLE FOR PERFORMANCES. YOUR LETTER ALSO STATES THAT AS
A RESULT, A LARGE NUMBER OF SUCH PRODUCERS DID NOT DESTROY THE CROPS
GROWING ON THE ACREAGE RESERVE BY THE FINAL DATE ALLOWED FOR SUCH
DISPOSITION AND HAVE NOTIFIED THE COUNTY COMMITTEES THAT THEY INTEND TO
HARVEST SUCH CROPS AND, THEREFORE, DO NOT EXPECT ANY COMPENSATION.
OTHERS HAVE DESTROYED A PORTION OF THE CROPS GROWING ON THE ACREAGE
RESERVE, INTEND TO HARVEST THE BALANCE OF THE CROP GROWING ON THE
ACREAGE RESERVE, AND HAVE INDICATED THAT THEY EXPECT TO APPLY FOR
PAYMENT ON THAT PORTION OF THE CROP WHICH THEY DESTROYED.
YOUR LETTER FURTHER STATES THAT THE SOIL BANK PROGRAM DEPENDS UPON
VOLUNTARY PARTICIPATION BY PRODUCERS AND IF THE GOVERNMENT INSISTS UPON
STRICT ENFORCEMENT OF THE AGREEMENT UNDER THE CIRCUMSTANCES PREVAILING
THIS YEAR, GENERAL DISSATISFACTION ON THE PART OF PRODUCERS, WHO ACTED
IN GOOD FAITH, WOULD, IN YOUR JUDGMENT, JEOPARDIZE YOUR ABILITY TO
OBTAIN SUFFICIENT PARTICIPATION IN FUTURE YEARS TO ACHIEVE THE PURPOSES
OF THE PROGRAM. FOR THAT REASON YOU HAVE DETERMINED THAT IT WOULD BE IN
THE PUBLIC INTEREST (1) TO TERMINATE THE AGREEMENT IN THOSE CASES WHERE
THE PRODUCER DESIRES SUCH ACTION, AND (2) TO ENTER INTO A SUPPLEMENTAL
AGREEMENT WITH THE PRODUCER IN THOSE CASES WHERE THE PRODUCER HAS
COMPLIED WITH THE AGREEMENT WITH RESPECT TO A PORTION OF THE CROP ON THE
ACREAGE RESERVE, UNDER WHICH THE PRODUCER WOULD COMPLETE PERFORMANCE ON
THE AGREEMENT WITH RESPECT TO SUCH ACREAGE AND WOULD BE COMPENSATED
THEREFOR AT THE RATE PER ACRE SPECIFIED IN THE ORIGINAL AGREEMENT. YOU
REQUEST A DECISION WHETHER YOU MAY LEGALLY TAKE SUCH ACTION.
IN AN OPINION DATED SEPTEMBER 6, 1956, OF YOUR GENERAL COUNSEL, IT IS
CONCLUDED THAT THIS PROPOSED ACTION WOULD BE LEGALLY AUTHORIZED. IN
THAT OPINION, IT IS STATED THAT THE VIOLATION FOR WHICH THE CIVIL
PENALTIES WOULD BE INVOLVED, NAMELY, THE GRAZING OR HARVESTING OF THE
ACREAGE RESERVE, HAS NOT YET OCCURRED AND, THEREFORE, THERE IS NOT
INVOLVED ANY QUESTION OF GIVING AWAY OR SURRENDERING CIVIL PENALTIES
WHERE THE RIGHTS TO SUCH PENALTIES HAVE ALREADY VESTED IN THE
GOVERNMENT.
THE SOIL BANK ACT VESTS EXTREMELY BROAD AUTHORITY IN THE SECRETARY OF
AGRICULTURE. SECTION 103 (A) AUTHORIZES THE SECRETARY, NOTWITHSTANDING
ANY OTHER PROVISION OF LAW, TO FORMULATE AND CARRY OUT THE ACREAGE
RESERVE PROGRAM, WITHIN SPECIFIED LIMITATIONS, AND FURTHER PROVIDES THAT
THE PROGRAM MAY INCLUDE SUCH TERMS AND CONDITIONS AS THE SECRETARY
DETERMINES ARE DESIRABLE TO EFFECTUATE THE PURPOSES OF THE ACT AND TO
FACILITATE THE PRACTICAL ADMINISTRATION OF THE ACREAGE RESERVE PROGRAM.
ONE OF THE POLICIES OF THE CONGRESS AND OF THE PURPOSES OF THE ACT SET
OUT IN SECTION 102 OF THE ACT IS TO PROTECT AND INCREASE FARM INCOME.
SECTION 103 (A) FURTHER PROVIDES THAT IN THE CASE OF A VIOLATION OF THE
AGREEMENT WHERE THE VIOLATION IS NOT OF SUCH A NATURE AS TO WARRANT
TERMINATION OF THE AGREEMENT AND FORFEITURE OF ALL RIGHTS TO PAYMENT
THEREUNDER, THE PRODUCER SHALL "ACCEPT SUCH PAYMENT ADJUSTMENTS" FORFEIT
SUCH BENEFITS, AND MAKE SUCH REFUNDS TO THE UNITED STATES OF PAYMENTS
AND BENEFITS RECEIVED BY HIM UNDER THE CONTRACT AS THE SECRETARY MAY
DETERMINE TO BE APPROPRIATE.' SECTION 105 (A) OF THE ACT PROVIDES THAT
THE RATE OF COMPENSATION PAYABLE TO PRODUCERS FOR PARTICIPATION IN THE
ACREAGE RESERVE PROGRAM SHALL BE "AT SUCH RATE OR RATES AS THE SECRETARY
DETERMINES WILL PROVIDE PRODUCERS WITH A FAIR AND REASONABLE RETURN FOR
REDUCING THEIR ACREAGE * * *.' SECTION 121 PROVIDES THAT THE FACTS
CONSTITUTING THE BASIS FOR ANY PAYMENT OR COMPENSATION, OR THE AMOUNT
THEREOF, AUTHORIZED, TO BE MADE UNDER THE ACT, WHEN OFFICIALLY
DETERMINED ON CONFORMITY WITH APPLICABLE REGULATIONS PRESCRIBED BY THE
SECRETARY, SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE REVIEWABLE BY
ANY OTHER OFFICER OR AGENCY OF THE GOVERNMENT.
IN VIEW OF THE BROAD AUTHORITY VESTED IN YOU BY THE SOIL BANK ACT,
THE REPRESENTATIONS IN YOUR LETTER OF THE HASTY MANNER IN WHICH THE
ACREAGE RESERVE PROGRAM AS INAUGURATED WITH THE RESULTANT GENERAL
MISUNDERSTANDING AMONG THE PRODUCERS, AND YOUR DETERMINATION THAT THE
ACTION YOU PROPOSE WOULD BE IN THE PUBLIC INTEREST, WE WOULD NOT BE
REQUIRED TO OBJECT TO THE TERMINATION OF THE EXISTING AGREEMENTS AND THE
EXECUTION OF THE SUPPLEMENTAL AGREEMENTS PROPOSED IN YOUR LETTER. THE
EXISTING AGREEMENTS, INSOFAR AS THEY ARE EXECUTORY, CERTAINLY CAN BE
TERMINATED BY MUTUAL AGREEMENT WITHOUT ANY COST TO THE GOVERNMENT IF YOU
DETERMINE SUCH ACTION TO BE IN THE PUBLIC INTEREST. SAVAGE ARMS
CORPORATION V. UNITED STATES, 266 U.S. 217. THE SUPPLEMENTAL AGREEMENTS
WILL BE IDENTICAL TO THE ORIGINAL AGREEMENTS EXCEPT THAT THE NUMBER OF
ACRES OF LAND COVERED WILL BE REDUCED AND THE AMOUNT OF COMPENSATION
REDUCED CORRESPONDINGLY. THERE IS NO TIME LIMIT SPECIFIED IN THE ACT IN
WHICH THE AGREEMENTS MUST BE EXECUTED AND THE SUPPLEMENTAL AGREEMENTS
WILL FURTHER THE PURPOSES OF THE ACT.
B-113198, SEP. 13, 1956
ATLANTIC AND PACIFIC WIRE AND CABLE COMPANY, INC. :
REFERENCE IS MADE TO LETTERS DATED AUGUST 10 AND 31, 1956, FROM
ROTHSTEIN AND ROTOLO, IN YOUR BEHALF, RELATIVE TO SETTLEMENTS BY THE
CLAIMS DIVISION OF OUR OFFICE WHERE THE AMOUNT OF $20,407.18 OTHERWISE
FOUND DUE TO ZENITH INDUSTRIES, INC., NATIONAL MAGNET WIRE CORPORATION
AND ATLANTIC AND PACIFIC WIRE AND CABLE COMPANY, INC., WAS WITHHELD AND
APPLIED IN LIQUIDATION OF THE INDEBTEDNESS OF ZENITH INDUSTRIES, INC.,
AND NATIONAL MAGNET WIRE CORPORATION TO THE UNITED STATES BY REASON OF
DEFAULTS UNDER, AND OVERPAYMENTS IN CONNECTION WITH, CONTRACTS WITH
GENERAL SERVICES ADMINISTRATION AND THE DEPARTMENTS OF THE AIR FORCE,
ARMY, NAVY AND COMMERCE.
IT IS STATED IN THE LETTER OF AUGUST 10TH THAT THE INTERNAL REVENUE
SERVICE THROUGH A RECENTLY COMPLETED EXHAUSTIVE INVESTIGATION HAS
ESTABLISHED THAT THERE IS NO RELATIONSHIP BETWEEN THE THREE NAMED
CORPORATIONS AND THAT "IT SEEMS MORE THAN PASSING STRANGE THAT YOUR
OFFICE CAN SUMMARILY AND ARBITRARILY FIND TO THE CONTRARY ON THE BASIS
OF NO PROBATIVE EVIDENCE.'
THERE IS NO EVIDENCE HERE THAT THE INTERNAL REVENUE SERVICE HAS
ESTABLISHED THAT THERE IS NO RELATIONSHIP BETWEEN THE THREE CORPORATIONS
NAMED. GRANTING THAT SUCH A DECISION WAS MADE BY THAT
AGENCY, SUCH A DECISION WOULD BE BINDING ON OUR OFFICE ONLY IN
CONNECTION WITH INCOME TAX MATTERS. THE MANNER IN WHICH DISPOSITION OF
THE INSTANT MATTER WAS EFFECTED BY OUR OFFICE WAS IN CONFORMITY WITH
WELL-ESTABLISHED PROCEDURES SANCTIONED UNDER THE LAWS GOVERNING THE
PERFORMANCE OF ITS AUTHORIZED FUNCTIONS. THE CLAIM WAS CONSIDERED UNDER
THE PROVISIONS OF SECTION 236 OF THE REVISED STATUTES, AS AMENDED BY
SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, SETTING FORTH
THAT---
"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED
STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT
OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL
BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'
THE POSITION NOW TAKEN THAT THE THREE CONCERNS ARE UNRELATED IS IN
OPPOSITION TO THE CONCLUSION STATED IN OUR DECISIONS OF JANUARY 27, AND
FEBRUARY 18, 1953, TO YOU. IT IS DESIRED TO AGAIN EMPHASIZE THE FACT
THAT WHERE, AS HERE, THE RECOGNITION OF A CORPORATION AS A DISTINCT
LEGAL ENTITY WOULD DEFEAT PUBLIC CONVENIENCE OR JUSTIFY A WRONG, AMONG
OTHER ABUSES, THE LAW WILL DISREGARD THE ORGANIZATION AS A SEPARATE
ENTITY. MCCASKILL CO. V. UNITED STATES, 216, U.S. 504. COURTS WILL
LOOK BEYOND A CORPORATE ENTITY WHENEVER JUSTICE REQUIRES, HAMILTON RIDGE
LUMBER SALES CORPORATION V. WILSON, 25 F.2D 592, AND WILL GO BEHIND SUCH
ENTITY TO DETERMINE AN ATTEMPTED EVASION OF FEDERAL LIABILITY. SEE
PALMOLIVE CO. V. CONWAY, 43 F.2D 226.
ON THE BASIS OF THE FACTS THEN, AND NOW, AVAILABLE THERE APPEARS TO
BE SUFFICIENT DOUBT AS TO THE RIGHT OF THE COMPANIES TO PAYMENT OF THE
AMOUNTS CLAIMED WITHOUT SETOFF TO SATISFY THEIR OBLIGATIONS TO THE
UNITED STATES. IN INSTANCES WHERE THE FACTS INVOLVED RAISE A QUESTION
AS TO THE PROPRIETY OR VALIDITY OF A CLAIM "IT IS THE UNDOUBTED RIGHT
AND DUTY" OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT A CLAIM
IN WHOLE OR IN PART "AS THEIR JUDGMENT DICTATES"--- LONGWILL V. UNITED
STATES, 17 C.CLS. 288, 291--- LEAVING THE CLAIMANTS TO PROSECUTE THEIR
CASES IN A COURT OF LAW, FOR "THAT IS THE MAIN PROTECTION WHICH THE
ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN
THE ESPECIALLY OF CLAIMS AS TO WHICH THERE IS A REASONABLE SUSPICION OF
FRAUD, IRREGULARITY, OR ERROR.' CHARLES V. UNITED STATES, 19 C.CLS. 316,
319.
ACCORDINGLY, THE ACTION TAKEN IN THE MATTER APPEARS TO HAVE BEEN
PROPER.
B-125321, SEP. 13, 1956
TO SOUTHERN PACIFIC COMPANY:
CONSIDERATION HAS BEEN GIVEN YOUR REQUEST, PER FILE YG 85-8729, FOR
REVIEW OF THE SETTLEMENT DATED OCTOBER 27, 1953 (CLAIM NO. TK-480836),
WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL ALLOWANCE OF $65.01 FOR
TRANSPORTING A CARLOAD OF LUMBER OR TIMBERS, ROUGH OR DRESSED, WEIGHING
81,260 POUNDS, FROM MCNEIL ISLAND, WASHINGTON, TO STOCKTON, CALIFORNIA,
UNDER BILL OF LADING NO. WV-2969573, DATED JANUARY 12, 1951.
THE RECORD SHOWS THAT THE SHIPMENT ORIGINALLY WAS CONSIGNED TO
LATHROP, CALIFORNIA, AND WAS TENDERED TO THE PUGET SOUND FREIGHT LINES
ON JANUARY 12, 1951. THE SHIPMENT WAS ROUTED ,PSFL-NP-SP" AND MOVED TO
LATHROP, AND YOUR BILL NO. F-8729-A SHOWS THAT AT THAT POINT IT WAS
DIVERTED TO STOCKTON, CALIFORNIA. FOR THIS TRANSPORTATION YOU
ORIGINALLY CLAIMED FREIGHT CHARGES OF $593.20 ON YOUR BILL NO. F-8729,
COMPUTED ON THE BASIS OF A COMBINATION OF RATES CONSTRUCTED 65
CENTS AND 8 CENTS PER 100 POUNDS TO AND BEYOND LATHROP, AS PUBLISHED
IN ITEM NO. 3010-A OF SUPPLEMENT NO. 145 TO PACIFIC SOUTHCOAST FREIGHT
BUREAU TARIFF NO. 80-H AND IN PACIFIC SOUTHCOAST FREIGHT BUREAU TARIFF
NO. 255-E, AGENT J. P. HAYNES' I.C.C. NOS. 1407 AND 1513, RESPECTIVELY.
THE CHARGES WERE PAID AS CLAIMED ON VOUCHER NO. 203881 OF THE MARCH 1951
ACCOUNT OF S. E. SIGNAL. THEREAFTER, YOU CLAIMED ADDITIONAL FREIGHT
CHARGES OF $65.01 IN YOUR SUPPLEMENTAL BILL NO. F-8729-A, COMPUTED ON
THE BASIS OF A COMBINATION OF RATES MADE UP OF A LOCAL RATE OF 8 CENTS
PER 100 POUNDS FROM MCNEIL ISLAND TO OLYMPIA, WASHINGTON, A 65-CENT RATE
FROM OLYMPIA TO LATHROP, AND AN 8-CENT RATE BEYOND.
BY THE SETTLEMENT OF OCTOBER 27, 1953, YOUR SUPPLEMENTAL CLAIM WAS
DISALLOWED BECAUSE THE 65-CENT RATE FROM OLYMPIA TO LATHROP WAS
APPLICABLE VIA THE PUGET SOUND FREIGHT LINES FROM OLYMPIA TO TACOMA,
WASHINGTON, THROUGH MCNEIL ISLAND, AN INTERMEDIATE POINT, AND ITEM 70-B
OF SUPPLEMENT 119 TO THE CITED TARIFF NO. 80-H AUTHORIZED THE
APPLICATION OF THE OLYMPIA RATE FROM AN INTERMEDIATE POINT.
IN REQUESTING REVIEW OF THE SETTLEMENT YOU URGE THAT MCNEIL ISLAND IS
NOT CONSIDERED INTERMEDIATE BETWEEN OLYMPIA AND TACOMA, WASHINGTON, AND
THAT THE PUGET SOUND FREIGHT LINES, WHICH OPERATES WATER SERVICE BETWEEN
SEATTLE, TACOMA, AND VARIOUS OTHER PUGET SOUND POINTS, MAINTAINS NO
DIRECT SERVICE WHEREBY MCNEIL ISLAND IS CONSIDERED BY THEM AS AN
INTERMEDIATE POINT.
THE CITED TARIFF ITEM NO. 70-B, BEARING THE TITLE "COMMODITY RATES
APPLICABLE FROM INTERMEDIATE POINTS," PROVIDES, IN PERTINENT PART:
"SUBJECT TO THE PROVISIONS OF NOTES 1, 2, 3 AND 4 BELOW, FROM ANY
POINT OF ORIGIN FROM WHICH A COMMODITY RATE ON A GIVEN ARTICLE TO A
GIVEN DESTINATION AND VIA A GIVEN ROUTE IS NOT NAMED IN THIS TARIFF,
WHICH POINT IS INTERMEDIATE TO A POINT FROM WHICH A COMMODITY RATE ON
SAID ARTICLE IS PUBLISHED IN THIS TARIFF VIA A ROUTE THROUGH THE
INTERMEDIATE POINT OVER WHICH SUCH COMMODITY RATE APPLIES TO THE SAME
DESTINATION, APPLY FROM SUCH INTERMEDIATE POINT TO SUCH DESTINATION AND
VIA SUCH ROUTE THE COMMODITY RATE IN THIS TARIFF ON SAID ARTICLE FROM
THE NEXT POINT BEYOND FROM WHICH A COMMODITY RATE IS PUBLISHED HEREIN ON
THAT ARTICLE TO THE SAME DESTINATION VIA THE SAME ROUTE.'
THERE IS NOTHING IN THIS ITEM RESTRICTING OR QUALIFYING THE
INTERMEDIATE APPLICATION OF RATES WHICH PREVENTS SUCH APPLICATION FROM
POINTS ON THE PUGET SOUND FREIGHT LINES.
AN INTERMEDIATE PROVISION ESTABLISHES SPECIFIC RATES JUST AS
POSITIVELY, PLAINLY AND LEGALLY FROM UNNAMED INTERMEDIATE POINTS AS IF
SUCH POINTS WERE SPECIFICALLY NAMED. MILLER AND LUX V. SOUTHERN
PACIFIC COMPANY, 102 I.C.C. 137, 139; FRUEN GRAIN COMPANY V. LA CROSSE
AND SOUTHEASTERN RAILWAY COMPANY, ET AL., 132 I.C.C. 747, 748; LUSTBURG
NAST COMPANY V. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, ET
AL., 229 I.C.C. 684, 685; FIRESTONE TIRE AND RUBBER COMPANY OF
CALIFORNIA V. SOUTHERN PACIFIC COMPANY, ET AL., 243 I.C.C. 157, 159. IF
CARRIERS PARTIES TO A TARIFF DEEM A ROUTE UNNATURALLY OR UNDULY
CIRCUITOUS, OR FOR ANY REASON DESIRE TO EXCEPT IT FROM THE APPLICATION
OF THE GENERAL TERMS OF AN INTERMEDIATE RULE, THEY SHOULD SO PROVIDE BY
APT AND CLEAR LANGUAGE. UNION UNDERWEAR COMPANY V. FRANKFORT AND
CINCINNATI RAILROAD COMPANY, ET AL., 214 I.C.C. 695, 697; WILBANKS AND
PIERCE, INC. V. ATLANTA AND WEST POINT RAILROAD COMPANY, ET AL., 235
I.C.C. 371, 374. CONCERNING THE EFFECT OF TARIFF INTERMEDIATE RULES SEE
REVERE COPPER AND BRASS, INC. V. SOUTHERN STEAMSHIP COMPANY, ET AL., 263
I.C.C. 625, 627, WHERE IT WAS STATED---
"* * * TO INTERPRET THE RULE AS DESIRED BY THE DEFENDANT WOULD
REQUIRE A MODIFICATION OF THE RULE TO APPLY ONLY TO POINTS OF ORIGIN ON
THE RAIL PORTIONS OF THE RAIL-WATER HAULS, A RESTRICTION WHICH HAS NO
FOUNDATION IN THE TERMS OF THE RULE OR IN THE PROVISIONS OF THE TARIFF
READ AS A WHOLE. IN THE ABSENCE OF SUCH A RESTRICTION, NO SOUND REASON
APPEARS WHY AN INTERMEDIATE RULE, PUBLISHED IN CONNECTION WITH A
RAIL-AND-WATER RATE DOES NOT ESTABLISH THAT RATE FOR WATER MOVEMENT FROM
THE PORT AT WHICH THE TRAFFIC IS INTERCHANGED WITH THE WATER LINE. NOR
DOES THE FACT THAT THE DEFENDANT MERELY PARTICIPATED IN THE TARIFF AS A
DESTINATION CARRIER CHANGE THE SITUATION, AS CONTENDED BY IT. SHIPPERS
ARE NOT CHARGED WITH THE KNOWLEDGE OF RESTRICTIONS CONTAINED IN POWERS
OF ATTORNEY ISSUED TO THE PUBLISHING AGENT, WHICH, LIKE CONCURRENCES,
ARE NOT POSTED IN THE SAME MANNER AS ARE TARIFFS. HEALY AND TOWLE V.
CHICAGO AND N.W. RY. CO., 43 I.C.C. 83. NATIONAL-AMERICAN WHOLESALE
LBR. ASSN. V. A.C.L.R. CO., 120 I.C.C. 665.
ON THE PRESENT RECORD, THE SETTLEMENT OF OCTOBER 27, 1953,
DISALLOWING YOUR CLAIM, DOES NOT APPEAR TO HAVE BEEN IN ERROR AND,
ACCORDINGLY, IT IS SUSTAINED.
B-126404, SEP. 13, 1956
TO ILLINOIS CENTRAL RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE G-WQ-19493-WAG-R, FOR
REVIEW OF SETTLEMENT CERTIFICATE DATED NOVEMBER 14, 1955, WHICH
DISALLOWED YOUR CLAIM ON BILL NO. WT-19493-A, FOR $47.07, ADDITIONAL FOR
THE TRANSPORTATION OF ONE CARLOAD OF CANNED GOODS WEIGHING 70,668
POUNDS, FROM FORT WORTH, TEXAS, TO NEW ORLEANS, LOUISIANA, FOR EXPORT,
UNDER BILL OF LADING NO. WT-6880553, DATED JULY 6, 1945. THE SUBJECT
SHIPMENT CONSISTED OF TRANSIT TONNAGE, ON WHICH INBOUND BILLING WAS
SURRENDERED ON A SHIPMENT WHICH ORIGINATED AT WALLA WALLA, WASHINGTON,
IN APRIL 1945, AND WAS SHIPPED TO FORT WORTH, TEXAS, UNDER BILL OF
LADING NO. WW-2387413, MARKED FOR: TRANSIT.'
FOR THE TRANSPORTATION SERVICE FROM FORT WORTH, TEXAS, TO NEW
ORLEANS, YOU SURRENDERED BILL OF LADING NO. WT-6880553, SHOWING AS A
CREDIT THE AMOUNT OF $131.02 INDICATED AS HAVING BEEN OVERPAID IN
CONNECTION WITH THE THROUGH MOVEMENT. IN OUR AUDIT OF THE TRANSIT
TRANSACTION IT WAS DETERMINED THAT THE APPLICABLE CHARGES WERE FOR
COMPUTATION UPON THE BASIS OF A THROUGH EXPORT COMMODITY RATE OF 77
CENTS PER 100 POUNDS, REDUCED BY DEDUCTIONS FOR LAND-GRANT TO A NET RATE
OF 42.745 CENTS PER 100 POUNDS, PLUS A TRANSIT CHARGE OF 3 1/2 CENTS PER
100 POUNDS ON THE TRANSIT TONNAGE. ON THAT BASIS THE TOTAL ALLOWABLE
CHARGES AMOUNTED TO $326.80, THERE BEING AN UNCOLLECTED OVERPAYMENT OF
$164.06, WHICH WAS DEDUCTED FROM YOUR BILL NO. APR 26372.
YOUR CLAIM FOR $47.07 PER BILL NO. WT-19493-A, DISALLOWED IN OUR
SETTLEMENT, WAS BASED UPON A THROUGH RATE OF 88 CENTS PER 100 POUNDS
(49.405 CENTS AFTER LAND-GRANT DEDUCTIONS) ON THE TRANSIT TONNAGE, AND
IN YOUR REQUEST FOR REVIEW YOU MAKE FURTHER CLAIM FOR $47.07, URGING, IN
SUBSTANCE, THAT UNDER THE PROVISIONS OF THE TRANSIT TARIFF, SOUTHWESTERN
LINES' NO. 174-SERIES, IT WAS REQUIRED, WITH RESPECT TO TRANSIT
SHIPMENTS, THAT IN NO CASE SHOULD THE AGGREGATE CHARGES BE LESS THAN THE
LAWFUL RATE FROM POINT OF ORIGIN TO THE TRANSIT POINT, PLUS THE TRANSIT
CHARGE. IT APPEARS, THEREFORE, THAT IT IS YOUR VIEW THAT THE RATE OF 88
CENTS PER 100 POUNDS FROM POINT OF ORIGIN TO THE TRANSIT POINT, BEING
HIGHER THAN THE THROUGH EXPORT RATE OF 77 CENTS PER 100 POUNDS FROM
ORIGIN TO FINAL DESTINATION, MUST BE APPLIED.
IT IS SIGNIFICANT, IN THIS CONNECTION, THAT RULE 38 (A) OF THE
CONSOLIDATED FREIGHT CLASSIFICATION PROVIDES AS FOLLOWS:
"UNLESS OTHERWISE PROVIDED IN THE GOVERNING TARIFFS, IF THERE IS AN
EFFECTIVE COMMODITY RATE ON A GIVEN SHIPMENT THAT RATE AND NOT THE CLASS
RATE MUST BE APPLIED, EXCEPT THAT RATES (EITHER CLASS OR COMMODITY)
SPECIFICALLY DESIGNATED AS APPLICABLE ONLY ON IMPORT, EXPORT, COASTWISE
OR INTER-COASTAL SHIPMENTS MUST BE APPLIED ON SUCH SHIPMENTS TO THE
EXCLUSION OF ALL OTHER RATES NOT SO DESIGNATED.'
THIS PROVISION OF THE CLASSIFICATION CLEARLY REQUIRES APPLICATION OF
AN EXPORT COMMODITY RATE, AS AVAILABLE IN THIS INSTANCE IN
TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 2-N, SUPPLEMENT 14, TO THE
EXCLUSION OF "ALL OTHER RATES NOT SO DESIGNATED.'
ITEM 6035-C OF TARIFF NO. 2-N NAMED A RATE OF 77 CENTS PER 100 POUNDS
FOR APPLICATION ON SHIPMENTS OF CANNED GOODS, ETC., FORWARDED FROM
POINTS IN WASHINGTON TO NEW ORLEANS, LOUISIANA, FOR EXPORT, AND NOTE 12
OF THAT ITEM PROVIDED THAT SHIPMENTS FROM WASHINGTON MOVING UNDER THAT
RATE WERE ENTITLED TO STORAGE IN TRANSIT AND LABELING IN TRANSIT
PRIVILEGES "AS AUTHORIZED" IN VARIOUS TARIFFS, INCLUDING SOUTHWESTERN
LINES' NO. 174-SERIES "SUBJECT TO THE * * * CONDITIONS" SET FORTH IN
ITEM 6035-C OF TARIFF NO. 2-N. TARIFF NO. 174-SERIES AUTHORIZED
STORAGE IN TRANSIT OF FOODSTUFFS, ETC., AT FORT WORTH, TEXAS. HOWEVER,
IN NONE OF THE SEVERAL CONDITIONS SPECIFIED IN ITEM 6035-C OF
TRANS-CONTINENTAL TARIFF NO. 2-N, UNDER WHICH SHIPMENTS MOVING FROM
WASHINGTON UNDER THE 77-CENT RATE WERE ENTITLED TO STORAGE IN TRANSIT,
WAS IT REQUIRED THAT ANY THROUGH RATE OTHER THAN THE 77-CENT RATE SHOULD
BE APPLIED WHEN A SHIPMENT WAS STORED IN TRANSIT AND SUBSEQUENTLY
FORWARDED TO ULTIMATE DESTINATION WITHIN, AS HERE, THE TIME LIMIT
SPECIFIED IN THOSE CONDITIONS. MOREOVER, IT MAY BE NOTED THAT TARIFF
NO. 2-N SHOWS THE MISSOURI- KANSAS-TEXAS RAILROAD COMPANY OF TEXAS AND
THE ILLINOIS CENTRAL RAILROAD COMPANY AS PARTIES THERETO AND, THEREFORE,
PARTIES TO THE PROVISIONS AND CONDITIONS SPECIFIED IN ITEM 6035 OF THAT
TARIFF, WHICH WAS NOT SO RESTRICTED AS TO REQUIRE APPLICATION OF THE
BASIS THAT YOU ASSERT IS CORRECT.
UPON THIS RECORD IT IS NOT APPARENT WHY THE 77-CENT RATE CONTAINED IN
ITEM 6035-C OF TRANS-CONTINENTAL TARIFF NO. 2-N SHOULD NOT BE CONSIDERED
APPLICABLE ON THE TRANSIT TONNAGE HERE INVOLVED AND, ACCORDINGLY, THE
SETTLEMENT, BEING CONSISTENT WITH THIS CONCLUSION AND NOT SHOWN TO BE IN
ERROR OTHERWISE, IS SUSTAINED.
B-126952, SEP. 13, 1956
TO MISSOURI PACIFIC RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, FILE 6-GR-48238-B, FOR REVIEW OF
THE CERTIFICATES OF SETTLEMENT NOS. 642109 AND 641990, DATED OCTOBER 24,
1955, WHICH DISALLOWED $55,430.83 ON YOUR CLAIM PER BILL NO. 48238-A FOR
$62,067.76 ADDITIONAL TO THE AMOUNT OF $23,894.58 PAID ON YOUR BILL NO.
48238 FOR THE TRANSPORTATION OF ARTICLES DESCRIBED ON THE COVERING BILLS
OF LADING AS ,FIXED AMMUNITION FOR CANNON W/EXPLOSIVE PROJECTILE," ETC.,
FROM ARMY POINT, CALIFORNIA, TO BALDWIN, ARKANSAS, DURING 1945.
FOR THE TRANSPORTATION SERVICES INVOLVED YOU ORIGINALLY CLAIMED AND
WERE PAID AT A RATE OF $1.46 PER 100 POUNDS WHICH IS NAMED IN ITEM 3200
OF TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 3-R, I.C.C. NO. 1506,
LESS LAND-GRANT. IN THE AUDIT OF THE PAID BILL BY OUR OFFICE NOTICE OF
OVERPAYMENT FORM 1003 WAS ISSUED FOR AN OVERCHARGE OF $1,037.64 BASED ON
THE $1.46 RATE SUBJECT TO LAND-GRANT DEDUCTIONS VIA A DIFFERENT ROUTE.
THEREAFTER, BY SUPPLEMENTAL BILL NO. 48238-A YOU CLAIMED $62,067.76
ADDITIONAL BASED ON A RATE OF $3.54 PER 100 POUNDS (65 PERCENT OF
FIRST-CLASS RATE), CITING AS AUTHORITY AAR SECTION 22 QUOTATION 14-A.
YOU WERE ALLOWED $6,636.93 IN THE ABOVE CERTIFICATES OF SETTLEMENT, ON
THE BASIS OF $1.90 PER 100 POUNDS NAMED IN ITEM 4475 OF
TRANS-CONTINENTAL FREIGHT BUREAU TARIFF NO. 3-R, ON "EXPLOSIVES, VIZ. *
* * CARTRIDGES, LOADED,"
LESS LAND-GRANT.
IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE CLASS-65 RATING
PROVIDED IN AAR QUOTATION NO. 14-A SHOULD BE APPLIED ON THE SHIPMENTS
IN QUESTION, AND THAT THE COMMODITY TARIFF ITEM ONLY DISPLACES THE
CLASSIFICATION RATINGS ON SMALL ARMS AMMUNITION CONTAINED IN ITEM 1840
OF THE CLASSIFICATION AND DOES NOT DISPLACE THE EXPLOSIVE PROJECTILE
RATINGS OF FIRST CLASS SHOWN IN ITEM 1815 OF THE CLASSIFICATION. IN
THIS CONNECTION IT IS NOTED THAT THE DESCRIPTION IN ITEM 1815 OF THE
CLASSIFICATION IS BROAD ENOUGH TO COVER EXPLOSIVE FIXED AMMUNITION FOR
CANNON, BUT THE DESCRIPTION IN ITEM 4475 OF TARIFF NO. 3-R FAIRLY
COMPREHENDS THE ARTICLES HERE CONCERNED. RULE 38 OF CLASSIFICATION NO.
15 PROVIDES THAT WHEN A COMMODITY RATE IS ESTABLISHED ON A GIVEN
SHIPMENT THAT RATE AND NOT THE CLASS RATE MUST BE APPLIED, SUBJECT TO
CERTAIN LIMITATIONS NOT APPLICABLE HERE.
THE QUESTION INVOLVED AS TO THESE SHIPMENTS IS WHETHER OR NOT THE
ARTICLES SHIPPED ARE CARTRIDGES WITHIN THE MEANING OF THE TARIFF
DESCRIPTION OF "EXPLOSIVES, VIZ. * * * CARTRIDGES, LOADED," AS SHOWN IN
ITEM 4475 OF TARIFF NO. 3-R. AS NOTED ABOVE THE SHIPMENTS ARE DESCRIBED
ON THE BILLS OF LADING AS "FIXED AMMUNITION FOR CANNON W/EXPLOSIVE
PROJECTILE.' IN CHICAGO, BURLINGTON AND QUINCY R.R. CO. V. THE UNITED
STATES, 73 C.CLS. 250, THERE WERE INVOLVED SHIPMENTS WHICH, AS HERE, THE
BILLS OF LADING DESCRIBED AS AMMUNITION FOR CANNON WITH EXPLOSIVE
PROJECTILE. IN THE CITED CASE THE COURT DETERMINED THE APPLICABLE RATE
TO BE A COMMODITY RATE WHICH, UNDER TARIFF PROVISIONS, WAS APPLICABLE ON
"FIXED AMMUNITION.' THIS TERM IS DEFINED IN WEBSTER'S NEW INTERNATIONAL
DICTIONARY, 2D ED., 1951, AS "AMMUNITION IN WHICH THE PROJECTILE IS
PERMANENTLY ATTACHED TO A CASE WHICH CONTAINS THE PRIMER AND THE
PROPELLANT.' THE SAME DICTIONARY DEFINES A CARTRIDGE AS "A CASE,
CAPSULE, SHELL, OR BAG OF METAL, PASTEBOARD, OR OTHER MATERIAL, HOLDING
A COMPLETE CHARGE FOR A FIREARM, IN SMALL ARMS AND SOME CANNON
CONTAINING ALSO THE PROJECTILE.' PAGE 20 OF WAR DEPARTMENT TECHNICAL
MANUAL TM 9-1904, DATED MARCH 2, 1944, SETS FORTH THAT FIXED AMMUNITION
COMPRISES A CARTRIDGE CASE (WHICH CONTAINS THE PROPELLANT) WHOSE BASE
CONTAINS THE PRIMER, AND WHOSE FORWARD OPENING IS CRIMPED TO THE
PROJECTILE SO THAT THE ENTIRE ROUND IS INTEGRAL AND ALL COMPONENTS ARE
LOADED INTO THE WEAPON IN ONE OPERATION.
IN VIEW OF THE FOREGOING, IT WOULD SEEM THAT THE TYPE OF AMMUNITION
SHIPPED IN THIS INSTANCE IS PROPERLY DESCRIBABLE AS A LOADED CARTRIDGE
WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM. ACCORDINGLY, SUCH
ITEMS WOULD BE ENTITLED TO THE APPLICATION OF THE RATES NAMED IN ITEM
4475 OF TARIFF NO. 3-R ON "CARTRIDGES, LOADED," UNDER THE CAPTION
,EXPLOSIVES, VIZ., " SINCE NO LIMITATION OR RESTRICTION AS TO TYPE,
CHARACTER, SIZE, WEIGHT, OR OTHER QUALITY OF THE LOADED CARTRIDGES IS
INCLUDED IN THE CITED ITEM.
AS TO YOUR SUGGESTION THAT ITEM 4475 OF TARIFF NO. 3-R WAS INTENDED
TO COVER ONLY ITEM 1840 ,CARTRIDGES, SMALL ARM, BLANK OR LOADED," IT MAY
BE NOTED THAT ITEM 4475 PLACES NO RESTRICTION ON THE TYPE, CHARACTER,
SIZE, WEIGHT, OR OTHER QUALITY OF THE LOADED CARTRIDGES. TARIFFS ARE TO
BE CONSTRUED ACCORDING TO THEIR LANGUAGE; THE INTENTION OF THE FRAMERS
IS NOT CONTROLLING; AND THEIR
TERMS SHOULD BE SO CLEARLY STATED AS TO AVOID MISINTERPRETATION OR
MISUNDERSTANDING. LARABEE FLOUR MILLS CORP. V. ATCHISON, TOPEKA AND
SANTA FE RAILWAY CO., 168 I.C.C. 335, 337. TO BE LIMITED IN APPLICATION
A TARIFF ITEM MUST BE APPROPRIATELY QUALIFIED AND NO SUCH QUALIFICATION
CAN BE READ INTO IT LATER. ALLEN MANUFACTURING COMPANY V. LOUISVILLE
AND NASHVILLE RAILROAD COMPANY, 194, I.C.C. 209, 211. THE DESCRIPTION
IN ITEM 1815 OF THE APPLICABLE CONSOLIDATED FREIGHT CLASSIFICATION
READING,"AMMUNITION, FIXED, NOIBN, FOR CANNON," UNDER THE GENERAL
CAPTION ,AMMUNITION, EXPLOSIVE," ETC., AND THAT IN ITEM 4475 OF TARIFF
NO. 3-R READING, "CARTRIDGES, LOADED, IN BOXES," UNDER THE CAPTION
"EXPLOSIVES, VIZ.' APPEAR TO BE EQUALLY APPROPRIATE TO THESE SHIPMENTS,
AND IN SUCH CASES THE SHIPPER IS ENTITLED TO HAVE APPLIED THE ONE
SPECIFYING THE LOWER RATE. UNITED STATES V. GULF REFINING CO., 268 U.S.
542.
IN THE CIRCUMSTANCES OUR OFFICE IS NOT RELYING ON THE RULE OF ANALOGY
AS YOUR REQUEST FOR REVIEW IMPORTS. WE ARE BASING OUR POSITION ON THE
PREMISE THAT THE ARTICLES SHIPPED ARE, IN FACT,
"CARTRIDGES" WITHIN THE GENERALLY ACCEPTED MEANING OF SUCH TERM AND
THAT THE RATE USED IN THE AUDIT HERE APPLIES SPECIFICALLY TO THE
INVOLVED SHIPMENTS.
ACCORDINGLY, THE SETTLEMENTS, WHICH WERE CONSISTENT WITH THE
FOREGOING AND ARE NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE, ARE
SUSTAINED.
B-127455, SEP. 13, 1956
TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE G 473037, FOR REVIEW OF
THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION UNDER CLAIM NO. TK
605230, IN THE ADJUSTMENT OF THE FREIGHT CHARGES ON GOVERNMENT BILL OF
LADING WT-1453006, DATED MAY 18, 1945.
THE RECORD INDICATES THAT AMMUNITION FOR CANNON WITH EXPLOSIVE
PROJECTILES WAS SHIPPED FROM DEFENSE, TEXAS, TO MCCUNE, NEW MEXICO, THE
TRANSIT STATION UNDER GOVERNMENT BILLS OF LADING WV-4536969 AND
WV-4537383, IN OCTOBER 1944. THE ARTICLES SHIPPED OUTBOUND FROM THE
TRANSIT STATION TO PORT CHICAGO, CALIFORNIA, ON BILL OF LADING
WT-1453006, CONSISTED OF AMMUNITION FOR CANNON WITH EXPLOSIVE
PROJECTILES AND EXPLOSIVE BOMBS, AGAINST WHICH INBOUND TONNAGE CREDITS
ACCRUING ON BILLS OF LADING WV-4536969 AND WV-4537383 WERE SURRENDERED
BY THE SHIPPING OFFICER AT MCCUNE. YOU CLAIMED AND WERE PAID $677.33
FOR THE TRANSPORTATION SERVICES ON BILL OF LADING WT-1453006 BASED UPON
THE USE OF A LOCAL RATE FROM MCCUNE TO PORT CHICAGO, LESS LAND-GRANT
DEDUCTIONS. OUR TRANSPORTATION DIVISION FOUND AN OVERPAYMENT OF $84.60
WAS FOUND ON ANOTHER BILL OF LADING NOT HERE INVOLVED, TOTAL $366.83,
WHICH WAS DEDUCTED FROM AMOUNTS OTHERWISE DUE.
IN YOUR REQUEST FOR REVIEW YOU CONTEND THAT THE ARTICLES SHIPPED
OUTBOUND FROM THE TRANSIT STATION--- AMMUNITION FOR CANNON WITH
EXPLOSIVE PROJECTILES AND EXPLOSIVE BOMBS--- WERE NOT THE ,SAME
COMMODITY" AS SHIPPED INBOUND--- AMMUNITION FOR CANNON WITH EXPLOSIVE
PROJECTILES--- AND THAT THEREFORE TRANSIT WAS NOT AVAILABLE UNDER THE
ASSOCIATION OF AMERICAN RAILROADS SECTION 22 QUOTATION 31-E.
ITEM NO. 15 (A) OF QUOTATION 31-E, AS PUBLISHED PRIOR TO APRIL 25,
1945, RELATING TO THE PRESERVATION OF IDENTITY OF TRANSITED ARTICLES, IS
AS FOLLOWS:
"A RESHIPMENT IN A STRAIGHT CARLOAD FROM A TRANSIT POINT WILL BE
ENTITLED TO THE TRANSIT PRIVILEGE ONLY WHEN THE TONNAGE RECORD
SURRENDERED THEREFOR COVERS AN INBOUND SHIPMENT OF THE SAME
COMMODITY SHIPPED OUTBOUND.'
A NOTE TO ITEM NO. 15 PROVIDED THAT---
"PRESERVATION OF THE IDENTITY OF EACH INBOUND SHIPMENT IS NOT
REQUIRED AND SURRENDER OF ANY INBOUND TONNAGE RECORDS AGAINST ANY
OUTBOUND SHIPMENT WILL BE PERMITTED AS SET FORTH ABOVE.'
A LIST OF COMMODITIES NAMED IN ITEM NO. 3 OF QUOTATION 31-E, SUBJECT
TO THE TRANSIT PRIVILEGE, INCLUDES:
"AMMUNITION, EXPLOSIVES, INCENDIARY OR GAS, SMOKE OR TEAR-PRODUCING,
VIZ:
AMMUNITION, FIXED OR SEMI-FIXED, FOR CANNON; BANGOLORE TORPEDOES;
BOMBS, MINES OR DEPTH CHARGES;
PROJECTILES;
WAR HEADS.
"AMMUNITION, FIXED FOR SMALL ARMS, WITH EXPLOSIVE BULLETS.
"GASES, POISON.
"GRENADES, HAND OR RIFLE, PRACTICE.
"TORPEDOES, AIRCRAFT OR SUBMARINE, WITHOUT EXPLOSIVES,
SELFPROPELLING.
EXPLOSIVE, VIZ:
CAPS, BLASTING OR ELECTRIC BLASTING; HIGH EXPLOSIVE, NOIBN HEREIN;
PICRIC ACID;
WET FULMINATE OF MERCURY.
"MILITARY PYROTECHNICS OR FIREWORKS.'
IT IS APPARENT FROM THE FORMAT OF THIS ITEM THAT SEVERAL GENERAL
CLASSES OF COMMODITIES ARE CONTEMPLATED AS BEING SIMILAR FOR TRANSIT
PURPOSES. THE ARTICLES "AMMUNITION, FIXED OR SEMI-FIXED
FOR CANNON" AND "BOMBS, MINES OR DEPTH CHARGES" ARE ITEMS APPEARING
UNDER THE GENERAL GROUP HEADING "AMMUNITION, EXPLOSIVES, INCENDIARY OR
GAS, SMOKE OR TEAR-PRODUCING" AND, AS SUCH, ARE DISTINGUISHABLE FROM
"GASES, POISON," AND OTHER GENERAL CLASSES OR GROUPS OF ITEMS NAMED IN
THE LIST OF COMMODITIES. THUS, IT SEEMS CLEAR THAT AMMUNITION FOR
CANNON WITH EXPLOSIVE PROJECTILES AND EXPLOSIVE BOMBS CONSTITUTE THE
"SAME COMMODITY" WITHIN THE PURVIEW OF THE QUOTATION, AS EFFECTIVE AT
THE TIME OF THE TRANSIT TRANSACTION HERE INVOLVED.
ACCORDINGLY, SINCE THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IS
CONSISTENT WITH THE ABOVE VIEW AND IS NOT OTHERWISE IN ERROR WE WOULD
NOT BE WARRANTED IN MODIFYING THE DISPOSITION OF THE CASE.
B-128522, SEPT. 13, 1956
TO HANFORD ATOMIC METAL TRADES COUNCIL:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1956, EXPRESSING
DISAGREEMENT WITH THE CONCLUSION REACHED IN OUR LETTER B-128522 DATED
AUGUST 8, 1956, TO THE ADMINISTRATOR OF THE HOUSING AND HOME FINANCE
AGENCY, AND REQUESTING RECONSIDERATION THEREOF.
YOU ARE ADVISED THAT THE LETTER OF AUGUST 8, 1956, WAS WRITTEN IN
RESPONSE TO A REQUEST FROM THE ADMINISTRATOR, HHFA, AS DELEGEE OF THE
ATOMIC ENERGY COMMISSION UNDER EXECUTIVE ORDER 10657, AND WHILE WE
APPRECIATE YOUR INTEREST IN THE MATTER WE CANNOT RECONSIDER OUR
CONCLUSION ON THE BASIS OF YOUR REQUEST. WE ARE, HOWEVER, COMPELLED TO
TAKE ISSUE WITH THE STATEMENT IN YOUR LETTER THAT OUR POSITION WAS
"BASED UPON ISOLATED CONGRESSIONAL EXPRESSION AS OPPOSED TO OVERALL
CONGRESSIONAL INTENT.' OUR LETTER ITSELF DEMONSTRATES THAT OUR
CONCLUSION WAS REACHED ONLY AFTER CONSIDERATION OF THE ATOMIC ENERGY
COMMUNITY ACT OF 1955 AS A WHOLE, THE RESOLUTION ADOPTED BY THE JOINT
COMMITTEE ON ATOMIC ENERGY ON JUNE 28, 1956, AND THE PERTINENT
LEGISLATIVE HISTORY. WHILE, AS STATED IN THE HEARINGS BEFORE THE
SUBCOMMITTEE ON COMMUNITIES, JOINT COMMITTEE ON ATOMIC ENERGY, THE
SUPREME COURT HAS SAID, IN THE CASE OF UNITED STATES V. AMERICAN
TRUCKING ASSOCIATIONS, 310 U.S. 534, THAT THE FUNCTION OF THE COURTS IN
STATUTORY INTERPRETATION IS TO GIVE
EFFECT TO THE INTENT OF CONGRESS, THE COURT ALSO SAID IN THAT SAME
CASE (P. 543) THAT---
"THERE IS, OF COURSE, NO MORE PERSUASIVE EVIDENCE OF THE PURPOSE OF A
STATUTE THAN THE WORDS BY WHICH THE LEGISLATURE UNDERTOOK TO GIVE
EXPRESSION TO ITS WISHES. OFTEN THESE WORDS ARE SUFFICIENT IN AND OF
THEMSELVES TO DETERMINE THE PURPOSE OF THE LEGISLATION. IN SUCH CASES
WE HAVE FOLLOWED THEIR PLAIN MEANING. WHEN THAT MEANING HAS LED TO
ABSURD OR FUTILE RESULTS, HOWEVER, THIS COURT HAS LOOKED BEYOND THE
WORDS TO THE PURPOSE OF THE ACT.'
WE DO NOT AGREE THAT THE INTERPRETATION PLACED ON THE ATOMIC ENERGY
COMMUNITY ACT OF 1955 BY THE HOUSING AND HOME FINANCE AGENCY AND BY US
WILL LEAD TO ABSURD OR FUTILE RESULTS, OR THAT IT WILL PREVENT
FULFILLMENT OF THE POLICY DECLARED BY THE CONGRESS IN SECTION 11 OF THE
ACT TO TERMINATE GOVERNMENT OWNERSHIP OF COMMUNITIES OWNED BY THE ATOMIC
ENERGY COMMISSION EXPEDITIOUSLY AND IN A MANNER WHICH WILL NOT IMPEDE
ACCOMPLISHMENT OF THE PURPOSES OF THE ATOMIC ENERGY ACT.
B-128864, SEP. 13, 1956
TO MRS. LUCILLE M. DWYER:
REFERENCE IS MADE TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR
SETTLEMENT DATED NOVEMBER 17, 1948, WHICH DISALLOWED YOUR CLAIM FOR
ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR OVERTIME SERVICES RENDERED
AS AN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE AIR FORCE),
DUNCAN FIELD, SAN ANTONIO, TEXAS, DURING THE PERIOD MARCH 26, 1941, TO
JULY 22, 1942.
YOUR CLAIM WHICH APPARENTLY WAS BASED ON PUBLIC LAW 575, APPROVED
JULY 31, 1946, 60 STAT. 747, WAS DISALLOWED BECAUSE THAT STATUTE---
STEMMING FROM CERTAIN SPECIFIC DECISIONS OF OUR OFFICE--- DID NOT RELATE
TO OVERTIME SERVICES OF THE NATURE UNDERSTOOD TO HAVE BEEN RENDERED BY
YOU.
YOUR ENTITLEMENT TO OVERTIME COMPENSATION, IF ANY, WOULD HAVE DERIVED
INITIALLY FROM THE ACT OF OCTOBER 21, 1940, 54 STAT. 1205, WHICH READS
IN PART AS FOLLOWS:
"THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, COMPENSATION
FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK
COMPUTED AS A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE
IS HEREBY AUTHORIZED TO BE PAID AT SUCH AND TO SUCH MONTHLY, PER DIEM,
HOURLY, AND PIECEWORK EMPLOYEES OF THE FIELD SERVICES OF THE WAR
DEPARTMENT AND THE FIELD SERVICES OF THE PANAMA CANAL WHOSE WAGES ARE
SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES * * * AS SHALL BE
DESIGNATED FROM TIME TO TIME BY THE SECRETARY OF WAR * * *.'
THE DEPARTMENT OF THE AIR FORCE (FORMERLY AN INTEGRAL PART OF THE WAR
DEPARTMENT) REPORTED IN REGARD TO YOUR ORIGINAL CLAIM THAT YOU WERE A
PER ANNUM EMPLOYEE--- A CLASS EXCLUDED FROM THE WAGE BOARD GROUP
REFERRED TO IN THE ABOVE-QUOTED LANGUAGE.
THE LATER ACT OF JUNE 3, 1941, 55 STAT. 241, WHICH AUTHORIZED THE
PRESIDENT OF THE UNITED STATES TO ISSUE REGULATIONS FOR THE PAYMENT OF
OVERTIME COMPENSATION TO CERTAIN PER ANNUM EMPLOYEES WHOSE OVERTIME WAS
ESSENTIAL TO AND DIRECTLY CONNECTED WITH THE EXPEDITIOUS PROSECUTION OF
THE OVERTIME WORK UPON WHICH THE EMPLOYEES ENUMERATED IN THE ACT OF
OCTOBER 21, 1940, WERE ENGAGED. BY EXECUTIVE ORDER NO. 8837, JULY 30,
1941, THE PRESIDENT ISSUED REGULATIONS UNDER THE ACT OF JUNE 3, 1941,
AND AUTHORIZED THE SECRETARY OF WAR OR SUCH SUBORDINATE OFFICERS AS HE
MIGHT DESIGNATE TO DETERMINE WHICH PER ANNUM EMPLOYEES WERE PERFORMING
SERVICES ENTITLING THEM TO OVERTIME COMPENSATION UNDER SUCH ACT.
IT WILL BE APPARENT FROM THE LAST-CITED ACT AND EXECUTIVE ORDER THAT,
BEFORE OVERTIME COMPENSATION COULD HAVE BEEN PAID TO PER ANNUM WAGE
BOARD EMPLOYEES FOR THE PERIOD COVERED BY YOUR
CLAIM, IT WAS ESSENTIAL THAT AN ADMINISTRATIVE DETERMINATION BE MADE
THAT THE SERVICES PERFORMED WERE "ESSENTIAL TO AND DIRECTLY CONNECTED
WITH THE EXPEDITIOUS PROSECUTION OF THE OVERTIME WORK" UPON WHICH THE
EMPLOYEES ENUMERATED IN THE ACT OF OCTOBER 21, 1940, WERE ENGAGED.
FURTHER, SUCH DETERMINATION HAD TO BE MADE WHILE THE ACTS INVOLVED WERE
STILL IN EFFECT, OR PRIOR TO DECEMBER 1, 1942, BECAUSE ALL THE
REGULATIONS ISSUED BY THE PRESIDENT PURSUANT THERETO, OR ANY
ADMINISTRATIVE AUTHORITY TO MAKE CERTIFICATION THEREUNDER, EXPIRED BY
LAW AT THAT TIME.
THE RECORDS ESTABLISH THAT YOU WERE A PER ANNUM EMPLOYEE UNDER THE
1940 ACT AND THAT YOU WERE NOT TIMELY DETERMINED BY COMPETENT AUTHORITY
TO HAVE BEEN ENTITLED TO OVERTIME UNDER THE 1941 STATUTE.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND, UPON
REVIEW, SUCH ACTION MUST BE AND IS SUSTAINED UPON THE BASIS OF THE
PRESENT RECORD.
IT IS BELIEVED THAT THE SUPREME COURT CASE TO WHICH YOUR LETTER
REFERS IS THAT OF THE UNITED STATES V. ALFRED C. BERGH, ET AL., NO.
17-56, WHICH, IT IS UNDERSTOOD, WILL NOT BE DECIDED UNTIL THE NEXT TERM
OF THE COURT. THE BERGH CASE, HOWEVER, WHETHER DECIDED IN FAVOR OF THE
GOVERNMENT OR THE DEFENDANT WOULD NOT APPEAR TO AFFECT THE CONCLUSION
REACHED ABOVE.
B-129111, SEP. 13, 1956
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED AUGUST 30, 1956, WITH ENCLOSURES,
FROM THE DEPUTY ADMINISTRATOR, REQUESTING A DECISION AS TO THE ACTION TO
BE TAKEN CONCERNING AN ERROR THE COAST BUILDING MAINTENANCE COMPANY,
INC., LOS ANGELES, CALIFORNIA, ALLEGES IT MADE IN ITS BID ON WHICH
CONTRACT NO. V3044P-161 WAS AWARDED.
THE VETERANS ADMINISTRATION REGIONAL OFFICE, LOS ANGELES, CALIFORNIA,
BY INVITATION NO. 57-6, REQUESTED BIDS--- TO BE OPENED JUNE 18, 1956---
FOR FURNISHING THE JANITORIAL SERVICES DESCRIBED IN THE INVITATION
DURING THE PERIOD FROM JULY 1, 1956, TO JUNE 30, 1957, INCLUSIVE, UNLESS
SOONER TERMINATED UNDER THE PROVISIONS OF THE CONTRACT. IN RESPONSE THE
COAST BUILDING MAINTENANCE COMPANY, INC., SUBMITTED A BID DATED JUNE 15,
1956, OFFERING TO PERFORM THE SERVICES FOR THE AMOUNT OF $1,550 PER
MONTH. THE THREE OTHER BIDS ON THE WORK WERE IN THE AMOUNTS OF $2,100,
$2,350, AND $2,915. THE BID OF THE COAST BUILDING MAINTENANCE COMPANY,
INC., WAS ACCEPTED ON JUNE 19, 1956.
BY LETTERS DATED JUNE 27 AND 29, 1956, THE COAST BUILDING MAINTENANCE
COMPANY, INC., ADVISED THAT IT HAD FAILED TO INCLUDE IN ITS BID PRICE
THE COST OF DUSTING ALL LIGHTS AND PIPES QUARTERLY;
THAT IT WAS AWARE, PRIOR TO SUBMITTING ITS BID, THAT THIS WORK HAD TO
BE DONE SINCE THIS FACT WAS POINTED OUT TO ONE OF ITS REPRESENTATIVES;
AND THAT IT HAD ALSO FAILED TO CONSIDER THE INCREASED LABOR EXPENSE
RESULTING FROM ADDITIONAL PERSONNEL NOW OCCUPYING THE BUILDING AS
COMPARED WITH THE PERIOD OF ITS LAST CONTRACT FOR SUCH SERVICES. THE
CORPORATION REQUESTED THAT THE CONTRACT PRICE BE INCREASED BY $325 TO
COVER THE COST OF THE OMITTED SERVICES. IN SUPPORT OF ITS ALLEGATION OF
ERROR, THE CORPORATION, A COST BREAKDOWN OF THE AMOUNT OF THE INCREASE
REQUESTED BY IT.
THERE WAS NO ERROR APPARENT ON THE FACE OF THE CORPORATION'S BID AND
IT APPEARS THAT THE CONTRACTING OFFICER DID NOT CONSIDER THE BID OUT OF
LINE WITH THE OTHER BIDS RECEIVED. THE DIFFERENCE BETWEEN THE
CORPORATION'S BID ON THE JANITORIAL SERVICES AND THE OTHER BIDS RECEIVED
THEREON IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT THE
CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ANY ERROR IN THE BID.
ALTHOUGH, AFTER AWARD, THE CORPORATION FURNISHED ITS WORKSHEETS AND
OTHER DATA IN SUPPORT OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR
THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE
FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE. THE PRESENT
RECORD INDICATES THAT 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 O., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V.
UNITED STATES. 259 U.S. 75.
THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS
AS TO THE WORK TO BE PERFORMED. THE RESPONSIBILITY FOR THE PREPARATION
OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE
FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163.
IF, AS ALLEGED, THE CORPORATION UNDERESTIMATED THE COST OF PERFORMING
THE WORK IN FAILING TO TAKE INTO CONSIDERATION CERTAIN PARTS OF THE
WORK, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE
OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE
GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 83 U.S. 55, 61. ANY ERROR
THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE,
DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE OGDEN AND DOUGHERTY V.
UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56
F.SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.
ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL
BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. V3044 P-164, AS
REQUESTED BY THE COAST BUILDING MAINTENANCE COMPANY, INC.
B-108232, SEPT. 12, 1956
TO MR. GEORGE H. FOSTER:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1956, IN EFFECT
REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF MAY 24,
1956, WHICH ALLOWED YOU $12,994.91 AS RETIRED PAY UNDER TITLE III OF THE
ACT OF JUNE 29, 1948, 62 STAT. 1087, FOR THE PERIOD SEPTEMBER 1, 1951,
TO MARCH 31, 1956.
IN THE COMPUTATION OF THE AMOUNT ALLOWED, NO CREDIT WAS GIVEN FOR THE
TIME YOU SERVED AS A MEMBER OF THE HONORARY RESERVE SECTION OF THE
OFFICERS' RESERVE CORPS FROM OCTOBER 12, 1948, TO JUNE 30, 1949.
SECTION 302 (C) AND THE LAST PROVISO OF SECTION 303 OF THE ACT OF JUNE
29, 1948, AS AMENDED, 10 U.S.C. 1036A, 1036B, PROVIDE THAT FOR THE
PURPOSES MENTIONED IN THOSE SECTIONS, EACH YEAR OF SERVICE AS A MEMBER
OF A RESERVE COMPONENT PRIOR TO JULY 1, 1949, SHALL BE DEEMED TO BE A
YEAR OF SATISFACTORY FEDERAL SERVICE, SUBJECT TO THE PROVISIONS OF
SECTION 306 (E) OF THAT ACT. SECTION 306 (E) STATES THAT SERVICE IN "AN
INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS" SHALL NOT BE
DEEMED TO BE FEDERAL SERVICE.
SECTION VI, WAR DEPARTMENT CIRCULAR NO. 356, DECEMBER 3, 1946, WHICH
ESTABLISHED THE HONORARY RESERVE AS A SECTION OF THE OFFICERS' RESERVE
CORPS, ALSO ABOLISHED THE INACTIVE SECTION OF THE OFFICERS' RESERVE
CORPS AND ALL OFFICERS THEN HOLDING APPOINTMENTS IN THE INACTIVE SECTION
WERE TRANSFERRED TO THE HONORARY RESERVE. IT WAS PROVIDED FURTHER THAT
OFFICERS ASSIGNED TO THE HONORARY RESERVE WOULD NOT BE "ELIGIBLE FOR
PROMOTION, ASSIGNMENT, OR ACTIVE DUTY IN PEACETIME.' PARAGRAPH 10C (4),
OF THE CIRCULAR STATED THAT THE INACTIVE RESERVE WOULD BE COMPOSED OF,
AMONG OTHERS,"THOSE OFFICERS IN THE HONORARY RESERVE.' THERE IS NO DOUBT
THAT AT THAT TIME THE HONORARY RESERVE WAS AN INACTIVE RESERVE SECTION
OF THE OFFICERS' RESERVE CORPS, AND IT IS OUR VIEW THAT DEPARTMENT OF
THE ARMY CIRCULAR NO. 246, AUGUST 13, 1948, DID NOT CHANGE THE INACTIVE
CHARACTER OF THE HONORARY RESERVE IN ANY WAY. THE 1948 CIRCULAR
PROVIDED THAT THE INACTIVE RESERVE WAS TO CONSIST OF RESERVE OFFICERS
WHO WERE PHYSICALLY AND PROFESSIONALLY QUALIFIED BUT WHO WERE
TRANSFERRED FROM THE ACTIVE RESERVE BY REASON OF BEING OVER
AGE-IN-GRADE, BEING IN EXCESS OF AUTHORIZED NUMBER IN GRADE, OR BEING
UNABLE OR UNWILLING TO PARTICIPATE IN THE REQUIRED ACTIVITIES, AS WELL
AS THOSE WHO WERE PHYSICALLY DISQUALIFIED TEMPORARILY FOR THE ACTIVE
RESERVE BECAUSE OF LACK OF PROFESSIONAL FITNESS OR BECAUSE OF PHYSICAL
DEFECTS, DEEMED REMEDIAL WITHIN ONE YEAR. OFFICERS IN THE HONORARY
RESERVE WERE TO BE THOSE WHOSE PAST SERVICE HAD BEEN HONORABLE AND WHO
(1) HAD REACHED THE MAXIMUM AGE-IN-GRADE FOR THE ACTIVE RESERVE OR THE
INACTIVE RESERVE IF THEY HAD 20 YEARS' SERVICE AND APPLIED FOR TRANSFER
TO THE HONORARY RESERVE, (2) THOSE WHO HAD COMPLETED 20 YEARS' SERVICE
IN THE ARMY, IF THEY APPLIED FOR TRANSFER, (3) THOSE PHYSICALLY
DISQUALIFIED OTHER THAN THROUGH THEIR OWN MISCONDUCT AND WHO APPLIED FOR
TRANSFER OR (4) THOSE WHO REACHED THE AGE OF 60 AND WERE QUALIFIED UNDER
(2). IT WAS PROVIDED FURTHER THAT TIME IN THE INACTIVE RESERVE WOULD
COUNT TOWARDS TIME ELIGIBILITY FOR THE HONORARY RESERVE; THAT OFFICERS
ASSIGNED TO THE INACTIVE RESERVE AND THE HONORARY RESERVE WOULD NOT BE
ELIGIBLE FOR INACTIVE DUTY TRAINING PAY OR PROMOTION; AND THAT, IN
ADDITION, MEMBERS OF THE HONORARY RESERVE "WILL NOT BE ELIGIBLE FOR ANY
ACTIVE DUTY.'
SUCH REGULATIONS CLEARLY SHOW THAT THE HONORARY RESERVE RETAINED ITS
CHARACTER AS AN INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS
AFTER AUGUST 13, 1948. IT WOULD BE MOST ANOMALOUS IF TIME SPENT IN THE
INACTIVE RESERVE COULD BE COUNTED FOR ELIGIBILITY FOR TRANSFER TO A
RESERVE WHICH WAS NOT INACTIVE. PHYSICAL AND MENTAL QUALITIES, RATHER
THAN TIME SERVED ARE THE FACTORS WHICH DETERMINE WHETHER AN OFFICER
SHOULD SERVE IN THE ACTIVE RESERVE. IT SHOULD BE NOTED ALSO THAT WHILE
PROVISION WAS MADE FOR TRANSFERS FROM THE INACTIVE RESERVE TO THE ACTIVE
RESERVE (PARAGRAPH 2 (E) OF CIRCULAR NO. 246), NO SIMILAR PROVISION
APPEARS TO HAVE BEEN MADE FOR TRANSFER FROM THE HONORARY RESERVE.
APPARENTLY, MEMBERSHIP IN THE HONORARY RESERVE WAS TO BECOME THE
ULTIMATE STATUS OF MEMBERS OF THE OFFICERS' RESERVE CORPS WHO LIVED LONG
ENOUGH AND WHO OBTAINED THE NECESSARY ELIGIBILITY QUALIFICATIONS. YOU
RELATE THAT AT THE TIME YOU APPLIED FOR TRANSFER TO THE HONORARY
RESERVE, YOU HAD DECIDED THAT BECAUSE OF OFFICIAL DUTIES, YOU WOULD BE
UNABLE TO DEVOTE FURTHER TIME IN THE RESERVE AND THAT YOU CONSIDERED
YOURSELF TOO OLD TO SERVE ON ACTIVE DUTY EXCEPT IN AN EXTREME EMERGENCY.
UPON SUCH TRANSFER, YOU NO LONGER WERE ELIGIBLE FOR ANY ACTIVE DUTY.
IT SEEMS EVIDENT THAT THE HONORARY RESERVE, AS DESCRIBED IN THE 1948
CIRCULAR, WAS, IN FACT, AN INACTIVE RESERVE SECTION OF THE OFFICERS'
RESERVE CORPS AND, IN THAT CONNECTION, IT WILL BE NOTED THAT THE
LANGUAGE OF SECTION 306 (E) OF THE 1948 ACT DOES NOT REFER TO A SPECIFIC
INACTIVE RESERVE SECTION OF THE OFFICERS' RESERVE CORPS BUT TO "AN"
(THAT IS, ANY) INACTIVE RESERVE SECTION OF THAT COMPONENT.
FOR THE REASONS INDICATED, WE BELIEVE THE CONCLUSION IS REQUIRED THAT
THE TIME YOU SERVED AS A MEMBER OF THE HONORARY RESERVE WAS SERVED IN AN
INACTIVE RESERVE SECTION OF THE OFFICER'S RESERVE CORPS WITHIN THE
MEANING OF SECTION 306 (E) OF THE 1948 ACT. 28 COMP. GEN. 655. WHILE
YOU VIEW THAT DECISION AS DECIDING A MUCH NARROWER QUESTION, IT WAS
STATED IN OUR DECISION OF JANUARY 11, 1954, B-115877, THAT "THE BROAD
QUESTION CONSIDERED IN THE DECISION OF MAY 20, 1949, 28 COMP. GEN. 655,
RELATED TO THE COUNTING OF TIME IN THE HONORARY RESERVE OF THE ARMY
OFFICER'S RESERVE CORPS FOR RETIRED PAY PURPOSES UNDER TITLE III,"
WHICH, OF COURSE, INCLUDED QUESTIONS OF TIME COUNTABLE FOR ALL PURPOSES
UNDER TITLE III, INCLUDING SECTIONS 302 AND 303.
CONCERNING THE QUESTION WHETHER YOU ARE ENTITLED TO RETIRED PAY FROM
YOUR 60TH BIRTHDAY ON AUGUST 23, 1951, TO AUGUST 31, 1951, IT HAS BEEN
HELD THAT THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C.
47A, IS NOT APPLICABLE TO DISABILITY RETIREMENT PAY AWARDED UNDER THE
ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456, SINCE SUCH RETIRMENT
PAY IS IN THE NATURE OF A PENSION. WHILE STATEMENTS HAVE BEEN MADE IN
OUR DECISIONS THAT A TRANSFER TO A RESERVE RETIRED LIST UNDER TITLE III
OF THE 1948 ACT IS NOT A RETIREMENT IN THE SENSE THAT A MEMBER OF A
REGULAR SERVICE RETIRES FOLLOWING A CAREER OF ACTIVE DUTY, AND THAT
RETIRED PAY AWARDED UNDER TITLE III IS IN THE NATURE OF A PENSION FOR
PAST SERVICE, THE COURT OF CLAIMS DECIDED IN THE CASE OF YARNALL V.
UNITED STATES, 131 C.CLS. 111, THAT PERSONS GRANTED RETIRED PAY UNDER
TITLE III, ARE RETIRED WITHIN THE MEANING OF SECTION 412 (A) OF THE
OFFICER PERSONNEL ACT OF 1947, 61 STAT. 874, WHICH GRANTS SPECIAL
RETIRED PAY BENEFITS TO CERTAIN OFFICERS OF THE NAVY OR MARINE CORPS,
AND RESERVE COMPONENTS THEREOF, WHO HAVE BEEN SPECIALLY COMMENDED FOR
THEIR PERFORMANCE OF DUTY IN ACTUAL COMBAT, WHEN SUCH OFFICERS ARE
"RETIRED.' AND, IN DECISION OF AUGUST 24, 1956, B-93176, WE HELD THAT WE
WOULD FOLLOW, IN SIMILAR CASES, THE COURT'S DECISION IN THE YARNALL
CASE. IF MEMBERS WHO ARE GRANTED RETIRED PAY UNDER TITLE III OF THE
1948 ACT ARE TO BE REGARDED AS HAVING BEEN RETIRED, SO AS TO RECEIVE THE
BENEFITS OF SECTION 412 (A) OF THE 1947 ACT, A CONCLUSION THAT SUCH
MEMBERS ARE NOT RETIRED WITHIN THE MEANING OF THE ACT OF APRIL 23, 1930,
WOULD NOT SEEM TO BE TENABLE. SOME OF THE ECONOMIES AND ADVANTAGES
SOUGHT TO BE ACCOMPLISHED BY THE 1930 ACT ARE OBTAINED IN APPLYING THAT
ACT TO CASES SUCH AS YOURS, INVOLVING RETIRED PAY UNDER TITLE III OF THE
ACT OF JUNE 29, 1948, AND SINCE THE COURT HAS TAKEN THE POSITION IT DID
TAKE IN THE YARNALL CASE AND WE HAVE AGREED TO FOLLOW TIE COURT'S
DECISION, WE ARE UNABLE TO AGREE THAT THERE IS A SUBSTANTIAL BASIS FOR
DEPARTING FROM THE RULE SO APPLYING THE 1930 ACT, AS ANNOUNCED IN 28
COMP. GEN. 321 AND 30 COMP. GEN. 287, AND AS GENERALLY FOLLOWED BY THE
MILITARY DEPARTMENTS SINCE 1948.
IT APPEARS THAT THE RETIRED PAY DIVISION, ARMY FINANCE CENTER,
INDIANAPOLIS, INDIANA, HAS ADVISED YOU THAT YOUR SERVICE FOR RETIRED PAY
COMPUTATION PURPOSES HAS BEEN RECOMPUTED AND CHANGED
FROM 12.76 TO 12.78 YEARS AND SINCE IT APPEARS THAT THE LATTER FIGURE
IS THE CORRECT ONE AND THAT THE SETTLEMENT OF MAY 24, 1956, WAS COMPUTED
ON THE BASIS OF 12.76 YEARS, A SUPPLEMENTAL SETTLEMENT WILL ISSUE
ALLOWING THE PROPER ADDITIONAL AMOUNT FOUND DUE.
B-126800, SEPT. 12, 1956
TO THE ADMINISTRATOR, MARITIME ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1956, WITH
ENCLOSURES, INQUIRING AS TO WHETHER WE WOULD HAVE ANY OBJECTION TO YOUR
PROPOSED REFUND TO WISCONSIN AND MICHIGAN STEAMSHIP COMPANY OF
INTEREST PAID UPON A MORTGAGE NOTE WHICH WAS CANCELLED BY VIRTUE OF
THE APPROVED ALLOWANCES FOR THE CONVERSION OF THE S.S. MARINE STAR TO A
GREAT LAKES FREIGHT AND PASSENGER VESSEL. ENCLOSED WITH YOUR LETTER WAS
A MEMORANDUM OF THE MARITIME ADMINISTRATION'S GENERAL COUNSEL CONCLUDING
THAT THE PURCHASER IS ENTITLED TO THE REFUND OF INTEREST.
YOU ARE ADVISED THAT WE CONCUR IN THE CONCLUSION OF YOUR GENERAL
COUNSEL. HOWEVER, OUR EXAMINATION OF THE MATTER DISCLOSES THAT THE
AMOUNT OF $86,284.33 REPORTED BY THE CLAIMANT AS THE AMOUNT OF INTEREST
PAID TO THE GOVERNMENT IS OVERSTATED BY $1,696.90. THE PURCHASER PAID
$79.27 WHICH WAS NOT INCLUDED IN THE AMOUNT OF $86,284.33. THIS
REPRESENTED INTEREST CHARGED FOR DELAY IN PAYMENT OF MORTGAGE
INSTALLMENT DUE JUNE 21, 1952. ALSO, THE TOTAL INCLUDES AN AMOUNT OF
$18,909.14 FOR INTEREST DUE DECEMBER 21, 1952. THE AMOUNT PAID WAS
$17,132.97, OR $1,776.17 LESS, WHICH WAS THE AMOUNT ACTUALLY DUE. THIS
DIFFERENCE AROSE BECAUSE OF A CHANGE IN THE PRINCIPAL BALANCE THROUGH
APPLICATION OF A PORTION OF THE FIRST PARTIAL CONVERSION ALLOWANCE TO
THE UNPAID BALANCE.
ACCORDINGLY, WE PERCEIVE NO OBJECTION TO A REFUND OF INTEREST TO THE
CLAIMANT IN THE AMOUNT OF $84,587.43.
B-127497, SEP. 12, 1956
TO AUDITOR OF RECEIPTS, NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY:
CONSIDERATION HAS BEEN GIVEN YOUR REQUEST OF FEBRUARY 2, 1956, FILE
R-G/B 29507, FOR REVIEW OF OUR SETTLEMENT, CLAIM NO. TK-548980,
SEPTEMBER 19, 1955, WHICH DISALLOWED YOUR CLAIM FOR $379.68, ADDITIONAL
FREIGHT CHARGES ALLEGED TO BE DUE FOR THE SERVICES COVERED BY THE BILLS
OF LADING SET FORTH IN YOUR BILL NO. 29507.
THE COMMODITY SHIPPED IS DESCRIBED IN THE COVERING BILLS OF LADING AS
"BOXES, WDN. NESTED, NOIBN, OLD, USED" AND THE COMPUTATION OF ALLOWABLE
CHARGES IN THE AUDIT HERE WAS BASED ON THE RATING AND RATE APPLICABLE TO
NESTED, OLD, WOODEN BOXES, NOT OTHERWISE INDEXED BY NAME IN THE
GOVERNING FREIGHT CLASSIFICATION. IT APPEARS TO BE YOUR CONTENTION THAT
THE COMMODITY SHOULD HAVE BEEN FURTHER DESCRIBED IN THE BILLS OF LADING
BY ADDITION OF THE ABBREVIATION "TNT," APPARENTLY MEANING
TRINITROTOLUOL, AND THAT CONSEQUENTLY THE BOXES ARE PROPERLY CLASSIFIED
UNDER ITEM 5800 OF THE GOVERNING FREIGHT CLASSIFICATION AS "BOXES,
AMMUNITION OR SMOKELESS POWDER SHIPPING, NOIBN.'
IN THE ABSENCE OF AFFIRMATIVE EVIDENCE TO THE CONTRARY, THE BILL OF
LADING DESCRIPTIONS ARE CONTROLLING AS TO THE NATURE OF THE COMMODITY
SHIPPED AND NO EVIDENCE APPEARS IN THE RECORD NOW BEFORE US TO WARRANT
VARIATION OF THE TERMS OF THE BILLS OF LADING. HOWEVER, EVEN IF IT BE
ASSUMED THAT THESE BOXES WERE USED FOR SHIPPING TRINITROTOLUOL, THE
RATING FOR AMMUNITION AND SMOKELESS POWDER SHIPPING BOXES WOULD BE
INAPPLICABLE AS TRINITROTOLUOL IS NEITHER AMMUNITION NOR SMOKELESS
POWDER. SINCE TRINITROTOLUOL SHIPPING BOXES ARE NOT INDEXED BY NAME IN
THE CLASSIFICATION, SUCH BOXES, IF WOODEN, WOULD BE ENCOMPASSED BY THE
GENERIC DESCRIPTION FOR WOODEN BOXES NOT OTHERWISE INDEXED BY NAME.
FURTHERMORE, THE AMMUNITION AND SMOKELESS POWDER SHIPPING BOX RATING
COULD NOT BE APPLIED BY ANALOGY. ANALOGOUS RATINGS MAY NOT BE APPLIED
WHEN AN ARTICLE IS CLEARLY EMBRACED IN AN NOIBN DESCRIPTION. BADGER
RADIO CO. V. CHICAGO AND N.W. RY. CO., 140 I.C.C. 295; VALLEY
ELECTRICAL SUPPLY CO. V. ATCHISON, T. AND S. F. RY., 147 I.C.C. 253;
CELOTEX CO. V. ATLANTIC COAST LINE R. CO., 159 I.C.C. 727, 729;
LANDERS, FRARY AND CLARK V. MOSHASSUCK TRANSP. CO., 53 I.C.C. 234.
THE SETTLEMENTS, WHICH WERE CONSISTENT WITH THE FOREGOING, ARE NOT
SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND, ACCORDINGLY, ARE SUSTAINED.
B-127642, SEP. 12, 1956
TO GENERAL MATERIALS COMPANY:
FURTHER REFERENCE IS MADE TO YOUR ATTORNEYS' LETTER OF AUGUST 3,
1956, ACKNOWLEDGED AUGUST 10, RELATIVE TO THE OUTSTANDING INDEBTEDNESS
OF THE GENERAL MATERIALS COMPANY TO THE UNITED STATES IN THE AMOUNT OF
$1,074.71, AS STATED IN OUR CLAIMS DIVISION LETTER OF FEBRUARY 27, 1956,
TO YOU, AND IN OUR DECISION OF AUGUST 2, 1956.
YOUR ATTORNEYS AGAIN EXPRESS THE VIEW THAT THERE IS A COMPLETE
DISASSOCIATION BETWEEN YOUR FIRM AND THE EARLIER COMPANY OPERATING UNDER
THE SAME NAME AND FOR THIS REASON REQUEST THE REMOVAL OF YOUR FIRM NAME
FROM THE LIST OF CONTRACTORS INDEBTED TO THE UNITED STATES, SUBSTITUTING
THEREFOR THE NAME OF THE W. AND M. ASSOCIATES, INC., BECAUSE OF ITS
ASSUMPTION OF THE OBLIGATIONS AND ASSETS OF THE EARLIER FIRM BEARING THE
SAME NAME OF YOUR FIRM. FURTHER, YOUR ATTORNEYS INDICATE THAT WHILE W.
AND M. ASSOCIATES, INC., IS IN A FINANCIAL POSITION TO LIQUIDATE THE
REPORTED INDEBTEDNESS, THE FIRM DENIES ANY LIABILITY IN THE MATTER. NO
ARGUMENTS IN SUPPORT OF THIS POSITION HAVE BEEN PRESENTED. IN SUPPORT
OF THE REQUEST FOR IMMEDIATE REMOVAL OF YOUR FIRM'S NAME FROM THE LIST
MENTIONED ABOVE, YOUR ATTORNEYS SUGGEST THE ACCEPTANCE OF A DEPOSIT OF
THE AMOUNT OF THE REPORTED INDEBTEDNESS AS SECURITY FOR PAYMENT OF ANY
RECOVERY TO WHICH THE GOVERNMENT MAY BE ENTITLED.
A REEXAMINATION OF THE EVIDENCE BEFORE OUR OFFICE SUPPORTS THE
CONCLUSION ANNOUNCED IN OUR DECISION OF AUGUST 2, 1956. THE LETTER OF
AUGUST 3, 1956, DOES NOT PRESENT ANY NEW OR ADDITIONAL INFORMATION WHICH
WOULD JUSTIFY ANY MODIFICATION OF THE PRIOR ACTION. IT IS NOT THE
POLICY OR PRACTICE OF OUR OFFICE TO ACCEPT THE CONDITIONAL DEPOSIT
SUGGESTED IN CIRCUMSTANCES SUCH AS PRESENTED HERE. IN THE EVENT THAT
LIQUIDATION IN FULL OF THE REPORTED INDEBTEDNESS IS NOT MADE WITHIN 30
DAYS FROM THE DATE OF THIS LETTER, THE ENTIRE MATTER WILL BE PRESENTED
TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION.
B-128839, SEP. 12, 1956
TO MR. HARRY M. GLOSS:
REFERENCE IS MADE TO LETTER OF AUGUST 20, 1956, WRITTEN IN YOUR
BEHALF BY SAMUEL J. FREEDMAN, ATTORNEY, PROTESTING THE WITHHOLDING OF
THE PAYMENT OR PAYMENTS DUE UNDER CONTRACT NO. N104-48608, DATED APRIL
30, 1956, COVERING A QUANTITY OF SWITCHES FURNISHED THE DEPARTMENT OF
THE NAVY.
THE RECORD DISCLOSES THAT DURING THE PERIOD FROM NOVEMBER 1954 TO
FEBRUARY 1955, THREE CONTRACTS WERE AWARDED TO THE FIRM OF HARRY M.
GLOSS, INCORPORATED, BASED ON ITS BIDS FOR CERTAIN SUPPLIES TO BE
DELIVERED TO THE ADMINISTRATIVE OFFICE IN ACCORDANCE WITH THE TERMS OF
EACH PROPOSAL. NONE OF THE ITEMS CALLED FOR WERE FURNISHED, AND AS A
RESULT OF THE DEFAULT OF THE CORPORATION THE MATERIALS WERE PURCHASED
FROM OTHER SOURCES OF SUPPLY RESULTING IN DAMAGES (EXCESS COSTS) TO THE
UNITED STATES IN THE APPROXIMATE SUM OF $11,089.11. THE INDEBTEDNESS IS
NOT DISPUTED. HOWEVER, YOUR ATTORNEY'S PROTEST IS PREDICATED UPON THE
ALLEGATION THAT SINCE YOU DID NOT PERSONALLY GUARANTEE THE PERFORMANCE
OF THOSE CORPORATE TRANSACTIONS, AND SINCE THE PRESENT CONTRACT WAS
EXECUTED BY YOU AS AN INDIVIDUAL, AS DISTINGUISHED FROM THE CORPORATION
BEARING YOUR NAME, YOU CANNOT BE HELD LIABLE FOR THE REPORTED DEBT.
THE GENERAL RULE IS THAT A CORPORATION IS TO BE CONSIDERED A LEGAL
ENTITY DISTINCT FROM ITS STOCKHOLDERS, AND PROPERTY OR RIGHTS REQUIRED
BY IT, OR LIABILITIES INCURRED, ARE TO BE DISTINGUISHED FROM THOSE OF
THE MEMBERS COMPOSING THE CONCERN. BUT, IT IS EQUALLY WELL SETTLED IN
LAW THAT WHEN THAT NOTION OF LEGAL ENTITY WOULD DEFEAT PUBLIC
CONVENIENCE OR JUSTIFY A WRONG, THE LAW WILL REGARD THE CORPORATION AS
AN ASSOCIATION OF PERSONS. MCCASKILL CO. V. UNITED STATES, 216 U.S.
504; UNITED STATES V. MILWAUKEE REFRIGERATOR TRANSIT CO., 142 E. 247.
COURTS WILL LOOK BEYOND CORPORATE ENTITY WHENEVER JUSTICE REQUIRES.
METROPOLITAN HOLEING CO. V. SNYDER, 79 F.2D 263; PALMOLIVE CO. V.
CONWAY, 43 F.2D 226.
THE NAVY REGIONAL ACCOUNTS OFFICE AT BOSTON STATES THAT FROM JUNE
1949 TO JULY 1952, CONTRACTS WERE AWARDED TO YOU AS AN INDIVIDUAL, WHILE
DURING SEVERAL YEARS THEREAFTER THEY WERE EXECUTED IN THE NAME OF THE
CORPORATION. THERE IS NOTHING IN THE FILE TO INDICATE THAT ANYONE OTHER
THAN YOU (AND MEMBERS OF YOUR IMMEDIATE FAMILY WHOSE NAMES APPEAR ON THE
ARTICLES OF INCORPORATION) HAS ANY
INTEREST IN HARRY M. GLOSS, INCORPORATED. THE FACTS OF RECORD
SUPPORT THE CONCLUSION THAT IT IS A SOLE-OWNED CORPORATION. THUS, THERE
DOES NOT APPEAR TO BE ANY REAL BASIS FOR HOLDING THAT THE INTERESTS OF
THE CORPORATION AND THAT OF THE INDIVIDUAL WERE SEPARATE AND DISTINCT.
IN VIEW OF THE FOREGOING, AND ON THE PRESENT RECORD, THE INTERESTS OF
THE GOVERNMENT WOULD APPEAR TO REQUIRE THE WITHHOLDING OF ALL PAYMENTS
DUE UNDER THE SUBJECT CONTRACT IN PARTIAL LIQUIDATION OF THE
ACKNOWLEDGED DEBT OF THE CORPORATION. FURTHER ARRANGEMENTS SHOULD BE
MADE WITH THE CLAIMS DIVISION OF OUR OFFICE TO LIQUIDATE THE BALANCE DUE
WITHIN A REASONABLE TIME IN ORDER TO AVOID THE NECESSITY OF INSTITUTING
MORE FORMAL COLLECTION ACTION.
B-129152, SEP. 12, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 4, 1956, WITH
ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL),
RELATING TO A MISTAKE IN BID ALLEGED BY THE ORR PUBLISHING COMPANY AND
OFFICE EQUIPMENT, INGLESIDE, ILLINOIS, UNDER CONTRACT NO. N128S-96274,
(SALES CATALOG NO. B-163-56) ISSUED BY THE NAVAL SUPPLY DEPOT, GREAT
LAKES, ILLINOIS. IN VIEW OF THE FACTS SET FORTH IN THE ENCLOSURES TO
THE LETTER OF SEPTEMBER 4, A DECISION IS REQUESTED AS TO WHETHER THE
CONTRACT PROPERLY MAY BE AMENDED TO DECREASE THE UNIT PRICE AND THE
TOTAL PRICE OF ITEM 22, AS RECOMMENDED BY THE CONTRACTING OFFICER.
THE RECORD SHOWS THAT BY INVITATION NO. B-163-56, DATED JULY 9, 1956,
THE NAVAL SUPPLY DEPOT, GREAT LAKES, ILLINOIS, OFFERED FOR SALE CERTAIN
GOVERNMENT-OWNED PROPERTY CONSISTING OF MISCELLANEOUS GENERAL STORES
MATERIAL, THE BIDS TO BE OPENED AT 10:00 A.M. ON AUGUST 2, 1956. IN
RESPONSE TO THE INVITATION, THE ORR PUBLISHING COMPANY AND OFFICE
EQUIPMENT SUBMITTED BIDS AS TO ITEMS 22 AND 23 AND, BEING THE HIGHEST
BIDS RECEIVED, THE SAME WERE ACCEPTED. BY LETTER OF AUGUST 8, 1956, THE
CONTRACTOR CLAIMED THAT AN ERROR HAD BEEN MADE IN THE UNIT PRICE AS TO
ITEM 22 IN THAT THE BID PRICE WAS STATED AS $0.51 PER UNIT, WHEREAS A
BID PRICE OF ONLY $0.21 PER UNIT WAS INTENDED--- THE TOTAL BID PRICE OF
$38.25 BEING CORRECT. IN EXPLANATION OF THE ERROR THE CONTRACTOR STATED
IN THE LETTER OF AUGUST 8, 1956, AS FOLLOWS:
"THE TOTAL BID WAS $72.19 ON ITEMS 22 AND 23. I ATTENDED THE OPENING
OF THE BIDS AND ASKED FOR TWO $5 BILLS IN EXCHANGE FOR A $10 BILL, AS
$15 WOULD BE SUFFICIENT TO COVER OUR 20 PERCENT DEPOSIT OF $72.19. NO
ONE SEEMED TO HAVE TWO $5 BILLS SO I DEPOSITED $20, WHICH WOULD BE 20
PERCENT OF ANYTHING TO $100. THE TOTAL BID, CONSIDERING A 51 CENT ITEM
ON LOT 22, WOULD MAKE THE BID $125.74. TWENTY DOLLARS WOULD NOT BE 20
PERCENT. THEREFORE, THE ENTIRE BID COULD BE ELIMINATED. THIS ERROR WAS
BROUGHT TO THE ATTENTION OF THE BID OPENER AT THE TIME OF THE OPENING OF
THE BIDS. * * *"
IN A COMMUNICATION TO THIS OFFICE DATED AUGUST 9, 1956, THE
COMMANDING OFFICER OF THE NAVAL SUPPLY DEPOT STATED THAT THE CONTRACT
HEREIN WAS AWARDED AT THE UNIT PRICE OF $0.51 ON THE BASIS THAT UNDER
THE TERMS OF THE CONTRACT WHEN THERE IS A DIFFERENCE BETWEEN THE UNIT
PRICE AND THE EXTENSION, THE UNIT PRICE WILL GOVERN; THAT THE
CONTRACTING OFFICER BELIEVES THE STATEMENTS IN THE CONTRACTOR'S LETTER
OF AUGUST 8, 1956, ARE TRUE AND THAT, IN FACT, THE BIDDER DID MAKE AN
HONEST ERROR WHEN SUBMITTING THE UNIT PRICE OF $0.51. ON THE BASIS OF
THE FACTS OF THE CASE AND THE TERMS AND CONDITIONS OF THE SALES
CONTRACT, THE COMMANDING OFFICER RECOMMENDED THAT RELIEF BE GRANTED. IT
IS REPORTED THAT DELIVERY OF ITEM 22 WAS ACCOMPLISHED ON AUGUST 9, 1956.
THERE APPEARS TO BE LITTLE ROOM FOR DOUBT THAT A BONA FIDE ERROR WAS
MADE BY THE CONTRACTOR IN ITS BID AS TO ITEM 22, AND THAT THE FACT OF
THE ERROR WAS MADE KNOWN TO REPRESENTATIVES OF THE GOVERNMENT PRIOR TO
THE AWARD OF THE CONTRACT. UNDER THE CIRCUMSTANCES, AND IN VIEW OF THE
RECOMMENDATION OF THE CONTRACTING OFFICER, THERE SHOULD BE REFUNDED TO
THE CONTRACTOR THE DIFFERENCE BETWEEN THE UNIT BID PRICE OF $0.51 AND
THE INTENDED UNIT BID PRICE OF $0.21 AS TO ITEM 22. A COPY OF THIS
DECISION SHOULD BE ATTACHED TO THE VOUCHER MAKING THE REFUND.
THE PAPERS, WITH THE EXCEPTION OF THE COMMANDING OFFICER'S STATEMENT
DATED AUGUST 9, 1956, ARE RETURNED HEREWITH.
B-128901, SEPT. 11, 1956
TO MR. LAWRENCE M. POLANS:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 21, 1956, WITH
ENCLOSURES, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE
AMOUNT OF $181.80 FOR THE OVERPAYMENT TO YOU OF TRAVEL ALLOWANCE FOR
TRAVEL PERFORMED DURING THE PERIOD MAY 23 TO JUNE 6, 1953, WHILE YOU
WERE SERVING AS A COMMISSIONED OFFICER IN THE UNITED STATES ARMY
RESERVE.
IT APPEARS THAT BY ORDERS DATED MAY 23, 1953, FORT RICHARDSON,
ALASKA, YOU WERE GRANTED 14 DAYS EMERGENCY LEAVE AND THAT YOU TRAVELED
BY MILITARY AIR TRANSPORT TO SEATTLE, WASHINGTON, AND THENCE
TO NEW YORK, NEW YORK, BY COMMERCIAL AIR AT PERSONAL EXPENSE. BY
ORDERS DATED SEPTEMBER 26, 1953, THE SAME STATION, THE ORDERS OF MAY 23,
1953, WERE AMENDED. AFTER RECITING THAT YOU WERE ELIGIBLE FOR RETURN TO
THE UNITED STATES IN AUGUST 1953, THE ORDERS OF SEPTEMBER 26 RELIEVED
YOU FROM DUTY AT FORT RICHARDSON AND REASSIGNED YOU TO CAMP KILMER, NEW
JERSEY, ON A PERMANENT CHANGE OF STATION BASIS, EFFECTIVE JUNE 15, 1953.
YOU WERE PAID THE SUM OF $183.96 ON VOUCHER NO. 804428 OF THE
SEPTEMBER ACCOUNTS OF LIEUTENANT COLONEL MICHAEL COHEN, DISBURSING
OFFICER, REPRESENTING THE MILEAGE AT $0.06 A MILE FROM SEATTLE,
WASHINGTON, TO CAMP KILMER, NEW JERSEY.
AN AUDIT EXCEPTION IN THE AMOUNT OF $181.80 WAS ISSUED BY THE GENERAL
ACCOUNTING OFFICE REPRESENTING THE AMOUNT PAID TO YOU ON VOUCHER NO.
804428 LESS THE SUM OF $2.16 REPRESENTING MILEAGE AT $0.06 A MILE FOR 36
MILES, THE DISTANCE FROM NEW YORK, NEW YORK, TO CAMP KILMER, NEW JERSEY.
THE EXCEPTION WAS ISSUED ON THE BASIS THAT THE ORDERS OF SEPTEMBER 26,
1953, DIRECTING YOUR TRANSFER TO CAMP KILMER, NEW JERSEY, WERE ISSUED
AFTER YOU DEPARTED ON LEAVE FROM YOUR OLD STATION, FORT RICHARDSON,
ALASKA. BY LETTERS DATED FEBRUARY 16 AND APRIL 6, 1956, OUR CLAIMS
DIVISION ADVISED YOU THAT THE ORDERS OF SEPTEMBER 26, 1953, WERE WITHOUT
RETROACTIVE EFFECT SO AS TO ENTITLE YOU TO REIMBURSEMENT FOR THE TRAVEL
PERFORMED. THERE WAS ENCLOSED WITH THE LETTER OF JUNE 21, 1956, YOUR
LETTER OF MAY 4, 1956, TO THE OFFICE OF THE SECRETARY OF THE ARMY
REITERATING YOUR PREVIOUS CONTENTION TO THE CLAIMS DIVISION THAT THE
ORDERS OF SEPTEMBER 26, 1953, SHOULD BE GIVEN RETROACTIVE EFFECT.
SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
814, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES
CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRAVEL
AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT
ORDERS. JOINT TRAVEL REGULATIONS PROMULGATED UNDER THAT ACT PROVIDE
(PARAGRAPH 3050-1) THAT MEMBERS ARE ENTITLED TO TRAVEL AND
TRANSPORTATION ALLOWANCES ONLY WHEN ACTUALLY IN A TRAVEL STATUS AND THAT
THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL ON
PUBLIC BUSINESS UNDER COMPETENT ORDERS. PARAGRAPH 6453 OF THE SAME
REGULATIONS PROVIDES THAT ORDERS PERMITTING A MEMBER TO TRAVEL, AS
DISTINGUISHED FROM ORDERS DIRECTING HIM TO TRAVEL, DO NOT ENTITLE HIM TO
EXPENSES OF TRAVEL. IT LONG HAS BEEN HELD THAT TRAVEL ON LEAVE MUST BE
PERFORMED AT PERSONAL EXPENSE. 30 COMP. GEN. 19. ALSO, SEE CASE 14 OF
PARAGRAPH 4153 OF THE REGULATIONS, IN EFFECT AT THE TIME OF THE TRAVEL
HERE INVOLVED, WHICH SPECIFICALLY PROVIDED THAT WHEN THE STATION OF A
MEMBER IS CHANGED WHILE HE IS ON LEAVE HE WILL BE ENTITLED TO MILEAGE
FROM THE PLACE WHERE HE RECEIVED THE ORDERS TO THE NEW STATION NOT TO
EXCEED THE COST FROM THE OLD STATION TO THE NEW.
AS TO THE ORDERS OF SEPTEMBER 26, 1953, BEING RETROACTIVELY
EFFECTIVE, IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN
REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED
UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED
RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME
FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS
APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES
CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND
DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN
PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 C.CLS. 32; 23 COMP.
GEN. 713; 24 ID. 439; 34 ID. 427. THE ORDERS OF MAY 23, 1953, WERE
CLEAR AND UNAMBIGUOUS AND EXPRESSED THE ORIGINAL INTENT OF THE ISSUING
AUTHORITY, THAT IS, TO GRANT YOU 14 DAYS EMERGENCY LEAVE.
IT IS CLEAR THAT UNDER THE LAW AND REGULATIONS YOU WERE OVERPAID THE
SUM OF $181.80 AND THAT YOU ARE INDEBTED TO THE UNITED STATES IN THAT
AMOUNT. ACCORDINGLY, IT IS REQUESTED THAT, WITHIN 30 DAYS FROM THE DATE
OF THIS LETTER, YOU REMIT THE SUM OF $181.80, OR MAKE SATISFACTORY
ARRANGEMENTS FOR THE PROMPT LIQUIDATION OF YOUR INDEBTEDNESS. THE
AMOUNT OF THE INDEBTEDNESS SHOULD BE FORWARDED BY CHECK, DRAFT, OR MONEY
ORDERS, PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE,
ADDRESSED AS FOLLOWS: UNITED STATES GENERAL ACCOUNTING OFFICE POST
OFFICE BOX 2610 WASHINGTON 13, D.C.
B-128975, SEPT. 11, 1956
TO MR. L. A. CAMPBELL, DISBURSING OFFICER, U.S. NAVY FINANCE CENTER:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1956, WITH ENCLOSURES
AND ENDORSEMENTS, REQUESTING OUR DECISION WHETHER LIEUTENANT COMMANDER
RICHARD C. D. HUNT, JR., UNITED STATES NAVY, RETIRED, IS
ENTITLED TO FULL RETIRED PAY FOR THOSE DAYS ON WHICH HE WAS EMPLOYED
DURING THE PERIOD JANUARY 3 TO APRIL 25, 1956.
IT APPEARS THAT ON AUGUST 1, 1946, COMMANDER HUNT WAS RETIRED FOR
PHYSICAL DISABILITY; THAT SUCH DISABILITY WAS NOT INCURRED IN COMBAT
WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF
WAR; AND THAT THE OFFICER'S CURRENT RETIRED PAY IS $3,410.52 PER ANNUM.
IT FURTHER APPEARS THAT HE HAS BEEN EMPLOYED SINCE JANUARY 3, 1956, BY
THE ALEXANDER HAMILTON BICENTENNIAL COMMISSION, ESTABLISHED BY S.J.RES.
140, 68 STAT. 746, ON AN INTERMITTENT BASIS, AT $25 PER DAY WHEN
ACTUALLY EMPLOYED; THAT WHEN HE WAS APPOINTED THERE WAS NO LIMITATION
PLACED ON THE NUMBER OF DAYS ON WHICH HE MIGHT BE EMPLOYED DURING ANY
PARTICULAR PERIOD; AND THAT ON APRIL 26, 1956, THERE WAS ISSUED A
NOTIFICATION OF PERSONNEL ACTION PURPORTEDLY CORRECTING THE NOTIFICATION
OF HIS APPOINTMENT OF JANUARY 3, 1956, IT BEING STATED IN THE
NOTIFICATION OF APRIL 26, 1956, THAT "TOTAL EMPLOYMENT IN ANY CALENDAR
YEAR IS LIMITED TO 260 DAYS.'
SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C.
59A, SUPP. III, PROVIDES, IN PERTINENT PART, THAT NO PERSON HOLDING A
CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHALL BE
ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY ON
ACCOUNT OF SERVICES AS AN OFFICER OF THE NAVY 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 THAT THIS RESTRICTION SHALL NOT APPLY TO ANY
OFFICER RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE
UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR.
THE APPARENT INTENT AND PURPOSE OF THE NOTIFICATION OF PERSONNEL
ACTION OF APRIL 26, 1956, IS TO RESTRICT THE EXTENT OF COMMANDER HUNT'S
EMPLOYMENT TO A MAXIMUM OF 260 DAYS DURING THE CALENDAR YEAR OF 1956, OR
DURING ANY ENSUING CALENDAR YEAR (DURING THE LIFE OF THE COMMISSION)
RATHER THAN TO IMPOSE A PROPORTIONATE RESTRICTION AFTER APRIL 26, 1956,
ONLY. THE NOTIFICATION ACCOMPLISHES THAT INTENT AND PURPOSE. HENCE,
THE END RESULT IS THE SAME AS IF COMMANDER HUNT'S ORIGINAL APPOINTMENT
HAD RECITED THAT HE COULD NOT BE EMPLOYED MORE THAN 260 DAYS DURING
1956. ON THAT BASIS, HIS MAXIMUM POSSIBLE CIVILIAN COMPENSATION FOR
1956 IS $6,500 (260 TIMES $25). THAT AMOUNT COMBINED WITH HIS RETIRED
PAY OF $3,401.52 TOTALS LESS THAN $10,000. THUS, NEITHER HIS CIVILIAN
COMPENSATION NOR HIS RETIRED PAY IS SUBJECT TO ANY REDUCTION UNDER
SECTION 212 OF THE ECONOMY ACT, AS AMENDED. 20 COMP. GEN. 407, AND
CASES CITED THEREIN.
B-128988, SEPT. 11, 1956
TO WILCOX AND COMPANY, INC. :
REFERENCE IS MADE TO A LETTER DATED AUGUST 1, 1956, FROM MR. PHILIP
NICHOLS, JR., REQUESTING, IN YOUR BEHALF, RECONSIDERATION OF OUR
SETTLEMENT DATED JULY 25, 1956, WHICH DISALLOWED YOUR CLAIM
FOR $1,511.65 INCURRED AS CUSTOM DUTIES IN CONNECTION WITH THE
IMPORTATION OF SILK LAPS FURNISHED THE GENERAL SERVICES ADMINISTRATION
UNDER CONTRACT NO. GS-00P-2331-/SCM), DATED FEBRUARY 7, 1952.
THE CONTRACT COVERS THE PROCUREMENT PURCHASE OF SILK WASTE FOR THE
NATIONAL STOCK PILE NEGOTIATED UNDER AUTHORITY OF THE STRATEGIC AND
CRITICAL MATERIALS STOCK PILING ACT, 60 STAT. 596.
THE PURCHASE WAS ORIGINATED BY WRITTEN OFFER FROM YOU DATED OCTOBER
1, 1951, ACCEPTED BY TELEGRAM OF OCTOBER 4, 1951, AND DOCUMENTED BY
FORMAL CONTRACT EXECUTED ON FEBRUARY 7, 1952. DELIVERY OF THE SILK
WASTE WAS MADE BY YOU TO COVER THE TYPE H LAP SPECIFIED--- WASTE FROM
DOMESTIC INDUSTRY (INCLUDING CANADA). HOWEVER, SINCE THE DELIVERY WAS
MADE FROM MATERIAL IMPORTED FROM JAPAN AN IMPORT DUTY OF $1,511.65 WAS
LATER ASSESSED AND PAID. THE CLAIM NOW BEFORE US IS FOR A REFUND OF
THIS AMOUNT.
MR. NICHOLS' REQUEST FOR RECONSIDERATION APPEARS TO BE BASED SOLELY
ON HIS CONTENTION THAT THE CONTRACT DESCRIBED THE SILK LAPS TO BE
FURNISHED AS "TYPE H, LOT 317" AND, THEREFORE, SINCE PERFORMANCE COULD
NOT BE EFFECTED BY THE TENDER OF ANY MATERIAL OTHER THAN "LOT 317,"
WHICH WAS PLAINLY MARKED TO SHOW ITS JAPANESE ORIGIN, THE APPLICABLE
CLAUSE OF THE CONTRACT MAKING IMPORT DUTIES FOR THE ACCOUNT OF THE
GOVERNMENT BECOMES OPERATIVE.
IT IS PERTINENT TO NOTE, IN THE FIRST INSTANCE, THAT WHEN YOU MADE
THE OFFER TO FURNISH "TYPE H, BISU LAPS" YOU WERE AWARE OF THE GENERAL
TERMS AND CONDITIONS APPLICABLE TO THE PROCUREMENT OF SILK WASTE FOR THE
STOCK PILE, HAVING PREVIOUSLY EXECUTED FORMAL CONTRACTS WITH THE
GOVERNMENT, (CONTRACT GS-OOP-1426-/SCM), DATED AUGUST 3, 1951, AND
CONTRACT GS-OOP-1653-/SCM), DATED SEPTEMBER 18, 1951), COVERING THE SALE
TO THE GOVERNMENT OF OTHER LOTS OF SILK WASTE PURCHASED UNDER THE SAME
GENERAL TERMS AND CONDITIONS.
THE SUBJECT CONTRACT DESCRIBED THE MATERIAL TO BE DELIVERED AS
FOLLOWS:
"SILK BISU LAPS, TYPE H, LOT 317 ABOVE TO BE IN ACCORDANCE WITH
NATIONAL STOCKPILE SPECIFICATION P83B, DATED JULY 11, 1951, AS AMENDED,
WHICH SPECIFICATION SHALL BE MADE A PART OF THIS CONTRACT BY REFERENCE.'
REFERENCE TO NATIONAL STOCKPILING SPECIFICATION P-83B, IS A
REPETITION, VERBATIM, OF LANGUAGE USED IN PRIOR CONTRACT
GS-OOP-1653-/SCM) WITH YOU DATED SEPTEMBER 18, 1951.
SPECIFICATION P-83B COVERS EIGHT TYPES OF SILK WASTE AND NOILS,
NAMELY:
TABLE
"TYPE A - CHINESE
TYPE B - JAPANESE
TYPE C - ITALIAN (AND EUROPEAN)
TYPE D - BRAZILIAN
TYPE E - SWISS
TYPE F - LEVANTINE, MIDDLE EASTERN AND PERSIAN
TYPE G - EAST INDIAN
TYPE H - WASTE FROM DOMESTIC INDUSTRY (INCLUDING CANADA) "
THE GENERAL SERVICES ADMINISTRATION HAS REPORTED THAT CLASSIFICATION
OF SILK WASTE AND NOILS AS TO TYPE IS BASED ENTIRELY ON GEOGRAPHIC
LOCATION AND IS NOT BASED ON, OR INDICATIVE OF, QUALITY OR UTILITY. THE
ADMINISTRATION DIRECTS ATTENTION TO AND NOTES THAT UNDER SECTION 2B,
QUALITY REQUIREMENTS THE SPECIFICATIONS FURTHER PROVIDE:
"TYPES A, B, C, D, E, F, G AND H SHALL CONSIST ENTIRELY OF COMMERCIAL
GRADES OF SILK WASTE, AS ACCUMULATED, GRADED, AND SOLD IN THE COUNTRIES
OF ORIGIN. FOR THE PURPOSE OF THIS SPECIFICATION SUCH NOILS AS ARE
ACCUMULATED, GRADED, AND SOLD AS A BY-PRODUCT OF SILK SPINNING IN
COUNTRIES OTHER THAN THAT OF PRIMARY PRODUCTION, WILL BE CONSIDERED
NOILS OF THE IMMEDIATE COUNTRY OF SHIPMENT.'
WHAT IS STILL MORE IMPORTANT TO THE ISSUE WITH WHICH WE ARE HERE
CONCERNED HOWEVER, IS THE QUESTION AS TO THE VALIDITY OF THE ACCEPTANCE
OF THE BID UNDER THE CIRCUMSTANCES REPORTED. IN THIS CONNECTION, IT WAS
CONCLUDED, FOR THE REASONS SET FORTH IN OUR SETTLEMENT DATED JULY 25,
1956, THAT THE PROCESSING WITHIN THE CONTINENTAL UNITED STATES, OF
CERTAIN RAW MATERIAL INTO THE FORM OF LAPS WOULD, FOR THE PURPOSE OF THE
APPLICABLE SPECIFICATIONS, BE CORRECTLY CLASSIFIED AS BISU LAPS, TYPE H.
THEREFORE, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE
REASONABLENESS OF THIS CONCLUSION IT APPEARS THAT THERE WAS NO REASON
FOR THE PURCHASING OFFICER TO BELIEVE THAT MATERIAL OFFERED F.O.B.
PROVIDENCE, RHODE ISLAND, WAS NOT WASTE FROM DOMESTIC INDUSTRY OR TO
QUESTION THE VALIDITY OF CLASSIFYING THIS MATERIAL AS "TYPE H.' UNDER
THE CIRCUMSTANCES IT PROPERLY WAS HELD IN EFFECT THAT THE BID WAS
ACCEPTED IN GOOD FAITH THEREBY CONSUMMATING A VALID AND BINDING
OBLIGATION WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND THE
GOVERNMENT'S RIGHT IN THIS RESPECT--- TO HAVE DELIVERY OF SILK LAPS THAT
CONFORMED TO THE SPECIFICATIONS AT THE CONTRACT PRICE--- MAY NOT BE
AFFECTED BY THE DELIVERY OF SILK LAPS IMPORTED FROM JAPAN WHICH
NECESSARILY CARRIED THE ADDITIONAL IMPORT DUTY.
THE FACT, AS CONTENDED BY MR. NICHOLS, THAT YOU MAY HAVE BEEN
REQUIRED TO FURNISH THE SPECIFIC LOT NO. 317 UNDER THE SUBJECT CONTRACT
DOES NOT APPEAR TO BE PARTICULARLY MATERIAL SINCE IT IS CLEAR THAT AT
THE TIME THE CONTRACT WAS ENTERED INTO THE GENERAL SERVICES
ADMINISTRATION HAD THE RIGHT TO, AND DID, EXPECT THAT DELIVERY WOULD BE
MADE OF A DOMESTIC SILK LOT WHICH IT BELIEVED WAS
REPRESENTED BY THE SAMPLE PREVIOUSLY SUBMITTED, AND THE LOT NUMBER
APPARENTLY WAS USED ADMINISTRATIVELY MORE TO ASSOCIATE OR IDENTIFY THE
LOT ITSELF WITH THE SAMPLE THAN TO OTHERWISE DISTINGUISH ONE LOT FROM
ANOTHER. MOREOVER, WHILE LOT NO. 317 MAY HAVE BEEN PLAINLY MARKED TO
SHOW ITS JAPANESE ORIGIN, THERE IS NOTHING IN THE RECORD TO SHOW OR
INDICATE THAT THE GOVERNMENT CONTRACTING OFFICER WAS AWARE OF THIS
ALLEGED FACT AT THE TIME OF ACCEPTANCE OF THE BID AND CONSUMMATION OF
THE CONTRACT, SINCE SUCH INFORMATION APPARENTLY ONLY BECAME KNOWN UPON
THE SUBSEQUENT INSPECTION AND ACCEPTANCE OF THE LOT UPON DELIVERY.
B-129092, SEPT. 11, 1956
TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED AUGUST 28, 1956, FROM THE DEPUTY
ADMINISTRATOR, FORWARDING AN ALLEGATION OF ERROR IN THE BID SUBMITTED BY
JULIUS E. KAAZ CONSTRUCTION COMPANY FOR LABOR AND MATERIALS NECESSARY TO
REPAIR THE PARAPET WALL AND REPLACE THE ROOF OF BUILDING NO. 12,
VETERANS ADMINISTRATION CENTER, WADSWORTH, KANSAS.
THE FILE INDICATES THAT BIDS FOR SUCH WORK IN THE AMOUNTS OF $4,131,
$8,079, AND $8,361, WERE OPENED ON AUGUST 15, 1956, AND THAT COMPARISON
OF THE BID PRICES AT OPENING INDICATED TO THE CONTRACTING OFFICER THAT
THERE WAS A POSSIBLE ERROR IN THE LOW BID SUBMITTED BY JULIUS E. KAAZ
CONSTRUCTION COMPANY. WITHIN AN HOUR AFTER OPENING, THE LOW BIDDER
ALLEGED ERROR BY TELEPHONE, AND SUCH ALLEGATION WAS CONFIRMED BY LETTER
DATED AUGUST 16, 1956, IN WHICH IT WAS EXPLAINED THAT AN ERROR IN THE
AMOUNT OF $1,146 OCCURRED WHEN AN ITEM OF $1,273 FOR ROOFING AND SHEET
METAL WAS ERRONEOUSLY TRANSFERRED TO AN ADDING MACHINE TAPE AS $127.30.
EXAMINATION OF THE BIDDER'S ORIGINAL WORKSHEET AND THE ADDING MACHINE
TAPE IN QUESTION, WHICH WERE FORWARDED TO YOUR OFFICE WITH THE BIDDER'S
LETTER OF AUGUST 16, 1956, INDICATE BEYOND ANY REASONABLE DOUBT THAT THE
BIDDER INTENDED TO INCLUDE AN AMOUNT OF $1,273 IN HIS TOTAL BID PRICE TO
COVER THE COST OF ROOFING AND SHEET METAL, BUT THAT THE BID AS SUBMITTED
WAS COMPUTED ON THE BASIS OF THE ERRONEOUS ENTRY OF $127.30 FOR SUCH
ITEM SHOWN ON THE ADDING MACHINE TAPE. ACCORDINGLY, IT IS OUR OPINION
THAT THE BIDDER MADE A BONA FIDE ERROR IN HIS BID. SINCE THE BIDDER
ALLEGED ERROR IMMEDIATELY AFTER THE BID OPENING AND PROMPTLY SUBMITTED
EVIDENCE WHICH SUBSTANTIATES HIS ALLEGATIONS BOTH AS TO THE AMOUNT OF
ERROR AND THE MANNER IN WHICH THE ERROR OCCURRED, AND IN VIEW OF THE
FACT THAT ADDITION OF $1,146, THE AMOUNT OF SUCH ERROR, WILL RESULT IN A
BID PRICE OF $5,277, WHICH IS SUBSTANTIALLY LESS THAN THE SECOND LOW
BID, CORRECTION MAY BE EFFECTED IN THE AMOUNT REQUESTED, AND THE
CORRECTED BID MAY BE CONSIDERED FOR AWARD ALONG WITH THE OTHER BIDS
RECEIVED.
THE BID OF JULIUS E. KAAZ CONSTRUCTION COMPANY, TOGETHER WITH THE
ABSTRACT OF BIDS OPENED, ARE RETURNED HEREWITH.
B-127947, SEP. 10, 1956
TO MANHATTAN LIGHTING EQUIPMENT CO., INC. :
REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 9 AND 14, 1956, WHEREIN
YOU QUESTION THE PROPRIETY OF THE DEBARMENT ACTION TAKEN AGAINST YOU BY
SEVERAL GOVERNMENTAL AGENCIES OTHER THAN THE DEPARTMENT OF DEFENSE
WHICH, IT IS UNDERSTOOD, DEBARRED YOU FROM BIDDING ON ITS INVITATIONS
FOR THE 3-YEAR PERIOD COMMENCING FROM MAY 14, 1956.
AS YOU PREVIOUSLY WERE ADVISED IN OUR LETTER OF JUNE 5, 1956,
B-127947, AND AGAIN IN OUR DECISION OF MARCH 1, 1956, B-126782, THE
FUNCTION OF DETERMINING WHETHER A PARTICULAR DEALER IS A RESPONSIBLE
BIDDER, WITHIN THE INTENT AND MEANING OF THE ADVERTISING STATUTES OF THE
UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT
CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE
DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST
PERFORMANCE, HIS OVERALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED,
HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY,
AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE
SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENTAL
ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762;
14 COMP. GEN. 305; 34 ID. 86.
THEREFORE, IF BY VIRTUE OF THEIR UNSATISFACTORY EXPERIENCES IN THEIR
PAST DEALINGS WITH YOUR FIRM, THE VARIOUS AGENCIES LISTED IN YOUR
LETTERS HAVE DECIDED TO FOLLOW THE ACTION OF THE DEPARTMENT OF DEFENSE
IN REFUSING TO AWARD YOU CONTRACTS OVER A GIVEN PERIOD OF TIME, THAT, OF
COURSE, IS A MATTER LYING SOLELY WITHIN THE INDIVIDUAL DISCRETION OF
EACH OF SUCH AGENCIES, AND WE WOULD NOT BE JUSTIFIED IN DISTURBING THEIR
ACTION EXCEPT UPON A CLEAR SHOWING OF BAD FAITH UPON THEIR PART OR THAT
THEIR ACTION WAS NOT IN ACCORDANCE WITH APPLICABLE REGULATIONS.
B-128317, SEP. 10, 1956
TO ILLINOIS CENTRAL RAILROAD:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 14, 1956, FILE
G-WT-4239-D-GSI-WAG, PROTESTING OUR LETTER OF JUNE 12, 1956, IN WHICH WE
DECLINED YOUR CLAIM FOR $47.78--- PER SUPPLEMENTAL BILL NO.
WT-4239-D-GSI--- FOR THE REASON THAT THE CLAIM WAS BARRED BY THE
TEN-YEAR STATUTE OF LIMITATIONS PROVIDED BY PUBLIC LAW NO. 820, 3P
U.S.C.A. 71A. YOU CONTEND THAT SINCE AN ADDITIONAL AMOUNT OF $3.07 WAS
ALLOWED BY CERTIFICATE OF SETTLEMENT NO. T 639042, DATED SEPTEMBER 23,
1955, THE TEN-YEAR PERIOD UNDER THE STATUTE WAS AUTOMATICALLY EXTENDED
UNTIL SEPTEMBER 1965.
THE RECORD IN THIS MATTER SHOWS THAT YOU ORIGINALLY CLAIMED $528.90
ON BILL NO. WQ-4239 FOR TRANSPORTING A SHIPMENT UNDER BILL OF LADING NO.
WT-3776413, WHICH WAS DELIVERED AT DESTINATION ON DECEMBER 26, 1944. BY
SUPPLEMENTAL BILL NO. WT-4239-B, RECEIVED IN THIS OFFICE ON DECEMBER 1,
1954, YOU CLAIMED ADDITIONAL CHARGES BASED ON AN ERROR IN WEIGHTS, AS
ORIGINALLY BILLED. HOWEVER, THERE WAS AN ERROR IN THE FOOTING OF BILL
NO. WT-4239-B IN THAT THE COMPUTATION SHOWN SET FORTH AS
A "BAL. DUE" OF $141.10, BUT THE AMOUNT SHOWN AS "TOTAL" WAS $90.25
THE AMOUNT OF $90.25 WAS ALLOWED IN CERTIFICATE OF SETTLEMENT NO.
631219, DATED JUNE 6, 1955. THEREAFTER, ON JUNE 29, 1955, YOU SUBMITTED
SUPPLEMENTAL BILL NO. WT-4239-C-OSI, CLAIMING A BALANCE DUE OF $50.85
($141.10 LESS $90.25), AND WHILE THIS BILL WAS RECEIVED HERE MORE THAN
10 YEARS AFTER THE DATE OF DELIVERY, THE BILL WAS EXAMINED AND OF THE
AMOUNT CLAIMED, $3.07 WAS ALLOWED IN CERTIFICATE OF SETTLEMENT NO.
639042, DATED SEPTEMBER 23, 1955. ON NOVEMBER 2, 1955, YOUR
SUPPLEMENTAL BILL NO. WT-4239-D-GSI, RECLAIMING THE AMOUNT OF $47.78,
WAS RECEIVED, AND BY LETTER OF JUNE 12, 1956, THIS
SUPPLEMENTAL BILL, TOGETHER WITH A COPY OF PUBLIC LAW 820, SUPRA, WA
RETURNED BY OUR TRANSPORTATION DIVISION.
A REVIEW OF THE ENTIRE RECORD IN THIS CASE SHOWS THAT THE STATUTE OF
LIMITATIONS WAS NOT ASSERTED AS A DEFENSE IN THE EXAMINATION OF
SUPPLEMENTAL BILL WT-4239-C-OSI; NEVERTHELESS, AS EVIDENCED BY
CERTIFICATE OF SETTLEMENT NO. 639042, ALL BUT $3.07 OF YOUR CLAIM WAS
DISALLOWED FOR A DIFFERENT REASON.
YOUR SUPPLEMENTAL BILL NO. WT-4239-C-GSI SHOWS THAT YOU CLAIMED
CHARGES ON THE INVOLVED SHIPMENT WHICH WERE COMPUTED ON THE BASIS OF A
GROSS RATE OF $1.23 PER 100 POUNDS, REDUCED TO .93056 ON ACCOUNT OF
LAND-GRANT, AS BEING APPLICABLE BETWEEN LEBANON, TENNESSEE, AND
BROOKLYN, MISSISSIPPI. HOWEVER, THE CONSIGNEE'S CERTIFICATE OF DELIVERY
ON BILL OF LADING WT-3776413 SHOWS THAT DELIVERY WAS ACCOMPLISHED AT
CAMP SHELBY, MISSISSIPPI, AND THE GROSS RATE APPLICABLE TO CAMP SHELBY
IS $1.18 PER 100 POUNDS, REDUCED TO ?86420 BY LAND-GRANT DEDUCTION.
THEREFORE, SINCE YOU HAD BEEN PAID ORIGINALLY $528.90 AND ALLOWED $90.25
UNDER CERTIFICATE OF SETTLEMENT NO. 631219, FOR A TOTAL OF $619.15,
THERE WAS FOUND DUE YOU THE SUM OF ?307 IN CERTIFICATE OF SETTLEMENT NO.
639042, BASED ON A GROSS RATE OF $1.18 PER 100 POUNDS FOR THE SHIPMENT
FROM LEBANON, TENNESSEE, TO CAMP SHELBY, MISSISSIPPI.
ACCORDINGLY, SINCE IT APPEARS THAT THE CHARGES ARE NOW BASED ON THE
PROPER RATES, YOUR CONTENTION WITH RESPECT TO THE EXTENSION OF THE
TEN-YEAR PERIOD HAS NOT BEEN CONSIDERED IN THIS DECISION, AND THE
SETTLEMENT OF SEPTEMBER 23, 1955, IS SUSTAINED.
B-128819, SEP. 10, 1956
TO THE HONORABLE ALLEN W. DULLES, DIRECTOR, CENTRAL INTELLIGENCE
AGENCY:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1956, SUBMITTING FOR
OUR CONSIDERATION THE MATTER OF AN ALLEGED MISTAKE IN BID MADE BY THE
GREAT SOUTHERN BOX COMPANY, INC., IN THE SUBMISSION IF ITS BID UNDER
INVITATION NO. 46-55, DATED FEBRUARY 4, 1955, ISSUED BY YOUR AGENCY.
UNDER THE INVITATION, BIDS, TO BE OPENED FEBRUARY 18, 1955, WERE
REQUESTED FOR FURNISHING FIBRE-BOARD SHEETS FOR CORRUGATED FIBRE-BOARD
BOXES IN DIMENSIONS AND QUANTITIES AS FOLLOWS:
TABLE
ITEM QUANTITY UNIT UNIT PRICE AMOUNT 1. 36
SHEET
140 INCHES 2. 60 INCHES BY 80 3600 SHEET
INCHES 3. 44 INCHES BY 90 3600 SHEET
INCHES 4. 24 INCHES BY 60 3600 SHEET
INCHES
ON FEBRUARY 11, 1955, THE GREAT SOUTHERN BOX COMPANY, INC., IN
SUBMITTING ITS BID, INSERTED UNIT PRICES OF .8606, .71 AND .2582, AND
TOTAL PRICES OF $3,098.16, $2,556 AND $929.52 OPPOSITE ITEMS 1, 2 AND 3,
RESPECTIVELY, IN THE SPACES PROVIDED ON THE BID FORM. NO FIGURES WERE
INSERTED OPPOSITE ITEM 4.
IN EVALUATING THE 3 BIDS WHICH WERE SUBMITTED IN RESPONSE TO THE
INVITATION, MR. DOUGLAS MACKINNON, WHO, IT IS STATED, NEGOTIATED THE
CONTRACT ON BEHALF OF THE GOVERNMENT, NOTED THAT THE GREAT SOUTHERN BOX
COMPANY WAS THE LOW BIDDER FOR ITEMS 2 AND 3, BUT THAT ITS BID FOR ITEM
3 WAS SUBSTANTIALLY OUT OF LINE WITH THE OTHER BIDS FOR THAT ITEM, WHICH
STATED UNIT PRICES OF .62370 AND .6836. ACCORDINGLY, ON MARCH 3, 1955,
MR. MACKINNON TELEPHONED MR. C. C. VIGUERIE, THE VICE PRESIDENT OF THE
GREAT SOUTHERN BOX COMPANY, WHO HAD EXECUTED THE BID, AND REQUESTED A
VERIFICATION OF THE PRICE STATED FOR ITEM 3. MR. VIGUERIE INFORMED MR.
MACKINNON THAT THE PRICE BID FOR ITEM 3 WAS CORRECT, AND THAT AN AWARD
FOR ITEMS 2 AND 3 WOULD BE ACCEPTED.
BY LETTER OF MARCH 21, 1955, THE CONTRACTOR WAS ADVISED OF THE
ACCEPTANCE OF ITS BID FOR ITEMS 2 AND 3, IN THE TOTAL AMOUNT OF
$3,485.52. UPON RECEIPT OF THE CONTRACTING OFFICER'S LETTER, WHICH ALSO
TRANSMITTED THE CONTRACT, MR. VIGUERIE TELEPHONED THE CONTRACTING
OFFICER STATING THAT A SERIOUS ERROR HAD BEEN MADE IN THE BID SUBMITTED
BY THE CONTRACTOR. MR. VIGUERIE STATED IN THE TELEPHONE CONVERSATION
AND IN A CONFIRMING LETTER OF MARCH 25, 1955, THAT, AS EVIDENCED BY THE
COPY OF THE BID FORM RETAINED IN THE CONTRACTOR'S FILE, WHICH HAD BEEN
USED AS ITS WORKSHEET, THE CONTRACTOR HAD INTENDED TO SUBMIT PRICES ON
ITEMS 2, 3 AND 4, BUT TO OMIT ITEM 1 "DUE TO THE WIDTH DIMENSION OF THIS
SHEET SIZE.' MR. VIGUERIE FURTHER STATED THAT, WHEN THEIR SECRETARY
TYPED THE FORMAL BID IN TRIPLICATE, SHE ERRED BY SHOWING THE PRICE FOR
ITEM 2 OPPOSITE ITEM 1, THE PRICE FOR ITEM 3 OPPOSITE ITEM 2, AND THE
PRICE FOR ITEM 4 OPPOSITE ITEM 3; THAT WHEN MR. MACKINNON CONTACTED HIM
BY TELEPHONE REQUESTING A VERIFICATION OF THE BID, HE REPLIED THAT HE
COULD NOT FIND ANY DISCREPANCY IN THE BID PRICES SHOWN, RELYING UPON THE
INFORMATION SHOWN IN THE REFERRED-TO COPY OF THE BID FORM WHICH HAD BEEN
USED IN PREPARING THE BID; AND THAT THE CONTRACT WOULD SUFFER A
SUBSTANTIAL LOSS ON THE ORDER IF IT WERE NOT AFFORDED SOME RELIEF, SINCE
IT HAD EXPECTED TO RECEIVE $5,654.16 FOR MANUFACTURING ITEMS 2 AND 3, OR
$2,168.64 MORE THAN THE AMOUNT OF ITS BID AS SUBMITTED. MR. VIGUERIE
AGREED TO MANUFACTURE AND SHIP ITEMS 2 AND 3 "DURING THE COMING WEEK,"
WITH THE UNDERSTANDING THAT THE CONTRACTOR'S CLAIM FOR RELIEF, NAMELY,
FOR PAYMENT TO IT OF AN AMOUNT EQUAL TO THE NEXT LOW BID FOR THE ITEMS
INVOLVED, WOULD RECEIVE CONSIDERATION.
BY LETTER OF MAY 17, 1955, THE CONTRACTING OFFICER ADVISED THE
CONTRACTOR THAT ITS CLAIM WOULD HAVE TO BE DENIED INASMUCH AS IT HAD
VERIFIED ITS BID BEFORE AWARD, BUT THAT THE CONTRACTOR MIGHT DESIRE TO
EXERCISE ITS RIGHT OF APPEAL UNDER THE DISPUTES CLAUSE OF THE CONTRACT.
THE CONTRACTOR, BY LETTER OF JUNE 1, 1955, ADDRESSED AN APPEAL TO YOU IN
THE MATTER STATING, AMONG OTHER THINGS, THAT DURING THE REFERRED-TO
TELEPHONE CONVERSATION, WHEN MR. MACKINNON REQUESTED MR.
VIGUERIE TO VERIFY THE CONTRACTOR'S BID, THE LATTER BELIEVED THAT TH
COPY OF THE BID WHICH THE FORMER WAS LOOKING AT WAS IDENTICAL TO THE
WORK COPY WHICH MR. VIGUERIE HAD BEFORE HIM, AND THAT ITEM NUMBERS AND
CORRESPONDING FIGURES WERE NOT CALLED OUT DURING THE COURSE OF THE
CONVERSATION.
THE LATTER CONTENTION IS NOT DENIED BY THE CONTRACTING OFFICER.
IN HIS LETTER OF APRIL 24, 1956, THE CONTRACTING OFFICER STATES THAT
THE CONTRACTOR'S MISTAKE IN BIDDING APPEARS FROM THE EVIDENCE TO HAVE
BEEN INADVERTENT AND INNOCENT, BUT THAT HE DOES NOT RECOMMEND GRANTING
THE REQUESTED RELIEF IN VIEW OF THE CONFIRMATION OF THE BID AND THE FACT
THAT IT WOULD NOT BE FAIR TO THE NEXT LOWEST BIDDER WHO OTHERWISE WOULD
HAVE BEEN AWARDED THE CONTRACT.
AS INDICATED IN THE CONTRACTING OFFICER'S LETTER, IT IS IN THE PUBLIC
INTEREST TO MAINTAIN THE STANDARDS OF COMPETITIVE BIDDING. HOWEVER, IT
HAS BEEN HELD THAT WHERE, AS HERE, THE CONTRACTING OFFICER HAS NOTICE OF
THE PROBABILITY THAT AN ERROR HAS BEEN MADE IN A BID, THE GOVERNMENT, IN
REQUESTING A VERIFICATION THEREOF, MUST GIVE THE BIDDER SUFFICIENT FACTS
TO PUT HIM ON NOTICE OF THE MISTAKE SURMISED, IF THE SUBSEQUENT
ACCEPTANCE OF THE BID IS TO RESULT IN A CONTRACT. THE GOVERNMENT DOES
NOT NECESSARILY FULFILL ITS DUTY IN THIS RESPECT BY MERELY REQUESTING A
VERIFICATION OF THE BID PRICE. SEE UNITED STATES V. METRO NOVELTY
MANUFACTURING CO., INC., 125 F.SUPP. 713; AND 35 COMP. GEN. 136.
IN THE PRESENT INSTANCE, THE CONTRACTING OFFICER NOT ONLY NOTED THAT
THE PRICE STATED BY THE CONTRACTOR FOR ITEM 3 WAS SUBSTANTIALLY OUT OF
LINE WITH THE OTHER BIDS, BUT HE ALSO MUST HAVE NOTED THAT IT WAS
APPROXIMATELY IN LINE WITH THE PRICES SUBMITTED BY THE OTHER BIDDERS FOR
ITEM 4. MOREOVER, IT WAS READILY APPARENT FROM THE BID FORM SUBMITTED
THAT IT WAS OUT OF LINE WITH THE BID PRICES STATED BY THE CONTRACTOR FOR
THE REMAINING ITEMS, CONSIDERING THE QUANTITY, AS DETERMINED BY THE
DIMENSIONS, OF THE SEVERAL ITEMS BID UPON.
WITH THESE FACTS AVAILABLE TO THE GOVERNMENT, IT IS BELIEVED THAT A
MERE REQUEST FOR VERIFICATION OF THE BID PRICE FOR ITEM 3, WITHOUT EVEN
IDENTIFYING PRICE WITH THE DESCRIPTION OF THE ITEM, WAS NOT A SUFFICIENT
NOTICE OF THE ERROR WHICH THE GOVERNMENT HAD AMPLE REASON TO BELIEVE
EXISTED. THAT BEING TRUE, IT PROPERLY MAY NOT BE SAID THAT THE
ACCEPTANCE OF THE BID CREATED A CONTRACT.
THE AGGREGATE AMOUNT INTENDED TO BE BID BY THE CONTRACTOR FOR ITEMS 2
AND 3 WAS $5,654.16, WHEREAS THE BID OF THE ATLANTA PAPER COMPANY
(OTHERWISE LOW BIDDER FOR THESE ITEMS) AMOUNTED TO $4,966.92.
ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT SHOULD BE MADE TO THE
CONTRACTOR FOR THE SUPPLIES FURNISHED UNDER CONTRACT NO. XG-1495 ON THE
BASIS OF THE LAST-MENTIONED AMOUNT.
THE PAPERS TRANSMITTED WITH YOUR LETTER, WITH THE EXCEPTION OF THE
STATEMENT OF FACTS AND RECOMMENDATIONS OF THE CONTRACTING OFFICER, ARE
RETURNED HEREWITH.
B-128822, SEP. 10, 1956
TO WERTZ ENGINEERING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1956, REQUESTING
REVIEW OF OUR SETTLEMENT DATED JUNE 6, 1956, WHICH DISALLOWED YOUR CLAIM
FOR $750, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE UNDER
CONTRACT NO. DA-36-237-SC-54, DATED JUNE 6, 1955, WITH THE DEPARTMENT OF
THE ARMY.
THE CONTRACT REQUIRED YOU TO PERFORM ALL WORK FOR THE INSTALLATION OF
ELECTRICAL WIRING SYSTEMS AT THE TOBYHANNA SIGNAL DEPOT FOR THE
CONSIDERATION OF $23,264.99. DURING PERFORMANCE OF THE WORK
IT APPEARS THAT YOU WERE REQUIRED TO REMOVE CERTAIN BUS DUCTS WHICH
YOU BELIEVED BECAME YOUR PROPERTY. HOWEVER, THE SIGNAL DEPOT REFUSED TO
RELEASE THE BUS DUCTS UPON REMOVAL AND YOU HAVE FILED CLAIM FOR THE
ALLEGED FAIR VALUE OF THESE DUCTS.
YOU STATE YOU CANNOT UNDERSTAND OUR DECISION--- THE SETTLEMENT OF
JUNE 6, 1956--- IN THIS MATTER AS YOU CAN FIND NOTHING IN THE CONTRACT
OR SPECIFICATIONS THAT WOULD INDICATE THAT THE MATERIAL WHICH YOU
REMOVED WAS NOT TO BECOME YOUR PROPERTY. YOU IMPLY THAT THERE IS
NOTHING IN THE CONTRACT THAT INDICATES YOU SHOULD HAVE REMOVED THE BUS
DUCTS AND STORED OR PLACED THEM FOR THE USE OF THE GOVERNMENT. YOU
CONTEND THAT IT WAS, AND IS, YOUR CONSIDERED OPINION THAT "REMOVE"
MEANS JUST WHAT IT SAYS--- TAKE IT AWAY COMPLETELY.
GENERAL CONDITIONS 8 MADE A PART OF THE CONTRACT PROVIDES AS FOLLOWS:
"GG-8 PROTECTION OF MATERIAL AND WORK. THE CONTRACTOR SHALL AT ALL
TIMES PROTECT AND PRESERVE ALL MATERIALS, SUPPLIES AND EQUIPMENT OF
EVERY DESCRIPTION (INCLUDING PROPERTY WHICH MAY BE GOVERNMENT-FURNISHED
OR OWNED) AND ALL WORK PERFORMED. ALL REASONABLE REQUESTS OF THE
CONTRACTING OFFICER TO INCLOSE OR SPECIALLY PROTECT SUCH PROPERTY SHALL
BE COMPLIED WITH. IF, AS DETERMINED BY THE CONTRACTING OFFICER,
MATERIAL, EQUIPMENT, SUPPLIES AND WORK PERFORMED ARE NOT ADEQUATELY
PROTECTED BY THE CONTRACTOR SUCH PROPERTY MAY BE PROTECTED BY THE
GOVERNMENT AND THE COST THEREOF MAY BE CHARGED TO THE CONTRACTOR OR
DEDUCTED FROM ANY PAYMENTS DUE HIM.'
THERE IS NOTHING IN THE INVITATION OR IN THE CONTRACT EITHER
EXPRESSED OR IMPLIED, TO WARRANT YOU IN INTERPRETING AND CONCLUDING THE
CONTRACT TO MEAN THAT YOU WERE ENTITLED TO REMOVE FROM THE PREMISES AND
APPROPRIATE TO YOUR OWN USE AND BENEFIT ANY MATERIAL MERELY BECAUSE OF
THE NECESSITY OF ITS DETACHMENT FROM SOME PART OF THE BUILDINGS IN ORDER
TO FURTHER PROCEED WITH THE CONTRACT WORK. ON THE CONTRARY, THE
ABOVE-QUOTED LANGUAGE OF THE GENERAL CONDITIONS NOT ONLY PRECLUDES THE
INTERJECTION OF TRADE CUSTOM BUT CLEARLY INDICATES THAT YOU WERE
CHARGED WITH THE DUTY OF PRESERVING AND PROTECTING ALL GOVERNMENT
PROPERTY SO DETACHED AS WELL AS PRESERVING AND PROTECTING THE WORK
PERFORMED. IN THE EVENT YOU FAILED TO DO SO, SUCH PROPERTY WOULD BE
PROTECTED BY THE GOVERNMENT AND THE COST THEREOF CHARGED TO YOUR
ACCOUNT. IT APPEARS FROM THE FOREGOING THAT YOUR INTERPRETATION OF THE
CONTRACT PROVISIONS IS NOT WARRANTED.
THE GOVERNMENT HAS RECEIVED IN THE PRESENT CASE ONLY THAT WHICH THE
CONTRACT PROVIDED IT SHOULD RECEIVE AND HAVING PAID THE AGREED PRICE
THEREFOR, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF AN AMOUNT IN
ADDITION THERETO.
B-128850, SEP. 10, 1956
TO LIEUTENANT COLONEL W. O. ADAMS, DISBURSING OFFICER, DEPARTMENT OF
THE NAVY:
YOUR LETTER OF NOVEMBER 17, 1955, WITH ENCLOSURES, FORWARDED HERE BY
LETTER DATED AUGUST 3, 1956, REQUESTS DECISION WHETHER PAYMENT IS
AUTHORIZED ON VOUCHER STATED IN FAVOR OF HARIET F. MARSH, DA,912 76 44
W, USN, FOR PER DIEM AT THE RATE OF $1 PER DAY DURING THE PERIOD JULY 1
TO NOVEMBER 9, 1955.
BY ORDERS DATED MARCH 14, 1955, THE MEMBER WAS TRANSFERRED FROM DUTY
AT THE U.S. NAVAL TRAINING CENTER, BAINBRIDGE, MARYLAND, TO THE NAVAL
TRAINING CENTER, SAN DIEGO, CALIFORNIA, WHERE SHE WAS TO REPORT NOT
LATER THAN APRIL 10, 1955, FOR TEMPORARY DUTY UNDER INSTRUCTION. IT IS
INDICATED THAT THE COURSE OF INSTRUCTION WAS SCHEDULED FOR LESS THAN 20
WEEKS. UPON COMPLETION OF THE COURSE OF INSTRUCTION SHE WAS ASSIGNED TO
DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, BY ORDERS
DATED NOVEMBER 10, 1955. ON APRIL 9, 1955, THE MEMBER REPORTED AS
DIRECTED AT THE NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA, FOR
TEMPORARY DUTY UNDER INSTRUCTION. SHE WAS HOSPITALIZED FROM APRIL 23,
TO MAY 9, 1955, AND FROM MAY 17 TO 21, 1955. SHE LEFT THE NAVAL
TRAINING CENTER ON NOVEMBER 10, 1955, AND ON THE SAME DAY SHE REPORTED
FOR DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA.
GOVERNMENT QUARTERS AND SUBSISTENCE WERE AVAILABLE DURING THE PERIOD
INVOLVED.
PARAGRAPH 4205-6D (4), CHANGE 36, DATED JULY 1, 1955, JOINT TRAVEL
REGULATIONS, PROVIDES FOR THE PAYMENT OF PER DIEM AT THE RATE OF $1 PER
DAY TO ENLISTED MEMBERS UNDERGOING COURSES OF INSTRUCTION AT AN
INSTALLATION OF THE UNIFORMED SERVICES WHEN BOTH GOVERNMENT QUARTERS AND
MESS ARE AVAILABLE. PARAGRAPH 3003-2 OF THE SAME REGULATIONS DEFINES
THE TERM "TEMPORARY DUTY" AS DUTY AT A LOCATION OTHER THAN A PERMANENT
STATION TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ORDERED TO
TEMPORARY DUTY UNDER ORDERS WHICH PROVIDE FOR FURTHER ASSIGNMENT TO A
NEW PERMANENT STATION OR FOR RETURN TO THE OLD STATION. THE ORDERS OF
MARCH 14, 1955, CLEARLY DIRECTED TEMPORARY DUTY UNDER INSTRUCTION AT THE
NAVAL TRAINING CENTER, SAN DIEGO, CALIFORNIA. SINCE AN ASSIGNMENT TO A
SCHOOL IS OF A TERMINABLE NATURE RATHER THAN OF THE INDEFINITE NATURE
ORDINARILY CHARACTERISTIC OF PERMANENT DUTY ASSIGNMENTS, THESE ORDERS
REASONABLY MAY BE ACCEPTED AS FALLING WITHIN PARAGRAPH 3003-2, JOINT
TRAVEL REGULATIONS.
ACCORDINGLY, IF OTHERWISE PROPER, AND ASSUMING THAT THE COURSE OF
INSTRUCTION WAS SCHEDULED FOR LESS THAN 20 WEEKS, PAYMENT IS AUTHORIZED
ON THE VOUCHER, WHICH IS RETURNED HEREWITH.
B-128876, SEP. 10, 1956
TO LIEUTENANT (JG) BRUNO A. POMPONIO:
YOUR LETTER OF JULY 25, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED
MAY 4, 1955, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM FOR THE PERIOD
APRIL 18 TO MAY 25, 1953.
BY ORDERS OF MARCH 19, 1953, FROM THE CHIEF OF NAVAL PERSONNEL, YOU
WERE DIRECTED TO REPORT TO THE OFFICER IN CHARGE, NAVY SHIPS STORE
OFFICE, NAVAL SUPPLY ACTIVITIES, NEW YORK, FOR TEMPORARY DUTY UNDER
INSTRUCTION FOR A PERIOD OF ABOUT SIX WEEKS. THOSE ORDERS ALSO DIRECTED
THAT UPON COMPLETION OF THE TEMPORARY DUTY INDICATED YOU WERE TO REPORT
TO THE OFFICER IN CHARGE, NAVY SHIPS STORE OFFICE, NAVAL SUPPLY
ACTIVITIES, NEW YORK, FOR DUTY. THE ORDERS OF MARCH 19, 1953, WERE
AMENDED BY BUPERS DISPATCH DATED MAY 26, 1953, WHICH DIRECTED YOU TO
PROCEED UPON COMPLETION OF TEMPORARY DUTY UNDER INSTRUCTION TO NAVAL
BARRACKS, NAVAL BASE, BREMERTON, WASHINGTON.
THE RECORD SHOWS THAT YOU PERFORMED THE ORDERED DUTY AT NEW YORK, NEW
YORK. YOUR CLAIM FOR PER DIEM FOR THE PERIOD OF THAT DUTY WAS
DISALLOWED FOR THE REASON THAT BROOKLYN, NEW YORK, WAS YOUR PERMANENT
DUTY STATION UNTIL YOUR DEPARTURE FOR BREMERTON, WASHINGTON, PURSUANT TO
THE BUPERS DISPATCH OF MAY 26, 1953. JOINT TRAVEL REGULATIONS PRECLUDE
PAYMENT OF PER DIEM ALLOWANCES FOR TRAVEL OR PERMANENT DUTY PERFORMED
WITHIN THE LIMITS OF THE PERMANENT DUTY STATION.
IN YOUR LETTER YOU REFER TO A LETTER DATED JANUARY 19, 1956, FROM THE
CHIEF OF NAVAL PERSONNEL.
THIS LETTER PURPORTS TO CANCEL PARAGRAPH 2 OF YOUR ORDERS OF MARCH
19, 1953, WHICH ESTABLISHED NEW YORK AS YOUR PERMANENT DUTY STATION. IT
ALSO IS STATED THAT IT WAS NEVER THE INTENTION OF THE CHIEF OF NAVAL
PERSONNEL THAT YOU BE ASSIGNED TO DUTY AT THE NAVY SHIPS STORE OFFICE,
BROOKLYN, NEW YORK, AND SUCH WORDING WAS INCLUDED ERRONEOUSLY.
IT HAS BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE
INCOMPLETE OR AMBIGUOUS OR WHERE A PROVISION WHICH WAS ORIGINALLY
INTENDED TO BE INCLUDED IN AN ORDER BUT WAS OMITTED THROUGH
ERROR OR INADVERTENCE IN PREPARING SUCH ORDER, THE ORDER MAY BE
CORRECTED OR COMPLETED TO SHOW THE ORIGINAL INTENT. 24 COMP. GEN. 439.
HOWEVER, NO SUCH ELEMENTS APPEAR IN YOUR CASE. YOUR ORDERS OF MARCH
19, 1953, APPEAR TO HAVE BEEN ISSUED IN ACCORDANCE WITH PARAGRAPH 4209
OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THAT TIME. WHILE THIS
REGULATION PURPORTED TO PERMIT A MEMBER TO RECEIVE PER DIEM ALLOWANCES
EVEN THOUGH HIS TEMPORARY DUTY STATION WAS CHANGED TO HIS PERMANENT
STATION PROVIDED THE PERMANENT CHANGE OF STATION OF STATION ORDERS
BECAME EFFECTIVE AT A LATER DATE, IT HAS BEEN HELD THAT NO PER DIEM
ACCRUES UNDER SUCH CIRCUMSTANCES. 34 COMP. GEN. 427. SEE ALSO SECTION
303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813. YOUR
ORDERS WERE COMPLETE AND UNAMBIGUOUS AND THEY ASSIGNED YOU TO PERMANENT
DUTY AT NEW YORK AFTER COMPLETION OF YOUR ASSIGNED TEMPORARY DUTY IN NEW
YORK. THE LETTER OF JANUARY 19, 1956, FROM THE CHIEF OF NAVAL
PERSONNEL, CANNOT SERVE AS A LEGAL BASIS TO CHANGE YOUR RIGHTS AND
LIABILITIES AS FIXED UNDER YOUR ORIGINAL ORDERS OF MARCH 19, 1953. YOU
WERE NOT AWAY FROM YOUR DESIGNATED POST OF DUTY DURING THE PERIOD OF
YOUR CLAIM AND CONSEQUENTLY, CANNOT PROPERLY BE CONSIDERED ENTITLED TO
PER DIEM.
B-128896, SEP. 10, 1956
TO CAPTAIN PAUL V. STAHLMAN, USAF:
YOUR LETTER OF JUNE 29, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED
JUNE 19, 1956, WHICH DISALLOWED YOUR CLAIM FOR YOUR WIFE'S TRAVEL FROM
SAULT STE. MARIE, MICHIGAN, TO MANCHESTER, NEW HAMPSHIRE, INCIDENT TO
YOUR CHANGE OF STATION ORDERS DATED JANUARY 28, 1953.
BY ORDERS DATED JANUARY 28, 1953, YOU WERE RELIEVED FROM ASSIGNMENT
AT SAULT STE. MARIE, MICHIGAN, AND ORDERED TO VARIOUS TEMPORARY DUTY
STATIONS FOR TRAINING. AFTER SUCH TEMPORARY DUTY YOU WERE TO REPORT AT
CAMP STONEMAN, CALIFORNIA, FOR SUBSEQUENT ASSIGNMENT TO THE 5TH AIR
FORCE ON PROJECT 7010. ON SEPTEMBER 15, 1953, YOU SUBMITTED A VOUCHER
FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL ON WHICH YOU CERTIFIED THAT SHE
TRAVELED FROM SAULT STE. MARIE, MICHIGAN, TO MANCHESTER, NEW HAMPSHIRE,
DURING THE PERIOD MARCH 26 TO APRIL 1, 1953. ON THE BASIS OF THAT
CERTIFICATION YOU WERE PAID $68.04 AS REIMBURSEMENT FOR YOUR WIFE'S
TRAVEL.
UPON AUDIT OF THE VOUCHER, EXCEPTION WAS TAKEN TO THE PAYMENT BECAUSE
INFORMATION ON FILE DATED JUNE 23, 1953, SHOWED YOUR WIFE'S ADDRESS ON
THAT DATE AS BRIDGEVILLE, PENNSYLVANIA--- NOT MANCHESTER, NEW HAMPSHIRE.
AFTER YOU REMITTED THE AMOUNT PAID, YOU FILED THE PRESENT CLAIM IN
WHICH YOU STATE YOUR WIFE ACTUALLY TRAVELED FROM SAULT STE. MARIE TO
MANCHESTER BETWEEN MARCH 23 AND OCTOBER 15, 1953. THE CLAIM WAS
DISALLOWED FOR THE REASON THAT YOU ADMITTEDLY HAD MADE INCORRECT
STATEMENTS IN YOUR ORIGINAL CLAIM AS TO THE TIME YOUR WIFE TRAVELED, AND
THUS RECEIVED PAYMENT TO WHICH YOU WERE NOT ENTITLED. IN YOUR LETTER
YOU SAY THAT WHEN YOU FILED YOUR ORIGINAL CLAIM YOU DID NOT KNOW WHEN
YOUR WIFE WOULD ARRIVE AT HER DESTINATION. THEREFORE, THE DATE OF
DEPARTURE WAS USED AND YOU ALLOWED A REASONABLE LENGTH OF TIME FOR THE
PERFORMANCE OF TRAVEL. IT IS YOUR CONTENTION THAT SINCE YOUR WIFE
ACTUALLY DID PERFORM THE TRAVEL YOU ARE ENTITLED TO REIMBURSEMENT
IRRESPECTIVE OF THE FACT THAT SHE HAD NOT PERFORMED SUCH TRAVEL WHEN YOU
SUBMITTED YOUR ORIGINAL VOUCHER.
THE JOINT TRAVEL REGULATIONS PROVIDE FOR REIMBURSEMENT FOR TRAVEL OF
DEPENDENTS, WITHIN CERTAIN LIMITATIONS, AFTER TRAVEL HAS BEEN COMPLETED.
YOU NOW ADMIT THAT WHEN YOU FILED YOUR VOUCHER CLAIMING REIMBURSEMENT
FOR YOUR WIFE'S TRAVEL THAT THE TRAVEL HAD NOT BEEN COMPLETED AND IT
APPEARS THAT YOU WERE AWARE, WHEN YOU SIGNED THE VOUCHER, THAT THE
INFORMATION SHOWN WAS FALSE.
THE ACT OF JUNE 25, 1948, 28 U.S.C. 2514, PROVIDES THAT ANY CLAIM
AGAINST THE UNITED STATES SHALL BE FORFEITED TO THE UNITED STATES BY ANY
PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY FRAUD AGAINST
THE UNITED STATES IN THE PROOF, STATEMENT, OR ALLOWANCE OF THE CLAIM.
UNDER THAT PROVISION OF LAW IT CONSISTENTLY HAS BEEN THE VIEW OF THE
ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE PRESENTATION OF A CLAIM
AGAINST THE UNITED STATES WITH KNOWLEDGE THAT THE FACTS STATED IN
SUPPORT OF THAT CLAIM ARE FALSE, VITIATES AND DESTROYS THE CLAIMANT'S
RIGHTS IN THE ENTIRE CLAIM. IN SUCH A SITUATION, NO AMOUNT MAY BE PAID
AND THE ENTIRE PAYMENT ON THE FALSE VOUCHER MUST BE RECOVERED EVEN
THOUGH THE CLAIMANT LATER ALTERS HIS STATEMENT TO REFLECT THE TRUE
FACTS.
PAYMENT MAY NOT NOW BE MADE ON THE BASIS THAT YOUR WIFE ACTUALLY
TRAVELED TO MANCHESTER AT A LATER DATE, INCIDENT TO YOUR CHANGE OF
STATION AND ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1956,
B-128993, SEP. 10, 1956
TO THE SECRETARY OF COMMERCE:
REFERENCE IS MADE TO LETTER DATED AUGUST 15, 1956, FROM THE ASSISTANT
SECRETARY OF COMMERCE FOR ADMINISTRATION, REQUESTING A DECISION AS TO
WHETHER A CONTRACT MAY BE NEGOTIATED UNDER THE PROVISIONS OF 5 U.S.C.
55A, WITH A FIRM OF CONSULTING ECONOMISTS FOR THE PURPOSE OF MAKING A
SURVEY AS PROPOSED BY THE DEPUTY DIRECTOR OF THE OFFICE OF AREA
DEVELOPMENT IN HIS ACCOMPANYING MEMORANDUM DATED AUGUST 8, 1956.
THE PROVISIONS OF 5 U.S.C. 55A ARE A CODIFICATION OF SECTION 15 OF
THE ACT OF AUGUST 2, 1946, 60 STAT. 810, AS FOLLOWS:
"THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR
OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR
INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS
THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN
SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND
CLASSIFICATIONS LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION
ACT OF 1949 AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE
HIGHEST RATE PAYABLE UNDER SAID SECTIONS, UNLESS OTHER RATES ARE
SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN
THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT
REGARD TO SECTION 5 OF TITLE 41.'
THIS STATUTE CONSTITUTES THE BASIC GENERAL AUTHORITY TO PROCURE BY
CONTRACT, WITHOUT ADVERTISING, THE SERVICES OF INDIVIDUALS AND
ORGANIZATIONS OF EXPERTS AND EXPERTS AND CONSULTANTS.
ITS OPERATIVE EFFECT, BY ITS TERMS, IS CONTINGENT UPON THE PASSAGE OF
AN APPROPRIATION OR OTHER ACT GRANTING SPECIFIC AUTHORITY TO THE HEAD OF
THE PARTICULAR DEPARTMENT OR AGENCY CONCERNED. THE UTILIZATION OF THE
AUTHORITY SO GRANTED IS INTENDED FOR AND, OF COURSE, IS LIMITED TO THE
FURTHERANCE OF AUTHORIZED AGENCY FUNCTIONS. FURTHERMORE, WHERE THE
SERVICES REQUIRED WOULD ORDINARILY FALL WITHIN THE SCOPE OF WORK
GENERALLY PERFORMED BY OFFICERS AND EMPLOYEES OF THE AGENCY OR OF OTHER
GOVERNMENT AGENCIES, THE DETERMINATION TO INVOKE SUCH CONTRACTING
AUTHORITY SHOULD BE BASED UPON COGENT CONSIDERATIONS OF THE NECESSITY,
EFFICIENCY, AND ECONOMY OF THE CONTRACT PROCUREMENT. CF: 26 COMP.
GEN. 188; ID. 442; 31 ID. 372; 32 ID. 427; 33 ID. 143; AND ID.
170. SEE ALSO HOUSE REPORT NO. 2894, 84TH CONGRESS, EMPLOYMENT AND
UTILIZATION OF EXPERTS AND CONSULTANTS.
IN THE EVENT A PROPOSED CONTRACT OR AGREEMENT FOR THE SERVICES OF
EXPERTS OR CONSULTANTS INVOLVES THE "COLLECTION OF INFORMATION ON
IDENTICAL ITEMS BY OR FOR THE CONTRACTOR FROM TEN OR MORE RESPONDENTS,"
THE APPLICABLE "CLEARANCE" AND OTHER REQUIREMENTS OF BUREAU OF THE
BUDGET CIRCULAR NO. A-40, ISSUED OCTOBER 24, 1951, PURSUANT TO THE
PROVISIONS OF THE FEDERAL REPORTS ACT OF 1942, 56 STAT. 1078, 5 U.S.C.
139-139F, SHOULD BE COMPLIED WITH. IN THIS CONNECTION SEE HOUSE REPORT
NO. 2913, 84TH CONGRESS, PUBLIC OPINION SURVEY TO INFLUENCE POSTAL RATE
LEGISLATION.
IT APPEARS THAT PURSUANT TO DEPARTMENT ORDER NO. 164, PROMULGATED BY
THE SECRETARY OF COMMERCE AUGUST 10, 1956, THE OFFICE OF AREA
DEVELOPMENT WAS DESIGNATED A PRIMARY ORGANIZATION UNIT OF THE DEPARTMENT
OF COMMERCE TO PERFORM CERTAIN FUNCTIONS VESTED IN THE SECRETARY OF
COMMERCE UNDER THE ACT OF FEBRUARY 14, 1903, 32 STAT. 826, WITH
REFERENCE TO PROMOTING THE GROWTH OF THE DOMESTIC COMMERCE OF THE UNITED
STATES BY ASSISTING IN THE DEVELOPMENT OF THE INDUSTRIAL POTENTIAL OF
AREAS AND COMMUNITIES OF THE UNITED STATES. THE STATED OBJECTIVE OF THE
OFFICE IS THE IMPROVEMENT OF ECONOMIC AND BUSINESS CONDITIONS BY
FURNISHING TECHNICAL ASSISTANCE DIRECTED TO (1) EXPANDING AND
STRENGTHENING EXISTING INDUSTRY, (2) DEVELOPING NEW INDUSTRIES BASED ON
LOCAL RESOURCES, AND (3) IMPROVING COMMUNITY ASSETS FOR ECONOMIC GROWTH.
SECTION 5.03 OF THE ORDER PROVIDES, AMONG OTHER THINGS, THAT THE
RESOURCES ANALYSIS DIVISION OF THE OFFICE OF AREA DEVELOPMENT, BESIDES
CONDUCTING RESEARCH ON SUBJECTS OF USE TO ALL AREAS,"WILL DO RESEARCH ON
SPECIFIC AREAS AT THE REQUEST OF, AND IN COOPERATION WITH, THE STATE AND
COMMUNITY ASSISTANCE DIVISION.'
IN HIS MEMORANDUM OF AUGUST 8, 1956, THE DEPUTY DIRECTOR OF THE
OFFICE OF AREA DEVELOPMENT PROPOSES THAT A CONTRACT BE NEGOTIATED WITH
CHECCHI AND COMPANY, CONSULTING ECONOMISTS OF WASHINGTON, D.C., TO
UNDERTAKE A SURVEY OF HOW COMMUNITIES BENEFIT BY THE FURTHER DEVELOPMENT
OF THEIR TOURIST INDUSTRY BASED ON A STUDY OF THE FOLLOWING TOPICS:
"/A) AN EXPLANATION OF THE IMPORTANCE OF THE TOURIST BUSINESS TODAY
IN SPECIFIC MEANINGFUL TERMS, ITS RECENT GROWTH, PRESENT STATUS, AND WHY
IT HAS BECOME AN IMPORTANT FACTOR IN COMMUNITY AND AREA DEVELOPMENT.
"/B) A DESCRIPTION OF WHAT THE TOURIST BUSINESS IS, WHAT IT CONSISTS
OF, WHAT ITS COMPONENTS ARE AND HOW THEY OPERATE, WHAT THE MAIN TRADE
ASSOCIATIONS ARE AND WHAT THEY DO, AND HOW ALL THESE ELEMENTS ARE
INTERRELATED.
"/C) SUGGESTIONS AS TO HOW COMMUNITIES AND AREAS CAN WORK WITH AND
THROUGH THESE ELEMENTS OF THE TOURIST BUSINESS AND HOW TO GO ABOUT IT.
"/D) A SERIES OF ILLUSTRATION TECHNIQUES USED BY COMMUNITIES AND
AREAS TO ATTRACT TOURISTS AND TO LENGTHEN THE TOURIST SEASON, INCLUDING
SPECIAL EVENTS, EXPLOITATION OF HISTORICAL BACKGROUNDS AND PHYSICAL
SURROUNDINGS, ETC., TOGETHER WITH SUGGESTIONS AS TO HOW COMMUNITIES CAN
PROCEED TO DEVELOP SUCH TECHNIQUES AND USE THEM EFFECTIVELY.
"/E) AN EXPLANATION OF HOW THE TOURIST BUSINESS CAN AND HAS ASSISTED
INDUSTRIAL DEVELOPMENT, TOGETHER WITH EXAMPLES.'
THE DEPUTY DIRECTOR STATES THAT THE INCREASING NUMBER OF REQUESTS THE
OFFICE OF AREA DEVELOPMENT IS RECEIVING FROM COMMUNITIES FOR GUIDANCE IN
AREA TOURIST DEVELOPMENT WORK GIVES URGENCY TO HAVING THIS STUDY
ACCOMPLISHED AT AN EARLY DATE; THAT THE DEPARTMENT DOES NOT HAVE THE
REQUIRED PROFESSIONAL SKILLS AND EXPERIENCE TO UNDERTAKE THIS STUDY, AND
HE RECOMMENDS THAT CHECCHI AND COMPANY BE AWARDED A NEGOTIATED CONTRACT
BECAUSE THIS FIRM IS ESPECIALLY WELL QUALIFIED TO UNDERTAKE THE PROJECT.
TWO FACTORS POINTED OUT AS CONTRIBUTING SIGNIFICANTLY TO CHECCHI AND
COMPANY'S QUALIFICATIONS TO UNDERTAKE THE STUDY ARE THE REQUIREMENTS,
STATED TO BE SET FORTH IN THE CONTRACT, "THAT THE FIRM DOING THE STUDY;
(1) CONSULT AT REGULAR INTERVALS WITH THE OFFICE OF AREA DEVELOPMENT ON
CONTENT AND OUTLINE OF THE STUDY, AND (2) CONFER WITH WELL-KNOWN
INDIVIDUALS AND FIRMS SPECIALIZING IN VARIOUS ASPECTS OF THE TOURIST
BUSINESS IN ORDER TO OBTAIN THEIR OPINIONS AND REACTIONS ABOUT THE STUDY
IN ITS DRAFT FORM.' THE DEPUTY DIRECTOR SUGGESTS THAT CHECCHI AND
COMPANY, HAVING ITS OFFICES IN WASHINGTON, D.C., WILL BE ABLE TO CONFER
FREQUENTLY AND CONVENIENTLY WITH OFFICIALS OF THE OFFICE OF AREA
DEVELOPMENT WITHOUT ADDED EXPENSE TO THE GOVERNMENT. ALTHOUGH A COPY OF
THE CONTRACT WAS NOT SUBMITTED, IT APPEARS THAT THE END RESULT OF THE
PROPOSED STUDY WILL BE A REPORT ON THE DEVELOPMENT OF TOURIST
ATTRACTIONS AND FACILITIES WITH SPECIAL EMPHASIS ON AN ANALYSIS OF THE
DOMESTIC TOURIST INDUSTRY, IN REFERENCE TO THE OVERALL ECONOMIC GROWTH
OF LOCAL AREAS OF THE COUNTRY.
IT IS UNDERSTOOD THAT THE PROPOSED CONTRACT COSTS, ESTIMATED AT
APPROXIMATELY $3,500, WOULD BE DEFRAYED FROM FUNDS APPROPRIATED FOR
SALARIES AND EXPENSES NECESSARY FOR THE GENERAL ADMINISTRATION OF THE
DEPARTMENT OF COMMERCE UNDER TITLE I, PUBLIC LAW 604, 84TH CONGRESS, 70
STAT. 314. SECTION 103 OF THIS ACT EXPRESSLY PROVIDES, THAT:
"APPROPRIATIONS IN THIS TITLE AVAILABLE FOR SALARIES AND EXPENSES SHALL
BE AVAILABLE FOR EXPENSES OF * * * SERVICES AS AUTHORIZED BY SECTION 15
OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A) * * *"
THUS, THE DEPARTMENT OF COMMERCE HAS BEEN GRANTED AUTHORITY TO
NEGOTIATE CONTRACTS FOR THE SERVICES OF EXPERTS AND CONSULTANTS, AND IT
APPEARS THAT THE SERVICES WHICH WOULD BE PROCURED UNDER THE PROPOSED
CONTRACT RELATE TO THE AUTHORIZED FUNCTIONS OF YOUR DEPARTMENT.
ACCORDINGLY, IF IT IS ADMINISTRATIVELY DETERMINED, FOLLOWING THE GENERAL
PRINCIPLES REFERRED TO HEREIN, THAT THE EXPERT AND CONSULTANT SERVICES
INVOLVED ARE NECESSARY FOR THE PERFORMANCE OF THOSE FUNCTIONS, WE
PERCEIVE NO LEGAL OBJECTION TO THE NEGOTIATION OF THE PROPOSED CONTRACT.
B-128997, SEP. 10, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 15, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A
MISTAKE IN BID ALLEGED BY THE MONMOUTH PAPER SUPPLY COMPANY, HIGHLAND
PARK, NEW JERSEY, AFTER THE AWARD OF PURCHASE ORDER NO. 28-013-4426-56,
DATED MARCH 16, 1956. A DECISION IS REQUESTED AS TO WHETHER THE
CONTRACTOR MAY BE GRANTED RELIEF IN THIS CASE.
BY INVITATION NO. 28-013-4426-56, DATED MARCH 1, 1956, THE POST
PURCHASING AND CONTRACTING OFFICE, FORT DIX, NEW JERSEY, SOLICITED BIDS
FROM EIGHTEEN BIDDERS FOR FURNISHING SUPPLIES FOR MEAT MARKET
PREPACKAGING, AMONG WHICH WERE ITEMS 12, 13, 14 AND 15, COVERING CERTAIN
PAPER TRAYS OF VARIOUS SIZES IN LOTS OF ONE THOUSAND. IN RESPONSE
THERETO, THE MONMOUTH PAPER SUPPLY COMPANY SUBMITTED BIDS OF $4.55,
$2.92, $2.94 AND $3.48, RESPECTIVELY, AS TO THESE ITEMS. ONLY THE
LATTER THREE ITEMS ARE BEING CONSIDERED HEREIN SINCE THE CONTRACTOR
ALLEGES NO MISTAKE AS TO ITEM 12.
WITH THE LETTER OF AUGUST 15, 1956, THERE WAS TRANSMITTED AN ABSTRACT
OF BIDS SHOWING THAT SIX OTHER BIDS WERE RECEIVED AS TO ITEM 13 IN THE
AMOUNTS OF $6.16, $5.75, $6.25, $6.16, $5.94 AND $6.45; THAT SIX OTHER
BIDS WERE RECEIVED AS TO ITEM 15 IN THE AMOUNTS OF $7.47, $7.10, $7.65,
$7.47, $7.24 AND $7.64. THE ABSTRACT ALSO SHOWS THAT ON ITEM 12---
WHICH WAS APPARENTLY IDENTICAL TO ITEMS 13, 14, AND 15, EXCEPT OF A
SMALLER SIZE--- THE OTHER BIDS WERE $4.84, $4.60, $4.90, AND $4.84, AS
AGAINST THE MONMOUTH COMPANY'S BID OF $4.55. THE PURCHASING AND
CONTRACTING OFFICER REPORTS THAT WHEN REVIEWING THE BID AMOUNTS, HE
SUSPECTED AN ERROR IN THE BIDS OF THE MONMOUTH PAPER SUPPLY COMPANY AS
TO THE ITEMS HERE INVOLVED; THAT VERIFICATION WAS REQUESTED, AND THAT
UPON RECEIPT OF VERBAL VERIFICATION AWARD WAS MADE ON SAID ITEMS AT THE
PRICES BID.
AFTER THE RECEIPT OF THE ORDER, THE CONTRACTOR'S REPRESENTATIVE
CONTACTED THE POST PURCHASING AND CONTRACTING OFFICER BY TELEPHONE AND
STATED THAT AN ERROR HAD BEEN MADE. HE WAS INSTRUCTED TO CONFIRM THE
ERROR BY LETTER AND TO INCLUDE DETAILED DATA TO SUPPORT THE CLAIM.
THEREAFTER, THERE WAS RECEIVED FROM THE LOW BIDDER A LETTER DATED MARCH
22, 1956, CONTAINING THE FOLLOWING ARAGRAPH:
"WE WISH TO ACKNOWLEDGE THAT ON MARCH 15TH, MR. KISH CALLED THIS
OFFICE AND ADVISED US TO CHECK OUR QUOTATION AS IT WAS SO VERY FAR BELOW
OTHERS. THE WRITER DID CHECK THE QUOTATION AGAINST OUR COST SHEET, BUT
FAILED TO TAKE INTO CONSIDERATION THE FACT THAT ITEMS 13, 14 AND 15 ARE
PACKED 500 TO THE CASE. HISTORICALLY, THESE ITEMS HAVE ALWAYS BEEN SOLD
BY THE CASE.'
A FURTHER LETTER DATED MAY 22, 1956, WAS RECEIVED FROM THE MONMOUTH
PAPER SUPPLY COMPANY STATING THAT ITS INTENDED BID PRICES AS TO ITEMS
13, 14 AND 15 WERE $5.94, $5.88, AND $6.96, RESPECTIVELY. IT THUS
REASONABLY APPEARS THAT THE BIDS SUBMITTED WERE ITS CASE PRICES FOR
CASES OF 500 RATHER THAN ON THE UNITS OF 1,000 REQUESTED BY THE
INVITATION. IT IS REPORTED THAT THE CONTRACTOR MADE COMPLETE DELIVERY
OF ALL ITEMS ON MARCH 23, 1956, AND THAT PAYMENT WAS MADE AT THE UNIT
PRICE BID, LESS EARNED DISCOUNT.
THE PURCHASING AND CONTRACTING OFFICER RECOMMENDS THAT THE
CONTRACTOR'S REQUEST FOR PRICE ADJUSTMENT BE FAVORABLY CONSIDERED,
STATING THAT AFTER SUCH ADJUSTMENT THE SUBJECT CONTRACTOR IS STILL LOW
BIDDER ON ITEMS 14 AND 15, AND THAT THE EXTENDED AMOUNT DIFFERENTIAL ON
ITEM 13 BETWEEN THEIR BID AND THE NEXT LOW BID IS ONLY 74 CENTS GREATER,
AFTER DISCOUNT.
UNDER THE REPORTED FACTS, AND CONSIDERING THE INFORMAL NATURE OF THE
TELEPHONIC REQUEST FOR VERIFICATION, IT IS BELIEVED THAT THIS CASE MAY
BE CONSIDERED AN EXCEPTION TO THE GENERAL RULE THAT THE AWARD OF A
CONTRACT, FOLLOWING CONFIRMATION OF THE BID, CONSTITUTES A VALID AND
BINDING OBLIGATION. IN VIEW OF THE RECOMMENDATION MADE BY THE
PURCHASING AND CONTRACTING OFFICER, AND SINCE THE PRICES QUOTED BY THE
MONMOUTH PAPER SUPPLY COMPANY ON THE SUBJECT ITEMS ARE SO ENTIRELY OUT
OF LINE WITH ITS ALLEGED INTENDED BID PRICES--- TWICE THE AMOUNT OF THE
ACTUAL BID PRICES--- AS WELL AS WITH ITS BID ON IDENTICAL ITEMS OF
SMALLER SIZE, AND ESPECIALLY WITH THE OTHER BIDS RECEIVED, IT WOULD
APPEAR THAT ACCEPTANCE OF THE BIDS AT THOSE PRICES COULD NOT BE FULLY
JUSTIFIED, DESPITE THE PURPORTED VERIFICATION.
SINCE THE SUPPLIES HAVE BEEN DELIVERED AND PAYMENT MADE THEREFOR AT
THE UNIT PRICES BID, LESS EARNED DISCOUNT, PAYMENT IS AUTHORIZED TO BE
MADE IN CONNECTION WITH ITEMS 14 AND 15 OF SUCH ADDITIONAL AMOUNT AS
WILL EQUAL THE INTENDED BID PRICES AS TO THESE ITEMS, LESS THE TWO
PERCENT DISCOUNT OFFERED. AS TO ITEM 13, PAYMENT IS AUTHORIZED TO BE
MADE OF SUCH ADDITIONAL AMOUNT AS WILL EQUAL THE NEXT LOWEST BID, THAT
IS TO SAY, THE BID OF THE CARTER PAPER COMPANY, INC., IN THE AMOUNT OF
$5.75, LESS ONE PERCENT DISCOUNT.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
DATED APRIL 25, 1956, ARE RETURNED HEREWITH.
B-129105, SEP. 10, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 29, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), RELATING TO A
MISTAKE IN BID ALLEGED BY THE F. P. SMITH EQUIPMENT COMPANY, SUISUN,
CALIFORNIA, UNDER CONTRACT NO. N62583S-12213, (SALES INVITATION NO.
B-1-57) ISSUED BY THE NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME,
CALIFORNIA. A DECISION IS REQUESTED AS TO WHETHER THE CONTRACT PROPERLY
MAY BE CANCELLED AND THE MATERIAL READVERTISED, IN VIEW OF THE FACTS SET
FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 29.
THE RECORD SHOWS THAT BY INVITATION NO. B-1-57, DATED JUNE 18, 1956,
THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA,
OFFERED FOR SALE CERTAIN GOVERNMENT-OWNED PROPERTY CONSISTING OF
AUTOMOTIVE AND CONSTRUCTION EQUIPMENT REPAIR PARTS AND ENGINES, THE BIDS
TO BE OPENED AT 1:00 P.M. ON JULY 12, 1956. IN RESPONSE TO THE
INVITATION, THE F.P. SMITH EQUIPMENT COMPANY SUBMITTED A BID IN THE
AMOUNT OF $3,330 ON ITEM 2 CONSISTING OF MISCELLANEOUS AUTOMOTIVE AND
CONSTRUCTION EQUIPMENT REPAIR PARTS HAVING AN ACQUISITION COST OF
$2,987. THE CONDITION OF THE MATERIAL WAS DESCRIBED AS "APPARENTLY
UNUSED-GOOD.' UNDER DATE OF JULY 17, 1956, AN AWARD WAS MADE TO THE F.
P. SMITH EQUIPMENT COMPANY UNDER CONTRACT NO. N62853S-12213.
BY LETTER OF JULY 17, 1956, THE CONTRACTOR ALLEGED THAT IT MADE AN
ERROR IN ITS BID BY ASSUMING THAT ITEM 2 INCLUDED CERTAIN ARTICLES WHICH
WERE IN FACT A PART OF ITEM 3, BUT WERE, ACCORDING TO ITS STATEMENT, ON
DISPLAY IN THE AREA OCCUPIED BY ITEM 2. A REFUND WAS REQUESTED IN THE
AMOUNT OF $735. IN SUPPORT OF THE CLAIM OF ERROR, MR. FRANCIS P. SMITH
OF THE F. P. SMITH EQUIPMENT COMPANY SUBMITTED A SKETCH OR DRAWING
INDICATING THAT A PORTION OF THE MATERIAL COVERED BY ITEM 3 WAS LOCATED
GENERALLY WITHIN THE SPACE OCCUPIED BY ITEM 2, AND MR. SMITH STATED
THAT IN HIS APPRAISAL OF LOT 2 HE FAILED TO NOTE THE MARKINGS OF LOT 3.
RESPECTING THE CONTRACTOR'S ALLEGATION OF ERROR, THE CONTRACTING OFFICER
REPORTS THAT AN INVESTIGATION FAILED TO REVEAL ANY DISCREPANCY BETWEEN
THE MATERIAL DESCRIBED IN ITEM 2 OF INVITATION NO. B-1-57 AND THE
MATERIAL DISPLAYED AND AVAILABLE FOR INSPECTION AS THAT ITEM, AND THAT
IT IS APPARENT THE BIDDER ERRED IN FAILING TO NOTE THE DELINEATION OF
THE BOUNDARY LINE BETWEEN ITEM 2 AND ITEM 3.
IT IS APPARENT THAT THE REPORTED ERROR IN THIS CASE WAS DUE SOLELY TO
THE FAULT OR NEGLIGENCE OF THE BIDDER. THE ACCEPTANCE OF THE BID WAS IN
GOOD FAITH, NO ERROR HAVING BEEN APPARENT ON THE FACE OF THE BID OR
ALLEGED UNTIL AFTER AWARD, AND SUCH ACCEPTANCE CONSUMMATED A VALID AND
BINDING OBLIGATION 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. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR ALLOWING THE CLAIM OR FOR
MODIFICATION OR CANCELLATION OF THE CONTRACT BECAUSE OF THE ALLEGED
MISTAKE IN BID.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
OF FACTS, ARE RETURNED HEREWITH.
B-129112, SEP. 10, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 29, 1956 WITH ENCLOSURES
IN DUPLICATE, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS),
RELATING TO A MISTAKE IN BID ALLEGED BY THE STANDARD SCIENTIFIC SUPPLY
CORPORATION, 34 WEST 4TH STREET, NEW YORK 12, NEW YORK, AFTER THE AWARD
OF PURCHASE ORDER NO. FD6-404-6893, DATED JUNE 25, 1956. IN VIEW OF THE
FACTS SET FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 29, A DECISION
IS REQUESTED AS TO WHETHER THE CONTRACTOR'S APPLICATION FOR RELIEF MAY
BE GRANTED.
THE RECORD SHOWS THAT BY INVITATION NO. 18-064-56-142, DATED APRIL
24, 1956, THE CONTRACTING OFFICER, BIOLOGICAL WARFARE LABS., FORT
DETRICK, FREDERICK, MARYLAND, SOLICITED BIDS--- TO BE OPENED AT 2:00
P.M. ON MAY 24, 1956--- FOR THE PROCUREMENT OF 55 SEPARATE AND DISTINCT
SUPPLY ITEMS, INCLUDING ITEM 35 DESCRIBED THEREIN AS FOLLOWS:
"15 EACH--- 6640, MORTAR AND PESTLE, 100 MM. HIGH; PORCELAIN, SIZE
NO. 4. WILL CORP. NO. 20241 OR EQUAL.'
IN RESPONSE TO THE INVITATION, THE STANDARD SCIENTIFIC SUPPLY
CORPORATION SUBMITTED A LOW BID OF $57.98 FOR THE ENTIRE LOT OF 15 OR AT
A COST PER UNIT OF $3.87. THE NEXT LOW BID WAS IN THE AMOUNT OF $5.69
PER UNIT, AND THE HIGHEST OF THE REMAINING BIDS WAS $92.67 FOR THE LOT
OR $6.17 PER UNIT. UNDER DATE OF JUNE 25, 1956, CONTRACT NO.
FD6-404-6893 WAS AWARDED TO THE LOW BIDDER FOR ITEM 35, ALONG WITH
ANOTHER ITEM NOT INCLUDED IN THE CLAIM OF ERROR.
BY LETTER OF JUNE 26, 1956, TO THE CONTRACTING OFFICER, THE
CONTRACTOR ALLEGED THAT IT HAD MADE A MISTAKE IN ITS BID AS TO ITEM 35;
THAT ITS ERRONEOUS QUOTATION "WAS BASED ON COORS NO. 522 WHICH
CALLED FOR A PRICE OF $57.98 PER 15," AND THAT THE QUOTATION PROPERLY
SHOULD HAVE BEEN "ON COORS NO. 520 WHICH CALLS FOR A PRICE OF $92.49 PER
15.' RESPECTING THE ALLEGATION OF ERROR, THE CONTRACTING OFFICER REPORTS
THAT THE PURCHASING AGENT RESPONSIBLE FOR THE PROCUREMENT DID NOT
CONSIDER THE DISPARITY IN PRICES TO BE SIGNIFICANT, AND DID NOT REQUEST
A VERIFICATION OF THE LOW BID PRIOR TO THE AWARD, SINCE HE HAD NOTED A
WIDE SPREAD OF QUOTED PRICES IN THE PAST ON PORCELAIN GOODS, ON SOME
OCCASIONS, FROM TIME TO TIME.
IT IS APPARENT THAT THE REPORTED ERROR IN THIS CASE WAS DUE SOLELY TO
THE FAULT OR NEGLIGENCE OF THE BIDDER. THE DIFFERENCE IN PRICE BETWEEN
THE LOW BID AND THE NEXT LOW BID WAS NOT SUBSTANTIAL, AND THERE IS
NOTHING OTHERWISE OF RECORD TO INDICATE THAT THE CONTRACTING OFFICER WAS
ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE ERROR. HENCE, THE ACCEPTANCE
OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER
AWARD, AND SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING OBLIGATION
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. ACCORDINGLY, THERE
IS NO LEGAL BASIS FOR MODIFICATION OF THE CONTRACT BECAUSE OF THE
ALLEGED MISTAKE IN BID.
THE ORIGINALS OF THE ENCLOSURES TO THE LETTER OF AUGUST 29 ARE
RETURNED HEREWITH, THE DUPLICATES BEING RETAINED FOR THE FILES OF THIS
OFFICE.
B-124568, SEP. 7, 1956
TO LIEUTENANT COLONEL M. L. JOHNSON, F.C., DISBURSING OFFICER,
DEPARTMENT OF THE ARMY:
BY FIRST INDORSEMENT OF AUGUST 22, 1956, THE CHIEF OF FINANCE
FORWARDED YOUR LETTER OF AUGUST 1, 1956, WITH ENCLOSURES, REQUESTING
DECISION CONCERNING THE PROPRIETY OF PAYING A VOUCHER IN THE AMOUNT OF
$1,056.78 REPRESENTING ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES
CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, FOR THE PERIOD MAY 1,
1954, TO JULY 31, 1956, IN THE CASE OF LIEUTENANT COLONEL JAMES C.
TAYLOR, U.S. ARMY, RETIRED, DECEASED.
IT APPEARS THAT ON APRIL 29, 1954, WHILE HOSPITALIZED AT THE U.S.
NAVAL HOSPITAL, ANNAPOLIS, MARYLAND, COLONEL TAYLOR EXECUTED AN ELECTION
OF OPTION (1) UNDER THE CITED ACT, TO PROVIDE AN ANNUITY ON BEHALF OF
HIS WIDOW, AND THAT HE DIED ON MAY 1, 1954. THE ELECTION WAS NOT
FORWARDED THROUGH MILITARY CHANNELS, BUT WAS GIVEN TO A RETIRED NAVAL
OFFICER, WHO WAS ACTING AS COLONEL TAYLOR'S AGENT, FOR TRANSMITTAL TO
THE PROPER AUTHORITY. WHILE THE LETTER FORWARDING THE ELECTION
WAS DATED APRIL 30, 1954, THE ELECTION WAS NOT MAILED TO THE FINANCE
CENTER, U.S. ARMY, UNTIL MAY 1, 1954. BY DECISION OF JULY 15, 1955, 35
COMP. GEN. 21, WE HELD THAT THE ELECTION WAS NOT VALID BECAUSE IT
REMAINED IN THE CONTROL OF THE OFFICER'S AGENT UNTIL AFTER THE DATE THE
STATUTORY TIME LIMITATION FOR FILING IT HAD EXPIRED ON APRIL 30, 1954.
ON MAY 31, 1956, UNDER THE PROVISIONS OF SECTION 207 OF THE
LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED (PUBLIC LAW 220, 82D
CONGRESS), AND GENERAL ORDERS 64, DATED NOVEMBER 3, 1955, THE ASSISTANT
SECRETARY OF THE ARMY, HAVING CONSIDERED THE FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS WITH
RESPECT TO THE RECORDS OF COLONEL TAYLOR, DIRECTED:
"THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF JAMES GIBSON
TAYLOR BE CORRECTED TO SHOW THAT HE TIMELY FILED PRIOR TO 1 MAY 1954 A
VALID ELECTION UNDER OPTION ONE OF THE UNIFORMED SERVICES CONTINGENCY
OPTION ACT OF 1953.'
SECTION 207 (A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS
AMENDED, AUTHORIZES THE RESPECTIVE SECRETARIES OF THE ARMED SERVICES,
INCLUDING THE SECRETARY OF THE ARMY, ACTING THROUGH CIVILIAN BOARDS, TO
CORRECT ANY MILITARY OR NAVAL RECORD WHERE IN THEIR JUDGMENT SUCH ACTION
IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE; CORRECTIONS SO
MADE ARE FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT.
SECTION 207 (B) AUTHORIZES THE PAYMENT OF CLAIMS FOR AMOUNTS FOUND DUE
AS A RESULT OF THE CORRECTION OF THE RECORDS TO THE PERSON WHOSE RECORD
IS INVOLVED OR, IF HE IS DECEASED, TO HIS ESTATE, WIDOW, LEGAL HEIRS, OR
BENEFICIARIES.
THE EFFECT OF THE CORRECTION OF COLONEL TAYLOR'S MILITARY RECORD IN
THIS CASE IS TO MAKE THE RECORD SHOW THAT THE ELECTION OF OPTION ONE
UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WAS TIMELY
MADE. ACCORDINGLY, PAYMENT MAY BE MADE TO HIS WIDOW OF ANY AMOUNTS DUE
ON THE BASIS OF THE MILITARY RECORD AS SO CORRECTED.
THE VOUCHER AND OTHER PAPERS TRANSMITTED WITH YOUR LETTER ARE
RETURNED.
B-128875, SEP. 7, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF AUGUST 2, 1956, FROM THE ASSISTANT
SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), REQUESTING A DECISION AS
TO THE PROPER INTERPRETATION OF SECTION 9 (A) OF THE ACT OF AUGUST 13,
1946, AS AMENDED, 34 U.S.C. 1020H (A), AND SECTION 10 OF THE ACT OF
AUGUST 2, 1946, AS AMENDED, 34 U.S.C. 853E-1, AS SUCH STATUTORY
PROVISIONS RELATE TO THE CLAIM OF LIEUTENANT (JG) GEORGE G. SCHNITZER,
USNR, RETIRED.
SECTION 10 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, PROVIDES AS
FOLLOWS:
"ANY MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE ENTITLED TO
DRAW A PENSION, RETAINER PAY, DISABILITY ALLOWANCE, DISABILITY
COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES BY
VIRTUE OF PRIOR MILITARY SERVICE, MAY ELECT, WITH REFERENCE TO PERIODS
OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, DRILL, TRAINING, INSTRUCTION,
OR OTHER DUTY FOR WHICH THEY MAY BE ENTITLED TO RECEIVE COMPENSATION
PURSUANT TO ANY PROVISIONS OF LAW TO RECEIVE EITHER (1) THE COMPENSATION
FOR SUCH DUTY, WHICH, WHEN AUTHORIZED BY LAW, SHALL INCLUDE TRAVEL OR
OTHER EXPENSES INCIDENT THERETO, AND SUBSISTENCE AND QUARTERS, OR
COMMUTATION THEREOF, OR (2) THE PENSION, RETAINER PAY, DISABILITY
ALLOWANCE, DISABILITY COMPENSATION OR RETIRED PAY, BUT NOT BOTH; AND
UNLESS THEY SPECIFICALLY WAIVE OR RELINQUISH THE LATTER, THEY SHALL NOT
RECEIVE THE FORMER FOR THE PERIODS OF SUCH DUTY: PROVIDED, THAT NOTHING
CONTAINED IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE
ENLISTMENT OR APPOINTMENT IN THE NAVAL RESERVE OR THE MARINE CORPS
RESERVE OF ANY PERSON WHO MAY BE ENTITLED TO DRAW ANY SUCH PENSION,
DISABILITY ALLOWANCE OR DISABILITY COMPENSATION.'
THE ACT OF AUGUST 13, 1946, ESTABLISHED A NAVAL AND MARINE CORPS
OFFICER CANDIDATE TRAINING PROGRAM WHICH INVOLVES, AMONG OTHER THINGS,
THE ENROLLMENT, SCHOLASTIC EDUCATION AND TRAINING OF CERTAIN QUALIFIED
PERSONS AS NAVAL AVIATION OFFICER CANDIDATES. SECTION 6 (A/2 OF THAT
ACT PROVIDES THAT UPON SATISFACTORY COMPLETION OF THE PRESCRIBED FLIGHT
TRAINING AND FLIGHT DUTY, SUCH PERSONS MAY BE COMMISSIONED AS ENSIGNS IN
THE LINE OF THE NAVY. SECTION 9 (A) PROVIDES FOR THE TERMINATION OF
SUCH COMMISSIONS WHEN THE PERSONS CONCERNED DO NOT APPLY FOR RETENTION
IN THE REGULAR SERVICE WITHIN THE TIME PRESCRIBED, OR WHEN APPLICATION
IS MADE, BUT THE OFFICER IS NOT SELECTED FOR RETENTION. UPON
TERMINATION OF SUCH A COMMISSION, THE PERSON CONCERNED MAY THEN ACCEPT
APPOINTMENT TO COMMISSIONED RANK IN THE NAVAL OR MARINE CORPS RESERVE
AND IF HE DOES SO HE MAY BE PAID "RETAINER PAY" AT THE RATE OF $100 PER
MONTH (BUT NOT TO EXCEED A TOTAL OF $2,000) PLUS EXPENSES OF TUITION,
FEES, BOOKS, AND LABORATORY EXPENSES,"WHILE (AS) AN OFFICER OF THE NAVAL
OR MARINE CORPS RESERVE, HE PURSUES FULL-TIME INSTRUCTION IN AN
ACCREDITED COLLEGE OR IVERSITY.'
IT IS STATED THAT WHILE LIEUTENANT SCHNITZER WAS PARTICIPATING IN THE
EDUCATIONAL PROGRAM HE WAS ORDERED TO ACTIVE DUTY, AND APPARENTLY HE
PERFORMED ACTIVE DUTY IN THE KOREAN CONFLICT FOR TWO
YEARS. UPON HIS RETURN TO THE UNITED STATES HE WAS ORDERED TO THE
NAVAL AIR STATION AT CORPUS CHRISTI, TEXAS, AS A FLIGHT INSTRUCTOR. HE
THERE RECEIVED AN INJURY WHICH RESULTED IN HIS RETIREMENT. HE NOW
WISHES TO CONTINUE HIS EDUCATION UNDER SECTION 9 (A) OF THE ACT OF
AUGUST 13, 1946, AS AMENDED, BUT IT APPEARS THAT THE BUREAU OF NAVAL
PERSONNEL HAS DENIED HIS CLAIM FOR BENEFITS UNDER THAT ACT, PRESUMABLY
BECAUSE OF THE VIEW THAT HE MAY NOT RECEIVE SUCH BENEFITS WHILE HE IS IN
RECEIPT OF DISABILITY RETIRED PAY.
IT IS CLEAR THAT HE WILL NOT BE PERFORMING EITHER ACTIVE DUTY, ACTIVE
DUTY FOR TRAINING, DRILLS OR TRAINING WHILE ATTENDING AN ACCREDITED
COLLEGE OR UNIVERSITY AND THE ACT OF AUGUST 2, 1946, AS AMENDED,
FURNISHES NO BAR TO PAYMENT OF THE BENEFITS OF THE ACT OF AUGUST 13,
1946, AS AMENDED, IN ADDITION TO HIS PHYSICAL DISABILITY RETIRED PAY,
UNLESS ATTENDANCE AT SUCH COLLEGE OR UNIVERSITY MAY BE REGARDED AS
"INSTRUCTION, OR OTHER DUTY" WITHIN THE MEANING OF THE ACT OF AUGUST 2,
1946, AS AMENDED.
THE PURPOSE OF THE ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067, AMENDING
THE ACT OF AUGUST 2, 1946, AS STATED BY THE SENATE COMMITTEE ON ARMED
FORCES, 81ST CONGRESS, 1ST SESSION, IN REPORT NO. 508, TO ACCOMPANY S.
1507, IS TO PERMIT THE WAIVER OF PENSION OR DISABILITY BENEFITS BY
FORMER PERSONNEL OF THE MILITARY SERVICES FOR THE PURPOSE OF SERVING IN
THE RESERVE COMPONENTS OF THE RESPECTIVE SERVICES. THERE IS NOTHING IN
THE ACT OF AUGUST 13, 1946, AS AMENDED, WHICH IN ANY WAY REQUIRES AN
OFFICER, WHOSE COMMISSION IN THE REGULAR NAVY IS TERMINATED UNDER
SECTION 9 OF THAT ACT AND WHO ACCEPTS AN APPOINTMENT TO A COMMISSIONED
RANK IN THE NAVAL RESERVE, TO ATTEND A COLLEGE OR UNIVERSITY. THE
GOVERNMENT MERELY PROVIDES CERTAIN BENEFITS FOR HIM IF HE DESIRES TO
COMPLETE HIS EDUCATION UNDER THE AUSPICES OF THE NAVY. THE DUTIES
REQUIRED OF AN OFFICER UNDER THAT ACT ARE ALL COMPLETED WHEN HE IS
COMMISSIONED AND SERVES UNTIL SUCH COMMISSION IS TERMINATED.
ATTENDANCE AT A COLLEGE OR UNIVERSITY AFTER ACCEPTANCE OF AN
APPOINTMENT IN THE NAVAL RESERVE IS NOT, IN ITSELF, SERVICE IN THE NAVAL
RESERVE, AS THE TERM "SERVICE" IS ORDINARILY UNDERSTOOD. IT IS STATED
ON PAGE 7, REPORT NO. 2105, COMMITTEE ON NAVAL AFFAIRS, HOUSE OF
REPRESENTATIVES, TO ACCOMPANY H.R. 4526, THE COMPANION BILL TO S. 2304,
WHICH WAS ENACTED INTO LAW AS THE ACT OF AUGUST 13, 1946, THAT:
"* * * SINCE AVIATORS UNDER THE PROPOSED PROGRAM WOULD ENTER FLIGHT
TRAINING UPON COMPLETION OF 2 YEARS OF COLLEGE, IT IS ASSUMED THAT THEIR
EDUCATION WOULD BE INTERRUPTED. BECAUSE THE COLLEGE TRAINING OF
AVIATION CANDIDATES MUST BE CUT SHORT DUE TO THE NEEDS OF THE SERVICE IT
IS FELT THAT AN OBLIGATION ON THE PART OF THE GOVERNMENT ARISES TO
PROVIDE THE MEANS TO ALLOW THESE PERSONS TO COMPLETE THEIR COLLEGE WORK.
THE FOREGOING PLAN IS SUBSTITUTED FOR THE LUMP-SUM PAYMENTS MADE TO
OTHER OFFICERS RELEASED FROM ACTIVE DUTY IN ORDER TO FURNISH AN
INCENTIVE TO SUCH OFFICERS TO CONTINUE THEIR COLLEGE EDUCATION.'
IN CONNECTION WITH THE STATEMENT THAT THE BENEFITS OF SECTION 9 (A)
WERE SUBSTITUTED FOR THE LUMP-SUM PAYMENTS MADE TO OTHER AVIATION
OFFICERS RELEASED FROM ACTIVE DUTY, THERE ARE FOR CONSIDERATION OUR
DECISIONS PUBLISHED IN 33 COMP. GEN. 489 AND 23 COMP. GEN. 376. IN
THOSE DECISIONS WE HELD THAT SUCH LUMP-SUM PAYMENTS MAY BE MADE UNDER
SECTION 2 OF THE ACT OF JUNE 16, 1936, AS AMENDED, 10 U.S.C. 300 (A),
AND UNDER SECTION 12 OF THE NAVAL AVIATION CADET ACT OF 1942,
56 STAT. 738, TO RESERVE OFFICERS UPON RELEASE FROM ACTIVE SERVICE B
REASON OF RETIREMENT BASED ON YEARS OF SERVICE, OR BASED ON PHYSICAL
DISABILITY. AND IN DECISION OF JANUARY 4, 1952, 31 COMP. GEN. 249, WE
HELD THAT THE "RETAINER PAY" GRANTED UNDER SECTION 9 (A) OF THE ACT OF
AUGUST 13, 1946, IS NOT RETAINER PAY WITHIN THE PURVIEW OF THAT TERM AS
USED IN THE ABOVE-QUOTED SECTION 10, OF THE ACT OF AUGUST 2, 1946, AS
AMENDED.
INSOFAR AS THE NAVAL RESERVE AND MARINE CORPS RESERVE ARE CONCERNED,
S. 2670, 80TH CONGRESS, THE ORIGINAL BILL TO AMEND SECTION 10 OF THE ACT
OF AUGUST 2, 1946, AS PASSED BY THE SENATE, MADE NO REFERENCE TO "DRILL,
TRAINING, INSTRUCTION, OR OTHER DUTY.' APPARENTLY, THAT LANGUAGE WAS
INCLUDED IN S. 1507, 81ST CONGRESS--- LATER ENACTED INTO LAW AS THE
AMENDATORY ACT OF SEPTEMBER 27, 1950, 64 STAT. 1067--- AS A RESULT OF
OUR SUGGESTION IN A LETTER TO THE DIRECTOR, BUREAU OF THE BUDGET, DATED
AUGUST 31, 1948, B-59501, B-71447, THAT S. 2670 NEEDED CLARIFICATION,
SINCE IT MADE NO REFERENCE TO COMPENSATION FOR MEMBERS OF THE NAVAL
RESERVE AND THE MARINE CORPS RESERVE FOR EACH REGULAR PERIOD OF
INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, OR FOR THE PERFORMANCE OF
SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE
DUTIES AS PROVIDED FOR IN SECTION 14 (C) OF THE PAY READJUSTMENT ACT OF
1942, AS ADDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, 62 STAT. 88.
NOTHING HAS BEEN FOUND WHICH INDICATES THAT IN ENACTING THE ACT OF
SEPTEMBER 27, 1950, THE CONGRESS INTENDED TO INCLUDE THE BENEFITS OF
SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, WITHIN THE PURVIEW OF SUCH
LEGISLATION.
IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT ATTENDANCE AT A COLLEGE OR
UNIVERSITY UNDER SECTION 9 (A) OF THE ACT OF AUGUST 13, 1946, AS
AMENDED, IS NOT "INSTRUCTION, OR OTHER DUTY" WITHIN THE MEANING OF THE
ACT OF AUGUST 2, 1946, AS AMENDED, AND THAT THE LATTER ACT DOES NOT
REQUIRE THAT THE BENEFITS OF SECTION 9 (A) BE WITHHELD FROM LIEUTENANT
SCHNITZER, WHILE HE IS IN RECEIPT OF DISABILITY RETIRED PAY, IF HE IS
OTHERWISE ENTITLED TO SUCH BENEFITS.
B-129065, SEP. 7, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 22, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A
DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN BY YOUR DEPARTMENT IN
CONNECTION WITH A MISTAKE IN BID ALLEGED BY THE MAX LUMBER AND MILLWORK
CORPORATION, JERSEY CITY, NEW JERSEY, AFTER THE AWARD OF UNNUMBERED
CONTRACT 7217-PH-56-92, DATED APRIL 26, 1956.
IN RESPONSE TO INVITATION NO. LAB SC-36-039-56-108, DATED APRIL 3,
1956, THE MAX LUMBER AND MILLWORK CORPORATION SUBMITTED A BID FOR
FURNISHING 600 SHEETS OF HARDBOARD, OIL TEMPERED, 1/8 INCH BY 4 FEET BY
8 FEET, MASONITE, AT A UNIT PRICE OF $2, OR FOR A TOTAL OF $1,200. THE
BID WAS ACCEPTED ON APRIL 26, 1956, BY THE ISSUANCE OF ORDER NO.
7217-PH-56-92.
IT IS REPORTED THAT ON APRIL 30, 1956, THE PRESIDENT OF THE
CONTRACTING CORPORATION CALLED THE CONTRACTING OFFICER CLAIMING THAT ITS
BID OF $2 PER UNIT WAS THE RESULT OF A CLERICAL ERROR AND SHOULD HAVE
BEEN $3 PER UNIT. BY A LETTER OF THAT DATE THE CONTRACTOR FORMALLY
ALLEGED ERROR AND STATED THAT THE CARLOAD PRICE ON "THIS MATERIAL" WAS
WELL ABOVE ITS BID PRICE, AND REQUESTED THAT THE CONTRACT EITHER BE
CANCELLED OR THAT THE PRICE BE ADJUSTED TO $1,800 FOR THE LOT. PURSUANT
TO A REQUEST BY THE CONTRACTING OFFICER THE CONTRACTOR BY LETTER OF MAY
29, 1956, SUBMITTED A SHEET FROM A DEALER PRICE LIST FOR MASONITE
PRODUCTS INDICATING THAT THE PRICE TO BIDDERS FOR MASONITE SHEETS OF THE
TYPE BEING PROCURED WAS $78 PER 1,000 SQUARE FEET, OR APPROXIMATELY
$2.50 PER 1/8 INCH BY 4 FEET BY 8 FEET SHEET.
IN THE CONTRACTING OFFICER'S STATEMENT RELATING TO THE ALLEGED
MISTAKE IN BID, IT WAS STATED THAT AT THE TIME OF THE BID OPENING IT WAS
NOTED THAT CONTRACTOR'S BID WAS SUBSTANTIALLY LOWER THAN THE NINE OTHER
BIDS; THAT THE CONTRACTOR'S BID CONTAINED A CORRECTION FROM A STILL
LOWER UNIT PRICE AND THAT THE BID AS CORRECTED WAS INITIALED BY THE
PRESIDENT OF THE CORPORATION PRIOR TO THE SUBMISSION OF THE BID. ON THE
BASIS OF THESE FACTS AWARD WAS MADE WITHOUT FURTHER QUESTION.
IN RECOMMENDING THAT THE CONTRACTOR BE HELD TO ITS BID PRICE, THE
CONTRACTING OFFICER STATED THAT, IN HIS OPINION, THE MISTAKE WAS NOT THE
RESULT OF AN "INADVERTENT CLERICAL ERROR" AS CLAIMED BY THE CONTRACTOR;
THAT IT DOES NOT SEEM REASONABLE THAT SUCH A GLARING OVERSIGHT WOULD
OCCUR, AND THAT IT IS MORE LIKELY THAT THE BIDDER WAS NOT FAMILIAR WITH
THE COMMODITY AND THAT THE INTENDED BID WAS IN ERROR.
THE ABSTRACT OF BIDS SHOWS THAT TEN BIDS WERE RECEIVED AND THAT THE
OTHER NINE RANGED FROM $2.55 TO $3.18 PER SHEET. IT IS OUR VIEW THAT
TAKING INTO CONSIDERATION THE NATURE OF THE MATERIAL TO BE FURNISHED---
OF STANDARD MANUFACTURE AND WIDE GENERAL COMMERCIAL USE--- THE
CONTRACTOR'S BID OF $2 PER SHEET WAS SUFFICIENTLY OUT OF LINE TO PLACE
THE CONTRACTING OFFICER ON NOTICE OF PROBABLE ERROR, AND THUS TO REQUIRE
CONFIRMATION BEFORE AWARD. ACCORDINGLY, IT IS OUR CONCLUSION THAT THE
CONTRACT HEREIN SHOULD BE CANCELLED.
THE PAPERS TRANSMITTED WITH THE LETTER OF AUGUST 22, 1956, WITH THE
EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT AND THE STATEMENT DATED
JULY 13, 1956, BY JOHN C. GREGG, ACTING CHIEF, LEGAL DIVISION, ARE
RETURNED HEREWITH.
B-129088, SEP. 7, 1956
TO THE HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS
ADMINISTRATION:
REFERENCE IS MADE TO A LETTER DATED AUGUST 27, 1956, WITH ENCLOSURES,
FROM THE DEPUTY ADMINISTRATOR, REQUESTING A DECISION AS TO THE ACTION TO
BE TAKEN CONCERNING AN ERROR BORDEN'S FARM PRODUCTS OF NEW JERSEY, INC.,
NEWARK, NEW JERSEY, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO.
V5110P-910 WAS AWARDED.
THE VETERANS ADMINISTRATION HOSPITAL, LYONS, NEW JERSEY, BY
INVITATION NO. 57-15, REQUESTED BIDS--- TO BE OPENED JUNE 15, 1956---
FOR FURNISHING DAIRY PRODUCTS SPECIFIED UNDER VARIOUS ITEMS.
GROUPS "A," "B," "C," AND "D" SPECIFY ESTIMATED QUANTITIES OF THE
VARIOUS ITEMS TO BE DELIVERED DURING PERIODS OF 3, 6, 9, AND 12 MONTHS,
RESPECTIVELY, BEGINNING JULY 1, 1956. ITEM 152 COVERS PASTEURIZED FRESH
MILK AND CALLS FOR BID PRICES PER GALLON, FOR DELIVERY OF CERTAIN
QUANTITIES IN 1/2-PINT WAXED PAPER CONTAINERS AND OF OTHER QUANTITIES IN
TEN-GALLON CANS. PROSPECTIVE BIDDERS WERE ADVISED THAT AWARD WOULD BE
MADE ON THE LOWEST AGGREGATE BID FOR WHICHEVER PERIOD IS MOST
ADVANTAGEOUS TO THE GOVERNMENT. BORDEN'S FARM PRODUCTS OF NEW JERSEY,
INC., BY A BID DATED JUNE 12, 1956, OFFERED TO FURNISH FRESH MILK IN
1/2-PINT CONTAINERS FOR ONE, TWO, OR THREE QUARTERS AT PRICES OF $0.692
TO $0.697 PER GALLON, AND FOR THE FULL FOUR QUARTERS AT A PRICE OF $0.59
PER GALLON.
IT IS STATED IN THE LETTER OF AUGUST 27, 1956, THAT REPRESENTATIVES
OF VARIOUS DAIRIES WERE PRESENT AT THE BID OPENING AND THAT THEY
QUESTIONED THE LOWNESS OF THE BORDEN FIRM'S UNIT PRICE OF $0.59; AND
THAT WHEN A REPRESENTATIVE OF BORDEN'S FARM PRODUCTS OF NEW JERSEY,
INC., WHO WAS PRESENT AT THE BID OPENING, WAS REQUESTED TO VERIFY THE
CORPORATION'S BID PRICE ON THAT SUBITEM, HE REPLIED THAT HE WAS UNABLE
TO DO SO BECAUSE HE WAS NOT FROM THE NEWARK OFFICE OF THE CORPORATION
AND, ALSO, THAT HE HAD NO KNOWLEDGE OF THE PRICES BID BY THE
CORPORATION. IT WAS ALSO STATED THAT IMMEDIATELY AFTER THE BIDS WERE
OPENED AND PRIOR TO AWARD, BORDEN'S FARM PRODUCTS OF NEW JERSEY, INC.,
TELEPHONED THE HOSPITAL ALLEGING THAT IT HAD MADE AN ERROR IN ITS BID
AND THAT THE CORRECT PRICE FOR THE ITEM IN QUESTION WAS $0.69 PER GALLON
AND NOT $0.59 PER GALLON AS ORIGINALLY QUOTED. BY LETTER DATED JUNE 15,
1956, THE CORPORATION CONFIRMED ITS VERBAL ALLEGATION OF ERROR IN ITS
BID. BECAUSE TIME DID NOT PERMIT THE SUBMISSION OF THE MATTER TO THE
GENERAL ACCOUNTING OFFICE PRIOR TO AWARD, THE BID OF BORDEN'S FARM
PRODUCTS OF NEW JERSEY, INC., WAS ACCEPTED ON THE BASIS OF ITS AGGREGATE
BID PRICE OF $118,711.44 FOR GROUP "D," SUBJECT TO CORRECTION, IF
AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE.
IN A LETTER DATED JUNE 25, 1956, THE CORPORATION REQUESTED THAT THE
CONTRACT UNIT PRICE OF THE MILK IN 1/2-PINTS BE INCREASED FROM $0.59 TO
$0.69 PER GALLON.
THE ABSTRACT OF BIDS SHOWS THAT THE TWO OTHER BIDDERS ON THE SAME
ITEM QUOTED PRICES OF $0.73 AND $0.76 PER GALLON FOR THE SAME PERIOD.
THUS, THE BID OF BORDEN'S FARM PRODUCTS OF NEW JERSEY, INC., OF $0.59
PER GALLON IS CLEARLY OUT OF LINE WITH THE OTHER BIDS RECEIVED ON THE
ITEM. IT IS NOTED ALSO THAT THERE IS A DIFFERENCE OF APPROXIMATELY TEN
CENTS BETWEEN THE UNIT PRICE QUOTED BY THE BORDEN CORPORATION FOR THE
FULL YEAR AND ITS PRICES FOR ONE, TWO, AND THREE QUARTERS, WHEREAS NO
SUCH DIFFERENCE APPEARS IN ITS PRICES FOR THE SAME MILK IN TEN-GALLON
CANS FOR THOSE PERIODS, NOR IS THERE A CORRESPONDING DIFFERENCE IN THE
PRICES QUOTED BY THE OTHER BIDDERS FOR THE RESPECTIVE PERIODS.
ON THE RECORD, THERE APPEARS NO DOUBT THAT THE BID OF $0.59 PER
GALLON FOR SUBITEM 152B OF GROUP "D" WAS ERRONEOUS AND THAT THE PRICE
FOR THAT SUBITEM WAS INTENDED TO BE $0.69 PER GALLON, AS ALLEGED.
ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND SATISFACTORILY EXPLAINED
PRIOR TO AWARD, CONTRACT NO. V511OP-910 WHICH WAS EXPRESSLY MADE SUBJECT
TO CORRECTION BY THE GENERAL ACCOUNTING OFFICE MAY BE AMENDED TO
INCREASE THE UNIT PRICE FOR ITEM 152--- MILK IN 1/2-PINT CONTAINERS---
TO $0.69 AND PAYMENT IS AUTHORIZED TO BE MADE ON THAT BASIS, IT
APPEARING THAT THE AGGREGATE AMOUNT OF THE CONTRACT, AS CORRECTED, WILL
STILL BE THE LOWEST THAT COULD HAVE BEEN MADE ON THE BIDS RECEIVED.
A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO BE
ATTACHED TO THE CONTRACT.
B-129103, SEP. 7, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 29, 1956, WITH ENCLOSURES,
FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), RELATING TO A
MISTAKE IN BID ALLEGED BY MR. A. L. STODDARD, VALLEJO, CALIFORNIA, UNDER
CONTRACT NO. N228S-16473 (SALES CATALOG NO. B-283-56), ISSUED BY THE
NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA. IN VIEW OF THE FACTS SET
FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 29, A DECISION IS
REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE
MATERIAL READVERTISED.
THE RECORD SHOWS THAT BY INVITATION NO. B-283-56, DATED JUNE 4, 1956,
THE DISPOSAL DIVISION, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, OFFERED
FOR SALE CERTAIN MISCELLANEOUS GOVERNMENT-OWNED PROPERTY CONSISTING OF
TRUCKS, TRAILERS, BOATS, LANDING CRAFT, ETC., THE BIDS TO BE OPENED AT
:30 A.M. ON JUNE 26, 1956. IN RESPONSE TO THE INVITATION, MR. A. L.
STODDARD SUBMITTED BIDS AS TO ITEMS 30 AND 38 AND THE BID WAS ACCEPTED
ON JULY 9, 1956, AS TO ITEM 38 IN THE AMOUNT OF $311. BY LETTER OF JULY
15, 1956, THE CONTRACTOR CLAIMED AN ERROR IN BIDDING IN THAT HIS BID
ENTERED FOR ITEM 38 WAS INTENDED FOR ITEM 39, WHICH HE HAD INSPECTED.
TO SUBSTANTIATE HIS CLAIM OF ERROR, THE
CONTRACTOR FURNISHED AN ENVELOPE UPON WHICH HE HAD ENTERED HIS
INTENDED BIDS.
RESPECTING THE CONTRACTOR'S ALLEGATION OF ERROR, THE CONTRACTING
OFFICER REPORTED THAT A REVIEW OF THE BIDS RECEIVED INDICATED THAT WHILE
THE BID OF $311 WAS WITHIN THE RANGE OF THE BIDS RECEIVED FOR ITEM 39,
NO CONFIRMATION OF THE CONTRACTOR'S BID WAS REQUESTED SINCE IT WAS NOT
SO FAR OUT OF LINE WITH THE OTHER BIDS FOR ITEM 38 AS TO INDICATE A
POSSIBLE ERROR. THE CONTRACTING OFFICER IS ALSO OF THE OPINION THAT THE
CONTRACTOR HAS NOT SATISFACTORILY EXPLAINED HIS ERROR AND THAT THEREFORE
HIS REQUEST FOR CANCELLATION SHOULD BE DENIED.
IT IS WELL ESTABLISHED THAT THE ACCEPTANCE OF A BID CONSUMMATES A
VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING IT WAS ON
NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD
MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH. INSOFAR AS THE PRESENT RECORD
SHOWS, THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO
ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, THE
ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH
FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V.
PURCELL ENVELOPE COMPANY, 249 U.S. 313, 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 WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT
ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102
C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505,
507.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
DATED AUGUST 8, 1956, ARE RETURNED HEREWITH.
B-129155, SEP. 7, 1956
TO THE SECRETARY OF STATE:
REFERENCE IS MADE TO LETTER OF SEPTEMBER 6, 1956, FROM THE ASSISTANT
SECRETARY-CONTROLLER, REQUESTING OUR DECISION AS TO WHETHER THE UNITED
STATES DELEGATES TO THE ELEVENTH SESSION ON THE GENERAL AGREEMENT ON
TARIFFS AND TRADE AT GENEVA, SWITZERLAND, CONVENING ON OCTOBER 11, 1956,
MAY TRAVEL BY FOREIGN VESSEL.
SECTION 901 OF THE MERCHANT MARINE ACT, 1936, 49 STAT. 2015, 46
U.S.C. 1241, PROVIDES AS FOLLOWS:
"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL
BUSINESS OVERSEAS OR TO AND FROM ANY OF THE POSSESSIONS OF THE UNITED
STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS
REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE
AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP
UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE
UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING
EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF
OF THE NECESSITY REFOR.'
IT IS STATED THAT THE DELEGATION IS EXPECTED TO BE HEADED BY THE
DEPUTY UNDER SECRETARY OF STATE FOR ECONOMIC AFFAIRS AND WILL INCLUDE
EXPERTS FROM VARIOUS OF THE EXECUTIVE DEPARTMENTS AS WELL AS ONE MEMBER
EACH FROM THE UNITED STATES SENATE AND THE HOUSE OF REPRESENTATIVES.
FURTHER, THAT THE CLOSEST SAILING DATE OF A SHIP OF UNITED STATES
REGISTRY IS THAT OF THE S.S. AMERICA LEAVING NEW YORK CITY ON SEPTEMBER
27, 1956, AND ARRIVING AT LE HAVRE ON OCTOBER 4, 1956, PERMITTING
ARRIVAL AT THE CONFERENCE SITE ON OCTOBER 5, 1956, SIX DAYS IN ADVANCE
OF THE MEETING, WHICH, IN CONSIDERATION OF THE HEAVY WORK SCHEDULE OF
THE DELEGATES, IS NOT TENABLE. IN VIEW THEREOF, OUR DECISION IS
REQUESTED AS TO WHETHER IT WILL BE PERMISSIBLE FOR THE DELEGATES
TRAVELING BY SHIP TO USE THE S.S. QUEEN MARY WHICH SAILS FROM NEW YORK
ON OCTOBER 3 AND ARRIVES AT LE HAVRE ON OCTOBER 9, PERMITTING ARRIVAL AT
GENEVA ON OCTOBER 9, 1956, ONLY TWO DAYS PRIOR TO THE BEGINNING OF THE
MEETING.
BY REASON OF THE RELATED CIRCUMSTANCES, IT IS APPARENT THAT THE USE
OF AN AMERICAN VESSEL WOULD RESULT IN EXCESSIVE LOSS OF PRODUCTIVE TIME
BY THE OFFICIALS EXPECTED TO SERVE AS DELEGATES TO THE MEETING.
ACCORDINGLY, IT IS OUR VIEW THAT AN AMERICAN VESSEL IS NOT AVAILABLE FOR
THE NECESSARY TRANSPORTATION WITHIN THE MEANING OF THE FOREGOING STATUTE
AND THAT THE USE OF A FOREIGN VESSEL IS AUTHORIZED FOR SUCH
TRANSPORTATION.
B-125663, SEP. 6, 1956
TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 15, 1956, RELATIVE TO THE
DISPOSITION OF THE BALANCE OF PERSONAL FUNDS STANDING TO THE CREDIT OF
MARY DEPENBROCK, A DECEASED PATIENT OF SAINT ELIZABETHS HOSPITAL,
WHEREIN YOU ADVISE THAT THE HOSPITAL HAS RECEIVED A CLAIM TO SUCH FUNDS
FROM THE DISTRICT OF COLUMBIA, APPARENTLY FOR REIMBURSEMENT FOR CARE AND
MAINTENANCE PAYMENTS UNDER THE PROVISIONS OF 21 D.C. CODE 318, AND A
LETTER FROM THE SON OF THE DECEASED INDICATING HE DESIRES TO FILE A
FORMAL CLAIM AS LEGAL HEIR TO SUCH FUNDS. THE CITED SECTION OF THE D.C.
CODE PROVIDES THAT THE ESTATE OF A DECEASED PATIENT SHALL BE LIABLE TO
THE DISTRICT OF COLUMBIA FOR THE EXPENSE OF CARE AND MAINTENANCE AT THE
HOSPITAL.
YOU STATE THAT, IF THE CLAIM OF THE SON IS RECEIVED PRIOR TO THE
CLOSE OF THE FIRST FULL FISCAL YEAR FOLLOWING THE DATE OF THE PATIENT'S
DEATH, THE HOSPITAL PROPOSES TO PAY THE BALANCE OF THE PERSONAL FUNDS TO
THE SON WITHOUT FURTHER CONSIDERATION OF THE CLAIM OF THE DISTRICT OF
COLUMBIA OR ANY OTHER CREDITORS. IF NO CLAIM IS RECEIVED FROM MR.
DEPENBROCK WITHIN SUCH PERIOD THE HOSPITAL PROPOSES TO COVER THE MONEY
INTO THE TREASURY IN ACCORDANCE WITH B-3271, MARCH 27, 1940. HOWEVER,
IN VIEW OF THE POSSIBILITY THAT OUR DECISION OF DECEMBER 27, 1955
(B-125663), WAS INTENDED TO PLACE RESPONSIBILITY ON THE HOSPITAL TO
ATTEMPT TO DISCOVER EXISTING CREDITORS OF THE DECEASED OR HIS ESTATE, TO
DETERMINE THE VALIDITY OR RELATIVE PRIORITY POSITION OF THE CLAIMS OF
SUCH CREDITORS, AND TO PAY PERSONAL FUNDS OF DECEASED PATIENTS IN
SATISFACTION OF SUCH CLAIMS, YOU ASK TO BE ADVISED AS TO WHETHER
OBJECTION WOULD BE MADE TO EITHER OF THE PROPOSED DISPOSITIONS IN THE
ABOVE CASE.
UPON THE DEATH OF A PATIENT AT SAINT ELIZABETHS HOSPITAL, AUTHORITY
FOR PAYMENT OF PERSONAL FUNDS DEPOSITED WITH THE SUPERINTENDENT TO HEIRS
OF THE DECEASED IS GRANTED BY THE ACT OF JUNE 30, 1906, AS AMENDED, 24
U.S.C. 177, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:
"ALL MONEYS BELONGING TO DECEASED INMATES OF SAINT ELIZABETHS
HOSPITAL AND DEPOSITED IN THE TREASURY BY THE DISBURSING AGENT AS AGENT,
SHALL BE COVERED INTO THE TREASURY UNLESS CLAIMED BY HIS OR HER LEGAL
HEIRS WITHIN FIVE YEARS FROM THE DEATH OF THE INMATE. AND THE
SUPERINTENDENT OF SAINT ELIZABETHS HOSPITAL IS AUTHORIZED AND DIRECTED,
UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF HEALTH,
EDUCATION, AND WELFARE, TO MAKE DILIGENT INQUIRY IN EVERY INSTANCE AFTER
THE DEATH OF AN INMATE TO ASCERTAIN THE WHEREABOUTS OF HIS OR HER LEGAL
HEIRS. * * *"
AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES THAT
ONE OF ITS PURPOSES, IF NOT THE PRIMARY PURPOSE, WAS TO REMOVE FROM THE
BOOKS OF THE GOVERNMENT THE NUMEROUS INDIVIDUAL ACCOUNTS OF DECEASED
PATIENTS WHICH WERE PYRAMIDING WITH THE PASSAGE OF TIME. HOUSE DOCUMENT
NO. 634, 59TH CONGRESS, 1ST SESSION, CONTAINS A LETTER FROM THE
SECRETARY OF THE INTERIOR TRANSMITTING A DRAFT OF PROPOSED LEGISLATION
WHICH PROVIDED FOR THE COVERING INTO THE TREASURY FUNDS OF DECEASED
PATIENTS UNCLAIMED BY HEIRS WITHIN A PERIOD OF FIVE YEARS FROM THE DATE
OF DEATH OF THE PATIENT, TO BE USED IN CONNECTION WITH THE
ADMINISTRATION OF THE AFFAIRS OF THE HOSPITAL. IT WAS STATED IN THE
SECRETARY'S LETTER AS FOLLOWS:
"UNDER THE CIRCUMSTANCES, THEREFORE, THE PROPRIETY OF PERMITTING THIS
LARGE SUM OF MONEY, WHICH WILL BE AUGMENTED AS YEARS PASS BY, TO REMAIN
IN THE TREASURY TO THE CREDIT OF THE SUPERINTENDENT AS AGENT, UNDER A
NOMINAL BOND, WITHOUT PROVIDING ANY METHOD FOR ITS DISPOSITION IS, IN MY
JUDGMENT, QUESTIONABLE.'
THE 1906 ACT, AS ENACTED, CONTAINED THE PROVISION FOR DILIGENT SEARCH
FOR HEIRS BUT, INSTEAD OF PERMITTING THE FUNDS TO GO TO THE USE OF THE
HOSPITAL AFTER FIVE YEARS, PROVIDED FOR COVERING SUCH FUNDS INTO THE
TREASURY. WHILE IT IS TRUE THE SUPERINTENDENT OF THE HOSPITAL WAS
AUTHORIZED TO SEEK OUT HEIRS AND WAS ALLOWED FIVE YEARS WITHIN WHICH TO
LOCATE AND INFERENTIALLY PAY SUCH HEIRS, THERE IS NOTHING IN THE STATUTE
MAKING IT MANDATORY TO PAY THE HEIRS TO THE EXCLUSION OF PREFERRED OR
OTHER CREDITORS OF THE ESTATE OF THE DECEASED PATIENT. NO WHERE IN THE
LEGISLATIVE HISTORY IS THERE ANY INDICATION THAT IT WAS INTENDED TO
DEPRIVE CREDITORS OF THEIR JUST DUE. IN FACT, IT WAS HELD IN 16 COMP.
DEC. 780, SEVERAL YEARS AFTER ENACTMENT OF THE 1906 ACT, THAT FUNERAL
EXPENSES WERE A PROPER CHARGE AGAINST THE FUNDS OF A DECEASED PATIENT.
ALSO, SEE 16 COMP. GEN. 1080, 17 ID. 383 AND B-744, FEBRUARY 6, 1939.
IT SHOULD BE NOTED, HOWEVER, THAT IN EACH OF THESE CASES INVOLVING FUNDS
WITHIN THE PURVIEW OF 24 U.S.C. 177, THE FUNDS WERE PAID OVER
SPECIFICALLY FOR THAT PURPOSE. IT WELL COULD BE ARGUED THAT THE HEIRS
WERE TO BE PAID ONLY THE AMOUNTS DUE AFTER PAYMENT OF CREDITORS AND THAT
THE PURPOSE OF THE ACT WAS TO PERMIT THE SUPERINTENDENT TO EXTEND
HIMSELF FURTHER THAN ORDINARILY WOULD BE THE CASE IN SEEKING OUT HEIRS
BEFORE THE FUNDS WERE COVERED INTO THE TREASURY. APPARENTLY, NO CLAIMS
OF CREDITORS, OTHER THAN THOSE SET OUT ABOVE WERE PRESENTED SO AS TO
MAKE AN ISSUE OF THE MATTER. HOWEVER, IF SUCH CLAIMS DID ARISE, AND WE
HAVE FOUND NO CASES INVOLVING THE PAYMENT OF SAME, IT MUST BE PRESUMED
THAT IT WAS CONSIDERED ADMINISTRATIVELY THAT PAYMENT THEREOF WAS NOT
CONTEMPLATED UNDER THE ACT. IN VIEW THEREOF, WE WOULD NOT BE INCLINED
TO DISTURB AN ADMINISTRATIVE PRACTICE OF MORE THAN A HALF A CENTURY
WHERE THERE ARE SURVIVING HEIRS.
IN THIS CONNECTION, HOWEVER, WE NOTE THAT YOUR REGULATIONS, 42 C.F.R.
303.8, PROVIDE FOR PAYMENT OF ANY AMOUNT INVOLVED TO THE ADMINISTRATOR
WHERE ONE IS APPOINTED, AND ONLY TO THE ADMINISTRATOR OR EXECUTOR FOR
AMOUNTS OF $100 OR MORE. IN THE DISTRICT OF COLUMBIA ANY INTERESTED
PERSON MAY RECEIVE LETTERS OF ADMINISTRATION AND WHERE NO
APPLICATIONS ARE RECEIVED FROM DESIGNATED RELATIVES, LETTERS OF
ADMINISTRATION MAY BE GRANTED TO CREDITORS. 20 D.C. CODE 201 AND 216.
ANY CREDITOR, THEREFORE, MAY HAVE HIS CLAIM CONSIDERED BY THE PROBATE
COURT. THIS PROCEDURE APPEARS TO BE MORE APPROPRIATE THAN THE
SETTLEMENT OF CLAIMS OF CREDITORS BY THE SUPERINTENDENT PROVIDED THAT
THE COURT, THROUGH THE ADMINISTRATOR, IS MADE AWARE OF THE PROVISIONS OF
24 U.S.C. 177 SO THAT ANY AMOUNTS REMAINING UNCLAIMED MAY BE DEPOSITED
IN THE TREASURY.
IN THE INSTANT CASE WE ARE IN AGREEMENT WITH THE SUPERINTENDENT'S
PROPOSAL TO PAY THE PERSONAL FUNDS TO THE SON OF THE DECEASED UPON
RECEIPT OF A CLAIM IN PROPER FORM AND IN CONFORMITY WITH YOUR
REGULATIONS. HOWEVER, IT SHOULD BE NOTED THAT UNDER THE PROVISIONS OF
21 D.C. CODE 318, CERTAIN OF THE HEIRS, IN ADDITION TO THE ESTATE OF THE
DECEASED, ARE LIABLE TO THE DISTRICT OF COLUMBIA FOR MAINTENANCE
EXPENSES. TO AFFORD THE DISTRICT OF COLUMBIA ADEQUATE OPPORTUNITY TO
EFFECTUATE COLLECTION UNDER SUCH STATUTORY PROVISION, IT WOULD APPEAR
PROPER FOR THE SUPERINTENDENT, UNLESS OTHERWISE PROHIBITED BY LAW, TO
INCLUDE THE NAME, ADDRESS AND RELATIONSHIP OF THE HEIR TO WHOM PAYMENT
IS PROPOSED TO BE MADE, TOGETHER WITH THE AMOUNT OF SUCH PAYMENT, IN ANY
DENIAL OF A CLAIM OF THE DISTRICT OF COLUMBIA BASED ON SUCH PAYMENT OR
PROPOSED PAYMENT.
IN THE EVENT THE SON OF THE DECEASED FAILS TO FILE CLAIM IN PROPER
FORM ON OR BEFORE THE END OF THE FIRST FULL FISCAL YEAR FOLLOWING THE
DATE OF THE PATIENT'S DEATH, TRANSFER TO THE TREASURY IN ACCORDANCE WITH
OUR DECISION OF MARCH 27, 1940 (B-3271), OF ALL PERSONAL FUNDS CREDITED
TO THE DECEASED AND REMAINING UNCLAIMED, WILL BE PROPER. WE RECOMMEND,
HOWEVER, THAT CLARIFYING LEGISLATION BE SOUGHT TO RESOLVE THE PRESENT
UNCERTAINTY AS TO DISPOSITION OF SUCH FUNDS.
B-128373, SEP. 6, 1956
TO WESTERN SALVAGE COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1956, REQUESTING
RECONSIDERATION OF OUR DECISION DATED AUGUST 9, 1956, WHICH SUSTAINED
THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF THE SUM OF $100
REPRESENTING A SUBSTANTIAL PART OF THE AMOUNT PAID BY YOU FOR CERTAI
MATERIAL PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO.
N244S-46721, DATED JUNE 25, 1954.
THE CONTENTION URGED BY YOU IN THE MATTER RECEIVED FULL AND CAREFUL
CONSIDERATION AND, FOR THE REASONS SET FORTH IN THE DECISION OF AUGUST
9, 1956, IT WAS HELD THAT THERE IS NO AUTHORITY TO REFUND ANY PART OF
THE PURCHASE PRICE. YOUR LETTER OF AUGUST 14, 1956, MERELY REITERATES
YOUR CONTENTION AS EXPRESSED IN PRIOR CORRESPONDENCE. A REEXAMINATION
OF THE RECORD BEFORE OUR OFFICE DISCLOSES NOTHING WHICH COULD BE VIEWED
AS REQUIRING A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY REACHED IN THE
MATTER.
B-128735, SEP. 6, 1956
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1956, TRANSMITTING A
COMMUNICATION DATED JULY 21, 1956, FROM THE ATTORNEYS FOR CARLSON
CONSTRUCTION, NEWCASTLE, WYOMING, ALONG WITH COPIES OF THE INVITATION,
THE ABSTRACT OF BIDS AND THE SPECIFICATIONS APPLICABLE TO CONTRACT
14-10-232-150, DATED JUNE 5, 1956, COVERING THE WORK OF CONSTRUCTION OF
THREE FRAME RESIDENCES AT THE DEVILS TOWER NATIONAL MONUMENT.
AFTER A CAREFUL ANALYSIS OF THESE DOCUMENTS, IT IS FOUND THAT THEY
CONTAIN NO NEW OR MATERIAL EVIDENCE SUCH AS WOULD JUSTIFY THE REVERSAL
OR MODIFICATION OF OUR PRIOR DECISION OF AUGUST 7, 1956, TO YOU, WHEREIN
WE REFUSED TO APPROVE A PROPOSED AMENDMENT TO THE CONTRACT DESIGNED TO
CORRECT CERTAIN ERRORS ALLEGED TO HAVE BEEN MADE THEREIN.
THE DOCUMENTS WHICH ACCOMPANIED YOUR LETTER OF AUGUST 7 ARE RETURNED
HEREWITH, AS REQUESTED.
B-128805, SEP. 6, 1956
TO LIEUTENANT LLOYD C. NIELSEN, AO 225 5620:
REFERENCE IS MADE TO YOUR REQUEST FOR RECONSIDERATION OF THE ACTION
TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED FEBRUARY 11, 1954,
WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE
PERIOD JUNE 3 TO JULY 12, 1953, INCLUDING TRAVEL ALLOWANCE, INCIDENT TO
REPORTING FOR ACTIVE DUTY AT LACKLAND AIR FORCE BASE, TEXAS, AS A SECOND
LIEUTENANT, UNITED STATES AIR FORCE RESERVE. IN ADDITION, YOU NOW CLAIM
REIMBURSEMENT OF YOUR WIFE'S TRAVEL FROM HAMPTON, VIRGINIA, TO SAN
ANTONIO, TEXAS, DURING THE PERIOD AUGUST 1 TO 5, 1953, AND REIMBURSEMENT
OF THE COST OF PACKING, DRAYAGE TO STORAGE, AND HAULING YOUR EFFECTS
FROM HAMPTON, VIRGINIA, TO ALBUQUERQUE, NEW MEXICO.
IT APPEARS THAT BY LETTER OF HEADQUARTERS FIRST AIR FORCE,
DIRECTORATE OF MILITARY PERSONNEL PROCUREMENT, MITCHEL AIR FORCE BASE,
NEW YORK, DATED APRIL 23, 1953, YOU WERE NOTIFIED THAT YOU WERE SELECTED
FOR APPOINTMENT IN THE AIR FORCE RESERVE. A LETTER OF APPOINTMENT, OATH
OF OFFICE AND WAIVER OF USUAL 30 DAYS OF NOTICE PRIOR TO ENTRY INTO
ACTIVE MILITARY SERVICE WERE ENCLOSED WITH THE LETTER OF APRIL 23, 1953.
THAT LETTER IS IN PART AS FOLLOWS:
"YOU WILL BE ORDERED TO REPORT TO LACKLAND AIR FORCE BASE, TEXAS NOT
LATER THAN 7 JUNE 1953 FOR THE PURPOSE OF PURSUING THE UNITED STATES AIR
FORCE OFFICERS BASIC MILITARY COURSE. THEREFORE, IT WILL BE NECESSARY
FOR YOU TO ACCOMPLISH WAIVER OF THE NORMAL THIRTY DAY OFFICIAL NOTICE
PRIOR TO ENTRY INTO ACTIVE MILITARY SERVICE. THIS LETTER IS FOR
INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS ACTIVE DUTY
ORDERS.
"SPECIAL ORDERS WILL BE ISSUED AND FORWARDED TO YOU WITHIN A
REASONABLE TIME AFTER RECEIPT OF COMPLETED FORMS BY THIS HEADQUARTERS.
IF THERE ARE ANY FURTHER QUESTIONS PERTAINING TO THIS APPOINTMENT, DO
NOT HESITATE TO CALL UPON THIS OFFICE, OR THE UNDERSIGNED AT ANY TIME.'
YOU STATE THAT YOU FULLY COMPLIED WITH THE PROVISIONS OF THAT LETTER.
SUBSEQUENTLY YOU RECEIVED FROM MITCHEL AIR FORCE BASE A TELEGRAM
DATED MAY 15, 1953, READING AS FOLLOWS:
"* * * YOU HAVE BEEN SELECTED FOR ACTIVE MILITARY SERVICE IN GRAD OF
2ND LT FOR ASSIGNMENT TO 3721ST OFFICERS TRAINING SQUADRON 3700TH AIR
FORCE INDOCTRINATION WING LACKLAND AIR FORCE BASE TEXAS FOR OFFICERS
BASIC MILITARY COURSE COMMENCING REPORTING DATE 7 JUNE 1953. REQUEST
YOU REPORT AT NO EXPENSE TO THE GOVERNMENT TO NEAREST AIR FORCE
INSTALLATION AND ACCOMPLISH A MEDICAL EXAMINATION PAREN NON-FLYING PAREN
AND UPON COMPLETION FORWARD 2 COMPLETED COPIES STANDARD FORM 88
AND ONE COPY STANDARD FORM 89 TO THIS HEADQUARTERS ATTN CLN RAR PARE
AS EXPEDITIOUSLY AS POSSIBLE NECESSARY YOU WAIVE NORMAL 30 DAYS
ADMINISTRATIVE DELAY IN ORDER TO REPORT TO LACKLAND AIR FORCE BASE TEXAS
BY 7 JUNE 1953. REQUEST REPLY BY RETURN WIRE.'
YOU STATE THAT YOU ASSUMED THE TELEGRAM WAS AN ORDER TO REPORT FOR
ACTIVE DUTY AND THAT YOU WERE ADVISED AT LANGLEY AIR FORCE BASE,
VIRGINIA, TO FOLLOW THE INSTRUCTIONS IN THE TELEGRAM AND REPORT TO
LACKLAND AIR FORCE BASE BY JUNE 7, 1953. YOU THEN NOTIFIED THE
COMMANDING GENERAL AT MITCHEL AIR FORCE BASE BY TELEGRAM THAT YOU WOULD
REPORT TO LACKLAND AIR FORCE BASE ON JUNE 7, 1953. THE RECORD SHOWS
THAT YOU WERE FOUND PHYSICALLY QUALIFIED FOR GENERAL MILITARY SERVICE AT
LANGLEY AIR FORCE BASE, VIRGINIA, ON MAY 27, 1953.
YOU FURTHER STATE THAT YOU PROCEEDED TO LACKLAND AIR FORCE BASE AND
REPORTED THERE ON JUNE 7, 1953. YOU WERE ACCEPTED ON THE BASIS OF THE
TELEGRAM OF MAY 15, 1953, AND ENTERED ON THE MORNING REPORT OF THE
3721ST OFFICERS TRAINING SQUADRON AS PRESENT FOR DUTY. YOU WERE THEN
ENROLLED IN CLASS 53-F OF THE OFFICERS' BASIC MILITARY COURSE. YOU ALSO
STATE THAT AFTER UNDERGOING TRAINING FOR APPROXIMATELY ONE MONTH YOU
MADE INQUIRY INTO YOUR PAY STATUS AND THE POSSIBILITY OF HAVING ORDERS
ISSUED. THEREAFTER, HEADQUARTERS FIRST AIR FORCE, ISSUED ORDERS
ORDERING YOU TO ACTIVE DUTY (SPECIAL ORDERS NO. 136, DATED JULY 13,
1953, AT LACKLAND AIR FORCE BASE) SHOWING THE EFFECTIVE DATE OF DUTY AS
JULY 13, 1953. YOUR PAY RECORD SHOWS THAT YOU WERE PAID THE SUM OF $100
PRIOR TO JULY 13, 1953.
THE TELEGRAM OF MAY 15, 1953, INDICATED A DATE ON WHICH AND A PLACE
AT WHICH YOU WERE TO REPORT FOR ACTIVE DUTY; IT DID NOT INDICATE THAT
YOU SHOULD REMAIN AT HOME UNTIL FURTHER NOTIFIED TO REPORT. IT APPEARS
THAT YOU, ACTING IN GOOD FAITH, DEPARTED FROM YOUR HOME BY PRIVATELY
OWNED CONVEYANCE SO AS TO ARRIVE AT LACKLAND AIR FORCE BASE ON JUNE 7,
1953, WHERE YOU WERE ACCEPTED AND ENTERED IN TRAINING. UNDER SUCH
CIRCUMSTANCES, THE TELEGRAM MAY BE CONSIDERED AS AN ORDER TO YOU TO
REPORT FOR ACTIVE DUTY. HENCE, IT IS CONCLUDED THAT YOU TRAVELED
PURSUANT TO COMPETENT ORDERS AND, THEREFORE, YOU ARE ENTITLED TO TRAVEL
ALLOWANCE FROM HAMPTON, VIRGINIA, TO LACKLAND AIR FORCE BASE, TEXAS, AND
ACTIVE DUTY PAY AND ALLOWANCES FROM JUNE 4 TO JULY 13, 1953, LESS THE
AMOUNT PREVIOUSLY PAID YOU FOR SUCH PERIOD.
YOUR CLAIM FOR PACKING AND DRAYAGE OF YOUR HOUSEHOLD EFFECTS FROM
YOUR RESIDENCE IN HAMPTON, VIRGINIA, TO COMMERCIAL STORAGE IN THAT CITY
ON MAY 26, 1953, AS SHOWN BY A PAID RECEIPT OF THE MONROE TRANSFER AND
STORAGE COMPANY, WAS ADMINISTRATIVELY DENIED SOLELY FOR THE REASON THAT
THE SHIPMENT WAS MADE PRIOR TO RECEIPT OF ORDERS DATED JULY 13, 1953.
WHILE AT LACKLAND AIR FORCE BASE YOU RECEIVED SPECIAL ORDERS DATED JULY
20, 1953, HEADQUARTERS, LACKLAND AIR FORCE BASE, SAN ANTONIO, TEXAS,
RELEASING YOU FROM ASSIGNMENT AND DUTY AT THAT STATION AND ASSIGNING YOU
TO DUTY AT THE 1090TH USAF SP REPT GP, SANDIA B, ALBUQUERQUE, NEW
MEXICO, WITH TEMPORARY DUTY EN ROUTE AT KEESLER AIR FORCE BASE,
MISSISSIPPI, TO REPORT THERE NOT LATER THAN AUGUST 19, 1953. THEREAFTER
ON DECEMBER 17, 1953, YOUR EFFECTS WERE SHIPPED FROM STORAGE AT HAMPTON,
VIRGINIA, TO ALBUQUERQUE, NEW MEXICO, YOUR NEW DUTY STATION. THE
GOVERNMENT REIMBURSED YOU FOR THOSE SHIPPING CHARGES NOT TO EXCEED THE
COST FROM YOUR OLD DUTY STATION AT LACKLAND AIR FORCE BASE, TEXAS, TO
YOUR NEW DUTY STATION AT ALBUQUERQUE, NEW MEXICO, IN THE AMOUNT OF
$93.50 AS SHOWN ON VOUCHER NO. 951715, JANUARY 1955 ACCOUNTS OF S.
GADDIS.
SINCE WE HAVE NOT RECOGNIZED THE TELEGRAPH OF MAY 15, 1953, AS
CONSTITUTING COMPETENT ORDERS, YOU ARE ENTITLED, UNDER THE PROVISIONS OF
PARAGRAPH 8000-6, JOINT TRAVEL REGULATIONS, TO REIMBURSEMENT FOR THE
CHARGES OF PACKING AND DRAYAGE FROM YOUR RESIDENCE TO STORAGE. PURSUANT
TO THE ORDERS OF JULY 20, 1953, YOU WERE ENTITLED, UNDER THE PROVISIONS
OF PARAGRAPH 8009-4 OF THE JOINT TRAVEL REGULATIONS, TO REIMBURSEMENT OF
THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM STORAGE AT HAMPTON,
VIRGINIA, TO YOUR NEW DUTY STATION AT ALBUQUERQUE, NEW MEXICO.
ACCORDINGLY, A SETTLEMENT WILL BE MADE ON THAT BASIS LESS THE AMOUNT
PREVIOUSLY PAID.
CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF YOUR WIFE'S TRAVEL FROM
HAMPTON, VIRGINIA, TO LACKLAND AIR FORCE BASE, SAN ANTONIO, TEXAS, YOU
CERTIFIED THAT YOUR WIFE PERFORMED THE TRAVEL BETWEEN AUGUST 1 AND 5,
1953. WE HELD IN 33 COMP. GEN. 431, THAT SUBSECTION 303 (C) OF THE
CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WHICH AUTHORIZES
TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES AT
GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES AT
GOVERNMENT EXPENSE "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION,"
UNDER SUCH CONDITIONS AND LIMITATIONS AS PRESCRIBED BY THE SECRETARIES
CONCERNED, DOES NOT AUTHORIZE SUCH TRANSPORTATION FOR VISITS OR PERSONAL
TRAVEL. SINCE YOU STATE THAT YOUR WIFE PERFORMED TRAVEL FROM HAMPTON,
VIRGINIA, TO SAN ANTONIO, TEXAS, BETWEEN AUGUST 1 AND 5, 1953--- AFTER
THE RECEIPT BY YOU OF ORDERS DATED JULY 20, 1953, TRANSFERRING YOU FROM
SAN ANTONIO, TEXAS, TO ALBUQUERQUE, NEW MEXICO--- IT SEEMS CLEAR THAT
HER TRIP TO SAN ANTONIO WAS TO VISIT YOU PRIOR TO YOUR DEPARTURE FOR
TEMPORARY DUTY AT KEESLER AIR FORCE BASE, MISSISSIPPI, RATHER THAN FOR
THE PURPOSE OF ESTABLISHING A RESIDENCE AT SAN ANTONIO, TEXAS. ALSO,
YOUR CLAIM IS INCONSISTENT WITH THE STATEMENTS MADE IN YOUR LETTER OF
AUGUST 7, 1953, TO THE EFFECT THAT WHEN YOU WENT ON ACTIVE DUTY YOUR
WIFE TRAVELED TO UTAH. HENCE, ON THE PRESENT RECORD, YOU ARE NOT
ENTITLED TO REIMBURSEMENT OF THE COST OF YOUR WIFE'S TRAVEL FROM
HAMPTON, VIRGINIA, TO SAN ANTONIO, TEXAS.
B-128818, SEP. 6, 1956
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1956, REQUESTING ADVICE
AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO PAYMENT BY THE BUREAU OF
INDIAN AFFAIRS OF AMOUNTS DISALLOWED ON BILLS SUBMITTED BY TONGUE RIVER
ELECTRIC COOPERATIVE, INC., FOR ELECTRIC SERVICE FURNISHED UNDER
CONTRACT NO. I-163-IND-177, DATED JUNE 20, 1953.
UNDER THE TERMS OF THE CONTRACT, THE COOPERATIVE AGREED TO PURCHASE
AN ELECTRIC TRANSMISSION SYSTEM FROM THE BUREAU AND TO FURNISH TO THE
BUREAU AT A STATED RATE ALL ELECTRIC POWER REQUIRED BY THE BUREAU FOR
USE AT ITS ADMINISTRATIVE BUILDINGS AND FACILITIES UNTIL ELECTRIC POWER
EQUAL TO THE PURCHASE PRICE OF THE SYSTEM HAD BEEN FURNISHED, OR UNTIL
THE EXPIRATION OF 15 YEARS, WHICHEVER SHOULD FIRST OCCUR. THE
COOPERATIVE ALSO AGREED TO SERVE ALL CONSUMERS THEN BEING SERVED BY THE
SYSTEM, SUBJECT TO PAYMENT BY THE CONSUMER FOR SUCH POWER RECEIVED "AT
THE RATES AND CONDITIONS APPLYING TO ALL LIKE CONSUMERS OF THE
COOPERATIVE.'
IT IS REPORTED THAT TITLE TO THE ELECTRIC TRANSMISSION SYSTEM WAS
TRANSFERRED TO THE COOPERATIVE ON NOVEMBER 4, 1952, AND THAT, BY A
MEMORANDUM OF AGREEMENT DATED NOVEMBER 18, 1952, IT WAS PROVIDED THAT
(1) THE COOPERATIVE WOULD FURNISH THE AGENCY ELECTRIC POWER AT THE FLAT
RATE OF $730 PER 30-DAY PERIOD BEGINNING NOVEMBER 16, 1952, AND
CONTINUING UNTIL SUCH TIME AS THE COOPERATIVE COULD COMPLETE METER
INSTALLATIONS; (2) AS THE COOPERATIVE COMPLETED METER INSTALLATIONS,
THE FLAT RATE AGREEMENT SHOULD BE APPLIED ON A PRO-RATA BASIS FOR THE
FOLLOWING 30-DAY PERIOD; AND (3) AFTER INDIVIDUAL METERS WERE INSTALLED
EACH INSTALLATION WOULD BE BILLED ON A METERED BASIS.
IT IS FURTHER REPORTED THAT A BREAKDOWN OF THE FLAT RATE OF $4730
INDICATES THAT IT WAS MADE UP OF A CHARGE OF $560 FOR GOVERNMENT USE AND
$170 FOR 34 GOVERNMENT UNITS (EMPLOYEE RESIDENCES) AT A FLAT RATE OF $5
EACH UNTIL METERED. ALL BUILDINGS HAD BEEN COMPLETED METERED AS OF
AUGUST 20, 1954, AND, AS EMPLOYEE RESIDENCES WERE METERED, THE
COOPERATIVE BILLED FOR EACH METERED RESIDENCE AT THE REGULAR RATE
CHARGED ALL OTHER LIKE CONSUMERS. AS GOVERNMENT BUILDINGS OTHER THAN
EMPLOYEE
RESIDENCES WERE METERED, THE COOPERATIVE BILLED FOR EACH METERED
GOVERNMENT BUILDING AT THE SPECIAL RATE PROVIDED IN THE CONTRACT OF JUNE
20, 1952.
IN MARCH 1955, FIELD OFFICIALS OF THE BUREAU ADVISED THE COOPERATIVE
THAT CHARGES FOR ELECTRICITY FURNISHED EMPLOYEES WHOSE RESIDENCES WERE
METERED SHOULD HAVE BEEN BILLED UNDER THE SPECIAL RATE FOR
ADMINISTRATIVE BUILDINGS AND FACILITIES, AND THAT ADJUSTMENTS WOULD BE
MADE IN LATER BILLS TO RECOUP THE OVERPAYMENTS. THE COOPERATIVE THEN
CONTENDED THAT IT WAS NEVER THE INTENT OF THE PARTIES TO INCLUDE SERVICE
TO EMPLOYEE RESIDENCES WITHIN THE CLASSIFICATION OF ADMINISTRATIVE
BUILDINGS AND FACILITIES ENTITLED TO ELECTRIC SERVICE AT THE SPECIAL
RATE AS PROVIDED FOR IN THE CONTRACT.
YOUR LETTER SETS FORTH THAT ON MARCH 18, 1953, THERE WAS ESTABLISHED
A POLICY OF NOT REQUIRING EMPLOYEES FURNISHED QUARTERS BY THE NORTHERN
CHEYENNE AGENCY TO PAY FOR INDIVIDUAL ELECTRIC SERVICE DIRECTLY TO THE
COOPERATIVE UNTIL SUCH TIME AS REVISED QUARTERS RATES BECAME EFFECTIVE.
HOWEVER, AS OF OCTOBER 20, 1955, THE EMPLOYEES WERE REQUIRED TO PAY
UTILITY BILLS TO THE COOPERATIVE AT THE REGULAR RATE CHARGED ALL OTHER
LIKE CONSUMERS. SUCH DIRECT PAYMENT REQUIREMENT WOULD SEEM INCONSISTENT
WITH THE THEORY THAT THE COOPERATIVE WAS OBLIGATED TO FURNISH ELECTRIC
POWER IN GOVERNMENT BUILDINGS OCCUPIED AS RESIDENCES AT THE SPECIAL RATE
AVAILABLE TO THE GOVERNMENT.
THE AREA DIRECTOR WHO EXECUTED THE CONTRACT ON BEHALF OF THE
GOVERNMENT REPORTED THAT THE TERM ,ADMINISTRATIVE BUILDINGS AND
FACILITIES," AS USED IN THE CONTRACT, REFERRED STRICTLY TO
ADMINISTRATIVE FACILITIES SUCH AS THE AGENCY OFFICE, SCHOOLS, GARAGE,
PUMPING PLANT, ETC., BUT DID NOT CONTEMPLATE THE INCLUSION OF GOVERNMENT
QUARTERS OCCUPIED BY EMPLOYEES. IN THIS CONNECTION, THE ATTORNEY FOR
THE COOPERATIVE HAD ALLEGED THAT, IN ORDER TO MAKE THE TRANSACTION
FEASIBLE, THE COOPERATIVE HAD TO BE ASSURED THAT ALL CONSUMERS OTHER
THAN THE GOVERNMENT WOULD BE REQUIRED TO PAY THE REGULAR UTILITY RATE;
AND THE AREA DIRECTOR RECALLED THAT SOMEWHERE IN THE DISCUSSION WITH THE
OFFICIALS OF THE COOPERATIVE A STATEMENT HAD BEEN MADE TO THE EFFECT
THAT THEIR EVALUATION WAS BASED UPON PAYMENT OF THE REGULAR RATE BY
GOVERNMENT EMPLOYEES.
IN THE LIGHT OF THIS RECORD OF THE NEGOTIATIONS, YOU EXPRESS THE
OPINION THAT NO OTHER CONCLUSION SEEMS POSSIBLE EXCEPT THAT CONTENDED
FOR BY THE COOPERATIVE. MOREOVER, YOU SUGGEST THAT THE TERM
"ADMINISTRATIVE BUILDINGS AND FACILITIES" MIGHT WELL BE INTERPRETED AS
EXCLUDING RESIDENTIAL UNITS SINCE THE ADJECTIVE "ADMINISTRATIVE" HARDLY
CONNOTES "RESIDENCES" IN ORDINARY PARLANCE.
ON THE BASIS OF ALL OF THE INDICATED FACTS AND CIRCUMSTANCES OF THE
CASE, YOU ARE ADVISED THAT WE WILL INTERPOSE NO OBJECTION TO PAYMENT BY
THE BUREAU OF INDIAN AFFAIRS TO THE COOPERATIVE OF A SUM EQUAL TO THE
TOTAL OF THE ADJUSTMENTS AND DISALLOWANCES MADE ON ITS PREVIOUS BILLINGS
BECAUSE OF THE USE OF THE REGULAR COMMERCIAL RATE FOR POWER FURNISHED TO
THE PARTICULAR RESIDENTIAL UNITS INSTEAD OF THE SPECIAL RATE CHARGEABLE
TO THE GOVERNMENT FOR POWER DELIVERED TO ITS ADMINISTRATIVE BUILDINGS
AND FACILITIES.
IN ACCORDANCE WITH YOUR REQUEST, THE DOCUMENTS AND CORRESPONDENCE
FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH.
B-129004, SEP. 6, 1956
TO MR. E. J. DWYER, AUTHORIZED CERTIFYING OFFICER, HOUSING AND HOME
FINANCE AGENCY:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1956, TRANSMITTING A
VOUCHER STATED IN FAVOR OF GEORGE H. HUDSON, DIRECTOR, GENERAL SERVICES
BRANCH, IN THE AMOUNT OF $9.88 AS REIMBURSEMENT OF THAT AMOUNT EXPENDED
BY HIM FROM HIS PERSONAL FUNDS TO PROVIDE COFFEE FOR EMPLOYEES OF THE
COMMUNICATIONS CENTER DURING THE RECENT "OPERATION ALERT-1956," AND
REQUESTING OUR DECISION AS TO
WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.
YOU STATE THAT:
"DUE TO THE CONFIDENTIAL NATURE OF THE WORK AND SECURITY REGULATIONS,
IT WAS NOT POSSIBLE TO ORDER COFFEE FOR DELIVERY TO THE EMPLOYEES OF THE
COMMUNICATIONS CENTER. IN ADDITION MANY EMPLOYEES WERE REQUIRED TO
REPORT FOR DUTY AT HOURS WHEN NO RESTAURANT FACILITIES WERE AVAILABLE IN
THE CITY. THEREFORE, MR. HUDSON PURCHASED INSTANT COFFEE AND MILK SO
THAT THEY WOULD BE AVAILABLE TO EMPLOYEES WHO COULD NOT HAVE SECURED
THEM ELSEWHERE.'
WE ARE AWARE OF NO AUTHORITY OF LAW, AND NONE HAS BEEN CITED, UNDER
WHICH THE GOVERNMENT IS OBLIGATED TO PROVIDE FREE COFFEE, MILK, AND
SUGAR TO ITS EMPLOYEES EVEN THOUGH THEY MAY BE WORKING UNDER UNUSUAL
CONDITIONS SUCH AS MAY HAVE OBTAINED DURING "OPERATION ALERT-1956.'
THUS, CONSIDERABLE DOUBT EXISTS WHETHER THE AMOUNT EXPENDED BY MR.
HUDSON REPRESENTS A VALID OBLIGATION OF THE UNITED STATES.
MOREOVER, IT IS WELL ESTABLISHED THAT NO PERSON IS AUTHORIZED TO MAKE
HIMSELF A VOLUNTARY CREDITOR OF THE UNITED STATES BY INCURRING AND
PAYING OBLIGATIONS OF THE GOVERNMENT WHICH HE IS NOT LEGALLY REQUIRED OR
AUTHORIZED TO INCUR OR PAY AND REIMBURSEMENT THEREFOR GENERALLY IS NOT
AUTHORIZED. SEE 31 U.S.C. 665; 2 COMP. GEN. 581, 3 ID. 70; 7 ID.
104; 8 ID. 627; AND 18 ID. 424.
ACCORDINGLY, THE VOUCHER WHICH IS RETURNED TOGETHER WITH ATTACHMENTS,
MAY NOT BE CERTIFIED FOR PAYMENT.
B-129098, SEP. 6, 1956
TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 29, 1956, WITH ENCLOSURES,
REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR
THE EUGENE DIETZGEN COMPANY ALLEGES IT MADE IN ITS BID OPENED ON JULY
27, 1956.
ON JULY 20, 1956, THE GOVERNMENT PRINTING OFFICE REQUESTED BIDS FOR
FURNISHING TWO ITEMS OF TRACING PAPER OF IDENTICAL SPECIFICATIONS EXCEPT
FOR SIZE AND COLOR. ITEM 1 COVERS 6,570 SHEETS OF BLUE-TINTED TRACING
PAPER, SIZE 34 INCHES BY 44 INCHES, AND ITEM 2 COVERS 31,365 SHEETS OF
WHITE TRACING PAPER, SIZE 32 INCHES BY 44 INCHES. IN RESPONSE, THE
EUGENE DIETZGEN COMPANY SUBMITTED A BID DATED JULY 26, 1956, OFFERING TO
FURNISH THE BLUE-TINTED TRACING PAPER REQUIRED UNDER ITEM 1 FOR THE LUMP
SUM OF $1,226.05 AND TO FURNISH THE WHITE TRACING PAPER REQUIRED UNDER
ITEM 2 FOR THE LUMP SUM OF $4,854.45. ON THE BASIS OF THE LUMP SUM
PRICES SPECIFIED BY THE COMPANY, THE UNIT PRICES FOR ITEMS 1 AND 2 ARE
$186.61 AND $154.77 PER THOUSAND SHEETS, RESPECTIVELY. THE EIGHT OTHER
BIDDERS ON ITEM 1 QUOTED UNIT PRICES RANGING FROM $172 TO $248 PER
THOUSAND SHEETS; AND THE NINE OTHER BIDDERS ON ITEM 2 QUOTED UNIT
PRICES RANGING FROM $163 TO $248 PER THOUSAND SHEETS.
YOU STATE THAT ON JULY 31, 1956, THE MANAGER OF THE EUGENE DIETZGEN
COMPANY TELEPHONED THE CONTRACTING OFFICER ALLEGING THAT THE COMPANY HAD
MADE AN ERROR IN ITS BID ON ITEM 2. BY CONFIRMING LETTER DATED JULY 31,
1956, THE COMPANY ADVISED THAT THE UNIT PRICE FOR ITEM 2 SHOULD HAVE
BEEN IDENTICAL TO THE UNIT PRICE FOR ITEM 1, SINCE THE YARDAGE REQUIRED
FOR EACH SHEET SIZE IS THE SAME. IN AN UNDATED LETTER, WHICH, IT IS
REPORTED, WAS RECEIVED SEVERAL DAYS AFTER JULY 31, 1956, THE COMPANY
STATED AS FOLLOWS:
"CONFIRMING OUR PHONE CONVERSATION OF THIS DATE, I AM ENCLOSING OUR
LATEST PRICE LIST. IF YOU WILL REFER TO PAGE 3 YOU WILL SEE THAT THE
LIST PRICES OF NO. 198MW AND NO. 199MW ARE IDENTICAL.
"ON THE BID IN QUESTION, NO. 47585, WE QUOTED NO. 198MW ON THE 6,570
SHEETS AND NO. 199MW ON THE 31,365 SHEETS. AS YOU CAN SEE BY OUR PRICE
LIST, A 50 YARD ROLL 36 INCHES WIDE SELLS FOR $18.70 OR $37.40 PER 100
YARDS.
"BOTH THE 34 INCHES BY 44 INCHES AND THE 32 INCHES BY 44 INCHES
SHEETS ARE CUT FROM 36 INCH WIDTH STOCK AND 1,240 YARDS ARE REQUIRED FOR
1000 SHEETS. IF YOU WILL FIGURE THESE SHEETS, USING THE PRICE AND
YARDAGE SHOWN, YOU WILL SEE THAT THIS WAS AN OBVIOUS ERROR ON OUR PART
AS THE PRICE FOR THE 31,365 SHEETS SHOULD BE APPROXIMATELY FIVE TIMES AS
MUCH AS THE 6,570 SHEETS. ORDINARILY OUR MAXIMUM DISCOUNT TO OUR
DEALERS AND THE GOVERNMENT IS FORTY PERCENT.
"AS STATED TO YOU IN OUR LETTER OF JULY 31, 1956, WE WOULD APPRECIATE
YOUR COOPERATION IN WITHDRAWING OUR BID ON THIS INVITATION.'
IN YOUR LETTER OF AUGUST 29, 1956, YOU STATE AS FOLLOWS:
"ON THE BASIS OF THE INFORMATION FURNISHED BY THE BIDDER, IT WOULD
REQUIRE 38,893 YARDS OF THE TRACING PAPER TO CUT OUT 31,365 SHEETS, SIZE
32 BY 44 INCHES. THIS NUMBER OF YARDS TIMES $37.40 PER HUNDRED YARDS
($18.70 PER 50-YARD ROLL) WOULD AMOUNT TO $14,545.98. AFTER DEDUCTING
40 PERCENT DISCOUNT, THE TOTAL PRICE FOR THIS NUMBER OF SHEETS WOULD BE
$8,727.59. THE BIDDER HAS STATED THAT THE PRICE FOR EACH OF THE ITEMS
SHOULD BE THE SAME. IT WOULD APPEAR THAT IN ARRIVING AT THE PRICE FOR
ITEM NO. 1 FOR 6,570 SHEETS, THE BIDDER QUOTED 40 PERCENT OF THE LIST
PRICE RATHER THAN DEDUCTING 40 PERCENT AND BIDDING ON THE 60 PERCENT.
IT WOULD APPEAR, THEREFORE, THAT AN ERROR WAS MADE BY THE BIDDER ON BOTH
OF THE ITEMS OF TRACING PAPER.
"IN REVIEWING THE BIDS, IT IS NOTED THAT MOST OF THE BIDDERS QUOTED
THE SAME UNIT PRICE FOR ITEM NO. 1 AND ITEM NO. 2. TWO OF THE OTHER
BIDDERS QUOTED A SLIGHTLY HIGHER PRICE FOR ITEM NO. "
ON THE RECORD, THERE APPEARS NO ROOM FOR DOUBT THAT THE COMPANY MADE
AN ERROR IN ITS BID, AS ALLEGED. ACCORDINGLY, THE BID OF THE EUGENE
DIETZGEN COMPANY AS TO ITEM 2 MAY BE DISREGARDED IN MAKING THE AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTOR'S LETTERS AND ITS
PRINTED PRICE LIST, ARE RETURNED.
B-126885, SEP. 5, 1956
TO MR. GERGORIO BAYLON:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1956, REQUESTING
REVIEW OF OUR SETTLEMENT DATED NOVEMBER 21, 1955, WHICH DISALLOWED YOUR
CLAIM FOR ADDITIONAL RETIRED PAY FOR THE PERIOD BEGINNING MAY 1, 1946.
IT IS YOUR CONTENTION THAT YOUR RETIRED PAY SHOULD BE BASED UPON THE
PAY OF CORPORAL, ARMY OF THE UNITED STATES, WHICH YOU WERE RECEIVING ON
APRIL 30, 1946, THE DATE OF YOUR RETIREMENT, AND NOT UPON THE PAY OF A
CORPORAL, PHILIPPINE SCOUTS. YOU BASE YOUR CLAIM FOR SUCH ADDITIONAL
PAY ON OUR DECISION OF MAY 28, 1953, B-101978, IN THE CASE OF FLORENCIO
CANCEL. YOU ALSO SAY THAT YOU HAVE BEEN INFORMED THAT CLAIMS IN LIKE
CASES HAVE BEEN PAID AND THAT A CLAIMANT WHO WAS PLACED ON THE RETIRED
LIST WITH YOU WAS PAID HIS CLAIM WHICH IS IDENTICAL WITH YOU CLAIM.
THE ADJUTANT GENERAL OF THE ARMY, WHO IS THE OFFICIAL CUSTODIAN OF
THE PERSONNEL RECORDS OF ENLISTED MEN OF THE ARMY, HAS REPORTED THAT,
AFTER HAVING SERVED 19 YEARS, 4 MONTHS AND 5 DAYS, AS AN ENLISTED MAN IN
THE REGULAR ARMY (PHILIPPINE SCOUTS) YOU WERE HONORABLY DISCHARGED ON
JUNE 19, 1945; THAT YOU ENLISTED IN THE ARMY OF THE UNITED STATES ON
JUNE 20, 1945, FOR A PERIOD OF 3 EARS; AND THAT YOU WERE RETIRED AND
TRANSFERRED TO THE ENLISTED RESERVE CORPS ON APRIL 30, 1946, PURSUANT TO
ORDERS DATED APRIL 10, 1946. AT THAT TIME YOU HAD SERVED 20 YEARS, 2
MONTHS AND 16 DAYS, ALL OF SUCH SERVICE EXCEPT 10 MONTHS AND 11 DAYS
HAVING BEEN IN THE PHILIPPINE SCOUTS. ALTHOUGH YOU WERE SERVING AS A
CORPORAL IN AN ENLISTMENT IN THE ARMY OF THE UNITED STATES AT THE TIME
OF YOUR RETIREMENT AND RECEIVING THE PAY AUTHORIZED FOR INDIVIDUALS SO
ENLISTED, YOUR RETIRED PAY WAS COMPUTED ON THE PAY AUTHORIZED FOR A
CORPORAL, PHILIPPINE SCOUTS, BASED UPON A DETERMINATION BY THE
DEPARTMENT OF THE ARMY THAT YOUR RETIREMENT WAS EFFECTED IN A PHILIPPINE
SCOUT STATUS.
IT WAS INDICATED IN YOUR RETIREMENT ORDERS THAT YOUR RETIREMENT WAS
EFFECTED UNDER THE PROVISIONS OF THE ACT OF CONGRESS APPROVED OCTOBER 6,
1945, 59 STAT. 538, WHICH IS CITED AS THE ARMED FORCES VOLUNTARY
RECRUITMENT ACT OF 1945. SECTION 4 OF THAT ACT PROVIDED, IN PERTINENT
PART, AS FOLLOWS:
"WHENEVER ANY ENLISTED MAN OF THE REGULAR ARMY SHALL HAVE COMPLETED
NOT LESS THAN TWENTY OR MORE THAN TWENTY-NINE YEARS OF ACTIVE SERVICE,
HE MAY UPON HIS OWN REQUEST BE TRANSFERRED TO THE ENLISTED RESERVE CORPS
* * * AND AT THE SAME TIME BE RETIRED FROM THE REGULAR ARMY. AN
ENLISTED MAN SO TRANSFERRED AND RETIRED SHALL RECEIVE * * * UNTIL HIS
DEATH, ANNUAL PAY EQUAL TO 2 1/2 PERCENTUM OF THE AVERAGE ANNUAL
ENLISTED PAY (INCLUDING LONGEVITY PAY) HE WAS RECEIVING FOR THE SIX
MONTHS IMMEDIATELY PRECEDING HIS RETIREMENT MULTIPLIED BY A SUM EQUAL TO
THE SUM OF THE NUMBER OF YEARS OF HIS ACTIVE SERVICE PERFORMED NOT IN
EXCESS OF TWENTY-NINE YEARS. * * *"
YOU WILL NOTICE THAT THIS STATUTE, UNDER WHICH YOU WERE RETIRED,
APPLIES ONLY TO ENLISTED MEN OF THE REGULAR ARMY, WHICH IS REGARDED AS
INCLUDING ENLISTED MEN OF THE PHILIPPINE SCOUTS. PERSONS ENLISTED IN
THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, ARE NOT ENLISTED MEN
OF THE REGULAR ARMY AND DO NOT COME UNDER THIS "20-YEAR" STATUTE. IT
FOLLOWS THAT YOU WERE NOT ENTITLED TO BE RETIRED UNDER THIS STATUTE AS A
MEMBER OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, AND ARE NOT
ENTITLED TO RETIRED PAY COMPUTED ON THAT BASIS. BUT, AFTER YOUR
REENLISTMENT, YOU HAD CONTINUED TO SERVE AS BEFORE IN YOUR PHILIPPINE
SCOUT ORGANIZATION AND, TO SAVE YOUR RIGHTS, THE ARMY REGARDED YOU AS
HAVING BEEN RETIRED AS A PHILIPPINE SCOUT. THE ADJUTANT GENERAL OF THE
ARMY TOLD YOU IN HIS LETTER OF SEPTEMBER 8, 1955, THAT IN CASES SUCH AS
YOURS IT HAD BEEN DETERMINED THAT RETIRED PAY SHOULD BE AUTHORIZED ON
THE PHILIPPINE SCOUT PAY SCALE. IF THAT HAD NOT BEEN DONE, YOU COULD
HAVE RECEIVED NO RETIRED PAY AT ALL. WHILE THE PROPRIETY OF SUCH ARMY
DETERMINATION IS NOT FREE FROM DOUBT, IN VIEW OF ALL THE CIRCUMSTANCES
HERE INVOLVED, IT WILL NOT NOW BE QUESTIONED.
THE DECISION OF MAY 28, 1953, B-101976, TO WHICH YOU REFER, INVOLVED
THE ACT OF MARCH 2, 1907, AS AMENDED, 10 U.S.C. 947, 980, WHICH PROVIDES
FOR RETIREMENT OF ENLISTED MEN OF THE "ARMY" AFTER 30 YEARS' SERVICE.
THAT DECISION HAS NO APPLICATION TO YOUR CASE, THE PROVISIONS OF THE ACT
OF OCTOBER 6, 1945, BEING ENTIRELY DIFFERENT FROM THOSE OF THE 1907
STATUTE.
ENLISTED MEN OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, ARE
ENLISTED MEN OF THE ARMY" BUT THEY ARE NOT ENLISTED MEN OF THE "REGULAR
ARMY.' THEREFORE, THEY COME UNDER THIS ,30-YEAR" STATUTE BUT NOT UNDER
THE "20-YEAR" STATUTE UNDER WHICH YOU WERE RETIRED. APPARENTLY THE
OTHER "CLAIMANT" YOU MENTION WAS RETIRED UNDER THE 30-YEAR STATUTE.
B-128830, SEP. 5, 1956
TO W. M. CHAMBERS, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:
UNDER DATE OF AUGUST 2, 1956, THE OFFICE OF THE JUDGE ADVOCATE
GENERAL, DEPARTMENT OF THE NAVY, FORWARDED YOUR LETTER OF JUNE 13, 1956,
SUBMITTING FOR ADVANCE DECISION A VOUCHER COVERING PAYMENT OF PER DIEM
TO ENSIGN DAVID MEEK, USN, FOR DUTY PERFORMED DURING THE PERIOD JANUARY
11 (12) TO MARCH 1, 1956.
BY ORDERS OF OCTOBER 4, 1955, ISSUED AT THE NAVAL AIR STATION, CORPUS
CHRISTI, TEXAS, THE OFFICER WAS DIRECTED TO PROCEED TO THE NAVAL AIR
STATION, SAN DIEGO, CALIFORNIA, AND REPORT TO THE COMMANDING OFFICER,
GUIDED MISSILE GROUP ONE, FOR DUTY IN A FLYING STATUS INVOLVING
OPERATIONAL AND TRAINING FLIGHTS. UPON HIS ARRIVAL AT THE LATTER PLACE
ON JANUARY 11, 1956, THERE APPARENTLY WAS DELIVERED TO HIM A MEMORANDUM
ENDORSEMENT TO SUCH ORDERS, ISSUED BY THE COMMANDER AIR FORCE, U.S.
PACIFIC FLEET, ON THE SAME DAY, WHICH AMENDED HIS BASIC ORDERS SO AS TO
DIRECT HIM TO REPORT TO THE LATTER OFFICER AT THE NAVAL AIR STATION,
NORTH ISLAND, SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY IN A FLYING
STATUS INVOLVING OPERATIONAL AND TRAINING FLIGHTS, AWAITING THE
COMMISSIONING OF ATTACK SQUADRON 126--- CHANGED TO ATTACK SQUADRON 116
BY THIRD ENDORSEMENT OF MARCH 2, 1956--- AND WHEN SO DIRECTED, PROCEED
TO THE NAVAL AIR STATION, MIRAMAR, SAN DIEGO, CALIFORNIA, AND REPORT TO
THE COMMANDING OFFICER OF THAT SQUADRON, FOR DUTY. FOURTH ENDORSEMENT
OF MARCH 3, 1956, SHOWS THAT HE REPORTED FOR DUTY AT THE LATTER PLACE ON
THAT DATE.
IT IS REPORTED THAT ALTHOUGH SAN DIEGO IS USED AS THE POSTAL ADDRESS
FOR BOTH NORTH ISLAND AND MIRAMAR, THE RAND MCNALLY ATLAS SHOWS THEM TO
BE DISTINCT LOCALITIES, AND BOTH APPEAR TO BE OUTSIDE THE CORPORATE
LIMITS OF THE CITY OF SAN DIEGO. IT IS UNDERSTOOD THAT THE NAVAL AIR
STATION, SAN DIEGO, MENTIONED IN THE ORDERS OF OCTOBER 4 AND THE NAVAL
AIR STATION, NORTH ISLAND, SAN DIEGO, REFERRED TO IN THE MEMORANDUM
ENDORSEMENT OF JANUARY 11, ARE THE SAME STATION.
THE ORDERS OF OCTOBER 4 DIRECTED A PERMANENT CHANGE OF STATION TO THE
NAVAL AIR STATION AT NORTH ISLAND. WHEN THE OFFICER ARRIVED AT THAT
PLACE HIS TRAVEL STATUS CEASED. HAVING ARRIVED AT HIS DESIGNATED POST
OF DUTY ON JANUARY 11, THE MEMORANDUM ENDORSEMENT OF THAT DATE WAS
WITHOUT EFFECT TO CHANGE THAT PLACE TO A TEMPORARY DUTY STATION, AND NO
RIGHT TO PER DIEM ACCRUED TO HIM FOR THE DUTY PERFORMED AT THAT PLACE.
WHILE THE THIRD ENDORSEMENT OF MARCH 2, 1956, STATES THAT THE OFFICER
ATTENDED A COURSE OF INSTRUCTION WITH UTILITY SQUADRON 7 AT BROWN FIELD
(STATED TO BE LOCATED AT CHULA VISTA, CALIFORNIA) FROM FEBRUARY 13 TO 17
AND TWO OTHER COURSES OF INSTRUCTION IN SAN DIEGO FROM FEBRUARY 20 TO 24
AND FEBRUARY 27 TO MARCH 2, 1956, NO COMPETENT WRITTEN ORDERS DIRECTING
HIM TO ATTEND SUCH COURSES HAVE BEEN SUBMITTED. SEE IN THIS CONNECTION
PARAGRAPHS 3000-3002, JOINT TRAVEL REGULATIONS.
ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND
IT WILL BE RETAINED HERE.
B-128903, SEP. 5, 1956
TO LIEUTENANT C. H. SAMUELSON, SC, USN, DISBURSING OFFICER,
HEADQUARTERS, UNITED STATES MARINE CORPS:
BY FIRST ENDORSEMENT OF AUGUST 6, 1956, THE COMMANDANT OF THE MARINE
CORPS FORWARDED YOUR LETTER OF JULY 26, 1956, SUBMITTING FOR ADVANCE
DECISION A VOUCHER COVERING PAYMENT OF MILEAGE TO CAPTAIN JAMES A.
TOOTLE, USMC, IN CONNECTION WITH THE TERMINATION OF HIS TEMPORARY
APPOINTMENT AND DISCHARGE FROM THE MARINE CORPS ON MAY 22, 1956.
IT IS REPORTED THAT FOLLOWING HIS DISCHARGE FROM THE MARINE CORPS ON
MAY 21, 1946, HE REENLISTED THE FOLLOWING DAY FOR A PERIOD OF THREE
YEARS; THAT ON SEPTEMBER 29, 1946, HE WAS APPOINTED TO THE RANK OF
SECOND LIEUTENANT (TEMPORARY) UNDER THE PROVISIONS OF SECTION 2 (B) OF
THE ACT OF JULY 24, 1941, AS AMENDED, 34 U.S.C. 350A; THAT SUCH
TEMPORARY APPOINTMENT WAS AFFIRMED UNDER THE PROVISIONS OF THE OFFICER
PERSONNEL ACT OF 1947, 61 STAT. 795; AND THAT ON MAY 22, 1956, HIS
TEMPORARY APPOINTMENT AS A CAPTAIN--- TO WHICH RANK HE HAD PROGRESSED BY
PERIODIC PROMOTIONS--- WAS TERMINATED AND HE WAS DISCHARGED FOR THE
PURPOSE OF ACCEPTING A PERMANENT APPOINTMENT AS A WARRANT OFFICER IN THE
REGULAR MARINE CORPS. FOLLOWING ACCEPTANCE OF SUCH PERMANENT
APPOINTMENT ON MAY 23, 1956, UNDER PROVISIONS OF THE ACT OF MAY 29,
1954, 68 STAT. 157, HE WAS REAPPOINTED TO THE TEMPORARY RANK OF
CAPTAIN.
YOU REFER TO THREE OF OUR DECISIONS AS HAVING A POSSIBLE BEARING ON
THE QUESTION WERE UNDER CONSIDERATION, 30 COMP. GEN. 531, 31 ID. 247 AND
DECISION OF OCTOBER 22, 1946, B-60870. THE PERSONS INVOLVED IN THE
FIRST CASES WERE ENLISTED MEMBERS OF THE ARMY WHO WERE SERVING
INVOLUNTARILY IN A 12 MONTHS' EXTENSION OF ENLISTMENT AND WHO WERE
DISCHARGED FOR THE PURPOSE OF REENLISTING IN THE REGULAR ARMY. IN THE
OTHER TWO CASES THE PERSONS CONCERNED HELD A DUAL STATUS AS ENLISTED MAN
AND OFFICER UNDER A TEMPORARY APPOINTMENT SIMILAR TO THE SITUATION OF
CAPTAIN TOOTLE ON MAY 22, 1956. THESE LATTER TWO DECISIONS ARE NO
LONGER FOR APPLICATION IN VIEW OF THE DECISION OF THE COURT OF CLAIMS IN
THE CASE OF DAY V. UNITED STATES, 123 C.CLS. 10, IN WHICH IT WAS HELD
THAT THE MILEAGE ALLOWANCE PAYABLE IN CONNECTION WITH THE TERMINATION OF
SUCH DUAL ENLISTED MAN-OFFICER STATUS, IS THAT WHICH ACCRUES TO AN
OFFICER UPON HIS SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE
DUTY. THE FACT THAT THE PERSON CONCERNED SIMULTANEOUSLY RECEIVED A
DISCHARGE FROM HIS PERMANENT STATUS AS AN ENLISTED MAN, WAS NOT REGARDED
AS OF ANY SIGNIFICANCE IN DETERMINING HIS RIGHTS IN SUCH CIRCUMSTANCES.
PARAGRAPH 4157-4, JOINT TRAVEL REGULATIONS, BARS PAYMENT OF A MILEAGE
ALLOWANCE IN CONNECTION WITH SEPARATION FROM THE SERVICE OR RELEASE FROM
ACTIVE DUTY FOR THE EXPRESS PURPOSE OF CONTINUING
ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS, UNLESS THE SEPARATION
OR RELEASE FROM ACTIVE DUTY IS EFFECTED AT THE "EXPIRATION OF ENLISTMENT
OR PRESCRIBED TERM OF SERVICE.' IT IS DOUBTFUL THAT THE QUOTED LANGUAGE
REFERS TO SERVICE OTHER THAN AS AN ENLISTED MAN, SINCE ONLY AN ENLISTED
MAN ENLISTS FOR A TERM OF SERVICE AND THE WORDS "PRESCRIBED TERM OF
SERVICE" MORE APTLY DESCRIBES THE SERVICE OF AN ENLISTED MAN THAN THAT
OF AN OFFICER. CAPTAIN TOOTLE'S SERVICE AS AN OFFICER UNDER HIS
TEMPORARY APPOINTMENT OF SEPTEMBER 29, 1946, AS AFFIRMED UNDER THE
OFFICER PERSONNEL ACT OF 1947, WAS NOT FOR A PRESCRIBED TERM. SUCH
APPOINTMENT WOULD HAVE TERMINATED ON DECEMBER 1, 1947, UNDER SECTION 302
(I) OF THAT ACT IF IT HAD NOT BEEN AFFIRMED, BUT AS SO AFFIRMED, IT HAD
NO FIXED TERMINATION DATE.
IN THE CIRCUMSTANCES, AND IN LINE WITH THE DECISION IN THE DAY CASE,
IT IS CONCLUDED THAT THE REGULATIONS DO NOT CONTEMPLATE THE PAYMENT OF A
MILEAGE ALLOWANCE WHERE A MEMBER IS SEPARATED FROM THE SERVICE FOR THE
PURPOSE OF CONTINUING ON ACTIVE DUTY IN THE SAME OR ANOTHER STATUS,
UNLESS HE IS THEN SERVING ON ACTIVE DUTY SOLELY IN AN ENLISTED STATUS---
AS DISTINGUISHED FROM A TEMPORARY OFFICER STATUS WITH PERMANENT RATING
AS AN ENLISTED MAN--- AND THE SEPARATION IS ACCOMPLISHED AT THE
EXPIRATION OF HIS ENLISTMENT OR PRESCRIBED TERM OF SERVICE.
ACCORDINGLY, NO RIGHT TO A MILEAGE ALLOWANCE ACCRUED TO CAPTAIN
TOOTLE INCIDENT TO THE TERMINATION OF HIS TEMPORARY APPOINTMENT AND
SEPARATION FROM THE SERVICE ON MAY 22, 1956, AND THE SUBMITTED VOUCHER
WILL BE RETAINED HERE.
B-129001, SEP. 5, 1956
TO MR. JAMES H. VON SEEBERG:
REFERENCE IS MADE TO YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES
IN THE AMOUNT OF $165.66, REPRESENTING MONETARY ALLOWANCE IN LIEU OF
TRANSPORTATION FOR TRAVEL ALLEGED TO HAVE BEEN PERFORMED BY YOUR
DEPENDENTS (WIFE AND TWO CHILDREN), FROM MONTGOMERY, ALABAMA, TO
BARKSDALE AIR FORCE BASE, LOUISIANA, ON JUNE 11 AND 12, 1951, AND FOR
TRAVEL PERFORMED BY THEM FROM BARKSDALE AIR FORCE BASE TO LOCKBOURNE AIR
FORCE BASE, OHIO, BETWEEN AUGUST 21 TO 24, 1951. WE HAVE REEXAMINED THE
BASIS FOR THE REPORTED INDEBTEDNESS PURSUANT TO THE REQUEST OF THE
HONORABLE GEORGE GRANT, HOUSE OF REPRESENTATIVES.
BY SPECIAL ORDERS NO. 45, DATED FEBRUARY 24, 1951, YOU WERE DIRECTED
TO REPORT FOR DUTY AT BARKSDALE AIR FORCE BASE, LOUISIANA, NOT LATER
THAN MARCH 17, 1951. INCIDENT TO THAT ASSIGNMENT YOU SUBMITTED A
VOUCHER IN THE AMOUNT OF $50.70 SHOWING THAT YOUR DEPENDENTS TRAVELED
FROM MONTGOMERY, ALABAMA, TO BARKSDALE AIR FORCE BASE, LOUISIANA,
BETWEEN THE DATES JUNE 11 AND 12, 1951. WHILE YOU WERE STATIONED AT
BARKSDALE AIR FORCE BASE YOU RECEIVED ORDERS DATED AUGUST 15, 1951,
ASSIGNING YOU TO LOCKBOURNE AIR FORCE BASE, OHIO. INCIDENT TO THAT
ASSIGNMENT YOU SUBMITTED A VOUCHER IN THE AMOUNT OF $114.96 SHOWING THAT
YOUR DEPENDENTS WERE AT BARKSDALE AIR FORCE BASE, LOUISIANA, WHEN THOSE
ORDERS WERE RECEIVED AND THAT THEY TRAVELED TO LOCKBOURNE AIR FORCE
BASE, OHIO, BETWEEN AUGUST 21 TO 24, 1951. IT IS YOUR CONTENTION THAT
THE TRAVEL IN EACH INSTANCE WAS PERFORMED FOR THE PURPOSE OF
ESTABLISHING A RESIDENCE AND ON THAT BASIS THE DISBURSING OFFICER PAID
YOU THE AMOUNT IN QUESTION.
WHEN THE DISBURSING OFFICER'S ACCOUNTS WERE AUDITED AN EXCEPTION WAS
RAISED TO THE PAYMENTS MADE FOR THE REASON THAT OTHER INFORMATION
INDICATED THE TRAVEL MAY NOT HAVE BEEN PERFORMED AS CLAIMED. FOR
EXAMPLE, CLASS Q ALLOTMENT CHECKS DATED JULY 1, AUGUST 1 AND SEPTEMBER
1, 1951, APPEAR TO HAVE BEEN ENDORSED BY YOUR WIFE AND NEGOTIATED AT
MONTGOMERY, ALABAMA, ON JULY 7, AUGUST 15 AND SEPTEMBER 6, 1951,
RESPECTIVELY. IT IS NOTED THAT EACH OF THESE CHECKS WAS NEGOTIATED FOR
CASH. THE CHECK DATED JULY 1 WAS PAID IN CASH BY THE UNION BANK AND
TRUST COMPANY, MONTGOMERY, ALABAMA, AND CHECKS DATED AUGUST 1 AND
SEPTEMBER 1, 1951, SHOW THAT THEY WERE NEGOTIATED FOR CASH AT THE LIFE
INSURANCE COMPANY OF GEORGIA, MONTGOMERY, ALABAMA, AND LIBERTY NATIONAL
LIFE INSURANCE COMPANY, MONTGOMERY, ALABAMA, RESPECTIVELY. THESE CHECK
TRANSACTIONS INDICATE THAT YOUR WIFE WAS IN ALABAMA RATHER THAN AT
BARKSDALE AIR FORCE BASE, LOUISIANA, OR LOCKBOURNE AIR FORCE BASE, OHIO,
AS CLAIMED. IN THE ABSENCE OF EVIDENCE TO CLARIFY THE SITUATION, THE
DEBT CHARGE AGAINST YOU MAY NOT BE REMOVED. IF YOU CAN FURNISH US
INFORMATION CONCERNING THE CASHING OF THOSE CHECKS AND THE WHEREABOUTS
OF YOUR WIFE DURING JUNE, JULY AND AUGUST 1951, FURTHER CONSIDERATION
WILL BE GIVEN THE MATTER. SUCH ADDITIONAL INFORMATION MAY BE IN THE
FORM OF RENT RECEIPTS, UTILITY BILLS, THIRD-PARTY AFFIDAVITS, OR OTHER
SIMILAR EVIDENCE.
B-116713, SEP. 4, 1956
TO MR. WILLIAM BELL:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1956, RELATIVE TO
YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SHIPPING YOUR HOUSEHOLD
EFFECTS FROM BROOKLYN, NEW YORK, TO TAMPA, FLORIDA, FOLLOWING YOUR
RELEASE FROM ACTIVE DUTY AS AN ENLISTED MAN, FLEET RESERVE.
YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF JANUARY 7, 1954, AND UPON
REVIEW SUCH ACTION WAS SUSTAINED BY OUR DECISION OF SEPTEMBER 22, 1954
(B-116713), FOR THE REASON THAT THE SHIPMENT WAS FROM YOUR HOME OF
RECORD TO A SELECTED PLACE. IN YOUR PRESENT LETTER YOU EXPRESS THE
BELIEF THAT YOU NOW ARE ENTITLED TO PAYMENT OF YOUR CLAIM UNDER THE
RETROACTIVE PROVISIONS OF PUBLIC LAW 368, 84TH CONGRESS.
THAT LAW (ACT OF AUGUST 11, 1955, 69 STAT. 691), AMENDED SECTION 303
(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, TO PROVIDE,
EFFECTIVE APRIL 1, 1951, THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY
THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO (1) IS
RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY
RETIRED LIST, OR (2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS
DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT
YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK OF MORE THAN NINETY
DAYS), SHALL BE ENTITLED TO TRANSPORTATION OF HOUSEHOLD EFFECTS TO A
HOME OF HIS SELECTION.
THE RECORD SHOWS THAT YOU WERE TRANSFERRED TO THE FLEET RESERVE ON
MAY 8, 1948; RECALLED AND REPORTED FOR ACTIVE DUTY ON SEPTEMBER 20,
1950, AND RELEASED TO INACTIVE DUTY ON SEPTEMBER 18, 1952. IT SEEMS
CLEAR THAT THE ACT OF AUGUST 11, 1955, IS NOT APPLICABLE TO YOUR
SITUATION SINCE IT DOES NOT PROVIDE ANY BENEFITS FOR MEMBERS OF THE NAVY
TRANSFERRED TO THE FLEET RESERVE.
B-119120, SEP. 4, 1956
TO ANSELL AND ANSELL, ATTORNEYS AT LAW:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, REQUESTING
RECONSIDERATION OF THE CLAIM OF COLONEL ANEES MOGABGAB FOR RETIRED PAY.
BY SETTLEMENT DATED JUNE 20, 1956, COLONEL MOGABGAB WAS ALLOWED THE
AMOUNT OF $5,696.43, REPRESENTING RETIREMENT PAY FROM NOVEMBER 1, 1953,
THROUGH MARCH 31, 1956.
YOU REFER TO OUR REPORT DATED FEBRUARY 2, 1956, B-119120, TO THE
UNITED STATES COURT OF CLAIMS IN THE CASE OF CHARLES C. ADAMS, ET AL.
V. UNITED STATES, COURT OF CLAIMS NO. 38-54, WHEREIN IT IS STATED THAT
COLONEL MOGABGAB "WAS PLACED ON THE RETIRED LIST OCTOBER 31, 1953, WITH
ENTITLEMENT TO RETIRED PAY FROM OCTOBER 1, 1953.' ON THE BASIS OF THAT
REPORT, YOU CONTEND THAT COLONEL MOGABGAB IS ENTITLED TO ADDITIONAL
RETIRED PAY FOR THE PERIOD OCTOBER 1-31, 1953.
THE REPORT TO THE COURT OF CLAIMS TO WHICH YOU REFER MUST BE
CONSIDERED AS ADVISORY ONLY. THAT REPORT INCLUDED IN THE COMPUTATIONS
AMOUNTS WHICH WOULD APPEAR PROPER FOR ALLOWANCE BY THE COURT UNDER THE
SEAGRAVES CASE, 131 C.CLS. 790. HOWEVER, NO JUDGMENT WAS ENTERED
AGAINST THE GOVERNMENT FOR THE AMOUNT OF THE COMPUTATIONS SET OUT IN
THAT REPORT AND, IN THE ABSENCE OF SUCH A JUDGMENT, COLONEL MOGABGAB'S
CLAIM IS FOR SETTLEMENT ACCORDING TO THE LAW AND PRECEDENTS DEEMED
APPLICABLE TO IT. THE SEAGRAVES CASE HAS NOT BEEN FOLLOWED IN THE
SETTLEMENT OF CLAIMS BY OUR CLAIMS DIVISION.
IT APPEARS FROM THE RECORDS THAT COLONEL MOGABGAB APPLIED FOR
RETIREMENT ON OCTOBER 2, 1953; THAT HE WAS PLACED ON THE RETIRED LIST
ON OCTOBER 31, 1953; AND, HENCE, HE BECAME ENTITLED TO RETIRED PAY FROM
NOVEMBER 1, 1953. THE SETTLEMENT OF HIS CLAIM ON THAT BASIS WAS IN
ACCORDANCE WITH THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF
TANNER V. UNITED STATES, 129 C.CLS. 792, AND THE PROVISIONS OF THE
UNIFORM RETIREMENT DATE ACT, 46 STAT. 253. WE ARE OF THE OPINION THAT
THE SETTLEMENT OF JUNE 20, 1956, IS PROPER, AND UPON REVIEW IT IS
SUSTAINED.
B-125866, SEP. 4, 1956
TO THE SECRETARY OF THE INTERIOR:
REFERENCE IS MADE TO LETTER OF JUNE 4, 1956, WITH ENCLOSURES, FROM
THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE
PROPRIETY OF CANCELLING THE INDEBTEDNESS OF THE ENTERPRISE IRRIGATION
DISTRICT IN THE AMOUNT OF $3,034.50, REPRESENTING UNPAID CHARGES FOR
EXCESS WATER DELIVERED TO THE DEBTOR FOR THE YEARS 1938 THROUGH 1943
UNDER CONTRACT I1R-399 ENTERED INTO UNDER DATE OF OCTOBER 5, 1920, UNDER
AUTHORITY OF THE RECLAMATION ACT OF JUNE 17, 1902, 32 STAT. 388, AS
AMENDED, AND THE WARREN ACT OF FEBRUARY 21, 1911, 36 STAT. 925.
THE SUBMISSION IS THE OUTCOME OF A CONTROVERSY EXTENDING OVER A
PERIOD OF YEARS BETWEEN THE BUREAU OF RECLAMATION AND SEVERAL IRRIGATION
DISTRICTS IN THE KLAMATH PROJECT, INCLUDING THE ENTERPRISE DISTRICT.
THE CONTROVERSY AROSE OUT OF THE PRACTICE OF THE BUREAU, INITIATED IN
1935, OF CHARGING IRRIGATION DISTRICTS EXTRA AMOUNTS FOR WATER USED IN
EXCESS OF THE TWO ACRE-FEET PER ACRE OF IRRIGABLE LAND PER SEASON
SPECIFIED FOR DELIVERY UNDER THE SEVERAL CONTRACTS WITH THE DISTRICTS
AND INDIVIDUAL CONTRACTORS. THE PRACTICE WAS INITIATED BY THE BUREAU
FOR THE STATED PURPOSE OF ENCOURAGING ECONOMY IN THE USE OF WATER RATHER
THAN BECAUSE OF ANY SHORTAGE IN THE AVAILABLE SUPPLY. IN PUBLIC NOTICES
ANNOUNCING THE ANNUAL OPERATION AND MAINTENANCE CHARGES FOR THE KLAMATH
PROJECT ISSUED FOR THE YEARS 1935 TO 1943, PROVISION WAS MADE FOR A
CHARGE OF TWENTY-FIVE CENTS PER ACRE FOOT FOR WATER DELIVERED IN EXCESS
OF THE TWO ACRE-FEET STIPULATED IN THE CONTRACTS. THE RECORD SHOWS THAT
IN THE SPRING OF 1936 THE BUREAU RECOGNIZED THAT TWO ACRE-FEET WERE NOT
SUFFICIENT FOR BENEFICIAL USE, AND OFFERED TO MODIFY EXISTING CONTRACTS
TO PERMIT A MAXIMUM DELIVERY OF 2 1/2 ACRE-FEET PER IRRIGABLE ACRE IN
CONSIDERATION FOR THE FURNISHING OF ANNUAL CROP RETURNS BY THE SEVERAL
CONTRACTORS. IT IS REPORTED THAT ALL OF THE DISTRICTS EXCEPT
ENTERPRISE, AND PRACTICALLY ALL OF THE INDIVIDUAL CONTRACTORS, WHILE
OBJECTING TO THE EXCESS CHARGE FOR REASONS HEREINAFTER STATED,
ACQUIESCED IN THE BUREAU'S PROPOSAL, AND THAT THEIR CONTRACTS WERE
AMENDED AND CHARGES MADE ACCORDINGLY. IN THE CASE OF ENTERPRISE THE
RECORD SHOWS THAT FOR THE YEARS 1935, 1936, AND 1937 IT WAS CHARGED AND
PAID UNDER PROTEST AT THE RATE OF 25 CENTS PER ACRE-FOOT FOR WATER
DELIVERED IN EXCESS OF TWO ACRE-FEET. CHARGES AT THE SAME RATE TOTALING
$3,034.50 FOR 1938 THROUGH 1943 ARE UNPAID AND ENTERPRISE HAS REQUESTED
REFUND OF THE EXCESS CHARGES PAID FOR 1935, 1936, AND 1937.
IT APPEARS THAT BY PUBLIC NOTICES ISSUED BY THE BUREAU BETWEEN 1943
AND 1948, IT WAS ANNOUNCED THAT, BECAUSE OF THE CONTROVERSY AS TO THE
LEGALITY OF THE CHARGE OF 25 CENTS FOR EXCESS WATER CONTAINED IN PRIOR
NOTICES, THE ADDITIONAL CHARGE WOULD BE DISCONTINUED PENDING THE OUTCOME
OF THE CONTROVERSY. IT IS STATED THAT SINCE 1948 THE LANGUAGE RELATING
TO CHARGES FOR ADDITIONAL WATER HAS BEEN ELIMINATED FROM PUBLIC NOTICES
AND SUCH CHARGES HAVE BEEN DISCONTINUED.
BY LETTER DATED JULY 16, 1941, THE ACTING SECRETARY OF THE INTERIOR
APPOINTED A COMMITTEE TO INVESTIGATE AND REPORT ON THE MATTERS IN
CONTROVERSY AND TO RECOMMEND MEANS OF ADJUSTING THE DIFFERENCES. THE
COMMITTEE REPORT WAS NOT INCLUDED AMONG THE ENCLOSURES FORWARDED WITH
YOUR LETTER BUT WAS FORWARDED BY LETTER OF JULY 20, 1956, PURSUANT TO AN
INFORMAL REQUEST. INSOFAR AS CONCERNS THE PRESENT CONTROVERSY, THE
COMMITTEE'S REPORT, MADE IN 1943, RECOMMENDED THAT ENTERPRISE BE
PERMITTED TO AMEND ITS CONTRACT TO CONFORM WITH THE AMENDMENTS EFFECTED
WITH THE OTHER PROJECT CONTRACTORS, AND THAT THE AMOUNT PREVIOUSLY PAID
BY ENTERPRISE FOR EXCESS WATER AND THE AMOUNT OF ITS UNPAID INDEBTEDNESS
WHEN PAID SHOULD BE CREDITED TO THE PURCHASE OF THE ADDITIONAL 1/2
ACRE-FOOT. THE ABOVE RECOMMENDATIONS, WHICH APPARENTLY WERE NEVER PUT
INTO EFFECT, WERE BASED ON THE COMMITTEE'S CONCLUSION THAT THE WATER
DISTRICTS ARE BOUND BY THE TERMS OF THEIR CONTRACTS, INCLUDING THE
AMOUNT OF WATER SPECIFIED FOR DELIVERY. A LENGTHY STATEMENT AS TO THE
,LEGAL ASPECTS" OF THE SITUATION WAS SUBMITTED IN SUPPORT OF SUCH
CONCLUSION. WHILE IT APPEARS THAT THE CASE OF FOX V. ICKES, 137 F.2D
30, REFERRED TO IN YOUR LETTER, HAD NOT BEEN DECIDED AT THE TIME OF THE
SUBMISSION OF THE COMMITTEE'S REPORT, THE COMMITTEE REFERRED TO THE
PENDING APPEAL
IN THAT CASE BUT CONCLUDED THAT REGARDLESS OF THE COURT'S DECISION
THE DISTRICTS INVOLVED IN THE PRESENT CASE ARE BOUND BY THE TERMS OF
THEIR CONTRACTS. THE COMMITTEE TOOK THE VIEW THAT THE ADDITIONAL CHARGE
OF 25 CENTS PER ACRE-FOOT IS FOR THE SALE OR RENTAL OF SURPLUS WATER IN
EXCESS OF THE AMOUNT PROVIDED IN THE DISTRICTS' CONTRACTS, AS AUTHORIZED
BY THE WARREN ACT, AND NOT A CONSTRUCTION CHARGE SUCH AS INVOLVED IN FOX
V. ICKES. THE COMMITTEE DISAGREED WITH THE BUREAU'S VIEWS THAT THE 25
CENTS CHARGE PROPERLY MAY BE REGARDED AS AN OPERATION AND MAINTENANCE
COST UNDER SECTION 5 OF THE RECLAMATION EXTENSION ACT OF AUGUST 13,
1914, 38 STAT. 686, 43 U.S.C. 499.
REGARDLESS OF THE BASIS FOR THE CHARGE, THE ESSENTIAL QUESTION IS
WHETHER IT IS ONE WHICH MAY LEGALLY BE COLLECTED. PARAGRAPH 5 OF THE
AGREEMENT OF OCTOBER 5, 1920, PROVIDES THAT "BENEFICIAL USE SHALL BE THE
BASIS AND LIMIT OF ALL RIGHT ACQUIRED BY THE DISTRICT HEREUNDER.'
PARAGRAPH 6, HOWEVER, STIPULATES THAT---
"IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE AMOUNT OF WATER TO BE
DELIVERED HEREUNDER SHALL BE TWO (2) ACRE FEET PER ACRE OF IRRIGABLE
LAND DURING THE USUAL IRRIGATION SEASON * * * SUBJECT ALWAYS, HOWEVER,
TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; * * *"
IT HAS BEEN THE POSITION OF THE BUREAU, WHICH WAS CONCURRED IN BY THE
COMMITTEE REFERRED TO, THAT UNDER THE TERMS OF THE CONTRACT THE UNITED
STATES IS OBLIGATED TO FURNISH THE DEBTOR ONLY 2 ACRE-FEET OF WATER PER
ACRE OF IRRIGABLE LAND PER SEASON AT THE CONTRACT RATE, AND THAT THERE
SHOULD BE NO INCREASE IN THE DUTY OF WATER WITHOUT A CORRESPONDING
INCREASE IN THE CONSTRUCTION CHARGE OR WATER RIGHT CHARGE. IN OTHER
WORDS, IT IS CONTENDED THAT 2 ACRE-FEET IS THE BASIS AND THE LIMIT OF
THE RIGHT OF ENTERPRISE AT THE CONTRACT RATE. IT APPEARS TO BE THE
CONTENTION OF THE BUREAU THAT THE RIGHT TO THE WATER WAS ACQUIRED BY THE
UNITED STATES PURSUANT TO THE LAWS OF THE STATE OF OREGON, NAMELY, THE
ACT OF JANUARY 20, 1905, UNDER WHICH THE UNITED STATES WAS CEDED ALL THE
RIGHT, TITLE, INTEREST AND CLAIM OF THE STATE OR OREGON TO ANY LANDS
RECOVERED BY THE LOWERING OF THE WATER LEVEL OR DRAINAGE OF THE LAKES
INVOLVED IN THE KLAMATH PROJECT. REFERENCE IS ALSO MADE TO THE ACT OF
FEBRUARY 22, 1905 (CHAP. 228 OF THE GENERAL LAWS OF OREGON OF 1905),
ADJUDICATING CERTAIN WATER RIGHTS AND PROVIDING FOR THE APPROPRIATION BY
THE UNITED STATES OF WATERS UNAPPROPRIATED AT THE TIME OF COMPLIANCE BY
THE UNITED STATES WITH PROVISIONS OF THE STATUTE. THE STATUTE
STIPULATES THAT UPON COMPLIANCE WITH THE ACT NO ADVERSE CLAIMS AGAINST
THE UNITED STATES CAN BE ACQUIRED UNDER THE LAWS OF THE STATE IN THE
ABSENCE OF A RELEASE BY AN OFFICER OF THE UNITED STATES FILED WITH THE
STATE ENGINEER. IT IS ASSERTED THAT THE WATERS THUS FILED UPON AND
APPROPRIATED BY THE UNITED STATES HAVE NOT BEEN FORMALLY OR OTHERWISE
RELEASED BY THE UNITED STATES AND THAT THE GOVERNMENT'S ACTION UNDER THE
ABOVE STATUTES VESTED TITLE IN THE UNITED STATES TO ALL UNAPPROPRIATED
WATER. IN RE WATERS OF UMATILLA RIVER, 168R. 922 (OREGON). ALSO, THE
BUREAU RELIES UPON THE PROVISIONS OF SECTION 6 OF THE RECLAMATION ACT
PROVIDING THAT TITLE TO AND THE MANAGEMENT AND OPERATION OF RESERVOIRS
AND WORKS NECESSARY FOR THEIR PROTECTION AND OPERATION SHALL REMAIN IN
THE UNITED STATES. IT IS STATED THAT THE UNITED STATES HAS NEVER
PROVIDED FOR THE TRANSFER OF TITLE TO THE RESERVOIR OR THE MAIN CANAL OF
THE PROJECT OR THE TUNNEL CONNECTING SAME WITH THE RESERVOIR OR THE
HEADWORKS OF THE CANAL AND TUNNEL FORMING THE OUTLET.
ON THE OTHER HAND, ENTERPRISE CONTENDS THAT THE SECRETARY OF THE
INTERIOR HAD NO AUTHORITY OF LAW FOR MAKING THE CONTRACT FOR FURNISHING
A SPECIFIED AMOUNT OF WATER AT A SPECIFIC PRICE AND THAT THE GOVERNMENT
IS OBLIGATED TO FURNISH ALL THE WATER THAT CAN BE BENEFICIALLY USED BY
THE DEBTOR NOTWITHSTANDING THE ABOVE PROVISIONS OF PARAGRAPHS 6 AND 7 OF
THE CONTRACT. IT CONTENDS THAT THE MAIN CANAL, THE RESERVOIR, AND
TUNNEL CONSTRUCTED BY THE UNITED STATES ARE IMPRESSED WITH AN OBLIGATION
OR LIEN OR ENCUMBRANCE REQUIRING THE WORKS TO BE USED FOR THE BENEFIT OF
THE DEBTOR TO THE EXTENT NECESSARY, AND DELIVERY TO THE DEBTOR, WITHOUT
ADDITIONAL CHARGE, OF ALL WATER WHICH CAN BE BENEFICIALLY USED BY IT.
IT FURTHER CONTENDS THAT AT THE TIME THE CONTRACT WAS EXECUTED IT WAS
THE UNDERSTANDING OF THE PARTIES THAT THE PAYMENTS PROVIDED FOR
THEREUNDER WOULD COVER ALL CHARGES MADE FOR THE CARRIAGE OF WATER THAT
ENTERPRISE COULD BENEFICIALLY USE, SUBJECT ONLY TO THE AVAILABLE SUPPLY.
SUCH RIGHT IT ASSERTS IS PLAINLY SET FORTH IN PARAGRAPH 5 OF THE
CONTRACT. IT ASSERTS THAT THE BUREAU'S DEMAND FOR ADDITIONAL PAYMENT
FOR WATER IN EXCESS OF 2 ACRE-FEET PER ANNUM IGNORES THE "BENEFICIAL
USE" PROVISION OF THE CONTRACT AND THAT THE DISTRICT IS ENTITLED TO ALL
THE WATER IT CAN BENEFICIALLY USE WITHOUT REGARD TO THE TWO ACRE FOOT
LIMITATION. THE DEBTOR ADMITS THAT THE BUREAU HAS THE RIGHT OF ASSUMING
OR FIXING THE "DUTY OF WATER" BASED ON THE AMOUNT THAT CAN BE
BENEFICIALLY USED. IT CONTENDS, HOWEVER, THAT THE AMOUNT OF TWO
ACRE-FEET ORIGINALLY FIXED IN THE CONTRACT IS EXPRESSLY SUBJECT TO THE
STIPULATION IN PARAGRAPH 6 TO THE EFFECT THAT THE AMOUNT OF WATER TO BE
DELIVERED WILL BE "SUBJECT ALWAYS, HOWEVER, TO ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT," AND THEREFORE TO PARAGRAPH 5. THE DEBTOR
ASSERTS THAT IT IS NOT PURCHASING WATER AND THAT ALL THE WATER IT CAN
BENEFICIALLY USE WAS GRANTED TO IT BY THE OREGON STATUTES MAKING WATER
APPURTENANT TO THE LAND OF THE DEBTOR WHICH RIGHT IS CLEARLY RECOGNIZED
UNDER SECTION 8 OF THE RECLAMATION ACT. IT CONTENDS THE BUREAU OWNS NO
WATER TO SELL AND AND THAT THE PARTIES TO THE CONTRACT NEVER INTENDED
THAT THE DEBTOR WOULD PURCHASE WATER AS EVIDENCED BY THE FACT THAT THE
CONTRACT IS ONE FOR "THE CARRIAGE OF WATER.' NEBRASKA V. WYOMING, 325
U.S. 589, 611. FINALLY, THE DISTRICT RELIES UPON THE CASE OF ICKES V.
FOX, 300 U.S. 82, AND PARTICULARLY UPON EXPRESSIONS BY THE COURT TO THE
EFFECT THAT BENEFICIAL USE IS THE BASIS, THE MEASURE AND THE LIMIT OF
THE RIGHT TO THE USE OF WATER AND THAT THE UNITED STATES IS NOT THE
OWNER OF THE WATER BUT IS MERELY A CARRIER. SUMMARIZING, IT IS THE
POSITION OF ENTERPRISE THAT ANY LIMITATION IN ITS CONTRACT IN THE AMOUNT
OF WATER LESS THAN "BENEFICIAL USE" IS WITHOUT AUTHORITY AND ILLEGAL.
IT IS STATED IN YOUR LETTER THAT THE DELAY IN TAKING ACTION ON THE
GOVERNMENT'S CLAIM WAS DICTATED LARGELY BY THE PROCEEDINGS IN THE ABOVE
CASE OF FOX V. ICKES. IT IS SUGGESTED THAT SINCE THE FINAL DECISION IN
THAT CASE (137 F.2D 30), WHICH INVOLVED A SOMEWHAT SIMILAR CONTROVERSY
INCIDENT TO THE YAKIMA PROJECT, WAS ADVERSE TO THE GOVERNMENT'S
CONTENTIONS, A DECISION UNFAVORABLE TO THE UNITED STATES MIGHT RESULT IN
THE EVENT OF COURT ACTION AGAINST THE DEBTOR IN THE PRESENT CASE. IT IS
STATED THAT IN SUCH EVENT ALL WARREN ACT CONTRACTORS WOULD ASSERT
CLAIMS--- AGGREGATING IN EXCESS OF $4,000--- FOR REFUNDS OF PAYMENTS
MADE FOR WATER DELIVERED IN EXCESS OF THE AMOUNTS STIPULATED IN THEIR
CONTRACTS. IN THE CIRCUMSTANCES, CANCELLATION OF THE CHARGE AGAINST
ENTERPRISE IS RECOMMENDED AS IN THE BEST INTEREST OF THE UNITED STATES.
AT THE OUTSET, IT IS CLEAR THAT THE UNITED STATES BY FILING WITH THE
STATE OF OREGON NOTICES OF INTENT TO APPROPRIATE AND THEREAFTER
IMPOUNDING THE WATERS DID NOT--- AS APPEARS TO BE CONTENDED BY THE
BUREAU--- BECOME THE OWNER OF THE WATER IN ITS OWN RIGHT. THAT IS
RECOGNIZED IN THE RECLAMATION ACT ITSELF. HUDSPETH COUNTY CONSERV. AND
REC. DIS. NO. 1 V. ROBBINS, 213 F.2D 425, CERTIORARI DENIED 348 U.S.
833.
THE DECISION OF ICKES V. FOX AND FOX V. ICKES, SUPRA, BOTH WERE
RENDERED IN A SUIT BROUGHT IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF COLUMBIA AGAINST THE SECRETARY OF THE INTERIOR TO
ENJOIN THE ENFORCEMENT OF ORDERS MADE BY HIM LIMITING THE AMOUNT OF
WATER COMPLAINANTS MIGHT RECEIVE FOR IRRIGATION FROM A FEDERAL
RECLAMATION PROJECT IN THE STATE OF WASHINGTON, THE LAWS OF WHICH WITH
RESPECT TO WATER RIGHTS OF THE UNITED STATES ARE SIMILAR TO THE LAWS OF
OREGON. RCW 90:40.010 AND FOLLOWING SECTIONS. IN ICKES V. FOX, 300
U.S. 82, THE SUPREME COURT AFFIRMED A DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA (ICKES V. FOX, 85 F.2D
294) WHICH UPHELD THE ACTION OF THE LOWER COURT IN DENYING A MOTION MADE
BY THE SECRETARY TO DISMISS THE COMPLAINT ON THE GROUND THAT THE UNITED
STATES WAS AN INDISPENSABLE PARTY TO THE SUIT. HOLDING THAT THE RIGHTS
OF THE LANDOWNERS TO WATER FOR IRRIGATION WERE NOT MERE RIGHTS OF
CONTRACT WITH THE GOVERNMENT, BUT VESTED PROPERTY RIGHTS, THE COURT
SAID, IN PART:
"* * * SUCCINCTLY STATED, THE CASE COMES TO THIS: THE UNITED STATES,
UNDER THE RECLAMATION ACT, CONSTRUCTED AN IRRIGATION SYSTEM FOR THE
PURPOSE OF STORING AND DISTRIBUTING WATER FOR IRRIGATION OF ARID LANDS.
RESPONDENTS OWN WATER-RIGHTS UNDER THE SYSTEM FOR LANDS OF THAT KIND;
AND THESE LANDS REQUIRE ARTIFICIAL IRRIGATION TO RENDER THEM PRODUCTIVE.
SO FAR AS THESE RESPONDENTS ARE CONCERNED, THE GOVERNMENT DID NOT
BECOME THE OWNER OF THE WATER-RIGHTS, BECAUSE THOSE RIGHTS BY ACT OF
CONGRESS WERE MADE "APPURTENANT TO THE LAND IRRIGATED; " AND BY A
WASHINGTON STATUTE, IN FORCE AT LEAST SINCE 1917, WERE "TO BE AND REMAIN
APPURTENANT TO THE LAND.'
MOREOVER, BY THE CONTRACT WITH THE GOVERNMENT, IT WAS THE LANDOWNERS
WHO WERE "TO INITIATE RIGHTS TO THE USE OF WATER," WHICH RIGHTS WERE TO
BE AND "CONTINUE TO BE FOREVER APPURTENANT TO DESIGNATED LANDS OWNED BY
SUCH SHAREHOLDERS.'
"RESPONDENTS HAD MADE ALL STIPULATED PAYMENTS AND COMPLIED WITH ALL
OBLIGATIONS BY WHICH THEY WERE BOUND TO THE GOVERNMENT, AND LONG PRIOR
TO THE ISSUE OF THE NOTICES AND ORDERS HERE ASSAILED, HAD ACQUIRED A
VESTED RIGHT TO THE PERPETUAL USE OF THE WATERS AS APPURTENANT TO THEIR
LANDS. UNDER THE RECLAMATION ACT, SUPRA, AS WELL AS UNDER THE LAW OF
WASHINGTON,"BENEFICIAL USE" WAS "THE
BASIS, THE MEASURE, AND THE LIMIT OF THE RIGHT.' AND BY THE EXPRES
TERMS OF THE CONTRACT MADE BETWEEN THE GOVERNMENT AND THE WATER USERS
ASSOCIATION IN BEHALF OF RESPONDENTS AND OTHER SHAREHOLDERS, THE
DETERMINATION OF THE SECRETARY AS TO THE NUMBER OF ACRES CAPABLE OF
IRRIGATION WAS "TO BE BASED UPON AND MEASURED AND LIMITED BY THE
BENEFICIAL USE OF WATER.' PREDECESSORS OF PETITIONER, ACCORDINGLY, HAD
DECIDED THAT 4.84 ACRE-FEET OF WATER PER ANNUM PER ACRE WAS NECESSARY TO
THE BENEFICIAL AND SUCCESSFUL IRRIGATION OF RESPONDENTS' LANDS; AND
UPON THAT DECISION, FOR A PERIOD OF MORE THAN TWENTY YEARS PRIOR TO THE
WRONGS COMPLAINED OF, THERE WAS DELIVERED TO AND USED UPON THE LANDS
THAT QUANTITY OF WATER. ALTHOUGH THE GOVERNMENT DIVERTED, STORED, AND
DISTRIBUTED THE WATER, THE CONTENTION OF PETITIONER THAT THEREBY
OWNERSHIP OF THE WATER OR WATER-RIGHTS BECAME VESTED IN THE UNITED
STATES IS NOT WELL FOUNDED. APPROPRIATION WAS MADE NOT FOR THE USE OF
THE GOVERNMENT, BUT, UNDER THE RECLAMATION ACT, FOR THE USE OF THE
LANDOWNERS; AND BY THE TERMS OF THE LAW AND OF THE CONTRACT ALREADY
REFERRED TO, THE WATER-RIGHTS BECAME THE PROPERTY OF THE LANDOWNERS,
WHOLLY DISTINCT FROM THE PROPERTY RIGHT OF THE GOVERNMENT IN THE
IRRIGATION WORKS * * *.'
UPON SUBSEQUENT HEARING ON THE MERITS, THE DISTRICT COURT DISMISSED
THE SUIT, APPARENTLY ON THE GROUND THAT THE SECRETARY WAS AUTHORIZED BY
THE TERMS OF THE WATER-RIGHT APPLICATIONS TO DETERMINE
THE AMOUNT OF WATER WHICH HE WAS OBLIGATED TO DELIVER WITHOUT EXTRA
CHARGE. THIS DECISION WAS REVERSED BY THE COURT OF APPEALS IN FOX V.
ICKES, 137 F.2D 30, WHICH THE SUPREME COURT DECLINED TO
REVIEW. 320 U.S. 792. IN THE COURSE OF ITS OPINION THE COURT OF
APPEALS MADE THE FOLLOWING STATEMENTS WHICH APPEAR TO BE RELEVANT TO THE
CLAIM AGAINST THE ENTERPRISE DISTRICT:
"IN HOLDING THAT APPELLANTS' RIGHTS WERE DEPENDENT ON THE ENFORCEMENT
OF CONTRACTS WITH THE UNITED STATES, WE THINK THE TRIAL COURT FAILED TO
FOLLOW THE DECISION IN ICKES V. FOX, DECIDED BY THE SUPREME COURT IN A
PREVIOUS APPEAL IN THESE PROCEEDINGS. * * *
"A PETITION FOR REHEARING FILED IN THE SUPREME COURT BY THE SOLICITOR
GENERAL MAKES IT APPARENT THAT THE PRINCIPAL ISSUE IN THIS CASE WAS
BEFORE THE SUPREME COURT ON THE FORMER APPEAL. IN THAT PETITION FOR
REHEARING THE SOLICITOR GENERAL POINTED OUT TO THE COURT THAT THE
DECISION WOULD LEAD TO SERIOUS CONSEQUENCES IN THE ADMINISTRATION OF THE
RECLAMATION FUND BECAUSE IT GAVE APPELLANTS, ON THE SOLE BASIS OF PRIOR
DELIVERIES OF WATER, A VESTED RIGHT IN A LARGER AMOUNT OF WATER THAN WAS
STIPULATED IN THEIR CONTRACTS. * * *
"READING THE RECLAMATION ACT IN THE LIGHT OF THE DECISION IN ICKES V.
FOX, WE FIND THE SITUATION IN THIS CASE TO BE AS FOLLOWS: THE
WATER-RIGHTS OF APPELLANTS ARE NOT DETERMINED BY CONTRACT BUT BY
BENEFICIAL USE. * * *
"* * * THE SECRETARY IN THIS CASE IS NOT CLAIMING THAT NO MORE WATER
THAN THE AMOUNTS DETERMINED UNDER THE NOTICE CAN BE USED BENEFICIALLY ON
THE LANDS. HE IS OFFERING TO SELL MORE WATER TO THE APPELLANTS. HIS
NOTICE GIVES THE WATER-USERS A CHOICE BETWEEN EXPENDING MONEY FOR
ADDITIONAL LABOR OR EQUIPMENT AND RENTING ADDITIONAL WATER. THIS
CONSTITUTES AN ADMISSION THAT THE ADDITIONAL WATER CAN BE USED
BENEFICIALLY. UNDER THE RECLAMATION ACT THE SECRETARY WOULD HAVE NO
RIGHT TO SPEND PUBLIC FUNDS AND TO SUPPLY WATER FOR A USE THAT WAS NOT
BENEFICIAL.
" AN INJUNCTION SHOULD ISSUE, THEREFORE, RESTRAINING THE SECRETARY
FROM IMPOSING A RENTAL CHARGE ON ANY WATER WHICH HE DETERMINES MAY BE
USED ON APPELLANTS' LANDS IN ORDER TO PAY CONSTRUCTION COSTS IN THE
RESERVOIR SYSTEM OF THE YAKIMA PROJECT ABOVE THE $52.00 AN ACRE
SPECIFIED IN THE ORIGINAL NOTICE.
"* * * THE ORDER SHOULD, THEREFORE, RESTRAIN THE SECRETARY FROM
MAKING THAT TENTATIVE DETERMINATION OF APPELLANTS' RIGHTS TO RECEIVE
WATER BY CONSTRUING THEIR APPLICATIONS AS CONTRACTS WITH THE
GOVERNMENT.'
WHILE IT MAY BE SHOWN THAT THERE ARE A NUMBER OF DISTINCTIONS BETWEEN
THE FACTS IN THE FOX CASE AND THOSE INVOLVED IN THE CLAIM AGAINST THE
ENTERPRISE DISTRICT AND THE OTHER PARTIES MENTIONED IN YOUR LETTER, IT
IS AT LEAST EXTREMELY DOUBTFUL WHETHER THEY ARE SUFFICIENT TO AVOID THE
APPLICATION OF THE ESSENTIAL PRINCIPLES THERE STATED. IN THE
CIRCUMSTANCES, WE CONCUR IN YOUR VIEW THAT IT WOULD NOT BE IN THE
INTEREST OF THE GOVERNMENT TO ATTEMPT COLLECTION BY JUDICIAL PROCEEDINGS
OF THE AMOUNTS CLAIMED, AND YOU ARE THEREFORE ADVISED THAT THE CHARGES
MAY BE CANCELLED.
B-126678, SEP. 4, 1956
TO MR. JOHN E. MARTIN:
YOUR LETTER OF JULY 10, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED
JUNE 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR YOUR DEPENDENTS' TRAVEL
(WIFE AND MINOR DAUGHTER) FROM SANTIAGO, CHILE, TO OAKLAND, CALIFORNIA,
DURING THE PERIOD DECEMBER 31, 1954, TO JANUARY 6, 1955.
THE TRAVEL WAS PERFORMED PURSUANT TO INVITATIONAL TRAVEL ORDERS OF
HEADQUARTERS UNITED STATES ARMY CARIBBEAN, FORT AMADOR, CANAL ZONE,
DATED DECEMBER 30, 1954, ISSUED WHILE YOU WERE ON ACTIVE DUTY AS A
COMMISSIONED OFFICER OF THE UNITED STATES ARMY RESERVE AND STATIONED AT
SANTIAGO. THE ORDERS STATED THAT YOUR WIFE AND DAUGHTER WERE AUTHORIZED
AND INVITED, AS YOUR LEGAL DEPENDENTS, TO PROCEED BY COMMERCIAL AIRCRAFT
ON OR ABOUT JANUARY 3, 1955, FROM SANTIAGO TO THE CANAL ZONE, AND THAT
ON OR ABOUT JANUARY 5, 1955, THEY WERE AUTHORIZED AND INVITED TO PROCEED
TO BROOKLEY AIR FORCE BASE, ALABAMA, VIA MILITARY AIRCRAFT, IT BEING
INDICATED THAT THE MOVEMENT WAS AUTHORIZED UNDER THE PROVISIONS OF
PARAGRAPH 7009-3, ITEM 7, OF THE JOINT TRAVEL REGULATIONS, AS AMENDED,
PRIOR TO YOUR TRANSFER TO THE UNITED STATES. IT WAS STATED FURTHER THAT
TRAVEL OF YOUR DEPENDENTS BEYOND THE PORT OF DEBARKATION WOULD NOT BE
FURNISHED PRIOR TO YOUR MOVEMENT UNDER PERMANENT CHANGE OF STATION
ORDERS. YOUR DEPENDENTS TRAVELED FROM SANTIAGO TO OAKLAND, CALIFORNIA,
BY WAY OF BROOKLEY AIR FORCE BASE, DURING THE PERIOD DECEMBER 31,
1954, TO JANUARY 6, 1955. YOUR CLAIM COVERS THAT PART OF THE TRAVEL
FROM SANTIAGO TO THE CANAL ZONE AND FROM BROOKLEY AIR FORCE BASE TO
OAKLAND WHICH WAS PERFORMED BY COMMERCIAL AIRCRAFT AT YOUR EXPENSE. IT
APPEARS THAT YOUR DUTY STATION AT SANTIAGO REMAINED UNCHANGED UNTIL THE
ISSUANCE OF TRAVEL ORDERS DATED FEBRUARY 11,
1955, WHICH RELIEVED YOU OF THAT ASSIGNMENT.
AS WE EXPLAINED IN OUR SETTLEMENT OF JUNE 29, 1956, ORDINARILY
TRANSPORTATION OF DEPENDENTS IS AUTHORIZED ONLY AFTER ISSUANCE OF CHANGE
OF STATION ORDERS FOR THE MEMBER CONCERNED. IN ADDITION TO THE
AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT
PUBLIC EXPENSE ON THE BASIS OF A PERMANENT CHANGE OF DUTY STATION,
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
PROVIDES THAT WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR
THE MEMBER CONCERNED HAVE NOT BEEN ISSUED OR WHEN ORDERS ARE OF SUCH
NATURE AS TO NOT AUTHORIZE TRANSPORTATION OF DEPENDENTS THE SECRETARIES
CONCERNED MAY, NEVERTHELESS, AUTHORIZE THE MOVEMENT OF THE DEPENDENTS AT
GOVERNMENT EXPENSE "ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES.'
REGULATIONS PROVIDING FOR TRANSPORTATION OF DEPENDENTS FROM STATIONS
OUTSIDE THE UNITED STATES ISSUED PURSUANT TO THAT AUTHORITY ARE
CONTAINED IN PARAGRAPH 7009 OF THE JOINT TRAVEL REGULATIONS.
THE INTENT OF PARAGRAPH 7009, IT IS STATED, IS TO COVER SITUATIONS
NOT OTHERWISE SPECIFICALLY PROVIDED FOR WHERE MOVEMENT OF DEPENDENTS
FROM AN OVERSEAS COMMAND MUST BE ACCELERATED FOR REASONS
CONSIDERED TO BE IN THE BEST INTEREST OF THE SERVICE. SUBPARAGRAPH
7009-3 PROVIDES THAT, UPON THE REQUEST OF A MEMBER OTHERWISE ENTITLED TO
TRANSPORTATION OF DEPENDENTS, ORDERS MAY BE ISSUED AUTHORIZING ADVANCE
RETURN OF HIS DEPENDENTS TO THE UNITED STATES PROVIDED THE ORDERS
SPECIFICALLY LIMIT THE TRANSPORTATION TO BE FURNISHED TO TRANSPORTATION
FROM THE OVERSEAS STATION TO THE PORT OF DEBARKATION IN THE UNITED
STATES, AND STATE THAT TRANSPORTATION BEYOND THAT POINT WILL NOT BE
FURNISHED UNTIL AFTER THE RETURN OF THE MEMBER UNDER PERMANENT CHANGE OF
STATION ORDERS. LISTED AS AMONG THE REASONS FOR AUTHORIZING
TRANSPORTATION UNDER THE SUBPARAGRAPH ARE SEVEN SUGGESTED CATEGORIES.
CATEGORY NO. 7, THE REASONS CITED IN THE ORDERS OF DECEMBER 30, 1954,
FOR YOUR DEPENDENTS' TRAVEL, IS "FINANCIAL DIFFICULTIES.' THERE IS NO
REQUIREMENT IN THE REGULATION THAT THE REASON ASSIGNED FOR THE TRAVEL BE
FOUNDED UPON UNUSUAL OR EMERGENCY CIRCUMSTANCES AS REQUIRED BY SECTION
303 (C) OF THE CAREER COMPENSATION ACT OF 1949.
AS STATED IN OUR SETTLEMENT, THE TERM "FINANCIAL DIFFICULTIES,"
STANDING ALONE, DOES NOT CONSTITUTE A SHOWING OF UNUSUAL OR EMERGENCY
CIRCUMSTANCES REQUIRING THE MOVEMENT OF DEPENDENTS INDEPENDENTLY OF THE
MEMBER AS CONTEMPLATED BY SECTION 303 (C) SINCE SUCH DIFFICULTIES MAY
NOT HAVE ARISEN BECAUSE OF THE OVERSEAS ASSIGNMENT OR MAY NOT HAVE BEEN
OTHER THAN THE FINANCIAL DIFFICULTIES A MEMBER AND HIS DEPENDENTS WERE
EXPERIENCING IN THE UNITED STATES BEFORE THE OVERSEAS ASSIGNMENT. IN
THE ABSENCE OF UNUSUAL OR EMERGENCY CONDITIONS AS CONTEMPLATED BY THE
STATUTE, THERE IS NO AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS AT
GOVERNMENT EXPENSE PRIOR TO THE ISSUANCE OF ORDERS FOR THE MEMBER'S
CHANGE OF STATION REGARDLESS OF THE REASONS THAT MAY BE ASSIGNED IN THE
ORDERS AS NECESSITATING THE TRAVEL.
ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT YOUR DEPENDENTS' TRAVEL
WAS AUTHORIZED BECAUSE OF UNUSUAL OR EMERGENCY CIRCUMSTANCES AS
CONTEMPLATED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949,
THERE IS NO LEGAL BASIS FOR REIMBURSEMENT TO YOU OF THE COST OF THEIR
TRAVEL.
B-127144, SEP. 4, 1956
TO THE BALTIMORE AND OHIO RAILROAD COMPANY:
CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST, PER FILE USO
BILL-0108145-CNS, FOR REVIEW OF THE SETTLEMENT OF FEBRUARY 8, 1956,
WHICH DISALLOWED YOUR CLAIM FOR $73.84, ALLEGED TO BE THE BALANCE DUE ON
YOUR BILL NO. 0108145 IN CONNECTION WITH BILL OF LADING WV-1875572 WHICH
COVERED A CARLOAD SHIPMENT OF WATER-PROOFED COTTON CLOTH, WEIGHING
30,693 POUNDS, TRANSPORTED FROM WHARTON, NEW JERSEY, TO SHELBY, OHIO, ON
AUGUST 10, 1951.
THE RECORD INDICATES THAT THE BALTIMORE AND OHIO RAILROAD COMPANY
BILLED AND THE DEPARTMENT OF THE ARMY PAID $448.12 FOR THIS
TRANSPORTATION SERVICE, BASED ON A CLASS K-26 RATE OF $1.46 PER 100
POUNDS. IN THE AUDIT OF THE PAYMENT VOUCHER, OUR TRANSPORTATION
DIVISION DETERMINED THAT THE ALLOWABLE FREIGHT CHARGES ON THIS SHIPMENT
WERE $355.86, BASED ON A CLASS-50 RATE ON THE FIRST 20,000 POUNDS AND A
CLASS-40 RATE ON 10,693 POUNDS, THE WEIGHT IN EXCESS OF 20,000 POUNDS.
THESE RATINGS ARE EXCEPTIONS TO THE OFFICIAL CLASSIFICATION RATING FOR
COTTON PIECE GOODS, FINISHED, AND OTHER ARTICLES DESCRIBED THEREIN,
INCLUDING WATER-PROOFED COTTON CLOTH, AND ARE PUBLISHED IN ITEM NO.
3251-C AND LIST NO. 36 OF SUPPLEMENT NO. 209 TO TRUNK LINE FREIGHT
BUREAU TARIFF NO. 90-E, I.C.C. NO. A-848.
IT IS YOUR CONTENTION THAT ON THE DATE OF SHIPMENT THE PROPER RATE
FOR USE IN ASSESSING CHARGES ON THIS SHIPMENT WAS THE CLASS "K-26" RATE,
CARLOAD MINIMUM WEIGHT 30,000 POUNDS, PER ITEM 12640 OF THE CONSOLIDATED
FREIGHT CLASSIFICATION NO. 19, APPLYING ON "CLOTH, COTTON, FIREPROOFED,
OILED OR WATERPROOFED, NOT COATED, NOIBN, IN BOXES OR CRATES, OR IN
WRAPPED BALES OR ROLLS.' THE REASON GIVEN BY YOU IS, IN EFFECT, THAT
LIST NO. 36 IN TARIFF NO. 90-E, AS PUBLISHED IN SUPPLEMENT NO. 209,
EFFECTIVE JULY 1, 1951, PROVIDED ONLY LESS CARLOAD APPLICATION ON
WATER-PROOFED COTTON CLOTH UNTIL SEPTEMBER 29, 1951, ON WHICH DATE, IN
SUPPLEMENT NO. 223, LIST NO. 36 WAS REISSUED TO PROVIDE FOR BOTH CARLOAD
AND LESS CARLOAD RATINGS ON THIS COMMODITY.
THE PRESENT CONTROVERSY IS OVER THE USE OF LIST NO. 36 IN CONNECTION
WITH ITEM 3251-C OF THE ,EXCEPTIONS" TARIFF NO. 90-E. LIST NO. 36 WAS
FIRST PUBLISHED IN SUPPLEMENT NO. 175 OF TARIFF NO. 90-K FOR USE IN
CONNECTION WITH A NEW ITEM, NO. 3251, EFFECTIVE OCTOBER 15, 1950, AND,
IN CONJUNCTION WITH ITEM NO. 3251, PROVIDED BOTH CARLOAD AND LESS
CARLOAD RATINGS ON COTTON PIECE GOODS AND OTHER ARTICLES, INCLUDING
WATER-PROOFED COTTON CLOTH. SUBSEQUENTLY, LIST NO. 36 WAS REISSUED IN
SUPPLEMENT NO. 209, EFFECTIVE JULY 1, 1951, BUT AS REISSUED, LIST NO. 36
PROVIDED ONLY FOR LESS CARLOAD QUANTITIES OF WATER-PROOFED COTTON CLOTH.
AT THE SAME TIME, THE CAPTION TO LIST NO. 36, AS REISSUED IN SUPPLEMENT
NO. 209, PROVIDED FOR THE SHIPMENT OF THE COMMODITIES SHOWN THEREIN IN
"ANY QUANTITY" LOTS. THUS, ITEM 3251-C PROVIDED BOTH CARLOAD AND LESS
CARLOAD RATINGS FOR THE COTTON PIECE GOODS AND OTHER ARTICLES NAMED IN
LIST NO. 36, BUT THE LATTER WAS SHOWN IN THE CAPTION TO COVER ARTICLES
FOR SHIPMENT IN "ANY QUANTITY" LOTS, AND IN THE BODY OF THE "LIST"
SOME OF THE ARTICLES WERE SHOWN TO BE FOR "L.C.L.' (LESS CARLOAD)
SHIPMENT AND OTHERS WERE UNDESIGNATED AS TO CARLOAD, LESS CARLOAD, OR
ANY QUANTITY LOTS.
IN SUPPLEMENT NO. 223 TO TARIFF NO. 90-K, EFFECTIVE SEPTEMBER 29,
1951, LIST NO. 36 AGAIN WAS REISSUED AND THE "ANY QUANTITY" REFERENCE
WAS ELIMINATED FROM THE CAPTION, AS WELL AS ALL REFERENCES TO "L.C.L.'
IN CONNECTION WITH ANY OF THE ARTICLES SHOWN IN THE BODY OF THE "LIST.'
THIS HAD THE EFFECT OF RESTORING TO THE ARTICLES NAMED IN LIST NO. 36
THE APPLICABILITY OF BOTH THE CARLOAD AND LESS CARLOAD RATINGS PUBLISHED
IN ITEM 3251-C TO THE SAME EXTENT AS ORIGINALLY PUBLISHED IN SUPPLEMENT
NO. 175.
THE RECORD SHOWS CLEARLY THAT THE FAILURE TO PROVIDE FOR THE
APPLICATION OF THE CARLOAD RATING IN THE REISSUE OF LIST NO. 36 IN
SUPPLEMENT NO. 209 OF THE "EXCEPTIONS" TARIFF NO. 90-K, AND THE
AMBIGUITY OF THE TARIFF PROVISIONS CREATED BY THE CHANGE IN LIST NO.
36, WERE DUE TO A CLERICAL ERROR ON THE PART OF THE TARIFF PUBLISHING
AGENT, AND THAT THERE WAS NO INTENTION TO OMIT THE CARLOAD APPLICATION
OR CHANGE ANY OF THE OTHER PROVISIONS IN THE REISSUING OF THE "LIST.'
THE INTENTION TO CONTINUE THE CARLOAD RATINGS IS SHOWN BY THE
APPLICATION OF SEPTEMBER 13, 1951, FILED BY THE TRUNK LINE TERRITORY
TARIFF BUREAU WITH THE INTERSTATE COMMERCE COMMISSION REQUESTING
PERMISSION TO AMEND LIST NO. 36, AS SHOWN IN SUPPLEMENT NO. 209, BY (1)
CHANGING THE HEADING TO READ "COTTON PIECE GOODS, FINISHED AND OTHER
ARTICLES, MADE WHOLLY OF COTTON, UNLESS OTHERWISE SPECIFICALLY PROVIDED,
VIZ. :" AND (2) ELIMINATING THE LETTERS "L.C.L.' SHOWN NINE TIMES IN
CONNECTION WITH THE DESCRIPTION OF THE COMMODITIES,"THEREBY CORRECTING
CLERICAL ERROR.' THE APPLICATION CONTAINED A STATEMENT OF THE FOLLOWING
FACTS AS PRESENTING CERTAIN SPECIAL CIRCUMSTANCES AND CONDITIONS
JUSTIFYING THE REQUEST:
"EFFECTIVE JULY 1, 1951, SUPPLEMENT NO. 209 CANCELLED SUPPLEMENT 175.
WHEN BRINGING FORWARD LIST 36 CONTAINED ON PAGE 29 OF SUPPLEMENT NO.
175, THROUGH ERROR, THE COMPILER USED THE HEADING AND COMMODITY
DESCRIPTION SHOWN IN LIST 30 ON PAGE 28 OF SUPPLEMENT 175.
"LIST 36 IS USED IN CONNECTION WITH ITEM 3251-C AND THE CLASS RATINGS
CONTAINED IN ITEM 3251-C APPLY FOR BOTH L.C.L. TRAFFIC AND C.L. TRAFFIC.
THIS ERROR HAS THE EFFECT OF ELIMINATING THE C.L.
APPLICATION WHEREVER L.C.L. IS SHOWN IN LIST 36.'
ON THE BASIS OF THIS APPLICATION, THE INTERSTATE COMMERCE COMMISSION,
BY PERMISSION ORDER NO. 51306 OF SEPTEMBER 18, 1951, AS AMENDED,
GRANTED THE TARIFF PUBLISHING AGENT AUTHORITY TO ISSUE ON ONE DAY'S
NOTICE THE CORRECTED LIST NO. 36, SHOWN IN SUPPLEMENT NO. 223,
EFFECTIVE SEPTEMBER 29, 1951.
THUS, IT SEEMS THAT THE INCLUSION OF THE "L.C.L.' DESIGNATION IN
CONNECTION WITH THE DESCRIPTION OF WATER-PROOF CLOTH IN LIST NO. 36,
AND THE ADDITION OF THE "ANY QUANTITY" CLAUSE IN THE CAPTION OF THAT
"LIST"--- BOTH OF WHICH WERE INCLUDED IN LIST NO. 36 BETWEEN JULY 1,
1951, AND SEPTEMBER 29, 1951--- WERE SIMPLY A TARIFF COMPILER'S ERRORS,
AND AT NO TIME WAS THERE ANY INTENTION TO PUT INTO EFFECT A CANCELLATION
OF THE CARLOAD RATINGS ON WATER-PROOF CLOTH. ALTHOUGH THE SHIPMENT
INVOLVED IN THIS CASE MOVED BETWEEN JULY 1, 1951, AND SEPTEMBER 29,
1951, THE CARLOAD BASIS SEEMS PROPER FOR APPLICATION, SINCE THE
CONTRADICTORY PROVISIONS OF ITEM 3251-C AND LIST NO. 36 RESULT IN SUCH
AN AMBIGUITY THAT THE CONSTRUCTION MOST FAVORABLE TO THE SHIPPER SHOULD
BE APPLIED. RAYMOND CITY COAL AND TRANS. CORP. V. NEW YORK CENTRAL R.R.
CO., 103 F.2D 56; BURRUG MILL AND ELEV. CO. V. CHICAGO R.I. AND P.R.R.
CO., 131 F.2D 532, 535. ALSO, IN MANY INSTANCES, WHERE THE FACTS
JUSTIFIED SUCH A CONCLUSION, THE INTERSTATE COMMERCE COMMISSION HAS HELD
THAT THE LOWER RATE WAS PROPER FOR USE IN COMPUTING CHARGES WHEN A
HIGHER RATE BECAME APPLICABLE THROUGH MISTAKE OR TARIFF ERROR. IN THIS
CONNECTION, SEE RUSSELL AND RUSSELL GRAIN COMPANY V. ATCHISON, T. AND
S.F.RY. CO., 237 I.C.C. 691, 693; LONG ISLAND PROD. AND FERTZ. CO.,
INC. V. OCEAN S.S. CO. OF SAVANNAH, 237 I.C.C. 605, 608; AMERICAN
WOOLEN CO. V. B. AND M. R.R. CO., 237 I.C.C. 186, 188; GLIDDEN CO. V.
C. AND O. RY. CO., 229 I.C.C. 599, 601.
ACCORDINGLY, FOR THE REASONS STATED ABOVE, THE SETTLEMENT IS
SUSTAINED.
B-127374, SEP. 4, 1956
TO FRED C. SCRIBNER, JR., GENERAL COUNSEL, DEPARTMENT OF THE
TREASURY:
BEFORE THIS OFFICE FOR CONSIDERATION IS A CLAIM OF THE LEHIGH VALLEY
RAILROAD COMPANY INVOLVING AN OFFER OF COMPROMISE ARISING OUT OF THE
LOSS OF ONE CARTON OF CLOTHING TRANSPORTED. THE FOLLOWING REPORT IS
PRESENTED TO YOU FOR FORWARDING, WITH YOUR RECOMMENDATION TO THE
SECRETARY OF THE TREASURY, AS PROVIDED IN 31 U.S.C. 194, AND REGULATIONS
OF THE TREASURY DEPARTMENT, 31 C.F.R. 240.0-240.5.
THE CARTON OF CLOTHING, LISTED AS WEIGHING 110 POUNDS, WAS TENDERED
BY THE TRAFFIC OFFICE, SUFFOLK COUNTY ARMY AIR FORCE, LONG ISLAND, NEW
YORK, TO THE LONG ISLAND RAILROAD FOR TRANSPORTATION FROM WESTHAMPTON,
NEW YORK, TO ROYCE, NEW JERSEY, ON GOVERNMENT BILL OF LADING NO.
WV-863220, DATED APRIL 12, 1945. ON DELIVERY AT ROYCE, NEW JERSEY, BY
THE LEHIGH VALLEY RAILROAD ON APRIL 28, 1945, THE ASSISTANT
TRANSPORTATION OFFICER INDORSED THE REVERSE OF THE BILL OF LADING THAT
THERE WAS SHORT ONE CARTON OF CLOTHING CONTAINING NINE WOOLEN OVERCOATS.
THE VALUE OF THE LOSS WAS ASSESSED AT $105.57, WHICH WAS DEDUCTED FROM
THE CARRIER'S BILL NO. 95817, IN JUNE 1945.
ON MAY 24, 1945, THE CARRIER WAS ADVISED THAT THE ESTIMATE OF LOSS
WAS REVISED UPWARD TO AN AMOUNT OF $575.43, ON THE BASIS OF A WAR
DEPARTMENT SHIPPING DOCUMENT PREPARED BY THE ASSISTANT GENERAL SUPPLY
OFFICER, SUFFOLK COUNTY AIR FIELD, ON APRIL 10, 1945, SHOWING THE
MISSING CARTON TO HAVE CONTAINED 41 WOOLEN OVERCOATS, AND 42 PAIRS OF
TROUSERS. THE ADDITIONAL $469.86 WAS DEDUCTED ON JULY 28, 1945, FROM
MONEY OTHERWISE OWING TO THE CARRIER. THE CARRIER ADMITTED LIABILITY
FOR THE VALUE OF THE LOST CARTON OF CLOTHING IN A LETTER DATED MAY 8,
1953, BUT PROTESTED THE DEDUCTION OF THE ADDITIONAL $469.86. IN A
LETTER DATED FEBRUARY 17, 1954, THE CARRIER AGAIN PROTESTED THE
ADDITIONAL DEDUCTION ASSERTING THAT IF THE CARTON HAD CONTAINED 41
OVERCOATS AND 42 PAIRS OF TROUSERS AS CLAIMED BY THE DEPARTMENT OF THE
ARMY, IT WOULD HAVE WEIGHED MORE THAN THE 110 POUNDS LISTED ON THE
ORIGINAL BILL OF LADING, BUT NEVERTHELESS OFFERED TO COMPROMISE ITS
CLAIM FOR 50 PERCENT, AND TRANSMITTED A SUPPLEMENTAL BILL FOR $234.93.
THE DEPARTMENT OF THE ARMY TRANSMITTED THE CLAIM TO OUR OFFICE ON
APRIL 28, 1954, WITH A RECOMMENDATION THAT THE OFFER BE ACCEPTED. ON
THE BASIS OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE OCCURRENCE OF
THE SHORTAGE INVOLVED, AS REFLECTED IN THE RECORD, COPY HEREWITH, AND IN
VIEW OF THE LAPSE OF TIME, AS WELL AS THE DOUBT AS TO THE NUMBER OF
ITEMS CONTAINED IN THE LOST CARTON OF CLOTHING, WE RECOMMEND THAT THE
OFFER BE ACCEPTED.
THE OFFER OF COMPROMISE WAS NOT ACCOMPANIED BY CHECK, DRAFT, OR MONEY
ORDER FOR THE AMOUNT OF THE OFFER AS REQUIRED BY THE REGULATIONS OF THE
TREASURY DEPARTMENT CIRCULAR 39 (REVISED), 31 C.F.R. 240.4, FOR THE
REASON THAT THE GOVERNMENT IS PRESENTLY IN POSSESSION OF MONEY OTHERWISE
OWING TO THE CARRIER IN TWICE THE AMOUNT OF THE OFFER. IN THE EVENT THE
SECRETARY OF THE TREASURY
CONCLUDES TO ACCEPT THE CARRIER'S COMPROMISE OFFER, WE WILL CERTIFY
FOR PAYMENT TO THE CARRIER THE EXCESS DEDUCTED BY THE DISBURSING OFFICER
BECAUSE OF THE REPORTED DAMAGE. WHILE THE CLAIM OF THE CARRIER WAS
BARRED FROM SUIT AT THE TIME IT WAS TRANSMITTED TO US, IT WAS RECEIVED
HERE WITHIN THE TEN-YEAR PERIOD AUTHORIZED FOR CONSIDERATION OF CLAIMS
BY US, AS PROVIDED IN 31 U.S.C. 71A.
ACTION UPON THE CARRIER'S CLAIM FOR THE EXCESS, DEDUCTED BY THE
DISBURSING OFFICER, ABOVE THE AMOUNT OF ITS COMPROMISE OFFER, WILL BE
HELD IN ABEYANCE HERE PENDING NOTICE OF THE ACCEPTANCE OR REJECTION OF
THE OFFER.
B-127927, SEP. 4, 1956
TO DR. WINFRED OVERHOLSER, SUPERINTENDENT, SAINT ELIZABETHS HOSPITAL:
REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1956, FORWARDING FOR
DIRECT SETTLEMENT BY THIS OFFICE A VOUCHER IN THE AMOUNT OF $1,537.53,
REPRESENTING THE BALANCE OF FUNDS ON DEPOSIT AT SAINT
ELIZABETHS HOSPITAL TO THE CREDIT OF ELIZABETH MAINWARING, NO.
61,181, DECEASED, AND PROPOSED TO BE PAID TO THE TREASURER OF THE UNITED
STATES PURSUANT TO 24 D.C. CODE 301 IN PARTIAL PAYMENT OF BOARD AND
CARE DURING THE PERIOD MARCH 11, 1948, TO MARCH 1, 1956.
YOUR LETTER STATES THAT FUNERAL EXPENSES IN THE AMOUNT OF $450 HAVE
BEEN PAID FROM PERSONAL FUNDS OF THE DECEASED, THAT YOU HAVE NO
KNOWLEDGE OF OTHER FUNDS WHICH MAY BE CONTAINED IN HER ESTATE, AND THAT
THE HOSPITAL RECORDS INDICATE THE NEAREST RELATIVE OF THE DECEASED IS A
SON, WHO IS A PATIENT AT THE HOSPITAL. ACCORDINGLY, TO INSURE BURIAL OF
THE SON IN THE CEMETERY SITE PURCHASED BY THE MOTHER PRIOR TO HER
ADMISSION, YOU REQUEST OUR CONSIDERATION OF ESTABLISHING A BURIAL FUND
FOR THE SON IN THE AMOUNT OF $450 BY WITHHOLDING SUCH AMOUNT FROM THE
PAYMENT OF $1,537.53, TO THE TREASURER OF THE UNITED STATES TO BE
ACCOMPLISHED ON THE VOUCHER FORWARDED WITH YOUR LETTER.
SINCE THE VOUCHER WOULD AUTHORIZE PAYMENT OF ALL PERSONAL FUNDS
PRESENTLY CREDITED TO THE ACCOUNT OF THE DECEASED, AND YOUR LETTER
RAISES NO QUESTION AS TO THE LEGALITY OF SUCH PAYMENT, THE VOUCHER IS
NOT PROPERLY BEFORE THIS OFFICE FOR DIRECT SETTLEMENT. SEE GENERAL
REGULATIONS NO. 50, REVISED, SUPPLEMENT NO. 4, JUNE 14, 1955 (34 COMP.
GEN. 747). ADDITIONALLY, SINCE THE QUESTION OF APPLYING A PORTION OF
THE PERSONAL FUNDS OF THE DECEASED TO THE ESTABLISHMENT OF A BURIAL FUND
FOR THE SON DOES NOT APPEAR TO HAVE ARISEN AS A RESULT OF A VOUCHER
PRESENTED TO YOU FOR CERTIFICATION OR PAYMENT, THE QUESTION IS NOT
PROPERLY BEFORE THIS OFFICE FOR AN ADVANCE DECISION UNDER THE PROVISIONS
OF EITHER THE ACT OF JULY 31, 1894, AS AMENDED, 31 U.S.C. 74, OR THE ACT
OF DECEMBER 29, 1941, 31 U.S.C. 82 (D). SEE 22 COMP. GEN. 588; 26 ID.
797, 799.
THIS OFFICE IS WITHOUT AUTHORITY TO AUTHORIZE THE SETTLEMENT OF A
DEBT DUE THE UNITED STATES IN AN AMOUNT LESS THAN THE FULL AMOUNT OF THE
INDEBTEDNESS, AND SINCE THE PERSONAL FUNDS ON DEPOSIT WITH THE HOSPITAL
IN THE INSTANT CASE ARE LESS THAN THE AMOUNT IN WHICH THE ESTATE OF THE
DECEDENT IS INDEBTED TO THE UNITED STATES, IT FOLLOWS THAT WE WOULD BE
UNABLE TO AUTHORIZE THE WITHHOLDING FROM SUCH FUNDS OF AN AMOUNT
OTHERWISE DUE AND PAYABLE TO THE UNITED STATES TO ESTABLISH THE FUND
PROPOSED BY YOUR LETTER.
ACCORDINGLY, THE VOUCHER, TOGETHER WITH THE SUPPORTING BILL FOR CARE
AND TREATMENT, ARE RETURNED FOR COMPLETION OF PAYMENT PROCESSING BY YOUR
AGENCY, IF OTHERWISE CORRECT, IN THE FULL AMOUNT SHOWN THEREON.
B-127936, SEP. 4, 1956
TO LAKE SHORE SYSTEM:
REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 29, 1956, REQUESTING
REVIEW OF THE SETTLEMENT IN CLAIM NO. TK 603556 DATED FEBRUARY 7, 1956,
WHICH DISALLOWED YOUR CLAIM FOR $60 AS AN ADDITIONAL CHARGE FOR
PASSENGER TRANSPORTATION FURNISHED THE DEPARTMENT OF THE ARMY IN JULY
1955, UNDER TRANSPORTATION REQUESTS NOS. M 1,067,549 AND M 1,067,550.
YOUR CLAIM IS FOR CHARGES FOR ADDITIONAL DRIVERS ALLEGED TO HAVE BEEN
FURNISHED IN CARRYING OUT THE CHARTER MOVEMENTS UNDER THE TRANSPORTATION
REQUESTS, THE TERMS OF SUCH CHARTER MOVEMENTS BEING SET FORTH IN CHARTER
COACH ORDERS NOS. M 71763, M 71764, M 71769 AND M 71774. THE BASIS OF
THIS CLAIM IS SHOWN IN YOUR LETTER TO BE SECTION F, ITEM 6/D), OF THE
NORTHEASTERN CHARTER COACH TARIFF NO. A-285-C, MP-I.C.C. NO. 885.
HOWEVER, THIS REFERENCE SEEMS TO BE IN ERROR AND THE CORRECT REFERENCE
TO BE EXCEPTION NO. 2 OF THE LAKE SHORE SYSTEM, SHOWN ON 17TH REVISED
PAGE B-9 OF THE SAME TARIFF, EFFECTIVE APRIL 1, 1955, WHICH PERMITS THE
CARRIER TO ASSESS A CHARGE OF $15 PER DAY WHENEVER IT IS NECESSARY TO
FURNISH AN ADDITIONAL DRIVER BECAUSE OF THE DURATION OF A CHARTER
MOVEMENT. YOU ALSO INDICATE THAT THE RULES AND REGULATIONS OF THE
INTERSTATE COMMERCE COMMISSION REQUIRE THAT CERTAIN DRIVER CONDITIONS BE
MET WITH REGARD TO DRIVING HOURS, AND YOU URGE THAT IF ONLY ONE DRIVER
HAD BEEN USED ON THESE TRIPS IT WOULD HAVE BEEN IN DIRECT VIOLATION OF
THESE RULES AND REGULATIONS.
THE GOVERNMENT TRANSPORTATION REQUESTS PROVIDED ONLY FOR THE
TRANSPORTATION OF CERTAIN ARMY PERSONNEL TO AND FROM LANCASTER AND
LOGAN, OHIO, AND CAMP BRACKINRIDGE, KENTUCKY, AND DID NOT SHOW THAT
ADDITIONAL DRIVERS WERE ORDERED OR REQUIRED, OR THAT ARRIVAL AT THE
VARIOUS DESTINATIONS WAS REQUIRED BY ANY DEFINITE DATES. THE
ACCOMPANYING CHARTER COACH ORDERS, SIGNED BY THE PARTIES TO THE
CHARTERS, ARE MERELY AN ITEMIZATION OF THE CHARGES FOR THE SERVICES
REQUESTED. WHILE THE REGULATIONS OF THE INTERSTATE COMMERCE COMMISSION,
REFERRED TO BY YOU, MAY PROVIDE THE MAXIMUM NUMBER OF HOURS PER DAY THAT
AN INDIVIDUAL DRIVER MAY ACTUALLY OPERATE A VEHICLE THEY, STANDING
ALONE, DO NOT ESTABLISH THAT ADDITIONAL DRIVERS WERE USED OR NEEDED IN
PERFORMING THE CHARTER MOVEMENTS IN QUESTION.
OUR GENERAL REGULATIONS NO. 123 (34 COMP. GEN. 782), PARTICULARLY
PARAGRAPHS 80-87 THEREOF, SETS FORTH THE PROCEDURE FOR USE BY CARRIERS
IN FILING CLAIMS FOR ADDITIONAL AMOUNTS DUE FOR THE TRANSPORTATION OF
PASSENGERS FOR THE ACCOUNT OF THE UNITED STATES, AND PROVIDES THAT SUCH
CLAIMS MUST BE SUPPORTED BY EVIDENTIARY DATA THAT WILL ESTABLISH
SUBSTANTIVELY THE LIABILITY OF THE UNITED STATES FOR THE PAYMENT OF THE
ADDITIONAL AMOUNT CLAIMED. THIS OFFICE DOES NOT SPECIFY THE EXACT
NATURE OF THE EVIDENCE NECESSARY TO SUPPORT A CLAIM, AS THE EVIDENCE
REQUIRED TO PROVE EACH CLAIM MAY DIFFER. CONCERNING THE CLAIM IN
QUESTION, THE RECORD CONTAINS NOTHING BEYOND THE BARE ASSERTION OF YOUR
CLAIM FOR THE ADDITIONAL AMOUNT, AND THE TARIFF ITEM REFERRED TO IN YOUR
SUPPLEMENTAL BILL APPEARS TO HAVE NO APPLICATION TO SERVICES PERFORMED
BY YOU. SEE LAKE SHORE SYSTEM "EXCEPTIONS 2" ON 16TH REVISED PAGE B-9
OF THE CITED TARIFF NO. A-285-C. THUS, THE PRESENT RECORD CONTAINS NO
EVIDENCE WHICH DEMONSTRATES CONCLUSIVELY THAT ADDITIONAL DRIVERS WERE
NECESSARY
AND WERE ACTUALLY USED.
THE BURDEN IS ON CLAIMANTS TO FURNISH THE NECESSARY EVIDENCE TO
CLEARLY AND SATISFACTORILY ESTABLISH THEIR CLAIMS (23 COMP. GEN. 907;
18 ID. 980; 17 ID. 831), AND THE LEGAL LIABILITY OF THE
UNITED STATES FOR THE PAYMENT OF THE ADDITIONAL CHARGES CLAIMED. TH
PRESENT RECORD DOES NOT ESTABLISH THAT ADDITIONAL DRIVERS WERE REQUESTED
BY THE CHARTER PARTY OR WERE DETERMINED TO BE NECESSARY AND WERE
FURNISHED BY THE CARRIER. IN THE ABSENCE OF SUCH EVIDENCE, THIS OFFICE
IS WITHOUT AUTHORITY TO CERTIFY YOUR SUPPLEMENTAL BILL FOR PAYMENT. SEE
CHARLES V. UNITED STATES, 19 C.CLS. 316; LONGWILL V. UNITED STATES, 17
ID. 288.
B-128501, SEP. 4, 1956
TO WAKMANN WATCH COMPANY, INC. :
REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 3, 1956, ADVISING THAT YOU
WERE THE LOWEST QUALIFIED RESPONSIVE BIDDER UNDER INVITATIONS FOR BIDS
NOS. ORD-36-038-56-SP-568 AND ORD-36-038-56-SP-643, ISSUED BY FRANKFORD
ARSENAL, PHILADELPHIA, PENNSYLVANIA, FOR THE PROCUREMENT OF NAVIGATION
TIMER STOP WATCHES AND NAVIGATION HACK WRIST WATCHES, AND QUESTIONING
THE LEGALITY OF CONTRACTS AWARDED TO HIGHER BIDDERS THEREFOR.
UNDER DATE OF AUGUST 22, 1956, THE DEPARTMENT OF THE ARMY REPORTED
THAT YOUR BIDS WERE REJECTED UPON THE ADVICE OF THE DIRECTOR OF DEFENSE
MOBILIZATION, PURSUANT TO SECTION 3 (D) OF EXECUTIVE ORDER NO. 10582,
BECAUSE THE ARTICLES YOU OFFERED WERE NOT MANUFACTURED IN THE UNITED
STATES WITHIN THE MEANING OF THE BUY-AMERICAN ACT, 41 U.S.C. 10 (A) (D).
PROVISION FOR APPLICATION OF THE BUY-AMERICAN ACT TO PURCHASE OF THE
ARTICLES IN QUESTION IS CONTAINED IN STANDARD FORM 32, GENERAL
PROVISIONS (SUPPLY CONTRACT), WHICH WAS INCORPORATED BY REFERENCE INTO
THE GENERAL PROVISIONS OF BOTH OF THE INVITATIONS REFERRED TO. SECTION
3/D) OF EXECUTIVE ORDER NO. 10582, WHICH WAS ISSUED IN IMPLEMENTATION OF
THE BUY-AMERICAN ACT, PROVIDES AS FOLLOWS:
"SEC. 3. NOTHING IN THIS ORDER SHALL AFFECT THE AUTHORITY OR
RESPONSIBILITY OF AN EXECUTIVE AGENCY:
"/D) TO REJECT ANY BID OR OFFER FOR MATERIALS OF FOREIGN ORIGIN IF
SUCH REJECTION IS NECESSARY TO PROTECT ESSENTIAL NATIONAL SECURITY
INTERESTS AFTER RECEIVING ADVICE WITH RESPECT THERETO FROM THE PRESIDENT
OR FROM ANY OFFICER OF THE GOVERNMENT DESIGNATED BY THE PRESIDENT TO
FURNISH SUCH ADVICE.'
BY MEMORANDUM DATED APRIL 7, 1955, THE PRESIDENT ADVISED THE DIRECTOR
OF THE OFFICE OF DEFENSE MOBILIZATION AS FOLLOWS:
"PURSUANT TO SECTION 3/D) OF EXECUTIVE ORDER 10582, DECEMBER 17,
1954, YOU ARE HEREBY DESIGNATED TO FURNISH ADVICE TO EXECUTIVE AGENCIES
WITH RESPECT TO THE REJECTION OF BIDS OR OFFERS TO FURNISH MATERIALS OF
FOREIGN ORIGIN UPON THE GROUND THAT SUCH REJECTION IS NECESSARY TO
PROTECT ESSENTIAL NATIONAL SECURITY INTERESTS.
"IT IS MY CONVICTION THAT EXCEPTIONS UNDER THIS PROVISION OF THE
EXECUTIVE ORDER SHOULD BE MADE ONLY UPON A CLEAR SHOWING THAT THE
PAYMENT OF A GREATER DIFFERENTIAL THAN THE ORDER PROVIDES FOR IS
JUSTIFIED BY CONSIDERATION OF NATIONAL SECURITY.'
THE RECORD FURNISHED BY THE DEPARTMENT OF THE ARMY SHOWS THAT THE
QUESTION OF CONTRACT AWARDS UNDER THESE INVITATIONS WAS SUBMITTED TO THE
DIRECTOR, OFFICE OF DEFENSE MOBILIZATION. UNDER DATE OF JUNE 26, 1956,
THAT OFFICIAL ADVISED THE SECRETARY OF DEFENSE THAT THE THEN CURRENT
PRODUCTION IN THE AMERICAN JEWELED WATCH INDUSTRY DID NOT APPEAR TO BE
SUFFICIENTLY HIGH TO PROVIDE A FULLY ADEQUATE MOBILIZATION BASE AND IT
WAS THEREFORE HIS OPINION THAT BIDS PROPOSING FULFILLMENT OF THE
INVITATION REQUIREMENTS WITH MATERIALS OF FOREIGN ORIGIN SHOULD BE
REJECTED IN THE INTEREST OF
NATIONAL SECURITY.
ON THE BASIS OF THE PRESENT RECORD, THE PROCEDURES OF THE
ADMINISTRATIVE AGENCIES IN THIS MATTER APPEAR TO HAVE BEEN IN ACCORDANCE
WITH AND ADEQUATELY AUTHORIZED BY LAW. IT IS THEREFORE APPARENT THAT
THERE IS NO BASIS ON WHICH THIS OFFICE MAY QUESTION THE LEGALITY OF
CONTRACT AWARDS TO THE LOWEST QUALIFIED BIDDERS OFFERING MATERIALS OF
DOMESTIC ORIGIN.
WITH RESPECT TO YOUR REQUEST FOR ADVICE ON THE FUTURE POLICY OF THE
GOVERNMENT IN THE PROCUREMENT OF CLOCKS AND WATCHES, IT IS SUGGESTED
THAT YOUR INQUIRY BE DIRECTED TO THE DIRECTOR, OFFICE OF DEFENSE
MOBILIZATION, WASHINGTON 25, D.C.
B-128520, SEP. 4, 1956
TO MAJOR EWALD C. BRAEUNIG:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1956, WITH
ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL
COMPENSATION BELIEVED TO BE DUE BY REASON OF EXCESS ACCRUED LEAVE AS OF
AUGUST 31, 1946, UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF
1946, AS AMENDED, 37 U.S.C. 31A. YOUR CLAIM WAS DISALLOWED BY OUR
SETTLEMENT DATED MAY 31, 1956, FOR THE REASON THAT THE RECORDS FAIL TO
SHOW THAT YOU PRESENTED A FORMAL CLAIM TO THE SECRETARY OF WAR NOT LATER
THAN THE TERMINAL DATE, JUNE 30, 1951, SET FORTH IN THE STATUTE.
YOU CONTEND THAT IN THE LATTER PART OF AUGUST 1946 YOU PRESENTED A
CLAIM TO YOUR LOCAL HEADQUARTERS--- AIR DIVISION, NANKING HEADQUARTERS
COMMAND, NANKING, CHINA--- FOR PAYMENT FOR LEAVE IN EXCESS OF 60 DAYS AS
PROVIDED IN THE ARMED FORCES LEAVE ACT OF 1946, BUT THAT THE CLAIM WAS
DENIED AND RETURNED TO YOU ON THE BASIS THAT LEAVE USED UPON RELEASE AS
A PRISONER OF WAR REDUCED YOUR ACCRUED LEAVE TO BELOW 60 DAYS, AND
CONSEQUENTLY, YOU HAD NO EXCESS UNUSED LEAVE.
THE ORIGINAL REGULATIONS ISSUED BY THE WAR DEPARTMENT, CONTAINED IN
WAR DEPARTMENT CIRCULAR NO. 251, DATED AUGUST 20, 1946, RELATIVE TO
CLAIMS BY COMMISSIONED OFFICERS FOR PAYMENT FOR EXCESS LEAVE PROVIDED
THAT APPLICATION THEREFOR WOULD BE FILED AS SOON AS POSSIBLE AFTER
AUGUST 31, 1946, WITH THE DISBURSING OFFICER PAYING THE OFFICER FOR
AUGUST 1946, AND THAT THE DISBURSING OFFICER WOULD MAKE THE NECESSARY
COMPUTATIONS, COMPLETE THE APPLICATION, PREPARE THE APPROPRIATE
VOUCHERS, AND FORWARD THE PAPERS TO THE ARMY FINANCE CENTER IN ST.
LOUIS, MISSOURI. A COPY OF THE APPLICATION WAS REQUIRED TO BE PREPARED
FOR THE APPLICANT'S FILES. THESE INSTRUCTIONS WERE SUPERSEDED BY
SPECIAL REGULATIONS NO. 35-3910-5, DATED JULY 10, 1950 (AFR 173-114, 11
JULY 1950), WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:
"* * * OFFICERS WHO WERE ON ACTIVE DUTY ON 1 SEPTEMBER 1946 AND ARE
NOW ON ACTIVE DUTY, AND WHO HAVE NOT MADE APPLICATION FOR AND RECEIVED
SETTLEMENT UNDER THE ARMED FORCES LEAVE ACT OF 1946, AS
AMENDED, SHOULD MAKE APPLICATION THEREFOR DIRECT TO THE FINANCE
OFFICER, ST. LOUIS FINANCE OFFICE, U.S. ARMY, ARMY FINANCE CENTER,
BUILDING 205, ST. LOUIS 20, MISSOURI.'
IN YOUR LETTER OF APRIL 13, 1955, TO THE AIR FORCE FINANCE CENTER,
SETTLEMENTS DIVISION, YOU STATE THAT YOUR ORIGINAL "CLAIM" WAS PRESENTED
TO THE PERSONNEL SECTION OF YOUR UNIT, WHILE STATIONED IN NANKING,
CHINA, AND THAT IT WAS THIS PERSONNEL SECTION THAT DISALLOWED YOUR
CLAIM. THE ADMINISTRATIVE RECORDS FAIL TO DISCLOSE THE RECEIPT OF SUCH
CLAIM OR OFFICIAL CORRESPONDENCE RELATING TO ITS DISALLOWANCE. SUCH A
CLAIM AS MAY HAVE BEEN PRESENTED BY YOU AT THAT TIME TO THE PERSONNEL
SECTION MAY NOT BE CONSIDERED ONE CONTEMPLATED BY THE REGULATIONS WHICH
SPECIFICALLY REQUIRED THAT THE CLAIM BE PRESENTED IN A PARTICULAR MANNER
AS SET OUT ABOVE.
ACCORDINGLY, IN VIEW OF THE RECORD AS IT APPEARS HERE, IT CANNOT BE
CONSIDERED THAT YOU MADE A TIMELY CLAIM FOR PAYMENT OF EXCESS ACCRUED
LEAVE AS OF AUGUST 31, 1946, IN A MANNER CONTEMPLATED BY REGULATIONS AND
THE SETTLEMENT OF MAY 31, 1956, UPON REVIEW, IS SUSTAINED.
B-128533, SEP. 4, 1956
TO ANTHONY S. BARRASSO, SFC, U.S. ARMY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 20, 1956, REQUESTING
REVIEW OF OUR SETTLEMENT OF JUNE 1, 1956, WHICH DISALLOWED YOUR CLAIM
FOR $475.20 REPRESENTING AN AMOUNT YOU WERE REQUIRED TO REFUND TO THE
GOVERNMENT AS AN OVERPAYMENT OF PER DIEM RECEIVED INCIDENT TO THE
PERFORMANCE OF TEMPORARY DUTY DURING THE PERIOD FROM DECEMBER 11, 1954,
TO MARCH 28, 1955.
THE TEMPORARY DUTY INVOLVED WAS PERFORMED BY YOU AND OTHER DESIGNATED
ENLISTED AND OFFICER PERSONNEL AT THE SUFFIELD EXPERIMENTAL STATION NEAR
RALSTON, ALBERTA, CANADA, UNDER DEPARTMENT OF THE ARMY TELEGRAPHIC
ORDERS DATED NOVEMBER 17, 1954. WHILE AT THAT STATION YOU RESIDED IN
QUARTERS OPERATED BY THE CANADIAN GOVERNMENT WHICH WERE MADE AVAILABLE
TO YOU AND OTHER ENLISTED PERSONNEL AT A COST OF $0.25 PER DAY AND TO
OFFICERS FOR $0.75 PER DAY. IN VIEW OF THAT CIRCUMSTANCE YOU WERE
REQUIRED TO REFUND 40 PERCENT OF THE PER DIEM YOU HAD BEEN PAID FOR THE
PERIOD IN QUESTION. SUCH ACTION WAS TAKEN UNDER THE PROVISIONS OF
PARAGRAPH 4254-1 OF THE JOINT TRAVEL REGULATIONS (WHICH REQUIRES THAT
REDUCTION FROM THE AUTHORIZED TRAVEL PER DIEM RATE WHEN GOVERNMENT
QUARTERS ARE UTILIZED) ON THE BASIS THAT YOU HAD BEEN FURNISHED
GOVERNMENT QUARTERS WITHIN THE CONTEMPLATION OF GOVERNING REGULATIONS.
PARAGRAPH 1150-5 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM
"GOVERNMENT QUARTERS" TO INCLUDE, AMONG OTHER THINGS, ANY SLEEPING
ACCOMMODATIONS "FURNISHED BY A FOREIGN GOVERNMENT EITHER UNDER AGREEMENT
WITH THE UNITED STATES OR ON A COMPLIMENTARY BASIS.' MILITARY PERSONNEL
OCCUPYING QUARTERS OWNED BY A FOREIGN GOVERNMENT--- WHETHER INITIALLY
FURNISHED TO THE UNITED STATES GOVERNMENT FOR REASSIGNMENT TO THE USE OF
SUCH PERSONNEL, OR FURNISHED DIRECTLY TO THE PERSONNEL BY THE FOREIGN
GOVERNMENT--- WHERE NO CHARGE, OR ONLY A TOKEN CHARGE, IS MADE, ARE
CONSIDERED TO HAVE BEEN FURNISHED GOVERNMENT QUARTERS FOR PER DIEM
PURPOSES UNDER THOSE REGULATIONS.
IN A COMMUNICATION DATED APRIL 25, 1955, COLONEL DONALD D. BODE,
COMMANDING OFFICER AT HEADQUARTERS, DUGWAY PROVING GROUND, UTAH, WHICH
APPARENTLY WAS YOUR PERMANENT STATION DURING THE PERIOD IN QUESTION,
REFERRING TO THE AVAILABILITY OF QUARTERS AT THE SUFFIELD EXPERIMENTAL
STATION FOR THE GROUP OF WHICH YOU WERE A PART, STATED AS FOLLOWS:
"I PERSONALLY VISITED THIS STATION PRIOR TO SENDING A TEST TEAM
THERE. ARRANGEMENTS WERE MADE FOR QUARTERS ON THE STATION FOR U.S. ARMY
ENLISTED MEN AT A NOMINAL FEE OF 25 CENTS PER DAY. NO ARRANGEMENTS WERE
MADE FOR OFFICERS. * * *"
SINCE IT APPEARS THAT YOU OCCUPIED QUARTERS AT THE EXPERIMENTAL
STATION FURNISHED TO YOU BY THE CANADIAN GOVERNMENT PURSUANT TO
ARRANGEMENTS MADE WITH OFFICIALS OF THAT GOVERNMENT, INVOLVING BUT A
TOKEN CHARGE OF $0.25 PER DAY, IT IS CONCLUDED THAT YOU WERE IN FACT
FURNISHED GOVERNMENT QUARTERS FOR PER DIEM PURPOSES UNDER THE CITED
PROVISIONS OF THE JOINT TRAVEL REGULATIONS. THE CHARGE OF $0.25 PER DAY
MAY NOT BE CONSIDERED A CHARGE FOR THE QUARTERS THEMSELVES, BUT RATHER
APPEARS TO HAVE BEEN A SERVICE CHARGE. CONSEQUENTLY THERE IS NO
AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF
JUNE 1, 1956, IS SUSTAINED.
WITH REFERENCE TO YOUR INQUIRY CONCERNING THE COMPARATIVE RIGHTS OF
OFFICER PERSONNEL IN THE MATTER, YOU ARE ADVISED THAT IF THE OFFICERS
INVOLVED WERE FURNISHED QUARTERS BY THE CANADIAN GOVERNMENT FOR WHICH
CHARGES OF BUT $0.75 PER DAY WERE MADE AS YOU INDICATE, THEIR AUTHORIZED
PER DIEM ALLOWANCE ALSO WOULD HAVE BEEN SUBJECT TO A 40 PERCENT
DEDUCTION UNDER PARAGRAPH 4254-1 OF THE JOINT TRAVEL REGULATIONS. ANY
PER DIEM PAYMENTS MADE TO OFFICER PERSONNEL UNDER THOSE CIRCUMSTANCES
NOT COMPUTED ON THE BASIS THAT GOVERNMENT QUARTERS WERE FURNISHED WOULD
BE ERRONEOUS AND COULD NOT SERVE AS AUTHORITY FOR A SIMILAR PAYMENT IN
YOUR CASE.
ALSO, WITH REFERENCE TO YOUR STATEMENT IN AN INSPECTOR GENERAL
COMPLAINT FORM, DATED MARCH 29, 1956, ON THE SUBJECT OF YOUR CLAIM, THAT
"DURING THE WINTER OF 1953-54 I WAS ALSO ON DUTY (TDY) AT THE CANADIAN
EXPERIMENTAL STATION, DURING THIS TDY ALL PERSONNEL, OFFICERS AND EM
ALIKE, RECEIVED THE CORRECT AMOUNT, $11.00 PER DAY," YOU ARE ADVISED
THAT EVIDENCE ON FILE IN YOUR CASE INDICATES THAT THE SAME QUARTERS USED
DURING THE PERIOD HERE IN QUESTION ALSO WERE USED DURING THE 1953-54
PERIOD. IF THE QUARTERS WERE OBTAINED DURING THAT PERIOD WITHOUT
CHARGE, OR AT BUT A NOMINAL CHARGE AS THEY WERE DURING THE LATER PERIOD,
THE PAYMENT TO YOU AND THE OTHER PERSONNEL INVOLVED OF A FULL PER DIEM
OF $11 WITHOUT APPROPRIATE DEDUCTION BECAUSE GOVERNMENT QUARTERS WERE
FURNISHED WAS CLEARLY IMPROPER AND WAS NOT AUTHORIZED UNDER THE
REGULATIONS THEN IN EFFECT.
YOUR REQUEST FOR THE RETURN OF THE PAPERS SUBMITTED WITH YOUR CLAIM
MAY NOT BE COMPLIED WITH AS THEY HAVE BECOME A PART OF THE PERMANENT
RECORDS OF THIS OFFICE.
B-128579, SEP. 4, 1956
TO WALTER H. EAGAN COMPANY, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, PROTESTING
THE AWARD OF A CONTRACT TO THE AURORA PUMP DIVISION, THE NEW YORK AIR
BRAKE COMPANY, FOR CIRCULATING PUMPS PURSUANT TO INVITATION FOR BIDS NO.
N140-1323-56, ISSUED APRIL 6, 1956, BY THE U.S. NAVY PURCHASING OFFICE,
BROOKLYN, NEW YORK.
THE INVITATION REQUESTED BIDS--- TO BE OPENED AT 2:00 P.M. EASTERN
STANDARD TIME ON APRIL 26, 1956--- FOR SHIP'S SERVICE TURBO GENERATOR
CONDENSER CIRCULATING PUMPS, TOGETHER WITH REPAIR PARTS, TOOLS, DESIGN
RELEASE DATA AND PRODUCTION PLANS, MANUALS, ENGINEERING SERVICES, ETC.
PARAGRAPH 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS,"
PROVIDED AS FOLLOWS:
"4. LATE BIDS--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF
RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS
THEY ARE RECEIVED BEFORE THE AWARD IS MADE, 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.'
AT THE TIME SET FOR OPENING OF BIDS IT WAS FOUND THAT 4 BIDS,
INCLUDING YOUR BID, HAD BEEN RECEIVED AND THEY WERE OPENED AND RECORDED.
ANOTHER BID, THAT OF THE AURORA PUMP DIVISION OF THE NEW YORK AIR BRAKE
COMPANY, WAS RECEIVED AT 4:24 P.M., ON THAT SAME DATE IN AN ENVELOPE
WHICH BORE A MAILING DATE OF APRIL 24, 1956, STAMPED "AIR MAIL.' IT WAS
DETERMINED FROM THE APPROVED METERING DEVICE STAMP SHOWN ON THE ENVELOPE
ENCLOSING THE BID AND FROM INFORMATION OBTAINED FROM THE LOCAL
GOVERNMENT POST OFFICE THAT THE BID WAS MAILED IN TIME TO REACH ITS
DESTINATION BEFORE THE TIME SPECIFIED FOR THE BID OPENING AND THAT THE
FAILURE OF THE BID TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE
MAILS FOR WHICH THE BIDDER WAS IN NO WAY RESPONSIBLE. ACCORDINGLY, THE
BID WAS OPENED, READ AND CONSIDERED ALONG WITH THE OTHER BIDS RECEIVED
AND, IT BEING THE LOWEST BID RECEIVED AS TO PRICE, AWARD WAS MADE TO
THAT BIDDER.
AS YOUR BID WAS THE LOWEST RECEIVED BEFORE RECEIPT OF THE LATE BID,
YOU PROTESTED THE AWARD ON THE GROUND THAT THE LATE BID WAS NOT RECEIVED
UNTIL AFTER THE TIME SET FOR OPENING OF BIDS AND SHOULD THEREFORE HAVE
BEEN RETURNED UNOPENED TO THE BIDDER. ALSO, YOU CLAIM THAT NO EVIDENCE
IS OF RECORD TO INDICATE THAT THE LATE BID WAS MAILED IN SUFFICIENT TIME
TO BE CONSIDERED. IN SUBSTANTIATION OF YOUR PROTEST YOU STATE AS
FOLLOWS:
"1. THE OPENING DATE AND TIME OF INVITATION WAS PUBLISHED AS 26
APRIL 1956 2 P.M. E. STANDARD.
AT THAT TIME ALL BIDS WERE OPENED AND PUBLICLY READ IN CONFORMANCE
WITH REGULATIONS. THE BID BY THE WALTER EAGAN COMPANY WAS IN THE LOW
BID.
"2. ON MAY 10, 1956, THE WALTER EAGAN COMPANY WAS ADVISED THAT A BID
HAD BEEN RECEIVED FROM THE AURORA PUMP COMPANY WHICH WAS LOWER IN PRICE
THAN THE WALTER EAGAN BID. INTERROGATION OF OFFICIALS OF THE NAVY
PURCHASING OFFICE, NEW YORK BY REPRESENTATIVES OF THE WALTER EAGAN CO.,
AS TO THE REASON FOR CONSIDERATION OF THIS LATE BID, AND THE ACCEPTANCE
OF IT, REVEALED THAT SAID OFFICIALS CLAIMED THAT THE AURORA BID HAD BEEN
MAILED IN TIME BY THE COMPANY, AND THAT THE RESPONSIBILITY FOR
NON-DELIVERY, WAS THEREFORE THAT OF THE U.S. GOVERNMENT POST OFFICE
DEPT. EXAMINATION OF THE MAILING ENVELOPE USED BY THE AURORA PUMP CO.,
TO TRANSMIT THEIR BID, REVEALED THAT POSTAGE HAS BEEN AFFIXED BY A
MAILING MACHINE DEVICE, BUT THAT THERE WAS NOWHERE IN EVIDENCE ANY
MARKING SUCH AS NORMALLY USED BY THE POST OFFICE DEPARTMENT TO INDICATE
THE TIME AND PLACE THAT PARTICULAR PIECE OF MAIL HAS BEEN HANDLED BY
THAT DEPARTMENT.
"THE USE OF A METERING DEVICE, OR ANY OTHER MACHINE USED TO AFFIX
POSTAGE, IN CASES WHERE TIME OF MAILING MAY BECOME A MATTER OF
TREMENDOUS PROPORTIONS, UNLESS IT CARRYS WITH ITS USE CLEAR AND DEFINITE
PROOF OF THE TIME OF MAILING, MOST CERTAINLY RAISES THE QUESTION AS TO
WHETHER OR NOT THE ITEMS HAD IN FACT CLEARED THROUGH THE POST OFFICE
DEPARTMENT AT ANY TIME. IN THE ABSENCE OF ANY PROOF THAT THIS
PARTICULAR ITEM HAD BEEN CLEARED THROUGH THE POST OFFICE, IT IS ONLY
FAIR AND EQUITABLE THAT THE SAID BID BE CONSIDERED AS LATE AND
UNACCEPTABLE.'
THE ENVELOPE IN WHICH THE LATE BID WAS FORWARDED TO THE U.S. NAVY
PURCHASING OFFICE, BROOKLYN, NEW YORK, CONTAINS A STAMPED NOTATION
SHOWING THAT IT WAS MAILED IN AURORA, ILLINOIS, ON APRIL 24,
1956. THE CONTRACTING OFFICER REPORTS THAT THE LOCAL POSTAL
OFFICIALS ADVISED HIS OFFICE THAT A BID MAILED AT 11:59 P.M., ON APRIL
24, 1956, SHOULD HAVE ARRIVED AT THE NAVY PURCHASING OFFICE IN TIME FOR
A BID OPENING AT 2:00 P.M., ON APRIL 26, 1956. IN ADDITION, THE
DEPARTMENT OF THE NAVY HAS FURNISHED WITH THE REPORT OF THE CONTRACTING
OFFICER A CERTIFICATION FROM THE SUPERINTENDENT, BUSH TERMINAL STATION
IN NEW YORK "THAT A AIR MAIL LETTER OF THE NEW YORK AIR BRAKE CO. OF
AURORA, ILL., MAILED AT 11:59 PM ON APRIL 24, 1956, IF MAILED AT THAT
TIME ON APRIL 24, 1956, WOULD ARRIVE AT N.P.O. BROOKLYN 32, N.Y., FOR A
BID OPENING AT 2:00 PM ON APRIL 26, 1956.'
YOUR CHIEF CONCERN APPEARS TO BE THAT THE ENVELOPE IN WHICH THE LATE
BID WAS AIRMAILED CONTAINED NO POSTMARK IN ADDITION TO THE STAMP AFFIXED
BY A METERING DEVICE. THE METERED STAMP DID SHOW THE DATE OF MAILING,
HOWEVER, AND WE ARE INFORMED BY THE POST OFFICE DEPARTMENT HERE IN
WASHINGTON THAT POSTAL EMPLOYEES ARE REQUIRED BY APPROPRIATE
INSTRUCTIONS TO CHECK THE DATE OF MAILING ON ALL METERED MAILINGS AND TO
POSTMARK THEM IF THE METERED DATE IS NOT CORRECT. THIS RAISES THE
PRESUMPTION THAT THE PIECE OF MAIL HERE IN QUESTION WAS IN FACT POSTED
ON APRIL 24, 1956, AS SHOWN ON THE ENVELOPE. IN SUCH CIRCUMSTANCES, WE
WOULD NOT BE JUSTIFIED IN QUESTIONING THE DETERMINATION THAT THE LATE
BID ON THE PUMPS WAS MAILED IN SUFFICIENT TIME TO HAVE REACHED THE
DESIGNATED OFFICE BETWEEN THE HOUR AND DATE SET FOR OPENING OF BIDS IN
THE ORDINARY AND USUAL COURSE OF THE MAILS AND THE CONSEQUENT
CONSIDERATION OF THAT BID ALONG WITH THE OTHER BIDS RECEIVED FOR
PURPOSES OF MAKING AWARD.
B-128678, SEPT. 4, 1956
TO MR. DONALD R. OLSEN:
REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1956, CONCERNING YOUR
CLAIM FOR $100 ADDITIONAL UNIFORM ALLOWANCE ON REPORTING FOR ACTIVE DUTY
ON FEBRUARY 16, 1951, AS A COMMISSIONED OFFICER, UNITED STATES AIR FORCE
RESERVE.
THE AMOUNT CLAIMED WAS ALLOWED BY OUR SETTLEMENT DATED FEBRUARY 10,
1954, AND WAS APPLIED IN PARTIAL LIQUIDATION OF AN INDEBTEDNESS OF $704
STATED AGAINST YOU BECAUSE OF ERRONEOUS STATION PER DIEM ALLOWANCE
PAYMENTS MADE INCIDENT TO YOUR SERVICE AT CHATEAUROUX, FRANCE, DURING
THE PERIOD JULY 22 THROUGH NOVEMBER 20, 1951. YOU REQUEST
RECONSIDERATION OF THE ACTION TAKEN IN THE SETTLEMENT ON THE BASIS OF
OUR DECISION OF APRIL 26, 1956, B-114949, B-120726.
SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
AUTHORIZED THE SECRETARIES OF THE UNIFORMED SERVICES TO MAKE PAYMENT TO
MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE
CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL
STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COSTS OF LIVING TO
MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS,
SUBSISTENCE, AND NECESSARY INCIDENTAL EXPENSES. PARAGRAPH 4300 OF THE
JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD IN QUESTION,
PROVIDED THAT THE STATION PER DIEM ALLOWANCE AT RATES UNIFORMLY
ESTABLISHED BY THE SECRETARIES WOULD BE PAID TO MEMBERS PERMANENTLY
ASSIGNED TO DUTY OUTSIDE THE UNITED STATES OR IN ALASKA UPON THE
COMMANDING OR OTHER APPROPRIATE OFFICER'S CERTIFICATION AS TO THE
NONAVAILABILITY OF GOVERNMENT QUARTERS OR GOVERNMENT MESS, AND PARAGRAPH
4301-3 PROVIDED THAT A MEMBER WHOSE DEPENDENTS DID NOT RESIDE WITH HIM
AT OR IN THE VICINITY OF HIS DUTY STATION WOULD BE REGARDED AS A MEMBER
WITHOUT DEPENDENTS.
AUDIT EXCEPTIONS WERE TAKEN BY OUR OFFICE TO A NUMBER OF STATION PER
DIEM ALLOWANCE PAYMENTS MADE TO MEMBERS OF THE ARMED FORCES STATIONED AT
CHATEAUROUX, FRANCE, COVERING PERIODS PRIOR TO THE ARRIVAL OF THEIR
DEPENDENTS, EVEN THOUGH SUPPORTED BY CERTIFICATIONS OF NONAVAILABILITY
OF GOVERNMENT QUARTERS OR MESSES. THIS ACTION WAS TAKEN ON THE BASIS
THAT EXISTING QUARTERS AND MESSING FACILITIES WERE ADEQUATE OR READILY
EXPANDABLE TO THE DEGREE NECESSARY TO MEET THE REQUIREMENTS OF ALL
MEMBERS WITHOUT DEPENDENTS AT THAT STATION.
YOU ARRIVED AT CHATEAUROUX ON JULY 21, 1951, ON A PERMANENT CHANGE OF
STATION FROM KELLY AIR FORCE BASE, TEXAS, AND YOUR DEPENDENTS ARRIVED AT
CHATEAUROUX ON NOVEMBER 21, 1951. THE EXCEPTIONS STATED IN YOUR CASE
COVERED PAYMENTS FOR STATION SUBSISTENCE ALLOWANCE FOR THE PERIOD JULY
22 THROUGH NOVEMBER 20, 1951, AND STATION QUARTERS ALLOWANCE FOR THE
PERIOD JULY 29 THROUGH NOVEMBER 20, 1951.
IN THE DECISION OF APRIL 26, 1956, WHICH YOU CITE, THERE WERE
CONSIDERED THE ABOVE-MENTIONED AUDIT EXCEPTIONS. IT WAS CONCLUDED--- IN
VIEW OF ADDITIONAL EVIDENCE OBTAINED IN THE MATTER THAT CONDITIONS WERE
SUCH THAT GOVERNMENT QUARTERS AND MESSING FACILITIES COULD NOT
REASONABLY BE CONSIDERED AS AVAILABLE TO ALL MEMBERS WITHOUT
DEPENDENTS--- THAT TO THE EXTENT SUCH EXCEPTIONS COVERED PAYMENTS
SUPPORTED BY CERTIFICATES AS TO THE NONAVAILABILITY OF GOVERNMENT
QUARTERS AND MESS FACILITIES, THEY SHOULD BE REMOVED.
YOUR PAY RECORD SHOWS THAT YOU WERE CREDITED WITH STATION SUBSISTENCE
ALLOWANCE AT THE RATE OF $3.75 A DAY, THE RATE FOR SUCH ALLOWANCE FOR
THE CHATEAUROUX AREA, FOR THE PERIOD JULY 22 THROUGH 28, 1951, IN THE
SUM OF $26.25. HOWEVER, INFORMATION IN A QUESTIONNAIRE SUBMITTED BY YOU
IN A RESPONSE TO AN INQUIRY BY THE MILITARY PAY DIVISION, AIR FORCE
FINANCE CENTER, DENVER, COLORADO, DISCLOSES THAT YOU OCCUPIED GOVERNMENT
QUARTERS DURING THAT PERIOD AND THAT YOU WERE NOT AUTHORIZED TO MOVE OFF
THE BASE AND SET UP QUARTERS IN ANTICIPATION OF THE ARRIVAL OF YOUR
DEPENDENTS PRIOR TO JULY 29, 1951. SINCE IT HAS BEEN DETERMINED THAT A
GOVERNMENT MESS WAS AVAILABLE AT CHATEAUROUX TO MEMBERS PRIOR TO THE
DATE THEY WERE AUTHORIZED TO MOVE OFF THE BASE, CREDIT OF STATION
SUBSISTENCE FOR THAT PERIOD WAS UNAUTHORIZED AND YOU WERE OVERPAID IN
THE AMOUNT OF $26.25.
YOUR PAY RECORD ALSO SHOWS THAT YOU WERE CREDITED WITH STATION
QUARTERS AND SUBSISTENCE ALLOWANCES AT THE RATE OF $9 A DAY, THE TRAVEL
PER DIEM RATE FOR THE CHATEAUROUX AREA, FOR THE PERIOD JULY 29 THROUGH
SEPTEMBER 4, 1951, IN THE SUM OF $342, PRESUMABLY UNDER AUTHORITY OF
PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS. THAT PARAGRAPH
AUTHORIZED THE PAYMENT OF STATION ALLOWANCES AT THAT RATE FOR THE FIRST
45 DAYS OF DUTY AT AN OVERSEAS STATION TO MEMBERS NOT FURNISHED
GOVERNMENT QUARTERS AND NOT OCCUPYING PERMANENT HOUSING. FOR THE
THREE-DAY PERIOD AUGUST 31 TO SEPTEMBER 2, 1951, THERE WAS CHECKED IN
YOUR ACCOUNT THE STATION SUBSISTENCE ALLOWANCE AT $3.75 A DAY, TOTAL
$11.25, ON THE BASIS THAT YOU WERE ON TEMPORARY DUTY DURING THAT PERIOD
AND NOT ENTITLED TO SUCH ALLOWANCE UNDER THE PROVISIONS OF PARAGRAPH
4305 OF THE JOINT TRAVEL REGULATIONS. HENCE, FOR THE PERIOD JULY 29
THROUGH SEPTEMBER 4, 1951, YOU WERE CREDITED WITH STATION PER DIEM
ALLOWANCES IN THE NET AMOUNT OF $330.75.
THE QUESTIONNAIRE THAT YOU FURNISHED ALSO DISCLOSED THAT YOU OCCUPIED
PERMANENT HOUSING FROM JULY 29, 1951, TO JULY 28, 1952, PRIOR AND
SUBSEQUENT TO THE ARRIVAL OF YOUR DEPENDENTS AT CHATEAUROUX ON NOVEMBER
21, 1951. SINCE PARAGRAPH 4303 ALSO PROVIDED THAT THE ALLOWANCE SHOULD
BE REDUCED TO THE REGULAR STATION PER DIEM ALLOWANCE FOR THE AREA, WHICH
IN THE CASE OF THE CHATEAUROUX AREA WAS $4.75 A DAY ($1 FOR QUARTERS AND
$3.75 FOR SUBSISTENCE) YOU WERE ENTITLED TO THE ALLOWANCES AT $4.75 A
DAY FOR JULY 29 TO AUGUST 30, 1951, AND FOR SEPTEMBER 3 AND 4, 1951,
AMOUNTING TO $166.25. ALSO, FOR AUGUST 31 AND SEPTEMBER 1 AND 2, 1951,
YOU WERE ENTITLED TO STATION QUARTERS ALLOWANCE AT $1 A DAY ($3), MAKING
TOTAL ALLOWANCES OF $169.25 FOR THE PERIOD JULY 29 THROUGH SEPTEMBER 4,
1951. SINCE YOU WERE PAID $330.75 FOR THAT PERIOD YOU WERE OVERPAID THE
SUM OF $161.50.
THE TOTAL OVERPAYMENTS OF $187.75 ($26.25 PLUS $161.50) HAVING BEEN
REDUCED $100 BY THE APPLICATION OF THE $100 ALLOWED YOU BY THE
SETTLEMENT OF FEBRUARY 10, 1954, IT IS FOUND, THEREFORE, THAT YOU ARE
INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $87.75, RATHER THAN THE $704
PREVIOUSLY REPORTED. OUR DEBT RECORDS WILL BE CHANGED ACCORDINGLY, AND
YOU ARE REQUESTED TO REMIT THAT SUM TO THE UNITED STATES GENERAL
ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, C., OR OTHERWISE
ADVISE AS TO THE LIQUIDATION OF THE DEBT.
B-128692, SEP. 4, 1956
TO COMMANDER DANIEL G. PARDUE, U.S. NAVY:
FURTHER REFERENCE IS MADE TO YOUR LETTER POSTMARKED JULY 12, 1956,
REQUESTING REVIEW OF OUR SETTLEMENT OF JULY 9, 1956, WHICH DISALLOWED
YOUR CLAIM FOR PER DIEM FOR TRAVEL PERFORMED AS A MEMBER OF PATROL
SQUADRON FIVE, U.S. ATLANTIC FLEET AIR FORCE, INCIDENT TO DEPLOYMENT
ACTIVITIES OF THAT SQUADRON.
YOUR CLAIM WAS FOR PER DIEM DURING PERIODS YOU WERE IN NEWFOUNDLAND,
ICELAND, PUERTO RICO AND THE BAHAMAS ISLANDS IN 1953 AND 1954. IT WAS
DISALLOWED BECAUSE IT WAS NOT SUPPORTED BY COMPETENT TRAVEL ORDERS
DIRECTING THE PERFORMANCE OF TRAVEL AND TEMPORARY DUTY FOR WHICH PER
DIEM COULD BE PAID. YOU REFER IN THAT CONNECTION TO A COMFAIRWINGSLANT
ORDERING THE DEPLOYMENT OF PATROL SQUADRON FIVE TO ICELAND AND TO A
MEMORANDUM APPARENTLY ISSUED BY THE COMMANDING OFFICER OF THE SQUADRON
ON THE BASIS OF THAT MESSAGE AND APPARENTLY CONTEND THAT SUCH PAPERS
CONSTITUTE COMPETENT TRAVEL ORDERS TO SUPPORT YOUR CLAIM.
THE JOINT TRAVEL REGULATIONS PRESCRIBE THE TRAVEL AND TRANSPORTATION
ALLOWANCES AUTHORIZED FOR PERIODS OF DUTY OUTSIDE THE UNITED STATES.
SEE PART F OF THOSE REGULATIONS. GENERALLY, PER DIEM IS AUTHORIZED FOR
TRAVEL AND TEMPORARY DUTY PERFORMED UNDER COMPETENT ORDERS BUT THERE ARE
MANY EXCEPTIONS LISTED WHICH DESCRIBE SITUATIONS IN WHICH PER DIEM IS
NOT AUTHORIZED.
THE "ORDERS" YOU SUBMITTED IN SUPPORT OF YOUR CLAIM ARE NOT IN THE
FORM OF TRAVEL ORDERS AND DO NOT DIRECT TEMPORARY DUTY AT ANY POINT SO
AS TO GIVE RISE TO A RIGHT TO PER DIEM UNDER THE REGULATIONS. RATHER,
CONSIDERING THE LANGUAGE USED, IT WOULD APPEAR THAT THE DUTY PERFORMED
WAS ADMINISTRATIVELY CONSIDERED TO BE SUCH AS WOULD NOT GIVE RISE TO A
RIGHT TO PER DIEM. UNDER THOSE CIRCUMSTANCES EVEN IF IT COULD BE
CONCLUDED THAT TEMPORARY DUTY WAS CONTEMPLATED, NO PER DIEM COULD BE
PAID IN THE ABSENCE OF A SHOWING OF THE NATURE OF THE DUTY PERFORMED IN
ORDER THAT IT COULD BE DETERMINED WHETHER SUCH DUTY FELL WITHIN ONE OF
THE EXCEPTIONS MENTIONED ABOVE. FOR EXAMPLE, THE INFORMATION SUBMITTED
WITH YOUR CLAIM GIVES THE IMPRESSION THAT THE DUTY MAY HAVE BEEN
MANEUVERS, FIELD EXERCISES OR OTHER SIMILAR ACTIVITIES.
ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF
YOUR CLAIM WAS CORRECT AND IS SUSTAINED.
B-128779, SEP. 4, 1956
TO LIEUTENANT COLONEL E. C. ROGERS, DISBURSING OFFICER, DEPARTMENT OF
THE ARMY:
BY 4TH INDORSEMENT OF JULY 27, 1956, THE CHIEF OF FINANCE, DEPARTMENT
OF THE ARMY, FORWARDED YOUR LETTER OF JULY 6, 1956, SUBMITTING FOR
ADVANCE DECISION A VOUCHER COVERING PAYMENT OF PER DIEM TO MASTER
SERGEANT WILLIAM R. WILLIAMS, JR., AT THE RATE OF $1 PER DAY FOR THE
PERIOD OCTOBER 15 TO DECEMBER 20, 1955.
PARAGRAPH 18, SPECIAL ORDERS NO. 210, ISSUED AT FORT BENNING,
GEORGIA, UNDER DATE OF SEPTEMBER 12, 1955, EFFECTED THE ENLISTED MAN'S
RELEASE FROM ASSIGNMENT AT THAT PLACE AND REASSIGNED HIM ON
PERMANENT CHANGE OF STATION TO HEADQUARTERS COMPANY, SPECIAL WEAPONS
COMMAND, 8425 DU, SANDIA BASE, ALBUQUERQUE, NEW MEXICO, AS A TRAINEE,
WITH DIRECTION TO REPORT NOT LATER THAN OCTOBER 14, 1955. PARAGRAPH 5,
SPECIAL ORDERS NO. 249, ISSUED AT SANDIA BASE ON DECEMBER 21, 1955,
RELEASED HIM FROM ASSIGNMENT TO "SWTG, SWC 8452D DU" AS A STUDENT AND
REASSIGNED HIM TO THE SAME UNIT FOR DUTY. PARAGRAPH 13, SPECIAL ORDERS
NO. 53, FORT BENNING, GEORGIA, MARCH 6, 1956, AMENDED THE ORDERS OF
SEPTEMBER 12, 1955, SO AS TO DELETE THE REFERENCE TO A PERMANENT CHANGE
OF STATION AND REASSIGN HIM TO HEADQUARTERS COMPANY, SPECIAL WEAPONS
COMMAND, 8452 DU AS A STUDENT ON TEMPORARY DUTY PENDING FURTHER ORDERS.
PARAGRAPH 13C4, ARMY REGULATIONS 611-215, AS ADDED BY CHANGE 1, MARCH
3, 1955, PROVIDES THAT PERMANENT PARTY PERSONNEL WHO VOLUNTEER FOR
TRAINING OF LESS THAN 20 WEEKS' DURATION UNDER PROGRAMS WHICH
CONTEMPLATE REASSIGNMENT UPON COMPLETION OF TRAINING, WILL BE ASSIGNED
TO THE STUDENT DETACHMENT AT THE SCHOOL ON TEMPORARY DUTY PENDING
FURTHER ORDERS, IF THEY WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS
AND HOUSEHOLD GOODS AT GOVERNMENT EXPENSE UPON COMPLETION
OF TRAINING. IT IS STATED THAT THE ENLISTED MAN FALLS WITHIN THAT
CATEGORY. HOWEVER, EXCEPT FOR THE ABBREVIATION "/TRNE)" INDICATING
TRAINEE, THERE IS NOTHING IN THE ORDERS OF SEPTEMBER 12, 1955, WHICH
INDICATES IN ANY WAY THAT THE ENLISTED MAN WAS BEING ASSIGNED AS A
STUDENT TO ATTEND A COURSE OF INSTRUCTION AT SANDIA BASE AND SINCE THOSE
ORDERS DIRECTED A PERMANENT CHANGE OF STATION, THEY FURNISH NO BASIS FOR
THE PAYMENT OF PER DIEM FOR THE DUTY PERFORMED AT THAT PLACE. THE
REFERENCE TO HIM AS A STUDENT IN THE ORDERS OF DECEMBER 21, 1955, DID
NOT ADD TO HIS RIGHTS.
WHILE IT HAS BEEN RECOGNIZED THAT IN CERTAIN EXCEPTIONAL
CIRCUMSTANCES, TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY WHERE ALL THE
FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT SOME PROVISION PREVIOUSLY
DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A
PARTICULAR CASE, HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN
PREPARING THE TRAVEL ORDER (24 COMP. GEN. 439), THE ORDER ISSUING
AUTHORITY AT FORT BENNING, GEORGIA, HAS FURNISHED NO INFORMATION AS TO
THE FACTS AND CIRCUMSTANCES RELATING TO THE ISSUANCE OF THE ORDERS OF
SEPTEMBER 12, 1955, AND AS TO WHY THE ENLISTED MAN WAS NOT ORDERED TO
TEMPORARY DUTY AS A STUDENT TO ATTEND A COURSE OF INSTRUCTION AT SANDIA
BASE, IF THAT WAS THE ORIGINAL INTENTION AT THAT TIME.
ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED ON
THE PRESENT RECORD AND SUCH VOUCHER AND THE ATTACHED PAPERS WILL BE
RETAINED HERE.
B-128787, SEP. 4, 1956
TO LIEUTENANT COLONEL GEORGE H. CRONIN, U.S.A.F. :
WE REFER TO YOUR LETTER OF JULY 20, 1956, REQUESTING RECONSIDERATION
OF THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR
REPAYMENT OF FUNDS WITHHELD FROM YOUR PAY IN THE PAST TWO YEARS.
THE RECORDS SHOW THAT YOU WERE INDEBTED TO THE UNITED STATES IN THE
AMOUNT OF $15,410.37, AS A RESULT OF OVERPAYMENT OF LONGEVITY AND FLYING
PAY. YOU HAD AUTHORIZED A MONTHLY DEDUCTION OF $50 PER MONTH FROM YOUR
PAY AND AS OF JANUARY 1, 1955, THE AMOUNT OF YOUR INDEBTEDNESS HAD BEEN
REDUCED TO $14,910.37.
PRIVATE LAW 647, 84TH CONGRESS, 2D SESSION, APPROVED MAY 18, 1956,
"FOR THE RELIEF OF LIEUTENANT COLONEL GEORGE H. CRONIN, UNITED STATES
AIR FORCE" PROVIDES AS FOLLOWS:
"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE
UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT LIEUTENANT COLONEL
GEORGE H. CRONIN (AIR FORCE SERVICE NUMBER AO-132251) IS HEREBY RELIEVED
OF ALL LIABILITY TO REFUND TO THE UNITED STATES ANY SUMS REPRESENTING
CERTAIN OVERPAYMENTS FOR LONGEVITY AND FLYING PAY MADE TO HIM DURING THE
PERIOD BEGINNING AUGUST 1, 1942, AND ENDING JUNE 1, 1949. IN THE AUDIT
AND SETTLEMENT OF THE ACCOUNTS OF ANY CERTIFYING OR DISBURSING OFFICER
OF THE UNITED STATES, FULL CREDIT SHALL BE GIVEN FOR ANY AMOUNT FOR
WHICH LIABILITY IS RELIEVED BY THIS ACT.'
IN CONSTRUING RELIEF BILLS OF THIS NATURE IT IS CUSTOMARY TO LOOK FOR
EXPRESS LANGUAGE AUTHORIZING NOT ONLY RELIEF FROM UNPAID BALANCES BUT
ALSO REPAYMENT OF ANY AMOUNTS REFUNDED BY THE ONE GRANTED RELIEF.
CONSEQUENTLY, IN THE ABSENCE OF AN EXPRESS PROVISION IN PRIVATE LAW 647
AUTHORIZING THE REFUND TO YOU OF THE PAYMENTS MADE TO LIQUIDATE YOUR
INDEBTEDNESS TO THE UNITED STATES, OUR OFFICE IS WITHOUT AUTHORITY TO
ACT FAVORABLY ON YOUR CLAIM.
B-128794, SEP. 4, 1956
TO FORTNER BROS.-MIDWEST CORPORATION:
WE HAVE RECEIVED FROM THE OFFICE OF THE SECRETARY, DEPARTMENT OF THE
INTERIOR, A REPORT ON YOUR PROTEST AGAINST AN AWARD OF A CONTRACT TO THE
CARSON HOTEL SUPPLY COMPANY, DENVER COLORADO, PURSUANT TO INVITATION FOR
BIDS NO. 14-20-603, WHICH REQUESTED BIDS ON 50 SCHEDULES OF KITCHEN
EQUIPMENT FOR THE NAVAJO INDIAN SCHOOLS. AMONG THE ITEMS LISTED IN THE
INVITATION WERE 15 RANGES, GAS OPERATED (FOR USE WITH LIQUID PETROLEUM,
HIGH ALTITUDE GAS), DETROIT-MICHIGAN STOVE CO.'S GARLAND MODEL NO.
45-29 SPECTRO-HEAT HOT TOP "OR EQUAL; " 28 RANGES, GAS OPERATED (FOR
USE WITH LIQUID PETROLEUM, HIGH ALTITUDE GAS), DETROIT-MICHIGAN STOVE
CO.'S GARLAND MODEL NO. 47-29 - UNITHERN FRY TOP "OR EQUAL; " AND ONE
MIXING MACHINE, ELECTRIC HOBART MANUFACTURING CO.'S MODEL NO. H-600 "OR
EQUAL.'
IT IS REPORTED THAT SIX BIDS WERE RECEIVED IN RESPONSE TO THE
INVITATION; THAT ONE BID WAS INCOMPLETE AND ANOTHER BID OFFERED
DELIVERY "F.O.B. GALLUP RAILHEAD, NOT INSTALLED," WHEREAS THE
ADVERTISEMENT CALLED FOR KITCHEN EQUIPMENT, INSTALLED; THAT THE BID
OF YOUR COMPANY, IN THE AMOUNT OF $76,075.36, WAS THE NEXT LOWEST BUT,
UPON EXAMINATION, IT WAS FOUND THAT OF THE EQUIPMENT OFFERED A TOTAL OF
48 PIECES COMPRISED OF ONE MIXING MACHINE, FOUR DISHWASHING MACHINES AND
43 GAS RANGES, DID NOT MEET THE ADVERTISED SPECIFICATIONS; AND THAT THE
REMAINING THREE BIDS, EACH OF WHICH OFFERED TO FURNISH AND INSTALL
EQUIPMENT MEETING SPECIFICATIONS, WERE SUBMITTED BY THE CARSON HOTEL
SUPPLY COMPANY, BIVINS AND COMPANY OF AMARILLO, TEXAS, AND THE GOFF-BALL
HOTEL SUPPLY COMPANY OF ALBUQUERQUE, NEW MEXICO, IN THE RESPECTIVE TOTAL
AMOUNTS OF $78,768.52, $84,496 AND $105,224.05.
THE ADMINISTRATIVE REPORT SETS FORTH THAT, AFTER THE OPENING OF BIDS,
YOUR COMPANY INDICATED THAT IT WOULD BE WILLING TO CHANGE ITS BID BY
OFFERING TO FURNISH THE EXACT MAKES AND MODELS DESCRIBED IN THE
GOVERNMENT'S INVITATION FOR BIDS. HOWEVER, IT WAS ADMINISTRATIVELY
DETERMINED THAT THE GOVERNMENT SHOULD NOT ENTER INTO NEGOTIATIONS WITH A
VIEW TOWARD AWARDING THE CONTRACT ON A BASIS DIFFERENT FROM THE
ADVERTISED SPECIFICATIONS. ALTHOUGH PARAGRAPH 2 (B) OF THE TECHNICAL
REQUIREMENTS, PAGE 15 OF THE INVITATION, PROVIDED THAT "BIDS ON
EQUIPMENT DIFFERING IN MINOR DETAIL FROM THE SPECIFICATIONS WILL BE
CONSIDERED," IT HAS BEEN REPORTED THAT THE DEVIATIONS IN YOUR BID WITH
RESPECT TO 44 OF THE 48 QUESTIONED ITEMS OF EQUIPMENT WERE CONSIDERED TO
BE MAJOR FOR THE FOLLOWING REASONS:
"/1) THE MIXING MACHINE OFFERED BY FORTNER BROS.-MIDWEST CORPORATION
WAS WITHOUT FIXED SPEEDS.
IT IS IMPERATIVE, AS AN AID TO PERSONNEL PREPARING MEALS FOR INDIAN
SCHOOL CHILDREN AND IN ORDER TO MEET ESTABLISHED COOKING SCHEDULES THAT
MIXING EQUIPMENT HAVE POSITIVE SPEED SELECTION; OTHERWISE MIXING
OPERATIONS WOULD BE STRICTLY GUESS WORK AND INCONSISTENCY IN PREPARATION
WOULD RESULT. ALSO IT IS NOT BELIEVED ANY RECIPES OR MIXING
INSTRUCTIONS MAY BE FOUND WHICH GIVE THE MIXING TIMES AND/OR SPEEDS BY
RPM-S.
"/2) FIFTEEN OF THE RANGES OFFERED BY FORTNER BROS.-MIDWEST
CORPORATION HAD 253 SQUARE INCHES LESS COOKING SPACE PER RANGE ON THE
GRILL (30 3/16 BY 31 INCHES AS COMPARED WITH 33 1/2 BY 35 1/2 (;
TWENTY-EIGHT RANGES HAD 84 SQUARE INCHES LESS COOKING SURFACE TOP PER
RANGE (32 BY 42 INCHES AS COMPARED WITH 34 BY 42) THAN SPECIFIED AND
REQUIRED TO MEET COOKING SCHEDULES AND SERVE THE NUMBER OF PERSONS
WITHIN THE TIME ALLOTTED FOR THIS PURPOSE. THE DUAL RINGBURNER OFFERED
WOULD NOT ALLOW FOR THE FLEXIBILITY NEEDED IN OPERATION, AS WOULD THE
SEVEN-BURNER, WITH A SEPARATE VALVE FOR EACH BURNER, WHICH WOULD ALSO
FURNISH THE VARIATION OF HEAT REQUIRED. THE OVEN WITH ONLY TWO
POSITIONS FOR RACKS REDUCES THE FUNCTIONAL OPERATION 33 1/3 PERCENT;
THE THREE POSITIONS FOR RACKS ARE NECESSARY TO MEET FEEDING
REQUIREMENTS. IN ADDITION, THE OVEN AFFORDED ONLY 10,080 CUBIC INCHES
OF BAKING AREA AS AGAINST 13,464 CUBIC INCHES NEEDED (24 BY 28 BY 15
INCHES AS COMPARED WITH 25 1/2 BY 32 BY 16 1/2 INCHES).'
IT SEEMS APPARENT FROM THE FOREGOING THAT THE 43 RANGES AND THE MIXER
WHICH YOU PROPOSED TO FURNISH COULD NOT HAVE BEEN CONSIDERED TO BE THE
EQUAL OF THE MODELS OF EQUIPMENT DESCRIBED IN THE INVITATION FOR BIDS SO
FAR AS THE PARTICULAR REQUIREMENTS OF THE GOVERNMENT IN THIS INSTANCE
WERE CONCERNED. ALSO, THE ADVERTISED SPECIFICATIONS, IN PROVIDING THAT
THE MIXING MACHINE SHOULD HAVE FOUR POSITIVE SPEEDS, THAT THE GAS RANGES
SHOULD HAVE CERTAIN DIMENSIONS AND THAT 15 OF THE RANGES
SHOULD BE EQUIPPED "WITH SEVEN INDIVIDUAL BURNERS, EACH CONTROLLED B
A SEPARATE VALVE," DO NOT APPEAR TO HAVE BEEN MORE RESTRICTIVE THAN
NECESSARY TO MEET THE GOVERNMENT'S MINIMUM REQUIREMENTS.
IN THE CIRCUMSTANCES, AND SINCE WE HAVE CONSISTENTLY ADHERED TO THE
PRINCIPLE THAT TO PERMIT A BIDDER TO CHANGE HIS BID AFTER OPENING MUST
BE REGARDED AS ACTION IN CONTRAVENTION OF THE STATUTES GOVERNING THE
LETTING OF PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS, YOU ARE
ADVISED THAT WE WOULD NOT BE WARRANTED IN TAKING EXCEPTION TO THE AWARD
MADE TO THE CARSON HOTEL SUPPLY COMPANY.
B-128835, SEP. 4, 1956
TO D. N. COBA, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:
BY LETTER OF AUGUST 2, 1956, THE OFFICE OF THE JUDGE ADVOCATE
GENERAL, DEPARTMENT OF THE NAVY, FORWARDED YOUR LETTER OF JUNE 28, 1956,
SUBMITTING FOR ADVANCE DECISION A VOUCHER COVERING PAYMENT OF PER DIEM
TO MAX WILLIAM KUHNE, ADC, USN, FOR THE PERIOD AUGUST 30 TO SEPTEMBER 3,
1955.
STANDARD TRANSFER ORDER NO. 155-56, PREPARED ON AUGUST 10, 1955,
DIRECTED THE ENLISTED MAN TO PROCEED FROM THE NAVAL AIR STATION, CORPUS
CHRISTI, TEXAS, TO THE U.S. NAVAL RECEIVING STATION, SAN FRANCISCO,
CALIFORNIA, AND REPORT NOT LATER THAN SEPTEMBER 27, 1955, FOR FURTHER
TRANSFER TO HIS NEW STATION AT THE NAVAL AIR STATION, BARBERS POINT,
T.H., 4 DAYS' PROCEED TIME, 9 DAYS' TRAVEL TIME AND 30 DAYS' DELAY EN
ROUTE BEING AUTHORIZED. IT IS REPORTED THAT HE LEFT CORPUS CHRISTI ON
AUGUST 15, ARRIVED AT SAN FRANCISCO ON AUGUST 29, AND DEPARTED FROM
ALAMEDA, CALIFORNIA, BY GOVERNMENT AIRCRAFT FOR HAWAII ON SEPTEMBER 4,
1955. IT IS INDICATED THAT HIS DEPENDENTS TRAVELED WITH HIM TO SAN
FRANCISCO AND IT APPEARS THAT HIS ORDERS WERE INDORSED TO SHOW THAT
GOVERNMENT QUARTERS AND SUBSISTENCE WERE NOT AVAILABLE, BECAUSE OF THE
FACT THAT QUARTERS AND SUBSISTENCE WERE NOT AVAILABLE FOR BOTH HIM AND
HIS DEPENDENTS. SEE PARAGRAPH 4451-3, JOINT TRAVEL REGULATIONS. HE
STATES THAT IT WAS NOT HIS DESIRE TO TAKE LEAVE AT THE TIME HIS TRAVEL
ORDERS WERE ISSUED AND HE ACTUALLY REPORTED AT SAN FRANCISCO BEFORE THE
EXPIRATION OF THE LEAVE GRANTED.
A MEMBER OF THE NAVAL SERVICE IS NOT REQUIRED TO USE ALL THE LEAVE
GRANTED IN PERMANENT CHANGES OF STATIONS ORDERS AND IF HE REPORTS FOR
DUTY AT THE NEW STATION PRIOR TO THE EXPIRATION OF THE LEAVE GRANTED, HE
IS CHARGED ONLY WITH THE AMOUNT OF LEAVE ACTUALLY USED. SEE PARAGRAPH
C-5318, BUREAU OF NAVAL PERSONNEL MANUAL. THE SAME RULE APPEARS FOR
APPLICATION WHERE, AS HERE, THE MEMBER IS DIRECTED TO REPORT AT PORT OF
EMBARKATION AT THE EXPIRATION OF LEAVE, FOR TRANSPORTATION OVERSEAS.
UNLESS IT IS SHOWN THAT THE DATE OF DETACHMENT AND THE DATE OF REPORTING
ARE SO FIXED AS TO PERMIT THE TAKING OF LEAVE GRANTED AND TO COINCIDE
WITH TRANSPORTATION TO BE AVAILABLE AT A PARTICULAR TIME AND THUS AVOID
UNNECESSARY DELAY WHILE AWAITING TRANSPORTATION, IT CANNOT BE SAID IN
ANY PARTICULAR CASE THAT UNNECESSARY TIME WAS SPENT AWAITING
TRANSPORTATION BECAUSE OF REPORTING BEFORE EXPIRATION OF LEAVE, IF ALL
MEMBERS ARE FURNISHED THE FIRST AVAILABLE TRANSPORTATION AFTER
REPORTING. THE COMMANDANT OF THE 12TH NAVAL DISTRICT HAS STATED IN
LETTER OF MARCH 19, 1956, THAT WHEN A PERSON REPORTS FOR TRANSPORTATION,
HE IS FURNISHED THE FIRST AVAILABLE
TRANSPORTATION, WITHOUT REGARD TO WHETHER OR NOT HE USED ALL OF HIS
LEAVE PRIOR TO REPORTING FOR TRANSPORTATION. IT IS ASSUMED THAT
TRANSPORTATION WAS AVAILABLE FROM SAN FRANCISCO OR ITS ENVIRONS AT
REGULAR INTERVALS AND IN THE ABSENCE OF INFORMATION SHOWING THAT KUHNE
WAS DIRECTED TO REPORT ON SEPTEMBER 27, 1955, IN ORDER TO UTILIZE
TRANSPORTATION THEN AVAILABLE, THERE APPEARS TO BE NO PROPER BASIS TO
QUESTION HIS RIGHT TO PER DIEM DURING THE PERIOD INVOLVED.
ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS
AUTHORIZED, IF OTHERWISE CORRECT.
B-128957, SEP. 4, 1956
TO LIEUTENANT COLONEL J. L. RYAN, FC, DISBURSING OFFICER, DEPARTMENT
OF THE ARMY:
BY 2D INDORSEMENT OF AUGUST 10, 1956, THE CHIEF OF FINANCE FORWARDED
HERE YOUR LETTER OF JUNE 29, 1956, SUBMITTING FOR ADVANCE DECISION A
VOUCHER COVERING PAYMENT TO SERGEANT FIRST CLASS RICHARD N. MORLOCK, RA
36888661, OF MILEAGE AND PER DIEM FOR TRAVEL AND DUTY PERFORMED DURING
THE PERIOD MAY 25, 1956, TO JUNE 15, 1956.
BY PARAGRAPH 1, SPECIAL ORDERS NO. 66, DATED MAY 23, 1956, THE
CLAIMANT WAS DIRECTED TO PROCEED FROM FORT GEORGE G. MEADE, MARYLAND, ON
OR ABOUT MAY 25, 1956, TO SEATTLE, WASHINGTON, SAN FRANCISCO,
CALIFORNIA, LODI, CALIFORNIA, LOS ANGELES, CALIFORNIA, SAN DIEGO,
CALIFORNIA, WASHINGTON, D.C., ON TEMPORARY DUTY FOR APPROXIMATELY 30
DAYS, AND UPON COMPLETION OF THE TEMPORARY DUTY TO RETURN TO FORT GEORGE
G. MEADE. THE ORDERS CONTAIN THE ABBREVIATION "CIPAP," WHICH IS DEFINED
IN SR 320-50-1, DATED NOVEMBER 23, 1953, AS MEANING "AUTHORITY IS
GRANTED TO MAKE SUCH CHANGES IN ABOVE ITINERARY AND TO PROCEED TO SUCH
ADDITIONAL PLACES AS MAY BE NECESSARY FOR ACCOMPLISHMENT OF THIS
MISSION.'
YOUR DOUBT IN THE MATTER ARISES BECAUSE THE VOUCHER INDICATES THAT
SERGEANT MORLOCK MADE MORE THAN ONE TRIP TO POINTS ON HIS ITINERARY AS
MODIFIED UNDER AUTHORITY OF THE CIPAP ABBREVIATION. FROM THE FACTS YOU
APPEAR TO CONCLUDE THAT THE EXTRA VISITS TO SUCH POINTS WERE "REPEATED
AVEL.' YOU REFER TO A RULING OF THE CHIEF OF FINANCE, MADE ON JANUARY
16, 1952," THAT CIPAP DOES NOT PERMIT MORE THAN ONE (1) TRIP TO THE SAME
POINTS IN THE SAME DIRECTION SINCE ANY ADDITIONAL TRIPS WOULD CONSTITUTE
REPEATED TRAVEL, REQUIRING THE ISSUANCE OF NEW ORDERS.'
IN PARAGRAPH 3003-4, SUBPARAGRAPH A, CHANGE 1, JOINT TRAVEL
REGULATIONS, "BLANKET TRAVEL RDERS" ARE DEFINED AS ORDERS ISSUED TO
MEMBERS WHO REGULARLY AND FREQUENTLY MAKE TRIPS AWAY FROM THEIR
PERMANENT DUTY STATIONS WITHIN CERTAIN GEOGRAPHICAL LIMITS IN THE
PERFORMANCE OF REGULAR ASSIGNED DUTIES. THE REGULATION STATES, ALSO,
THAT REPEATED TRAVEL ORDERS ALLOW ANY NECESSARY NUMBER OF ROUND-TRIP
JOURNEYS FROM THE PERMANENT DUTY STATION TO AND FROM OR BETWEEN
SPECIFIED LOCATIONS. SUBPARAGRAPH B EXPLAINS THAT BLANKET OR REPEATED
TRAVEL ORDERS DO NOT EXPIRE UPON THE MEMBER'S RETURN TO HIS PERMANENT
DUTY STATION, BUT CONTINUE IN EFFECT UNTIL EXPIRATION BY TIME LIMIT OR
BY AUTOMATIC CANCELLATION UPON DETACHMENT FROM PERMANENT DUTY STATION TO
WHICH SUCH ORDERS PERTAIN OR UPON REVOCATION.
PARAGRAPH 9, AR 310-25, DATED JANUARY 18, 1955, PROVIDES THAT:
"F. STATEMENT THAT "AUTHORITY IS GRANTED TO MAKE SUCH CHANGES IN
ABOVE ITINERARY AND TO PROCEED TO SUCH ADDITIONAL PLACES AS MAY BE
NECESSARY FOR ACCOMPLISHMENT OF THIS MISSION," INDICATED BY THE
ABBREVIATION "CIPAP," WILL BE USED WHEN NECESSARY IN THE ISSUANCE OF
TEMPORARY DUTY ORDERS.'
INASMUCH AS THE TEMPORARY DUTY ORDERS ISSUED TO SERGEANT MORLOCK
EXPIRED BY THEIR OWN TERMS UPON HIS RETURN TO HIS PERMANENT DUTY
STATION, IT SEEMS CLEAR THAT THOSE ORDERS--- WHICH PERMITTED
FLEXIBLE ITINERARY AS CONTEMPLATED BY PARAGRAPH 9F, AR 310-25--- WER
NOT "BLANKET" TRAVEL ORDERS OR "REPEATED" TRAVEL ORDERS WITHIN THE
DEFINITIONS OF THOSE TERMS AS SET FORTH IN PARAGRAPH 3003-4, JOINT
TRAVEL REGULATIONS. THUS, THE RESTRICTIONS, CONTAINED IN PARAGRAPHS 3B
AND 3D, AR 310-25, CITED IN YOUR LETTER, DO NOT APPLY.
ACCORDINGLY, SINCE THE TRAVEL PERFORMED BY SERGEANT MORLOCK, AS SHOWN
BY HIS ITINERARY ON THE VOUCHER, WAS NOT BLANKET TRAVEL OR REPEATED
TRAVEL--- THERE BEING BUT ONE TRIP AWAY FROM HIS PERMANENT DUTY
STATION--- PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT.
THE VOUCHER, TOGETHER WITH THE SUPPORTING PAPERS, IS RETURNED.
B-129034, SEP. 4, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER OF AUGUST 21, 1956, WITH ENCLOSURES, FROM
THE ASSISTANT SECRETARY (MATERIAL), REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN CONCERNING AN ERROR THE GATES ENGINEERING COMPANY,
WILMINGTON, DELAWARE, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO.
N251-10286A WAS AWARDED.
BY INVITATION NO. IFB-251/533/56, THE PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON, REQUESTED BIDS--- TO BE OPENED JUNE 26, 1956, FOR
FURNISHING NEOPRENE SYNTHETIC RUBBER SHEETING, 60 INCHES WIDE, AND IN
THICKNESSES OF 1/16 INCH AND 1/8 INCH, ITEMS 1 AND 2, RESPECTIVELY, AND
RUBBER SHAFT COVERING MATERIAL AS DESCRIBED UNDER ITEMS 3 TO 7,
CONTEMPLATED, THE GOVERNMENT RESERVED THE RIGHT TO AWARD BY ITEM WHEN
BIDDERS WERE ADVISED THAT WHILE AN AGGREGATE AWARD ON ALL ITEMS WAS THE
CONTRACTING OFFICER DETERMINES THAT IS ADVANTAGEOUS TO THE GOVERNMENT.
IN RESPONSE THE GATES ENGINEERING COMPANY SUBMITTED A BID DATED JUNE 25,
1956, OFFERING TO FURNISH THE SHEETING REQUIRED UNDER ITEMS 1 AND 2 AT
PRICES OF $2.20 AND $3.50 PER LINEAL FOOT, RESPECTIVELY, AND TO FURNISH
THE ANCILLARY ITEMS COVERED BY ITEMS 3 TO 7, INCLUSIVE, AT THE PRICES
SET FORTH OPPOSITE EACH ITEM. ON THE BASIS OF THE PRICES SHOWN IN THE
COMPANY'S BID, ITS AGGREGATE BID PRICE FOR ITEMS 1 TO 7, INCLUSIVE IS
$775.10. IN ITS BID THE COMPANY SPECIFIED THE PLACE OF MANUFACTURE OF
THE SUPPLIES AS ITS PLANT IN WILMINGTON, DELAWARE. THE BID OF THE
COMPANY WAS ACCEPTED AS TO ITEMS 1 TO 7, INCLUSIVE, ON JULY 11, 1956.
BY LETTER DATED JULY 11, 1956--- THE DATE OF THE AWARD--- CONFIRMING
ITS LONG DISTANCE TELEPHONE CALL OF THAT DATE, THE COMPANY REQUESTED
THAT IT BE RELEASED FROM OBLIGATION UNDER ITS BID, ON THE GROUND THAT
ITS BID PRICES OF $2.20 AND $3.50 PER LINEAL FOOT FOR ITEMS 1 AND 2,
RESPECTIVELY, WERE ERRONEOUS IN THAT THEY WERE BASED ON FURNISHING A 36
INCH WIDTH SHEET AND NOT A 60 INCH WIDTH SHEET AS REQUIRED. IT STATED
FURTHER THAT IT WAS NOT EQUIPPED TO MANUFACTURE THE 60 INCH WIDTH SHEET
MATERIAL. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED
A COPY OF ITS PRINTED PRICE LIST WHICH SPECIFIES FOR GACO NEOPRENE COLD
BOND SHEET STOCK N-3S, 36 INCH WIDTH SHEETS, A PRICE OF $2.20 PER LINEAL
FEET--- THE PRICE QUOTED BY THE COMPANY FOR ITEM 1--- FOR THE 1/16 INCH
THICKNESS AND A PRICE OF $3.50 PER LINEAL FOOT--- THE PRICE QUOTED BY
THE COMPANY FOR ITEM 2--- FOR THE 1/8 INCH THICKNESS.
THE LIST OF THE BIDS IN THE CONTRACTING OFFICER'S REPORT OF JULY 31,
1956, SHOWS THAT THE TWO OTHER RESPONSIVE BIDDERS QUOTED PRICES OF $3.12
AND $3.23 PER LINEAL FOOT ON ITEM 1, AND PRICES OF $4.75 AND $5.01 PER
LINEAL FOOT FOR ITEM 2; AND THAT THEIR AGGREGATE BID PRICES WERE
$1,023.86 AND $1,074.25 FOR ITEMS 1 TO 7, INCLUSIVE. IT ALSO SHOWS THAT
THE PLACE OF BUSINESS OF EACH OF THESE BIDDERS IS SEATTLE, WASHINGTON,
WHICH IS ONLY A SHORT DISTANCE FROM F.O.B. DELIVERY POINT, BREMERTON,
WASHINGTON. THUS, THE AGGREGATE BID OF THE GATES ENGINEERING COMPANY OF
$775.10 FOR ITEMS 1 TO 7, INCLUSIVE, AND ITS UNIT PRICES OF $2.20 AND
$3.50 PER LINEAL FOOT FOR ITEMS 1 AND 2, RESPECTIVELY, IS SUBSTANTIALLY
OUT OF LINE WITH THE UNIT PRICES AND AGGREGATE BID PRICES QUOTED BY THE
OTHER BIDDERS. THIS FACT IS EMPHASIZED WHEN IT IS CONSIDERED THAT THE
TWO OTHER RESPONSIVE BIDDERS, BECAUSE OF THEIR PROXIMITY TO THE POINT OF
DESTINATION, MAY NOT HAVE BEEN REQUIRED TO INCLUDE SUCH SUBSTANTIAL
FREIGHT CHARGES IN THEIR BID PRICES AS THE GATES ENGINEERING COMPANY WAS
REQUIRED TO DO BECAUSE OF THE DISTANCE BETWEEN ITS PLANT (WILMINGTON,
DELAWARE) AND THE DELIVERY POINT (BREMERTON, WASHINGTON).
THE DIFFERENCE BETWEEN THE AGGREGATE BID OF THE GATES ENGINEERING
COMPANY ON ITEMS 1 TO 7, INCLUSIVE, AND THE OTHER AGGREGATE BIDS
RECEIVED THEREON, TOGETHER WITH THE FACT THAT ON ITEM 1 THERE WAS ONLY A
DIFFERENCE OF $0.11 BETWEEN THE UNIT PRICES QUOTED BY THE OTHER BIDDERS
ON THAT ITEM, APPEARS TO HAVE BEEN SUFFICIENT TO INDICATE THE
PROBABILITY OF ERROR AND, THEREFORE, THE BID SHOULD NOT HAVE BEEN
ACCEPTED BY THE CONTRACTING OFFICER, IN THE ABSENCE OF KNOWLEDGE BY HIM
OF OTHER FACTS INDICATING THAT THE LOW BID WAS FAIR AND REASONABLE,
WITHOUT REQUESTING THE COMPANY TO VERIFY ITS BID.
ON THE RECORD, THERE IS NO ROOM FOR DOUBT THAT THE COMPANY MADE AN
ERROR IN ITS BID, AS ALLEGED. ACCORDINGLY, SINCE ERROR WAS ALLEGED BY
THE GATES ENGINEERING COMPANY ALMOST SIMULTANEOUSLY WITH THE ACCEPTANCE
OF ITS BID, AND APPARENTLY BEFORE IT BECAME AWARE OF THE ACCEPTANCE, THE
COMPANY MAY BE RELEASED FROM LIABILITY UNDER THE CONTRACT AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT
DATED JULY 31, 1956, ARE RETURNED.
B-115338, AUG 31, 1956
HEADNOTES-UNAVAILABLE
PRECIS-UNAVAILABLE
TO THE HEADS OF DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHERS
B-122841, AUG. 31, 1956
TO MR. JOHN J. KLAK:
CONSIDERATION HAS BEEN GIVEN TO YOUR REQUEST THAT OUR OFFICE REVIEW
ITS AUDIT ACTION WITH RESPECT TO THE CHARGES OF AVIATION CORPORATION OF
SEATTLE, DOING BUSINESS AS WESTAIR TRANSPORT, AN
IRREGULAR AIR CARRIER, FOR TRANSPORTATION SERVICES PERFORMED FOR THE
UNITED STATES BEGINNING IN 1951. THE SERVICES, FOR THE MOST PART,
CONSISTED OF CHARTER MOVEMENTS BY AIR OF MILITARY PERSONNEL BETWEEN
VARIOUS MILITARY ESTABLISHMENTS WITHIN THE UNITED STATES, WHICH ARE
GENERALLY REFERRED TO AS "CAMS" (COMMERCIAL AIR MOVEMENTS).
OUR AUDIT IS A PART OF OUR STATUTORY RESPONSIBILITIES RELATIVE TO THE
SETTLEMENT AND ADJUSTMENT OF ALL CLAIMS BY OR AGAINST THE UNITED STATES
(31 U.S.C. 71) AND SECTION 322 OF THE TRANSPORTATION
ACT OF 1940, 49 U.S.C. 66, SPECIFICALLY RESERVES THE RIGHT IN THE
GOVERNMENT IN INSTANCES SUCH AS HERE INVOLVED TO RECOVER OVERPAYMENTS BY
SETOFF. SUCH ACTION IS DESIGNED TO RECOVER PUBLIC FUNDS UNLAWFULLY
COLLECTED AND RETAINED AND IS NOT IN ANY WAY INCONSISTENT WITH THE
"NATIONAL TRANSPORTATION POLICY" (AS YOU SUGGEST) WHICH, APART FROM THE
FACT THAT SUCH POLICY IS NOT SPECIFICALLY APPLICABLE TO AIR CARRIAGE
SUBJECT TO THE CIVIL AERONAUTICS ACT OF 1938, CLEARLY ENOUGH IS NOT
INTENDED TO SANCTION PAYMENTS TO CARRIERS IN EXCESS OF THE AMOUNTS TO
WHICH THEY ARE ENTITLED FOR THEIR SERVICES.
THE AUDIT HERE IS FOR THE PURPOSE OF DETERMINING THAT THE SERVICES
CONTRACTED FOR HAVE BEEN PERFORMED IN A SATISFACTORY MANNER, AND THAT
THE CONTRACT AND CHARGES CONFORM TO ALL APPLICABLE STATUTES, RULES,
REGULATIONS, AND VALID AGREEMENTS BETWEEN THE CARRIER AND THE
GOVERNMENT. THE RATES AND CHARGES OF WESTAIR TRANSPORT FOR CHARTER
PASSENGER SERVICES WERE DETERMINED BY REFERENCE TO ITS TARIFFS FILED
WITH THE CIVIL AERONAUTICS BOARD IN COMPLIANCE WITH SECTION 403 OF THE
CIVIL AERONAUTICS ACT OF 1938, 49 U.S.C. 483, WHICH PROVIDED THE MAXIMUM
THAT THE CARRIER COULD CHARGE THE GOVERNMENT. BY REFERRING TO THE
CARRIER'S TARIFFS, TO SUCH ARRANGEMENTS BETWEEN THE CARRIER AND THE
GOVERNMENT THAT DO NOT EXCEED TARIFF REQUIREMENTS AND RATES, AND THE
DOCUMENTS SUBMITTED BY THE CARRIER TO SUPPORT ITS BILLS, THE CORRECTNESS
OF THE CARRIER'S CHARGES ARE DETERMINED.
YOUR REQUEST FOR REVIEW OF OUR AUDIT ACTION WITH REGARD TO WESTAIR
TRANSPORT DOES NOT IDENTIFY ANY SPECIFIC INSTANCES INVOLVING PARTICULAR
VOUCHERS AND CONTRACTS AS TO WHICH OUR ACTION DID NOT CONFORM TO THE
RECORD OR WAS CONTRARY TO ESTABLISHED LEGAL PRINCIPLES. SINCE YOUR
COMPLAINT WAS GENERAL IN NATURE, OUR TRANSPORTATION DIVISION WAS
REQUESTED TO FURNISH INFORMATION REGARDING THE AUDIT OF THE ACCOUNTS OF
WESTAIR TRANSPORT. THE TRANSPORTATION DIVISION HAS ADVISED THAT A
REVIEW HAS BEEN MADE OF ALL OVERPAYMENT NOTICES, G.A.O. FORMS NO.
1003, STATED AGAINST THAT CARRIER, AND THAT SUCH NOTICES INDICATED THAT
THERE WERE SEVERAL DISTINCT CLASSES OR TYPES OF OVERPAYMENTS. IT SHOULD
BE STATED, HOWEVER, THE TYPES OF OVERPAYMENTS ARE NOT PECULIAR TO
TRANSACTIONS INVOLVING ONLY WESTAIR TRANSPORT, BUT ARE TYPICAL OF
OVERPAYMENTS WHICH WE HAVE FOUND IN THE AUDIT OF VOUCHERS INVOLVING
COMMERCIAL AIR MOVEMENTS (CAMS) BY REGULAR AND IRREGULAR AIR CARRIERS
GENERALLY, IN ALL INSTANCES USING SIMILAR AUDIT PRINCIPLES.
THE FOLLOWING SPECIFIC INSTANCES OF OVERPAYMENT ARE PRESENTED AS
BEING REPRESENTATIVE OF THE SEVERAL CLASSES OR TYPES OF OVERPAYMENTS
INVOLVED IN THIS CASE AND WILL SERVE TO ILLUSTRATE THE AUDIT PROCEDURE
USED.
1. FERRY MILEAGE BILLED AND PAID FOR EXCEEDED FERRY MILEAGE ACTUALLY
FLOWN BY AIRCRAFT ASSIGNED TO A SPECIFIC CHARTER MOVEMENT.
T/R DA-1,113,479, ATTACHED TO BILL NO. WAT-20, PAID ON VOUCHER NO.
511982 IN THE AUGUST 1952 ACCOUNTS OF DISBURSING OFFICER J. L. WHIPPLE,
WAS ISSUED AT CAMP STONEMAN, CALIFORNIA, ON JULY 14, 1952, FOR THE
TRAVEL OF 38 PERSONS FROM OAKLAND AIRPORT, CALIFORNIA, TO COLUMBIA
MUNICIPAL AIRPORT, SOUTH CAROLINA, AND REFERRED TO CAM 1177-J, FOR WHICH
WESTAIR TRANSPORT BILLED AND WAS PAID $4,784.65.
THE AMOUNT PAID INCLUDED CHARGES FROM 1,850 PREFERRY MILES FROM
CHICAGO, ILLINOIS, TO OAKLAND, CALIFORNIA, AND 523 POSTFERRY MILES FROM
COLUMBIA, SOUTH CAROLINA, TO PHILADELPHIA, PENNSYLVANIA. WHILE THE
TRANSPORTATION REQUEST AND THE ADMINISTRATIVE ACCEPTANCE OF THE CHARTER
CERTIFICATE, WHICH IS SHOWN TO HAVE OCCURRED SEVERAL DAYS AFTER THE
SCHEDULED DATE OF THE MOVEMENT, WERE CONSIDERED SATISFACTORY EVIDENCE OF
PERFORMANCE OF THE LIVE MILEAGE SERVICE BETWEEN THE POINTS SPECIFIED IN
THE CHARTER CERTIFICATE, THERE WAS NO EVIDENCE PRESENTED TO SUPPORT THE
FERRY MILEAGE BETWEEN THE POINTS SPECIFIED THEREIN. ON MARCH 1, 1954,
WE REQUESTED FACTUAL EVIDENCE OF THE FERRY MILEAGE ACTUALLY FLOWN IN
CONNECTION WITH THIS MOVEMENT. IN OCTOBER 1954 WESTAIR TRANSPORT
SUBMITTED, IN CONNECTION WITH CAM 1177-J, A PILOTS FLIGHT REPORT, WHICH
INDICATES THAT PLANE NUMBER 1247-N (THE SAME PLANE NUMBER NOTED ON THE
BOTTOM OF THE CAM CERTIFICATE) FLEW IN FERRY SERVICE FROM LOWRY AIR
FORCE BASE, DENVER, COLORADO, TO OAKLAND, CALIFORNIA, ON JULY 15, 1952.
THIS IS CONFIRMED BY WESTAIR TRANSPORT'S OPERATIONAL REPORT FOR THE
QUARTER ENDING SEPTEMBER 30, 1952, WHICH WAS REQUIRED TO BE FILED WITH
THE CIVIL AERONAUTICS BOARD PURSUANT TO APPLICABLE REGULATIONS. WESTAIR
TRANSPORT'S TRIP REGISTER, PAGES 49 AND 50, ALSO INDICATES THE FERRY
FLIGHT OF THIS PLANE FROM DENVER TO OAKLAND ON JULY 15, 1952. THE
AIRCRAFT (1247-N) WAS POSITIONED AT DENVER AS A RESULT OF ANOTHER
CHARTER PASSENGER MOVEMENT UNDER CAM 1201-J, FROM KELLY FIELD, SAN
ANTONIO, TEXAS, TO LOWRY AIR FORCE BASE, DENVER, COLORADO. UPON
COMPLETION OF THE CHARTER FLIGHT PURSUANT TO CAM 1177-J, THE OPERATIONAL
REPORT FILED WITH THE CIVIL AERONAUTICS BOARD INDICATES AIRCRAFT 1247-N
DID NOT MAKE A POSTFERRY FLIGHT FROM COLUMBIA, SOUTH CAROLINA, TO
PHILADELPHIA, PENNSYLVANIA, BUT, INSTEAD, THE PLANE WAS RESCHEDULED IN
ANOTHER CHARTER PASSENGER FLIGHT FROM COLUMBIA, SOUTH CAROLINA, TO
VICHY, MISSOURI, UNDER CAM 1238-J.
FOR THE SERVICES ACTUALLY PERFORMED PURSUANT TO CAM 1177-J, WESTAIR
TRANSPORT WAS ALLOWED 941 PREFERRY MILES FROM DENVER TO OAKLAND,
COMPUTED FROM U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY
PUBLICATION NO. 238, 2,309 LIVE MILES FROM OAKLAND TO COLUMBIA AS
BILLED, AND NO POSTFERRY MILEAGE SINCE NO POSTFERRY FLIGHT WAS
NECESSARY. ON THE BASIS OF THE FOREGOING INFORMATION A NOTICE OF
OVERPAYMENT FOR $1,145 WAS ISSUED IN CONNECTION WITH THIS TRIP.
THE RECORD SHOWED THAT WESTAIR TRANSPORT WAS FULLY COGNIZANT AT THE
TIME IT BILLED AND WAS PAID CHARGES BASED ON THE TOTAL FERRY MILEAGE
SHOWN ON THE CHARTER CERTIFICATE, THAT IT HAD ACTUALLY FLOWN A REDUCED
AMOUNT OF FERRY MILEAGE. IN THIS SITUATION WESTAIR TRANSPORT GAVE NO
EFFECT TO GENERAL PROVISION (3) OF THE CHARTER CERTIFICATE WHICH READS:
"IF THE AGREED UPON FERRY MILEAGE CAN BE ELIMINATED OR REDUCED BY
RESCHEDULING THE ASSIGNED EQUIPMENT IN REGULAR OR OTHER CHARTERED
SERVICES, THE BENEFIT OF SUCH REDUCTION IN FERRY MILES FLOWN SHALL BE
CREDITED BACK TO THE CONTRACTING AGENCY AT THE CONTRACT RATE PER MILE.'
THE ABOVE EXAMPLE OF THE FAILURE TO ELIMINATE OR REDUCE FERRY MILEAGE
NOT FLOWN BECAUSE OF RESCHEDULING AIRCRAFT IS TYPICAL OF MANY CASES.
OUR AUDIT ACTION GAVE EFFECT TO THIS PROVISION OF THE CHARTER
CERTIFICATE, AND UNDER THE CIRCUMSTANCES WAS PROPER.
2. OFFSET OF PREFERRY MILEAGE SHOWN ON THE CHARTER CERTIFICATE, BUT
NOT FLOWN, AGAINST POSTFERRY MILEAGE FLOWN IN EXCESS OF AMOUNT SHOWN ON
CHARTER CERTIFICATE.
T/R DA-1,132,670, ATTACHED TO WESTAIR TRANSPORT'S BILL NO. T-124,
PAID ON VOUCHER NO. 559187 IN THE FEBRUARY 1953 ACCOUNTS OF DISBURSING
OFFICER J. L. WHIPPLE, WAS ISSUED ON JANUARY 1, 1953, FOR THE TRAVEL OF
38 PERSONS FROM BOEING FIELD, SEATTLE, WASHINGTON, TO FRIENDSHIP FIELD,
BALTIMORE, MARYLAND, AND REFERRED TO CAM 4294-J. FOR THIS SERVICE
WESTAIR TRANSPORT BILLED AND WAS PAID $3,815.10, WHICH INCLUDED CHARGES
FOR 959 PREFERRY MILES FROM BURBANK, CALIFORNIA, TO SEATTLE, WASHINGTON,
AND 163 POSTFERRY MILES FROM BALTIMORE, MARYLAND, TO NEWARK, NEW JERSEY.
EVIDENCE THAT THE PREFERRY MILEAGE WAS FLOWN WAS NOT FURNISHED BY
WESTAIR TRANSPORT. AN AMENDED OPERATIONAL REPORT FOR THE QUARTER ENDED
DECEMBER 31, 1952, FILED WITH THE CIVIL AERONAUTICS BOARD, INDICATES
THAT AIRCRAFT 1246-N--- THE SAME AIRCRAFT SHOWN ON CAM 4294-J--- WAS
POSITIONED AT SEATTLE, WASHINGTON, AS THE RESULT OF A COMMON CARRIAGE
PASSENGER FLIGHT FROM WASHINGTON, D.C. ACCORDINGLY, IN CONFORMITY WITH
GENERAL PROVISION (3) OF THE CHARTER CERTIFICATE THE PREFERRY MILEAGE
WAS DISALLOWED. THE POSTFERRY MILEAGE FLOWN WAS SUPPORTED BY A COPY OF
SLICK AIRWAYS, INC. AIRCRAFT AND ENGINE LOG FOR AIRCRAFT 1246-N.
(SLICK AIRWAYS FORMS ARE REPORTEDLY USED AS A MATTER OF CONVENIENCE.)
THIS LOG INDICATES THAT AIRCRAFT 1246-N FLEW IN FERRY STATUS FROM
BALTIMORE, MARYLAND, TO LA GUARDIA FIELD, NEW YORK, A DISTANCE OF 172
MILES, OR NINE MILES IN EXCESS OF THE 163 POSTFERRY MILES SHOWN ON THE
CHARTER CERTIFICATE. IN OUR AUDIT WESTAIR TRANSPORT WAS ALLOWED CREDIT
FOR THE 172 (OR NINE MORE THAN CLAIMED) POSTFERRY MILES ACTUALLY FLOWN
IN ORDER TO GIVE THE CARRIER MAXIMUM CREDIT FOR ALL FERRY MILES
IDENTIFIABLE AS BEING APPLICABLE TO THE SPECIFIC MOVEMENT INVOLVED.
3. FERRY MILEAGE "SPLIT" BETWEEN TWO SUCCESSIVE CAM FLIGHTS.
T/R DA-1,110,691, ATTACHED TO WESTAIR TRANSPORT'S BILL NO. WAT-23,
PAID ON VOUCHER NO. 518807 IN THE SEPTEMBER 1952 ACCOUNTS OF DISBURSING
OFFICER J. L. WHIPPLE, WAS ISSUED AT FORT LAWTON, WASHINGTON, ON JULY
30, 1952, FOR THE TRAVEL OF 37 PERSONS FROM SEATTLE, WASHINGTON, TO
STANDIFORD FIELD, LOUISVILLE, KENTUCKY, AND REFERRED TO CAM 1444-J. FOR
THIS SERVICE THE CARRIER BILLED AND WAS PAID $3,739.15. THIS AMOUNT
INCLUDED CHARGES FOR 1,369 PREFERRY MILES FROM OMAHA, NEBRASKA, TO
SEATTLE, WASHINGTON, AND 269 POSTFERRY MILES FROM LOUISVILLE, KENTUCKY,
TO CHICAGO, ILLINOIS.
TO SUPPORT THIS FERRY MILEAGE THE CARRIER SUBMITTED THREE PILOTS
FLIGHT REPORTS ON FORMS OF THE FLYING TIGER LINE, INC. THE FIRST REPORT
INDICATES THAT PLANE NUMBER 1246-N (PLANE 1246-N IS ALSO
SHOWN ON CAM 1444-J) FLEW IN A FERRY STATUS FROM ELP (EL PASO, TEXAS
TO BUR (BURBANK, CALIFORNIA), AND THE SECOND REPORT INDICATES THAT THE
PLANE FLEW IN FERRY STATUS FROM BUR (BURBANK) TO BFI (SEATTLE
WASHINGTON). THESE TWO DOCUMENTS WERE SUBMITTED TO SUPPORT THE
CARRIER'S CLAIM FOR 1,369 PREFERRY MILES FROM OMAHA TO SEATTLE. THE
THIRD REPORT INDICATES THAT PLANE 1246-N FLEW FROM SDF (LOUISVILLE,
KENTUCKY) TO GRI (GRAND ISLAND, NEBRASKA), AND IT WAS SUBMITTED TO
SUPPORT THE POSTFERRY MILEAGE CLAIMED FROM LOUISVILLE, KENTUCKY, TO
CHICAGO, ILLINOIS.
THE DISTANCE SHOWN IN PUBLICATION NO. 238 FROM EL PASO TO BURBANK
(LOS ANGELES USED FOR BURBANK) IS 701 MILES, AND THE DISTANCE FROM
BURBANK TO SEATTLE IS 959 MILES OR A TOTAL OF 1,660 MILES. ON THE BASIS
OF SUCH RECORDS, WITHOUT MORE, IT WOULD APPEAR THAT WESTAIR TRANSPORT
WAS ENTITLED TO THE 1,369 PREFERRY MILES STATED IN CAM 1444-J AS FLOWN
FROM OMAHA TO SEATTLE. HOWEVER, THE CARRIER HAD ALSO DESIGNATED THE
SAME FLIGHT REPORTS AS SUPPORTING THE 628 POSTFERRY MILES BID FROM EL
PASO, TEXAS, TO SAN DIEGO, CALIFORNIA, IN CONNECTION WITH CAM 1354-J.
THIS IS THE SO-CALLED "SPLIT-FERRY" SITUATION; THAT IS, THE FERRY
MILEAGE FLOWN IS SPLIT BETWEEN TWO SUCCESSIVE CAM FLIGHTS WHERE THE SAME
AIRCRAFT IS USED. IN THE INSTANT CASE, PLANE 1246-N WAS USED IN A
CHARTER PASSENGER FLIGHT UNDER CAM 1354-J FROM SPRINGFIELD, MISSOURI, TO
EL PASO, TEXAS, PRIOR TO THE FERRY FLIGHT FROM EL PASO TO SEATTLE VIA
BURBANK DESCRIBED ABOVE. THE FERRY MILEAGE SITUATION, AS RELATED TO THE
CARRIER'S CLAIM FOR PREFERRY MILEAGE ON CAM 1444-J AND THE POSTFERRY
MILEAGE ON CAM 1354-J, APPEARS AS FOLLOWS:
CHART
CAM CERTIFICATE FERRY MILEAGE:
CAM 1354-J, POSTFERRY, EL PASO TO SAN DIEGO 628
CAM 1444-J, PREFERRY, OMAHA TO SEATTLE 1,369
-----
TOTAL RELATED CAM CERTIFICATE FERRY MILEAGE 1,997
ACTUAL FLIGHT OF THE PLANE (MILEAGE COMPUTED FROM PUBLICATION NO.
238):
EL PASO TO BURBANK 701
BURBANK TO SEATTLE 959
-----
TOTAL 1,660
THUS, IT CAN BE SEEN THAT THE DISTANCE OF 1,660 MILES ACTUALLY FLOWN
AND CREDITED BY WESTAIR TRANSPORT AGAINST THESE TWO CAMS, IS LESS THAN
THE AGGREGATE OF THE CERTIFICATE POSTFERRY MILEAGE ON CAM 1354-J AND THE
PREFERRY MILEAGE ON CAM 1444-J. IN ORDER TO GIVE THE CARRIER MAXIMUM
CREDIT FOR THE 1,660 MILES ACTUALLY FLOWN OUR TRANSPORTATION DIVISION
ALLOWED THE 628 POSTFERRY MILES STATED IN CAM 1354-J, AND THE BALANCE,
OR 1,032 MILES, WAS CREDITED AGAINST THE PREFERRY MILES STATED IN CAM
1444-J.
AN AUDIT PRACTICE TO WHICH YOU OBJECT IS THE REQUIREMENT FOR REVIEWS
AND RECOMPUTATION OF THE INDIVIDUAL CAM RECORDS. IT APPEARS THAT MORE
THAN ONE REVIEW OF FERRY SUPPORT DATA IS OFTEN NECESSARY IN ORDER TO
GIVE THE CARRIER MAXIMUM CREDIT FOR FERRY MILEAGE FLOWN IN CONNECTION
WITH RELATED CAMS, WHICH WOULD NOT BE POSSIBLE IF THE CAMS ARE
CONSIDERED INDIVIDUALLY. SITUATIONS SUCH AS THAT INVOLVED IN THE ABOVE
EXAMPLE REQUIRED THE REVIEW OF FERRY SUPPORT DATA IN ORDER THAT
APPROPRIATE DISTRIBUTION OF FERRY MILEAGE FLOWN COULD BE MADE. IT
SHOULD BE NOTED THAT CONSIDERATION OF THE FERRY MILEAGE ATTRIBUTABLE TO
SUCCESSIVE CAMS WAS UNDERTAKEN ONLY IN INSTANCES WHERE SUCCESSIVE
CHARTER MOVEMENTS PERFORMED WITH THE SAME AIRCRAFT COULD BE READILY
ASSOCIATED FROM THE AVAILABLE FLIGHT RECORDS. HOWEVER, WHERE THE
EVIDENCE SUBMITTED BY WESTAIR TRANSPORT IN SUPPORT OF FERRY MILEAGE
FLOWN INDICATED THAT THE AIRCRAFT ASSIGNED TO SUCCESSIVE CAMS HAD BEEN
USED FOR OTHER COMMERCIAL PURPOSES IN THE INTERVENING PERIOD, THE ABOVE
TREATMENT OF FERRY MILEAGE COULD NOT BE APPLIED DUE TO INABILITY
ACCURATELY TO ASSOCIATE THE FERRY MILEAGE WITH PARTICULAR CAMS. IN SUCH
CASES THE CAMS WERE TREATED AS RELATING TO SEPARATE AND DISTINCT
CHARTERS. THIS PROCEDURE HAS BEEN CONSISTENTLY FOLLOWED IN OUR AUDIT OF
PAYMENTS TO ALL AIR CARRIERS WHEN THE SO-CALLED "SPLIT" FERRY MILEAGE
PROBLEM HAS ARISEN.
4. MILEAGE SOURCES
(A) PUBLICATION NO. 238
CHARTER CERTIFICATE NO. 1716-B, RELATED TO T/R DA-1,056,904, ISSUED
ON FEBRUARY 2, 1952, WAS SUBMITTED IN PARTIAL SUPPORT OF WESTAIR
TRANSPORT'S BILL NO. 217, PAID ON VOUCHER NO. 211386 IN THE FEBRUARY
1952 ACCOUNTS OF DISBURSING OFFICER S. E. BIGNELL. THE CERTIFICATE
INDICATES THAT BOTH THE LIVE MILEAGE FROM OAKLAND, CALIFORNIA, TO
OLMSTEAD AIR FORCE BASE, PENNSYLVANIA, AND THE POSTFERRY MILEAGE FROM
HARRISBURG, PENNSYLVANIA, TO NEWARK, NEW JERSEY, WERE DETERMINED FROM
SOURCE CODE B, AIRWAYS DISTANCE CHARTS. HOWEVER, GENERAL PROVISION (1)
OF THE CHARTER CERTIFICATE READS:
"/1) THE FOLLOWING LETTER CODES SHALL BE USED TO INDICATE THE SOURCES
OF MILEAGES BETWEEN POINTS LISTED IN THE ROUTINGS:
CHART
CODE SOURCE WHEN USED
A DEPARTMENT OF COMMERCE PUBLICATION 328 GENERALLY
B AIRWAYS DISTANCE CHARTS FIRST ALTERNATE
C CAB MILEAGE BOOK NO. 1 AND/OR 2 SECOND ALTERNATE
OR AS PUBLISHED
TARIFFS REQUIRE
D OTHER THIRD ALTERNATE"
THIS PROVISION SIGNIFIES THAT CODE B AIRWAYS DISTANCE CHARTS ARE TO
BE USED AS THE "FIRST ALTERNATE" TO DEPARTMENT OF COMMERCE PUBLICATION
238, WHICH SHOWS AIRLINE DISTANCES BETWEEN CITIES IN THE UNITED STATES
COMPUTED ON THE GREAT CIRCLE PROJECTION BASIS. THE WORD "ALTERNATE" IS
UNDERSTOOD AS DENOTING THAT "SOURCE B" IS A SUBSTITUTE MILEAGE SOURCE TO
BE USED IN LIEU OF ,SOURCE A," WHERE NECESSARY, AND NOT AT THE CARRIER'S
OPTION.
AS PREVIOUSLY INDICATED, AIR CARRIERS SUBJECT TO REGULATION BY THE
CIVIL AERONAUTICS BOARD ARE REQUIRED BY SECTION 403 OF THE CIVIL
AERONAUTICS ACT TO CHARGE ONLY THOSE RATES SPECIFIED IN THEIR
CURRENTLY EFFECTIVE TARIFFS. AT THE TIME OF THIS MOVEMENT FROM
OAKLAND TO OLMSTEAD AIR FORCE BASE THE EFFECTIVE CHARTER TARIFF FOR
WESTAIR TRANSPORT'S ACCOUNT WAS AGENT JOHN J. KLAK'S MILITARY TRAFFIC
TARIFF NO. 1, C.A.B. NO. 3. THE RATES SHOWN ON 3RD REVISED PAGE 10,
EFFECTIVE FROM NOVEMBER 7, 1951, TO MARCH 26, 1952, ARE PERTINENT HERE.
THE PROVISION IN THIS TARIFF RELEVANT TO THE COMPUTATION OF MILEAGES,
REMAINED UNCHANGED FROM MAY 26, 1951, THROUGH MARCH 26, 1952. SUCH
PROVISION READS AS FOLLOWS:
"MILEAGE WILL BE COMPUTED BY REFERENCE TO CURRENT UNITED STATES COAST
AND GEODETIC SURVEY CHARTS AND THE ROUTE USED WILL BE THE MOST DIRECT
ALONG ESTABLISHED CIVIL AIRWAYS WHEN PRACTICAL.'
PUBLICATION NO. 238, CODE A IN THE CHARTER CERTIFICATE, IS MORE FULLY
DESCRIBED AS "U.S. DEPARTMENT OF COMMERCE COAST AND GEODETIC SURVEY
AIR-LINE DISTANCES BETWEEN CITIES IN THE UNITED STATES.' IT SHOULD BE
CLEAR, FROM THE FACT THAT THE COAST AND GEODETIC SURVEY HAS ISSUED
VARIOUS CHARTS OR PUBLICATIONS USEFUL IN DETERMINING AIRLINE DISTANCES
BETWEEN CITIES, THAT THE PERTINENT PROVISION IN AGENT KLAK'S TARIFF NO.
1, 3RD REVISED PAGE 10, IS LACKING IN ESSENTIAL CLARITY TO SIGNIFY THAT
THE MILEAGES FOR TARIFF PURPOSES ARE TO BE OBTAINED EXCLUSIVELY FROM
"AIRWAYS DISTANCE CHARTS.' THE CONCLUSION THAT PUBLICATION NO. 238 MAY
PROPERLY BE VIEWED AS WITHIN THE SOURCES INDEFINITELY DESCRIBED IN THE
TARIFF IS STRENGTHENED BY REASON OF THE FULLER DESCRIPTION OF THE
PUBLICATION SPECIFIED, AS CONTAINING THE MILEAGE INFORMATION, IN 4TH
REVISED PAGE 10 OF THE TARIFF, EFFECTIVE MARCH 27, 1952, A FEW MONTHS
AFTER THE EFFECTIVE DATE OF 3RD REVISED PAGE 10. THE 4TH REVISED PAGE
10 IDENTIFIES THE PUBLICATION AS THE "CURRENT (C) U.S. DEPARTMENT OF
COMMERCE COAST AND GEODETIC SURVEY AIR-LINE DISTANCES BETWEEN CITIES IN
THE UNITED STATES.' THE SAME DESCRIPTION IS ALSO CONTAINED IN LATER
REVISIONS OF PAGE 10. THAT DESCRIPTION CONFORMS CLOSELY TO THE TITLE OF
THE PUBLICATION USED IN OUR AUDIT, LACKING ONLY THE WORDS "SPECIAL
PUBLICATION NO. 238" IN ORDER TO MAKE IT IDENTICAL WITH SUCH TITLE.
THE REFERENCE "/C)" IS EXPLAINED IN THE TARIFF AS DENOTING "CHANGES IN
WORDING WHICH RESULT IN NEITHER INCREASES OR DECREASES.'
THUS, IT WOULD APPEAR THAT, ALTHOUGH AGENT KLAK'S TARIFF NO. 1
ESTABLISHES NO PARTICULAR PUBLICATION BY NUMBER AS BEING THE SOLE OR
PRIMARY SOURCE OF MILEAGE INFORMATION, THE GENERAL LANGUAGE USED IN 3RD
AND 4TH REVISED PAGE 10 IS PRACTICALLY THE SAME AS THE TITLE OF
PUBLICATION NO. 238. IN ANY EVENT, SINCE THERE IS REASONABLE GROUND FOR
THE ASSUMPTION THAT THE TARIFF LANGUAGE IS INDEFINITE, ANY DOUBT THAT
THEREBY ARISES MUST BE RESOLVED IN FAVOR OF THE GOVERNMENT IN ACCORDANCE
WITH A FIRMLY-ESTABLISHED PRINCIPLE OF TARIFF INTERPRETATION.
(B) USE OF AIRWAY DISTANCE CHARTS WHERE THE TARIFF RATE AVAILABLE TO
THE GENERAL PUBLIC IS LOWER THAN THE RATE IN CARRIER'S MILITARY TRAFFIC
TARIFF.
DURING THE PERIOD FROM MAY 26, 1951, TO OCTOBER 6, 1951, WESTAIR
TRANSPORT HAD ON FILE WITH THE CIVIL AERONAUTICS BOARD TWO TARIFFS---
LOCAL PASSENGER TARIFF NO. 1, C.A.B. NO. 5, AND MILITARY TRAFFIC TARIFF
NO. 1, C.A.B. NO. 3. THE CHARTER RATES MADE AVAILABLE TO THE GENERAL
PUBLIC ON 2ND REVISED PAGE 17-A OF LOCAL PASSENGER TARIFF NO. 1, C.A.B.
NO. 5, WERE SUBSTANTIALLY LOWER THAN THE CHARTER RATES SHOWN IN MILITARY
TRAFFIC TARIFF NO. 1, C.A.B. NO. 3. IT IS WELL SETTLED THAT THE UNITED
STATES, BEING A PART OF THE GENERAL PUBLIC, IS ENTITLED TO
TRANSPORTATION SERVICES AT RATES NOT IN EXCESS OF THOSE AVAILABLE TO THE
PUBLIC FOR LIKE SERVICES. 33 COMP. GEN. 483, 487; 20 ID. 870, 875;
MISSOURI PACIFIC RAILROAD COMPANY V. THE UNITED STATES, 71 C.CLS. 650,
661. WESTAIR TRANSPORT'S BILLS COVERING SERVICES PERFORMED DURING THIS
PERIOD WERE THEREFORE AUDITED ON THE BASIS OF THE RATES IN LOCAL
PASSENGER TARIFF NO. 1, C.A.B. NO. 5. THIS TARIFF PROVIDED THAT RULE
26.0 WOULD GOVERN THE COMPUTATION OF MILEAGE. THE SAID RULE PROVIDES
THAT---
"MILEAGE BETWEEN POINTS NOT SPECIFICALLY SHOWN IN TABLES, ON WHICH
FARES ARE BASED, WILL BE COMPUTED BY REFERENCE TO CURRENT UNITED STATES
COAST AND GEODETIC SURVEY SECTIONAL OR REGIONAL AERONAUTICAL CHARTS AND
THE ROUTE USED WILL BE THE MOST DIRECT ALONG ESTABLISHED CIVIL AIRWAYS
WHEN PRACTICAL.'
THERE APPARENTLY ARE VARIOUS SECTIONAL AERONAUTICS CHARTS COVERING
THE UNITED STATES, AND NO AERONAUTICAL CHARTS SPECIFICALLY TITLED
"REGIONAL.' THE SECTIONAL AERONAUTICAL CHARTS DO NOT INDICATE MILEAGES
ALONG THE CIVIL AIRWAYS, AND TO DETERMINE MILEAGES IT IS NECESSARY TO
SCALE THE MILEAGES BETWEEN POINTS ON THE VARIOUS CHARTS. IT WAS FOUND
THAT THE COAST AND GEODETIC SURVEY PUBLISHED A "CIVIL AIRWAYS AND
MILEAGE CHART, LOW FREQUENCY (COLORED) AIRWAYS SYSTEM," WHICH INDICATED
MILEAGES BETWEEN POINTS ON THE CIVIL AIRWAYS. SINCE THE DISTANCES
BETWEEN POINTS ON THE CIVIL AIRWAYS WERE SCALED FROM THE SECTIONAL
AERONAUTICAL CHARTS, THE USE OF THIS "MILEAGE CHART"
WOULD NOT APPEAR TO VIOLATE THE PROVISIONS OF RULE 26.0. THEREFORE,
IN THOSE INSTANCES WHERE WESTAIR TRANSPORT'S (AVIATION CORPORATION OF
SEATTLE) LOCAL PASSENGER TARIFF NO. 1, C.A.B. NO. 5, WAS USED IN OUR
AUDIT TO DETERMINE THE RATE, THE ABOVE-IDENTIFIED "MILEAGE CHART"
AFFORDED THE INFORMATION NECESSARY TO DETERMINE THE AGGREGATE DISTANCES.
5. RATES
T/R DA-442,831, ISSUED ON JULY 17, 1952, FOR THE TRAVEL OF 40
PERSONS, REFERRING TO CAM NO. 1238-J, WAS ANNOTATED ON THE BACK
"TRANSPORTATION PROVIDED FOR 31 PERSONS.' WHILE MILITARY TRAFFIC TARIFF
NO. 1, C.A.B. NO. 3, NAMED A FERRY MILEAGE RATE OF 80 CENTS PER MILE,
APPLICABLE IN EITHER CASE, IT NAMED A RATE OF $1.25 PER CHARTER MILE FOR
LOADS OF MORE THAN 35 PASSENGERS AND A RATE OF $1.15 PER CHARTER MILE
FOR LOADS OF 35 PASSENGERS OR LESS. WESTAIR TRANSPORT'S BILL NO.
WAT-20, PAID ON VOUCHER NO. 511982 IN THE AUGUST 1952 ACCOUNTS OF
DISBURSING OFFICER J. L. WHIPPLE, INDICATES THAT THE CHARGES FOR THIS
TRANSPORTATION REQUEST WERE COMPUTED BY THE CARRIER ON THE BASIS OF A
LOAD OF MORE THAN 35 PASSENGERS AT $1.25 PER CHARTER MILE. THERE DID
NOT APPEAR TO BE ANY PROPER BASIS FOR THE CARRIER'S CHARGE AND WE
APPLIED THE RATE OF $1.15 PER CHARTER (LIVE) MILE FOR THIS MOVEMENT.
T/R WQ 35,499,157, ATTACHED TO WESTAIR TRANSPORT'S BILL NO. 8, PAID
ON VOUCHER NO. 89767 IN THE OCTOBER 1951 ACCOUNTS OF DISBURSING OFFICER
S. E. BIGNELL, WAS ISSUED ON SEPTEMBER 28, 1951, FOR THE CHARTER
TRANSPORTATION OF 44 PERSONS FROM SEATTLE, WASHINGTON, TO NEWARK, NEW
JERSEY. THE TRANSPORTATION REQUEST REFERRED TO CAM 323-B. FOR THIS
SERVICE WESTAIR TRANSPORT BILLED AND WAS PAID $6,065.20, BUT NO RATE
BASIS FOR THE CHARGES WAS SHOWN IN THE BILL OR THE CHARTER CERTIFICATE.
IN SUBSEQUENT CORRESPONDENCE WITH THE CARRIER IT WAS DEVELOPED THAT
CHARGES HAD BEEN BASED ON A RATE OF FOUR CENTS PER PASSENGER MILE.
WESTAIR TRANSPORT'S TARIFF PUBLISHING PER PASSENGER MILE RATES WAS LOCAL
PASSENGER TARIFF NO. 1, C.A.B. NO. 5, WHICH ON ORIGINAL PAGE 16 SHOWS
"NON-CHARTER PASSENGER FARES IN DOLLARS PER PASSENGER AIR MILE.' THESE
RATES WERE SPECIFICALLY IDENTIFIED AS NON-CHARTER RATES. AS THE
TRANSPORTATION REQUEST CALLED FOR "CHARTER"
SERVICE, THE ONLY RATE APPLICABLE TO THIS MOVEMENT WAS THE CHARTER
RATE PER MILE. WHEN THE SERVICE HERE INVOLVED WAS PERFORMED WESTAIR
TRANSPORT HAD ON FILE WITH THE CIVIL AERONAUTICS BOARD TWO CHARTER
TARIFFS, OF WHICH LOCAL PASSENGER TARIFF NO. 1, C.A.B. NO. 5, DISCUSSED
ABOVE, QUOTED THE LOWEST CHARTER RATE. THEREFORE, IN OUR AUDIT, THE
CHARTER RATE OF "$0.75 PER AIR MILE USE OF ENTIRE AIRPLANE" SHOWN ON 2ND
REVISED PAGE 17-A OF LOCAL PASSENGER TARIFF NO. 1, C.A.B. NO. 5, AND THE
MILEAGES COMPUTED FROM THE "CIVIL AIRWAYS AND MILEAGE CHART," WERE USED
TO DETERMINE THE ALLOWABLE CHARGES FOR THE LIVE AND FERRY MOVEMENTS.
YOU SUGGEST THAT WE FAILED TO RECOGNIZE C.A.A. FLIGHT AND OPERATIONAL
AND OTHER RESTRICTIONS PLACED UPON THE CARRIER. OUR OFFICE HAS BEEN
AWARE OF CERTAIN RESTRICTIONS PERTAINING TO THE OPERATIONS OF IRREGULAR
AIR CARRIERS SET FORTH IN PART 42 OF THE CIVIL AIR REGULATIONS, 14
C.F.4. 42, SUCH AS THE GROSS MAXIMUM TAKE-OFF WEIGHT LIMIT OF 45,000
POUNDS FOR C-46 TYPE AIRCRAFT USED IN CARRYING PASSENGERS FOR HIRE, AND
THE REQUIREMENT THAT NIGHT VFR (VISUAL FLIGHT RULES) PASSENGER
OPERATIONS ENTAILING USE OF LARGE AIRCRAFT SHALL BE CONDUCTED ONLY OVER
CIVIL AIRWAYS OR OVER OFF-AIRWAY ROUTES FOR WHICH THE ADMINISTRATOR OF
THE CIVIL AERONAUTICS ADMINISTRATION HAS ESTABLISHED MINIMUM EN ROUTE
INSTRUMENT ALTITUDES. OUR OFFICE IS WILLING TO GIVE EFFECT TO CIVIL AIR
REGULATIONS REQUIRING OPERATIONS ONLY OVER THE CIVIL AIRWAYS WHEN
CARRYING PASSENGERS FOR HIRE. HOWEVER, IT SHOULD BE NOTED THAT THE
BURDEN OF ASSERTING AND PROVING CLAIMS ON THIS BASIS IS UPON THE
CLAIMANT. 23 COMP. GEN. 907; 18 ID. 980; AND 17 ID. 831.
THE ABOVE ILLUSTRATIONS SHOULD SHOW THAT OUR OFFICE HAS TRIED TO GIVE
MAXIMUM CONSIDERATION TO THE PROVISIONS OF THE CARRIER'S TARIFFS, THE
AIR CARRIER ASSOCIATION AGREEMENTS WITH THE GOVERNMENT, AND THE
INDIVIDUAL CHARTER CERTIFICATES. OUR AUDIT PRACTICES AND POLICIES WITH
RESPECT TO PAYMENTS TO WESTAIR TRANSPORT HAVE BEEN REVIEWED AND HAVE
BEEN FOUND CONSISTENT WITH THE GENERAL AUDIT PRINCIPLES WE APPLY. IF
THERE ARE ANY SPECIFIC BILLS OF WESTAIR TRANSPORT ON WHICH WE HAVE
STATED EXCEPTIONS WHICH YOU BELIEVE WERE INCORRECTLY STATED, WE WILL
AGAIN REVIEW THE AUDIT ACTION TAKEN UPON YOUR REQUEST SUPPORTED BY
APPROPRIATE RECORDS AND INFORMATION IN FAVOR OF YOUR POSITION.
SINCE THE OVERPAYMENTS INVOLVED IN THIS CASE ARE CONSIDERABLE IN
AMOUNT, HAVING BEEN MADE SEVERAL YEARS AGO, AND SINCE THE CARRIER HAS
BEEN FULLY AWARE OF THE MEANS OF PROOF REQUIRED IN OUR AUDIT TO
SUBSTANTIATE ITS BILLINGS AND THE TYPES OF QUESTIONS THAT WERE BEING
RAISED, IT IS NECESSARY THAT THE CARRIER TAKE APPROPRIATE STEPS TO
LIQUIDATE ITS INDEBTEDNESS TO THE UNITED STATES INASMUCH AS WE WOULD NOT
BE WARRANTED IN FURTHER DELAYING PROPER COLLECTION EFFORTS TO RECOVER
THE OVERPAYMENTS.
B-125404, AUG. 31, 1956
TO HONORABLE ROBERT E. MCLAUGHLIN, PRESIDENT, BOARD OF COMMISSIONERS
OF THE DISTRICT OF OLUMBIA:
REFERENCE IS MADE TO LETTER OF AUGUST 2, 1956, FROM THE ACTING
PRESIDENT OF THE BOARD OF COMMISSIONERS, CONCERNING THE PRESENT
AVAILABILITY OF FUNDS FOR THE CONSTRUCTION OF A PROPOSED BRIDGE ACROSS
THE POTOMAC RIVER IN THE VICINITY OF CONSTITUTION AVENUE AT A LOCATION
OTHER THAN THAT PRESCRIBED IN THE ACT AUTHORIZING THE CONSTRUCTION OF
THE BRIDGE.
TITLE I OF PUBLIC LAW 704, 83D CONGRESS, APPROVED AUGUST 30, 1954, 68
STAT. 961, AUTHORIZED AND DIRECTED THE COMMISSIONERS OF THE DISTRICT OF
COLUMBIA TO CONSTRUCT A "LOW LEVEL BRIDGE OVER THE POTOMAC RIVER * * *
SUCH BRIDGE TO BE CONSTRUCTED NORTH OF THE MEMORIAL BRIDGE AND SOUTH OF
THE SOUTHERN PORTION OF THEODORE ROOSEVELT ISLAND, SOMETIMES REFERRED TO
AS "SMALL ISLAND" * * *.'
BY LETTER DATED AUGUST 30, 1955, THE ACTING PRESIDENT, BOARD OF
COMMISSIONERS, PRESENTED TO US THE QUESTION AS TO THE AVAILABILITY OF
FUNDS APPROPRIATED UNDER THE HEADING "CAPITAL OUTLAY, DEPARTMENT OF
HIGHWAYS," IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1955, APPROVED
JULY 1, 1954, 68 STAT. 390, FOR THE PREPARATION OF PLANS AND WORKING
DRAWINGS FOR A PROPOSED BRIDGE ACROSS THE POTOMAC RIVER AT A NEW AND
SLIGHTLY DIFFERENT LOCATION FROM THAT AUTHORIZED IN PUBLIC LAW 704,
I.E., ACROSS THEODORE ROOSEVELT ISLAND RATHER THAN SOUTH OF IT. IN
DECISION OF SEPTEMBER 16, 1955, B-125404, WE ADVISED THAT SUCH FUNDS
WERE AVAILABLE FOR THE PREPARATION OF DRAWINGS FOR THE BRIDGE AT THE NEW
LOCATION. THIS LOCATION IS ONE WHICH WOULD BE AUTHORIZED BY S. 2568, A
BILL WHICH, IF ENACTED, WOULD AMEND PUBLIC LAW 704 TO SO PROVIDE.
IT IS STATED IN THE LETTER FROM THE ACTING PRESIDENT OF THE BOARD OF
COMMISSIONERS THAT AT THE TIME OF OUR ABOVE REFERRED-TO DECISION TO YOUR
PREDECESSOR (SEPTEMBER 16, 1955), S. 2568 HAD PASSED THE SENATE BUT HAD
NOT BEEN ACTED UPON BY THE HOUSE. IT IS REPORTED THAT THE BILL WAS
PASSED BY THE HOUSE ON JULY 9, 1956, IN THE SAME LANGUAGE AS IT WAS
PASSED IN THE SENATE INSOFAR AS IT RELATED TO THE LOCATION OF THE
BRIDGE; HOWEVER, THAT THE HOUSE AMENDED THE BILL SO AS TO REQUIRE THE
BRIDGE TO BE OF A BASCULE-SPAN TYPE. IT IS REPORTED THAT HOUSE AND
SENATE CONFEREES REACHED A CONFERENCE AGREEMENT APPROVING THE BILL AS
PASSED BY THE HOUSE AND SENATE IN RESPECT TO THE LOCATION OF THE BRIDGE
AND AS PASSED BY THE HOUSE IN RESPECT TO THE BASCULE-SPAN. IT IS ALSO
STATED THAT THE SITUATION AT THE PRESENT TIME IS THAT BOTH HOUSES OF
CONGRESS HAVE APPROVED THE ALTERNATIVE LOCATION FOR THE BRIDGE ACROSS
THEODORE ROOSEVELT ISLAND BUT THAT THE SECOND SESSION OF THE 84TH
CONGRESS ADJOURNED BEFORE FINAL ACTION WAS COMPLETED ON THE BILL. IN
VIEW OF THE FOREGOING, THERE IS PRESENTED FOR OUR CONSIDERATION THE
QUESTION AS TO WHETHER FUNDS APPROPRIATED IN THE DISTRICT OF COLUMBIA
APPROPRIATION ACTS FOR THE FISCAL YEARS 1956 AND 1957 ARE AVAILABLE FOR
CONSTRUCTING THE BRIDGE IN THE NEW LOCATION, I.E., THE LOCATION ACROSS
ROOSEVELT ISLAND WHICH WOULD HAVE BEEN AUTHORIZED BY S. 2568.
WE WOULD FIRST LIKE TO POINT OUT THAT THE DISTRICT OF COLUMBIA
APPROPRIATION ACT, 1955, CONTAINING FUNDS FOR THE PREPARATION OF PLANS
AND WORKING DRAWINGS FOR THE PROPOSED BRIDGE ACROSS THE POTOMAC RIVER
WAS ENACTED INTO LAW PRIOR TO THE ENACTMENT OF PUBLIC LAW 704,
AUTHORIZING THE CONSTRUCTION OF A BRIDGE WITHIN A PRESCRIBED AREA. OUR
HOLDING IN THE ABOVE REFERRED-TO DECISION OF SEPTEMBER 16, 1955, WAS
PREDICATED CHIEFLY ON THE GROUND THAT THE FUNDS PROVIDED IN YOUR FISCAL
YEAR 1955 APPROPRIATION ACT FOR THE PREPARATION OF PLANS AND WORKING
DRAWINGS FOR THE PROPOSED BRIDGE ACROSS THE POTOMAC RIVER WERE
APPROPRIATED WITHOUT LIMITATION AS TO WHERE THE BRIDGE SHOULD BE
LOCATED. HENCE, THE FACT THAT SUCH FUNDS WERE HELD TO BE AVAILABLE FOR
THE PREPARATION OF PLANS FOR A BRIDGE AT A LOCATION OTHER THAN THE
LOCATION AUTHORIZED IN PUBLIC LAW 704 WOULD NOT NECESSARILY REQUIRE THE
CONCLUSION THAT FUNDS APPROPRIATED IN THE DISTRICT OF COLUMBIA
APPROPRIATION ACTS FOR THE FISCAL YEARS 1956 AND 1957 FOR CONSTRUCTING
THE BRIDGE ACROSS THE POTOMAC RIVER AUTHORIZED BY PUBLIC LAW 704 ARE
AVAILABLE FOR CONSTRUCTING THE BRIDGE AT A LOCATION OTHER THAN
AUTHORIZED IN THE SAID PUBLIC LAW.
THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1956
AND 1957, 69 STAT. 246 AND 70 STAT. 439, RESPECTIVELY, CONTAIN NO
EXPRESS PROVISION CONCERNING THE CONSTRUCTION OF A BRIDGE ACROSS THE
POTOMAC RIVER. HOWEVER, AN EXAMINATION OF THE LEGISLATIVE HISTORIES OF
THESE ACTS DISCLOSES THAT $1,500,000 AND $3,000,000 WERE CONTAINED IN
THE BUDGET ESTIMATES FOR 1956 AND 1957, RESPECTIVELY, FOR THIS ITEM AND
THAT THESE AMOUNTS WERE SUBSEQUENTLY APPROPRIATED BY THE CONGRESS. THE
LEGISLATIVE HISTORIES OF THESE ACTS ALSO DISCLOSE THAT THE ABOVE AMOUNTS
WERE APPROPRIATED PURSUANT TO THE AUTHORIZATION IN PUBLIC LAW 704 OF THE
83D CONGRESS. SEE PAGES 228, 235, 236, AND 237, HEARINGS BEFORE THE
SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE,
ON H.R. 6239, 84TH CONGRESS, 1ST SESSION, WHICH BECAME THE 1956
APPROPRIATION ACT; AND PAGE 15 OF SENATE REPORT NO. 623, 84TH CONGRESS,
1ST SESSION ON THE 1956 APPROPRIATION ACT. ALSO, SEE AS TO THE 1957
APPROPRIATION ACT, PAGES 373 AND 374, HEARINGS BEFORE THE SUBCOMMITTEE
OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, ON H.R.
10003, 84TH CONGRESS, 2D SESSION WHICH BECAME THE 1957 ACT, AND PAGE
109, HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON
APPROPRIATIONS, UNITED STATES SENATE, ON H.R. 10003, 84TH CONGRESS, 2D
SESSION.
APPROPRIATIONS TO CARRY OUT ENABLING OR AUTHORIZING LAWS MUST BE
EXPENDED IN STRICT ACCORD WITH THE ORIGINAL AUTHORIZATION BOTH AS TO THE
AMOUNT OF FUNDS TO BE EXPENDED AND THE NATURE OF THE WORK AUTHORIZED.
OF COURSE, ONE CONGRESS CANNOT BIND A FUTURE CONGRESS AND THE CONGRESS
HAS FULL POWER TO AMEND THE ORIGINAL AUTHORIZING ACT OR TO DIRECT THAT
AN APPROPRIATION SHALL BE USED FOR PURPOSES ADDITIONAL TO OR ENTIRELY
FOREIGN TO THOSE SPECIFIED IN THE ORIGINAL AUTHORIZATION ACT.
S. 2568, WHICH WOULD HAVE AMENDED PUBLIC LAW 704 SO AS TO PERMIT
CONSTRUCTION OF THE BRIDGE AT EITHER THE ORIGINAL LOCATION OR AN
ALTERNATIVE LOCATION FAILED OF ENACTMENT. THE LEGISLATIVE HISTORY OF S.
2568 DISCLOSES THAT THE CONFERENCE REPORT ON THE BILL WAS AGREED TO BY
THE HOUSE ON JULY 25, 1956, AND THAT THE SAID REPORT WAS NOT CALLED UP
IN THE SENATE PRIOR TO ADJOURNMENT BECAUSE IT WAS CONSIDERED "QUITE
CONTROVERSIAL.' IT APPEARS THAT IT WAS FEARED THAT IF THE REPORT WERE
CALLED UP IN THE SENATE, IT WOULD DELAY THE ADJOURNMENT OF THE CONGRESS.
SEE PAGES 13123 AND 13907, CONGRESSIONAL RECORD, JULY 25 AND JULY 28,
1956, RESPECTIVELY.
FURTHER, THERE IS NOTHING IN THE DISTRICT OF COLUMBIA APPROPRIATION
ACTS FOR THE FISCAL YEARS 1956 AND 1957, OR IN THE LEGISLATIVE HISTORIES
THEREOF, WHICH MAY BE CONSIDERED AS AUTHORIZING OR DIRECTING
CONSTRUCTION OF THE BRIDGE ACROSS THE POTOMAC RIVER IN THE VICINITY OF
CONSTITUTION AVENUE AT A LOCATION OTHER THAN THE LOCATION PRESCRIBED IN
PUBLIC LAW 704. SEE DISCUSSION ON PAGE 108, HEARINGS BEFORE THE
SUBCOMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, 84TH CONGRESS, 2D
SESSION.
ALSO, WE NOTE THAT THE LEGISLATIVE HISTORIES OF THE DISTRICT OF
COLUMBIA APPROPRIATION ACTS, FOR THE FISCAL YEARS 1956 AND 1957,
(PARTICULARLY PAGE 241 OF THE SENATE HEARINGS ON THE 1956 ACT AND PAGE
32 OF THE SENATE HEARINGS ON THE 1957 ACT) DISCLOSE THAT THE CONGRESS
PURSUANT TO SECTION 402 (A) OF THE DISTRICT OF COLUMBIA PUBLIC WORKS ACT
OF 1954, 68 STAT. 101, 110 AUTHORIZED THE DISTRICT IN THE 1956 AND 1957
APPROPRIATION ACTS TO BORROW FUNDS FROM THE TREASURY FOR CONSTRUCTION OF
THE BRIDGE AUTHORIZED BY PUBLIC LAW 704. SECTION 402 (A) OF THE 1954
PUBLIC WORKS ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"* * * PROVIDED, FURTHER, THAT ANY LOAN FOR USE IN ANY FISCAL YEAR
MUST FIRST BE SPECIFICALLY REQUESTED OF THE CONGRESS IN CONNECTION WITH
THE BUDGET SUBMITTED FOR THE DISTRICT FOR SUCH FISCAL YEAR, WITH A FULL
STATEMENT OF THE WORK CONTEMPLATED TO BE DONE AND THE NEED THEREOF, AND
SUCH WORK MUST BE APPROVED BY THE CONGRESS * * *.'
INASMUCH AS S. 2568 FAILED OF ENACTMENT AND SINCE THERE IS NOTHING IN
THE LEGISLATIVE HISTORIES OF THE APPROPRIATION ACTS IN QUESTION THAT MAY
BE CONSIDERED AS AUTHORIZING OR DIRECTING CONSTRUCTION OF A BRIDGE AT
OTHER THAN THE LOCATION PRESCRIBED IN PUBLIC LAW 704, IT CANNOT BE SAID
THAT CONSTRUCTION OF A BRIDGE AT A LOCATION OTHER THAN AUTHORIZED BY THE
SAID PUBLIC LAW WAS APPROVED BY THE CONGRESS, AS REQUIRED BY SECTION 402
(A) OF THE ABOVE REFERRED-TO PUBLIC WORKS ACT.
IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT FUNDS APPROPRIATED IN
THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR THE FISCAL YEARS 1956
AND 1957 FOR CONSTRUCTING THE BRIDGE ARE NOT AVAILABLE FOR CONSTRUCTING
THE BRIDGE AT A LOCATION DIFFERENT FROM THAT PRESCRIBED IN THE SAID
PUBLIC LAW. YOUR QUESTION IS ANSWERED ACCORDINGLY.
B-126466, AUG. 31, 1956
TO THE SECRETARY OF THE AIR FORCE:
IT HAS COME TO ATTENTION IN THE AUDIT OF THE PAY ACCOUNTS OF
PERSONNEL OF THE AIR FORCE THAT REENLISTMENT BONUS PAYMENTS ARE BEING
MADE ON THE SIXTH AND SUBSEQUENT ANNIVERSARY DATES OF CERTAIN
INDEFINITE-TERM REENLISTMENTS WHICH WE VIEW AS NOT AUTHORIZED BY LAW.
THE ANNIVERSARY PAYMENTS INVOLVED ARE THOSE BEING MADE IN CONNECTION
WITH REENLISTMENTS FOR AN INDEFINITE PERIOD WHICH WERE ENTERED INTO
PRIOR TO JULY 16, 1954, AND SUCH PAYMENTS ARE OBJECTIONABLE BECAUSE THEY
ARE BEING COMPUTED UNDER SECTION 208 (A) OF THE CAREER COMPENSATION ACT
OF 1949, ADDED BY SECTION 2 OF THE ACT OF JULY 16, 1954, 68 STAT. 488,
INSTEAD OF SECTION 207 OF THE CAREER COMPENSATION ACT.
IT IS OUR VIEW THAT, WITH RESPECT TO ANY ONE REENLISTMENT, ALL
REENLISTMENT BONUS PAYMENTS ARE REQUIRED TO BE COMPUTED UNDER EITHER
SECTION 207 OR SECTION 208 AND THAT PAYMENTS UNDER ONE OF SUCH SECTIONS
MAY NOT BE MIXED WITH PAYMENTS UNDER THE OTHER. IN OTHER WORDS, IT
SEEMS PLAIN THAT THE THIRD FOOTNOTE TO THE TABLE IN SECTION 208 IS TO BE
READ IN CONJUNCTION WITH THE PROVISIONS IN SUCH TABLE WHICH SPECIFICALLY
REFER TO THAT FOOTNOTE AND, ALSO, TO THE OTHER PROVISIONS OF SECTION
208, AND, THEREFORE, THAT THE FOOTNOTE APPLIES ONLY TO A REENLISTMENT
FOR WHICH BOTH THE INITIAL BONUS PAYMENT AND THE ANNIVERSARY PAYMENTS
ARE PROPERLY FOR COMPUTATION UNDER SECTION 208. WHILE SECTION 207 (E)
OF THE CAREER COMPENSATION ACT AUTHORIZES PERSONS WHO WERE IN THE
SERVICE ON OR BEFORE JULY 16, 1954, TO ELECT TO TAKE THE BENEFITS OF
SECTION 208, SUCH ELECTION IS AUTHORIZED ONLY WITH RESPECT TO
REENLISTMENTS ENTERED INTO ON OR AFTER JULY 16, 1954.
IN A DECISION TO CAPTAIN H. T. RUGGIERO, DISBURSING OFFICER, THROUGH
HEADQUARTERS UNITED STATES AIR FORCE, DATED FEBRUARY 25, 1955, B-121531,
34 COMP. GEN. 404, WE SAID, AFTER DISCUSSING THE LEGISLATIVE HISTORY OF
THE ABOVE SECTION 208, THAT "THE CONCLUSION IS REQUIRED, THEREFORE, THAT
THE AMENDATORY ACT OF JULY 16, 1954 (ADDING SECTION 208), IS EFFECTIVE
ONLY ON AND AFTER THE DATE OF ITS ENACTMENT AND THAT THE BENEFITS
AUTHORIZED BY THE ACT DO NOT APPLY TO ANY REENLISTMENT ENTERED INTO
PRIOR TO JULY 16, 1954.'
WE ARE CONVINCED THAT THE QUOTED STATEMENT EMBODIES THE PROPER
INTERPRETATION OF THE EFFECTIVE DATE OF SECTION 208. IT FOLLOWS THAT
THE TABLE IN THAT SECTION AND THE FOOTNOTES TO SUCH TABLE HAVE NO
APPLICATION TO A REENLISMENT WHICH WAS ENTERED INTO BEFORE JULY 16,
1954.
OUR AIR FORCE AUDIT BRANCH ON MAY 9, 1956, AND ON JUNE 20, 1956,
ADVISED THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, OF OUR
INTERPRETATION OF THE APPLICATION OF THE THIRD FOOTNOTE TO THE TABLE IN
SECTION 208. APPARENTLY PAYMENTS ARE STILL BEING MADE CONTRARY TO THAT
INTERPRETATION AND HENCE THE MATTER IS BROUGHT TO YOUR ATTENTION FOR
APPROPRIATE ACTION.
WE, OF COURSE, ARE REQUIRED TO TAKE EXCEPTION TO ERRONEOUS PAYMENTS
OF THE NATURE DESCRIBED ABOVE.
B-127376, AUG. 31, 1956
TO OHIO CHEMICAL AND SURGICAL EQUIPMENT CO. :
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1956, REQUESTING
REVIEW OF THAT PART OF OUR SETTLEMENT DATED JANUARY 17, 1956, WHICH
DISALLOWED $783.73 OF THE AMOUNT CLAIMED FOR ALLEGED ADDITIONAL PARTS
FURNISHED IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. V5236P-37,
DATED OCTOBER 1, 1954.
BY INVITATION NO. 55-35, THE VETERANS ADMINISTRATION HOSPITAL, ST.
LOUIS, MISSOURI, REQUESTED BIDS FOR PARTS REQUIRED TO CONVERT CERTAIN
RAPID PRESSURE INSTRUMENT STERILIZERS TO AUTOMATIC STERITROL OPERATION.
BY LETTER OF SEPTEMBER 9, 1954, YOU OFFERED TO FURNISH THE PARTS FOR
$2,090.
YOU STATED IN THIS LETTER THAT NO LABOR TIME ESTIMATES HAD BEEN
INCLUDED IN THE BID PRICE AND THAT "IF THERE ARE ANY PIPE FITTINGS, SUCH
AS NIPPLES, ELBOWS, TEES OR UNIONS NEEDED, THEY ARE TO BE SUPPLIED BY
OTHERS.' ALSO, YOU STATED THAT ANY SUPERVISORY ASSISTANCE WOULD BE
SUPPLIED BY YOU AT A COST OF $7.50 PER HOUR. YOU HAVE BEEN PAID THE
CONTRACT PRICE FOR THE PARTS FURNISHED AND BY THE SETTLEMENT OF JANUARY
17, 1956, YOU WERE ALLOWED $187.50, THE AMOUNT CLAIMED FOR THE
SUPERVISORY SERVICES.
AS YOU WERE ADVISED IN OUR LETTER OF APRIL 24, 1956, A FURTHER REPORT
RELATIVE TO YOUR CLAIM WAS REQUESTED FROM THE VETERANS ADMINISTRATION.
SUCH REPORT NOW RECEIVED STATES THAT THE PARTS FOR WHICH CLAIM IS MADE
ARE NORMALLY INCLUDED IN SETS OF PARTS FOR WHICH YOU QUOTED A PRICE OF
$2,090. ALSO, IT WAS STATED IN THE REPORT THAT AFTER REVIEWING THE
FILES OF THE RESIDENT ENGINEER, THE STATION FISCAL DIVISION, THE STATION
SUPPLY DIVISION, AS WELL AS INTERVIEWING MR. E. B. WRIGHT, THE
REPRESENTATIVE OF THE OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY, WHO
CHECKED IN THE MATERIAL AND SUPERVISED THE CONVERSION OF THE STERILIZERS
FROM MANUAL CONTROL TO AUTOMATIC CONTROL, THE FOLLOWING COMMENT WAS
OFFERED:
"/1) DUE TO THE FACT THAT MR. WRIGHT WAS NOT TECHNICALLY ABLE TO
ASSEMBLE AND USE THE PARTS CONTRACTED FOR AND FURNISHED BY THE COMPANY
IN THE ORIGINAL SHIPMENT OF CONVERSION PARTS, HE DID REQUEST THE OHIO
CHEMICAL AND SURGICAL EQUIPMENT COMPANY TO SHIP THE PARTS AS LISTED ON
SERVICE ORDER REPORT NO. S 07672, ON OR ABOUT MARCH 17, 1955. THE PARTS
WERE APPARENTLY DELIVERED TO MR. WRIGHT ON APRIL 25, 1955. THE SECOND
SHIPMENT WOULD CAUSE A DUPLICATION OF THE PARTS INASMUCH AS THERE WAS AN
OVERAGE OF FOUR 3/8 INCH NEW SOLENOID VALVES, TWO 1/2 INCH NEW SOLENOID
VALVES, FOUR 1/2 INCHES BY 3/8 INCH NEW EJECTORS, THREE 1/2 INCH NEW
CHECK VALVES, ALSO THREE 1/2 INCH USED STEAM TRAPS AND THREE USED MANUAL
CONTROL EJECTOR LINES. THESE ITEMS WERE ABANDONED BY THE CONTRACTOR AND
NOW ARE IN THE CUSTODY OF THE STATION SUPPLY OFFICER.'
ALSO, THE RECORD SHOWS THAT IN CONNECTION WITH THE CONVERSION OF THE
STERILIZERS, THE GOVERNMENT FURNISHED ELBOWS, TEES, UNIONS AND NIPPLES
WITHOUT CHARGE TO YOU, IN ACCORDANCE WITH YOUR LETTER OF SEPTEMBER 9,
1954.
THUS, IT APPEARS THAT BY FURNISHING THE PARTS INVOLVED YOU WERE DOING
NOTHING MORE THAN WAS REQUIRED BY THE CONTRACT. IT IS A WELL-SETTLED
PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED
AS WRITTEN, AND THE FACT THAT INTERVENING OR UNFORESEEN CAUSES RENDER
PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE OR EVEN OCCASION A LOSS,
IS NOT SUFFICIENT TO ENTITLE A CONTRACTOR TO COMPENSATION IN ADDITION TO
THAT PROVIDED IN THE CONTRACT. COLUMBUS RY. POWER AND LIGHT COMPANY V.
COLUMBUS, 249 U.S. 399, 412; BLAUNER CONSTRUCTION COMPANY V. UNITED
STATES, 94 C.CLS. 503, 511; 19 COMP. GEN. 903, AND CASES THERE CITED.
SINCE THE CONTRACT CONTAINED NO PROVISION FOR ADDITIONAL COMPENSATION IN
CASE OF INCREASED COST OF PERFORMANCE, YOU WERE BOUND TO PERFORM THE
CONTRACT IN ACCORDANCE WITH ITS TERMS AND AT THE PRICES STIPULATED. AS
YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE PARTS FURNISHED,
THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH
PRICES.
B-127942, AUG. 31, 1956
TO THE SECRETARY OF THE TREASURY:
BY A LETTER DATED MAY 15, 1956, THE ACTING SECRETARY OF THE TREASURY
SUBMITTED FOR OUR CONSIDERATION A PROPOSAL TO REDUCE OPERATING COSTS OF
THE INTERNAL REVENUE SERVICE BY ESTABLISHING A CONVENIENT METHOD TO
RELIEVE DISTRICT DIRECTORS OF INTERNAL REVENUE AND OTHER EMPLOYEES FROM
SMALL LOSSES WHICH ARE NOT THE RESULT OF NEGLIGENCE.
IN HIS LETTER THE ACTING SECRETARY OF THE TREASURY STATES, IN PART:
"WE PROPOSED THAT THE REGIONAL COMMISSIONERS OF INTERNAL REVENUE BE
AUTHORIZED TO ADJUDICATE CLAIMS FOR LOSSES IN AMOUNTS NOT TO EXCEED
$25.00 IN ANY ONE CASE. WHEN A LOSS OCCURS IN THE OFFICE OF A DISTRICT
DIRECTOR, A COMPLETE REPORT WOULD BE MADE TO THE REGIONAL COMMISSIONER.
IF THE REGIONAL COMMISSIONER FOUND THE AMOUNT OF LOSS TO BE NOT MORE
THAN $25.00, THAT IT OCCURRED IN THE PERFORMANCE OF OFFICIAL DUTY, AND
THAT THERE WAS NO FAULT OR NEGLIGENCE ON THE PART OF THE DISTRICT
DIRECTOR'S OFFICE, RELIEF WOULD BE GRANTED BY THE REGIONAL COMMISSIONER.
"THIS PROPOSAL IS MADE AS A CONVENIENT METHOD OF PROVIDING RELIEF AS
AUTHORIZED BY PUBLIC LAW 321, APPROVED AUGUST 1, 1947, AMENDED BY PUBLIC
LAW 334, APPROVED AUGUST 9, 1955. (31 U.S.C. 82A-1.) * * *"
THE STATUTE REFERRED TO ABOVE, 31 U.S.C. 82A-1, PROVIDES, IN PART:
"THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED, AFTER CONSIDERATION OF
THE PERTINENT FINDINGS AND IF IN CONCURRENCE WITH THE DETERMINATIONS AND
RECOMMENDATIONS OF THE HEAD OF THE DEPARTMENT OR INDEPENDENT
ESTABLISHMENT CONCERNED, TO RELIEVE ANY DISBURSING OR OTHER ACCOUNTABLE
OFFICER OR AGENT * * *.'
IT IS APPARENT THAT RELIEF FOR DISBURSING AND OTHER ACCOUNTABLE
OFFICERS UNDER THIS STATUTE IS THE RESULT OF A BIPARTITE OPERATION WITH
THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT CONCERNED MAKING
A DETERMINATION AND RECOMMENDATION WHILE THE GENERAL ACCOUNTING OFFICE,
IF IN CONCURRENCE THEREWITH, GRANTS THE RELIEF. THE DISCRETIONARY POWER
LODGED BY STATUTE WITH THE HEAD OF A DEPARTMENT OR INDEPENDENT AGENCY
MAY NOT BE DELEGATED TO OTHER THAN OFFICIALS AUTHORIZED BY LAW TO ACT IN
PLACE OF THE AGENCY HEAD, UNLESS, OF COURSE, THERE IS STATUTORY
AUTHORITY TO THE CONTRARY. 14 COMP. GEN. 698; 20 ID. 27; ID. 779; 21
ID. 921; 22 ID. 1083; AND 26 ID. 249. THE
SECRETARY OF THE TREASURY APPARENTLY IS AUTHORIZED UNDER SECTION 2 O
REORGANIZATION PLAN NO. 26 OF 1950, 64 STAT. 1280, AS AMENDED, 5 U.S.C.
241, NOTE, TO DELEGATE HIS POWER REGARDING DETERMINATIONS AND
RECOMMENDATIONS. CONSEQUENTLY, WE PERCEIVE NO OBJECTION TO A DELEGATION
TO THE REGIONAL COMMISSIONERS OF INTERNAL REVENUE OF THIS FUNCTION.
INSOFAR AS THE RELIEF ACTION BY THE GENERAL ACCOUNTING OFFICE UNDER 31
U.S.C. 82A-1, IS CONCERNED, LIMITED AUTHORITY HAS BEEN VESTED IN VARIOUS
OFFICERS AND EMPLOYEES OF THE ACCOUNTING AND AUDITING DIVISIONS TO GRANT
SUCH RELIEF. THIS ACTION WAS TAKEN PURSUANT TO SECTION 311 (E) OF THE
BUDGET AND ACCOUNTING ACT, AS AMENDED, 42 STAT. 25, 31 U.S.C. 52 (E),
WHICH PROVIDES:
"ALL OFFICIAL ACTS PERFORMED BY SUCH OFFICERS OR EMPLOYEES (OF THE
GENERAL ACCOUNTING OFFICE) SPECIALLY DESIGNATED THEREFOR BY THE
COMPTROLLER GENERAL SHALL HAVE THE SAME FORCE AND EFFECT AS THOUGH
PERFORMED BY THE COMPTROLLER GENERAL IN PERSON.'
SINCE NEITHER PUBLIC LAW 321 AS AMENDED, 31 U.S.C. 82A-1, NOR 31
U.S.C. 52 (E) AUTHORIZE THE COMPTROLLER GENERAL TO DELEGATE HIS
AUTHORITY IN THIS REGARD TO OTHER THAN GENERAL ACCOUNTING OFFICE
PERSONNEL, NO METHOD FOR GRANTING RELIEF TO ACCOUNTABLE OFFICERS CAN BE
EMPLOYED IN WHICH THE PERSON AUTHORIZED TO GRANT RELIEF IS NOT A
PROPERLY DESIGNATED OFFICER OR EMPLOYEE OF THIS OFFICE. THEREFORE, THE
REGIONAL COMMISSIONERS OF INTERNAL REVENUE MAY NOT BE AUTHORIZED TO
GRANT RELIEF AS CONTEMPLATED IN THE ACTING SECRETARY'S LETTER.
HOWEVER, IT MAY BE THAT A CONVENIENT METHOD CAN BE ESTABLISHED TO
EXPEDITE THE GRANTING OF RELIEF AS TO LOSSES NOT EXCEEDING $25 WITH
WORTHWHILE SAVINGS IN OPERATING COSTS WHILE STILL RETAINING THE
DISTINCTION BETWEEN THE STATUTORY DUTIES OF THE SECRETARY OF THE
TREASURY AND THE GENERAL ACCOUNTING OFFICE. THUS, IF, FOR INSTANCE, THE
REGIONAL DIRECTORS WERE AUTHORIZED TO LIST ITEMS RECOMMENDED FOR RELIEF,
MAKING THE NECESSARY STATUTORY FINDINGS AND SUBMIT, FROM TIME TO TIME,
THE SCHEDULES WITH SUPPORTING DOCUMENTATION, TO OUR AUDITING PERSONNEL,
THE STATUTORY REQUIREMENTS WOULD APPEAR TO BE SATISFIED WHILE POSSIBLY
EFFECTING SOME ECONOMIES IN BOTH OF OUR AGENCIES. IT IS SUGGESTED THAT
THE PROCEDURES WHICH COULD BE EMPLOYED TO BRING ABOUT SUCH RESULT BE
EXPLORED BY REPRESENTATIVES OF YOUR DEPARTMENT IN COLLABORATION WITH
REPRESENTATIVES OF OUR CIVIL ACCOUNTING AND AUDITING DIVISION AND OUR
ACCOUNTING AND AUDITING POLICY STAFF. SEE IN THIS CONNECTION, B-122550,
JULY 7, 1955, TO THE POSTMASTER GENERAL. IF MUTUALLY SATISFACTORY
ARRANGEMENTS ARE MADE, IT IS REQUESTED THAT WE BE ADVISED AS TO THE
PROCEDURES AND DELEGATIONS OF AUTHORITY DEVELOPED AS WELL AS THE DATE
PROPOSED FOR MAKING THE PLAN EFFECTIVE SO THAT ARRANGEMENTS MAY BE MADE
FOR ANY NECESSARY CHANGES REQUIRED HERE. BE ASSURED OF OUR CONTINUED
INTEREST IN ANY STEPS WHICH PROPERLY CAN BE TAKEN, CONSISTENT WITH LAW,
TO REDUCE ADMINISTRATIVE COSTS IN CARRYING OUT NECESSARY GOVERNMENT
FUNCTIONS.
IT HAS BEEN INFORMALLY ASCERTAINED THAT OUR DECISION OF JULY 7, 1955,
B-122550, MENTIONED ABOVE, RESPECTING THE AUTHORITY OF REGIONAL
CONTROLLERS OF THE POST OFFICE DEPARTMENT TO RELIEVE CERTAIN ACCOUNTABLE
OFFICERS OF THAT DEPARTMENT UNDER THE PROVISIONS OF 31 U.S.C. 82A-1, WAS
UTILIZED IN THE PREPARATION OF THE ACTING SECRETARY'S SUBMISSION. IT
WAS SAID IN THAT DECISION THAT:
"* * * SINCE IT IS CONTEMPLATED THAT THE ACTION OF YOUR DEPARTMENT IN
EACH CASE IS PROVISIONAL AND SUBJECT TO BE CHANGED IN THE EVENT THAT OUR
OFFICE FAILS TO AGREE THAT THE STATUTORY STANDARDS FOR ALLOWING RELIEF
HAVE BEEN SATISFIED, WE ARE IN AGREEMENT WITH YOUR PROPOSAL * * *"
THE STATEMENT WAS THAT THE "ACTION" OF THE DEPARTMENT WOULD BE
PROVISIONAL AND SUCH STATEMENT SHOULD NOT BE READ AS INDICATING THAT THE
DEPARTMENT COULD GRANT PROVISIONAL RELIEF. ONLY THIS OFFICE CAN GRANT
THE RELIEF, PROVISIONAL OR OTHERWISE. THE DEPARTMENT'S PRELIMINARY
ACTION IS PROVISIONAL AND IS TANTAMOUNT ONLY TO A RECOMMENDATION,
SUBJECT TO APPROVAL BY THIS OFFICE IN EACH CASE, AND NO RELIEF IS OR CAN
BE GRANTED IN ANY SUCH CASE UNTIL THIS OFFICE HAS CONSIDERED AND
APPROVED THE ADMINISTRATIVE RECOMMENDATION IN THAT PARTICULAR CASE.
B-128173, AUG. 31, 1956
TO THE ATTORNEY GENERAL:
REFERENCE IS MADE TO LETTER OF JUNE 6, 1956, FROM THE ADMINISTRATIVE
ASSISTANT ATTORNEY GENERAL, TRANSMITTING A FILE OF CORRESPONDENCE
BETWEEN YOUR DEPARTMENT'S BUREAU OF PRISONS AND THE FOREST SERVICE,
DEPARTMENT OF AGRICULTURE, RELATIVE TO AMENDING CERTAIN "FIRE
COOPERATIVE AGREEMENTS" BETWEEN THE LATTER AGENCY AND THE BUREAU OF
PRISONS. THE PROPOSED AMENDMENT PROVIDES THAT THE FOREST SERVICE WILL
REIMBURSE THE BUREAU OF PRISONS FOR MEDICAL AND HOSPITAL CARE FOR
FEDERAL PRISONERS INJURED WHILE ENGAGED IN FIRE-FIGHTING ACTIVITIES FOR
THE FOREST SERVICE.
IT IS STATED IN SUBSTANCE THAT SUCH AN AMENDMENT IS DEEMED NECESSARY
BECAUSE YOUR APPROPRIATIONS DO NOT CONTEMPLATE EXPENDITURES FOR INJURIES
TO PRISONERS OCCASIONED BY FIRE-FIGHTING ACTIVITIES FOR THE FOREST
SERVICE. IT IS POINTED OUT THAT, INSOFAR AS FEDERAL PRISONERS ARE
CONCERNED, YOUR DEPARTMENT IS NOT "INSURED" BY ANOTHER AGENCY SUCH AS
THE BUREAU OF EMPLOYEES COMPENSATION AS IS THE CASE WHERE EMPLOYEES ARE
INJURED.
IT APPEARS THAT THE FOREST SERVICE ADVISED YOUR DEPARTMENT THAT
REGARDLESS OF THE MERITS OF THE MATTER, IT IS PREVENTED FROM GIVING
CONSIDERATION TO THE REQUESTED AMENDMENT BECAUSE, IN ITS OPINION, FOREST
SERVICE FUNDS ARE NOT AVAILABLE FOR SUCH EXPENDITURES. THE FOREST
SERVICE INDICATED, HOWEVER, THAT IT HAD NO OBJECTION TO HAVING THE
MATTER SUBMITTED TO US. ACCORDINGLY, THE FOLLOWING QUESTION IS
PRESENTED FOR OUR CONSIDERATION:
"ARE APPROPRIATIONS TO THE FOREST SERVICE FOR FIRE-FIGHTING
ACTIVITIES AVAILABLE TO REIMBURSE THE BUREAU OF PRISONS FOR UNUSUAL
MEDICAL EXPENSES OF PRISONERS INJURED WHILE ENGAGED IN SUCH ACTIVITIES?
"
THE QUESTION PRESENTED INVOLVES CONSIDERATION OF SECTION 4125 (A) OF
TITLE 18, UNITED STATES CODE, WHICH PROVIDES:
"/A) THE ATTORNEY GENERAL MAY MAKE AVAILABLE TO THE HEADS OF THE
SEVERAL DEPARTMENTS THE SERVICES OF UNITED STATES PRISONERS UNDER TERMS,
CONDITIONS, AND RATES MUTUALLY AGREED UPON, FOR CONSTRUCTING OR
REPAIRING ROADS, CLEARING, MAINTAINING AND REFORESTING PUBLIC LANDS,
BUILDING LEVEES, AND CONSTRUCTING OR REPAIRING ANY OTHER PUBLIC WAYS OR
WORKS FINANCED WHOLLY OR IN MAJOR PART BY FUNDS APPROPRIATED BY
CONGRESS.'
INASMUCH AS THE MATTER CONCERNS APPROPRIATIONS OF THE DEPARTMENT OF
AGRICULTURE, WE REQUESTED ITS COMMENTS THEREON. BY LETTER DATED AUGUST
24, 1956, THE DEPARTMENT SET FORTH ITS VIEWS, WHICH ARE IN PERTINENT
PART, AS FOLLOWS:
"THIS DEPARTMENT TAKES THE VIEW THAT THE "TERMS, CONDITIONS, AND
RATES" UNDER WHICH FEDERAL PRISON LABOR MAY BE MADE AVAILABLE, AS
PROVIDED IN 18 U.S.C. 4125, RELATE EXCLUSIVELY TO THE WORK ASPECTS AND
THE CONDITIONS UNDER WHICH THE PRISONERS PERFORM THEIR LABOR.
"THE OBLIGATION WHICH IS SOUGHT TO BE IMPOSED ON FOREST SERVICE
APPROPRIATIONS WOULD APPEAR TO BE BEYOND THE AUTHORITY OF THE DEPARTMENT
IN THAT IT WOULD INVOLVE THE ASSUMPTION OF AN OBLIGATION IN EXCESS OF
APPROPRIATIONS FOR WHICH THE FOREST SERVICE HAS NO STATUTORY AUTHORITY.
"THIS CONCLUSION IS JUSTIFIED BY A REVIEW OF THE STATUTES RELATING TO
THE BUREAU OF PRISONS. THE GENERAL RESPONSIBILITIES OF THE BUREAU OF
PRISONS WITH RESPECT TO PRISONERS ARE SET OUT IN 18 U.S.C. 4042. ONE
OF THE RESPONSIBILITIES IS THAT THE BUREAU PROVIDE FOR THE SAFEKEEPING,
CARE, AND PROTECTION OF PRISONERS. CONSEQUENTLY, BECAUSE OF THAT
STATUTORY OBLIGATION THIS DEPARTMENT CONSIDERS THAT FOREST SERVICE FUNDS
ARE NOT AVAILABLE TO PAY DIRECTLY, OR BY REIMBURSEMENT, FOR MEDICAL AND
HOSPITAL CARE FOR FEDERAL PRISONERS INJURED WHILE ENGAGED IN FOREST-FIRE
SUPPRESSION.'
THE LANGUAGE "UNDER TERMS, CONDITIONS, AND RATES MUTUALLY AGREED
UPON," IS VERY BROAD AND THE AMENDMENT IN QUESTION WOULD APPEAR TO BE A
"TERM" OR "CONDITION" WITHIN THE PURVIEW OF SUCH LANGUAGE. ALSO, WHILE
18 U.S.C. 4042 REQUIRES THE BUREAU OF PRISONS TO PROVIDE FOR THE
SAFEKEEPING, CARE AND PROTECTION OF PRISONERS, IT DOES NOT APPEAR TO
PROHIBIT THE BUREAU BEING REIMBURSED BY OTHER GOVERNMENT AGENCIES FOR
THE COST OF MEDICAL AND HOSPITAL CARE OF PRISONERS WHO ARE INJURED WHILE
PERFORMING SERVICES FOR SUCH AGENCIES UNDER 18 U.S.C. 4125 (A), IF
REIMBURSEMENT FOR SUCH COSTS IS MUTUALLY AGREED UPON.
NO GOOD REASON IS PERCEIVED WHY--- PURSUANT TO YOUR AUTHORITY UNDER
18 U.S.C. 4125 (A) TO MAKE THE SERVICES OF FEDERAL PRISONERS AVAILABLE
TO THE HEADS OF GOVERNMENT DEPARTMENTS UNDER TERMS, CONDITIONS AND RATES
MUTUALLY AGREED UPON--- YOUR AGENCIES MAY NOT AMEND THE AGREEMENTS TO
PROVIDE THAT THE FOREST SERVICE WILL REIMBURSE THE BUREAU OF PRISONS FOR
THE ACTUAL COST OF MEDICAL AND HOSPITAL CARE OF PRISONERS INJURED WHILE
ENGAGED IN FIRE-FIGHTING ACTIVITIES FOR THE FOREST SERVICE.
IT IS OUR VIEW THAT IF IT BE ADMINISTRATIVELY DETERMINED BY THE
FOREST SERVICE THAT THE SERVICES OF FEDERAL PRISONERS ARE NECESSARY IN
FIGHTING FOREST FIRES AND THE AMENDMENT IN QUESTION IS ADOPTED, FUNDS
APPROPRIATED TO THE FOREST SERVICE FOR FIGHTING FOREST FIRES COULD
PROPERLY BE USED TO REIMBURSE THE BUREAU OF PRISONS FOR THE COST OF
MEDICAL AND HOSPITAL CARE OF PRISONERS INJURED WHILE RENDERING SUCH
SERVICES. IT IS A WELL-SETTLED RULE THAT AN APPROPRIATION MADE IN
GENERAL TERMS FOR A PARTICULAR PURPOSE IS AVAILABLE FOR EXPENSES
NECESSARY TO THE ACCOMPLISHMENT OF THAT PURPOSE. CF. 29 COMP. GEN. 419.
B-128303, AUG. 31, 1956
TO COLONEL ARTHUR A. HOLMES, N.G.U.S. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1956, REQUESTING
REVIEW OF OUR SETTLEMENT OF MARCH 27, 1956, WHICH DISALLOWED YOUR CLAIM
FOR THE DIFFERENCE IN PAY BETWEEN THAT OF COLONEL AND LIEUTENANT COLONEL
FOR THE PERIOD MAY 4, 1951, TO DECEMBER 31, 1952.
IT APPEARS THAT YOU WERE A LIEUTENANT COLONEL IN THE MICHIGAN
NATIONAL GUARD AND AN OFFICER OF THE SAME RANK IN THE ARMY OF THE UNITED
STATES WHEN, BY DEPARTMENT OF THE ARMY ORDERS DATED SEPTEMBER 15, 1948,
YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE SEPTEMBER 22, 1948, WITH DATE
OF RANK, MARCH 29, 1946. BY STATE OF MICHIGAN ORDERS DATED MAY 8, 1951,
YOU WERE PROMOTED TO THE GRADE OF COLONEL, INFANTRY, MICHIGAN NATIONAL
GUARD, EFFECTIVE MAY 4, 1951. YOU WERE FEDERALLY RECOGNIZED AS A
COLONEL ON JUNE 11, 1951, EFFECTIVE MAY 4, 1951, AND IT APPEARS THAT YOU
BECAME A COLONEL IN THE NATIONAL GUARD OF THE UNITED STATES ON JUNE 25,
1951. BY DEPARTMENT OF THE ARMY ORDERS DATED DECEMBER 31, 1952,
ANNOUNCEMENT WAS MADE OF YOUR TEMPORARY PROMOTION IN THE ARMY OF THE
UNITED STATES UNDER THE PROVISIONS OF SECTION 515 (C) OF THE OFFICER
PERSONNEL ACT OF 1947, FROM LIEUTENANT COLONEL TO COLONEL WITH DATE OF
RANK, DECEMBER 31, 1952.
IT IS YOUR CONTENTION THAT YOU WERE ON ACTIVE DUTY AS A LIEUTENANT
COLONEL IN THE NATIONAL GUARD OF THE UNITED STATES AND THAT YOU SHOULD
BE ENTITLED TO THE PAY OF A COLONEL AFTER THE DATE--- DURING THAT
DUTY--- ON WHICH YOU WERE PROMOTED IN THE NATIONAL GUARD OF THE UNITED
STATES TO THE RANK OF COLONEL. OF COURSE, A CHANGE IN YOUR NATIONAL
GUARD STATUS WOULD NOT AFFECT YOUR RIGHT TO PAY, IF YOU WERE ORDERED TO
ACTIVE DUTY IN SOME STATUS OTHER THAN IN THE NATIONAL GUARD.
YOUR ORDERS OF SEPTEMBER 15, 1948, ORDERING YOU TO ACTIVE DUTY ARE
NOT ENTIRELY CLEAR. THEY EXPRESSLY STATE THAT ALL THE PERSONNEL
INVOLVED ARE PERSONNEL OF THE ARMY OF THE UNITED STATES UNLESS OTHERWISE
INDICATED. WHILE THE DESIGNATION "INF-NGUS" APPEARS AFTER YOUR NAME, IT
IS NOT CLEAR THAT SUCH DESIGNATION WAS INCLUDED IN THE ORDERS TO SHOW
THAT YOU WERE ORDERED TO ACTIVE DUTY AS A MEMBER OF THE NATIONAL GUARD
OF THE UNITED STATES. THE DOUBT IN THE MATTER SEEMS TO HAVE BEEN
RESOLVED BY THE NATIONAL GUARD BUREAU WHICH REPORTED YOUR SERVICE IN THE
NATIONAL GUARD REGISTER, 1953, TO SHOW THAT ON SEPTEMBER 22, 1948, YOU
BEGAN FEDERAL SERVICE AS A LIEUTENANT COLONEL AND THAT FEDERAL SERVICE
AS A COLONEL BEGAN ON DECEMBER 31, 1952. THE LATTER DATE IS THE DATE ON
WHICH YOU WERE PROMOTED TO COLONEL IN THE ARMY OF THE UNITED STATES.
THUS, THE RECORD OF YOUR SERVICE INDICATES THAT YOUR ACTIVE FEDERAL
SERVICE DURING THE PERIOD OF YOUR CLAIM WAS AS AN OFFICER OF THE ARMY OF
THE UNITED STATES. THE ORDERS YOU HAVE SUBMITTED DO NOT WARRANT A
CONCLUSION THAT THAT RECORD IS ERRONEOUS AND HENCE, THERE IS NO BASIS ON
WHICH YOU WOULD BE ENTITLED TO THE PAY AND ALLOWANCE OF A COLONEL UNTIL
YOU WERE PROMOTED TO THAT RANK AS AN OFFICER OF THE ARMY OF THE UNITED
STATES.
ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF MARCH 27, 1956,
WAS CORRECT AND IS SUSTAINED.
B-128409, AUG. 31, 1956
TO ILLINOIS CENTRAL RAILROAD:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 21, 1956, REQUESTING
REVIEW OF THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION ON YOUR CLAIM
PER SUPPLEMENTAL BILL NO. WQ-13803-B FOR ADDITIONAL FREIGHT CHARGES
ALLEGED TO BE DUE FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY ON
GOVERNMENT BILLS OF LADING NOS. WQ-14019283 AND WQ-14019284 IN JULY
1943. THIS CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON
JANUARY 11, 1955, AND WAS RETURNED TO YOU BY OUR TRANSPORTATION DIVISION
WITH A LETTER DATED MAY 8, 1955, FOR THE REASON THAT YOUR CLAIM WAS
BARRED BY THE TEN-YEAR STATUTE OF LIMITATIONS PROVIDED BY THE ACT OF
OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A.
IT IS YOUR CONTENTION, HOWEVER, THAT THE ALLOWANCE BY OUR CERTIFICATE
OF SETTLEMENT NO. T-256756, DATED JULY 26, 1945, OF THE ADDITIONAL
FREIGHT CHARGES FOR THE SAME SHIPMENTS ON YOUR SUPPLEMENTAL BILL NO.
WQ-13803-A (WHICH WAS PAID IN THE FULL AMOUNT THERE CLAIMED),
ESTABLISHED A NEW DATE FROM WHICH THE TEN-YEAR STATUTE OF LIMITATIONS
BEGAN TO RUN.
THE ACT OF OCTOBER 9, 1940, PROVIDES, IN PART, THAT EVERY CLAIM OR
DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING
OFFICE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN
OUR OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST
ACCRUED. A CLAIM FIRST ACCRUES WHEN ALL THE EVENTS HAVE OCCURRED WHICH
FIX THE CARRIER'S RIGHT TO AND THE GOVERNMENT'S LIABILITY FOR THE
FREIGHT CHARGES. SEE GROUP V. UNITED STATES, 125 C.CLS. 135; RELIANCE
MOTORS V. UNITED STATES, 112 C.CLS. 324; AND 29 COMP. GEN. 517, 519.
IN REGARD TO FREIGHT CHARGES FOR TRANSPORTATION SERVICES FURNISHED ON
GOVERNMENT BILLS OF LADING, ALL DETERMINING EVENTS HAVE OCCURRED AND THE
CLAIM HAS ACCRUED WHEN THE FREIGHT IS DELIVERED AT THE PROPER
DESTINATION. SEE ATLANTIC COAST LINE R.CO. V. UNITED STATES, 66 C.CLS.
577; HUGHES RANSP., INC. V. UNITED STATES, 109 F.SUPP. 373.
THE FREIGHT TRANSPORTED UNDER GOVERNMENT BILLS OF LADING NOS.
WQ-14019283 AND WQ-14019284 IS SHOWN AS HAVING BEEN DELIVERED ON JULY
16, AND JULY 19, 1943, RESPECTIVELY. YOUR PRESENT CLAIM FOR ADDITIONAL
FREIGHT CHARGES ON THESE SHIPMENTS IS A NEW CLAIM, FOR AN AMOUNT
ADDITIONAL TO THAT PREVIOUSLY BILLED AND PAID, BASED UPON THE EVENTS
OCCURRING IN 1943, AND IS IN NO WAY DERIVED FROM OUR SETTLEMENT OF JULY
26, 1946, WHICH DID NOT CREATE ANY NEW RIGHTS IN YOU. SINCE YOUR
SUPPLEMENTAL BILL NO. WQ-13803-B WAS RECEIVED HERE MORE THAN TEN FULL
YEARS AFTER DELIVERY OF THE SHIPMENTS INVOLVED, WHEN YOUR CLAIM FIRST
ACCRUED, WE DO NOT HAVE ANY AUTHORITY TO CONSIDER THE MERITS OF SUCH
BILL.
ACCORDINGLY, SINCE THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION
COMPLIED WITH THE LAW IT IS SUSTAINED. YOUR SUPPLEMENTAL BILL NO.
WQ-13803-B IS ENCLOSED.
B-128412, AUG. 31, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO A REPORT DATED AUGUST 21, 1956, FROM THE
ASSISTANT SECRETARY OF THE NAVY (MATERIAL), FURNISHED IN RESPONSE TO A
REQUEST FROM THIS OFFICE DATED JULY 3, 1956, FOR INFORMATION AND THE
VIEWS OF YOUR DEPARTMENT RELATIVE TO THE CLAIM OF THE HOWARD PUMP
COMPANY FOR AN ADDITIONAL PAYMENT UNDER CONTRACT NO.NBY-1623 FOR
CLEANING AND REPAIRING WELLS AT THE MARINE CORPS SUPPLY CENTER, BARSTOW,
CALIFORNIA.
ON MARCH 5, 1956, THE MARINE CORPS SUPPLY CENTER ISSUED AN INVITATION
FOR BIDS (SPEC. 1623/56 ( FOR FURNISHING ALL LABOR, EQUIPMENT AND
MATERIAL FOR A PROJECT DESCRIBED AS "REPAIRING WELL NO. 1 AND NO. 2,
INCLUDING CLEANING, SAND PUMPING, REPLACEMENT OF COLUMN, INSTALLATION OF
PIPE AND NEW TEST LINES, REMOVING ROOFS AND MOTORS AND REPLACING THEM,
PULLING COLUMNS AND BOWLS, REPLACE THE PUMP BOWLS AND MISCELLANEOUS
RELATED WORK, NEBO AREA, MARINE CORPS SUPPLY CENTER, BARSTOW,
CALIFORNIA.' THE SPECIFICATION ACCOMPANYING THE INVITATION WAS HEADED
"CLEAN AND REPAIR WELLS NO. 1 AND 2 NEBO AREA MARINE CORPS SUPPLY
CENTER BARSTOW, CALIFORNIA.' HOWEVER, SECTION 3 OF THE SPECIFICATION WAS
ENTITLED "PIPE EXTENSIONS, FOR WELL NO. 2" AND PROVIDED FOR THE
INSTALLATION OF A CONSIDERABLE LENGTH OF CEMENT-ASBESTOS PIPE.
THE ONLY BID RECEIVED WAS THAT OF THE HOWARD PUMP COMPANY IN THE
AMOUNT OF $4,490. WITH THE BID WERE SUBMITTED COPIES OF THE BIDDER'S
SALES AGREEMENTS STATING THE WORK AND MATERIAL INTENDED TO BE COVERED BY
THE BID, WHICH AGREEMENTS DID NOT INCLUDE ANY LABOR OR MATERIAL NEEDED
FOR THE PIPE EXTENSIONS DESCRIBED IN SECTION 3 OF THE SPECIFICATIONS.
THE GOVERNMENT'S ESTIMATE FOR THE ENTIRE PROJECT WAS $7,274, INCLUDING
AN ADDITION OF 25 PERCENT TO ALLOW FOR BIDDERS FROM A CONSIDERABLE
DISTANCE. SINCE THE HOWARD PUMP COMPANY WAS A LOCAL CONCERN, THE
CONTRACTING OFFICER ACCEPTED ITS BID WITHOUT REQUESTING VERIFICATION.
IT APPEARS THAT A LARGE PART OF THE WORK OF CLEANING AND REPAIRING
THE WELLS WAS DONE BEFORE THE CONTRACTOR BECAME AWARE THAT IT WAS
EXPECTED TO MAKE THE PIPE EXTENSIONS DESCRIBED IN SECTION 3 OF THE
SPECIFICATIONS. THE CONTRACTOR THEREUPON STATED THAT ITS BID WOULD HAVE
BEEN $7,000 MORE IF IT HAD UNDERSTOOD THAT THE PIPE EXTENSION WAS
INCLUDED AND IT REQUESTED AN ADDITIONAL CONTRACT IN THAT AMOUNT.
IN THE REPORT OF AUGUST 21, 1956, IT IS STATED THAT CHANGES RESULTING
FROM FIRE PROTECTION REQUIREMENTS HAVE ELIMINATED THE NEED FOR THE PIPE
EXTENSIONS DESCRIBED IN SECTION 3 OF THE SPECIFICATIONS AND IT IS
RECOMMENDED THAT THE SAID PIPE EXTENSIONS BE ELIMINATED AS A CONTRACT
REQUIREMENT AND THAT, AS SUGGESTED BY THE CONTRACTOR, THE CONTRACT PRICE
BE REDUCED IN A TOKEN AMOUNT OF $100. AS A BASIS FOR THE
RECOMMENDATION, IT IS STATED, IN SUBSTANCE, THAT ALTHOUGH THE
CONTRACTING OFFICER WAS NOT AWARE OF THE BIDDER'S ERROR OR
MISUNDERSTANDING, THE OMISSION OF THE PIPING FROM THE SALES AGREEMENTS
ACCOMPANYING THE BID SHOULD HAVE BEEN NOTED.
ALTHOUGH SECTION 3 OF THE SPECIFICATIONS WOULD REQUIRE THE
CONSTRUCTION OF THE PIPE EXTENSIONS AS PART OF THE CONTRACT WORK, THE
INVITATION AS A WHOLE WAS NOT ENTIRELY CLEAR AND WELL MIGHT GIVE THE
IMPRESSION THAT ONLY THE REPAIRING AND CLEANING OF THE WELLS WAS
CONTEMPLATED. MOREOVER, SINCE THE BID PRICE WAS MUCH LESS THAN THE
GOVERNMENT'S ESTIMATE, EVEN CONSIDERING THE 25 PERCENT ADDITION ABOVE
MENTIONED, THE CONTRACTING OFFICER SHOULD HAVE REQUESTED VERIFICATION
BEFORE MAKING THE AWARD. ALSO, THE OMISSION OF THE PIPING FROM THE
SALES AGREEMENTS SHOULD HAVE SERVED AS NOTICE OF PROBABLE ERROR.
IN VIEW OF THE FOREGOING, THIS OFFICE OFFERS NO OBJECTION TO RELIEF
OF THE CONTRACTOR AS PROPOSED.
B-128548, AUG. 31, 1956
TO LIEUTENANT COLONEL O. A. COLEMAN, FC:
BY SIXTH INDORSEMENT DATED JULY 9, 1956, THE CHIEF OF FINANCE
FORWARDED TO US YOUR LETTER OF MAY 11, 1956, WITH ENCLOSURES, REQUESTING
DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT CHIEF WARRANT OFFICER
ORLINZA A. BULLOCK, RW 2 153 653, WITH AN INCREASED BASIC ALLOWANCE FOR
QUARTERS ON ACCOUNT OF A LAWFUL WIFE (SYLVIA HAWTHORNE BULLOCK). YOUR
DOUBT IN THE MATTER IS DUE TO THE FACT THAT THE OFFICER MARRIED SYLVIA
HAWTHORNE WITHIN THE PERIOD DIVORCED PERSONS ARE PROHIBITED FROM
REMARRYING THIRD PERSONS UNDER THE LAWS OF THE STATE OF OKLAHOMA.
THERE WAS SUBMITTED WITH YOUR LETTER A TRUE COPY OF A CERTIFIED COPY
OF A "JOURNAL ENTRY AND DECREE OF DIVORCE," NO. D-4148, DATED JANUARY
30, 1956, ENTERED IN THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA,
IN THE CASE OF ORLINZA BULLOCK, PLAINTIFF V. TOMMIE K. BULLOCK,
DEFENDANT, WHEREIN THE DEFENDANT WAS AWARDED A DIVORCE FROM THE
PLAINTIFF ON THE BASIS OF HER CROSS PETITION. IN ADDITION TO THE AWARD
OF PERSONAL PROPERTY THEREIN DESIGNATED AND THE AWARD OF A JUDGMENT IN
THE SUM OF $2,500 PAYABLE AT THE RATE OF $100 PER MONTH BEGINNING MARCH
1, 1956, IT WAS FURTHER ORDERED BY THE DECREE THAT "AS TO THE DIVORCE
HEREIN GRANTED, THIS DECREE DOES NOT TAKE EFFECT OR BECOME ABSOLUTE
UNTIL THE EXPIRATION OF SIX MONTHS FROM THIS DATE.' THERE ALSO WAS
TRANSMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE (DD
FORM 137), DATED MAY 4, 1956, ON THE REVERSE SIDE OF WHICH IS A
CERTIFICATE BY AN "ASSISTANT ADJUTANT" TO THE EFFECT THAT HE HAD SEEN
THE MARRIAGE LICENSE OF ORLINZA A. BULLOCK AND SYLVIA HAWTHORNE BULLOCK,
MARRIED ON THE FIRST DAY OF FEBRUARY 1956 AT LAS CRUCES, NEW MEXICO. IT
APPEARS THAT THE OFFICER IS CLAIMING A BASIC ALLOWANCE FOR QUARTERS FOR
THE PERIOD COMMENCING FEBRUARY 1, 1956, ON THE BASIS OF THE MARRIAGE
CEREMONY PRESUMABLY PERFORMED ON THAT DATE.
IN OUR DECISION OF MAY 29, 1946, 25 COMP. GEN. 821, IT WAS STATED,
PAGE 822, AS FOLLOWS:
"WHEN ONE OF THE PARTIES TO A SUBSISTING VALID MARRIAGE OBTAINS A
DECREE OF DIVORCE, FINAL IN CHARACTER, THAT ACTION--- EVEN THOUGH THE
VALIDITY OF SUCH DECREE MAY BE DOUBTFUL--- CREATES SUBSTANTIAL DOUBT AS
TO THE MARITAL STATUS OF THE PARTIES CONCERNED, AND IN THE ABSENCE OF A
FINDING OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT
SUCH A DIVORCE DECREE IS VALID OR INVALID IN THE UNITED STATES THE
MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO AUTHORIZE PAYMENT OF
INCREASED ALLOWANCES TO THE HUSBAND OF SUCH A MARRIAGE ON ACCOUNT OF A
,LAWFUL WIFE.' B-54947, APRIL 1, 1946. MOREOVER, IN VIEW OF THE
UNCERTAINTY WITH RESPECT TO THE MARITAL STATUS INVOLVED IN SUCH A
DIVORCE PROCEEDING, IT IS OBVIOUS THAT ANY PURPORTED MARRIAGE CONTRACT
SUBSEQUENTLY ENTERED INTO BY A PARTY OBTAINING SUCH A DIVORCE WOULD NOT
CREATE A MARITAL STATUS FREE FROM DOUBT, UNLESS THE VALIDITY OF THE SAID
DIVORCE WAS ESTABLISHED IN A PROPER RT.'
WHILE THAT DECISION INVOLVED THE STATUS OF THE PARTIES FOLLOWING AN
INVALID MEXICAN DIVORCE, THE RULE IS EQUALLY APPLICABLE WHERE THE SAME
DOUBT ARISES INCIDENT TO STATUS FOLLOWING DIVORCES GENERALLY, WHERE
COUPLED WITH QUALIFICATIONS SUCH AS HERE INVOLVED. JUDICIAL DECISIONS
OF THE COURTS OF THE STATE OF OKLAHOMA ARE FAR FROM HARMONIOUS UNDER THE
DIVORCE STATUTES OF THAT STATE. AND THESE SEEMING INCONSISTENCIES AND
CONFLICTS EXTEND, MORE OR LESS INDISCRIMINATELY, TO CASES WHERE THE
SECOND MARRIAGE CEREMONY OCCURRED OUTSIDE THE STATE. THE FOLLOWING,
AMONG OTHER CASES, APPEAR ABUNDANTLY TO REFLECT THIS CONFLICT: ATKESON
V. SOVEREIGN CAMP. W.O.W. (1923), 90 OKLA. 154, 216 P. 467, HOLDING
THAT UNTIL THE PERIOD OF SIX MONTHS HAS EXPIRED SUBSEQUENT TO THE
OKLAHOMA DIVORCE DECREE, A MARRIAGE CONTRACT ENTERED INTO IN VIOLATION
OF THE STATUTE IS A VOID CONTRACT WHEREVER ENTERED INTO. THIS CASE WAS
CITED WITH APPROVAL IN 23 COMP. GEN. 128, 130. THE CASE OF PLUMMER V.
DAVIS (1934), 169 OKLA. 374, 36 P.2D 938, CONSIDERED THE RIGHT OF AN
ALLEGED SPOUSE TO SHARE IN AN ESTATE, AND IT WAS HELD THAT THE HUSBAND
OF A FEMALE WHOM HE HAD MARRIED IN ANOTHER STATE WITHIN THE PROHIBITED
PERIOD REQUIRED IN OKLAHOMA AFTER HER DIVORCE, AND SHE HAVING DIED
WITHIN THE SIX-MONTH PERIOD, WAS ENTITLED TO SHARE IN HER ESTATE. THE
CASE OF BROWN V. CAPPS, 22 P.2D 1008, HELD THAT DEEDS EXECUTED BY A
WIFE NOT JOINED BY THE ALLEGED HUSBAND, PRIOR TO SIX MONTHS FOLLOWING
DIVORCE, WERE VALID. HESS V. HESS (1947), 198 OKLA. 130, 176 P.2D
808--- WHILE CITING THE CASE OF MANTZ V. GILL, 147 OKLA. 199, 296 P. 441
(AND OTHER CASES) FOR THE PROPOSITION THAT "GOOD FAITH" IS REQUIRED OF
PARTIES ENTERING INTO A SECOND MARRIAGE, AND THAT SUCH RELATIONSHIP WILL
RIPEN INTO A COMMON-LAW MARRIAGE IF THEY CONTINUE TO COHABIT WITHOUT
CHANGE BEYOND THE SIX-MONTH STATUTORY PERIOD OF IMPEDIMENT--- HELD,
QUOTING FROM THE SYLLABUS, THAT:
"THE REMOVAL OF A LEGAL IMPEDIMENT TO MARRIAGE WHILE PARTIES CONTINUE
TO LIVE TOGETHER AS HUSBAND AND WIFE, GIVES RISE TO A COMMON-LAW
MARRIAGE EVEN THOUGH ONE OR BOTH OF THE PARTIES KNEW OF THE IMPEDIMENT.'
THE CASE OF CASTOR V. UNITED STATES (1948), 78 F.SUPP. 750, 752,
POSED FOR JUDICIAL DETERMINATION THE PARTY LEGALLY ENTITLED TO THE
INSURANCE BENEFITS OF ONE ARLEY C. CASTOR, WHO DIED JULY 10, 1943. THE
DECEDENT PREVIOUSLY HAD BEEN DIVORCED FROM ONE JUANITA CASTOR, ON MAY
18, 1940, IN OKLAHOMA, AND HAD MARRIED THE PLAINTIFF ON JUNE 10, 1940,
AND THEREAFTER THEY LIVED TOGETHER AND COHABITED UNTIL JULY 10, 1943,
THE DATE OF HIS DEATH. ALTHOUGH THE PARTY-DEFENDANTS SHOWED THAT THE
PLAINTIFF HAD PREVIOUSLY BEEN MARRIED IN THE STATE OF KANSAS TO A THIRD
PERSON, WHICH RELATIONSHIP HAD NOT BEEN TERMINATED PRIOR TO HER MARRIAGE
TO THE DECEDENT CASTOR--- FOR WHICH REASON THE COURT HELD THAT SHE WAS
UNABLE TO PREVAIL--- THE COURT DEEMED IT NECESSARY FIRST TO RESOLVE HER
RELATIONSHIP, REGARDLESS OF THE PRIOR UNTERMINATED MARRIAGE, INCIDENT TO
THE OKLAHOMA MARRIAGE TO CASTOR, AS FOLLOWS:
"* * * THE OKLAHOMA STATUTE R.L. 1910, SEC. 4971, LAWS OF 1925, CH.
119, P. 166, SEC. 1, 12 O.S. 1941 SEC. 1280, PROVIDES, AMONG OTHER
THINGS, THAT:
" "* * * AND IT SHALL BE UNLAWFUL FOR ANY PERSON WHO HAS A LIVING
HUSBAND OR WIFE TO MARRY ANOTHER PERSON IN ANY OTHER STATE WITHIN SIX
(6) MONTHS FROM DATE OF DECREE OF DIVORCEMENT GRANTED IN THIS STATE AND
COHABIT WITH SUCH SECOND HUSBAND OR WIFE IN THIS STATE DURING SAID
PERIOD. IT SHALL BE UNLAWFUL IN ANY EVENT FOR EITHER PARTY TO SUCH
DIVORCE SUIT TO MARRY ANY OTHER PERSON WITHIN SIX MONTHS FROM THE DATE
OF THE DECREE OF DIVORCEMENT; * * *.'
"THE OTHER SECTIONS OF THE STATUTE WITH RESPECT TO THE SUBJECT MAKE
PERSONS SO REMARRYING GUILTY OF BIGAMY.
"DEFENDANTS CONTEND THAT IN VIEW OF THIS STATUTE THE MARRIAGE BETWEEN
PLAINTIFF AND DECEASED WAS VOID. THE OKLAHOMA COURTS HAVE HELD
OTHERWISE. THE QUESTION WAS BEFORE THE SUPREME COURT OF OKLAHOMA IN
MANTZ V. GILL, 147 OKL. 199, 296 P. 441, 445. IN THAT CASE THE COURT
SAID:
" "WHERE A SECOND MARRIAGE IS ENTERED INTO IN GOOD FAITH, AND THE
PARTIES CONTINUE TO COHABIT WITHOUT CHANGE DURING AND BEYOND THE
STATUTORY SIX-MONTH PERIOD OF IMPEDIMENT, THIS RELATIONSHIP RIPENS INTO
A COMMON-LAW MARRIAGE. SUCH MARRIAGE IS RECOGNIZED AS VALID IN THIS
STATE BY OUR COURT.'
"THIS RULING HAS BEEN FOLLOWED IN NUMEROUS OTHER CASES. IN VIEW OF
THIS INTERPRETATION OF THE STATUTE BY THE OKLAHOMA COURT THE MARRIAGE
BETWEEN PLAINTIFF AND THE DECEASED CANNOT BE HELD INVALID FOR THAT
REASON ALONE. THERE IS NOTHING BEFORE THE COURT TO SHOW ANY LACK OF
GOOD FAITH ON THEIR PART; ON THE CONTRARY, IT IS ALLEGED WITHOUT
DISPUTE THAT FOLLOWING THE CONSUMMATION OF THE ALLEGED MARRIAGE THEY
LIVED TOGETHER FOR APPROXIMATELY THREE YEARS. THIS WOULD COMPLY WITH
THE RULE LAID DOWN IN THE MANTZ CASE, SUPRA.'
ON THE WHOLE, WE ARE INCLINED TO VIEW THE DECISIONS INVOLVING THE
PERTINENT PROVISIONS OF THE OKLAHOMA STATUTE PRESENTLY IN EFFECT, AS
STANDING FOR THE PROPOSITION THAT REMARRIAGE IN GOOD FAITH WITHIN THE
SIX-MONTH PROHIBITORY PERIOD BY OTHERWISE COMPETENT PARTIES, MAY RIPEN
INTO A COMMON-LAW RELATIONSHIP, NOT PRIOR TO THE EXPIRATION OF SUCH
PERIOD. IT NECESSARILY FOLLOWS THAT THE SAID PARTIES MAY NOT LEGALLY BE
RECOGNIZED AS HUSBAND AND WIFE DURING THE PERIOD OF THE INHIBITION SO AS
TO ENTITLE THE OFFICER TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A
LAWFUL WIFE DURING THAT PERIOD.
ACCORDINGLY, IT IS CONCLUDED THAT MR. BULLOCK MAY NOT IN ANY EVENT BE
CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN
OFFICER WITH A LAWFUL WIFE (SYLVIA HAWTHORNE BULLOCK) FOR THE PERIOD
FROM JANUARY 30 TO JULY 29, 1956, AND NOT THEREAFTER IN THE ABSENCE OF
EVIDENCE THAT THE MARRIAGE PERFORMED ON FEBRUARY 1, 1956, RIPENED INTO A
VALID COMMON-LAW MARRIAGE BY COHABITATION OF THE PARTIES IN A STATE
WHERE SUCH MARRIAGES ARE RECOGNIZED OR EVIDENCE THAT THEY WERE
CEREMONIALLY MARRIED ON OR AFTER JULY 29, 1956.
B-128798, AUG. 31, 1956
TO MISSOURI PACIFIC RAILROAD COMPANY:
REFERENCE IS MADE TO YOUR LETTER WRITTEN UNDER FILE REFERENCE
6-RS-37591-A REGARDING THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM, PER
BILL NO. 37591-A, FOR $5,319.89 ALLEGED TO BE THE BALANCE OF THE FREIGHT
CHARGES DUE FOR THE TRANSPORTATION OF 21 CARLOADS OF SCRAP STEEL FROM
THE UNITED STATES MARITIME COMMISSION, PERMANENTE METALS CORPORATION,
SHIPYARDS NOS. ONE AND TWO, RICHMOND, CALIFORNIA, WHICH WERE DELIVERED
TO THE GRANITE CITY STEEL COMPANY, GRANITE CITY, ILLINOIS, DURING MAY
AND JUNE 1944.
YOUR CLAIM IS BASED ON THE CONTENTION THAT THE CHARGES FOR THE
TRANSPORTATION IN QUESTION MAY NOT BE SUBJECTED TO LAND-GRANT
DEDUCTIONS, BECAUSE THE SHIPMENTS WERE NOT MOVING FOR MILITARY USE.
THE QUESTION OF WHETHER OTHER SHIPMENTS OF MARITIME COMMISSION SCRAP
STEEL, DELIVERED TO THE GRANITE CITY STEEL COMPANY, WERE MILITARY OR
NAVAL PROPERTY MOVING FOR MILITARY OR NAVAL AND NOT FOR CIVIL USE IS NOW
PENDING IN THE UNITED STATES COURT OF CLAIMS IN CHICAGO, ROCK ISLAND AND
PACIFIC RAILROAD CO. V. UNITED STATES, C.CLS. 49213. AMONG THE ISSUES
TO BE DECIDED IN THAT CASE IS THE NATURE AND EXTENT OF GRANITE CITY'S
PRODUCTION OF MILITARY AND NAVAL ITEMS IN RELATION TO ITS TOTAL STEEL
PRODUCTION.
ACCORDINGLY, NO FURTHER ACTION WILL BE TAKEN ON YOUR REQUEST FOR
REVIEW OF THE SETTLEMENT ACTION OF FEBRUARY 7, 1956, PENDING FINAL
DETERMINATION OF THE ROCK ISLAND CASE, WHICH MAY HAVE A BEARING ON THE
DISPOSITION OF YOUR CLAIM. AT THAT TIME, YOUR CLAIM WILL BE GIVEN
PROMPT
B-123500, AUG. 30, 1956
TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY:
REFERENCE IS MADE TO YOUR REQUEST, PER FILE G-164487-A, FOR REVIEW OF
THE SETTLEMENT DATED FEBRUARY 6, 1952, WHICH DISALLOWED YOUR BILL NO.
164487-A FOR ADDITIONAL FREIGHT CHARGES OF $250.96, ALLEGED TO BE DUE
FOR THE TRANSPORTATION OF A SHIPMENT OF SMOKE GENERATORS MOUNTED ON
TRAILERS, WEIGHING 32,450 POUNDS, FROM DETROIT, MICHIGAN, TO SAN
FRANCISCO, CALIFORNIA, UNDER BILL
OF LADING NO. N-743888, IN DECEMBER 1942.
FOR THIS SERVICE, YOU CLAIMED ORIGINALLY AND WERE PAID THE SUM OF
$435.53. THE CHARGES WERE COMPUTED BY YOU ON THE BASIS OF A COMMODITY
RATE OF $2.36 PER 100 POUNDS, LESS LAND-GRANT DEDUCTION, APPLICABLE ON
"MACHINERY, NOIBN," MINIMUM WEIGHT 30,000 POUNDS, PUBLISHED IN ITEM 3960
OF TRANS-CONTINENTAL FREIGHT BUREAU WEST-BOUND TARIFF NO. 1-V, AGENT L.
E. KIPP'S I.C.C. NO. 1472.
THEREAFTER, BY BILL NO. SUP. 164487-A, YOU CLAIMED $250.96
ADDITIONAL, CONTENDING, IN EFFECT, THAT UNDER RULE 18 OF THE
CLASSIFICATION, THE SO-CALLED "COMBINATION ARTICLE RULE," THE ARTICLE
SHIPPED IS PROPERLY RATABLE ON THE BASIS OF A CLASS-A RATING.
THE SHIPMENT IS DESCRIBED IN THE BILL OF LADING AS "10 BOXES
MACHINERY NOIBN BOXED (SMOKE GENERATORS MOUNTED ON TRAILERS)," WEIGHING
32,450 POUNDS. THE BILL OF LADING SHOWS THAT THE SHIPMENT CONSISTED OF
10 GENERATORS MOUNTED ON TRAILERS, WHICH WERE CONTAINED IN 10 BOXES
HAVING A GROSS WEIGHT OF 3,245 POUNDS EACH. THERE IS NOTHING IN THE
RECORD TO INDICATE THAT THE GENERATOR COULD BE READILY SEPARATED OR
REMOVED FROM THE TRAILER OR, IF THE GENERATORS WERE REMOVED, THAT THE
TRAILER--- WITHOUT STRUCTURAL ALTERATIONS--- COULD BE USED FOR HAULING
FREIGHT OR FOR ANY OTHER USE. ALSO, THE U.S. NAVY REGIONAL ACCOUNTS
OFFICE, WASHINGTON, D.C., REPORTS THAT THE SMOKE GENERATOR MOUNTED ON
THE TRAILER WAS A SINGLE WORKING UNIT AND THAT THE TRAILER WAS A
COMPONENT PART OF THE EQUIPMENT, OPERATING ONLY WITH THE SMOKE
GENERATOR.
IT MUST BE CONCLUDED, THEREFORE, THAT THE UNIT WAS A MOBILE, OR
PORTABLE, SMOKE GENERATOR RATHER THAN A COMBINATION ARTICLE AND,
CONSEQUENTLY, RULE 18 OF THE GOVERNING FREIGHT CLASSIFICATION WOULD NOT
BE APPLICABLE FOR DETERMINING THE CHARGES FOR THE TRANSPORTATION
INVOLVED. SEE, IN THIS CONNECTION, STEWART AND STEVENSON SERVICES, INC.
V. BALTIMORE AND OHIO RAILROAD COMPANY, 276 I.C.C. 156, 157, AND
HARRISON CONSTRUCTION CO. V. CINCINNATI, N.O. AND T.P. RY. CO., 266
I.C.C. 313, 316-318. IN THE LATTER CASE IT WAS HELD THAT A
TRUCK-MOUNTED CONCRETE MIXER WAS A SELF-PROPELLED CONCRETE-MIXING
MACHINE RATHER THAN A COMBINATION ARTICLE AND WAS SUBJECT TO THE RATING
ON "MACHINERY OR MACHINES, N.O.I.B.N.' SEE, ALSO, OAKLAND TRUCK SALES
COMPANY V. BALTIMORE AND OHIO RAILROAD COMPANY, ET AL., 270 I.C.C. 548.
IN ACCORDANCE WITH THE PRINCIPLES STATED IN THE ABOVE CASES THE
CHARGES FOR THIS TRANSPORTATION SHOULD NOT BE IN EXCESS OF THOSE
COMPUTED ON THE BASIS OF THE RATING PROVIDED IN ITEM 3960 OF
TRANS-CONTINENTAL FREIGHT BUREAU WEST-BOUND TARIFF NO. 1-V FOR
"MACHINERY NOIBN.' THE SETTLEMENT, WHICH WAS CONSISTENT WITH THE
FOREGOING, IS NOT SHOWN TO HAVE BEEN IN ERROR OTHERWISE AND,
ACCORDINGLY, IS SUSTAINED.
B-127211, AUG. 30, 1956
TO THE HONORABLE LEWIS L. STRAUSS, CHAIRMAN, ATOMIC ENERGY
COMMISSION:
CONSIDERATION HAS BEEN GIVEN MR. FIELDS' LETTER OF MARCH 5, 1956,
CONCERNING THE CLAIM OF THE ALLIS-CHALMERS MANUFACTURING COMPANY FOR AN
ESCALATION INCREASE IN THE PRICE OF CERTAIN ELECTRICAL
EQUIPMENT FURNISHED THE ATOMIC ENERGY COMMISSION UNDER CONTRACT NO.
AT/40-1/-1460.
THE CONTRACT WAS AWARDED ON AUGUST 18, 1952, AFTER ADVERTISING, AND
CALLED FOR FURNISHING A QUANTITY OF OIL CIRCUIT BREAKERS AND RELATED
EQUIPMENT. THE CONTRACT CONTAINED AN ESCALATION CLAUSE, UNDER WHICH IT
WAS AGREED THAT THE CONTRACT PRICES WOULD BE INCREASED OR DECREASED IN
THE SAME RATIO AS PRICES FOR ITS NEAREST COMMERCIAL EQUIVALENT TO THE
CONTRACT ARTICLES SUBJECT TO A MAXIMUM INCREASE OF 20 PERCENT. FOR
COMPARISON PURPOSES, PARAGRAPH C OF THE ESCALATION CLAUSE CALLED FOR THE
DESIGNATION BY THE CONTRACTOR OF ITS NEAREST COMMERCIAL EQUIVALENT TO
THE CONTRACT ARTICLES AND THE CURRENT PRICE THEREFOR.
IN THE BID SUBMITTED TO THE COMMISSION THE CONTRACTOR FILLED OUT
PARAGRAPH C OF THE ESCALATION CLAUSE AS FOLLOWS:
"C. FOR THE PURPOSE OF THIS SECTION, IT IS AGREED BY THE CONTRACTOR
AND THE GOVERNMENT THAT THE NEAREST COMMERCIAL EQUIVALENT OF THE
MATERIAL COVERED BY THIS CONTRACT IS (ALLIS-CHALMERS TYPE BZO OIL
CIRCUIT BREAKERS WITH PRICES AS SHOWN IN ALLIS-CHALMERS PRICE BOOK
SECTION 2602, PAGE 104 DATED DEC. 12, 1950,) AND THAT THE ESTABLISHED
PRICE THEREFOR, AT THE DATE OF THIS CONTRACT, IS $ * 60,000.00.'
IN THE COPY OF THE BID RETAINED BY THE CONTRACTOR, THE REFERENCE TO
PAGE 21, SECTION 2602 OF ITS DECEMBER 12, 1950, PRICE BOOK WAS NOT
MARKED OUT AS IT WAS IN THE BID SUBMITTED TO THE COMMISSION, AND NO
PRICE WAS GIVEN. THIS DISCREPANCY WAS CALLED TO THE CONTRACTOR'S
ATTENTION WHEN REQUEST WAS MADE FOR AN ESCALATION INCREASE.
THE CONTRACTOR CONTENDS THAT THE BID SUBMITTED TO THE COMMISSION WAS
ERRONEOUS IN THIS RESPECT, AND THAT NO REFERENCE SHOULD HAVE BEEN MADE
TO PAGE 104 OF ITS PRICE BOOK OR TO A PRICE OF $60,000. IT APPEARS THAT
PAGE 104, ALTHOUGH IN EXISTENCE AT THE TIME OF THE BID WAS NOT A
PUBLISHED PRICE SECTION AND WAS NOT DISTRIBUTED EITHER TO THE PUBLIC OR
WITHIN THE CONTRACTOR'S OWN ORGANIZATION. THE CONTRACTOR STATES THAT
PAGE 104 WAS PRINTED ONLY FOR THE USE OF ITS BOSTON WORKS IN ESTIMATING
APPROXIMATE PRICES FOR ITEMS WHICH THE COMPANY HAD NOT PREVIOUSLY
MANUFACTURED AND FOR WHICH THERE WAS NO ESTABLISHED COMPANY PRICE; ALSO
THAT THE APPROXIMATE OR SUGGESTED PRICES LISTED THEREIN WERE PURPOSELY
HIGH. THE CONTRACTOR FURTHER STATES THAT REFERENCE PROPERLY SHOULD HAVE
BEEN MADE TO PAGE 21, SECTION 2602, OF ITS DECEMBER 12, 1950, PRICE BOOK
AND TO ITS TYPE BZO-160161K BREAKERS. THIS DESCRIPTION APPLIED TO
BREAKERS SIMILAR TO THOSE CALLED FOR BY THE CONTRACT, EXCEPT THAT THE
LARGEST BREAKER LISTED AT 161 KV HAD A RATING OF 5,000,000 KVA RATHER
THAN 10,000,000 KVA AS CALLED FOR UNDER THE CONTRACT. IT IS STATED BY
THE CONTRACTOR, AND IT APPEARS TO BE THE VIEW OF THE ATOMIC ENERGY
COMMISSION, THAT THE "NEAREST COMMERCIAL EQUIVALENT" TO THE BREAKERS
CALLED FOR BY THE CONTRACT--- IN THE SENSE OF ITEMS WHICH HAD ACTUALLY
BEEN PRODUCED FOR COMMERCIAL USE--- WAS TYPE BZO-160-161K RATED
5,000,000 KVA AND PRICED AT $44,000 IN ALLIS-CHALMERS' PRICE BOOK OF
DECEMBER 12, 1950. THE ESTABLISHED PRICE FOR THIS COMMERCIAL BREAKER
WAS INCREASED TO $48,000 BY ALLIS CHALMERS' PUBLISHED PRICE BOOK DATED
JUNE 15, 1953. BY ITS CIRCULAR LETTER NO. 47 DATED MAY 15, 1953, THE
CONTRACTOR HAD ALSO ANNOUNCED A GENERAL INCREASE OF TEN PERCENT IN THE
PRICE OF SPARE PARTS FOR CIRCUIT BREAKERS. NO DELIVERIES WERE MADE OR
REQUIRED UNDER THE INSTANT CONTRACT UNTIL AFTER JUNE 15, 1953.
IN VIEW OF THESE FACTS, IT IS RECOMMENDED IN THE LETTER OF MARCH 5,
1956, THAT THE CONTRACTOR BE GIVEN AN INCREASE OF TEN PERCENT ON THE
SPARE PARTS CALLED FOR UNDER THE CONTRACT AND AN INCREASE OF 4/44'S OR
9.09 PERCENT ON THE CONTRACT CIRCUIT BREAKERS.
THE QUESTION FOR DECISIONS IS WHETHER OR NOT THE CONTRACTOR, BY
DESIGNATING A CERTAIN MODEL AT A SPECIFIED PRICE IN THE ESCALATION
CLAUSE, IS THEREBY COMMITTED TO THAT MODEL AND PRICE AS A BASIS FOR
ESCALATION, REGARDLESS OF THE FACT THAT THE DESIGNATED MODEL WAS NOT A
COMMERCIAL PRODUCT, HAD NEVER BEEN MANUFACTURED, AND HAD NEVER BEEN SOLD
FOR THE PRICE SPECIFIED. IN OUR OPINION, THE ESCALATION CLAUSE
CONTEMPLATES COMPARISON OF PRICES AT THE TIME OF BID AND TIME OF
DELIVERY OF AN ACTUAL COMMERCIAL EQUIVALENT. OF COURSE, DIFFERENT
SITUATIONS COULD ARISE WHICH WOULD PREVENT THE PARTICULAR PRICE
COMPARISON CONTEMPLATED IN THE ESCALATION CLAUSE, AS WOULD BE THE CASE
WHERE THE NEAREST COMMERCIAL EQUIVALENT DESIGNATED IN THE BID HAD BEEN
DISCONTINUED BY THE CONTRACTOR PRIOR TO DELIVERY UNDER THE CONTRACT. IN
OUR OPINION, HOWEVER, THIS WOULD NOT NECESSARILY PRECLUDE ESCALATION IN
EVERY CASE. IT IS CLEARLY ESTABLISHED HERE THAT THERE WAS A GENERAL
PRICE INCREASE ON ALL CIRCUIT BREAKERS OF THE TYPE COVERED BY THE
CONTRACT. IF THE CONTRACTOR'S NEAREST COMMERCIAL EQUIVALENT IN FACT WAS
THE $44,000 BZO-160-161K BREAKER RATED AT 5,000,000 KVA, AS IS STATED
BOTH BY THE CONTRACTOR AND THE COMMISSION, THERE IS NO DISPUTE THAT ITS
PRICE INCREASED TO $48,000. ASSUMING THIS MODEL TO BE THE CONTRACTOR'S
NEAREST COMMERCIAL EQUIVALENT AT THE TIME OF ITS BID, AND CONSIDERING
YOUR RECOMMENDATION IN THE MATTER, WE WILL INTERPOSE NO OBJECTION TO
ESCALATION ON THE BASIS SUGGESTED IN THE LETTER OF MARCH 5, 1956.
B-128422, AUG. 30, 1956
TO THE COOPER EQUIPMENT COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1956, REQUESTING FURTHER
CONSIDERATION OF OUR DECISION OF JULY 27, 1956, HOLDING, FOR THE REASONS
STATED, THAT THERE WAS NO LEGAL BASIS FOR QUESTIONING THE ACTION OF THE
COMMANDANT OF THE MARINE CORPS IN REJECTING ALL BIDS RECEIVED IN
RESPONSE TO INVITATION NO. 379 WHICH REQUESTED BIDS FOR FURNISHING SODA
FOUNTAINS, REPAIR PARTS, ETC., TO BE IN ACCORDANCE WITH PURCHASE
DESCRIPTION DATED JUNE 6, 1956.
IT IS STATED IN YOUR LETTER THAT THE ADVERTISED SPECIFICATIONS WERE
VERY SIMILAR TO THOSE ISSUED FROM TIME TO TIME IN THE PAST ON WHICH
FOUNTAINS WERE PROCURED FOR THE MARINE CORPS AND THAT, IN YOUR OPINION,
THE ADVERTISED SPECIFICATIONS WERE NOT RESTRICTIVE IN THAT THEY
SPECIFIED THAT THEY WERE TO BE CONSIDERED DESCRIPTIVE AND NOT
RESTRICTIVE WITH THE FURTHER STIPULATION "OR EQUAL.' YOU STATE FURTHER
THAT YOU RECEIVED, IN ADVANCE, VERBAL ASSURANCES THAT DUNHILL FOUNTAINS
WOULD RECEIVE CONSIDERATION ON A PAR WITH ANY OTHER MAKE IF THEY
COMPLIED ESSENTIALLY WITH THE REQUIREMENTS FOR QUALITY AND
SERVICEABILITY. FINALLY, YOU STATE THAT YOU FEEL THAT OUR DECISION DID
NOT CLARIFY ALL THE FACTS NOR ELIMINATE ALL DOUBT OF WRONGFUL ABUSE OF
DISCRETIONARY POWERS IN THIS CASE.
AS YOU WERE ADVISED IN OUR DECISION OF JULY 27, 1956, THE DEPARTMENT
OF THE NAVY REPORTED THAT IT WAS DETERMINED THAT PATENTED FEATURES OF
THE EQUIPMENT SPECIFIED UNDER THE INVITATION (BASTIAN-BLESSING OR EQUAL
IN DESIGN, METALS AND CONSTRUCTION) WERE REVEALED SUBSEQUENT TO THE
OPENING OF BIDS AND AS A CONSEQUENCE NO AWARD WAS MADE. THESE PATENTED
FEATURES ARE REPORTED TO HAVE RESTRICTED COMPETITION. IT IS NOW
REPORTED INFORMALLY BY THE DEPARTMENT OF THE NAVY THAT THE PURCHASE
DESCRIPTION WOULD HAVE PERMITTED ACCEPTANCE OF BASTIAN-BLESSING COMPANY
EQUIPMENT ONLY AND THAT DUNHILL FOUNTAINS WOULD NOT HAVE BEEN ACCEPTABLE
AS MEETING THE ADVERTISED REQUIREMENTS. ALSO, IT IS STATED THAT AT
LEAST ONE OF THE PRINCIPAL FEATURES OF THE FOUNTAINS DESCRIBED IN THE
PURCHASE DESCRIPTION IS COVERED BY BASTIAN-BLESSING PATENT.
YOU DO NOT FURNISH ANY INFORMATION AS TO THE SPECIFICATIONS TO WHICH
YOU REFER AS HAVING BEEN USED IN THE PAST. THE USE OF SUCH
SPECIFICATIONS, HOWEVER, IF ERRONEOUS, WOULD NOT JUSTIFY THEIR USE IN
THIS CASE. MOREOVER, THE DUTY OF MAKING DETERMINATIONS AS TO WHETHER
ALL BIDS SHOULD BE REJECTED IN THE PUBLIC INTEREST LIES WITH THE
ADMINISTRATIVE OFFICERS OF THE PURCHASING AGENCY AND, IN THE ABSENCE OF
CLEAR PROOF OF ABUSE OF THEIR DISCRETIONARY POWERS IN THAT REGARD, WE
WOULD NOT UNDERTAKE TO INTERFERE WITH ACTION BASED UPON SUCH A
DETERMINATION. IN THIS CASE, THE CONTRACTING OFFICIALS OF THE MARINE
CORPS DETERMINED THAT IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO
REJECT ALL BIDS AND TO READVERTISE ON THE BASIS OF REVISED AND
NON-RESTRICTIVE SPECIFICATIONS. THIS ACTION WAS IN ACCORDANCE WITH THE
RIGHT RESERVED BY THE GOVERNMENT IN THE INVITATION FOR BIDS AND THE
PROVISIONS OF SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF
1947, 62 STAT. 21. THE EXERCISE OF THE RIGHT TO REJECT ALL BIDS AND
READVERTISE IS NOT SUBJECT TO REVIEW BY OUR OFFICE, IN THE ABSENCE OF
FRAUD OR BAD FAITH AMOUNTING TO FRAUD. HERE THE ADMINISTRATIVE ACTION
APPEARS TO HAVE BEEN TAKEN IN GOOD FAITH AND WE DO NOT FIND ANY LEGAL
BASIS FOR QUESTIONING THAT ACTION.
B-128485, AUG. 30, 1956
TO THE SECRETARY OF THE AIR FORCE:
REFERENCE IS MADE TO A LETTER DATED AUGUST 14, 1956, WITH ENCLOSURES,
FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, IN RESPONSE TO OUR
REQUEST OF JULY 9, 1956, FOR A REPORT RELATIVE TO THE PROTEST OF MR.
MILT GROBAN IN CONNECTION WITH THE CONTEMPLATED SALE OF SURPLUS
PROPERTY, ARISING FROM CONTRACT TERMINATION INVOLVING THE LADISH COMPANY
OF CUDAHY, WISCONSIN.
IT APPEARS THAT ON MAY 7, 1956, THE LADISH COMPANY ISSUED AN
INVITATION FOR BIDS (BID NO. 130) ON 10 ITEMS OF TITANIUM MATERIAL WHICH
CONSTITUTED TERMINATION INVENTORY UNDER AN AIR FORCE PRIME CONTRACT,
BIDS TO BE OPENED MAY 17, 1956. THE INVITATION LISTED THE MATERIAL IN
LOTS 1, 2 AND 3, LOT 1 CONTAINING 4 ITEMS AND LOTS 2 AND 3 EACH
CONTAINING 3 ITEMS, A DESCRIPTION AND THE APPROXIMATE WEIGHT OF EACH
ITEM BEING STATED ON THE BID FORM.
IN THE INVITATION IT IS STATED:
"AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO
THAT RESPONSIBLE BIDDER WHOSE BID, CONFIRMING TO THE INVITATION FOR BID,
WILL BE MOST ADVANTAGEOUS TO THE SELLER, PRICE AND OTHER FACTORS
CONSIDERED. THE SELLER RESERVES THE RIGHT TO MAKE AWARDS, AT THE BID
UNIT PRICES (1) FOR QUANTITIES OF ANY ITEM LESS THAN THOSE SET FORTH IN
THE BID, (II) FOR LESS THAN ALL ITEMS BID UPON, (III) FOR GROUPS OF
ITEMS, OR (IV) FOR ALL ITEMS BID UPON COLLECTIVELY, UNLESS THE BIDDER
INDICATES IN HIS BID THAT SUCH AN AWARD WOULD NOT BE ACCEPTABLE.'
PARAGRAPH 1 OF THE GENERAL PROVISIONS ATTACHED TO THE INVITATION
PROVIDES:
"REJECTION OF BIDS: SELLER RESERVES THE RIGHT TO REJECT ANY OR ALL
BIDS, INCLUDING HIGHEST BIDS, WAIVE ANY INFORMALITY IN BIDS, AND UNLESS
OTHERWISE SPECIFIED BY BIDDER, ACCEPT ANY ITEM OR ITEMS IN BID.'
IN PARAGRAPH 3 OF GENERAL PROVISIONS IT IS STATED IN PART:
"* * * BIDS MAY BE SUBMITTED ON BASIS OF PURCHASE BY ITEM OR BY LOT
UNLESS MATERIAL IS OFFERED EXPRESSLY ON A LOT BASIS. IF BID IS ON ITEM
BASIS, THE AMOUNT OFFERED SHOULD APPEAR OPPOSITE EACH LINE ITEM IN WHICH
THE PURCHASER IS INTERESTED. IF BID IS ON LOT BASIS, TOTAL AMOUNT
OFFERED FOR LOTS SHOULD BE ENTERED IN SPACE INDICATED ON FIRST PAGE OF
MATERIAL LISTS.'
FIVE BIDS WERE RECEIVED, INCLUDING A BID OF SURPLEX SALES AND MILTON
GROBAN AS PARTNERS IN A JOINT VENTURE (HEREINAFTER REFERRED TO AS THE
GROBAN BID). THE GROBAN BID SUBMITTED ON THE BID FORM WAS IN THE
AMOUNTS OF $0.334 PER POUND ON THE FIRST FOUR ITEMS, $0.712 PER POUND ON
THE NEXT FIVE ITEMS, AND $0.432 PER POUND ON THE LAST ITEM. HOWEVER, IN
A LETTER DATED MAY 16, 1956, SUBMITTING THE GROBAN BID, IT WAS STATED:
"WE ASK THAT YOU CONSIDER AN ALTERNATIVE BID BY US OF $0.533 PER LB.
FOR THE ENTIRE 71,208 LBS. FOR THE 10 ITEMS LISTED ON THE THREE LOTS
FORWARDED WITH BID NO. 130. WE REQUEST THAT OUR REGULAR BID NOT BE USED
TO DEFEAT THE ALTERNATIVE OR VICE-VERSA. THE TOTAL CASH INVOLVED AT
53.3 CENTS/LB IS $37,953.86. IF ANY QUESTION ARISES IN CONNECTION WITH
THIS BID, PLEASE CALL US COLLECT BEFORE YOUR RULING.'
THE ABSTRACT OF BIDS SHOWS THAT HY SCHIFFMAN COMPANY WAS HIGH BIDDER
ON ITEMS 1 AND 2 OF LOT 1 ($0.435 PER POUND ON EACH ITEM), WHILE THE
GROBAN ORIGINAL BID WAS HIGHEST ON ALL OTHER ITEMS. IT IS REPORTED THAT
ACCEPTANCE OF THE SAID HIGH BIDS ON AN ITEM BASIS WOULD RESULT IN AN
AGGREGATE PRICE OF $36,703.06 AND THAT ACCEPTANCE OF THE HIGHEST BIDS
REMAINING AFTER REJECTION OF BOTH GROBAN BIDS WOULD REDUCE THE PRICE TO
$26,353.07. AS ABOVE STATED, THE GROBAN COMBINATION BID WAS IN THE
AMOUNT OF $37,953.86 AND THEREFORE WAS THE HIGHEST BID RECEIVED.
BECAUSE OF UNCERTAINTY AS TO THE MEANING AND EFFECT OF THE LANGUAGE
USED IN THE LETTER SUBMITTING THE GROBAN BIDS, IT WAS ADMINISTRATIVELY
DETERMINED THAT BOTH GROBAN BIDS WERE DISQUALIFIED.
IN 35 COMP. GEN. 383, IT WAS STATED:
"IT HAS ALWAYS BEEN HELD THAT "ALL OR NONE" BIDS SUBMITTED IN
RESPONSE TO INVITATIONS FOR BIDS FOR DEFINITE QUANTITIES ARE FOR
CONSIDERATION EVEN IF THERE IS NO PROVISION THEREFOR IN THE INVITATION
FOR BIDS. * * * ALSO, AN AWARD OF ALL LOTS TO ONE BIDDER, WHERE NO MORE
ADVANTAGEOUS PRICE MAY BE OBTAINED OTHERWISE, DOES NOT APPEAR
OBJECTIONABLE.'
IN THE INSTANT MATTER, THE INVITATION DID NOT PRECLUDE THE SUBMISSION
OF COMBINATION BIDS. ALTHOUGH THE LANGUAGE OF THE LETTER SUBMITTING THE
GROBAN ALTERNATIVE OR COMBINATION BID WAS NOT ENTIRELY CLEAR, THE GROBAN
BIDS SHOULD NOT HAVE BEEN HELD DISQUALIFIED WITHOUT GIVING THE BIDDER AN
OPPORTUNITY TO EXPLAIN ITS BID IN ACCORDANCE WITH THE REQUEST IN ITS
SUBMITTING LETTER. THE ABOVE-QUOTED STATEMENT FROM THE LETTER IS
SUSCEPTIBLE OF THE INTERPRETATION CONTENDED FOR BY THE BIDDER--- THAT
ITS TWO BIDS WERE TO REMAIN COMPLETELY SEPARATE AND DISTINCT AND WERE
NOT TO BE COMBINED, FOR EXAMPLE, SO AS TO RESULT IN A BID OF $0.712 PER
POUND FOR 5 ITEMS (AS IN THE ORIGINAL BID) AND $0.533 PER POUND FOR THE
OTHER 5 ITEMS (AS IN THE ALTERNATIVE OR COMBINATION BID). THE BIDDER
WAS OFFERING TO PURCHASE THE MATERIAL ON THE BASIS OF EITHER SEPARATE
BID WHICH MIGHT PROVE MOST ADVANTAGEOUS TO THE SELLER.
ALTHOUGH THE TIME FOR ACCEPTANCE OF BIDS SPECIFIED IN THE INVITATION
HAS EXPIRED, IT SEEMS IMPLICIT IN THE PROTESTING BIDDER'S VARIOUS
LETTERS URGING CONSIDERATION OF ITS BID THAT SUCH LETTERS WERE INTENDED
TO GRANT AN EXTENSION OF ITS ACCEPTANCE PERIOD AS ORIGINALLY OFFERED.
THUS THE PROTESTING BIDDER STATED IN ITS LETTER OF JUNE 27, 1956,
CONTAINED IN THE FILE, THAT IT HOPED THE ENTIRE MATTER WOULD BE
PRESERVED IN A STATUS WHERE IT COULD BE FINALLY REVIEWED. CONSEQUENTLY
AND SINCE THE RECORD DOES NOT DISCLOSE A VALID BASIS FOR DETERMINING
THAT REJECTION OF BOTH OF THE BIDS IN QUESTION WOULD BE IN THE PUBLIC
INTEREST AS REQUIRED BY SECTION 3 OF THE ARMED SERVICES PROCUREMENT ACT
OF 1947 (SEE B-128449, JULY 23, 1956, 36 COMP. GEN. - (, THE GROBAN
ALTERNATIVE OR COMBINATION BID SHOULD BE ACCEPTED, IT BEING THE HIGHEST
BID AND BEING "MOST ADVANTAGEOUS TO THE SELLER, PRICE AND OTHER FACTORS
CONSIDERED.' SEE 34 COMP. GEN. 535; 19 ID. 356; 15 ID. 354.
B-128544, AUG. 30, 1956
TO COLONEL WILLIAM TAYLOR MEDFORD, USAR:
YOUR LETTER OF JUNE 22, 1956, REQUESTS REVIEW OF SETTLEMENT DATED
JUNE 18, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT IN THE
AMOUNT OF $237.12 REPRESENTING THE COST OF STORAGE OF YOUR HOUSEHOLD
EFFECTS FOR THE PERIOD SEPTEMBER 17, 1954, TO OCTOBER 17, 1955.
THE RECORD SHOWS THAT BY ORDERS DATED NOVEMBER 20, 1953, YOU WERE
DETACHED FROM OVERSEAS ASSIGNMENT AT VERDUN, FRANCE, AND TRANSFERRED TO
FORT MONMOUTH, NEW JERSEY. INCIDENT TO SUCH TRANSFER YOU REQUESTED THAT
YOUR HOUSEHOLD EFFECTS BE SHIPPED TO YOUR HOME IN BALTIMORE, MARYLAND,
AND THAT YOUR PERSONAL EFFECTS BE SHIPPED TO FORT MONMOUTH. BY ORDERS
DATED FEBRUARY 10, 1954, YOU WERE FURTHER TRANSFERRED TO FORT BRAGG,
NORTH CAROLINA. WHEN THE TRANSPORTATION OFFICER AT FORT MONMOUTH
LEARNED THAT YOUR INSTRUCTIONS FOR A SPLIT SHIPMENT HAD NOT BEEN CARRIED
OUT, THE ENTIRE SHIPMENT WAS DELIVERED TO FORT BRAGG. SINCE QUARTERS
WERE NOT AVAILABLE THERE FOR YOU AND SINCE THERE WERE NO GOVERNMENT
STORAGE FACILITIES AVAILABLE, YOUR HOUSEHOLD EFFECTS WERE PLACED IN
COMMERCIAL STORAGE. YOU SAY YOU WERE INFORMED BY THE TRANSPORTATION
SERGEANT WHO PLACED THE EFFECTS IN STORAGE THAT STORAGE CHARGES WOULD BE
AT GOVERNMENT EXPENSE.
IT APPEARS THAT IN FEBRUARY 1955, YOU WERE INFORMED THAT YOU WOULD BE
RESPONSIBLE FOR STORAGE CHARGES FOR ANY PERIOD IN EXCESS OF SIX MONTHS
AND THAT THE GOODS COULD NOT BE OBTAINED FROM THE STORAGE COMPANY UNTIL
SUCH CHARGES HAD BEEN PAID. IT FURTHER APPEARS THAT YOU DID NOT MAKE
PAYMENT UNTIL SEPTEMBER 1955, FOLLOWING WHICH THE GOODS WERE DELIVERED
TO YOUR HOME IN BALTIMORE, YOU HAVING BEEN TRANSFERRED TO THE VALLEY
FORGE ARMY HOSPITAL, PHOENIXVILLE, PENNSYLVANIA. THE GOVERNMENT PAID
FOR SIX MONTHS' STORAGE AND YOU PAID $237.12 FOR THE REMAINING 13-MONTH
PERIOD. YOU NOW CLAIM REFUND OF THAT AMOUNT ON THE BASIS THAT YOU WOULD
NOT HAVE PLACED YOUR HOUSEHOLD EFFECTS IN STORAGE EXCEPT FOR THE FACT
THAT TRANSPORTATION OFFICE PERSONNEL ADVISED YOU THAT THE STORAGE WOULD
BE AT GOVERNMENT EXPENSE, AND YOU SAY YOU SHOULD NOT BE PENALIZED FOR
THE TRANSPORTATION OFFICER'S ERROR.
THE STORAGE OF HOUSEHOLD GOODS OF MEMBERS OF THE UNIFORMED SERVICES
IS GOVERNED BY PARAGRAPH 8006 OF THE JOINT TRAVEL REGULATIONS
PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT
OF 1949, 63 STAT. 813, 814. SECTION 303 (C) PROVIDES THAT MEMBERS OF
THE UNIFORMED SERVICES SHALL BE ENTITLED IN CONNECTION WITH A CHANGE OF
STATION, TO "TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE,
TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS" TO
AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED.
PARAGRAPH 8006-1 (D) OF THE JOINT TRAVEL REGULATIONS PROVIDES:
"D. TIME LIMIT. * * * TEMPORARY STORAGE HEREIN AUTHORIZED WHETHER
IN A GOVERNMENT OR COMMERCIAL FACILITY WILL NOT EXCEED SIX MONTHS IN
CONNECTION WITH ONE PERMANENT CHANGE OF STATION OR UPON DECEASE.'
UNDER THIS REGULATION THE GOVERNMENT MAY PAY STORAGE CHARGES FOR A
PERIOD NOT TO EXCEED SIX MONTHS, THE MEMBER BEING RESPONSIBLE FOR THE
COST OF ANY STORAGE IN EXCESS OF THAT PERIOD. THIS IS SO EVEN THOUGH
THE STORAGE CHARGES MAY HAVE BEEN INCURRED AS THE RESULT OF AN ERROR OF
GOVERNMENT PERSONNEL. IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF A
STATUTE SO PROVIDING, THE GOVERNMENT ITSELF IS NOT LIABLE FOR LOSS OR
DAMAGE RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF DUTY OF THE
OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V.
SICHEL, 127 U.S. 507, 515; 19 COMP. GEN. 503. SINCE THE GOVERNMENT
PAID FOR SIX MONTHS' STORAGE OF YOUR HOUSEHOLD EFFECTS, YOU HAVE
RECEIVED THE MAXIMUM AMOUNT THE REGULATION ALLOWS TO A MEMBER FOR
STORAGE.
ACCORDINGLY, THE SETTLEMENT OF JUNE 18, 1956, WAS CORRECT AND IS
SUSTAINED.
YOUR CLAIM FOR A DISLOCATION ALLOWANCE HAS BEEN RECEIVED AND WILL BE
CONSIDERED BY OUR CLAIMS DIVISION AND, IN DUE COURSE, YOU WILL BE
ADVISED OF THE ACTION TAKEN ON SUCH CLAIM.
B-128610, AUG. 30, 1956
TO MAJOR JAMES L. GAGNIER:
REFERENCE IS MADE TO YOUR LETTER DATED JUNE 29, 1956, REQUESTING
RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 6, 1956, WHICH DISALLOWED
YOUR CLAIM FOR REIMBURSEMENT OF TUITION IN THE AMOUNT OF 36,000 FRANCS
PAID FOR THE PRIVATE SCHOOLING OF YOUR FOUR CHILDREN DURING THE PERIOD
JANUARY, FEBRUARY AND MARCH 1956, WHILE YOU WERE ON DUTY IN FRANCE.
IN SUPPORT OF YOUR ORIGINAL CLAIM DATED JANUARY 30, 1956, ADDRESSED
TO THE FINANCE AND ACCOUNTING OFFICER, 7754TH ARMY UNIT, IT WAS STATED
THAT UPON YOUR ARRIVAL IN FRANCE FOR DUTY IN NOVEMBER 1955 YOU
REGISTERED TWO OF YOUR CHILDREN AT THE SCHOOL FOR AMERICAN DEPENDENTS AT
GARCHES. YOU SAID THAT ALTHOUGH THERE WAS A SCHOOL BUS TO PICK UP AND
RETURN YOUR CHILDREN TO THE DOOR OF YOUR RESIDENCE IN ST.
GERMAIN-EN-LAYE, YOU FOUND IT TO BE A HARDSHIP ON THE CHILDREN BECAUSE
OF THE TIME AND DISTANCE INVOLVED. IT WAS EXPLAINED THAT THE CHILDREN
WERE REQUIRED TO BE READY AT 7:30 A.M., WHEN THE BUS WAS SCHEDULED TO
PASS YOUR DOOR, BUT THAT THE BUS WAS FREQUENTLY AS MUCH AS AN HOUR LATE
IN ITS PICKUPS AND RETURNS WHICH HAD A DETRIMENTAL EFFECT ON THE
CHILDREN'S HEALTH AND AN ADVERSE EFFECT ON THEIR SCHOOL PROGRESS. FOR
THESE REASONS, YOU WITHDREW THE CHILDREN FROM THE SCHOOL AT GARCHES AND
ENROLLED ALL FOUR OF YOUR CHILDREN AT THE COURS STE.-THERESE DE
L-ENFANT-JESUS, IN ST. GERMAIN-EN-LAYE AT A COST OF 12,000 FRANCS A
MONTH, AND EXPRESS THE BELIEF, IN VIEW OF THE ABOVE CIRCUMSTANCES, THAT
THE THE FACILITIES AT GARCHES WERE INADEQUATE.
YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE STATUTORY
PROVISIONS AUTHORIZING THE SECRETARY OF THE DEPARTMENT CONCERNED TO
CONTRIBUTE TO THE SUPPORT OF SCHOOLS IN ANY LOCALITY WHERE A MILITARY OR
NAVAL ACTIVITY IS SITUATED, IF HE FINDS THAT THE AVAILABLE SCHOOLS ARE
INADEQUATE FOR THE WELFARE OF THE DEPENDENTS OF THE SERVICE PERSONNEL
STATIONED AT THAT ACTIVITY, CONTAIN NO PROVISION ENABLING PARENTS TO
MAKE THEIR OWN ARRANGEMENTS FOR PRIVATE SCHOOLING OF THEIR CHILDREN.
YOU NOW SAY THAT IF THE SECRETARY OF THE AIR FORCE HAS AUTHORITY TO
CONTRIBUTE TO THE SUPPORT OF THE SCHOOLS WHERE A MILITARY ACTIVITY IS
SITUATED WHEN THE AVAILABLE SCHOOLS IN THE LOCALITY WERE INADEQUATE, YOU
BELIEVE THAT THERE SHOULD BE A FINDING OF ADEQUACY BEFORE DETERMINING
YOUR ENTITLEMENT.
AUTHORITY FOR THE PAYMENT OF THE COST OF EDUCATION OF DEPENDENTS OF
MILITARY PERSONNEL FOR THE FISCAL YEAR 1956 IS CONTAINED IN SECTION 609
OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1956, 69 STAT. 315, IN
PERTINENT PART AS FOLLOWS:
"APPROPRIATIONS FOR THE DEPARTMENT OF DEFENSE FOR THE CURRENT FISCAL
YEAR SHALL BE AVAILABLE, (A) EXCEPT AS AUTHORIZED BY THE ACT OF
SEPTEMBER 30, 1950 (20 U.S.C. 236-244), FOR PRIMARY AND SECONDARY
SCHOOLING FOR DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL OF THE
DEPARTMENT OF DEFENSE RESIDING ON MILITARY OR NAVAL INSTALLATIONS OR
STATIONED IN FOREIGN COUNTRIES, AS AUTHORIZED FOR THE NAVY BY SECTION 13
OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 421D) IN AMOUNTS NOT EXCEEDING AN
AVERAGE OF $240 PER STUDENT, WHEN THE SECRETARY OF THE DEPARTMENT
CONCERNED FINDS THAT SCHOOLS, IF ANY, AVAILABLE IN THE LOCALITY, ARE
UNABLE TO PROVIDE ADEQUATELY FOR THE EDUCATION OF SUCH DEPENDENTS * *
*.'
SECTION 13 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 854, PROVIDES:
"THE SECRETARY OF THE NAVY MAY, OUT OF FUNDS SPECIFICALLY
APPROPRIATED FOR THAT PURPOSE CONTRIBUTE TO THE SUPPORT OF SCHOOLS IN
LOCALITIES WHERE NAVAL ACTIVITIES ARE LOCATED IF HE FINDS THAT THE
SCHOOLS, IF ANY, AVAILABLE IN THE LOCALITY ARE NOT ADEQUATE FOR THE
WELFARE OF DEPENDENTS OF PERSONNEL OF THE NAVAL ESTABLISHMENT STATIONED
AT THE ACTIVITY, AND MAY PROVIDE FOR THE TRANSPORTATION OF SUCH
DEPENDENTS BETWEEN THE SCHOOLS AND THE ACTIVITIES WHEN SUCH SCHOOLS ARE
NOT ACCESSIBLE TO SUCH DEPENDENT BY REGULAR MEANS OF TRANSPORTATION.'
THESE PROVISIONS AUTHORIZE THE SECRETARY CONCERNED TO CONTRIBUTE TO
THE SUPPORT OF SCHOOLS IN ANY LOCALITY WHERE A MILITARY OR NAVAL
ACTIVITY IS SITUATED WHEN HE FINDS THAT THE SCHOOLS AVAILABLE IN THE
LOCALITY ARE INADEQUATE FOR THE WELFARE OF THE DEPENDENTS OF THE SERVICE
PERSONNEL STATIONED AT THAT ACTIVITY. THE PURPOSE OF THE LEGISLATION
WAS TO SUPPLEMENT, WHEREVER NECESSARY, INADEQUATE LOCAL SCHOOLING
FACILITIES SO THAT SERVICEMEN'S DEPENDENTS LIVING THERE MIGHT RECEIVE
NORMAL EDUCATIONAL ADVANTAGES. TO ACCOMPLISH THAT PURPOSE, HOWEVER, IT
CONTEMPLATES THAT ANY NECESSARY AGREEMENTS OR ARRANGEMENTS WITH LOCAL
SCHOOLS IN THE PROGRAM SHALL BE MADE BY THE APPROPRIATE ADMINISTRATIVE
OFFICERS AFTER A DETERMINATION OF INADEQUACIES OF THE LOCAL FACILITIES
HAS BEEN MADE, AND THAT NECESSARY PAYMENTS TO THE SCHOOLS UNDER SUCH
ARRANGEMENTS OR AGREEMENTS IS MADE BY FISCAL AGENTS OF THE GOVERNMENT.
IT DOES NOT AUTHORIZE THE OBLIGATION OF APPROPRIATED FUNDS BY AN
INDIVIDUAL BY PRIVATE AGREEMENT WITH A LOCAL SCHOOL TO RECEIVE
INSTRUCTIONS FOR HIS DEPENDENT EVEN THOUGH PRECEDED BY A FINDING BY
PROPER ADMINISTRATIVE AUTHORITY OF AN INADEQUACY OF THE PUBLIC SCHOOLS.
33 COMP. GEN. 399. NOTHING IS CONTAINED IN AIR FORCE REGULATION 34-50,
DATED MAY 9, 1955, WHICH AUTHORIZES OR APPEARS TO CONTEMPLATE
AUTHORIZING SUCH PRIVATE AGREEMENTS. CONSEQUENTLY, THERE IS NO PROPER
BASIS FOR REIMBURSING YOU FOR THE FUNDS PAID TO THE SCHOOL IN FRANCE FOR
YOUR CHILDREN'S EDUCATION.
B-128634, AUG. 30, 1956
TO MRS. MARJORIE SHOEMAKER:
THERE HAS BEEN CONSIDERED YOUR LETTER DATED JULY 9, 1956, FORWARDED
HERE BY LETTER DATED JULY 11, 1956, FROM THE HONORABLE LYNDON B.
JOHNSON, UNITED STATES SENATE, CONCERNING THE ACTION TAKEN BY OUR CLAIMS
DIVISION IN LETTER DATED OCTOBER 21, 1955, WHICH DISALLOWED YOUR CLAIM
FOR THE PROCEEDS OF CHECK NO. 1,459,233, DATED MARCH 8, 1944, IN THE
AMOUNT OF $7.50, DRAWN TO THE ORDER OF J. R. HARRISON OR TREASURER OF
THE UNITED STATES. THE AMOUNT OF THE CHECK WAS APPLIED TO PARTIALLY
LIQUIDATE THE INDEBTEDNESS OF LIEUTENANT J. R. HARRISON, YOUR FORMER
HUSBAND, WHICH AROSE BECAUSE CERTAIN CLASS E ALLOTMENT DEDUCTIONS WERE
NOT MADE IN HIS PAY ACCOUNT.
THE OFFICIAL RECORDS SHOW THAT LIEUTENANT HARRISON ENTERED ON ACTIVE
DUTY ON FEBRUARY 17, 1943, AND THAT HE WAS KILLED IN ACTION ON JUNE 6,
1944. BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 6, 1944,
THERE WAS CERTIFIED TO BE DUE YOU AS THE OFFICER'S WIDOW THE SUM OF
$142.66, REPRESENTING PAY AND ALLOWANCES DUE HIM AT THE DATE OF HIS
DEATH. THEREAFTER, THE DEPARTMENT OF THE ARMY NOTIFIED US THAT YOUR
HUSBAND WAS INDEBTED TO THE UNITED STATES BY REASON OF NONDEDUCTION OF
CLASS E ALLOTMENT.
THE RECORDS FURTHER SHOW THAT LIEUTENANT HARRISON AUTHORIZED A A
CLASS E ALLOTMENT IN FAVOR OF THE JEFFERSON STANDARD LIFE INSURANCE
COMPANY, GREENSBORO, NORTH CAROLINA, IN THE AMOUNT OF $8.45 PER MONTH
FOR AN INDEFINITE PERIOD, EFFECTIVE MARCH 1, 1943. THAT ALLOTMENT WAS
PAID AS DIRECTED FOR THE MONTHS OF MARCH 1943 THROUGH MAY 1944, WHEN IT
WAS DISCONTINUED. HOWEVER, AN EXAMINATION OF LIEUTENANT HARRISON'S PAY
ACCOUNTS FOR THE PERIOD FEBRUARY 17, 1943, TO JUNE 6, 1944, SHOWS THAT
NO DEDUCTIONS WERE MADE FOR THAT CLASS E ALLOTMENT FOR THE MONTHS OF
MARCH 1943 THROUGH APRIL 1944. THUS AN OVERPAYMENT IN HIS ACCOUNT IN
THE AMOUNT OF $118.30 RESULTED.
WE ARE NOT UNMINDFUL OF THE SACRIFICE THAT YOUR FORMER HUSBAND MADE
FOR HIS COUNTRY, BUT THE LAW DOES NOT PERMIT PAYMENT OF AMOUNTS DUE THE
ESTATE OF DECEASED SERVICE PERSONNEL WITHOUT TAKING INTO CONSIDERATION
OVERPAYMENTS ALREADY MADE. THE GENERAL ACCOUNTING OFFICE IS REQUIRED BY
LAW TO SETTLE CLAIMS AND DEMANDS BY THE GOVERNMENT (31 U.S.C. 31), AND
THAT AUTHORITY INCLUDES THE DUTY OF EFFECTING THE COLLECTION OF DEBTS
DUE THE GOVERNMENT. WHILE IT IS UNFORTUNATE THAT PROPER DEDUCTIONS WERE
NOT MADE CURRENTLY FROM LIEUTENANT HARRISON'S PAY ACCOUNT, THE FAILURE
TO MAKE SUCH DEDUCTIONS CONSTITUTED AN OVERPAYMENT TO HIM.
THE ACTION TAKEN IN CLAIMS DIVISION LETTER OF OCTOBER 21, 1955, WAS
CORRECT AND IS SUSTAINED.
B-128718, AUG. 30, 1956
TO MR. JOHN O. DONNELLY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1956, REQUESTING REVIEW
OF OUR SETTLEMENT DATED MAY 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR
REIMBURSEMENT OF EXPENSES AND PER DIEM INCIDENT TO YOUR RETURN TRAVEL
FROM FORT RICHARDSON, ALASKA, TO BALTIMORE, MARYLAND, AS AN EMPLOYEE OF
THE DEPARTMENT OF THE ARMY.
SO FAR AS MATERIAL, THE RECORD SHOWS THAT YOU ENTERED INTO AN
EMPLOYMENT AGREEMENT WITH THE DEPARTMENT OF THE ARMY FOR NOT LESS THAN
24 MONTHS OF CIVILIAN EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES
FOR DUTY AT FORT RICHARDSON, ALASKA, EFFECTIVE APRIL 8, 1954. IT
FURTHER APPEARS FROM THE RECORDS THAT ON MARCH 16, 1955, YOU REQUESTED
160 HOURS OF ANNUAL LEAVE BUT THAT YOUR REQUEST WAS ADMINISTRATIVELY
DISAPPROVED DUE TO THE HEAVY WORKLOAD AT THE TIME. NEVERTHELESS, YOU
DEPARTED FROM YOUR OFFICIAL STATION FOR RETURN TRAVEL TO THE CONTINENTAL
UNITED STATES ON MARCH 28, 1955. WITH RESPECT TO THE STATEMENTS IN YOUR
LETTER OF JULY 9, 1956, AND TO YOUR PREVIOUS STATEMENTS RELATIVE TO THE
REPORTED MEDICAL NEEDS FOR DEPARTURE FROM YOUR OFFICIAL STATION, IT IS
SUFFICIENT TO POINT OUT THAT CLAIMS PRESENTED TO OUR OFFICE FOR
SETTLEMENT NECESSARILY MUST BE SETTLED UPON THE BASIS OF THE WRITTEN
RECORD WHICH, OF COURSE, INCLUDES THE ADMINISTRATIVELY RECORDED FACTS OF
THE CASE AS WELL AS THE FACTS REPORTED BY THE CLAIMANT. IN THAT REGARD,
IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT AS CORRECT THE REPORT
OF THE ADMINISTRATIVE OFFICERS UPON DISPUTED QUESTIONS OF FACT IN THE
ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE
CORRECTNESS THEREOF. 3 COMP. GEN. 51; 20 ID. 573, 578.
THE RULE IS WELL SETTLED THAT EMPLOYEES OF THE GOVERNMENT WHO ABSENT
THEMSELVES WITHOUT AUTHORIZED LEAVE ARE CONSIDERED TO BE IN A NONPAY
STATUS FOR THE ENTIRE PERIOD DURING WHICH THEY ARE ABSENT AND ARE NOT
ENTITLED TO PAY OR TRAVEL TIME FOR THE PERIOD.
IT APPEARS TO BE YOUR CONTENTION THAT YOU SHOULD BE REIMBURSED FOR
THE TRAVEL EXPENSES ON THE BASIS THAT YOUR RETURN TO BALTIMORE,
MARYLAND, WAS DUE TO CLIMATIC CONDITIONS AFFECTING YOUR HEALTH. THE
FACT REMAINS, HOWEVER, THAT THERE HAS BEEN NO DETERMINATION BY THE
ADMINISTRATIVE OFFICIALS THAT YOUR RETURN WAS CONSIDERED AS FOR "REASONS
BEYOND HIS (YOUR) CONTROL" WITHIN THE MEANING OF THAT TERM AS USED IN
THE ACT OF AUGUST 2, 1946, AS AMENDED, 5 U.S.C. 73B, A CONDITION
PRECEDENT TO THE PAYMENT OF YOUR CLAIM.
ON THE FACTS AS REPORTED, COUPLED WITH THE APPLICABLE REGULATIONS,
AND SINCE IT APPEARS THAT YOUR DEPARTURE FROM ALASKA WAS FOR REASONS NOT
ACCEPTABLE TO YOUR HEADQUARTERS AND OCCURRED PRIOR TO THE DATE THE
GOVERNMENT AGREED TO ASSUME THE TRAVEL COSTS INVOLVED, THERE IS NO LEGAL
BASIS FOR THE PAYMENT OF YOUR CLAIM UPON THE PRESENT STATE OF THE
RECORD.
ACCORDINGLY, UPON REVIEW, THE DISALLOWANCE OF YOUR CLAIM MUST BE
SUSTAINED.
B-128762, AUG. 30, 1956
TO MR. THOMAS B. HOWARD:
WE REFER TO YOUR LETTER RELATIVE TO THE SETTLEMENT OF JUNE 6, 1956,
WHICH DISALLOWED YOUR CLAIM FOR $22.68 AND $28.98, ADMINISTRATIVELY
DISAPPROVED ON YOUR TRAVEL VOUCHERS FOR TRAVEL PERFORMED FROM JUNE 29 TO
AUGUST 1, 1955, AND FROM AUGUST 2 TO SEPTEMBER 1, 1955, AS AN EMPLOYEE
OF THE ARMY AUDIT AGENCY, ATLANTA REGION, ATLANTA, GEORGIA.
BY TRAVEL AUTHORIZATIONS NO. 134 ARO AND NO. 196 ARO, DATED JUNE 27
AND AUGUST 2, 1955, RESPECTIVELY, YOU WERE AUTHORIZED TO TRAVEL FROM
ATLANTA, GEORGIA, TO ANNISTON ORDNANCE DEPOT, ANNISTON, ALABAMA, TO
JACKSONVILLE, FLORIDA, TO ANNISTON ORDNANCE DEPOT AND RETURN, FOR THE
PERFORMANCE OF TEMPORARY DUTY. THE ORDER AUTHORIZED TRAVEL BY PRIVATELY
OWNED CONVEYANCE AT $0.07 PER MILE. THE MILEAGE IN QUESTION IS FOR
TRAVEL BETWEEN ANNISTON ORDNANCE DEPOT AND YOUR PLACE OF LODGING. IN
YOUR LETTER YOU PRESENT NO FACTS WHICH HAVE NOT ALREADY BEEN CONSIDERED
BY OUR OFFICE.
IT APPEARS TO BE YOUR CONTENTION THAT SUITABLE ACCOMMODATIONS WERE
NOT AVAILABLE AT THE ANNISTON ORDNANCE DEPOT AND AS A RESULT THEREOF YOU
HAD OBTAINED LIVING QUARTERS NINE MILES FROM THE DEPOT AND HAD TO
COMMUTE DAILY.
PARAGRAPH 8B AND 44 OF THE STANDARDIZED GOVERNMENT TRAVEL
REGULATIONS, PROVIDE, IN PERTINENT PART, AS FOLLOWS:
"WHERE THE NATURE AND LOCATION OF THE WORK WHERE TEMPORARILY
STATIONED ARE SUCH THAT SUITABLE MEALS AND LODGINGS CANNOT BE PROCURED
THERE, THE EXPENSE OF DAILY TRAVEL REQUIRED TO PROCURE SUBSISTENCE AT
THE NEAREST AVAILABLE PLACE WILL BE CONSIDERED AS NECESSARY
TRANSPORTATION NOT INCIDENTAL TO SUBSISTENCE. A STATEMENT OF THE
NECESSITY FOR SUCH DAILY TRAVEL SHOULD ACCOMPANY THE TRAVEL VOUCHER.
"DEFINITION.--- THE PER DIEM IN LIEU OF SUBSISTENCE EXPENSES WILL BE
HELD TO INCLUDE ALL CHARGES FOR * * * TRANSPORTATION BETWEEN PLACES OF
LODGINGS OR WHERE MEALS ARE TAKEN AND PLACES OF DUTY.'
WHILE CERTAIN GENERAL RULES HAVE BEEN ESTABLISHED FOR DETERMINING
WHETHER TRAVEL PERFORMED BY EMPLOYEES BETWEEN PLACE OF LODGING AND
TEMPORARY DUTY STATION SHOULD BE CONSIDERED AS NECESSARY TRANSPORTATION
NOT INCIDENTAL TO SUBSISTENCE OR INCLUDED IN THEIR ALLOWANCE FOR
SUBSISTENCE (PER DIEM), SUCH DETERMINATION MUST BE BASED UPON THE FACTS
OF EACH CASE. SEE 3 COMP. GEN. 284; 16 ID.
562; 17 ID. 711; 26 ID. 286; 28 ID. 151; AND 32 ID. 188.
YOUR CONTENTION THAT SUITABLE ACCOMMODATIONS WERE NOT AVAILABLE AT
THE ANNISTON ORDNANCE DEPOT IS NOT BORNE OUT BY THE RECORD. THERE IS ON
FILE IN OUR OFFICE A STATEMENT FROM THE COMMANDING OFFICER, ANNISTON
ORDNANCE DEPOT, WHICH STATES THAT "THERE ARE QUARTERS AVAILABLE TO
CIVILIANS ON TDY THIS STATION AND THESE QUARTERS ARE ADEQUATE FOR U.S.
ARMY OFFICERS.' THIS STATEMENT MADE BY THE COMMANDING OFFICER OF THE
DEPOT WOULD INDICATE THAT SINCE THE ACCOMMODATIONS THAT ARE OFFERED TO
CIVILIANS ON TEMPORARY DUTY AT THE DEPOT ARE THE SAME WHICH ARE
CONSIDERED SUITABLE FOR UNITED STATES ARMY OFFICERS, THEY ARE SUITABLE
FOR CIVILIANS. THE PROVISIONS OF PARAGRAPH 8B REQUIRE THAT SUITABLE
MEALS AND LODGINGS CANNOT BE PROCURED BEFORE THE EXPENSE OF DAILY TRAVEL
REQUIRED TO PROCURE SUCH ACCOMMODATIONS AT THE NEAREST PLACE WILL BE
CONSIDERED AS NECESSARY TRANSPORTATION NOT INCIDENTAL TO SUBSISTENCE AND
THE FURNISHING OF A STATEMENT TO THAT EFFECT. ON THE PRESENT RECORD YOU
HAVE NOT CONCLUSIVELY ESTABLISHED THROUGH ADMINISTRATIVE CHANNELS THAT
SUITABLE MEALS AND LODGINGS WERE NOT AVAILABLE AT THE ANNISTON ORDNANCE
DEPOT.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND UPON
REVIEW THAT ACTION IS SUSTAINED.
REGARDING YOUR STATEMENT THAT YOU HAD BEEN REIMBURSED FOR IDENTICAL
TRAVELING EXPENSES ON THREE DIFFERENT OCCASIONS, YOU ARE ADVISED THAT IF
CLAIMS UNDER IDENTICAL CIRCUMSTANCES WERE ADMINISTRATIVELY ALLOWED, SUCH
CLAIMS WOULD BE FOR CONSIDERATION IN THE POST AUDIT OF THE VOUCHERS
INVOLVED AND SUCH ACTION WOULD BE TAKEN WITH RESPECT THERETO AS DEEMED
APPROPRIATE.
B-128785, AUG. 30, 1956
TO COLONEL EDWARD M. GAVIN, USAF:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 5, 1956, IN EFFECT
REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF JUNE 12, 1956, WHICH
DISALLOWED YOUR CLAIM FOR THE STORAGE OF YOUR HOUSEHOLD EFFECTS FOR 11
MONTHS, AND FOR THE COST OF HAULING THEM FROM A WAREHOUSE TO YOUR
RESIDENCE IN ALBUQUERQUE, NEW MEXICO, INCIDENT TO YOUR RETIREMENT.
BY ORDERS DATED SEPTEMBER 24, 1954, YOU WERE RELEASED FROM ASSIGNMENT
AND DUTY AT KIRTLAND AIR FORCE BASE, NEW MEXICO, RETIRED EFFECTIVE
SEPTEMBER 30, 1954, AND DIRECTED TO PROCEED TO YOUR HOME. ON NOVEMBER
16, 1954, YOUR HOUSEHOLD EFFECTS, WEIGHING 6,080 POUNDS, WERE HAULED
FROM YOUR RESIDENCE IN ALBUQUERQUE TO A COMMERCIAL WAREHOUSE IN THE SAME
CITY, AND PACKED FOR STORAGE. THOSE EFFECTS, PLUS AN ADDITIONAL 3,940
POUNDS WHICH HAD BEEN THERE SINCE OCTOBER 1952, REMAINED IN STORAGE
UNTIL SEPTEMBER 30, 1955, AT WHICH TIME THEY WERE HAULED TO YOUR PRESENT
RESIDENCE. YOUR CLAIM COVERS THE COST OF HAULING AND PACKING 6,080
POUNDS, STORAGE OF 10,020 POUNDS FROM NOVEMBER 16, 1954, TO SEPTEMBER
30, 1955, AND DRAYAGE OF THE LATTER QUANTITY FROM STORAGE TO RESIDENCE.
THE SETTLEMENT MENTIONED ABOVE ALLOWED $221.95 AS REIMBURSEMENT FOR THE
HAULING AND PACKING MENTIONED. NO PAYMENT, HOWEVER, WAS MADE FOR THE
STORAGE AND SUBSEQUENT DRAYAGE. IN YOUR PRESENT LETTER YOU INDICATE
THAT YOU ARE HOLDING THE CHECK IN THE SUM OF $221.95 PENDING INFORMATION
AS TO WHETHER THE LATTER PORTION OF YOUR CLAIM WAS DISAPPROVED BY THE
COURT OF CLAIMS OR AT A LOWER LEVEL.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT.
814, PROVIDES THAT, UNDER SUCH REGULATIONS AS THE SECRETARIES MAY
PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A
PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION
(INCLUDING PACKING, CRATING, DRAYAGE AND TEMPORARY STORAGE) OF HOUSEHOLD
EFFECTS TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED. JOINT TRAVEL
REGULATIONS PROMULGATED PURSUANT TO THAT SECTION PROVIDE FOR TEMPORARY
STORAGE OF HOUSEHOLD EFFECTS IN COMMERCIAL FACILITIES FOR PERIODS NOT TO
EXCEED SIX MONTHS WHEN NECESSARY DUE TO CONDITIONS BEYOND THE CONTROL OF
THE OWNER IN CONNECTION WITH TRANSPORTATION OF THE EFFECTS. BY
DECISIONS B-117876, DATED APRIL 16, 1954 (33 COMP. GEN. 470), WE
ADVISED THE SECRETARY OF THE NAVY THAT WHEN, INCIDENT TO A PERMANENT
CHANGE OF STATION, THE HOUSEHOLD EFFECTS OF A MEMBER ARE PLACED IN
COMMERCIAL STORAGE AT POINT OF ORIGIN WITH THE INTENTION OF MAKING
SHIPMENT UNDER SUCH ORDERS, AND NO SHIPMENT IS EFFECTED, NO PART OF SUCH
STORAGE MAY BE REGARDED AS TEMPORARY STORAGE AT GOVERNMENT EXPENSE
IRRESPECTIVE OF THE MEMBER'S INTENTIONS AT TIME OF STORAGE; ALSO, THAT
WHEN THE FORMER PERMANENT STATION AND THE HOME SELECTED BY THE MEMBER
UPON RETIREMENT ARE IN THE SAME METROPOLITAN AREA, INTRACITY DRAYAGE MAY
NOT BE CONSIDERED SHIPMENT SO AS TO AUTHORIZE TEMPORARY STORAGE INCIDENT
TO SUCH DRAYAGE.
SINCE YOUR EFFECTS (6,080 POUNDS) WERE HAULED TO STORAGE INCIDENT TO
YOUR RETIREMENT, AND NO SHIPMENT WAS MADE (YOUR HOME UPON RETIREMENT
BEING IN THE SAME CITY), IT SEEMS CLEAR, UNDER THE DECISION MENTIONED
ABOVE, THAT NO PART OF THE STORAGE CHARGES MAY BE PAID FROM PUBLIC
FUNDS. THE SUBSEQUENT DRAYAGE OF THOSE EFFECTS FROM STORAGE TO
RESIDENCE, A SECOND INTRACITY MOVE UNDER THE SAME ORDERS, LIKEWISE IS
NOT FOR ALLOWANCE. WITH RESPECT TO THE ADDITIONAL QUANTITY OF 3,940
POUNDS, HOWEVER, SINCE IT APPEARS THAT ONLY THE MOVEMENT OF THOSE
EFFECTS INCIDENT TO YOU RETIREMENT WAS THE DRAYAGE FROM STORAGE TO
RESIDENCE, YOU ARE ENTITLED TO REIMBURSEMENT FOR THAT MOVE. A
SETTLEMENT FOR THE AMOUNT DUE WILL ISSUE IN DUE COURSE.
YOUR CLAIM DOES NOT APPEAR TO HAVE BEEN CONSIDERED BY THE COURT OF
CLAIMS. ACTIONS IN THAT COURT ARE INITIATED BY PARTICULAR CLAIMANTS
DESIRING TO LITIGATE THEIR CLAIMS AND IT DOES NOT APPEAR THAT YOU HAVE
FILED A PETITION FOR THAT PURPOSE.
B-128793, AUG. 30, 1956
TO THE POSTMASTER GENERAL:
REFERENCE IS MADE TO TWO LETTERS OF MAY 22, 1956, FROM THE ACTING
ASSISTANT POSTMASTER GENERAL AND CONTROLLER, AND TWO LETTERS OF MAY 24,
1956, FROM THE ASSISTANT POSTMASTER GENERAL AND CONTROLLER, TRANSMITTING
CASES NOS. 55623-K, 59247-K, 59536-K, AND 55625-K, RESPECTIVELY, FILE
REFERENCE MO-WDB-OP, AS MATTERS REQUIRING THE EXERCISE OF THE POWERS OF
THE POSTMASTER GENERAL OVER FINES, PENALTIES, FORFEITURES AND
LIABILITIES PURSUANT TO 5 U.S.C. 383 AND 384, CONCERNING WHICH YOUR
DESIGNEES HAVE CONSENTED TO THE ACTION PROPOSED AND HAVE REFERRED THE
CASES FOR OUR CONSIDERATION.
IT APPEARS FROM THE INSPECTORS' REPORTS, INCLUDED IN THE FILES, THAT
ON THE NIGHT OF NOVEMBER 16, 1953, THE POST OFFICE AT HIAWATHA, WEST
VIRGINIA, WAS BURGLARIZED AND A NUMBER OF BLANK MONEY ORDER FORMS,
TOGETHER WITH VALIDATING AND POSTMARKING STAMPS, WERE STOLEN. THE
CHARGES FOR WHICH REMISSION IS REQUESTED WERE THE RESULT OF THE CASHING
OF FICTITIOUS MONEY ORDERS (NOS. 5-79,440,905, 5-79,440,930,
5-79,440,904, 5-79-440,908), IN THE AMOUNT OF $50 EACH, ISSUED ON THE
STOLEN FORMS.
IN CASES NOS. 55623-K, 59536-K, AND 55625-K, THE FICTITIOUS MONEY
ORDERS DESIGNATED THE PAYEE AS PERRY FOWLER, THE PERSON APPREHENDED AND
SENTENCED FOR THE OFFENSE. THE RECORD DISCLOSES THAT PERRY FOWLER HAD A
CONSIDERABLE AMOUNT OF IDENTIFICATION, INCLUDING HIS ARMY I.D. CARD,
AND THAT NOTICE OF THE STOLEN FORMS WERE NOT RECEIVED AT THE POST
OFFICES UNTIL AFTER THE MONEY ORDERS WERE CASHED. UNDER THESE
CIRCUMSTANCES IT MAY BE CONSIDERED THAT THE PAYING CLERKS EXERCISED
REASONABLE PRECAUTIONS AND THAT THE LOSSES CONNECTED WITH THESE PAYMENTS
JUSTLY ARE NOT ATTRIBUTABLE TO ANY FAULT ON THE PART OF SUCH CLERKS.
OUR OFFICE THEREFORE CONCURS IN THE VIEW OF YOUR DEPARTMENT THAT
COLLECTION FROM THE PAYING CLERKS IN THESE CASES WOULD BE UNWARRANTED.
THE RECORD IN CASE NO. 59247-K, INVOLVING THE LIABILITY OF PAYING
CLERK INEZ CARTER OF THE NEW TAZEWELL, TENNESSEE, POST OFFICE, SHOWS
THAT MONEY ORDER NO. 5-79,440,930, DESIGNATING A FICTITIOUS PAYEE, OMER
LUSK ASHURST, WAS CASHED BY PERRY FOWLER WITHOUT PROPER IDENTIFICATION.
THE AMOUNT OF $50 WAS COLLECTED FROM CLERK CARTER, BUT AS INDICATED IN
YOUR FINANCE OFFICER'S MEMORANDUM OF JULY 11, 1955, HIS OFFICE, UPON
REVIEW OF THE EVIDENCE DID NOT AGREE THAT THE CLERK SHOULD BE HELD
RESPONSIBLE AND THE AMOUNT WAS RETURNED TO HER. AMONG THE REASONS GIVEN
FOR THE CONCLUSION THAT THE CLERK SHOULD NOT BE HELD RESPONSIBLE WAS
THAT AS "THE SAME PERSON CASHING THIS ORDER ALSO CASHED A NUMBER OF
ORDERS AT OTHER POST OFFICES AND BUSINESS HOUSES, IT IS THOUGHT THAT
ADEQUATE IDENTIFICATION WAS PRESENTED.' WHEN IT IS CONSIDERED, SO FAR AS
THE RECORD HERE INDICATES, THAT THE OTHER ORDERS REFERRED TO WERE MADE
PAYABLE TO, AND CASHED BY PERRY FOWLER, WHO HAD CREDENTIALS AS TO HIS
IDENTITY THE CONCLUSION REACHED AS TO THIS MONEY ORDER ISSUED TO A
DIFFERENT PAYEE APPEARS UNWARRANTED. ACCORDINGLY, AND IN VIEW OF THE
STATEMENT IN THE RECORD THAT THE ORDER WAS CASHED WITHOUT PROPER
IDENTIFICATION, OUR OFFICE CANNOT AGREE, UPON THE PRESENT RECORD, THAT
CLERK CARTER SHOULD BE RELIEVED OF RESPONSIBILITY FOR THE LOSS. THE
FILE ON CASE NO.
59247-K IS THEREFORE RETURNED HEREWITH AND IT IS REQUESTED THAT THE
MATTER BE GIVEN FURTHER CONSIDERATION BY YOUR DEPARTMENT WITH THE VIEW
TO REQUIRING COLLECTION OF THE $50 INDEBTEDNESS FROM CLERK CARTER.
WHILE NO MENTION IS MADE IN THE LETTERS OF MAY 22 AND 24, 1956,
RELATIVE TO THE POSSIBLE LIABILITY OF THE POSTMASTER AT HIAWATHA, WEST
VIRGINIA, FROM WHOSE OFFICE THE FORMS WERE STOLEN, YOUR ATTENTION IS
INVITED TO CHAPTER XVI, ARTICLE 14, OF THE POST OFFICE MANUAL, 1952
EDITION, WHICH READS AS FOLLOWS:
"POSTMASTERS WILL KEEP THEIR STOCK OF BLANK MONEY-ORDER FORMS IN
THEIR OWN CUSTODY OR THAT OF A DESIGNATED SUPERVISORY EMPLOYEE, UNDER
LOCK AND KEY, IN A PLACE OF SECURITY TO WHICH UNAUTHORIZED PERSONS DO
NOT HAVE ACCESS. POSTMASTERS WILL BE HELD RESPONSIBLE FOR ANY LOSS
ARISING THROUGH DISREGARD OF THESE INSTRUCTIONS.
"IF A POSTMASTER IS WITHOUT ADEQUATE FACILITIES TO PROTECT HIS STOCK
OF MONEY-ORDER FORMS, HE MAY PLACE THEM IN A VAULT OF A LOCAL BANK OR
BUSINESS HOUSE WITHOUT EXPENSE TO THE DEPARTMENT IF THEY ARE CONTAINED
IN A LOCKED RECEPTACLE THAT CANNOT EASILY BE REMOVED, BUT SO DOING WILL
NOT RELIEVE A POSTMASTER OF RESPONSIBILITY FOR THEIR LOSS.'
IN A REPORT OF INSPECTOR C. N. RUDOLPH, TO E. D. CLAGGETT, POST
OFFICE INSPECTOR AT DAYTON, OHIO, UNDER DATE OF JANUARY 25, 1954, IT WAS
STATED, IN PART, THAT:
"* * * THE POSTMASTER AT HIAWATHA WAS NEGLIGENT IN THAT SHE KEPT THE
SUPPLY OF BLANK MONEY ORDER FORMS IN AN UNLOCKED DESK COMPARTMENT
ALTHOUGH SHE HAD A PERSONALLY OWNED SAFE IN THE OFFICE. * * * SHE WAS
NOT KEEPING THE POSTAGE STAMPS AND BLANK MONEY ORDER FORMS IN HER SAFE
BECAUSE SHE WAS OF THE OPINION THAT IN THE EVENT OF A BURGLARY HER SAFE
WOULD BE BROKEN OPEN THE SAME AS THE SAFE INCIDENT TO THE LAST BURGLARY
OF THE COAL COMPANY STORE AT HIAWATHA.'
AN INFORMAL INQUIRY WAS MADE BY A REPRESENTATIVE OF OUR CIVIL
ACCOUNTING AND AUDITING DIVISION REGARDING THE LIABILITY OF THE
POSTMASTER AT HIAWATHA, AND IN RESPONSE THERETO THE FINANCE OFFICER
OF YOUR DEPARTMENT, IN MEMORANDUM DATED JULY 16, 1952, STATED IN
PART, AS FOLLOWS:
"THE POSTMASTER AT HIAWATHA WAS NEGLIGENT IN LEAVING THE BLANK MONEY
ORDER FORMS IN AN UNLOCKED COMPARTMENT BUT THERE IS A GOOD POSSIBILITY
THAT THE BURGLARS WOULD HAVE BROKEN LOCKS UNTIL THEY FOUND SOMETHING OF
VALUE. THE MAIN REASONS WHY I DO NOT FEEL THE POSTMASTER CAN BE HELD
RESPONSIBLE IS THAT THE AMOUNT OF THE LOSS WAS NOT DETERMINED OR
DETERMINABLE AT THE TIME OF THE BURGLARY. THERE WERE 70 MONEY ORDER
FORMS STOLEN BUT HER FINANCIAL RESPONSIBILITY COULD BE ZERO OR $7,000,
DEPENDING UPON WHETHER THE BURGLARS WERE SUCCESSFUL IN PASSING THE
STOLEN FORMS.'
THE NEGLIGENCE OF THE POSTMASTER AT HIAWATHA IS RECOGNIZED IN BOTH OF
THE ABOVE STATEMENTS. SINCE ARTICLE 14, CHAPTER XVI, OF THE POST OFFICE
MANUAL, QUOTED ABOVE, PLACES RESPONSIBILITY UPON THE POSTMASTER FOR ANY
LOSS ARISING THROUGH DISREGARD OF THE SECURITY INSTRUCTIONS FOR BLANK
MONEY-ORDER FORMS, IT IS OUR VIEW THAT FURTHER CONSIDERATION SHOULD BE
GIVEN YOUR DEPARTMENT TO RAISING A CHARGE IN THE ACCOUNTS OF THE
POSTMASTER AT HIAWATHA FOR THE LOSSES SUFFERED BY THE GOVERNMENT AND FOR
WHICH COLLECTION FROM THE PAYING CLERKS IN CASES 55623-K, 59536-K, AND
55625-K, IS NOT WARRANTED. WHILE THERE MAY BE SOME BASIS FOR THE
FINANCE OFFICER'S SUGGESTION THAT THE POSTMASTER AT HIAWATHA AT THE TIME
OF THE BURGLARY COULD NOT BE HELD PECUNIARILY LIABLE BECAUSE THE AMOUNT
OF THE LOSS WAS NOT THEN DETERMINABLE, SUCH SUGGESTION APPEARS TO BE
WITHOUT MERIT AS TO LOSSES ACTUALLY THEREAFTER SUSTAINED BY REASON OF
HER NEGLIGENCE THROUGH PAYMENT IN DUE COURSE OF THE THREE MONEY ORDERS
SO PAID. SUCH AMOUNTS PAID ON THE FRAUDULENTLY ISSUED ORDERS APPEAR
PRIMA FACIE PROPERLY CHARGEABLE TO THE POSTMASTER, AND IT APPEARS DEMAND
MAY PROPERLY BE MADE BY YOUR DEPARTMENT UPON THE POSTMASTER FOR PAYMENT
OF SUCH AMOUNTS. SEE UNITED STATES V. BARKER, 100 F. 34, 38.
B-128843, AUG. 30, 1956
TO THE POSTMASTER GENERAL:
REFERENCE IS MADE TO LETTER DATED AUGUST 3, 1956, FROM THE ACTING
POSTMASTER GENERAL REQUESTING ADVICE AS TO WHETHER THE POST OFFICE
DEPARTMENT MAY REIMBURSE, FROM AMOUNTS RECOVERED IN A CRIMINAL
PROCEEDING FOR MAIL THEFT AND DENOMINATED BY THE COURT AS A "FINE IN
LIEU OF TITUTION," THOSE PATRONS OF THE MAIL WHOSE IDENTITIES ARE KNOWN
FOR THE AMOUNT OF THE LOSS SUSTAINED BY THEM AS THE RESULT OF THE
PECULATIONS.
IT IS REPORTED THAT AFTER APPREHENSION OF A CLERK AT THE ELLWOOD
CITY, PENNSYLVANIA, POST OFFICE FOR THEFT FROM THE MAILS, IN THE
APPROXIMATE AMOUNT OF $500, HE PLEADED GUILTY AND WAS SENTENCED TO JAIL
FOR A TERM OF SIX MONTHS AND ORDERED TO PAY A FINE OF $400 AND COURT
COSTS. THE FINE WAS PAID IN FULL. THEREAFTER THE POST OFFICE
DEPARTMENT MADE DEMAND UPON THE CLERK FOR THE APPROXIMATE AMOUNT HE HAD
ADMITTED STEALING, $500. WHEN INFORMED OF THIS DEMAND, THE PROBATION
OFFICER ADVISED THE COURT OF HIS UNDERSTANDING THAT THE TOTAL AMOUNT
EMBEZZLED WAS BETWEEN $400 AND $500 AND PETITIONED THE COURT TO AMEND
THE ORIGINAL SENTENCE TO READ,"A $400 FINE IN LIEU OF RESTITUTION.' THE
COURT THEREAFTER ORDERED THE SENTENCE SO AMENDED. IT IS FURTHER
REPORTED THAT $160.06 OF THE AMOUNT STOLEN WAS TAKEN FROM THE MAIL OF
PERSONS WHOSE IDENTITIES ARE
KNOWN. THE QUESTION THEREFORE ARISES AS TO WHETHER THESE PERSONS MA
BE REIMBURSED FOR THEIR LOSS ($160.06) FROM THE AMOUNT RECOVERED IN THE
CRIMINAL ACTION AND COLLECTED BY THE POST OFFICE DEPARTMENT.
YOUR LETTER OF AUGUST 3 STATES THAT THE COURT IN IMPOSING THE FINE
APPARENTLY DID NOT INTEND THAT IT BE PUNISHMENT FOR THE CRIME BUT RATHER
AS FULL RESTITUTION TO THE UNITED STATES FOR THE LOSS SUSTAINED; THAT
SINCE THE DEPREDATIONS WERE COMMITTED UPON ORDINARY MAIL, THE UNITED
STATES IS UNDER NO LEGAL OBLIGATION TO REIMBURSE THE PATRONS ON ACCOUNT
OF ANY LOSSES; AND, THEREFORE, IT CANNOT BE SHOWN THAT THE UNITED
STATES SUFFERED ANY LOSS. ALSO, IT WAS POINTED OUT THAT THIS ,FINE" WAS
INTENDED TO PRECLUDE THE UNITED STATES FROM SUING ON ACCOUNT OF ANY
FURTHER CIVIL CLAIM IT MIGHT HAVE AGAINST THE CLERK. IT IS URGED THAT
THE RECOVERY MADE BY THE UNITED STATES IN THE INSTANT CASE IS SIMILAR TO
ONE MADE AS A BAILEE, IN WHICH CAPACITY THE GOVERNMENT WOULD HOLD THE
FUNDS AS A TRUSTEE FOR THE USE AND BENEFIT OF THE USERS OF THE ORDINARY
MAIL. FOR THIS REASON THE VIEW IS EXPRESSED THAT THE PERSONS WHOSE
IDENTITIES ARE KNOWN SHOULD BE PAID THE AMOUNT OF THE
LOSSES SUSTAINED BY THEM, $160.06, FROM THE AMOUNTS RECOVERED, AND
THAT SUCH REIMBURSEMENT WOULD BE CONSONANT WITH THE CONGRESSIONAL INTENT
MANIFESTED IN SECTION 790, TITLE 39 U.S. CODE WHICH PROVIDES AS FOLLOWS:
"WHENEVER THE POSTMASTER GENERAL IS SATISFIED THAT MONEY OR PROPERTY
STOLEN FROM THE MAIL, OR THE PROCEEDS THEREOF, HAS BEEN RECEIVED AT THE
DEPARTMENT, HE MAY, UPON SATISFACTORY EVIDENCE AS TO THE OWNER, DELIVER
THE SAME TO HIM.'
HOWEVER, SINCE THE COURT SENTENCE USED THE WORD "FINE," DOUBT IS
EXPRESSED AS TO WHETHER SUCH A PAYMENT MAY BE MADE TO THE MAIL PATRONS
IN VIEW OF THE PROVISIONS CONTAINED IN SECTIONS 782 AND 791, TITLE 39
U.S. CODE, REQUIRING THAT ALL THE FINES IMPOSED FOR THE VIOLATION OF THE
POSTAL LAWS BE COVERED INTO THE TREASURY AS PART OF THE POSTAL REVENUES
FOR THE USE OF THE POST OFFICE DEPARTMENT.
IT BECOMES NECESSARY THEREFORE TO CONSIDER WHETHER, UNDER THE
CIRCUMSTANCES, THE AMOUNT RECOVERED UNDER THE LANGUAGE OF THE AMENDED
SENTENCE "$400 FINE IN LIEU OF RESTITUTION" NEED BE VIEWED AS A "FINE"
REQUIRED TO BE DEPOSITED INTO THE POSTAL REVENUES OR WHETHER IT MAY BE
VIEWED AS AN AMOUNT FOR MAKING RESTITUTION TO THE PARTIES AGGRIEVED.
THE WORD "FINE" HAS BEEN VARIOUSLY DESCRIBED BUT IN ESSENCE IT IS A
PECUNIARY PUNISHMENT IMPOSED BY A LAWFUL TRIBUNAL UPON A PERSON
CONVICTED OF A CRIME OR MISDEMEANOR. UNITED STATES V. SAFEWAY STORES,
140 F.2D 834, 839; 36 C.J.S. FINES SEC. 1. THE ADDITION OF THE
QUALIFYING WORDS ,IN LIEU OF RESTITUTION," WHEN VIEWED WITH THE REASONS
FOR THEIR ADDITION CONTAINED IN THE PETITION OF THE PROBATION OFFICER,
CLEARLY EVINCES AN INTENTION THAT THE AMOUNT COLLECTED FROM THE
CONVICTED POST OFFICE CLERK AND DENOMINATED AS A "FINE" WAS NOT INTENDED
AS PUNISHMENT FOR THE VIOLATING OF THE POSTAL LAWS BUT RATHER TO PROVIDE
A MEANS OF RESTORING TO THE PROPER PARTIES THE LOSSES SUSTAINED THEREBY,
AND PRECLUDING THE GOVERNMENT FROM RECOVERING, IN A CIVIL ACTION, THE
AMOUNT OF PECULATIONS. SEE THE CASE OF PEOPLE V. LABARBERA, 201 P.2D
584, WHEREIN THE COURT RECOGNIZED THAT A SENTENCE CONTAINING THE WORD
"FINE" WAS INTENDED AS RESTITUTION RATHER THAN PUNISHMENT. ALSO SEE,
B-110549 DECEMBER 1, 1952, COPY ATTACHED. THE SENTENCE OF THE COURT
THUS PROPERLY MAY BE CONSIDERED AS AN ORDER OF RESTITUTION TO THE
PARTIES AGGRIEVED RATHER THAN AS A FINE. INASMUCH AS THE GOVERNMENT
SUFFERED NO LOSS THE AMOUNT REMITTED BY THE CONVICTED POST OFFICE CLERK
MAY BE REGARDED AS HAVING BEEN EXACTED FOR THE BENEFIT OF THE PATRONS OF
THE POSTAL SERVICE WHO SUFFERED THE ACTUAL LOSS FROM THE MAIL THEFT.
SEE 5 OP.ATTY.GEN. 557; 9 ID. 70; 23 ID. 476. ACCORDINGLY, AND IN
VIEW OF THE PROVISIONS OF 39 U.S.C. 790 QUOTED ABOVE, WE WOULD HAVE NO
OBJECTIONS TO THE PAYMENT BY YOUR DEPARTMENT FROM THE RECOVERED AMOUNT
TO THE PATRONS WHOSE IDENTITIES ARE KNOWN OF THE AMOUNT OF THE LOSSES
THEY SUSTAINED.
B-128999, AUG. 30, 1956
TO THE SECRETARY OF THE NAVY:
REFERENCE IS MADE TO LETTER DATED AUGUST 13, 1956, FROM THE ASSISTANT
SECRETARY (MATERIAL), FORWARDING AN ALLEGATION OF ERROR IN THE BID
SUBMITTED BY DE FUSCO BROTHERS UNDER SITE SALES LETTER NO. SSL-8-56,
AND REQUESTING OUR DECISION AS TO WHETHER THE BIDDER MAY BE RELIEVED
FROM PERFORMANCE UNDER CONTRACT N127S-4308, WHICH WAS EXECUTED PRIOR TO
RECEIPT OF NOTICE OF ERROR.
THE ENCLOSURES SUBMITTED WITH YOUR LETTER INDICATE THAT SITE SALES
LETTER NO. SSL-8-56 INVITED BIDS ON EIGHTY-FOUR ITEMS OF SURPLUS
PROPERTY LOCATED AT NAS, QUONSET POINT, RHODE ISLAND, AND THAT DE FUSCO
BROTHERS SUBMITTED BIDS ON ITEMS NUMBERED 1 THROUGH 17 AND 55 THROUGH
83. AWARD WAS MADE TO DE FUSCO BROTHERS FOR TWENTY-FIVE SOLID RUBBER
TIRES, CONSTITUTING ITEM 16, AT THEIR HIGH BID PRICE OF $263. AFTER
RECEIPT OF NOTICE OF AWARD, THE BIDDERS ALLEGED THAT THEY HAD NOT
INTENDED TO SUBMIT A BID AT ANY PRICE ON ITEM 16, NOR WAS SUCH BID PRICE
INTENDED FOR ANY OTHER ITEM OFFERED BY SSL-8-56. WHILE THE BIDDERS HAVE
FAILED TO COMPLY WITH THE REQUEST OF THE CONTRACTING OFFICER TO FURNISH
DOCUMENTARY EVIDENCE OF THE ERROR, THEY HAVE CONSISTENTLY CONTENDED THAT
THEY HAVE NO USE FOR SOLID TIRES IN THEIR BUSINESS, THAT SUBMISSION OF A
BID THEREON WAS A MISTAKE, AND THAT THEY INTEND NEITHER TO REMOVE NOR TO
PAY FOR THE TIRES.
THE RESCISSION OF AN EXECUTED CONTRACT BASED ON AN ALLEGATION OF
ERROR IN BID PRESUPPOSES THE ESTABLISHMENT OF ERROR BY COMPETENT
EVIDENCE SUBMITTED BY THE BIDDER IN SUPPORT OF HIS ALLEGATION, AND THE
RULE IS WELL ESTABLISHED THAT SUCH EVIDENCE MUST SHOW CONCLUSIVELY THAT
A MISTAKE WAS MADE, IN WHAT IT CONSISTS, AND HOW IT OCCURRED. 9 COMP.
GEN. 339; 10 ID. 182; 23 ID. 596. IT MUST LEAVE NO ROOM FOR DOUBT
THAT THERE WAS IN FACT A BONA FIDE ERROR IN THE BID. 11 ID. 476; 17
ID. 532. THE MERE UNSUPPORTED STATEMENT OF THE BIDDER THAT A MISTAKE
HAS BEEN MADE IS NOT THE FURNISHING OF EVIDENCE WHICH WILL PERMIT
CONTRACT RESCISSION. SEE 14 COMP. GEN. 78.
ON THE BASIS OF THE PRESENT RECORD IT IS OUR OPINION THAT A BONA FIDE
ERROR IN THE BID SUBMITTED BY DE FUSCO BROTHERS HAS NOT BEEN ESTABLISHED
AND, IN THE ABSENCE OF SUCH ERROR--- AND, IN ADDITION, CIRCUMSTANCES
SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH NOTICE, ACTUAL OR
CONSTRUCTIVE, OF THE PROBABILITY OF ERROR--- THERE IS NO LEGAL BASIS ON
WHICH TO RELIEVE THE CONTRACTOR FROM THE CONTRACTUAL OBLIGATIONS ARISING
FROM BONA FIDE ACCEPTANCE OF THE BID. SEE 28 COMP. GEN. 261 AND CASES
CITED THEREIN.
B-129028, AUG. 30, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 20, 1956, WITH ENCLOSURES,
FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO
A MISTAKE IN BID ALLEGED BY THE EMPIRE ELECTRIC COMPANY, 5200 FIRST
AVENUE, BROOKLYN 32, NEW YORK, AFTER THE AWARD OF CONTRACT NO. O.I. NO.
S-56-63, DATED MARCH 29, 1956. A DECISION IS REQUESTED AS TO WHETHER
THE CONTRACTOR MAY BE GRANTED RELIEF IN THIS CASE.
THE RECORD SHOWS THAT BY INVITATION NO. 30-145-S-56-14, DATED MARCH
8, 1956, THE PROPERTY DISPOSAL CONTRACTING OFFICER, WEST POINT, NEW
YORK, OFFERED FOR SALE CERTAIN SURPLUS PROPERTY, THE BIDS TO BE OPENED
AT 1:00 P.M. ON MARCH 28, 1956. UNDER DATE OF MARCH 27, 1956, THE
EMPIRE ELECTRIC COMPANY SUBMITTED BIDS FOR SEVERAL OF THE ITEMS OF
PROPERTY BEING OFFERED FOR SALE, AND UNDER DATE OF MARCH 29, 1956, AWARD
WAS MADE TO THE EMPIRE ELECTRIC COMPANY AS TO ITEMS 3 AND 4 FOR A TOTAL
BID PRICE OF $502.61, THERE HAVING BEEN A BID DEPOSIT OF $200.
IT IS REPORTED THAT ON APRIL 2, 1956, A TELEPHONE CALL WAS RECEIVED
FROM MR. BEN HASNAS, PRESIDENT OF THE COMPANY, STATING THAT THE COMPANY
HAD JUST DISCOVERED THAT IT HAD MADE AN ERROR BY PLACING ITS BID PRICE
ON THE LINE BELOW THAT INTENDED IN THE INVITATION. BY LETTER OF APRIL
11, 1956, THE CONTRACTOR STATED THAT IT HAD INADVERTENTLY PLACED ITS BID
PRICE FOR ITEM 1 IN THE SPACE PROVIDED FOR THE BID ON ITEM 2 AND THE
PRICE FOR ITEM 2 IN THE SPACE PROVIDED FOR ITEM 3, ETC.
IN RECOMMENDING THAT THE AWARD IN THIS CASE TO THE EMPIRE ELECTRIC
COMPANY BE CANCELLED, THE PROPERTY DISPOSAL CONTRACTING OFFICER STATED
THAT CONSIDERATION OF ALL FACTORS INDICATES THAT THE PROPERTY DISPOSAL
OFFICE SHOULD HAVE BEEN ON NOTICE THAT THE BID OF $476.51 FOR ITEM 3 WAS
OUT OF LINE WHEN COMPARED TO THE OTHER BIDS OF $15, $5, AND $84.84, AND
FURTHER, THAT WHEN COMPARED WITH THE ACQUISITION COST OF $450, THE BID
OF $476.51 FOR THE ITEM IN A USED CONDITION SHOULD HAVE ALERTED THE
PROPERTY DISPOSAL OFFICER TO A MISTAKE IN BID.
THE EVIDENCE PRESENTED APPEARS TO ESTABLISH THE EXISTENCE OF THE
MISTAKE ALLEGED. IN VIEW OF THE FACTS STATED IN THE RECOMMENDATION OF
THE PROPERTY DISPOSAL CONTRACTING OFFICER, WE CONCUR IN HIS VIEW THAT
THE CONTRACT IN THIS CASE SHOULD BE CANCELLED AND REFUND MADE OF THE BID
DEPOSIT, IT APPEARING THAT THE BID AS TO ITEM 3 WAS SO FAR OUT OF LINE
BOTH WITH THE OTHER BIDS AND WITH THE GOVERNMENT'S COST AS TO REQUIRE
VERIFICATION BEFORE AWARD.
THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT DATED JULY 16, 1956,
BY THE PROPERTY DISPOSAL CONTRACTING OFFICER, ARE RETURNED HEREWITH.
B-129037, AUG. 30, 1956
TO TANTAMOUNT PICTURES, INC. :
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1956,
PROTESTING THE POST OFFICE DEPARTMENT'S PROPOSED ACTION OF REJECTING ALL
BIDS RECEIVED IN RESPONSE TO ITS INVITATION NO. 36, ISSUED JULY 10,
1956, WITH A VIEW TOWARD READVERTISING FOR THE SERVICES SOUGHT
THEREUNDER.
BIDS WERE INVITED FOR THE FURNISHING OF SERVICES FOR PRODUCTION OF A
TELEVISION AND MOTION PICTURE FILM TO BE DELIVERED NOT LATER THAN
SEPTEMBER 1, 1956. YOUR BID IN THE AMOUNT OF $12,495 WAS QUALIFIED IN
TWO RESPECTS. FIRST, THE BID CONTAINS THE NOTATION: "DATE OF DELIVERY
CONTINGENT UPON CIRCUMSTANCES OF ANY CHARACTER BEYOND OUR CONTROL.'
SECOND, IN A TELEGRAM OF JULY
23, 1956, THE BID OPENING DATE, YOU STATED THAT YOUR BID PRICE WAS
CONTINGENT UPON THE LOCALIZED USE OF PROFESSIONAL ACTORS EXCEPT IN THE
NEW YORK METROPOLITAN AREA "AND DOES NOT INCLUDE ANY TRANSPORTATION
INCIDENT THERETO.' IN A LETTER DATED AUGUST 6, 1956, YOU INDICATED THAT
THE ADDITIONAL COST FOR TALENT WOULD APPROXIMATE $2,500.
THE SECOND LOWEST BID, WHICH PROVIDED FOR DELIVERY OF THE FILM WITHIN
60 DAYS AFTER RECEIPT OF ORDER, WAS SUBMITTED BY FRED A. NILES FILM
PRODUCTIONS, INC., IN THE AMOUNT OF $17,000. SEVEN OTHER BIDS RANGED IN
PRICE BETWEEN $19,150 TO $39,102.76. THE LOWEST OF THESE BIDS WAS NOT
SIGNED AND THAT OF THE NORWOOD STUDIOS, IN THE AMOUNT OF $22,400, WAS
THE LOWEST SIGNED BID WHICH WAS NOT QUALIFIED EITHER AS TO PRICE OR TIME
OF DELIVERY. ANOTHER HIGHER BIDDER PROVIDED FOR DELIVERY WITHIN 40 DAYS
WHICH WOULD HAVE REQUIRED THAT THE AWARD BE MADE ON JULY 23, 1956, THE
BID OPENING DATE, IN ORDER TO OBLIGATE THE BIDDER TO COMPLETE DELIVERY
BY SEPTEMBER 1, 1956.
IT HAS BEEN REPORTED BY THE OFFICE OF THE SOLICITOR, POST OFFICE
DEPARTMENT, THAT 13 FIRMS CONSIDERED THE INVITATION AND THAT, OF THE
FOUR FIRMS WHICH DID NOT BID, THREE STATED THAT THEY WERE UNABLE TO MEET
THE SPECIFIED DELIVERY DATE. SINCE THE AVAILABLE INFORMATION SHOWED
THAT ONLY TWO OUT OF 13 POTENTIAL BIDDERS WERE WILLING TO MEET THE
DELIVERY DATE SPECIFIED IN THE INVITATION AND CORRESPONDENCE FROM FIVE
OF THE 13 FIRMS INDICATED THE LACK OF SPECIFIC DATA IN THE
SPECIFICATIONS, THE PROCUREMENT OFFICIALS REQUESTED THE SOLICITOR T
REVIEW THE SPECIFICATIONS AND BIDS. IT WAS THEN DETERMINED THAT THE
DELIVERY DATE SPECIFIED WAS UNREALISTIC AND THAT THE SPECIFICATIONS
FAILED TO SUPPLY SUFFICIENT SPECIFIC DATA UPON WHICH POTENTIAL BIDDERS
COULD REASONABLY CALCULATE PRODUCTION COSTS ON WHICH TO BASE FIRM,
RELIABLE BIDS. IT WAS CONSIDERED THAT THE REQUESTED EARLY DELIVERY DATE
AND THE FAILURE TO PRESENT DEFINITE SPECIFICATIONS HAD PREVENTED THE
DEPARTMENT FROM RECEIVING THE MAXIMUM NUMBER OF TRULY COMPETITIVE BIDS.
ACCORDINGLY, THE SOLICITOR RECOMMENDED CANCELLATION OF INVITATION NO.
36 AND READVERTISEMENT OF THE SERVICES DESIRED UNDER MORE DEFINITE
SPECIFICATIONS.
THE ADMINISTRATIVE REPORT FURTHER SETS FORTH THAT YOUR BID WAS TWICE
QUALIFIED AND WE ARE OF THE OPINION THAT THE QUALIFICATIONS WERE SUCH
THAT THE BID COULD NOT HAVE BEEN GIVEN FAVORABLE CONSIDERATION IN ANY
EVENT. SEE 30 COMP. GEN. 179. HENCE, IT IS APPARENT THAT
READVERTISEMENT COULD NOT IN ANY MANNER BE CONSIDERED AS ADVERSELY
AFFECTING THE INTERESTS OF YOUR COMPANY.
THE QUESTION OF REJECTING ALL BIDS AND READVERTISING IS PRIMARILY A
MATTER OF ADMINISTRATIVE DISCRETION AND, WHERE AS HERE IT IS SHOWN THAT
THE PURPOSE OF SUCH ACTION IS TO CLARIFY SPECIFICATIONS IN ORDER TO
OBTAIN AND PERMIT THE FULL AND FREE COMPETITION REQUIRED BY LAW, WE
PERCEIVE NO OBJECTION TO SUCH ACTION.
B-111732, AUG. 29, 1956
TO MR. B. J. TALLY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1956, WITH ENCLOSURES,
CONCERNING A CLAIM OF BRADLEY-MILLER AND COMPANY FOR $15,628.80 UNDER
DEPARTMENT OF THE ARMY CONTRACT NO. DA-36-038-ORD-2393, DATED DECEMBER
12, 1950, AS AMENDED, AND A CLAIM OF THE GOVERNMENT IN THE AMOUNT OF
$42,660 AS LIQUIDATED DAMAGES FOR THE BREACH OF THE CONTRACT ARTICLE
ENTITLED "COVENANT AGAINST CONTINGENT FEES.'
THE MATTER WAS PREVIOUSLY CONSIDERED IN A DECISION OF OCTOBER 26,
1953, TO THE MICHIGAN NATIONAL BANK, SAGINAW, MICHIGAN, AND IN A
DECISION DATED FEBRUARY 24, 1956, TO MR. JOHN P. PURCELL, YOUR
ASSOCIATE. OUR POSITION HAS BEEN THAT THE AMOUNT RECOVERABLE BY THE
GOVERNMENT FOR THE BREACH OF THE CONTINGENT-FEE COVENANT OF THE CONTRACT
SHOULD EQUAL THE FEE OF $42,660, WHICH THE TRUSTEE IN BANKRUPTCY AGREED
TO PAY HARRY K. TUCKER, JR., FOR SECURING THE GOVERNMENT CONTRACT,
SUBJECT TO POSSIBLE ADJUSTMENT TO THE SUM OF $27,750 BY REASON OF THE
FACT THAT THE TOTAL CONTRACT CONSIDERATION WAS REDUCED FROM $2,113,000
TO $1,387,500 BY VIRTUE OF A REDUCTION OF 50 PERCENT IN THE QUANTITY OF
AMMUNITION BOXES REQUIRED FOR DELIVERY UNDER THE CONTRACT, AND AN
INCREASE IN THE UNIT PRICE FROM $1.412 TO $1.85, PURSUANT TO THE
PROVISIONS OF THE FIRST WAR POWERS ACT, 1941, AS AMENDED BY PUBLIC LAW
921, 81ST CONGRESS, 64 STAT. 1257.
UPON FURTHER CONSIDERATION, SINCE THE ARMY CONTRACT ADJUSTMENT BOARD
WHICH APPROVED THE PRICE INCREASE ESTIMATED THAT THE CONTRACTOR WOULD
ABSORB A LOSS OF APPROXIMATELY $80,000 ON THE ADJUSTED PRICE AND
QUANTITY, AND SINCE THE RECORD SHOWS THAT THE NEW MANAGEMENT OF
BRADLEY-MILLER AND COMPANY REPUDIATED THE OBJECTIONABLE AGENCY
AGREEMENT, WHICH HAD BEEN ENTERED INTO BY A COURT-APPOINTED RECEIVER
APPARENTLY WITHOUT AUTHORITY, WE ARE OF THE OPINION THAT THE AMOUNT
ACTUALLY PAID TO THE AGENT MAY PROPERLY BE CONSIDERED AS REPRESENTING
THE EXTENT OF THE CONTRACTOR'S LIABILITY FOR THE BREACH OF THE
CONTINGENT-FEE COVENANT OF THE CONTRACT.
ACCORDINGLY, SETTLEMENT WILL ISSUE IN FAVOR OF THE MICHIGAN NATIONAL
BANK, SAGINAW, MICHIGAN, AS ASSIGNEE OF BRADLEY-MILLER AND COMPANY, FOR
THE AMOUNT OF $7,365.18 ($15,628.80 LESS $8,263.62) AS IN FULL AND FINAL
SETTLEMENT OF ALL CLAIMS ARISING OUT OF THE CONTRACT.
B-122254, AUG. 29, 1956
TO CENTRAL ELECTRIC POWER COOPERATIVE:
REFERENCE IS MADE TO OUR LETTER OF JULY 26, 1956, TO YOU, CONCERNING
CLAIMS AND COUNTERCLAIMS BETWEEN THE CENTRAL ELECTRIC COOPERATIVE AND
THE SOUTHWESTERN POWER ADMINISTRATION, DEPARTMENT OF THE INTERIOR. YOU
WERE ADVISED THEREIN THAT THE DEPARTMENT OF THE INTERIOR HAD INFORMALLY
REQUESTED AN OPPORTUNITY TO SUBMIT A BRIEF SETTING FORTH IN DETAIL ITS
VIEWS IN THE MATTER. YOU WERE ALSO ADVISED THAT WE HAD GRANTED SUCH
REQUEST AND THAT YOU WOULD BE GIVEN AN OPPORTUNITY TO PRESENT YOUR VIEWS
AND COMMENTS ON THE MATTERS CONTAINED IN THE BRIEF.
ACCORDINGLY, THERE ARE ENCLOSED FOR SUCH COMMENTS AS YOU CARE TO
EXPRESS COPIES OF THE FOLLOWING: LETTER OF AUGUST 16, 1956, TO THE
COMPTROLLER GENERAL FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE
INTERIOR; THE ABOVE-REFERRED TO BRIEF FROM THE DEPARTMENT OF THE
INTERIOR; AND LETTER DATED JUNE 13, 1956, FROM THE ADMINISTRATOR,
SOUTHWESTERN POWER ADMINISTRATION, TO OUR CLAIMS DIVISION.
WE WOULD LIKE PARTICULARLY TO CALL TO YOUR ATTENTION PAGE 11 OF THE
BRIEF, WHEREIN IT IS STATED THAT "THE DRAFTS OF THE AMENDED CONTRACTS
CONTEMPLATE THE PAYMENT OF THE REA LOANS, WITH INTEREST,
TOGETHER WITH OTHER EXPENSE ITEMS WHICH, IN EFFECT, WILL GIVE TO EAC
GENERATING AND TRANSMISSION COOPERATIVE ECONOMIC BENEFITS AND ADVANTAGES
EQUAL TO OR GREATER THAN THOSE GRANTED THE COOPERATIVES UNDER THE
ORIGINAL CONTRACTS.' IT IS UNDERSTOOD THAT THIS STATEMENT REFERS TO
SECTION 19 OF A PROPOSED AMENDATORY AGREEMENT,"CENTRAL LEASE AMENDMENT,
CENTRAL-SPA DRAFT NO. 5, JULY 13, 1956.' WE HAVE BEEN INFORMALLY ADVISED
BY SOUTHWESTERN THAT IF THE "AMENDATORY GREEMENT" IS EXECUTED BY YOU AND
SOUTHWESTERN, YOU WILL, UNDER SECTION 19 THEREOF, RECOUP AMOUNTS
INVOLVED IN YOUR PRESENT CLAIM. HENCE, EXECUTION OF THE "AMENDATORY
AGREEMENT" MAY HAVE THE EFFECT OF DISPOSING OF YOUR CLAIM AGAINST
SOUTHWESTERN, AND YOUR VIEWS, IN THIS REGARD, ARE PARTICULARLY
REQUESTED.
B-124643, AUG. 29, 1956
TO COLUMBIA ELECTRIC AND MANUFACTURING COMPANY:
REFERENCE IS MADE TO A LETTER DATED AUGUST 14, 1956, WITH ENCLOSURES,
FROM YOUR ATTORNEYS, REQUESTING REVIEW OF OUR SETTLEMENT OF APRIL 10,
1956, WHICH DISALLOWED YOUR CLAIMS FOR VARIOUS AMOUNTS ALLEGED TO BE DUE
FOR CERTAIN TRUE DEPRECIATION ALLOWANCE CONSIDERED APPLICABLE IN THE
DETERMINATION OF THE PRICE TO BE PAID FOR SUPPLIES FURNISHED UNDER YOUR
SEVERAL CONTRACTS WITH THE DEPARTMENT OF THE ARMY. THE CLAIMS WERE
DISALLOWED PRIMARILY FOR THE REASON THAT FINAL PAYMENTS UNDER THE
INVOLVED CONTRACTS HAD BEEN ACCOMPLISHED AT THE PRICES SPECIFIED IN SUCH
CONTRACTS UNDER WHICH NO RESERVATION WAS MADE FOR FURTHER PAYMENT FOR
TRUE DEPRECIATION.
IN THE REQUEST FOR REVIEW THERE WERE FORWARDED VARIOUS OFFICIAL
DOCUMENTS AND CORRESPONDENCE BETWEEN THE CONTRACTING PARTIES IN SUPPORT
OF YOUR CONTENTION THAT FULL CONSIDERATION WAS NOT GIVEN YOUR LETTER OF
OCTOBER 7, 1953, TO THE SAN FRANCISCO ORDNANCE DISTRICT, CONTAINING YOUR
REQUEST THAT CERTAIN CONTRACTS BE KEPT OPEN PENDING SUCH TIME AS TRUE
DEPRECIATION COULD BE DETERMINED. THE IDENTICAL INFORMATION PRESENTED
WITH THE LETTER OF AUGUST 14, 1956, WAS CONSIDERED BOTH BY THE
ADMINISTRATIVE OFFICIALS WHEN THEY RECOMMENDED DISALLOWANCE OF YOUR
CLAIMS AND BY OUR OFFICE IN THE DISPOSITION OF YOUR CLAIMS.
AT THE OUTSET, IT MAY BE POINTED OUT THAT THE CONTRACTS HERE INVOLVED
WERE NEGOTIATED ON A FIXED-PRICE BASIS AND IT DOES NOT APPEAR THAT ANY
OF THE CONTRACTS CONTAINED A PROVISION WITH REGARD TO DEPRECIATION
ALLOWANCE IN FIXING THE ORIGINAL CONTRACT PRICE OR IN THE ESCALATION OF
THE CONTRACT PRICE UPON REDETERMINATION OR OTHERWISE. FURTHERMORE, IT
MAY BE ADDED THAT THE DETERMINATION OF THE ORIGINAL CONTRACT PRICE AND
THE SUBSEQUENT REDETERMINATION OF THE CONTRACT PRICE IN ACCORDANCE WITH
CONTRACT PROVISIONS ARE MATTERS WHICH ARE PRIMARILY THE RESPONSIBILITY
OF THE CONTRACTING AGENCY.
INSOFAR AS YOUR LETTER OF OCTOBER 7, 1953, IS CONCERNED, HOWEVER, IT
APPEARS THAT YOU DID REQUEST THAT FIVE OF THE EIGHT CONTRACTS HERE
INVOLVED BE LEFT OPEN SO THAT IF THE ARMY EMERGENCY FACILITIES
DEPRECIATION BOARD WERE TO ACT FAVORABLY ON YOUR REQUEST FOR A
DETERMINATION OF TRUE DEPRECIATION TO BE ALLOWED IN NEGOTIATED CONTRACT
PRICING, YOU MIGHT RECEIVE AN APPLICABLE INCREASE IN THE CONTRACT
PRICES. THE RECORD DOES NOT DISCLOSE WHETHER THE ADMINISTRATIVE OFFICE
ACCEDED TO YOUR REQUEST. IT DOES APPEAR, HOWEVER, THAT INSOFAR AS
CONTRACT NO. DA-04-200-ORD-186 IS CONCERNED, THIS REQUEST COULD NOT HAVE
ANY APPLICATION SINCE IT IS REPORTED THAT THIS CONTRACT WAS FULLY
PERFORMED PRIOR TO OCTOBER 7, 1953, HAVING BEEN COMPLETED ON DECEMBER
30, 1952, AND FINAL PAYMENT MADE ON JANUARY 25, 1953. A SIMILAR
SITUATION APPEARS WITH REGARD TO CONTRACT NO. DA-04-2GO-ORD-152, WHICH
WAS COMPLETED ON SEPTEMBER 10, 1952, AND FINAL PAYMENT WAS MADE ON
SEPTEMBER 17, 1952.
AS TO THE OTHER CONTRACTS, YOU RECEIVED FINAL PAYMENT FOR DELIVERIES
UNDER THEM SUBSEQUENT TO OCTOBER 7, 1953, WITHOUT ANY RESERVATION AS TO
ANY FURTHER CLAIM YOU MIGHT HAVE BY REASON OF ANY POSSIBLE INCREASE IN
CONTRACT PRICING WHICH MIGHT BE PERMITTED BY A SUBSEQUENT DETERMINATION
OF THE DEPRECIATION BOARD. IN FACT, IN TWO OF THE CONTRACTS, YOU
EXECUTED SUPPLEMENTAL AGREEMENTS SUBSEQUENT TO OCTOBER 7, 1953, IN WHICH
YOU AGREED TO A REDETERMINATION OF THE CONTRACT PRICES, WITHOUT MAKING
ANY RESERVATION AS TO A POSSIBLE FUTURE CLAIM ON ACCOUNT OF A HIGHER
DEPRECIATION ALLOWANCE.
WHILE, AS STATED ABOVE, THE FACTORS TO BE TAKEN INTO ACCOUNT IN
ARRIVING AT THE PRICE TO BE PAID UNDER A NEGOTIATED FIXED-PRICE CONTRACT
ARE MATTERS PRIMARILY FOR CONSIDERATION BY THE CONTRACTING AGENCY, IT
MUST BE HELD THAT ON THE RECORD BEFORE US THERE EXISTS NO LEGAL BASIS
UNDER THE CONTRACTS INVOLVED FOR THE PAYMENT OF THE ADDITIONAL AMOUNTS
NOW CLAIMED.
ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIMS IN THE SETTLEMENT OF
APRIL 10, 1956, IS SUSTAINED.
B-127271, AUG. 29, 1956
TO THE SECRETARY OF COMMERCE:
IN LETTER DATED MARCH 9, 1956, THE ASSISTANT SECRETARY FOR
ADMINISTRATION REQUESTED OUR ADVICE UPON SEVERAL QUESTIONS CONCERNING
THE PAYMENT OF TRAVEL EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE
ALLOWANCE TO MR. BRADLEY FISK INCIDENT TO HIS APPOINTMENT AS AN EXPERT
IN THE OFFICE OF INTERNATIONAL TRADE FAIRS.
MR. FISK'S APPOINTMENT, EFFECTIVE APRIL 14, 1955, WAS SHOWN AS
"EXCEPTED APPOINTMENT NTE 3 MONTHS" WITH COMPENSATION SHOWN AS $10,800
P.A. ($41.52 P.D.) WAE.' THE LEGAL AUTHORITY FOR THE
APPOINTMENT WAS "5 U.S.C. 55A, PL 663-83RD CONG., LTR. USIA;
CSC-COMMERCE AGREEMENT DATED 5-54.' THE TOUR OF DUTY WAS SHOWN AS "8:30
A.M. TO 5:00 P.M. MONDAY THROUGH FRIDAY.' ON JULY 14,
1955, THE APPOINTMENT WAS EXTENDED FOR THREE MONTHS WITH THE
FOLLOWING NOTATION: "SERVICE UNDER THIS APPOINTMENT MAY NOT EXCEED 130
WORKING DAYS WITH THE PERIOD BEGINNING 4-14-55.' EFFECTIVE OCTOBER 14,
1955, MR. FISK'S APPOINTMENT WAS CHANGED AS FOLLOWS: "EXCEPTED
APPOINTMENT (CONVERSION FROM WAE TO TEMPORARY) NTE 1-13-56.' ON JANUARY
14, 1956, THE EXCEPTED APPOINTMENT WAS EXTENDED FOR NOT TO EXCEED THREE
MONTHS.
DURING THE PERIOD APRIL 14 TO JULY 10, 1955, MR. FISK ACTUALLY
RENDERED SERVICE ON 33 DAYS OUT OF A TOTAL OF 62 WORK DAYS. FOR THE
PERIOD JULY 11 TO OCTOBER 30, 1955, HE PERFORMED CONTINUOUS SERVICE IN A
TRAVEL STATUS ABROAD FOR A TOTAL OF 80 WORK DAYS. FROM OCTOBER 31,
1955, TO JANUARY 13, 1956, HE RENDERED SERVICE ON 22 DAYS OUT OF A TOTAL
OF 55 WORK DAYS, AND FROM JANUARY 14 TO FEBRUARY 21, 1956, HE PERFORMED
SERVICE ON 10 5/8 DAYS OUT OF A TOTAL OF 20 WORK DAYS. VOUCHERS
COVERING TRAVEL EXPENSES INCURRED FROM APRIL 14, 1955, TO JANUARY 13,
1956, HAVE BEEN PAID. TRAVEL VOUCHERS COVERING THE PERIOD JANUARY 14 TO
FEBRUARY 3, 1956, HAVE NOT BEEN PAID.
SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, PROVIDES, 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 PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF
SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE
STANDARDIZED GOVERNMENT TRAVEL REGULATIONS * * *.'
ALSO, THE APPLICABLE INSTRUCTIONS PROMULGATED BY THE CIVIL SERVICE
COMMISSION ARE CONTAINED IN FEDERAL PERSONNEL REGULATIONS A7-39 AND
PROVIDE, IN PERTINENT PART, AS FOLLOWS:
"INTERMITTENT EMPLOYMENT OF AN EXPERT OR CONSULTANT IS EMPLOYMENT
WHICH (A) OCCURS OCCASIONALLY OR IRREGULARLY AND (B) IS LIMITED TO WORK
ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING
INTERMITTENT SERVICES. THE COMMISSION HOLDS THAT EMPLOYMENT WHICH
AGGREGATES, IN THE COURSE OF THE FIRST YEAR OF SERVICE OR IN ANY
SUCCEEDING YEAR OF SERVICE, MORE THAN ONE-HALF OF FULLTIME EMPLOYMENT,
I.E., MORE THAN 130 WORKING DAYS, CEASES TO BE INTERMITTENT EMPLOYMENT
AND BECOMES AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY
NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE
LIMIT WAS EXCEEDED.'
YOUR FIRST THREE QUESTIONS ARE, IN EFFECT, WHETHER THE APPOINTMENT OF
APRIL 14, 1955, AND THE SERVICE ACTUALLY RENDERED UNDER THE APPOINTMENT
MAY BE CONSIDERED AS MEETING THE REQUIREMENT FOR INTERMITTENT EMPLOYMENT
WITHIN THE MEANING OF SECTION 5 OF THE 1946 ACT AS QUOTED ABOVE. THE
APPOINTMENT WAS LIMITED TO THREE MONTHS AND PROVIDED FOR COMPENSATION ON
A WAE BASIS ALTHOUGH A REGULAR FULL-TIME TOUR OF DUTY WAS INDICATED. IT
IS STATED THAT THE APPOINTMENT "OBVIOUSLY CONTAINS CONTRADICTORY
ELEMENTS AND REPRESENTS AN UNCORRECTED ADMINISTRATIVE ERROR.'
WHILE THE WORDS USED IN AN EMPLOYEE'S APPOINTMENT GENERALLY CONTROL
THE TYPE OF HIS APPOINTMENT, IN DOUBTFUL CASES, OR CASES WHERE
ADMINISTRATIVE ERROR HAS BEEN MADE, THE CHARACTER OF HIS EMPLOYMENT MAY
BE CONSIDERED TO DETERMINE HIS TRUE EMPLOYMENT STATUS. AS STATED ABOVE
MR. FISK ACTUALLY RENDERED INTERMITTENT SERVICE ON 33 DAYS OUT OF A
TOTAL OF 62 WORK DAYS DURING THE PERIOD APRIL 14 TO JULY 10, 1955, UNDER
THE APRIL 14, 1955, APPOINTMENT. THIS APPEARS TO BE TRUE INTERMITTENT
SERVICE AS CONTEMPLATED BY THE 1946 ACT. THEREFORE IN ANSWER TO YOUR
FIRST THREE QUESTIONS, THE SERVICE PERFORMED DURING THE PERIOD APRIL 14
TO JULY 10, 1955, MAY BE CONSIDERED INTERMITTENT SERVICE.
YOUR FOURTH QUESTION CONCERNS THE EMPLOYEE'S CONTINUOUS SERVICE IN A
TRAVEL STATUS IN CONNECTION WITH HIS OVERSEAS SERVICE DURING THE PERIOD
JULY 11 TO OCTOBER 30, 1955. YOU ASK IF PAYMENT OF TRANSPORTATION AND A
PER DIEM ALLOWANCE MAY BE ALLOWED FOR THE SERVICE PERFORMED IN THE
TRAVEL STATUS ON THE SAME BASIS AS SERVICE PERFORMED IN A TRAVEL STATUS
BY ANY OTHER TYPE OF EMPLOYEE, EVEN THOUGH PAYMENT OF TRANSPORTATION AND
A PER DIEM ALLOWANCE MIGHT NOT HAVE BEEN PAYABLE IF THIS DUTY HAD BEEN
PERFORMED IN WASHINGTON. THIS PERIOD OF SERVICE WAS COVERED BY AN
EXTENTION OF HIS ORIGINAL APPOINTMENT WITH TOTAL SERVICE UNDER THE
APPOINTMENT AND ITS EXTENSION LIMITED TO 130 WORKING DAYS. ON OCTOBER
6, 1955, THE APPOINTMENT WAS CONVERTED FROM "WAE TO TEMPORARY" EFFECTIVE
OCTOBER 14, 1955.
IT IS STATED THAT "THE STANDARD FORM 50 WHICH SHOWS HIM TO BE A
"TEMPORARY EMPLOYEE" EFFECTIVE OCTOBER 14, 1955 REFLECTS NO CHANGE IN
THE NON-CONTINUOUS TYPE OF SERVICE. RATHER, IT MERELY REFLECTS THE
NECESSITY OF PLACING A TIME LIMITATION ON THE DURATION OF THE
APPOINTMENT, AS REQUIRED BY CIVIL SERVICE RULES.'
IN THE CIRCUMSTANCES, WE OFFER NO OBJECTION TO PAYMENT OF
TRANSPORTATION EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE ALLOWANCE
DURING THE PERIOD JULY 11 TO OCTOBER 30.
QUESTIONS FIVE AND SIX CONCERN MR. FISK'S TRAVEL BETWEEN HIS HOME AND
WASHINGTON AND BETWEEN HIS HOME AND FOREIGN FAIR SITES DURING THE PERIOD
OCTOBER 31, 1955, TO JANUARY 13, 1956, AND JANUARY 14 TO FEBRUARY 21,
1956. AS STATED ABOVE MR. FISK'S APPOINTMENT WAS CHANGED FROM "WAE TO
TEMPORARY" EFFECTIVE OCTOBER 14, 1955. THUS, ALL SERVICE PERFORMED
DURING THE PERIOD OCTOBER 31 TO FEBRUARY 21, 1956, MUST BE CONSIDERED AS
HAVING BEEN PERFORMED IN HIS STATUS OF A TEMPORARY EMPLOYEE. THEREFORE,
TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE MAY NOT BE
PAID FOR TRAVEL PERFORMED BETWEEN HIS HOME AND WASHINGTON, HIS REGULAR
PLACE OF EMPLOYMENT. HOWEVER, TRANSPORTATION EXPENSES AND PER DIEM IN
LIEU OF SUBSISTENCE MAY BE PAID FOR TRAVEL PERFORMED BETWEEN HIS HOME
AND THE FOREIGN FAIR SITES AND BETWEEN BUFFALO AND ROCHESTER, NEW YORK,
ON THE SAME BASIS AS ANY OTHER TEMPORARY EMPLOYEE WITH HEADQUARTERS AT
WASHINGTON, D.C. MOREOVER, IN VIEW OF THE APPARENT MISUNDERSTANDING
CONCERNING THE APPLICATION OF THE 130-DAY RULE TO TRAVEL EXPENSES, WE
WILL NOT INSIST UPON COLLECTION ACTION COVERING THE PAYMENTS MADE FOR
TRAVEL EXPENSES INCURRED BETWEEN BUFFALO AND WASHINGTON DURING THE
PERIOD NOVEMBER 3, 1955 TO JANUARY 13, 1956.
B-127380, AUG. 29, 1956
TO MRS. MARY A. SYDNEY:
REFERENCE IS MADE TO THE LETTER DATED JULY 24, 1956, WITH ENCLOSURES,
WRITTEN IN YOUR BEHALF BY MR. A. SINGLETON CAGLE, OF THE FIRM OF
WOODWARD, HOBSON AND FULTON, ATTORNEYS, REGARDING YOUR INDEBTEDNESS TO
THE UNITED STATES RESULTING FROM IMPROPER PAYMENTS TO YOU OF RENTAL AND
INCREASED SUBSISTENCE ALLOWANCES FOR A DEPENDENT (MOTHER) INCIDENT TO
YOUR SERVICE AS A COMMISSIONED OFFICER. PAYMENT OF THESE ALLOWANCES WAS
PREDICATED UPON YOUR REPRESENTATIONS THAT YOUR MOTHER WAS IN FACT
DEPENDENT UPON YOU FOR HER CHIEF SUPPORT.
AS A RESULT OF AN INVESTIGATION CONDUCTED BY OUR REPRESENTATIVES IT
WAS DETERMINED THAT YOUR MOTHER WAS NOT, IN FACT, DEPENDENT UPON YOU FOR
HER CHIEF SUPPORT.
IN HIS LETTER, MR. CAGLE HAS SET FORTH YOUR FAMILY BACKGROUND PRIOR
TO YOUR MILITARY SERVICE, AND AS TO THE PERIOD UNDER CONSIDERATION HERE,
HAS ATTEMPTED TO SHOW THAT YOU WERE NOT ONLY THE CHIEF SUPPORT OF YOUR
MOTHER, BUT YOUR FATHER, SISTER AND BROTHERS AS WELL. MR. CAGLE'S
LETTER IS QUITE DETAILED AND WITH THE ENCLOSED EXHIBITS PRESENTS CLEARLY
THE BASIS UPON WHICH YOU CONCLUDE THAT YOU WERE ENTITLED TO THE
ALLOWANCES.
IT IS SHOWN THAT DURING THE PERIOD OCTOBER 1945 THROUGH SEPTEMBER
1949 YOUR MOTHER WAS EMPLOYED BY THE SOUTH CAROLINA STATE BOARD OF
HEALTH WITH EARNINGS AT $100 A MONTH FROM OCTOBER 1945 THROUGH JUNE
1946, AT $102 A MONTH FROM JULY 1946 THROUGH JUNE 1947, AT $127 A MONTH
FROM JULY 1947 THROUGH JUNE 1948, AND AT $130 A MONTH FROM JULY 1948
THROUGH SEPTEMBER 1949, WHICH TOTAL $5,598, AND THAT THERE WAS NO OTHER
INCOME TO THE FAMILY OTHER THAN YOUR ALLOTMENTS AND CONTRIBUTIONS. MR.
CAGLE FURTHER CONTENDS IN YOUR BEHALF THAT YOUR CONTRIBUTIONS GREATLY
EXCEEDED
THIS AMOUNT, BY REASON OF AN ALLOTMENT AT $100 A MONTH FOR THE ENTIR
PERIOD AND IN ADDITION, OTHER CONTRIBUTIONS OF NECESSITIES AS WELL AS
MONEY AVERAGING OVER $25 MONTHLY, AND THAT YOUR TOTAL CONTRIBUTION OVER
THE PERIOD WAS IN EXCESS OF $7,375. IT IS STATED THAT ON THIS BASIS YOU
NOT ONLY WERE THE CHIEF SUPPORT OF YOUR MOTHER BUT THE FAMILY AS WELL.
THE RECORDS DO NOT SUPPORT THE STATEMENTS REGARDING AN ALLOTMENT IN
FAVOR OF YOUR DEPENDENT. YOUR PAY RECORDS SHOW THAT YOU FIRST INITIATED
A CLASS E ALLOTMENT IN FEBRUARY 1946 AND IT WAS IN THE AMOUNT OF $25,
AND NOT $100 AS INDICATED BY YOUR ATTORNEY. IT WAS NOT UNTIL OCTOBER
1947 THAT THE ALLOTMENT WAS INCREASED TO $203.27, WHICH, IT NOW APPEARS,
YOUR BANK SEPARATED AND DEPOSITED $103.27 TO YOUR CREDIT AND $100 TO THE
CREDIT OF YOUR MOTHER. HENCE, FOR THE PERIOD PRIOR TO OCTOBER 1947,
THERE IS NO BASIS FOR RELIEVING YOU OF LIABILITY FOR REFUNDING THE
ALLOWANCES RECEIVED SINCE YOUR CONTRIBUTIONS WERE CONSIDERABLY LESS THAN
THE AMOUNT EARNED BY THE ALLEGED DEPENDENT, AND IT NECESSARILY FOLLOWS
THAT YOU COULD NOT, IN THESE CIRCUMSTANCES, BE THE CHIEF SUPPORT OF YOUR
MOTHER.
AS TO THE PERIOD FROM AND AFTER OCTOBER 1, 1947, IT IS NOW CONSIDERED
THAT YOUR ALLOTMENT AND OTHER CONTRIBUTIONS TO YOUR MOTHER WERE
SUFFICIENT TO CONSTITUTE YOU HER CHIEF SUPPORT WITHIN THE MEANING OF THE
APPLICABLE STATUTE, AND THAT YOU ARE ENTITLED TO RETAIN THE INCREASED
RENTAL AND SUBSISTENCE ALLOWANCES CREDITED TO YOU AS AN OFFICER WITH A
DEPENDENT FOR THE PERIOD FROM OCTOBER 1, 1947, THROUGH SEPTEMBER 30,
1949.
ACCORDINGLY, OUR CLAIMS DIVISION WILL RECOMPUTE THE AMOUNT OF YOUR
INDEBTEDNESS IN CONFORMANCE WITH THIS DECISION, AND YOU WILL BE ADVISED
OF THE AMOUNT REMAINING DUE THE UNITED STATES.
B-127539, AUG. 29, 1956
TO MR. SERGIO MORALES-CORDERO:
THERE HAVE BEEN CONSIDERED YOUR SEVERAL INQUIRIES CONCERNING YOUR
INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF AN OVERPAYMENT OF BASIC
ALLOWANCE FOR QUARTERS FOR A DEPENDENT MOTHER, INCIDENT TO YOUR SERVICE
AS AN ENLISTED MAN IN THE ARMY DURING THE PERIOD FEBRUARY 1, 1951, TO
NOVEMBER 23, 1953.
IT APPEARS FROM THE RECORD THAT YOU ENTERED THE ARMY ON FEBRUARY 1,
1951, AND THAT YOU WERE DISCHARGED ON NOVEMBER 23, 1953. THE RECORD
SHOWS YOU AUTHORIZED A CLASS Q ALLOTMENT IN THE AMOUNT OF $95 PER MONTH
IN FAVOR OF YOUR MOTHER, RUPERTA CORDERO DE MORALES, EFFECTIVE MARCH 1,
1951. ON THE BASIS OF A TENTATIVE DETERMINATION OF DEPENDENCY, CLASS Q
ALLOTMENT PAYMENTS IN THE AMOUNT OF $85 PER MONTH WERE MADE TO YOUR
MOTHER FOR THE MONTHS OF MARCH 1951 THROUGH JULY 1951. SUCH PAYMENTS
WERE DISCONTINUED EFFECTIVE JULY 31, 1951, UPON A DETERMINATION BY THE
DEPARTMENT OF THE ARMY THAT YOUR MOTHER WAS NOT DEPENDENT ON YOU TO THE
EXTENT REQUIRED BY THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794.
THEREAFTER, IN VIEW OF ADDITIONAL EVIDENCE, THE DEPARTMENT OF THE
ARMY REDETERMINED THAT YOUR MOTHER WAS DEPENDENT ON YOU FOR OVER
ONE-HALF OF HER SUPPORT, BUT ONLY FOR THE PERIOD COMMENCING SEPTEMBER 1,
1951. ACCORDINGLY, PAYMENT TO YOUR MOTHER WAS AUTHORIZED IN AN AMOUNT
EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $45 PER MONTH
FOR THE MONTHS OF SEPTEMBER 1951 THROUGH FEBRUARY 1952, AND A CLASS Q
ALLOTMENT OF $85 PER MONTH EFFECTIVE MARCH 1, 1952.
THE RECORDS FURTHER SHOW THAT THE CLASS Q ALLOTMENT OF $85 WAS
INCREASED TO $91.30 EFFECTIVE AUGUST 1, 1952, AND PAID AT THAT RATE FOR
THE MONTHS OF AUGUST 1952 THROUGH JANUARY 1953 AND THAT EFFECTIVE
FEBRUARY 1, 1953, THIS ALLOTMENT WAS DECREASED TO $50 PER MONTH AND PAID
AT THAT RATE FOR THE MONTHS OF FEBRUARY 1953 THROUGH NOVEMBER 1953. ON
THE BASIS OF AN APPLICATION FOR INCREASED ALLOWANCES SHOWING THAT YOU
WERE MARRIED ON NOVEMBER 15, 1952, A CLASS Q ALLOTMENT WAS AUTHORIZED IN
FAVOR OF YOUR WIFE AT THE RATE OF $25.80 PER MONTH FOR DECEMBER 1952 AND
JANUARY 1953. EFFECTIVE FEBRUARY 1, 1953, THIS ALLOTMENT WAS INCREASED
TO $67.10 PER MONTH AND PAID TO YOUR WIFE FOR THE MONTHS OF FEBRUARY
1953 THROUGH JUNE 1953, WITH THE EXCEPTION OF THE MONTH OF MARCH 1953.
AN ADJUSTMENT WAS MADE EFFECTIVE JULY 1, 1953, BY REASON OF AN
ADDITIONAL DEPENDENT (CHILD BORN JUNE 13, 1953) WHICH INCREASED THE
CLASS Q ALLOTMENT ON ACCOUNT OF YOUR WIFE AND CHILD
TO $86.90 PER MONTH, AND PAYMENTS WERE MADE AT THAT RATE FOR THE
MONTHS OF JULY 1953 THROUGH NOVEMBER 1953, THE MONTH IN WHICH YOU WERE
DISCHARGED.
A FURTHER REDETERMINATION OF YOUR CASE WAS MADE BY THE DEPARTMENT OF
THE ARMY AND IT WAS DETERMINED BY THAT OFFICE THAT YOUR MOTHER'S
DEPENDENCY CEASED ON OCTOBER 31, 1952, AS INCOME FROM SOURCES OTHER THAN
YOUR CONTRIBUTIONS EXCEEDED HER EXPENSES. BASED UPON THAT
REDETERMINATION, YOU WERE ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR
QUARTERS ON ACCOUNT OF A DEPENDENT MOTHER ONLY FOR THE PERIOD SEPTEMBER
1, 1951, TO OCTOBER 31, 1952.
THE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS TO ENLISTED MEN OF THE
UNIFORMED SERVICES WITH DEPENDENTS FOR THE PERIOD HERE INVOLVED IS
GOVERNED BY SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 64 STAT.
794. SECTION 1 OF THE 1950 AMENDATORY STATUTE PROVIDES THAT THE
DEPENDENCY OF A FATHER OR MOTHER SHALL BE DETERMINED ON THE BASIS OF
AFFIDAVIT SUBMITTED BY SUCH FATHER OR MOTHER AND SUCH OTHER EVIDENCE AS
THE SECRETARY CONCERNED MAY DEEM NECESSARY UNDER SUCH REGULATIONS AS HE
MAY PRESCRIBE. SECTIONS 10 AND 11 OF THE ACT, PROVIDE THAT
DETERMINATIONS OF DEPENDENCY SHALL BE MADE BY THE SECRETARY OF THE
DEPARTMENT CONCERNED OR SUCH OTHER PERSON OR PERSONS AS HE MAY
DESIGNATE, AND THAT SUCH DETERMINATIONS SHALL BE FINAL AND CONCLUSIVE
FOR ALL PURPOSES AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY
ACCOUNTING OFFICER OF THE GOVERNMENT. IN VIEW OF THE DETERMINATION MADE
BY THE DEPARTMENT OF THE ARMY THAT YOUR MOTHER WAS NOT DEPENDENT ON YOU
FOR OVER ONE-HALF OF HER SUPPORT DURING THE PERIOD INVOLVED, ANY
QUESTION YOU MAY HAVE CONCERNING HER DEPENDENCY SHOULD BE ADDRESSED TO
THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49,
INDIANA.
A SUMMATION OF YOUR BASIC ALLOWANCE FOR QUARTERS ACCOUNT WHICH IS FOR
CONSIDERATION IN CORRECTLY ADJUSTING THAT ACCOUNT FOR THE PERIOD
INVOLVED IS AS FOLLOWS:
CHART
CREDITED
FEB. 1 TO AUG. 31, 1951, AT $45 PER MO. $315.00
ENTITLED
FEB. 1 TO AUG. 31, 1951, AT $45 PER MO. NONE
-------
OVERCREDIT $315.00
CREDITED
SEPT. 1, 1951, TO APR. 30, 1952, AT $45 PER MO. $360.00
ENTITLED
SEPT. 1, 1951, TO APR. 30, 1952, AT $45 PER MO. 360.00
-------
NO DIFFERENCE
CREDITED
MAY 1, TO OCT. 31, 1952, AT $51.30 PER MO. 307.80
ENTITLED
MAY 1, TO OCT. 31, 1952, AT $51.30 PER MO. 307.80
-------
NO DIFFERENCE
CREDITED
NOV. 1 TO 14, 1952, AT $51.30 PER MO. $ 23.94
ENTITLED
NOV. 1 TO 14, 1952, AT $51.30 PER MO. NONE
-------
OVERCREDIT $ 23.94
CREDITED
NOV. 15, 1952, TO JUNE 12, 1953, AT $77.10 PER MO. $534.56
ENTITLED
NOV. 15, 1952, TO APRIL 22, 1953,
AT $51.30 PER MO. $270.18
APRIL 23 TO JUNE 12, 1953,
AT $77.10 PER MO. 128.50 398.68
------- -------
OVERCREDIT $135.88
CREDITED
JUNE 13 TO NOV. 23, 1953, AT $96.90 PER MO. $520.03
ENTITLED
JUNE 13 TO NOV. 23, 1953, AT $77.10 PER MO. 413.77
-------
OVERCREDIT $106.26
-------
TOTAL OVERCREDIT OF BAQ $581.08
OVERPAYMENT OF STATION SUBSISTENCE ALLOWANCE FROM
NOVEMBER 1 TO 14, 1952, AT $2.25 PER DAY 31.5
-------
TOTAL OVERPAYMENT $612.58
LESS AMOUNT ALLOWED IN SETTLEMENT DATED MAY 27, 1955:
OVERDEDUCTION OF CLASS Q ALLOTMENT FOR
AUGUST 1951, AT $85 PER MO. $ 85.00
DIFFERENCE BETWEEN CLASS Q ALLOTMENT
DEDUCTION OF $85 AND $45 PER MO.
FROM SEPT. 1, 1951, TO FEB. 29, 1952 240.00 325.00
------- -------
TOTAL AMOUNT DUE U.S. $287.58
IT WILL BE SEEN FROM THE FOREGOING STATEMENT THAT THE SUM OF $325
FOUND DUE YOU WAS PROPERLY APPLIED TO PARTIALLY LIQUIDATE YOUR
INDEBTEDNESS. IN REPORTING YOUR INDEBTEDNESS HERE, THE DEPARTMENT OF
THE ARMY STATED THE NET AMOUNT TO BE $220.48, WHICH IS $67.10 LESS THAN
THE SUM OF $287.58 AS SHOWN IN THE ABOVE STATEMENT OF YOUR PAY ACCOUNT.
IN THAT CONNECTION, IT APPEARS FROM THE RECORD THAT IN ADJUSTING YOUR
INDEBTEDNESS, THE DEPARTMENT OF THE ARMY ALLOWED YOU CREDIT IN THE
AMOUNT OF $67.10, WHICH SUM REPRESENTED THE PROCEEDS OF CLASS Q
ALLOTMENT CHECK FOR THE MONTH OF MARCH 1953, CHECK NO. 13,318,547, DATED
APRIL 1, 1953, DRAWN TO THE ORDER OF YOUR WIFE. THE RECORD SHOWS THAT
SUCH CHECK, WHICH WAS PROPERLY DUE YOUR WIFE FOR THE MONTH OF MARCH
1953, WAS CANCELED BY THE ADMINISTRATIVE OFFICE. WHILE YOUR WIFE WAS
ENTITLED TO THE PROCEEDS OF THAT CHECK, IT IS ASSUMED THAT SHE DESIRES
THAT THE AMOUNT OF THE CHECK BE APPLIED TO PARTIALLY LIQUIDATE YOUR
INDEBTEDNESS TO THE UNITED STATES ($287.58), WHICH WOULD LEAVE A BALANCE
DUE FROM YOU IN THE AMOUNT OF $220.48.
ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF MAY 27, 1955, IN
APPLYING THE AMOUNT FOUND DUE YOU TO PARTIALLY LIQUIDATE YOUR
INDEBTEDNESS IS SUSTAINED. YOU SHOULD MAKE ARRANGEMENTS TO
B-128151, AUG. 29, 1956
TO DISBURSING OFFICER, UNITED STATES MARINE CORPS:
BY FIRST ENDORSEMENT OF JUNE 4, 1956, THE COMMANDANT OF THE MARINE
CORPS FORWARDED YOUR LETTER OF MAY 22, 1956, REQUESTING AN ADVANCE
DECISION AS TO THE RIGHT OF CAPTAIN EMMETT J. HYDE, CAPTAIN
RAYMOND E. WASE, AND CAPTAIN MEYER LA BELLMAN, TO A DISLOCATION
ALLOWANCE IN THE CIRCUMSTANCES SHOWN.
IT APPEARS THAT THE RESIGNATION OF CAPTAIN HYDE WAS ACCEPTED BY THE
SECRETARY OF THE NAVY ON APRIL 18, 1956, TO BECOME EFFECTIVE UPON
DELIVERY TO HIM OF NOTIFICATION OF SUCH ACCEPTANCE. BY ORDERS DATED
APRIL 30, 1956, HE WAS TRANSFERRED FROM DUTY IN THE TERRITORY OF HAWAII
TO SAN FRANCISCO, CALIFORNIA, FOR DUTY PENDING HIS RESIGNATION BECOMING
EFFECTIVE. HIS DEPENDENTS TRAVELED AT GOVERNMENT EXPENSE FROM THE
TERRITORY OF HAWAII TO SAN FRANCISCO BETWEEN MAY 6 AND 7, AND THENCE TO
SAN BRUNO, CALIFORNIA, ON MAY 11, 1956.
BY LETTER FROM THE COMMANDANT OF THE MARINE CORPS DATED JANUARY 26,
1956, CAPTAIN WASE WAS NOTIFIED THAT HE WOULD BE HONORABLY DISCHARGED ON
JUNE 30, 1956, UNDER THE PROVISIONS OF THE OFFICER PERSONNEL ACT OF
1947, AS AMENDED, HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE
GRADE OF MAJOR. BY ORDERS DATED FEBRUARY 11, 1956, HE WAS TRANSFERRED
FROM DUTY IN JAPAN TO SAN FRANCISCO, CALIFORNIA, FOR DUTY PENDING HIS
DISCHARGE. HIS DEPENDENTS TRAVELED AT GOVERNMENT EXPENSE FROM JAPAN TO
SAN FRANCISCO BETWEEN FEBRUARY 27 AND MARCH 9, 1956, AND THENCE TO
TAMPA, FLORIDA BETWEEN MARCH 16 AND APRIL 1, 1956.
BY ORDERS DATED FEBRUARY 17, 1956, CAPTAIN LA BELLMAN WAS TRANSFERRED
FROM DUTY IN TAIWAN TO SAN FRANCISCO, CALIFORNIA, FOR DUTY PENDING
RETIREMENT. HE REPORTED AT SAN FRANCISCO ON MAY 14, 1956, AND WAS
RETIRED EFFECTIVE JULY 1, 1956. HIS DEPENDENTS TRAVELED AT GOVERNMENT
EXPENSE FROM TAIWAN TO SAN FRANCISCO BETWEEN MAY 9 AND 14, 1956.
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY
SECTION 2 (12) OF THE ACT OF MARCH 31, 1955, 69 STAT. 18, 21, AUTHORIZES
THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF A UNIFORMED
SERVICE WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN
CONNECTION WITH HIS "PERMANENT CHANGE OF STATION" UNDER REGULATIONS
APPROVED BY THE SECRETARY CONCERNED, BUT PROVIDES FURTHER THAT "A MEMBER
IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM
HOME TO FIRST DUTY STATION OR FROM LAST DUTY STATION TO HOME.' PARAGRAPH
9002-1, JOINT TRAVEL REGULATIONS, PROVIDES FOR THE PAYMENT OF A
DISLOCATION ALLOWANCE WHEN DEPENDENTS HAVE
COMPLETED TRAVEL IN CONNECTION WITH A PERMANENT CHANGE OF STATION IF
TRANSPORTATION OF DEPENDENTS IS AUTHORIZED TO BE FURNISHED OR TRAVEL
ALLOWANCES ARE AUTHORIZED TO BE PAID. PARAGRAPH 9003-4 OF THE SAME
REGULATIONS PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN
CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED "FROM LAST
DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY
UPON SEPARATION FROM THE SERVICE, RELEASE FROM ACTIVE DUTY, PLACEMENT ON
THE TEMPORARY DISABILITY RETIRED LIST, OR RETIREMENT.'
WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR
PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER
WHICH THE ASSIGNMENT IS MADE, AND, WHERE NECESSARY, FROM THE CHARACTER
OF THE ASSIGNMENT PARTICULARLY AS TO ITS DURATION, THE NATURE OF THE
DUTY ENJOINED, ETC. 24 COMP. GEN. 667, 670; 33 ID. 98. EACH OF THE
OFFICERS HERE INVOLVED WERE TRANSFERRED FROM DUTY OVERSEAS TO SAN
FRANCISCO, CALIFORNIA, FOR A SHORT PERIOD OF DUTY IN CONNECTION WITH
THEIR RESIGNATION, RETIREMENT, OR DISCHARGE. THUS, SAN FRANCISCO MUST
BE REGARDED AS THEIR TEMPORARY DUTY STATION. THE PERMANENT CHANGE OF
STATION FOR THESE OFFICERS WAS FROM OVERSEAS TO THEIR RESPECTIVE HOMES,
INCIDENT TO WHICH THE TRAVEL OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE
WAS AUTHORIZED.
SINCE THE STATUTE AND REGULATIONS BAR THE PAYMENT OF A DISLOCATION
ALLOWANCE TO A MEMBER WHEN HE IS ORDERED FROM LAST DUTY STATION TO HOME,
NO RIGHT TO SUCH ALLOWANCE ACCRUED TO CAPTAIN HYDE, CAPTAIN WASE, OR
CAPTAIN LA BELLMAN.
HOWEVER, IT APPEARS THAT IF PROPERLY CLAIMED, THESE OFFICERS MAY BE
ENTITLED TO A PER DIEM ALLOWANCE AS AUTHORIZED BY PARAGRAPH 4205-6 (E)
OF THE JOINT TRAVEL REGULATIONS.
B-128185, AUG. 29, 1956
TO HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES
ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 9, 1956, WITH
ENCLOSURES, FURNISHING THE REPORT REQUESTED BY OUR OFFICE RELATIVE TO AN
ERROR THE ELECTRIC INDUSTRIAL EQUIPMENT AND SUPPLY CORPORATION ALLEGES
IT MADE IN ITS BID OPENED ON NOVEMBER 14, 1955, AND ACCEPTED ON NOVEMBER
21, 1955, BY PURCHASE ORDER NO. 56D-4818-2.
THE FEDERAL SUPPLY SERVICE, DENVER, COLORADO, BY INVITATION NO.
4818, REQUESTED BIDS FOR FURNISHING VARIOUS QUANTITIES OF ELECTRICAL
FITTINGS AS DESCRIBED UNDER ITEMS 1 TO 23, INCLUSIVE. THE ELECTRIC
INDUSTRIAL EQUIPMENT AND SUPPLY CORPORATION SUBMITTED A BID DATED
NOVEMBER 9, 1955, ON ITEM 11, IN PART, AS FOLLOWS:
TABLE
ITEM SUPPLIES OR SERVICES QUANTITY UNIT UNIT AMOUNT
NO. PRICE
11. (17-C-3400-65) CAPS,
INNERSPRING ATTACHMENT PLUG,
STANDARD SIZE, RUBBER, TWO
WIRE CIRCUIT, NON-POLARIZED,
PARALLEL BLADES 13/32 INCH
SIZE CORD HOLE. IN ACCORDANCE
WITH FED. SPEC. W-R-1514.
STYLE 426 EXCEPT "TO INCLUDE
STEEL SPRINGS BETWEEN BENT
COPPER CONTACTS.' SIMILAR
TO URELL NO. U-1 1,000 EA. ?105 $105.00
THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEM 11 ON NOVEMBER 21,
1955.
BY LETTER DATED JANUARY 23, 1956, THE ELECTRIC INDUSTRIAL EQUIPMENT
AND SUPPLY CORPORATION ADVISED THAT IT HAD BEEN UNABLE TO PROCURE THE
TYPE OF CAPS REQUIRED BY THE SPECIFICATIONS FROM ITS SUPPLIER; THAT IT
WAS MAILING A SAMPLE OF A PLUG WHICH IT COULD FURNISH, AND THAT IF THE
SAMPLE PLUG WAS ACCEPTABLE TO THE GOVERNMENT, THE CONTRACT PRICE OF THE
PLUGS WOULD BE REDUCED $2.00 PER HUNDRED. BY SPEEDLETTER DATED JANUARY
30, 1956, THE PURCHASING AGENT ADVISED THE CORPORATION THAT THE SAMPLE
PLUG SUBMITTED WITH ITS LETTER OF JANUARY 23, 1956, WAS NOT ACCEPTABLE
TO THE GOVERNMENT BECAUSE IT DID NOT HAVE STEEL SPRINGS BETWEEN THE BENT
COPPER CONTACTS AS REQUIRED BY THE SPECIFICATIONS, AND THAT ITS FAILURE
TO DELIVER THE REQUIRED CAPS BY FEBRUARY 8, 1956, COULD RESULT IN
TERMINATION AND DEFAULT ACTION WITHOUT FURTHER NOTICE. IN A REPLY DATED
FEBRUARY 6, 1956, THE CORPORATION STATED THAT IT WAS NOT UNTIL AFTER
RECEIPT OF THE PURCHASE ORDER THAT IT DISCOVERED THAT ITS SUPPLIER'S
QUOTATION WAS BASED ON A PLUG WHICH DOES NOT MEET THE REQUIREMENTS OF
THE SPECIFICATIONS. THE CORPORATION REQUESTED THAT ITEM 11 OF THE
PURCHASE ORDER BE CANCELED IF THE SAMPLE PLUG WAS NOT ACCEPTABLE TO THE
GOVERNMENT.
BY TELEGRAM DATED FEBRUARY 17, 1956, THE PURCHASING AGENT ADVISED THE
CORPORATION THAT ITS RIGHT TO PROCEED WITH THE CONTRACT WAS TERMINATED.
SUBSEQUENTLY A REPLACEMENT CONTRACT FOR THE SAME CAPS WAS ENTERED INTO
WITH URELL, INCORPORATED, THE HIGHEST BIDDER ON ITEM 11, AT AN EXCESS
COST OF $135 TO THE GOVERNMENT.
IN A LETTER DATED MARCH 15, 1956, THE CORPORATION PROTESTED THE
ASSESSMENT OF THE EXCESS COSTS INCURRED BY THE GOVERNMENT IN PROCURING
THE FITTINGS COVERED BY ITEM 11 FROM URELL, INCORPORATED, AND IT
CONTENDED THAT THE DIFFERENCE OF APPROXIMATELY 60 PERCENT BETWEEN ITS
BID PRICE AND THE PRICE QUOTED BY THE MANUFACTURER WAS SUFFICIENT TO
HAVE PLACED THE CONTRACTING OFFICER ON NOTICE THAT ITS BID PRICE WAS NOT
BASED ON A PLUG MEETING THE REQUIREMENTS OF THE SPECIFICATIONS.
IN A LETTER DATED JUNE 6, 1956, TO OUR OFFICE, THE CORPORATION
REQUESTED THAT IT BE RELIEVED OF ANY LIABILITY FOR THE EXCESS COSTS
INCURRED BY THE GOVERNMENT.
THE ABSTRACT OF BIDS SHOWS THAT URELL, INCORPORATED, THE MANUFACTURER
OF THE REQUIRED ITEM, QUOTED A PRICE OF $0.24 EACH FOR ITEM 11 AND THAT
TWO OTHER BIDDERS ON THAT ITEM QUOTED PRICES OF $0.21 EACH AND $0.23
EACH. IT IS REPORTED THAT THE CAPS REQUIRED UNDER THAT ITEM WERE
PREVIOUSLY PROCURED ON DIFFERENT OCCASIONS AT PRICES RANGING FROM $0.217
EACH TO $0.26 EACH. IN VIEW OF THE SUBSTANTIAL DIFFERENCE BETWEEN THE
BID OF THE ELECTRIC INDUSTRIAL EQUIPMENT AND SUPPLY CORPORATION OF
$0.105 EACH FOR ITEM 11 AND THE OTHER BIDS RECEIVED ON THAT ITEM, AND
THE PRICES PREVIOUSLY PAID THEREFOR, THE PROBABILITY OF ERROR WAS
APPARENT AND, IN THE CIRCUMSTANCES, THE ELECTRIC INDUSTRIAL EQUIPMENT
AND SUPPLY CORPORATION'S BID SHOULD NOT HAVE BEEN ACCEPTED WITHOUT
REQUESTING IT TO VERIFY ITS BID. THERE APPEARS NO ROOM FOR DOUBT THAT
THE BID OF THE CORPORATION WAS NOT BASED ON FURNISHING THE TYPE OF CAPS
REQUIRED.
IN THE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE CONTRACT AS TO
ITEM 11 WAS NOT LEGALLY ENFORCEABLE. IT FOLLOWS THAT THE INDEBTEDNESS
FOR EXCESS COSTS STATED AGAINST THE ELECTRIC INDUSTRIAL EQUIPMENT AND
SUPPLY CORPORATION SHOULD BE CANCELED.
B-128215, AUG. 29, 1956
TO MRS. CARMEN FORTIER:
WE REFER TO YOUR LETTER OF JULY 29, 1956, IN REPLY TO OUR LETTER OF
JULY 25, 1956, WHEREIN YOU ASK TO BE INFORMED WHY YOUR CLAIM AGAINST THE
UNITED STATES AND DISTRICT OF COLUMBIA GOVERNMENTS IS NOT WITHIN THE
PURVIEW OF THE PROVISIONS OF 31 U.S.C. 53, AUTHORIZING INVESTIGATIONS BY
THE GENERAL ACCOUNTING OFFICE IN MATTERS RELATING TO THE RECEIPT,
DISBURSEMENT, AND APPLICATION OF PUBLIC FUNDS HANDLED BY FEDERAL
EMPLOYEES.
THE UNDERLYING PURPOSE OF THE CITED STATUTE IS TO PROVIDE FOR OUR
SUBMISSION TO THE CONGRESS OF CERTAIN REPORTS RELATING TO FEDERAL FUNDS,
INCLUDING RECOMMENDATIONS LOOKING TO GREATER ECONOMY OR EFFICIENCY IN
PUBLIC EXPENDITURES. A READING OF SECTION 31, TITLE 31, UNITED STATES
CODE WILL DISCLOSE THAT THERE IS NOTHING IN THE STATUTE WHICH WOULD
AUTHORIZE AN INVESTIGATION INTO A MATTER SUCH AS FORMS THE BASIS OF YOUR
CLAIM.
IN SUBSTANCE, YOUR CLAIM IS FOR DAMAGES FOR CERTAIN ACTS AND
OMISSIONS OF OFFICERS OF THE GOVERNMENT IN THE EXERCISE OF THEIR
STATUTORY AUTHORITY IN REGARD TO YOUR CASE. AS YOU HAVE BEEN ADVISED IN
PREVIOUS CORRESPONDENCE, THERE IS NO RELIEF WHICH OUR OFFICE MAY GRANT
IN THE CIRCUMSTANCES AND NEITHER IS YOUR SITUATION DEEMED TO BE ONE
WHICH WE ARE AUTHORIZED TO INVESTIGATE FOR REPORTING TO THE CONGRESS.
ACCORDINGLY, AND IN VIEW OF OUR PREVIOUS LETTERS TO YOU CONCERNING
THE MATTER, IT WOULD APPEAR THAT FURTHER CORRESPONDENCE FROM YOU
RELATIVE THERETO WOULD SERVE NO USEFUL PURPOSE.
B-128280, AUG. 29, 1956
TO MASTER SERGEANT CLAUDE L. CROSS, USAF:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1956,
REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 6, 1955, WHICH
DISALLOWED YOUR CLAIM FOR PER DIEM ALLOWANCE FOR PERIODS OF TEMPORARY
DUTY PERFORMED WHILE IN A TRAVEL STATUS AWAY FROM YOUR PERMANENT DUTY
STATION AT LOUISVILLE, KENTUCKY. ALSO THERE HAS BEEN RECEIVED YOUR
LETTER OF JUNE 18, 1956.
BY SPECIAL ORDERS NO. 147, DATED JULY 27, 1949, YOU WERE DETACHED
FROM YOUR ASSIGNMENT AT LANGLEY AIR FORCE BASE, VIRGINIA, AND DIRECTED
TO REPORT TO THE OFFICE OF THE PROVOST MARSHALL, KENTUCKY MILITARY
DISTRICT, LOUISVILLE, KENTUCKY, NOT LATER THAN AUGUST 5, 1949, FOR
APPREHENSION DUTY. THEREAFTER ORDERS WERE ISSUED IN 1949 AND 1950 WHICH
DIRECTED YOUR TRAVEL IN CONNECTION WITH THE INVESTIGATION, APPREHENSION
AND RETURN OF ABSENTEES. YOUR CLAIM FOR PER DIEM ALLOWANCES INCIDENT TO
THESE ORDERS WAS DISALLOWED FOR THE REASON THAT THE RECORD DID NOT
CONTAIN ORDERS DIRECTING YOU TO TRAVEL AWAY FROM YOUR PERMANENT DUTY
STATION AT LOUISVILLE, KENTUCKY. YOUR LETTER OF JANUARY 3, 1956,
ENCLOSED COPIES OF VARIOUS ORDERS DIRECTING TRAVEL IN CONNECTION WITH
APPREHENSION OF ABSENTEES AND YOU SAY THAT THE BALANCE OF THE RECORDS TO
PROVE YOUR CLAIM SHOULD BE AVAILABLE AT HEADQUARTERS, KENTUCKY MILITARY
DISTRICT, LOUISVILLE, KENTUCKY.
A REPORT FROM HEADQUARTERS, KENTUCKY MILITARY DISTRICT, LOUISVILLE,
KENTUCKY, STATES THAT ,RECORDS PERTAINING TO SGT. CROSS WERE NOT
ADMINISTERED BY THIS HEADQUARTERS.' THE FINANCE OFFICE, HEADQUARTERS,
LANGLEY AIR FORCE BASE, STATES THAT COPIES OF VOUCHERS PAID PRIOR TO
JULY 1, 1951, HAVE BEEN DESTROYED IN ACCORDANCE WITH APPLICABLE
REGULATIONS. WE ALSO HAVE YOUR SWORN STATEMENT DATED JUNE 22, 1955, IN
WHICH YOU STATE "DURING THE COURSE OF THIS DUTY I STAYED VARIOUS NUMBERS
OF TIMES AND VARIOUS LENGTHS OF TIME AT MOST OF THE MAJOR COMMUNITIES OF
KENTUCKY.
IN VIEW OF THE FACT THAT THIS DUTY WAS COMPLETED APPROXIMATELY FIVE
(5) YEARS AGO, IT IS ENTIRELY
IMPOSSIBLE FOR ME TO COMPLETE A DETAILED ITINERARY AT THIS TIME.'
THE PRESENT RECORD SHOWS THAT THE ADMINISTRATIVE OFFICES THAT
DIRECTED THE TRAVEL AND DUTY INVOLVED ARE UNABLE TO FURNISH OFFICIAL
RECORDS PERTAINING TO YOUR CLAIM AND THAT YOU ARE UNABLE TO FURNISH A
COMPLETE ITINERARY FOR THE ACTUAL PERIOD OF YOUR CLAIM. SUCH RECORDS
AND ITINERARY ARE ESSENTIAL IN DETERMINING WHAT PER DIEM IF ANY, MIGHT
BE PAYABLE. THE TRAVEL AND DUTY FOR WHICH PER DIEM IS CLAIMED ARE
ALLEGED TO HAVE BEEN PERFORMED AT VARIOUS TIMES BETWEEN AUGUST 1949 AND
JUNE 1950. IT APPEARS, HOWEVER, THAT IT WAS NOT UNTIL JULY 1954---
APPROXIMATELY FIVE YEARS LATER--- THAT YOU UNDERTOOK TO PRESENT YOUR
CLAIM. SUCH DELAY UNDOUBTEDLY ACCOUNTS FOR THE LACK OF COMPLETE
INFORMATION.
THE BURDEN OF FURNISHING EVIDENCE CLEARLY AND SATISFACTORILY
ESTABLISHING A CLAIM IS ON THE CLAIMANT. YOU HAVE NOT MET THAT
REQUIREMENT. THE RECORD, AS PRESENTED HERE, CONTAINS NO SATISFACTORY
EVIDENCE OF YOUR ENTITLEMENT TO THE PER DIEM ALLOWANCE AS CLAIMED. IN
THE ABSENCE OF SUCH EVIDENCE, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR
CLAIM. SEE CHARLES V. UNITED STATES, 19 C.CLS. 316; LONGWILL V.
UNITED STATES, 17 ID. 288.
ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 6, 1955, WAS CORRECT AND IS
SUSTAINED.
B-128500, AUG. 29, 1956
TO MAJOR MARGARET A. MAXWELL, WAC:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1956, REQUESTING
REVIEW OF THE SETTLEMENT OF MAY 11, 1956, WHICH DISALLOWED YOUR CLAIM
FOR TRAILER ALLOWANCE FOR THE DISTANCE FROM INDIANAPOLIS, INDIANA, TO
ARNOLD, MARYLAND.
BY ORDERS DATED OCTOBER 29, 1954, YOU WERE TRANSFERRED FROM FORT
SHERIDAN, ILLINOIS, TO FORT MCCLELLAN, ALABAMA, FOR THE PURPOSE OF
ATTENDING A COURSE OF INSTRUCTION. UPON COMPLETION OF THE COURSE, BY
ORDERS DATED MAY 16, 1955, YOU WERE ASSIGNED TO FORT GEORGE G. MEADE,
MARYLAND, FOR DUTY. THE RECORD INDICATES THAT YOU PURCHASED A HOUSE
TRAILER IN SEPTEMBER 1954, WHILE STATIONED AT FORT SHERIDAN; THAT YOU
LIVED IN IT UNTIL YOUR TRANSFER TO FORT MCCLELLAN, AND THAT YOU THEN HAD
IT TRANSPORTED TO YOUR BROTHER'S RESIDENCE IN INDIANAPOLIS, INDIANA,
WHERE IT REMAINED UNTIL AFTER YOU ARRIVED AT FORT MEADE. YOU THEN
ARRANGED TO HAVE IT TRANSPORTED TO THE NEW LOCATION ON AUGUST 1 AND 2,
1955, AT A COST OF $158.88. YOUR CLAIM FOR $117.40, COMPUTED ON THE
BASIS OF 20 CENTS PER MILE FOR 587 MILES, WAS DISALLOWED UNDER THE
PROVISIONS OF PARAGRAPH 10010, JOINT TRAVEL REGULATIONS.
YOU REQUEST REVIEW OF THAT DISALLOWANCE, STATING THAT THOSE
PROVISIONS WERE WELL KNOWN TO YOU WHEN YOU SUBMITTED THE CLAIM. YOUR
CONTENTION IS IN EFFECT, THAT PARAGRAPH 10010, JOINT TRAVEL REGULATIONS,
IS DISCRIMINATORY; THAT IT CONTAINS RESTRICTIONS NOT PRESCRIBED IN
PUBLIC LAW 20, 84TH CONGRESS, AND THAT IT SERVES TO DENY THE BENEFITS OF
THE LAW TO CERTAIN INDIVIDUALS WHO ARE EQUALLY ENTITLED TO ITS BENEFITS.
PUBLIC LAW 20 (ACT OF MARCH 31, 1955, 69 STAT. 22), AMENDED SECTION
303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, TO
PROVIDE, IN PERTINENT PART, THAT "IN LIEU OF TRANSPORTATION OF BAGGAGE
AND HOUSEHOLD EFFECTS," A MEMBER OF A UNIFORMED SERVICE WHO TRANSPORTS A
HOUSE TRAILER WITHIN THE CONTINENTAL UNITED STATES FOR USE AS A
RESIDENCE AND WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF
BAGGAGE AND HOUSEHOLD EFFECTS SHALL, UNDER REGULATIONS PRESCRIBED BY THE
SECRETARY CONCERNED, BE ENTITLED TO A REASONABLE ALLOWANCE, NOT TO
EXCEED 20 CENTS PER MILE OR TO THE AUTHORIZED DISLOCATION ALLOWANCE,
WHICHEVER HE SHALL ELECT. THUS, UNDER THE PLAIN TERMS OF THE LAW
ITSELF, THERE IS NO ABSOLUTE RIGHT TO A TRAILER ALLOWANCE, SUCH RIGHT
BEING SUBJECT TO REGULATION WITHOUT WHICH THE STATUTE REMAINS
INOPERATIVE.
CONTROLLING REGULATIONS, PROMULGATED BY THE SECRETARIES OF THE
VARIOUS DEPARTMENTS OF THE UNIFORMED SERVICES, ARE CONTAINED IN CHAPTER
10 OF JOINT TRAVEL REGULATIONS. PARAGRAPH 10010 OF THAT CHAPTER
PROVIDES THAT A MEMBER WITHOUT DEPENDENTS WHO IS OTHERWISE QUALIFIED TO
RECEIVE THE TRAILER ALLOWANCE WILL NOT BE ENTITLED TO THAT ALLOWANCE IN
THE ABSENCE OF A DETERMINATION IN WRITING BY THE ORDER-ISSUING
AUTHORITY, OR HIS DESIGNATED REPRESENTATIVE, TO THE EFFECT THAT THE
NATURE OF THE MEMBER'S DUTY OR LACK OF GOVERNMENT QUARTERS AT THE NEW
STATION REQUIRES THE MEMBER TO PROCURE HOUSING AT PERSONAL EXPENSE. IN
OTHER WORDS, THE ADMINISTRATIVE OFFICE HAS PREPARED THE REGULATIONS ON
THE BASIS THAT THE ALLOWANCE WOULD BE PAID ONLY WHEN THE TRAILER IS
REQUIRED AT THE NEW STATION FOR THE MEMBER'S USE. IN KEEPING WITH THAT
CONCEPT OF THE LAW, THE REGULATIONS REQUIRE A CERTIFICATE OF NECESSITY
BEFORE PAYMENT IS AUTHORIZED TO A MEMBER WITHOUT DEPENDENTS, SUCH
MEMBERS AT MANY STATIONS BEING FURNISHED GOVERNMENT QUARTERS. WE DO NOT
DISAGREE WITH THAT INTERPRETATION OF THE LAW AND SINCE YOUR CLAIM IS NOT
SUPPORTED BY A STATEMENT OF THE TYPE REQUIRED BY THE REGULATIONS, THERE
IS NO LEGAL BASIS FOR ITS ALLOWANCE ON THE PRESENT RECORD. ACCORDINGLY,
THE SETTLEMENT OF MAY 11, 1956, IS SUSTAINED.
B-128509, AUG. 29, 1956
TO CHIEF WARRANT OFFICER HAROLD H. GOODWILL:
FURTHER REFERENCE IS MADE TO YOUR FIRST INDORSEMENT DATED JUNE 4,
1956, TO OUR SETTLEMENT OF JULY 8, 1952, WHICH DISALLOWED YOUR CLAIM FOR
STATION QUARTERS AND SUBSISTENCE PER DIEM ALLOWANCE FOR THE PERIOD JUNE
16, 1949, TO FEBRUARY 28, 1951, WHILE YOU WERE ASSIGNED TO DUTY IN THE
FREE TERRITORY OF TRIESTE. YOU ALSO CLAIM THE SUBSISTENCE PORTION OF
THE STATION PER DIEM ALLOWANCE FOR THE PERIOD MARCH 1 TO 31, 1951.
SINCE YOU SAY THAT QUARTERS WERE ASSIGNED TO YOU ON OCTOBER 21, 1949,
THE INDORSEMENT WILL BE CONSIDERED AS A REQUEST FOR RECONSIDERATION OF
THAT PART OF THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR THE QUARTERS
PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD JUNE 16 TO
OCTOBER 20, 1949. AS TO THAT CLAIM YOU ARE ADVISED THAT PRIOR TO
OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF
1949, 63 STAT. 802, THE RIGHT OF MILITARY PERSONNEL TO THE QUARTERS
PORTION OF THE STATION PER DIEM ALLOWANCE FOR OVERSEAS DUTY WAS BASED ON
NONAVAILABILITY OF GOVERNMENT QUARTERS TO THE OFFICER HIMSELF
IRRESPECTIVE OF WHETHER DEPENDENTS ACCOMPANIED HIM. CONSEQUENTLY,
AVAILABILITY OF BACHELOR QUARTERS WAS SUFFICIENT TO BAR PAYMENT OF THE
QUARTERS PER DIEM. 31 COMP. GEN. 399. IT IS UNDERSTOOD THAT BACHELOR
QUARTERS WERE AVAILABLE TO OFFICERS AT ALL TIMES DURING THE PERIOD OF
YOUR CLAIM. HENCE, PAYMENT OF YOUR CLAIM FOR SUCH ALLOWANCE FOR THE
PERIOD JUNE 16 TO SEPTEMBER 30, 1949, IS NOT AUTHORIZED.
RESPECTING THE CLAIM FOR SUCH ALLOWANCE FOR THE PERIOD OCTOBER 1 TO
20, 1949, SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63
STAT. 814, GRANTED AUTHORITY TO CONSIDER THE COST OF LIVING OF
DEPENDENTS AS WELL AS PERSONAL COSTS IN FIXING RATES OF PER DIEM FOR
FOREIGN DUTY. SECTION 303 (H) OF THE ACT, HOWEVER, PROVIDED FOR THE
PROMULGATION OF REGULATIONS TO IMPLEMENT THE VARIOUS PROVISIONS OF
SECTION 303 AND STIPULATED THAT "NO PROVISIONS OF THIS SECTION SHALL
BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN ISSUED.' THE FIRST
REGULATIONS WHICH PURPORT TO CONSIDER THE COST OF LIVING OF DEPENDENTS
OF ARMY PERSONNEL WERE ISSUED UNDER DATE OF JUNE 30, 1950, AND THEY
AMENDED PARAGRAPH 2E OF SPECIAL REGULATIONS 35-3080-1, TO PROVIDE THAT
FOR PERSONNEL IN A NONTRAVEL STATUS WHOSE DEPENDENTS ARE RESIDING IN THE
VICINITY OF THEIR PERMANENT STATIONS, THE TERM "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. WHILE SUCH REGULATIONS ARE STATED TO BE
EFFECTIVE AS OF OCTOBER 1, 1949, THE PROVISIONS OF LAW ON WHICH THEY ARE
BASED DID NOT BECOME EFFECTIVE UNTIL THE DATE OF ISSUANCE OF SUCH
REGULATIONS. THEREFORE, THEY MAY NOT BE CONSIDERED AS EFFECTIVE PRIOR
TO JUNE 30, 1950, AND YOU ARE NOT ENTITLED TO THE QUARTERS PORTION OF
THE STATION PER DIEM ALLOWANCE FOR THE PERIOD OCTOBER 1 TO 20, 1949.
YOUR CLAIM FOR THE SUBSISTENCE PORTION OF THE STATION PER DIEM
ALLOWANCE FOR THE PERIOD JUNE 16, 1949, TO FEBRUARY 28, 1951, IS
SUBSTANTIALLY SIMILAR TO THAT OF CAPTAIN FLOYD R. STANFIELD, CONSIDERED
IN OUR DECISION DATED MAY 17, 1953, B-111431, COPY ENCLOSED. FOR THE
REASONS STATED IN THAT DECISION THERE IS NO AUTHORITY FOR THE PAYMENT OF
YOUR CLAIM FOR SUCH SUBSISTENCE PORTION DURING THE PERIOD INVOLVED.
ACCORDINGLY, THE SETTLEMENT OF JULY 8, 1952, IS SUSTAINED.
WITH REGARD TO YOUR CLAIM IN THE INDORSEMENT FOR THE SUBSISTENCE
PORTION OF THE STATION PER DIEM ALLOWANCE FOR THE PERIOD MARCH 1 TO 31,
1951, WHICH YOU SAY WAS COLLECTED FROM YOUR JUNE 1953 PAY PURSUANT TO A
NOTICE OF EXCEPTION, YOU ARE ADVISED THAT SUCH CLAIM WILL BE BE GIVEN
CONSIDERATION BY OUR CLAIMS DIVISION AND A FURTHER COMMUNICATION IN THAT
REGARD WILL BE SENT TO YOU.
B-128614, AUG. 29, 1956
TO CHIEF WARRANT OFFICER JAMES J. CARNEY, USN:
YOUR LETTER OF JUNE 28, 1956, REQUESTS REVIEW OF OUR SETTLEMENT OF
MAY 8, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR
TRANSPORTATION OF YOUR DEPENDENT (WIFE) FROM SAN FRANCISCO, CALIFORNIA,
TO TOKYO, JAPAN, BY COMMERCIAL AIR DURING THE PERIOD MARCH 6 TO AUGUST
8, 1950.
BY ORDERS DATED FEBRUARY 16, 1950, YOU WERE DETACHED FROM ASSIGNMENT
AT THE UNITED STATES NAVAL RECEIVING STATION, WASHINGTON, D.C., AND
DIRECTED TO PROCEED TO THE RECEIVING STATION, SAN FRANCISCO, CALIFORNIA,
FOR FURTHER TRANSPORTATION TO JAPAN. ON MARCH 29, 1950, YOU WERE
FURNISHED GOVERNMENT TRANSPORTATION TO JAPAN. ORDERS WERE SUBSEQUENTLY
ISSUED OFFERING TRANSPORTATION TO YOUR WIFE ABOARD THE U.S.N.S. GENERAL
H. J. GAFFEY SAILING FOR TOKYO ON JULY 31, 1950. THIS OFFER OF
TRANSPORTATION WAS CANCELED AFTER THE CHIEF OF NAVAL OPERATIONS ISSUED A
DISPATCH ON JULY 8, 1950, WHICH DIRECTED CANCELLATION OF ALL PORT CALLS
ISSUED TO DEPENDENTS DESTINED FOR ALASKA, HAWAII, OR OTHER PACIFIC
DESTINATIONS WHO ARRIVED AT PORT OF EMBARKATION NOT IN TIME TO EMBARK BY
JULY 14, 1950, AND ALSO PROVIDED THAT SUCH DEPENDENTS WERE TO BE
RETURNED TO POINT OF ORIGIN AT GOVERNMENT EXPENSE. IT WAS STATED
FURTHER "ADVISE DEPENDENTS TRANSPORTATION IS INDEFINITELY SUSPENDED DUE
TO ASSIGNMENT OF AVAILABLE LIFT TO HIGHER CATEGORY PERSONNEL MOVEMENTS,"
AND THAT DETAILED INSTRUCTIONS WOULD FOLLOW.
ON JULY 10, 1950, THE BUREAU OF NAVAL PERSONNEL IMPLEMENTED THE
DISPATCH OF JULY 8, 1950, OF THE CHIEF OF NAVAL OPERATIONS BY GRANTING
AUTHORITY TO ALL NAVAL DISTRICT COMMANDANTS TO ARRANGE TRANSPORTATION TO
POINT OF ORIGIN OR A SELECTED PLACE IN THE UNITED STATES AT GOVERNMENT
EXPENSE FOR THOSE DEPENDENTS EN ROUTE TO PACIFIC DESTINATIONS WHOSE
TRAVEL TERMINATED AT SAN FRANCISCO OR SEATTLE DUE TO SUSPENSION OF
TRAVEL TO PACIFIC DESTINATIONS. ON JULY 31, 1950, THE BUREAU OF NAVAL
PERSONNEL IN MESSAGE NO. 71595, ADDRESSED TO ALL NAVAL DISTRICT
COMMANDANTS, FURTHER AMPLIFIED RESTRICTIONS IMPOSED BY THE CHIEF OF
NAVAL OPERATIONS ON TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS, BY
STATING THAT ANY TRAVEL PERFORMED BY DEPENDENTS TO THOSE DESTINATIONS,
ON OR AFTER JULY 15, 1950, AT PERSONAL EXPENSE WOULD NOT BE SUBJECT TO
REIMBURSEMENT UNLESS EXCEPTIONS TO THE CONTRARY WERE MADE IN EACH
SPECIFIC CASE BY THE CHIEF OF NAVAL OPERATIONS. FURTHER IMPLEMENTATION
WAS CONTAINED IN ALNAV NO. 87, AUGUST 21, 1950, TO WHICH YOU REFER. ON
AUGUST 7, 1950, YOUR WIFE TRAVELED BY COMMERCIAL AIR FROM SAN FRANCISCO
TO TOKYO. THIS TRANSPORTATION COST $674 FOR WHICH YOU NOW CLAIM
REIMBURSEMENT.
IT HAS LONG BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF
DEPENDENTS IS NOT AN ABSOLUTE ONE BUT IS ONE WHICH MAY BE
ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS, AND THAT
WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY
NECESSITY OR EXPEDIENCY A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT
PERSONAL EXPENSES AND BE PAID THE COST UNDER A STATUTE AUTHORIZING
REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON PERMANENT CHANGE OF STATION.
CULP V. UNITED STATES, 76 C.CLS. 507. IT IS IMMATERIAL THAT YOUR WIFE
WAS PERMITTED TO STAY IN JAPAN AND WAS FURNISHED PUBLIC QUARTERS. SINCE
YOUR DEPENDENT TRAVELED FROM SAN FRANCISCO TO JAPAN AT A TIME WHEN
TRANSPORTATION OF DEPENDENTS TO PACIFIC DESTINATIONS AT GOVERNMENT
EXPENSE WAS PROHIBITED BY REASON OF MILITARY EXPEDIENCY, THERE IS NO
LEGAL BASIS FOR REIMBURSEMENT OF THE COST OF SUCH TRAVEL.
ACCORDINGLY, THE SETTLEMENT OF MAY 8, 1956, WAS CORRECT AND IS
SUSTAINED.
B-128716, AUG. 29, 1956
TO MRS. DOLORES M. HAHN:
REFERENCE IS MADE TO LETTERS DATED JUNE 30 AND AUGUST 27, 1956,
WRITTEN ON YOUR BEHALF BY MR. JACKSON CONCERNING YOUR CLAIM FOR
ADDITIONAL AMOUNTS BELIEVED TO BE DUE AS FAMILY ALLOWANCE FOR THE PERIOD
MARCH 1942 TO NOVEMBER 1943, AS THE DEPENDENT WIFE OF YOUR FORMER
HUSBAND, GEORGE E. SHANKS, INCIDENT TO HIS SERVICE AS AN ENLISTED MAN,
UNITED STATES NAVAL RESERVE.
IN LETTER DATED JUNE 28, 1956, OUR CLAIMS DIVISION FORWARDED TO YOU A
COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH PROVIDES THAT
EVERY CLAIM AGAINST THE UNITED STATES COGNIZABLE BY THIS OFFICE AS
PROVIDED IN THE ACT SHALL BE FOREVER BARRED UNLESS SUCH CLAIM SHALL BE
RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE
DATE SUCH CLAIM FIRST ACCRUED. YOU WERE ADVISED THAT SINCE YOUR CLAIM
WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 12, 1956,
YOUR CLAIM WAS BARRED BY THAT ACT.
IN HIS LETTERS MR. JACKSON URGES THAT YOUR LETTER DATED JUNE 27,
1943, TO THE DEPARTMENT OF THE NAVY, A PHOTOSTATIC COPY OF WHICH LETTER
WAS RECEIVED HERE ON JUNE 12, 1956, BY REFERENCE FROM THE
DEPARTMENT OF THE NAVY, SHOULD BE CONSIDERED AS A SUFFICIENT
COMPLIANCE WITH THE ACT OF OCTOBER 9, 1940. HE ALSO REFERS TO THE
PROVISO OF THE ACT WHICH PROVIDES---
"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.'
HE CONTENDS THAT IN VIEW OF THE MILITARY ACTION BY THE UNITED STATES
IN KOREA THE FIVE-YEAR PERIOD HAD NOT EXPIRED WHEN YOUR CLAIM WAS
RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON JUNE 12, 1956.
AS TO THE LETTER OF JUNE 27, 1943, BEING CONSIDERED A SUFFICIENT
COMPLIANCE WITH THE ACT OF OCTOBER 9, 1940, AN EXAMINATION OF THAT
LETTER DISCLOSES THAT YOU MERELY MADE A GENERAL COMPLAINT OF
INSUFFICIENT FUNDS TO SUPPORT YOU AND YOUR TWO CHILDREN. FURTHERMORE,
EVEN IF SUCH LETTER WERE CONSIDERED A CLAIM BY YOU FOR THE AMOUNT NOW
CLAIMED, IT COULD NOT BE CONSIDERED AS A COMPLIANCE WITH THE 1940 ACT,
SINCE IT WAS SENT TO THE CHIEF OF NAVAL PERSONNEL, NAVY DEPARTMENT,
RATHER THAN TO THE GENERAL ACCOUNTING OFFICE AS REQUIRED BY THE ACT.
UNDER THE TERMS OF THE STATUTE A CLAIM IS BARRED UNLESS FILED IN THE
GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE DATE THE CLAIM
ACCRUED. THE FILING OF A CLAIM IN SOME OTHER OFFICE OR DEPARTMENT DOES
NOT OPERATE TO TOLL THE RUNNING OF THE PERIOD OF LIMITATION.
RESPECTING THE CONTENTION THAT YOUR CLAIM WAS WITHIN THE FIVE-YEAR
PERIOD REFERRED TO IN THE PROVISO, YOU ARE ADVISED THAT SUCH PROVISO,
UNDER ITS PLAIN TERMS, RELATES TO CLAIMS OF PERSONS SERVING IN THE
MILITARY OR NAVAL FORCES OF THE UNITED STATES. SINCE YOU WERE NOT
SERVING IN THE MILITARY OR NAVAL SERVICE AT THE TIME YOUR CLAIM ACCRUED
IN 1942 AND 1943 AND APPARENTLY HAVE HAD NO SUCH SERVICE SUBSEQUENTLY,
THE PROVISO IS NOT FOR APPLICATION IN YOUR CASE.
IN VIEW OF THE FOREGOING, THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR
CLAIM.
B-128747, AUG. 29, 1956
TO DR. SOLOMON CENTER:
REFERENCE IS MADE TO YOUR LETTER DATED JULY 10, 1956, CONCERNING YOUR
INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $935.73 REPRESENTING
BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE RECEIVED BY YOU FROM THE
GOVERNMENT IN THE AMOUNT OF $642.40 AND COMPENSATION OF $293.33 RECEIVED
BY YOU FROM THE MINNEAPOLIS GENERAL HOSPITAL, MINNEAPOLIS, MINNESOTA,
INCIDENT TO YOUR SERVICE AS AN INTERN IN THAT HOSPITAL FOR THE PERIOD
JANUARY 5 THROUGH JUNE 30, 1950, WHILE YOU WERE ON ACTIVE DUTY AS A
COMMISSIONED OFFICER OF THE UNITED STATES AIR FORCE.
YOU EXPRESS THE BELIEF THAT OUR DECISION OF OCTOBER 6, 1949, B-97300,
29 COMP. GEN. 163, CONCLUDED THAT OFFICER-INTERNS MIGHT LEGALLY ACCEPT
COMPENSATION FROM MUNICIPAL HOSPITALS UNDER CIRCUMSTANCES SIMILAR TO
YOUR CASE. YOU ALSO APPEAR TO BE OF THE OPINION THAT YOU ARE ENTITLED
TO THE QUARTERS AND SUBSISTENCE ALLOWANCES ON THE BASIS THAT THE
QUARTERS AND MEALS FURNISHED TO YOU WERE FOR THE BENEFIT OF THE
HOSPITAL.
RESPECTING YOUR CONTENTION THAT OFFICER-INTERNS MAY LEGALLY ACCEPT
COMPENSATION FROM HOSPITALS WHOSE FUNDS ARE DERIVED FROM A MUNICIPALITY,
THERE IS ENCLOSED A COPY OF OUR DECISION OF APRIL 16, 1953, B-113776, 32
COMP. GEN. 454, IN WHICH THE SAME CONTENTION WAS MADE. FOR THE REASONS
STATED IN THAT DECISION YOU ARE NOT ENTITLED TO SUCH COMPENSATION AND
HENCE, YOU ARE LEGALLY INDEBTED IN THE AMOUNT OF $293.33, THE AMOUNT
RECEIVED BY YOU FROM THE MINNEAPOLIS GENERAL HOSPITAL.
AS TO THE PAYMENT OF QUARTERS AND SUBSISTENCE ALLOWANCES WHEN
QUARTERS AND SUBSISTENCE IN KIND ARE FURNISHED BY A HOSPITAL SEE THE
ENCLOSED COPY OF OUR DECISIONS OF DECEMBER 26, 1950, B-87300, 30 COMP.
GEN. 246. ALSO, SEE MORRIS V. UNITED STATES, C.CLS. NO. 6-55, DECIDED
APRIL 3, 1956. FOR THE REASONS STATED IN THOSE DECISIONS YOU WERE NOT
ENTITLED TO BE CREDITED WITH BASIC ALLOWANCES FOR QUARTERS AND
SUBSISTENCE AND YOU ARE ALSO INDEBTED IN THE AMOUNT OF $642.40, THE
AMOUNT OF SUCH ALLOWANCES PAID TO YOU BY THE GOVERNMENT.
ACCORDINGLY, IT IS REQUESTED THAT, WITHIN 30 DAYS FROM THE DATE OF
THIS LETTER, YOU REMIT THE SUM OF $935.73, OR MAKE SATISFACTORY
ARRANGEMENTS FOR THE PROMPT LIQUIDATION OF YOUR INDEBTEDNESS. THE
AMOUNT OF THE INDEBTEDNESS SHOULD BE FORWARDED BY CHECK, DRAFT, OR MONEY
ORDERS, PAYABLE TO THE U.S. GENERAL ACCOUNTING OFFICE, ADDRESSED AS
FOLLOWS:
U.S. GENERAL ACCOUNTING OFFICE
POST OFFICE BOX 2610
B-128750, AUG. 29, 1956
TO THE DIRECTOR, INTERNATIONAL COOPERATION ADMINISTRATION:
REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1956, REQUESTING
APPROVAL OF A SETTLEMENT PROPOSED TO BE MADE WITH THE RALPH M. PARSONS
COMPANY WITH RESPECT TO THE AMOUNT OF COMPENSATION DUE THE COMPANY FOR
SERVICES FURNISHED THE FOREIGN OPERATIONS ADMINISTRATION (NOW THE
INTERNATIONAL COOPERATION ADMINISTRATION), PURSUANT TO TASK ORDER NO. 1,
DATED APRIL 9, 1954, AND AMENDMENT NO. 1 THERETO, DATED OCTOBER 15,
1954, ISSUED UNDER A COST-PLUS-A-FIXED-FEE CONTRACT DATED DECEMBER 2,
1953.
ARTICLE II-E-3 (B) OF THE CONTRACT PROVIDED THAT, TO THE EXTENT OF
THE PROFESSIONAL, ADVISORY, CONSULTING AND OTHER ENGINEERING SERVICES TO
BE FURNISHED THEREUNDER COULD NOT BE PERFORMED WITH THE FIELD AND HOME
OFFICE STAFF OF THE CONTRACTOR, THE CONTRACTOR MIGHT, ON THE BASIS OF
TASK ORDERS ISSUED BY USOM (U.S. OPERATIONS MISSION TO PAKISTAN, FOREIGN
OPERATIONS ADMINISTRATION), EMPLOY OTHER SUPERVISORY AND TECHNICAL
PERSONNEL HAVING THE REQUIRED QUALIFICATION FOR DUTIES, SUBJECT TO THE
DIRECTION AND APPROVAL OF USOM.
UNDER THE TASK ORDER, AS AMENDED, THE CONTRACTOR WAS AUTHORIZED TO
PROVIDE A GRAIN STORAGE EXPERT TO PAKISTAN FOR PERFORMANCE OF THE
FOLLOWING SERVICES:
(A) REVIEW THE BEST AVAILABLE STATISTICS ON PRODUCTION, IMPORTS,
EXPORTS AND CONSUMPTION OF VARIOUS GRAIN COMMODITIES.
(B) EVALUATE EXISTING PLANS, REVISE PLANS AND SPECIFICATIONS ON
FACILITIES (ELEVATOR WAREHOUSES) FOR STORING AND HANDLING GRAINS.
(C) ESTIMATE THE EXTENT AND TYPE OF ADDITIONAL FACILITIES REQUIRED TO
PROVIDE ADEQUATE STORAGE.
(D) INDICATE PRIORITIES ON NEW CONSTRUCTION.
(E) DESCRIBE THE ORGANIZATION NEEDED FOR DETAILED DESIGN AND PLANNING
OF PROJECTS, SUPERVISION OF CONSTRUCTION, ETC.
(F) ESTIMATE COSTS OF NEW FACILITIES, TIME REQUIREMENTS, ETC.
(G) ADVISE ON OTHER QUESTIONS ON THE ABOVE SUBJECTS AS MAY BE RAISED
BY THE FOA MISSION IN PAKISTAN.
(G) CONSULT WITH AND ADVISE FOA OFFICIALS IN WASHINGTON ON THE
SPECIFICATIONS AND THE EVALUATION OF BIDS ON THE GRAIN STORAGE CONTRACT.
(I) ADVISE AND ASSIST DURING THE PERIOD OF DESIGN AND CONSTRUCTION OF
GRAIN STORAGE FACILITIES.
IT APPEARS THAT ON APRIL 21, 1954, ROBERT H. PINNER, A CONSULTING
ENGINEER, WAS, WITH THE APPROVAL OF USOM, EMPLOYED BY THE CONTRACTOR AND
PLACED ON ITS REIMBURSABLE PAYROLL FOR THE PURPOSE OF PERFORMING THE
SERVICES IN QUESTION; THAT MR. PINNER PROCEEDED TO PAKISTAN, WHERE HE
ENTERED INTO PERFORMANCE UNDER THE TASK ORDER; THAT ICA PAID THE
CONTRACT AS REIMBURSABLE FOR THE EXPENSES INCIDENT TO THE EMPLOYMENT OF
MR. PINNER, AS THE PRO RATA AMOUNT OF OVERHEAD COSTS ALLOCABLE TO THE
WORK, AND AS FIXED FEE THE CONTRACTOR UP TO AND INCLUDING DECEMBER 31,
1954, THE SUM OF $29,652.76; AND THAT THERE REMAINS OUTSTANDING A CLAIM
BY THE CONTRACTOR FOR SERVICES FOR THE PERIOD JANUARY 1, 1955, THROUGH
APRIL 14, 1955, IN THE AMOUNT OF APPROXIMATELY $4,500.
IT FURTHER APPEARS THAT MR. PINNER WAS DISMISSED BY THE CONTRACTOR ON
APRIL 14, 1955, AFTER HE HAD TESTIFIED BEFORE THE SENATE PERMANENT
SUBCOMMITTEE ON INVESTIGATIONS AND IN ANTICIPATION OF HIS SECOND
APPEARANCE BEFORE THE SUBCOMMITTEE, ON WHICH OCCASION HE CHANGED
SUBSTANTIALLY HIS TESTIMONY WITH RESPECT TO CERTAIN OF HIS ACTIVITIES IN
THE COURSE OF HIS WORK AS A CONSULTANT UNDER THE CONTRACT. HIS
CORRECTED TESTIMONY, WHICH WAS GIVEN ON APRIL 15, 1955, AND IS SET FORTH
ON PAGES 193 TO 254 OF THE PRINT (PART 2) OF THE HEARINGS HELD BY THE
SUBCOMMITTEE, SERIOUSLY REFLECTED ON HIS IMPARTIALITY IN HANDLING AND
EVALUATING THE BIDS SUBMITTED FOR THE CONSTRUCTION OF THE GRAIN STORAGE
FACILITIES IN PAKISTAN. OTHER EVIDENCE INTRODUCED BEFORE THE
SUBCOMMITTEE TENDED TO CONFIRM THIS LACK OF IMPARTIALITY AND TO SHOW
THAT MR. PINNER ATTEMPTED TO USE HIS POSITION AS CONSULTANT TO HAVE THE
CONTRACT AWARDED TO A CONCERN THE VICE PRESIDENT OF WHICH HAD WRITTEN
THE LETTER OF RECOMMENDATION THAT MAINLY WAS RESPONSIBLE FOR HIS
EMPLOYMENT BY THE RALPH M. PARSONS COMPANY, WITHOUT REGARD TO THE
INTERESTS OF THE UNITED STATES AND IN DISREGARD OF THE RIGHTS OF THE
OTHER BIDDERS. UNDER DATE OF APRIL 21, 1955, FOA ADVISED THE BIDDERS
THAT THE AGENCY HAD DECIDED TO REJECT ALL PROPOSALS FOR CONSTRUCTION OF
THE GRAIN STORAGE FACILITIES AND READVERTISE THE PROCUREMENT.
YOU STATE THAT, AS A RESULT OF THE REVELATION CONCERNING THE BEHAVIOR
OF MR. PINNER, ICA HAS WITHHELD PAYMENT OF THE REFERRED-TO SUM OF $4,500
AND HAS REQUESTED REFUND OF ALL PRIOR PAYMENTS MADE TO THE CONTRACTOR
UNDER THE TASK ORDER, BUT THE CONTRACTOR HAS REJECTED THE REQUEST FOR
REFUND AND HAS REASSERTED ITS CLAIM FOR THE AMOUNT OF $4,500 ON THE
GROUNDS THAT IT PERFORMED ITS CONTRACTUAL OBLIGATIONS WITH DUE
DILIGENCE, IN VIEW OF WHICH THE CONTRACT MAY NOT BE SAID TO HAVE
CONTEMPLATED THAT IT BEAR THE RISK OF FAULTY PERFORMANCE ON THE PART OF
THE EMPLOYEE IN QUESTION. HOWEVER, YOU STATE THAT THE CONTRACTOR HAS
OFFERED TO WITHDRAW ITS CLAIM FOR PAYMENT FOR SERVICES NOT YET
REIMBURSED FOR THE PERIOD JANUARY 1 THROUGH APRIL 14, 1955, PROVIDED ICA
WILL WITHDRAW ITS CLAIM FOR A REFUND. YOU STATE THAT, IN VIEW OF THE
ACCEPTABLE RENDITION OF CERTAIN SERVICES BY MR. PINNER, WHICH WERE NOT
TAINTED BY HIS APPARENT BEHAVIOR WITH RESPECT TO BID EVALUATION, THE
IMPOSSIBILITY OF ASSIGNING A VALUE TO THE VARIOUS SEGMENTS OF SERVICE
PERFORMED, AND THE DOUBT AS TO THE LEGAL BASIS FOR THE CONTRACTOR'S
CLAIM, IT IS YOUR CONSIDERED JUDGMENT THAT THE CONTRACTOR'S PROPOSAL
SHOULD BE ACCEPTED AS BEING IN THE BEST INTERESTS OF THE GOVERNMENT.
IT WAS HELD IN 21 COMP. GEN. 149, 156, THAT A COST-PLUS-A-FIXED-FEE
CONTRACTOR MAY NOT BE REIMBURSED FOR LOSSES DUE TO THE NEGLIGENCE OR
UNTRUSTWORTHINESS OF HIS EMPLOYEES WHERE HE HAS FAILED TO EXERCISE
REASONABLE CARE IN THEIR SELECTION AND EMPLOYMENT, OR WHERE SUCH PERSONS
HAVE BEEN RETAINED AFTER THE CONTRACTOR HAS REASON TO KNOW THAT THEY
WERE NOT TRUSTWORTHY AND CAREFUL.
IN THE INSTANT CASE, IT APPEARS THAT MR. PINNER LISTED THREE
REFERENCES IN THE APPLICATION FOR EMPLOYMENT WHICH HE SUBMITTED TO THE
RALPH M. PARSONS COMPANY, ONE OF WHOM WAS A. E. POULSEN, PRESIDENT OF
THE POULSEN COMPANY, A LOS ANGELES FIRM OF GRAIN MILLING ENGINEERS AND
CONSTRUCTORS FOR WHOM HE HAD WORKED. THE PARSONS COMPANY ADDRESSED A
LETTER TO THAT CONCERN ON MARCH 22, 1954, STATING THAT MR. PINNER WAS
BEING CONSIDERED FOR A RESPONSIBLE FOREIGN POSITION AS GRAIN ELEVATOR
ENGINEER AND REQUESTING THEIR OPINION AS TO HIS SUITABILITY FOR SUCH AN
ASSIGNMENT. MR. POULSEN REPLIED ON BEHALF OF THE POULSEN COMPANY BY
LETTER OF MARCH 23, 1954, STATING THAT HE HAD PERSONALLY KNOWN MR.
PINNER SINCE 1936, AND HAD WORKED WITH HIM ON SEVERAL INSTALLATIONS OF
PLANTS, INCLUDING GRAIN STORAGE PLANTS, AND THAT, IN EACH INSTANCE, MR.
PINNER HAD DEMONSTRATED THAT HE WAS FULLY CAPABLE OF DOING THE JOB. MR.
POULSEN ALSO STATED THAT MR. PINNER HAD WORKED WITH THE POULSEN COMPANY
ON "FLOWSHEETS" IN MANY INSTANCES, AND HE FELT CERTAIN THAT HE WAS
CAPABLE OF SUPPLYING THE NECESSARY ENGINEERING INFORMATION TO PROPERLY
DESIGN AND ERECT A GRAIN STORAGE PLANT; THAT MR. PINNER HAD BEEN RAISED
IN THE CONCRETE BUSINESS, SINCE HIS FATHER OWNED THE LARGEST CONCRETE
PLANT IN THE IMPERIAL VALLEY, AND HE WAS, THEREFORE, FAMILIAR WITH FORM
WORK AND THE MANUFACTURE OF CONCRETE MIXES; THAT MR. PINNER HAD ALSO
COMMANDED THE RESPECT OF HIS SUPERIORS, AS WELL AS THE MEN WORKING UNDER
HIM; AND THAT HE WAS NOT ONE TO MAKE STATEMENTS THAT HE COULD NOT BACK
UP. MR. POULSEN CONCLUDED BY STATING THAT HIS COMPANY WOULD GLADLY
REHIRE MR. PINNER IF THEY WERE PLACED IN THE POSITION OF NEEDING A
PERSON OF HIS ABILITY, AND THAT HE THOUGHT MR. PINNER WOULD MAKE AN
EXCEPTIONALLY FINE INDIVIDUAL FOR THE PARSONS COMPANY TO EMPLOY.
THUS, THE PARSONS COMPANY AT LEAST MADE A LIMITED INVESTIGATION OF
MR. PINNER BEFORE EMPLOYING HIM. MOREOVER, IT APPEARS FROM THE EVIDENCE
BROUGHT OUT IN THE HEARINGS THAT THE PARSONS COMPANY WAS COMPLETELY
UNAWARE THAT PINNER WAS FAVORING POULSEN, WHO, AS VICE PRESIDENT OF THE
NEWLY ORGANIZED AGRICULTURAL CONSTRUCTION COMPANY OF WASHINGTON, D.C.,
WAS ONE OF THE BIDDERS FOR THE PROJECT, WITH INFORMATION NOT SUPPLIED TO
THE OTHER BIDDERS DURING THE PERIOD OF TIME THAT BIDS FOR CONSTRUCTION
OF THE GRAIN STORAGE FACILITIES FOR PAKISTAN WERE BEING CONSIDERED, OR
THAT HE WAS OTHERWISE FAVORING POULSEN'S COMPANY IN THE TRANSACTION, AND
THAT THE CONTRACTOR TERMINATED PINNER'S EMPLOYMENT AS SOON AS THE FACTS
BECAME KNOWN.
IN VIEW OF THE ABOVE CIRCUMSTANCES, AND SINCE THE GOVERNMENT DID
BENEFIT FROM CERTAIN SERVICES PERFORMED BY MR. PINNER UNDER THE CONTRACT
WHICH WERE UNRELATED TO THE EVALUATION OF BIDS, WE WILL
NOT OBJECT TO CONSUMMATION OF THE SETTLEMENT PROPOSED IN YOUR LETTER,
WHICH WOULD APPEAR TO BE IN THE BEST INTERESTS OF THE UNITED STATES.
THE RALPH M. PARSONS COMPANY CONTRACT, TOGETHER WITH TASK ORDER NO.
1, AND AMENDMENT NO. 1 THERETO, WHICH WERE FURNISHED TO US BY YOUR
ASSOCIATE GENERAL COUNSEL, ARE RETURNED HEREWITH.
B-128976, AUG. 29, 1956
TO THE ATTORNEY GENERAL:
REFERENCE IS MADE TO LETTER DATED AUGUST 13, 1956, FROM THE
ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, FORWARDING AN ALLEGATION OF
ERROR IN A BID SUBMITTED BY FLOORMEN'S SUPPLY COMPANY IN RESPONSE TO
INVITATION FOR BIDS NO. 14-4205, ISSUED BY THE UNITED STATES
PENITENTIARY, LEWISBURG, PENNSYLVANIA. OUR DECISION IS REQUESTED AS TO
THE PROPER ACTION TO BE TAKEN ON PURCHASE ORDER NO.
14-2967-6, WHICH WAS ISSUED TO THE BIDDER PRIOR TO RECEIPT OF ADVIC
OF SUCH ERROR.
THE ENCLOSURES SUBMITTED WITH YOUR LETTER INDICATE THAT BIDS WERE
SOLICITED FOR FURNISHING ASPHALT FLOOR TILE AND CEMENT AS FOLLOWS:
TABLE
QUANTITY ITEM NO.
(NO. OF UNITS) UNIT
1. 9 INCHES BY 9 INCHES,
JOHNS-MANVILLE COLOR NO.
D-126 (SAND) 22,000 EA
2. 9 INCHES BY 9 INCHES,
JOHNS-MANVILLE COLOR NO.
C-121 (RUST) 29,700 EA
3. CEMENT; ASPHALT TILE;
SHALL BE SUITABLE FOR
INSTALLING ASPHALT TILE
ON CONCRETE FLOORS, ABOVE
GROUND, WITHOUT THE
NEED FOR AN ADDITIONAL
BINDER; IN ACCORDANCE
WITH ALL APPLICABLE
REQUIREMENTS OF FED.SPEC.
SS-A-128; IN 5 GALLON
CANS. 300 GAL
THE BID, IN THE TOTAL AMOUNT OF $3,532.70, SUBMITTED BY FLOORMEN'S
SUPPLY COMPANY, A FACTORY REPRESENTATIVE OF MASTIC TILE CORPORATION OF
AMERICA, QUOTED UNIT PRICES OF $ .0725 FOR "MATICO" B-100 ON ITEM 1 AND
$ .061 FOR "MATICO" C-420 ON ITEM 2. BIDS WERE ALSO RECEIVED FROM
JOHNS-MANVILLE SALES CORPORATION IN THE AMOUNT OF $5,212.59 QUOTING $
.1068 ON ITEM 1 AND $ .0902 ON ITEM 2, AND FROM THE TILE-TEX DIVISION OF
THE FLINTKOT COMPANY IN THE AMOUNT OF $5,301.06 QUOTING $ .1086 ON ITEM
1 AND $ .0917 ON ITEM 2. THREE ADDITIONAL BIDS WERE RECEIVED FROM
RETAIL SUPPLIERS, THE LOWEST OF WHICH WAS THAT RECEIVED FROM SEARS
ROEBUCK AND COMPANY IN THE AMOUNT OF $6,404.80, OFFERING TO SUPPLY
"MATICO" TILES IDENTICAL TO THOSE OFFERED BY FLOORMEN'S SUPPLY COMPANY
AT $ .133 PER UNIT FOR ITEM 1 AND $ .112 PER UNIT FOR ITEM 2.
PURCHASE ORDER NO. 14-2967-6 WAS ISSUED TO FLOORMEN'S SUPPLY COMPANY
AS THE LOWEST BIDDER ON JUNE 11, 1956, WITHOUT VERIFICATION OF BID
PRICES. IMMEDIATELY AFTER RECEIPT THEREOF THE CONTRACTOR ALLEGED ERROR
IN ITS BID AND THEREAFTER SUBMITTED A COPY OF MATICO FACTORY PRICE LIST
NO. 16, QUOTING TRUCK OR CARLOAD LOTS OF 3/16 INCH "MATICO" B-100 AND
C-420 AT $5.70 AND $4.78 PER
CARTON RESPECTIVELY, AND INDICATING THAT A CARTON CONTAINS 54 PIECES
OF 3/16 INCH TILE OR 80 PIECES OF 1/8 INCH TILE. THE CONTRACTOR ALLEGES
THAT IN COMPUTING THE UNIT PRICE OF 3/16 TILE FOR
BID PURPOSES, AFTER ADDING $0.12 TO THE CARTON LIST PRICE TO COVER
SHIPPING CHARGES, HE ERRONEOUSLY COMPUTED THE UNIT PRICE BY DIVIDING 80,
INSTEAD OF 54, INTO THE RESULTING CARTON PRICES. BUT FOR THIS ERROR HE
CONTENDS THAT HIS UNIT PRICES WOULD HAVE BEEN $ .108 FOR ITEM 1 AND $
.09 FOR ITEM 2. HE CONTENDS FURTHER THAT THE DIFFERENCE BETWEEN HIS
ACTUAL BID PRICES AND THE PRICES BID BY OTHER MANUFACTURERS OF ASPHALT
TILE WAS SUFFICIENTLY GREAT TO PUT THE CONTRACTING OFFICER ON NOTICE OF
THE PROBABILITY THAT AN ERROR HAD BEEN MADE, AND THAT PURCHASE ORDER NO.
14-2967-6 SHOULD THEREFORE BE CANCELLED.
ON THE BASIS OF THE FACTS OF RECORD THERE APPEARS TO BE NO DOUBT THAT
THE BIDDER MADE A BONA FIDE ERROR IN ITS BID. IN THE CIRCUMSTANCES, THE
SOLE QUESTION FOR DETERMINATION IS WHETHER THE PRICE DIFFERENCES IN THE
BIDS SUBMITTED WERE SO GREAT THAT THE CONTRACTING OFFICER WAS CHARGEABLE
WITH NOTICE OF THE LIKELIHOOD OF ERROR.
THE CONTRACTING OFFICER CONTENDS THAT BECAUSE OF THE WIDE RANGE OF
BID PRICES RECEIVED, AND THE COMPARATIVELY SMALL PRICE DIFFERENCE
BETWEEN THE LOW AND SECOND LOW BIDS, HE HAD NO REASON TO SUSPECT THAT
THE LOW BID WAS IN ERROR, AND EXECUTION OF THE PURCHASE ORDER WAS
THEREFORE ACCOMPLISHED IN GOOD FAITH. ASIDE FROM THE FACT THAT THE
SECOND LOW BIDS WERE ACTUALLY NEARLY FIFTY PERCENT HIGHER THAN THE LOW
BID, IT MUST BE NOTED THAT THE FIVE HIGHER BIDDERS IN THIS CASE WERE
READILY IDENTIFIABLE AS REPRESENTING TWO DISTINCT CLASSES, NAMELY,
MANUFACTURER'S REPRESENTATIVES AND RETAIL OUTLETS. THE SECOND AND THIRD
LOW BIDS WERE SUBMITTED BY JOHNS-MANVILLE SALES CORPORATION AND THE
TILE-TEX DIVISION OF THE FLINTKOTE COMPANY, OFFERING TILES OF THEIR OWN
MANUFACTURE, WHILE THE REMAINING BIDS WERE SUBMITTED BY SEARS ROEBUCK
AND COMPANY, LEWISBURG BUILDERS SUPPLY COMPANY, AND HARRISBURG LUMBER
COMPANY, ONE OFFERING MATICO TILES AND THE OTHER TWO JOHNS-MANVILLE.
THE LOW BID SUBMITTED BY FLOORMEN'S SUPPLY COMPANY DOES NOT INDICATE THE
BIDDERS AFFILIATION WITH MASTIC TILE CORPORATION OF AMERICA AS FACTORY
REPRESENTATIVE, NOR DOES THE RECORD INDICATE THAT THE CONTRACTING
OFFICER WAS AWARE OF SUCH AFFILIATION. HOWEVER, IN THE CASE OF AN ITEM
OF SUCH GENERAL AND WIDESPREAD PUBLIC USE AS ASPHALT FLOOR TILE, WHICH
IS REGULARLY ADVERTISED BY DEALERS IN DAILY NEWSPAPERS, IT IS OUR VIEW
THAT THE RECEIPT OF A BID FROM ANY SOURCE QUOTING PRICES A THIRD LESS
THAN THE PRICES SUBMITTED BY REPRESENTATIVES OF COMPETING MANUFACTURERS,
AND SCARCELY MORE THAN HALF THE PRICES OFFERED BY A MAJOR MAIL ORDER
RETAIL HOUSE ON THE IDENTICAL BRAND, IS SUFFICIENT TO PUT THE
CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF PROBABLE ERROR.
ACCORDINGLY, IT IS OUR OPINION THAT THE CONTRACTING OFFICER SHOULD
NOT HAVE ACCEPTED THE LOW BID WITHOUT REQUESTING THE BIDDER TO VERIFY
ITS PRICE, AND THAT THE PURCHASE ORDER EXECUTED ON THE BASIS OF SUCH BID
DOES NOT CONSTITUTE AN ENFORCEABLE CONTRACT.
SINCE THE CORRECTED UNIT PRICES OF $0.108 FOR ITEM 1 AND $0.09 FOR
ITEM 2, REQUESTED BY THE BIDDER WOULD RESULT IN A TOTAL OVERALL PRICE
LOWER THAN THAT OF THE SECOND LOW BIDDER, AND IN VIEW OF THE FACT THAT
THE TIME FOR ACCEPTANCE OF THE SECOND AND THIRD LOW BIDS HAS EXPIRED AND
THAT IT IS STATED THAT THE MATERIALS ARE NEEDED CURRENTLY, THIS OFFICE
WOULD OFFER NO OBJECTION, IF IT IS ADMINISTRATIVELY DETERMINED TO BE IN
THE BEST INTEREST OF THE UNITED STATES, TO AMENDMENT OF THE PURCHASE
ORDER BY THE INSERTION OF THE CORRECTED UNIT PRICES WITHOUT FURTHER
ADVERTISEMENT FOR BIDS. IN THAT EVENT, A COPY OF THIS LETTER SHOULD BE
ATTACHED TO THE VOUCHER UPON WHICH PAYMENT IS MADE TO THE CONTRACTOR.
B-118850, AUG. 28, 1956
TO MR. DARRYL COTTRELL BISHOP:
WE REFER TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR SETTLEMENT
OF FEBRUARY 26, 1954, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR
THE PERIOD APRIL 5, 1951, THROUGH MARCH 16, 1953, DURING WHICH YOU WERE
IN A LEAVE WITHOUT PAY STATUS PENDING ACTION ON YOUR DISABILITY
RETIREMENT APPLICATION, AS AN EMPLOYEE OF THE POST OFFICE DEPARTMENT,
HOUSTON, TEXAS.
THE RECORDS SHOW THAT AT THE REQUEST OF YOUR SUPERVISOR THE POST
OFFICE PHYSICIAN AT HOUSTON GAVE YOU A MEDICAL EXAMINATION ON MARCH 16,
1951, AND REPORTED THAT YOU WERE PHYSICALLY UNFIT TO PERFORM YOUR
DUTIES. ON THE BASIS OF SUCH INFORMATION YOU WERE PLACED ON SICK AND
ANNUAL LEAVE UNTIL SAME WAS EXHAUSTED, AND THEREAFTER YOU WERE CARRIED
IN A LEAVE WITHOUT PAY STATUS UNTIL THE DATE OF YOUR RETURN TO DUTY. ON
MAY 18, 1951, THE POST OFFICE DEPARTMENT FILED AN APPLICATION WITH THE
CIVIL SERVICE COMMISSION FOR DISABILITY RETIREMENT IN YOUR BEHALF, AND
ON JULY 16, 1951, THE COMMISSION INFORMED THE POST OFFICE DEPARTMENT
THAT YOU HAD REFUSED TO COMPLY WITH ITS REQUEST THAT YOU APPEAR FOR
EXAMINATION. NUMEROUS SUBSEQUENT ATTEMPTS WERE MADE TO HAVE YOU UNDERGO
THE NECESSARY EXAMINATION IN CONNECTION WITH THE RETIREMENT APPLICATION,
BUT IT APPEARS THAT YOU DID NOT SUBMIT TO EXAMINATION UNTIL SOME TIME
LATE IN 1952 OR EARLY IN 1953.
CHAPTER R5-47 OF THE FEDERAL PERSONNEL MANUAL, CONTAINING THE CIVIL
SERVICE REGULATIONS RESPECTING RETIREMENT MATTERS, AUTHORIZES
ADMINISTRATIVE AGENCIES TO INITIATE REQUESTS FOR DISABILITY RETIREMENT
OF EMPLOYEES UPON THEIR REFUSAL TO DO SO. ALSO CHAPTER S1-8 OF THE
MANUAL PROVIDES IN PERTINENT PART:
"/A) BEFORE TAKING ADMINISTRATIVE ACTION TO SEPARATE THE EMPLOYEE FOR
DISABILITY, GIVE HIM AN OPPORTUNITY TO FILE AN APPLICATION FOR
DISABILITY RETIREMENT. (IF HE REFUSES TO DO SO, THE AGENCY MAY MAKE
SUCH AN APPLICATION ON HIS BEHALF AS PROVIDED ON PAGE R5-48.)
"/B) IF SUCH AN APPLICATION IS FILED, DO NOT TAKE ADMINISTRATIVE
ACTION TO SEPARATE HIM FROM THE SERVICE SOLELY BECAUSE OF DISABILITY
UNTIL THE CIVIL SERVICE COMMISSION HAS DETERMINED WHETHER THE EMPLOYEE
IS ENTITLED TO DISABILITY RETIREMENT ON THE BASIS OF SUCH APPLICATION.
"/C) IF NECESSARY, HE MAY BE GRANTED LEAVE WITHOUT PAY PENDING ACTION
ON THE CLAIM FOR DISABILITY RETIREMENT.'
THE QUOTED REGULATIONS PERMIT THE FILING OF THE DISABILITY RETIREMENT
APPLICATION BY THE EMPLOYEE, OR IF HE FAILS OR REFUSES TO DO SO, SUCH
APPLICATION MAY BE FILED ON HIS BEHALF BY THE AGENCY.
IN 30 COMP. GEN. 342, FEBRUARY 6, 1951, IT WAS RULED BY OUR OFFICE,
QUOTING FROM THE SYLLABUS---
"THE TERM "SUSPENSION FROM THE SERVICE" AS USED IN THE BACK-PAY
PROVISIONS OF THE ACT OF JUNE 10, 1948, PRIMARILY IS CONCERNED WITH
CHARGES ARISING OUT OF AN EMPLOYEE'S CONDUCT, AND THEREFORE THE
INVOLUNTARY PLACING OF AN EMPLOYEE ON LEAVE WITHOUT PAY PENDING ACTION
ON A DISABILITY RETIREMENT APPLICATION ADMINISTRATIVELY FILED FOR THE
EMPLOYEE, PURSUANT TO THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT
ACT, WAS NOT A "SUSPENSION FROM THE SERVICE" WITHIN THE MEANING OF THE
ACT SO AS TO ENTITLE THE EMPLOYEE UPON RESTORATION TO DUTY TO
COMPENSATION FOR THE PERIOD HE WAS CARRIED IN A LEAVE WITHOUT PAY
STATUS.'
ACCORDINGLY, YOU WOULD NOT BE ENTITLED TO THE COMPENSATION HEREIN
CLAIMED, AND THE CONCLUSION REACHED IN OUR SETTLEMENT OF FEBRUARY 26,
1954, IS CORRECT.
REGARDING YOUR REQUEST THAT THE CORRESPONDENCE FORWARDED TO OUR
OFFICE IN SUPPORT OF YOUR CLAIM BE RETURNED, YOU ARE ADVISED THAT
ORIGINAL DOCUMENTS SUBMITTED IN SUPPORT OF A CLAIM BECOME A PART OF THE
PERMANENT FILES OF OUR OFFICE AND CANNOT BE RETURNED.
B-124089, AUG. 28, 1956
TO MR. DON B. REAGAN:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1956, AND TO PRIOR
CORRESPONDENCE, RELATIVE TO THE ACTION TAKEN BY US IN THE SETTLEMENT OF
THE CLAIM OF THE GREAT LAKES MANUFACTURING CORPORATION FOR $4,168.86,
REPRESENTING THE AMOUNT WITHHELD FROM PAYMENTS OTHERWISE DUE UNDER
CONTRACTS NOS. AF33/600/-24370 AND AF33/600/-23725, A PART OF WHICH SUM
WAS APPLIED AGAINST THE CORPORATION'S ACKNOWLEDGED INDEBTEDNESS.
YOUR PROTEST, IN SUBSTANCE, IS PREDICATED UPON THE ALLEGATION THAT WE
FAILED TO RESPOND TO A QUESTION WHICH YOU PREVIOUSLY HAD RAISED IN
CONNECTION WITH TWO ASSIGNMENTS TO THE CALUMET NATIONAL BANK EXECUTED
UNDER THE CONTRACTS, IT BEING CONTENDED THAT WE TREATED ONE AS VALID AND
THE OTHER AS INVALID. IT IS ASSUMED THAT SUCH CONTENTION IS BASED UPON
THE FACT THAT A PART OF THE BALANCE DUE UNDER ONE OF THE ASSIGNED
CONTRACTS, NO. AF33/600/-22725, WAS PAID TO THE ASSIGNEE BANK WHEREAS
FUNDS DUE UNDER CONTRACT NO. AF33/600/-24370, WHICH ALSO WERE ASSIGNED,
WERE SET OFF AGAINST THE CORPORATION'S INDEBTEDNESS.
YOUR ASSUMPTION THAT WE TREATED THE ASSIGNMENT UNDER THE LATTER
CONTRACT AS INVALID, PRESUMABLY IS DUE TO THE FACT THAT NO PAYMENT WAS
MADE TO THE BANK UNDER THAT ASSIGNMENT. THE VALIDITY OF THAT ASSIGNMENT
WAS NOT, AND IS NOT, QUESTIONED. AS STATED IN OUR LETTER OF MARCH 28,
1956, FROM THE BALANCE OF $3,106.71, DUE UNDER CONTRACT NO.
AF33/600/-23725, THE SUM OF $2,828.66 WAS PAID BY OUR SETTLEMENT TO THE
CALUMET NATIONAL BANK OF HAMMOND TO COVER ALL OF THE OUTSTANDING
PRINCIPAL AND INTEREST FOR ADVANCES MADE TO THE CORPORATION. SUCH
PAYMENT WAS MADE PURSUANT TO THE ASSIGNMENT OF RECORD AND IN ACCORDANCE
WITH THE "NO SET-OFF" PROVISIONS OF THE ASSIGNMENT OF CLAIMS ACT OF
1940, AS AMENDED, 31 U.S.C. 203. BUT FOR THAT INSTRUMENT AND THE CITED
STATUTE THE ENTIRE AMOUNT WOULD HAVE BEEN WITHHELD AND APPLIED AGAINST
THE DEBT, RATHER THAN ONLY THE BALANCE REMAINING AFTER LIQUIDATION OF
THE BANK'S CLAIM. AFTER THE APPLICATION OF THE SUM OF $2,828.66 IN FULL
SATISFACTION OF THE BANK'S INTEREST IN THE MATTER, THE AMOUNT DUE UNDER
CONTRACT NO. AF33/600/-24370 WAS AVAILABLE FOR APPLICATION AGAINST THE
DEBT DUE THE UNITED STATES FROM THE CORPORATION.
FROM THE TENOR OF YOUR LETTERS IT WOULD APPEAR TO BE YOUR CONTENTION
THAT SUCH ACTION WITH RESPECT TO THE ASSIGNMENTS WAS CONTRARY TO THE
ACT, AND THAT THE BALANCE DUE UNDER BOTH CONTRACTS SHOULD HAVE BEEN PAID
EITHER TO THE BANK OR TO THE CORPORATION. AFTER SATISFACTION OF THE
BANK'S DEMAND THE APPLICATION OF THE REMAINING DIFFERENCE TO THE DEBT OF
THE CORPORATION WAS AN EXERCISE OF THE GOVERNMENT'S COMMON-LAW RIGHT OF
SETOFF WHICH ACTION HAS BEEN SUPPORTED BY THE COURTS IN DECISIONS TOO
NUMEROUS TO MENTION. BUT, SEE PARTICULARLY THE CASE OF STONE V. WHITE,
301 U.S. 532. THE "NO SET-OFF" PROVISIONS OF THE ACT ARE FOR THE
PROTECTION OF THE ASSIGNEE, BUT IT IS APPARENT FROM ITS LANGUAGE THAT
THE STATUTE WAS NOT DESIGNED TO INTERFERE WITH THE GOVERNMENT'S RIGHT TO
COLLECT BY SET-OFF A CONTRACTOR'S JUST DEBT FROM THE PROCEEDS OF A
CONTRACT WHICH EXCEED THE AMOUNT DUE AN ASSIGNEE UNDER AN ASSIGNMENT.
SINCE THERE IS NO QUESTION AS TO THE VALIDITY OR THE AMOUNT OF THE
INDEBTEDNESS, THE APPLICATION OF THE BALANCE DUE UNDER THE SUBJECT
CONTRACTS, IN PARTIAL LIQUIDATION OF THAT
B-128262, AUG. 28, 1956
TO COLONEL HARRY MEYER, UNITED STATES ARMY:
FURTHER REFERENCE IS MADE TO A LETTER OF MAY 28, 1956, FROM SYDNEY
FISCHGRUND, ATTORNEY, REQUESTING, ON YOUR BEHALF, A REVIEW OF OUR
SETTLEMENT OF JANUARY 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR
ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1949, INCIDENT TO YOUR RETIREMENT
AS A COLONEL IN THE U.S. ARMY, EFFECTIVE DECEMBER 31, 1948.
THE RECORDS SHOW THAT YOU SERVED ON ACTIVE DUTY AS APPRENTICE SEAMAN,
U.S. NAVAL RESERVE FORCE, FROM OCTOBER 25, 1918, TO DECEMBER 21, 1918,
AND WERE HONORABLY DISCHARGED FROM THAT SERVICE ON AUGUST 21 1921. YOU
SERVED ON ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE REGULAR ARMY FROM
AUGUST 22, 1921, TO DECEMBER 31, 1948.
PARAGRAPH 5 OF THE ACT OF JULY 31, 1935, AS AMENDED, 10 U.S.C. 971B,
PROVIDES, WITH EXCEPTIONS NOT HERE MATERIAL, THAT AN OFFICER ON THE
ACTIVE LIST OF THE REGULAR ARMY WHO SHALL HAVE COMPLETED NOT LESS THAN
TWENTY OR MORE THAN THIRTY YEARS' ACTIVE FEDERAL SERVICE IN THE ARMED
FORCES OF THE UNITED STATES, AT LEAST TEN YEARS OF WHICH SHALL HAVE BEEN
ACTIVE COMMISSIONED SERVICE, MAY IN THE DISCRETION OF THE SECRETARY OF
THE ARMY, BE RETIRED UPON HIS OWN APPLICATION WITH ANNUAL PAY EQUAL TO 2
1/2 PERCENTUM OF THE ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY OF THE
RANK WITH WHICH RETIRED, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE
CREDITED FOR LONGEVITY PAY PURPOSES AND NOT TO EXCEED A TOTAL OF 75
PERCENTUM OF SUCH ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY. THE ACT
ALSO PROVIDES THAT ANY OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY OR
PHILIPPINE SCOUTS WHO SERVED IN ANY CAPACITY AS A MEMBER OF THE MILITARY
OR NAVAL FORCES OF THE UNITED STATES PRIOR TO NOVEMBER 12, 1918, SHALL
UPON HIS OWN APPLICATION BE RETIRED WITH ANNUAL PAY EQUAL TO 75
PERCENTUM OF HIS ACTIVE DUTY ANNUAL PAY AT THE TIME OF HIS RETIREMENT.
IT WAS INDICATED IN THE SETTLEMENT OF JANUARY 30, 1956, THAT YOU WERE
ENTITLED TO RETIRED PAY INCIDENT TO YOUR RETIREMENT UNDER THE CITED
STATUTORY PROVISIONS COMPUTED ON THE BASIS OF 2 1/2 PERCENTUM OF YOUR
ANNUAL ACTIVE DUTY BASE AND LONGEVITY PAY AS OF THE DATE OF RETIREMENT
MULTIPLIED BY THE NUMBER OF CREDITABLE YEARS OF SERVICE. HOWEVER, BY
VIRTUE OF YOUR NAVAL SERVICE PRIOR TO NOVEMBER 12, 1918, YOU WERE
ENTITLED UPON YOUR RETIREMENT TO ANNUAL PAY EQUAL TO 75 PERCENTUM OF THE
ACTIVE DUTY PAY TO WHICH THEN ENTITLED. THE RECORDS SHOW THAT THE
RETIRED PAY RECEIVED BY YOU DURING THE PERIOD FROM JANUARY 1 TO
SEPTEMBER 30, 1949, WAS COMPUTED ON THE BASIS OF 75 PERCENT OF THE
ACTIVE DUTY PAY OF $550 PER MONTH TO WHICH YOU WERE ENTITLED AT THE TIME
OF YOUR RETIREMENT AS A COLONEL WITH MORE THAN 30 YEARS OF CREDITABLE
SERVICE FOR PAY PURPOSES, OR $412.50 PER MONTH.
SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829,
PROVIDES THAT ON AND AFTER OCTOBER 1, 1949, MEMBERS OF THE UNIFORMED
SERVICES THERETOFORE RETIRED FOR REASONS OTHER THAN FOR PHYSICAL
DISABILITY SHALL BE ENTITLED TO RECEIVE RETIRED PAY, RETIREMENT PAY,
RETAINER PAY, OR EQUIVALENT PAY, IN THE AMOUNT WHICHEVER IS THE GREATER,
COMPUTED BY EITHER (A) THE MONTHLY RETIRED PAY, RETAINER PAY, OR
EQUIVALENT PAY IN THE AMOUNT AUTHORIZED FOR SUCH MEMBERS AND FORMER
MEMBERS BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING
THE DATE OF ENACTMENT OF THE ACT, OR (B) MONTH RETIRED PAY, RETIREMENT
PAY, RETAINER PAY, OR EQUIVALENT PAY EQUAL TO 2 1/2 PERCENTUM OF THE
MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR
RATING SATISFACTORILY HELD AND WHICH THE MEMBER, FORMER MEMBER, OR
PERSON WOULD BE ENTITLED TO RECEIVE IS SERVING ON ACTIVE DUTY IN SUCH
RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE
SERVICE CREDITABLE TO HIM. INASMUCH AS METHOD (A) PROVIDES FOR A
CONTINUATION OF RETIRED PAY ON THE BASIS AND AT THE RATE IN EFFECT PRIOR
TO OCTOBER 1, 1949, IT IS APPARENT THAT AN ACTUAL LOSS OR LESSENING OF
PAY COULD NOT RESULT IN ANY CASE FROM THE APPLICATION OF THE PROVISIONS
OF SECTION 511 OF THE ACT.
SINCE METHOD (B) OF SECTION 511 PROVIDED A GREATER RETIRED PAY IN
YOUR CASE, YOU WERE PAID AFTER OCTOBER 1, 1949, UNDER THAT METHOD ON THE
BASIS OF 28 YEARS OF ACTIVE SERVICE MULTIPLIED BY 2 1/2 PERCENTUM (70
PERCENT) OF THE PAY OF A COLONEL WITH OVER THIRTY YEARS' SERVICE. IT
APPEARS TO BE YOUR CONTENTION IN THE MATTER THAT THE PAY RATES CONTAINED
IN THE 1949 ACT, WHICH ARE APPLICABLE WHEN METHOD (B) IS USED IN THE
COMPUTATION OF RETIRED PAY, SHOULD BE THE BASIS FOR THE COMPUTATION OF
YOUR PAY ON AND AFTER OCTOBER 1, 1949, BUT THAT THE USE OF THE 75
PERCENT FACTOR PROVIDED BY SECTION 5 OF THE CITED ACT OF JULY 31, 1935,
AS AMENDED, RATHER THAN THE 70 PERCENT FACTOR ACTUALLY USED, IS PROPER.
IT HAS BEEN HELD, HOWEVER, THAT THE SPECIFIC FORMULA PROVIDED IN METHOD
(B) OF SECTION 511 OF THE 1949 ACT IS FOR EXCLUSIVE APPLICATION, AND
THEREFORE A MEMBER MAY NOT INVOKE THE PROVISIONS OF SECTION 511 TO USE
THE MONTHLY PAY RATE OF THE 1949 ACT AND THEN LOOK TO SOME OTHER
PROVISION OF LAW IN ORDER TO RECEIVE A GREATER RETIRED PAY THAN THAT TO
WHICH HE WOULD BE ENTITLED UNDER THE SAID SECTION 511. 30 COMP. GEN.
350.
SINCE YOUR RETIRED PAY APPEARS TO HAVE BEEN PROPERLY COMPUTED UNDER
THE PROVISIONS OF SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, NO
AUTHORITY EXISTS FOR THE ALLOWANCE OF YOUR CLAIM.
B-128568, AUG. 28, 1956
TO MAJOR ROBERT R. HASE, USAF:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1956, RELATIVE
TO YOUR CLAIM FOR REIMBURSEMENT FOR STORAGE OF YOUR HOUSEHOLD EFFECTS
FROM AUGUST 28, 1952, TO JANUARY 1, 1954.
THE STORAGE INVOLVED WAS INCIDENT TO ORDERS DATED AUGUST 8, 1952,
TRUAX FIELD, MADISON, WISCONSIN, WHICH RELEASED YOU FROM ASSIGNMENT AT
TRUAX FIELD AND DIRECTED YOU TO PROCEED TO CAMP KILMER, NEW JERSEY, FOR
FURTHER ASSIGNMENT TO DUTY OVERSEAS. FOLLOWING RECEIPT OF THOSE ORDERS
YOUR HOUSEHOLD EFFECTS WERE PLACED IN COMMERCIAL STORAGE IN MADISON
WHERE THEY REMAINED UNTIL JANUARY 1, 1954. YOUR CLAIM FOR REIMBURSEMENT
OF THE CHARGES INCURRED WAS DISALLOWED BY OUR SETTLEMENT OF APRIL 23,
1956, BASED ON THE PROVISIONS OF JOINT TRAVEL REGULATIONS.
YOUR REQUEST FOR REVIEW OF THAT ACTION IS BASED ON THE PROPOSITION
THAT YOU ACTED IN GOOD FAITH AND THAT YOU WERE ERRONEOUSLY ADVISED BY
MILITARY PERSONNEL AS TO YOUR RIGHTS WHEN YOUR EFFECTS WERE PLACED IN
STORAGE.
THE TRANSPORTATION (INCLUDING PACKING, CRATING, SHIPMENT AND STORAGE)
OF HOUSEHOLD EFFECTS OF MEMBERS OF THE ARMED SERVICES IS GOVERNED BY
SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814,
AND REGULATIONS (JOINT TRAVEL REGULATIONS) PROMULGATED PURSUANT TO THAT
LAW. TEMPORARY STORAGE IN COMMERCIAL FACILITIES AT PUBLIC EXPENSE IS
AUTHORIZED ONLY UNDER CERTAIN SPECIFIC CIRCUMSTANCES INCIDENT TO AN
ACTUAL SHIPMENT OF THE EFFECTS. STORAGE AT PUBLIC EXPENSE IS NOT
AUTHORIZED WHEN THERE IS NO SHIPMENT AND THE EFFECTS ARE PLACED IN A
COMMERCIAL WAREHOUSE UPON ASSIGNMENT TO DUTY OVERSEAS.
THE FACTS PRESENTED IN YOUR CLAIM DO NOT DISCLOSE THAT STORAGE OF
YOUR GOODS WAS AUTHORIZED. THE FACT THAT YOU ACTED IN GOOD FAITH ON THE
INFORMATION FURNISHED YOU BY AIR FORCE PERSONNEL DOES NOT CHANGE YOUR
RIGHTS. HENCE, WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, THERE
IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. SUCH BEING THE CASE,
THE SETTLEMENT OF APRIL 23, 1956, IS SUSTAINED.
B-128608, AUG. 28, 1956
TO MR. MELVIN D. DOMBACK:
YOUR LETTER OF JULY 17, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED
JUNE 1, 1956, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION ALLEGED TO BE
DUE FOR THE PERIOD YOU WERE IN A LEAVE-WITHOUT-PAY STATUS AS AN EMPLOYEE
OF THE U.S. ARMY HOSPITAL, ABERDEEN PROVING GROUND, MARYLAND.
YOUR CLAIM WAS DISALLOWED PRIMARILY BECAUSE YOU HAD BEEN PAID IN FULL
FOR ALL THE SICK AND ANNUAL LEAVE TO YOUR CREDIT ON THE DATE OF YOUR
TRANSFER, JUNE 18, 1952, TO THE UNITED STATES AIR FORCE. ALSO, THE
FACTS IN YOUR CASE, SO FAR AS CONCERNS THE PERIOD OF LEAVE WITHOUT PAY,
DID NOT BRING YOUR CLAIM WITHIN THE PURVIEW OF THE ACT OF AUGUST 24,
1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 355, IN THAT YOU
WERE NOT SUSPENDED WITHOUT PAY OR DISCHARGED UPON CHARGES OF MISCONDUCT.
YOUR PRESENT LETTER FAILS TO CONTAIN ANY NEW INFORMATION PERTINENT TO
THE MATTER.
BRIEFLY, IT APPEARS FROM THE ADMINISTRATIVE REPORT THAT AFTER CERTAIN
TESTS WERE MADE AND THE RESULTS WERE POSITIVE, YOU WERE GRANTED LEAVE OF
ABSENCE WITHOUT PAY FOR A PERIOD OF ONE YEAR FOR THE PURPOSE OF HAVING
ADDITIONAL TESTS MADE AND RECEIVING NECESSARY MEDICAL TREATMENT.
APPARENTLY, IT IS YOUR CONTENTION THAT, INASMUCH AS THE BUREAU OF
EMPLOYEES' COMPENSATION REJECTED YOUR CLAIM IN CONNECTION WITH YOUR
ALLEGED DISABILITY, YOU ARE ENTITLED TO THE PAID FOR THE PERIOD FROM
NOVEMBER 10, 1951, TO APRIL 16, 1952, BY THE DEPARTMENT OF THE ARMY.
IN THE ABSENCE OF COVERAGE BY THE ACT OF AUGUST 24, 1912, AS AMENDED,
THERE IS NO LAW WITHIN OUR KNOWLEDGE WHICH WOULD AUTHORIZE OR JUSTIFY
THE PAYMENT TO YOU OF COMPENSATION FOR THE PERIOD. THAT IS TO SAY, AN
APPROPRIATION AVAILABLE FOR PERSONAL SERVICES IS NOT AVAILABLE FOR
PAYMENT OF COMPENSATION TO AN EMPLOYEE FOR ANY PERIOD DURING WHICH NO
PERSONAL SERVICES WERE RENDERED, IF THE EMPLOYEE WAS NOT GRANTED LEAVE
WITH PAY, IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING. THIS IS
TRUE IRRESPECTIVE OF THE REASON FOR YOUR FAILURE TO RENDER SERVICES.
IT IS NOT DISPUTED THAT NO SERVICES WERE RENDERED BY YOU DURING THE
PERIOD INVOLVED AND THAT LEAVE WITH PAY WAS NOT GRANTED FOR THE TIME;
THEREFORE, THERE IS NO AUTHORITY UPON THE PRESENT STATE OF THE RECORD
FOR THE PAYMENT OF COMPENSATION FOR THE PERIOD CLAIMED.
B-128626, AUG. 28, 1956
TO MR. W. L. ROWAN:
WE REFER TO YOUR LETTERS, WITH ENCLOSURES, REGARDING YOUR CLAIM
AGAINST THE UNITED STATES FOR AN AMOUNT ALLEGED TO BE DUE YOU BECAUSE OF
LOSSES SUFFERED BY YOU IN A PARTNERSHIP BUSINESS YOU ENTERED INTO WITH
W. L. F. ROSENBLATT OF FORT ADAMS, MISSISSIPPI.
YOUR CLAIM WAS DISALLOWED BY OUR OFFICE BECAUSE THERE EXISTED NO
PRIVITY OF CONTRACT BETWEEN THE UNITED STATES AND YOU WITH RESPECT TO
YOUR PARTNERSHIP BUSINESS.
YOU REQUEST THAT AN INVESTIGATION BE CONDUCTED BY OUR OFFICE IN YOUR
CASE. THE AUTHORITY FOR CONDUCTING INVESTIGATIONS BY OUR OFFICE IS
CONTAINED IN 31 U.S.C. 53. THAT SECTION PROVIDES ONLY FOR
INVESTIGATIONS OF MATTERS RELATING TO THE RECEIPT, DISBURSEMENT, AND
APPLICATION OF PUBLIC FUNDS HANDLED BY FEDERAL EMPLOYEES. YOUR CLAIM
DOES NOT COME WITHIN THE PURVIEW OF THAT STATUTE AND NO INVESTIGATION
CAN BE AUTHORIZED THEREUNDER.
SINCE YOUR CLAIM IS NOT ONE FOR CONSIDERATION BY OUR OFFICE, THE
CONCLUSION STATED IN THE SETTLEMENT OF MARCH 22, 1951, IS CORRECT AND
HEREBY SUSTAINED.
IT IS REGRETTED THAT WE CAN OFFER YOU NO ASSISTANCE IN THE MATTER.
B-128739, AUG. 28, 1956
TO MR. H. L. KNOPES, DISBURSING OFFICER, UNITED STATES MARINE CORPS:
BY FIRST ENDORSEMENT OF JULY 19, 1956, THE COMMANDANT OF THE MARINE
CORPS FORWARDED YOUR LETTER OF JULY 16, 1956, REQUESTING AN ADVANCE
DECISION AS TO THE RIGHT OF LIEUTENANT COLONEL J. FRANK COLE, 06231,
USMC, TO PER DIEM UNDER THE CIRCUMSTANCES DISCUSSED BELOW.
BY ORDERS OF NOVEMBER 10, 1955, AS AMENDED NOVEMBER 14, 1955, THE
OFFICER WAS DIRECTED TO PROCEED FROM HIS STATION AT MARINE CORPS AIR
STATION, MIAMI, FLORIDA, TO CAMP LEJEUNE, NORTH CAROLINA, FOR TEMPORARY
ADDITIONAL DUTY IN A FLYING STATUS INVOLVING OPERATIONAL OR TRAINING
FLIGHTS AS ASSISTANT CHIEF OF STAFF, G-4, TRAINING GROUP, HEADQUARTERS,
LANRAEX 1-56.
IT IS INDICATED THAT HE LEFT HIS STATION AT 1430 HOURS ON NOVEMBER
12, 1955, AND PROCEEDED BY PRIVATELY OWNED CONVEYANCE TO CAMP LEJEUNE
WHERE HE ARRIVED AT 1130 HOURS ON NOVEMBER 14, 1955. HE ENTERED UPON
TEMPORARY ADDITIONAL DUTY ON NOVEMBER 14, 1955, IN WHICH STATUS HE
CONTINUED UNTIL 1030 HOURS ON APRIL 2, 1956, WHEN HE DEPARTED FOR MIAMI,
BY PRIVATELY OWNED CONVEYANCE, ARRIVING AT HIS PERMANENT STATION AT 2030
HOURS ON APRIL 3, 1956. FIFTH ENDORSEMENT DATED APRIL 2, 1956, ON HIS
ORDERS SHOWS THAT HIS TEMPORARY ADDITIONAL DUTY CONSISTED OF THREE
PHASES AS FOLLOWS: A. ADVANCE PLANNING PHASE FROM NOVEMBER 14, 1955,
TO JANUARY 14, 1956; B. FIELD PHASE (FIELD DUTY UNDER PURVIEW OF
PARAGRAPH 4201-6, JOINT TRAVEL REGULATIONS) FROM JANUARY 14, 1956, TO
MARCH 14, 1956; AND C. CRITIQUE PHASE FROM MARCH 14, 1956, TO APRIL 2,
1956. ON NOVEMBER 19 AND 23, 1955, DECEMBER 9, 16, 22, AND 31, 1955,
JANUARY 2, 1956, AND MARCH 24 AND 31, 1956, HE TRAVELED IN A PROFICIENCY
AND TRAINING CAPACITY IN GOVERNMENT AIRCRAFT BETWEEN CHERRY POINT, NORTH
CAROLINA, OR CAMP LEJEUNE, NORTH CAROLINA, AND HIS HOME AT MIAMI,
FLORIDA, FOR WHICH DAYS HE HAS BEEN PAID $6, THE PER DIEM RATE FOR
ADDITIONAL TEMPORARY DUTY AT CAMP LEJEUNE WHERE GOVERNMENT QUARTERS WERE
AVAILABLE. THE DIFFERENCE BETWEEN THAT RATE AND THE TRAVEL PER DIEM
RATE OF $9 IS CLAIMED FOR THOSE DAYS APPARENTLY BECAUSE, IN THE
ADJUSTMENT OF HIS ORIGINAL VOUCHER, COLONEL COLE WAS CREDITED WITH PER
DIEM COMPUTED AT THE TRAVEL RATE FOR THE DAYS ON WHICH HE MADE THE
CORRESPONDING RETURN TRIPS. THE COMMANDANT OF THE MARINE CORPS
EXPRESSES THE OPINION THAT, EXCEPT FOR THE DOUBT ARISING FROM THE FACT
THAT ALLOWANCE WOULD RESULT IN PAYMENT OF A PER DIEM IN A GREATER AMOUNT
THAN WOULD HAVE BEEN PAYABLE HAD COLONEL COLE REMAINED AT HIS TEMPORARY
DUTY STATION, THIS CLAIM WOULD BE PAYABLE UNDER AUTHORITY OF 34 COMP.
GEN. 549 AND B-127628, DATED JUNE 25, 1956.
THE CITED DECISIONS CONCERNED MEMBERS WHO COMMUTED DAILY FROM THEIR
PERMANENT STATIONS TO THEIR TEMPORARY DUTY STATIONS. THESE DECISIONS
HAVE NO APPLICATION HERE SINCE COLONEL COLE'S TRAVEL BY GOVERNMENT
AIRCRAFT, SAID TO HAVE BEEN IN A TRAINING OR PROFICIENCY CAPACITY, A
DUTY NOT ENJOINED BY HIS TEMPORARY DUTY ORDERS, WAS INTERMITTENT, AND
FROM HIS TEMPORARY DUTY STATION TO PLACE OF PERMANENT DUTY AND RETURN,
PERFORMED FOR THE PURPOSE OF LIBERTY AT HOME.
COLONEL COLE TRAVELED BY PRIVATELY OWNED CONVEYANCE ON TWO DAYS'
DETACHED SERVICE FROM MIAMI TO CAMP LEJEUNE WHERE HE ARRIVED ON NOVEMBER
14, 1955, AND ENTERED INTO A TEMPORARY DUTY STATUS ENTITLING HIM TO A
PER DIEM AT A RATE OF $6. EXCEPT FOR THE PERIOD OF FIELD DUTY WHEN NO
PER DIEM WAS PAYABLE, HE REMAINED IN THIS STATUS CONTINUOUSLY UNTIL HIS
ULTIMATE DEPARTURE ON APRIL 2, 1956, FOR HIS PERMANENT STATION FOLLOWING
COMPLETION OF THE TEMPORARY DUTY ON APRIL 1, 1956. HENCE, HE WAS
ENTITLED TO PER DIEM AT THE $6 RATE AS ORIGINALLY CREDITED TO HIM,
EXCEPT FOR DAYS ON LIBERTY AT MIAMI FOR THE FULL TWENTY-FOUR HOURS.
ON THE BASIS INDICATED ABOVE, IT WOULD APPEAR THAT COLONEL COLE IS
ENTITLED TO ADDITIONAL PAYMENT OF PER DIEM IN THE AMOUNT OF $10.50 (7 BY
$1.50). ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH
TOGETHER WITH ALL SUPPORTING PAPERS, IS AUTHORIZED, IF SO MODIFIED AND
IF OTHERWISE CORRECT.
B-128774, AUG. 28, 1956
TO THE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO A LETTER DATED JULY 27, 1956, FROM THE ASSISTANT
SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE
ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF NORMANDY ELECTRIC WIRE
COMPANY, BROOKLYN, NEW YORK, FOR A PARTIAL REFUND OF THE AMOUNT PAID BY
IT FOR ITEM NO. 2 UNDER CONTRACT NO. DA-066-55-91S, DATED MAY 27, 1955,
OR, IN THE ALTERNATIVE, FOR RESCISSION OF THE CONTRACT AND REFUND OF THE
PRICE PAID PLUS FREIGHT COSTS INCURRED BY THE CONTRACTOR.
UNDER DATE OF APRIL 12, 1955, WATERTOWN ARSENAL, WATERTOWN,
MASSACHUSETTS, ISSUED INVITATION FOR BIDS NO. 19-066-S-55-38 FOR THE
SALE OF SURPLUS PROPERTY, BIDS TO BE OPENED MAY 3, 1955. ITEM NO. 2 WAS
DESCRIBED IN THE INVITATION AS FOLLOWS:
TABLE
UNIT OF
QUANTITY MEASURE
CABLE, G.E. CO. SINGLE, COND. NO. 2 VARNISHED 19,609 FT.
CAMBRIC, LEAD COVERED, 600 VOLTS. 17 WOODEN
REELS, THE FOLLOWING REELS HAVE BEEN IDENTIFIED
AS NOS. 11693, 68816, 13970, 68825, 68819,
69921, 68823, 68817, 68821, 68815, 69916,
69923, 69920, 68820, NO. 10-SOLID 3/64 VC - 3/64
LEAD EST. WEIGHT 12,000 LBS., H5-8 18860 EST.
UNIT COST ?23 FT. LOC. N.E. AREA.
IN RESPONSE TO THE INVITATION, NORMANDY ELECTRIC WIRE COMPANY
SUBMITTED A BID OF $0.10373 PER FOOT ON ITEM NO. 2. OTHER BIDS RECEIVED
ON THE ITEM WERE IN THE AMOUNTS OF $0.012, $0.0121, $0.0171, $0.025,
$0.04124 AND $0.08563. THEREFORE, ON MAY 27, 1955, THE BID OF NORMANDY
ELECTRIC WIRE COMPANY WAS ACCEPTED AS THE HIGHEST BID ON ITEM NO. 2 AND
BECAME THE BASIS OF THE CONTRACT REFERRED TO. THE FILE SHOWS THAT THE
WIRE INTENDED TO BE SOLD AS ITEM NO. 2 WAS DELIVERED TO NORMANDY
ELECTRIC WIRE COMPANY, WHICH HAD MADE PAYMENT FOR THE ITEM IN THE AMOUNT
OF $2,034.04 COMPUTED AT ITS BID PRICE OF $0.10373 PER FOOT FOR 19,609
FEET, AND THAT THE WIRE WAS IN FACT NO. 10 WIRE.
THE SPACE FOR "DESCRIPTION AND LOCATION OF PROPERTY" IN THE
INVITATION CONTAINS THE FOLLOWING:
"SALE OF SERVICEABLE SURPLUS PROPERTY AS DESCRIBED ON CONTINUATION
SHEETS.
"SOLD "AS IS" F.O.B. CONVEYANCE
MATERIAL LOCATED AT N.E. AREA WATERTOWN ARSENAL, WATERTOWN, MASS.
CAUTION: INSPECT THE PROPERTY"
THERE IS NO INDICATION OR CONTENTION THAT THE CONTRACTOR INSPECTED
THE PROPERTY BEFORE SUBMITTING ITS BID. HOWEVER, BY LETTER DATED JUNE
16, 1955, IT STATED THAT NO. 19 WIRE HAD BEEN DELIVERED TO IT INSTEAD OF
NO. 2 WIRE ON WHICH ITS BID WAS BASED. IT REQUESTS A REFUND OF
$1,582.31, COMPUTED AT A PRICE OF $0.023 PER FOOT (THE ALLEGED SCRAP
VALUE) INSTEAD OF THE BID PRICE OF $0.10373 PER FOOT; OR, IN THE
ALTERNATIVE, RESCISSION OF THE CONTRACT.
PARAGRAPH 1 AND 2 OF GENERAL SALE TERMS AND CONDITIONS INCLUDED IN
THE INVITATION PROVIDE:
"INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY
TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR
INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE
GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE.
IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR
THE WITHDRAWAL OF A BID AFTER OPENING.
"CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR
SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE
GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD,
THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE
INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION,
BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION,
EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT,
SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE
OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT
OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO
CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'
IN AN UNDATED STATEMENT SIGNED BY THE CONTRACTING OFFICER IT IS
STATED:
"THE PROPERTY TURN-IN DATA INDICATES THAT THIS CABLE, ADVERTISED IN
THE CONTRACT AS ITEM 2, WAS IN FACT DESCRIBED AS "SINGLE CONDUIT, NUMBER
10.' THE INCLUSION OF BOTH "NO. 2" AND "NO. 10" AS PART OF THE
DESCRIPTION CREATED A CONTRADICTION AND APPARENTLY WAS CAUSED BY A
CLERICAL ERROR IN PREPARING THE INVITATION FOR BIDS.'
CONSEQUENTLY, IT MAY BE HELD THAT THE ERRONEOUS DESCRIPTION DID NOT
FURNISH "THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION.
CONSIDERING THIS FACT, THE AMBIGUITY OF THE DESCRIPTION, AND THE
CONSIDERABLE DIFFERENCE BETWEEN THE TWO HIGHEST BIDS AND THE OTHER FIVE,
WE CONCLUDE THAT A REFUND PROPERLY MAY BE MADE TO THE CONTRACTOR.
AS TO THE PROPER AMOUNT FOR REFUNDING, THE SUCCESSOR CONTRACTING
OFFICER IN HIS STATEMENT OF JANUARY 20, 1956, RECOMMENDS THAT AN
ADJUSTMENT BE MADE ON THE BASIS OF THE DIFFERENCE BETWEEN THE BID OF
NORMANDY ELECTRIC WIRE COMPANY ($0.10373 PER FOOT) AND THE THIRD-HIGH
BID ($0.04124 PER FOOT), SINCE THE THIRD-HIGH BIDDER IS SAID TO HAVE
INSPECTED THE PROPERTY, WHEREAS THE TWO HIGH BIDDERS APPARENTLY MADE NO
INSPECTION. IN THE CIRCUMSTANCES, THE PROPOSED BASIS FOR ADJUSTMENT IS
REGARDED AS REASONABLE AND PROPER AND WE OFFER NO OBJECTION TO SUCH
ADJUSTMENT. A REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE VOUCHER
ON WHICH THE ADJUSTMENT IS MADE.
THE PAPERS TRANSMITTED WITH THE LETTER OF JULY 27, 1956, ARE RETURNED
HEREWITH.