DIGEST:
1. THIS OFFICE WILL NOT QUESTION AGENCY DETERMINATION OF PROCUREMENT
URGENCY TO SUPPORT LIMITED 14-DAY (RATHER THAN 20-DAY) BIDDING TIME AND
CONTRACT START-UP REQUIREMENT OF 2 WEEKS WHERE SUCH DETERMINATION IS
REASONABLY SUPPORTED BY RECORD, THERE IS NO SHOWING OF DELIBERATE
ATTEMPT BY AGENCY TO EXCLUDE BIDDER, AND ADEQUATE COMPETITION AND
REASONABLE BID PRICES WERE OBTAINED. FACT THAT PROTESTER WAS APPARENTLY
UNABLE OR UNWILLING TO MAKE PREAWARD INVESTMENT NECESSARY FOR START-UP
IS NOT SUFFICIENT TO WARRANT CONCLUSION THAT SPECIFICATION IS IMPROPER.
2. WHERE DISAGREEMENT EXISTS CONCERNING TECHNICAL SPECIFICATION, WE
WILL QUESTION AGENCY'S TECHNICAL JUDGMENT ONLY UPON CLEAR SHOWING OF
UNREASONABLENESS, WHICH IS NOT PRESENT HERE WHERE AGENCY'S POSITION IS
SUPPORTED BY CURRENT REGULATORY REQUIREMENTS AND JUSTIFICATIONS FOR
SPECIFICATION.
3. IFB'S 1-YEAR CONTRACT TERM HAS NOT BEEN SHOWN TO BE UNREASONABLE
WHERE ALLEGATION CONCERNING POTENTIAL COMPETITIVE ADVANTAGE OF INCUMBENT
IN FUTURE PROCUREMENTS IS BASED ON MERE SPECULATION.
4. WHERE, WELL BEFORE BID OPENING, PROTESTER HAS VERBAL NOTICE THAT
CERTAIN SOLICITATION TERMS WILL NOT BE CHANGED, AGENCY'S FAILURE TO
PROVIDE FORMAL WRITTEN RESPONSE PRIOR TO OPENING HAS NO EFFECT ON
VALIDITY OF CONTRACT AWARD.
5. THIS OFFICE WILL NOT CONDUCT INVESTIGATIONS TO ESTABLISH WHETHER
PROTESTER'S SPECULATIVE STATEMENT THAT CONTRACT IS NOT BEING PERFORMED
IN ACCORDANCE WITH SPECIFICATIONS IS VALID. PROTESTER'S GENERAL
CONTENTION WHICH SERVES ONLY TO QUESTION ABILITY OF PROSPECTIVE BIDDERS
TO PERFORM UNDER SPECIFICATIONS AND CHALLENGES AGENCY'S EVENTUAL
DETERMINATION OF RESPONSIBILITY WILL NOT BE CONSIDERED AS THIS OFFICE
WILL NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT
CIRCUMSTANCES NOT PRESENT HERE. SIMILARLY, MATTERS OF CONTRACT
ADMINISTRATION ARE FUNCTION AND RESPONSIBILITY OF PROCURING ACTIVITY AND
ARE NOT FOR RESOLUTION UNDER BID PROTEST PROCEDURES.
AUTOMATED INFORMATIONAL RETRIEVAL SYSTEMS, INC.:
AUTOMATED INFORMATIONAL RETRIEVAL SYSTEMS, INC. (AIRS), PROTESTS THE
AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO.
DE-FB05-79OR10598, ISSUED BY THE OAK RIDGE OPERATIONS OFFICE (ORO),
DEPARTMENT OF ENERGY (DOE). THE SOLICITATION IS A REPROCUREMENT FOR THE
PRODUCTION AND SALE OF MICROFICHE AND EYE - LEGIBLE HARD COPY OF
RESEARCH AND DEVELOPMENT REPORTS WHICH ARE SOLD BY THE CONTRACTOR TO
DOE, DOE CONTRACTORS, OTHER GOVERNMENT CONTRACTORS, OTHER GOVERNMENT
AGENCIES AND OTHER CONCERNS FOR DOE HEADQUARTER'S TECHNICAL INFORMATION
CENTER (TIC). THE PREVIOUS CONTRACT COVERING THIS ACTIVITY WAS
TERMINATED FOR DEFAULT BY ORO ON DECEMBER 18, 1978.
BACKGROUND
A SYNOPSIS OF THIS REPROCUREMENT WAS PUBLISHED IN THE COMMERCE
BUSINESS DAILY (CBD) ON DECEMBER 22, 1978. IN CONJUNCTION WITH THE CBD
NOTICE, ORO MAILED THE IFB TO ALL POTENTIAL BIDDERS ON THE ORO MAILING
LIST. APPROXIMATELY 14 INQUIRES WERE RECEIVED. AT THE TIME OF THE CBD
NOTICE IT HAD NOT BEEN DETERMINED THAT THE PROCUREMENT WOULD BE SET
ASIDE FOR SMALL BUSINESS. AS A RESULT, SOME OF THE INQUIRIES WERE FROM
LARGE BUSINESS FIRMS. AT LEAST FOUR KNOWN SMALL BUSINESS FIRMS
RESPONDED TO THE CBD SYNOPSIS IN ADDITION TO THE KNOWN SMALL BUSINESSES
ALREADY ON THE ORO BIDDERS MAILING LIST.
THE IFB WAS ISSUED AS A SMALL BUSINESS SET-ASIDE ON JANUARY 3, 1979,
WITH BID OPENING SET FOR JANUARY 17, 1979. DUE TO THE LIMITED 14-DAY
BIDDING TIME, THE IFB WAS MAILED BY EXPRESS MAIL OR AIR FREIGHT TO
ASSURE PROMPT DELIVERY TO THOSE POTENTIAL BIDDERS ON THE ORO BIDDERS
MAILING LIST AND THOSE FIRMS WHICH HAD RESPONDED TO THE CBD SYNOPSIS.
ON JANUARY 11, 1979, AMENDMENT NO. 001 TO THE IFB WAS ISSUED, WHICH
CLARIFIED ONE SPECIFICATION AND RELAXED (REDUCED) ANOTHER SPECIFIED
REQUIREMENT. ON JANUARY 17, 1979, FOUR BIDS WERE OPENED. THERE WERE NO
EXCEPTIONS TAKEN TO THE SPECIFICATIONS, TERMS, AND CONDITIONS OF THE IFB
BY ANY OF THE BIDDERS. THE CONTRACT AWARD WAS MADE TO THE SECOND LOW
BIDDER FOLLOWING A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION
THAT THE LOW BIDDER WAS OTHER THAN A SMALL BUSINESS CONCERN, AND WAS
THEREFORE NOT ELIGIBLE FOR THE CONTRACT AWARD.
THE AIRS PROTEST
AIRS SEEKS TO HAVE THE CONTRACT AWARD SET ASIDE AND THE REQUIREMENT
RESOLICITED BECAUSE IT WAS UNFAIRLY PRECLUDED FROM BIDDING ON THE IFB,
WHICH ITSELF WAS OVERLY RESTRICTIVE AND ILLEGAL. AIRS HAS ALLEGED THAT:
(1) THE 14-DAY BIDDING TIME "PROHIBITED ANY SMALL BUSINESS FROM A
RATIONAL OR PROFESSIONAL PRESENTATION," (2) THE CONTRACT START-UP TIME
OF 2 WEEKS IS TOTALLY IMPOSSIBLE IN TERMS OF ACHIEVING A "QUALITY
OPERATION," AND ALMOST SHOWS A FORM OF FAVORITISM IN THE AWARD OF THE
CONTRACT, (3) THE SPECIFICATIONS AS RELATED TO DENSITY REQUIREMENTS "ARE
NOT AN ACHIEVABLE RESULT FOR QUALITY," (4) THE CONTRACT TERM OF 1-YEAR
"WOULD GIVE A POTENTIAL NEW BIDDER AN EXTREME ADVANTAGE IN ANY FURTHER
PROCUREMENT ACTION," AND (5) DOE DID NOT FORMALLY RESPOND IN A TIMELY
FASHION TO QUESTIONS RAISED BY THE PROTESTER PRIOR TO BID OPENING
BIDDING TIME AND CONTRACT START-UP TIME
THE REPORT PROVIDED BY ORO STATES THAT:
"THE BIDDING TIME OF 14 DAYS AND THE CONTRACT START-UP TIME OF (2)
TWO WEEKS WAS NECESSARY BECAUSE OF THE URGENT REQUIREMENT FOR A CONTRACT
TO BE PLACED IN VIEW OF THE TERMINATION FOR DEFAULT OF THE PREVIOUS
CONTRACTOR. THE PREVIOUS CONTRACT WAS TERMINATED ON DECEMBER 18, 1978,
BUT ESSENTIALLY PRODUCTION OF NEW MICROFICHE HAD CEASED SINCE THE LATTER
PART OF NOVEMBER. *** THE IFB ALLOWED A BIDDING TIME OF 14 DAYS WHICH
IS LESS THAN THE 20 DAY BIDDING TIME GENERALLY PRESCRIBED IN FPR SEC.
1-2.202-1(C). HOWEVER, EPR SEC. 1-2.201-1(C) STATED THAT 'THIS RULE
NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES OR WHERE THE URGENCY OF
THE NEED FOR THE SUPPLIES OR SERVICES DO NOT PERMIT SUCH DELAY.' ***
THERE WAS ADEQUATE RESPONSE FROM THE SYNOPSIS THAT INDICATED THAT THERE
WOULD BE A SUFFICIENT NUMBER OF SMALL BUSINESS FIRMS WHO WERE INTERESTED
IN THE PROCUREMENT, WHO KNEW OF THE SHORTENED START-UP TIME, I.E.,
ADEQUATE SMALL BUSINESS COMPETITION WAS ANTICIPATED. IT IS RECOGNIZED
THAT THE CONTRACT START-UP TIME REQUIRES THAT FIRMS WHO SUBMITTED BIDS
HAVE RESOURCES (EQUIPMENT, PERSONNEL, FINANCING, ETC.) AVAILABLE TO MEET
DOE'S REQUIREMENTS, BUT THERE WAS NO FAVORITISM NOR IS IT DEMONSTRATED
WHEN SUFFICIENT COMPETITION IS GENERATED ON A VALID GOVERNMENT
REQUIREMENT. IN SUMMARY, THE CONTRACT BIDDING TIME AND START-UP TIME
WAS NECESSARY DUE TO A VALID, URGENT REQUIREMENT OF THE DOE TECHNICAL
INFORMATION CENTER."
IN VIEW OF THE TERMINATION FOR DEFAULT BY THE PREVIOUS CONTRACTOR
WHICH BROUGHT PRODUCTION OF THE REQUIRED MATERIALS TO A COMPLETE HALT
AND THE CONSEQUENTIAL BACK-ORDERING OF NEW REQUESTS, WE BELIEVE THAT THE
CONTRACTING OFFICER'S DECISION TO LIMIT BID PREPARATION TIME DUE TO
URGENCY WAS REASONABLE UNDER THE CIRCUMSTANCES. FURTHER, WHERE, AS IN
THE PRESENT CASE, THE METHOD OF SOLICITATION IN FACT PROVIDED ADEQUATE
COMPETITION AND REASONABLE BID PRICES, WE HAVE HELD THAT THE FAILURE TO
SOLICIT A PARTICULAR BIDDER, OR THE FAILURE TO SOLICIT HIM IN TIME FOR
HIM TO SUBMIT A TIMELY BID, DOES NOT, ABSENT A SHOWING OF A DELIBERATE
INTENT TO EXCLUDE THE BIDDER - NOT PRESENT HERE - AFFORD A SUFFICIENT
BASIS TO CANCEL THE SOLICITATION OR QUESTION AN OTHERWISE PROPER AWARD.
SEE, MULTI-SERVICE MAINTENANCE CORPORATION, B-187372, B-188030, MAY 20,
1977, 77-1 CPD 353; ROBERT YARNALL RICHIE PRODUCTIONS, B-192261,
SEPTEMBER 18, 1978, 78-2 CPD 207. AIRS HAS PRESENTED NO TANGIBLE
EVIDENCE REBUTTING THESE CONSIDERATIONS AND HAS NOT SUSTAINED THE BURDEN
ON IT OF AFFIRMATIVELY PROVING ITS CASE. RELIABLE MAINTENANCE SERVICE,
INC. - REQUEST FOR RECONSIDERATION, B-185103, MAY 24, 1976, 76-1 CPD
337.
SIMILAR CONSIDERATIONS JUSTIFY THE REASONABLENESS OF THE 2-WEEK
CONTRACT START-UP TIME. WHILE THE PROTESTER WAS APPARENTLY UNWILLING OR
UNABLE TO MAKE THE TYPE OF PREAWARD INVESTMENT IT FELT WOULD BE REQUIRED
TO MEET THE 2-WEEK START-UP SPECIFICATION, THAT ALONE DOES NOT ESTABLISH
THAT THE REQUIREMENT IS IMPROPER. EVALUATION OF THE REQUIREMENT FOR
CONTRACT START-UP NECESSARILY INVOLVES A CERTAIN RISK ATTENDS ALL
BIDDERS AND WHICH THEY CAN ESTIMATE AND PROVIDE FOR IN ARRIVING AT BID
PRICES. IN THIS REGARD, WE HAVE UPHELD THE PROPRIETY OF REQUIRING
BIDDERS TO ESTIMATE THE COST OF CONTRACT COMPLIANCE AND TO BEAR THE
RISKS WHICH ACCOMPANY SUCH COMPLIANCE. RONALD CAMPBELL COMPANY,
B-190837, APRIL 24, 1978, 78-1 CPD 313; THE ELLIS COMPANY, B-189390,
B-189937, JANUARY 27, 1978, 78-1 CPD 70. COMPARE THIS RESULT WITH OUR
DECISION IN INFORMATICS, INC., B-190203, MARCH 20, 1978, 78-1 CPD 215,
WHERE WE HELD A 2-MONTH START-UP TIME LIMITATION UNDULY RESTRICTIVE IN
PART BECAUSE THERE WAS NO NEED TO HAVE THE NEXT CONTRACTOR BEGIN
IMMEDIATELY AT FULL PRODUCTION AND SOME OVERLAP BETWEEN THE NEW
CONTRACTOR AND THE INCUMBENT WAS NECESSARY.
WE FIND THAT THE PROTESTER'S CONTENTIONS CONCERNING BID PREPARATION
TIME AND CONTRACT START-UP TIME ARE WITHOUT MERIT.
DENSITY REQUIREMENTS
THE AGENCY REPORT STATES AS FOLLOWS:
"THE DENSITY REQUIREMENT SPECIFIED IN PARAGRAPH 6.A.10 AND THE FOURTH
LINE OF PARAGRAPH 6.B., PAGE 22, OF THE IFB WERE STATED AS 'LINE DENSITY
SHALL BE .1 + - 0.01 AND BACKGROUND DENSITY SHALL BE 1 8 + - 5.'
AMENDMENT NUMBER 001 TO THE SOLICITATION CHANGED THE DENSITY
REQUIREMENTS TO 'LINE DENSITY SHALL BE NO GREATER THAN 0.12 AND
BACKGROUND DENSITY SHALL BE 1.8 + _ 0.5.' THE CHANGE IN THE LINE DENSITY
WAS MADE AT THE REQUEST OF THE DOE-TIC WHEN IT WAS REALIZED AFTER THE
SOLICITATION WAS ISSUED THAT THE LINE DENSITY WAS UNNECESSARILY SEVERE
BECAUSE OF THE CLOSE TOLERANCE AND THAT THE MEASURABLE DENSITY CLOSEST
TO 0.00 IS THE MOST DESIRABLE RESULT. TIC CONTACTED THE NATIONAL
MICROGRAPHICS ASSOCIATION (NMA), A GENERALLY RECOGNIZED ASSOCIATION FOR
MICROGRAPHIC INDUSTRY STANDARDS, WHO STATED THAT THE STANDARD FOR
BACKGROUND DENSITY IN NMA STANDARD 104-1972 WAS IN THE PROCESS OF BEING
CHANGED TO 1.3 - 1.5 FROM 1.1 - 0.1 AS CURRENTLY STATED IN THE NMA
STANDARD. THE NMA STANDARD FOR THE LINE DENSITY (CALLED D-MIN IN THE
NMA STANDARD) IS 'NO GREATER THAN 0.10.' TIC ALSO CONTACTED PERSONNEL AT
DOE HEADQUARTERS FULLY EXPERIENCED IN MICROGRAPHICS WHO STATED THAT THE
BASE DENSITY (CALLED LINE DENSITY IN THE IFB) STATED AS 'NO GREATER THAN
.12' PRODUCES ACCEPTABLE RESULTS AND THAT THE BACKGROUND DENSITY SHOULD
BE 1.3 - 1.5. THE REVISED IFB SPECIFICATION REQUIREMENT OF A LINE
DENSITY OF NO GREATER THAN 0.12 IS A RELAXED REQUIREMENT FROM THAT
SPECIFIED IN THE NMA STANDARD. THE BACKGROUND DENSITY OF 1.8 + 0.5 (1.3
- 2.3) REQUIRED BY THE IFB, EXCEEDS THE [ANGE RECOMMENDED BY THE NMA AND
EVEN THOUGH IT REPRESENTS A RELAXED STANDARD, PRODUCES ACCEPTABLE
RESULTS, AS HAS BEEN DEMONSTRATED BY THE PREVIOUS MICROFICHE CONTRACTOR.
THE REASONABLENESS OF THE SPECIFICATION WAS FURTHER SUBSTANTIATED BY
THE FACT THAT FOUR (4) FIRMS (EXPERIENCED IN MICROGRAPHICS) BID ON THE
SPECIFICATIONS AS STATED IN THE IFB AND TOOK NO EXCEPTIONS TO THEM,
THEREBY AGREEING TO PRODUCE MICROFICHE AT THE GIVEN DENSITY
REQUIREMENTS. ***"
AIRS HAS ATTEMPTED TO REBUT THE AGENCY BASED ON DISAGREEMENT WITH THE
SOURCES OF TECHNICAL ADVICE, ALLEGING THAT ONE SOURCE WAS MISQUOTED, AND
ALLUDING GENERALLY TO GOVERNMENT FAULT IN THE PRIOR CONTRACTOR'S
DEFAULT.
WE WILL NOT QUESTION AN AGENCY'S DETERMINATION OF WHAT ITS ACTUAL
MINIMUM NEEDS ARE UNLESS THERE IS A CLEAR SHOWING THAT THE DETERMINATION
HAS NO REASONABLE BASIS. SEE MOORE BUSINESS FORMS, INC., B-191963,
AUGUST 24, 1978, 78-2 CPD 142. WHERE, AS HERE, THERE IS DISAGREEMENT
BETWEEN THE PROTESTER AND THE PROCURING AGENCY CONCERNING A TECHNICAL
SPECIFICATION, WE DO NOT BELIEVE IT IS APPROPRIATE FOR THIS OFFICE TO
QUESTION THE AGENCY'S TECHNICAL JUDGMENT UNLESS THERE IS A CLEAR SHOWING
OF UNREASONABLENESS.
THE PROTESTER'S COMMENTS ON THE AGENCY'S REPORT STATED THAT THE
DENSITY SPECIFICATION WAS "TOTALLY OUT OF LINE" WITH CONTROLLING
REGULATIONS CITING THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR),
PART 101-11-RECORDS MANAGEMENT, 44 FED. REG. 15,715 (1979) (TO BE
CODIFIED IN 41 C.F.R. SEC. 101.11 ET SEQ.). AT THE OUTSET WE POINT OUT
THAT THIS REGULATION TOOK EFFECT ON MARCH 15, 1979, AND IS NOT
APPLICABLE TO THE CONTRACT AWARD IN THIS CASE ON JANUARY 17, 1979.
HOWEVER, WE BELIEVE THAT THE AGENCY HAS COMPLIED WITH THE REGULATORY
REQUIREMENT WHICH LENDS SUBSTANTIAL WEIGHT TO ITS POSITION.
IN THIS REGARD, THE "SUPPLEMENTARY INFORMATION" INTRODUCING THE
REGULATORY PROVISIONS AT 44 FED. REG. 15,716 (1979) STATES THAT:
"THE TECHNICAL STANDARDS ADOPTED ARE BASED ON STANDARDS ALREADY IN
FORCE IN SOME AGENCIES OR ON AVAILABLE INDUSTRY STANDARDS WHICH ARE
WITHIN THE CAPABILITIES OF MICROGRAPHICS TECHNOLOGY.
"THE DENSITY RANGES SPECIFIED IN SEC. 101-11.506-3(E)(2) HAVE BEEN
CHANGED FROM A REQUIREMENT TO A RECOMMENDED DENSITY RANGE. THEY PROVIDE
GUIDELINES FOR FEDERAL AGENCIES AND ARE APPROPRIATE FOR THE TYPES OF
DOCUMENTS SPECIFIED. THE PARAGRAPH WAS CHANGED TO ALLOW FLEXIBILITY
WHERE PECULIAR DOCUMENT CHARACTERISTICS OR SYSTEMS CONSIDERATIONS MAY
REQUIRE IT."
AS THE SPECIFICATION WITH REGARD TO DENSITY REQUIREMENTS ESTABLISHED
BY THE AGENCY COMPLIES WITH THE REGULATION, AND INSOFAR AS THE
RECOMMENDED RANGES IN THE REGULATION ARE DEFINED AS GUIDELINES AND NOT
COMPULSORY CONFORMANCE REQUIREMENTS, OUR REVIEW OF THIS STANDARD DOES
NOT SUPPORT THE PROTESTER'S ALLEGATION. ON THE BASIS OF THE WRITTEN
RECORD, ESPECIALLY IN VIEW OF THE AGENCY'S ANALYSIS OF THE QUALIFYING
CRITERIA USED IN ESTABLISHING THE SPECIFICATION IN REGARD TO DENSITY
REQUIREMENTS, WE FIND NO EVIDENCE TO SUPPORT ANY ALLEGATION THAT THE
AGENCY'S EVALUATION AND CONCLUSION IN ESTABLISHING THE SPECIFICATION WAS
UNREASONABLE.
THE CONTRACT TERM
IN RESPONSE TO AIRS' ALLEGATIONS OF POTENTIAL FAVORITISM, AND THE
SPECIFIC CONTENTION THAT THE CONTRACT TERM OF 1 YEAR "WOULD GIVE A
POTENTIAL NEW BIDDER AN EXTREME ADVANTAGE IN ANY FURTHER PROCUREMENT
ACTION," THE ORO REPORT STATES AS FOLLOWS:
"THE PREVIOUS CONTRACT TERM FOR THIS PROCUREMENT WAS THREE (3) YEARS
(ALTHOUGH SHORTENED BY THE TERMINATION FOR DEFAULT TO FOURTEEN (14)
MONTHS), AND WAS SHORTENED TO ONE YEAR AT THE REQUEST OF TIC TO ALLOW
TIME FOR CONSIDERATION OF POSSIBLE SIGNIFICANT CONTRACT REVISIONS IN THE
NEXT CONTRACT PERIOD SUCH AS USE OF DIAZO RATHER THAN SILVER DUPLICATE
MICROFICHE WHICH WOULD PROBABLY INCREASE THE NUMBER OF FIRMS INTERESTED
IN COMPETING FOR THE CONTRACT PLUS SEVERAL OTHER LESS SIGNIFICANT
TECHNICAL CHANGES. ***"
IN OUR DECISION IN BOSTON PNEUMATICS, INC., B-188275, JUNE 9, 1977,
77-1 CPD 416, WE NOTED THAT:
"*** CERTAIN FIRMS MAY ENJOY A COMPETITIVE ADVANTAGE BY VIRTUE OF
THEIR INCUMBENCY OR THEIR OWN PARTICULAR CIRCUMSTANCES. *** WE KNOW OF
NO REQUIREMENT FOR EQUALIZING COMPETITION BY TAKING INTO CONSIDERATION
THESE TYPES OF ADVANTAGES, NOR DO WE KNOW OF ANY POSSIBLE WAY IN WHICH
SUCH EQUALIZATION COULD BE EFFECTED. *** RATHER, THE TEST TO BE APPLIED
IS WHETHER THE COMPETITIVE ADVANTAGE ENJOYED BY A PARTICULAR FIRM WOULD
BE THE RESULT OF A PREFERENCE OR UNFAIR ACTION BY THE GOVERNMENT."
IT SEEMS CLEAR THAT THE ALLEGED ADVANTAGE, IF A REALITY, WOULD EXIST
REGARDLESS OF WHETHER THE CONTRACT TERM WAS 1 YEAR OR 3 YEARS. IN ANY
EVENT, WE FIND NOTHING ARBITRARY OR UNREASONABLE IN THE AGENCY'S
SELECTION OF THE CONTRACT TERM, NOR DO WE FEEL THAT THE AGENCY'S ACTION
WAS DESIGNED TO RESTRICT COMPETITION IN ANY WAY. ON THE CONTRARY, THE
AGENCY APPARENTLY IS ATTEMPTING TO EXPAND FUTURE COMPETITION. IN THE
ABSENCE OF ANY AFFIRMATIVE EVIDENCE, THE PROTESTER'S ALLEGATION IS
PROPERLY REGARDED AS MERE SPECULATION.
TIMELY NOTICE
THE AGENCY REPORT ACKNOWLEDGES THAT A FORMAL WRITTEN RESPONSE TO
AIRS' QUESTIONS PRIOR TO BID OPENING WAS NOT PROVIDED. HOWEVER, THE
AGENCY CONTENDS THAT AIRS RECEIVED NOTICE IN REGARD TO THE DISPOSITION
OF ITS QUESTIONS, AND THAT THIS NOTICE WAS AS TIMELY AS POSSIBLE UNDER
THE CIRCUMSTANCES. THE ORO REPORT STATES:
"*** ALTHOUGH A WRITTEN REPLY WAS NOT MADE TO *** (AIRS') LETTER OF
JANUARY 8, 1979, IT WAS ORALLY INFORMED (BY THE CONTRACTING OFFICER) ON
JANUARY 5, 1979, THAT THE TIME REQUIREMENTS IN THE CONTRACT COULD NOT BE
CHANGED, AND ON JANUARY 17, 1979 (THE DAY AFTER HE FIRST MENTIONED THE
DENSITY REQUIREMENTS) THAT THE SPECIFICATIONS WERE CONSIDERED REASONABLE
AS REVISED AND THAT THE TIME REQUIREMENTS WERE NECESSARY TO FULFILL THE
GOVERNMENT'S ACTUAL NEEDS."
WHERE AIRS FIRST RAISED THE FOR DENSITY REQUIREMENTS ISSUE BY
TELEPHONE 1 DAY BEFORE BID OPENING, IT FAILED TO COMPLY WITH THE
PROVISIONS OF PARAGRAPH (3) OF THE INSTRUCTIONS AND CONDITIONS CONTAINED
OF THE SOLICITATION, WHICH REQUIRED AS FOLLOWS:
"EXPLANATION TO OFFERORS. ANY EXPLANATION DESIRED BY AN OFFEROR
REGARDING THE MEANING OR INTERPRETATION OF THE SOLICITATION, DRAWINGS,
SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT
TIME ALLOWED FOR A REPLY TO REACH OFFERORS BEFORE THE SUBMISSION OF
THEIR OFFERS. ***"
IN VIEW OF THESE INSTRUCTIONS, ANY CHALLENGE AS TO THE FAIRNESS OR
FORM OF THE RESPONSE IS UNFOUNDED. MOREOVER, THE AGENCY'S VERBAL
RESPONSE ON THE ISSUE OF DENSITY REQUIREMENTS ON JANUARY 17, 1979, WAS
REASONABLE UNDER THE CIRCUMSTANCES.
AIRS' LETTER OF JANUARY 8, 1979, APPEALED TO THE "BETTER JUDGMENT" OF
THE ORO, DIRECTOR OF PROCUREMENT AS TO THE ISSUES OF BIDDING TIME,
CONTRACT START-UP TIME, AND THE CONTRACT TERM. HOWEVER, AIRS HAD BEEN
INFORMED BY THE CONTRACTING OFFICER ON JANUARY 5, 1979, THAT THE
REPROCUREMENT WAS URGENT AND THAT THE TERMS AND CONDITIONS WOULD NOT BE
CHANGED. AIRS WAS AGAIN NOTIFIED OF THE DETERMINED NECESSITY OF THE
TIME REQUIREMENTS BY TELEPHONE ON JANUARY 17, 1979. AIRS' OBJECTION IS
DIRECTED TO THE FORM AS OPPOSED TO THE SUBSTANCE OF THAT NOTICE. WE
CONCLUDE THAT ORO'S FAILURE TO PROVIDE A FORMAL WRITTEN RESPONSE TO
AIRS' LETTER OF JANUARY 8, 1979, HAD NO EFFECT THE VALIDITY OF THE
AWARD.
CONCLUSION
WHILE THE PROTEST RAISED THE ABOVE ALLEGATIONS INDIVIDUALLY, AIRS
CONTENDS GENERALLY THAT ANY BIDDER WHICH USED THE PROTESTED
SPECIFICATIONS WITHOUT QUESTION (AS FOUR DID) MUST NOT UNDERSTAND THOSE
SPECIFICATIONS, AND THEREFORE COULD NOT PERFORM THE CONTRACT IN
ACCORDANCE WITH THESE SPECIFICATIONS. AIRS URGES THAT AN INVESTIGATION
INTO THE AWARDEE'S PERFORMANCE WOULD REVEAL THAT THE SPECIFICATIONS ARE
NOT BEING ACHIEVED IN COMPLIANCE WITH THE CONTRACT TERMS.
AS WE STATED IN BOWMAN ENTERPRISES, INC., B-194015, FEBRUARY 16,
1979, 79-1 CPD 121, IT IS NOT THE PRACTICE OF THIS OFFICE TO CONDUCT
INVESTIGATIONS TO ESTABLISH WHETHER A PROTESTER'S SPECULATIVE STATEMENTS
ARE VALID. RATHER, THE PROTESTER HAS THE AFFIRMATIVE BURDEN TO PROVE
ITS CASE. SEE M & H MFG. CO., INC., B-191950, AUGUST 18, 1978, 78-2 CPD
129. THIS GENERAL CONTENTION SERVES ONLY TO QUESTION THE ABILITY OF
PROSPECTIVE BIDDERS TO PERFORM THIS CONTRACT AND CHALLENGES THE AGENCY'S
EVENTUAL AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. THIS WILL NOT BE
CONSIDERED SINCE THIS OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS
OF RESPONSIBILITY UNLESS THERE IS AN ALLEGATION OF FRAUD ON THE PART OF
PROCURING OFFICIALS, OR THE SOLICITATION CONTAINS DEFINITIVE
RESPONSIBILITY CRITERIA WHICH HAVE NOT BEEN APPLIED. COLUMBIA
LOOSE-LEAF CORPORATION, B-193659, JANUARY 23, 1979, 79-1 CPD 45;
CENTRAL METAL PRODUCTS, INC., 54 COMP. GEN. 66 (1974), 74-2 CPD 64.
NEITHER EXCEPTION IS RELEVANT IN THE PRESENT CASE.
FURTHERMORE, WHETHER THE CONTRACT IS BEING PERFORMED IN ACCORDANCE
WITH THE SPECIFICATIONS IS A MATTERS OF CONTRACT ADMINISTRATION. OUR
POLICY IS THAT CONTRACT ADMINISTRATION IS THE FUNCTION AND
RESPONSIBILITY OF THE PROCURING ACTIVITY AND MATTERS RELATING THERETO
ARE NOT FOR RESOLUTION UNDER OUR BID PROTEST PROCEDURES, 4 C. F. R. PART
20 (1978). SMI (WATERTOWN), INC., B^188174, FEBRUARY 8, 1977, 77-1 CPD
98; VIRGINIA-MARYLAND ASSOCIATES, INC., B-192031, JULY 19, 1978, 78-2
CPD 51.
THE PROTEST IS DENIED.
B-194032, JUN 19, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
TWO NEW APPOINTEES WERE ADVISED THAT EXPENSES OF MOVING TO THEIR
FIRST DUTY STATION WOULD BE REIMBURSABLE, APPARENTLY ON THE ASSUMPTION
THAT THEY WERE "MANPOWER SHORTAGE" APPOINTEES, WHICH THEY WERE NOT.
THERE IS NO AUTHORITY FOR REIMBURSEMENT OF THE MOVING EXPENSES OF
NON-SHORTAGE CATEGORY NEW APPOINTEES TO THEIR FIRST DUTY STATION IN THE
CONTINENTAL UNITED STATES, THEREFORE REIMBURSEMENT IS NOT PROPER. THE
FACT THAT THE EMPLOYEES RELIED ON THE ERRONEOUS REPRESENTATIVES OF
AGENCY EMPLOYEES IN ACCEPTING THEIR POSITIONS DOES NOT INCREASE
GOVERNMENT'S LIABILITY, SINCE THE GOVERNMENT CANNOT BE BOUND BY THE ACTS
OF ITS EMPLOYEES THAT EXCEED THEIR ACTUAL AUTHORITY.
STEPHEN C. EHRMANN AND ROBERT FULLILOVE - RELOCATION EXPENSES - NEW
APPOINTEES:
THE ISSUE PRESENTED HERE IS WHETHER TWO NEWLY APPOINTED EMPLOYEES MAY
BE REIMBURSED FOR EXPENSES INCURRED IN RELOCATING TO THEIR FIRST DUTY
STATION WHEN THEY AFFIRMATIVELY RELIED ON THE PROMISED REIMBURSEMENT IN
ACCEPTING THE APPOINTMENTS. FOR THE REASONS SET FORTH BELOW, WE HOLD
THAT REIMBURSEMENT IS NOT PROPER.
BY LETTER OF JANUARY 24, 1979, THE DIRECTOR, FINANCE DIVISION, OFFICE
OF EDUCATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, REQUESTED AN
ADVANCE DECISION ON THE REIMBURSEMENT OF RELOCATION EXPENSES FOR MR.
STEPHEN C. EHRMANN AND MR. ROBERT FULLILOVE. BOTH MEN WERE HIRED FOR
LIMITED TERM APPOINTMENTS (EITHER 1 OR 2 YEARS, THE RECORD IS NOT
CLEAR), AS PROGRAM OFFICERS WORKING FOR THE FUND FOR THE IMPROVEMENT OF
POSTSECONDARY EDUCATION (FUND). BOTH WERE APPARENTLY HIRED AT THE GRADE
GS-12 LEVEL IN THE GS-1720, EDUCATION OFFICER OR EDUCATION SPECIALIST,
CLASSIFICATION SERIES.
ONE OF THE APPOINTEES REQUESTED THAT HE BE REIMBURSED FOR HIS MOVING
EXPENSES. INQUIRIES WERE MADE BY THE FUND TO DETERMINE IF REIMBURSEMENT
COULD BE AUTHORIZED. APPARENTLY THE ASSUMPTION WAS MADE THAT THE
APPOINTEES INVOLVED WERE "MANPOWER SHORTAGE" CATEGORY EMPLOYEES. BASED
UPON INFORMATION RECEIVED FROM THE FINANCE OFFICE WITHIN THE OFFICE OF
THE ASSISTANT SECRETARY FOR EDUCATION, IT WAS DECIDED BY THE FUND THAT
REIMBURSEMENT WAS AUTHORIZED. ACCORDING TO THE RECORD, BOTH EMPLOYEES
RELIED UPON THE REPRESENTATION THAT THEY WOULD BE REIMBURSED FOR THEIR
RELOCATION EXPENSES WHEN THEY OCCUPIED THEIR JOBS. AFTER THE TWO
EMPLOYEES WERE APPOINTED AND MOVED TO WASHINGTON, D. C., THE FUND WAS
ADVISED THAT REIMBURSEMENT WAS NOT PROPER.
UNDER 5 U.S.C. 5723(A) (1976) A NEW APPOINTEE WHO IS HIRED FOR A
POSITION WITHIN THE CONTINENTAL UNITED STATES MAY BE REIMBURSED FOR
SPECIFIED EXPENSES INCURRED IN MOVING TO HIS FIRST DUTY STATION IF THE
OFFICE OF PERSONNEL MANAGEMENT (FORMERLY THE CIVIL SERVICE COMMISSION)
DETERMINES THAT A MANPOWER SHORTAGE FOR EMPLOYEES IN THAT CLASSIFICATION
SERIES, GRADE LEVEL, AND GEOGRAPHIC AREA EXISTS. APPENDIX A TO CHAPTER
571 OF THE FEDERAL PERSONNEL MANUAL CONTAINS A LISTING OF THE MANPOWER
SHORTAGE POSITIONS AS DETERMINED BY THE OFFICE OF PERSONNEL MANAGEMENT
(OPM). FOR POSITIONS IN THE GS-1720 CLASSIFICATION SERIES, TWO GROUPS
OF POSITIONS ARE LISTED AS MANPOWER SHORTAGE POSITIONS. IN BOTH CASES
THE GEOGRAPHIC LIMITATION IS TO THE WASHINGTON, D. C. STANDARD
METROPOLITAN STATISTICAL AREA. AT THE GRADES GS-12 TO 15 LEVELS, THE
MANPOWER SHORTAGE CATEGORIZATION IS LIMITED TO "EDUCATION OFFICER OR
EDUCATION SPECIALIST (LIMITED TO THOSE POSITIONS IN EDUCATION OF THE
HANDICAPPED)", AND AT THE GRADES GS-16 TO 18 LEVELS, TO "EDUCATION
PROGRAM ADMINISTRATORS (VARIOUS TITLES), OFFICE OF EDUCATION HEW".
WE HAVE CONSISTENTLY HELD THAT THERE IS NO AUTHORITY TO REIMBURSE A
NEW EMPLOYEE FOR THE EXPENSES OF MOVING TO HIS FIRST DUTY STATION WITHIN
THE CONTINENTAL UNITED STATES UNLESS HE IS BEING APPOINTED TO A MANPOWER
SHORTAGE POSITION. MATTER OF HAROLD C. CALVERT, B-188095, SEPTEMBER
28, 1977, AND MATTER OF JAMES PAKIS, B-193616, FEBRUARY 14, 1979. SINCE
NEITHER OF THE APPOINTEES IN THE INSTANT CASE WAS APPOINTED TO A
MANPOWER SHORTAGE POSITION, THERE IS NO AUTHORITY FOR REIMBURSING THEM
FOR THE EXPENSES OF MOVING TO THEIR FIRST DUTY STATION.
IN CONTENDING THAT THE FUND SHOULD BE PERMITTED TO REIMBURSE THE
EMPLOYEES FOR THEIR RELOCATION EXPENSES, THE FUND FIRST EMPHASIZES THAT
THE EMPLOYEES WERE HIRED UNDER THE AUTHORITY GRANTED TO IT BY 20 U.S.C.
1221D(D) (1976) TO HIRE UP TO FIVE INDIVIDUALS IN TECHNICAL POSITIONS
FOR TERMS NOT TO EXCEED 3 YEARS WITHOUT REGARD TO THE PROVISIONS OF
CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5 OF THE UNITED
STATES CODE. THE FUND ALSO MENTIONS THAT ANOTHER EMPLOYEE WHO WAS HIRED
TO FILL A POSITION CLASSIFIED AT GRADE GS-1720-16 IN 1973 WAS AUTHORIZED
REIMBURSEMENT OF RELOCATION EXPENSES. FINALLY, THE FUND NOTES THAT
INDIVIDUALS EMPLOYED UNDER THE PROVISIONS OF THE INTERGOVERNMENTAL
PERSONNEL ACT (IPA), 5 U.S.C. 3371 ET SEQ., MAY BE AUTHORIZED
REIMBURSEMENT OF RELOCATION EXPENSES. WE WILL CONSIDER EACH OF THESE
POINTS IN TURN.
IT IS TRUE THAT THE EMPLOYEES INVOLVED HERE WERE HIRED UNDER
AUTHORITY EXEMPTING THEIR APPOINTMENTS FROM CERTAIN PROVISIONS OF TITLE
5 OF THE UNITED STATES CODE, BUT THAT EXEMPTION DOES NOT, BY ITS OWN
TERMS, EXTEND TO REIMBURSEMENT OF TRAVEL, TRANSPORTATION AND RELOCATION
EXPENSES. THERE IS NOTHING IN THE FUND'S AUTHORIZING LEGISLATION THAT
EXEMPTS THESE EMPLOYEES FROM THE COVERAGE OF THE RELOCATION EXPENSE
REIMBURSEMENT PROVISIONS OF TITLE 5. THE FACT THAT THESE EMPLOYEES MAY
HAVE BEEN HIRED UNDER AUTHORITY EXEMPTING THEM FROM THE CERTAIN
PROVISIONS OF TITLE 5 HAS NO BEARING ON WHETHER THEY ARE EXEMPTED FROM
ANY OTHER PROVISIONS OF TITLE 5 AND IS NOT RELEVANT TO THIS DECISION.
REIMBURSEMENT OF THE GS-1720-16 EMPLOYEE'S RELOCATION EXPENSES IN
1973 WOULD APPEAR TO HAVE BEEN PROPER, SINCE THE POSITION, AS IT IS
DESCRIBED IN THE SUBMISSION, WAS THEN DESIGNATED A MANPOWER SHORTAGE
POSITION BY THE CIVIL SERVICE COMMISSION. IT MUST ALSO BE NOTED THAT
INDIVIDUALS APPOINTED UNDER THE IPA ARE SPECIFICALLY AUTHORIZED TO HAVE
CERTAIN RELOCATION EXPENSES REIMBURSED BY 5 U.S.C. 3575 (1976). NO
PARALLEL AUTHORITY EXISTS FOR APPOINTMENTS BY THE FUND, EVEN TO EXEMPT
POSITIONS.
FINALLY, EVEN THOUGH TRAVEL ORDERS WERE ISSUED AUTHORIZING
REIMBURSEMENT OF RELOCATION EXPENSES AND THE EMPLOYEES RELIED ON THE
REPRESENTATIONS OF THE FUND THAT THEY WOULD BE REIMBURSED, SUCH
REIMBURSEMENT IS NOT AUTHORIZED. THE GOVERNMENT CANNOT BE BOUND BY ACTS
OF ITS AGENTS THAT EXCEED THEIR ACTUAL AUTHORITY AS EXPRESSED IN THE
STATUTES AND REGULATIONS. SEE 54 COMP. GEN. 747 (1975) AND CASES CITED
THEREIN.
ACCORDINGLY, FOR THE REASONS SET OUT ABOVE, THERE MAY BE NO
REIMBURSEMENT OF THE RELOCATION EXPENSES INCURRED BY MR. EHRMANN AND MR.
FULLILOVE IN REPORTING TO THEIR FIRST DUTY STATION.
B-194128, JUN 19, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. AS MANDATORY USER OF FEDERAL SUPPLY SCHEDULE (FSS) FOR DICTATING
EQUIPMENT, AIR FORCE DOES NOT HAVE OPTION TO PROCURE SUCH EQUIPMENT
COMPETITIVELY THROUGH WRITTEN SOLICITATION, BUT MUST PURCHASE LOWEST
COST FSS-LISTED EQUIPMENT. DETERMINATION OF LOWEST COST MAY INCLUDE
CONSIDERATION OF OFFERED TRADE-IN ALLOWANCE.
2. WHERE ONLY ONE OF FOUR FSS VENDORS OF DICTATING EQUIPMENT
INITIALLY OFFERED TRADE-IN ALLOWANCE FOR USED EQUIPMENT, IT WAS NOT
IMPROPER FOR AGENCY TO LATER AFFORD ALL FOUR VENDORS OPPORTUNITY TO
SUBMIT NEW PROPOSALS TO INCLUDE TRADE-IN ALLOWANCES.
3. WHERE PROTEST IS FILED AFTER ISSUANCE OF PURCHASE ORDER UNDER FSS
CONTRACT, THERE IS NO REQUIREMENT THAT CONTRACTING AGENCY SUSPEND
PERFORMANCE PENDING RESOLUTION OF PROTEST.
DICTAPHONE CORPORATION:
DICTAPHONE CORPORATION (DICTAPHONE) PROTESTS THE AWARD BY THE
DEPARTMENT OF THE AIR FORCE OF DELIVERY ORDER F49642-79-F-6208 TO LANIER
BUSINESS PRODUCTS, INC. (LANIER), FOR DICTATING EQUIPMENT FOR MALCOLM
GROW MEDICAL CENTER, ANDREWS AIR FORCE BASE. THE DELIVERY ORDER WAS
ISSUED UNDER THE GENERAL SERVICES ADMINISTRATION (GSA) FEDERAL SUPPLY
SCHEDULE (FSS) CONTRACT NO. GS-005-66650.
AS ITS BASES FOR PROTEST DICTAPHONE CONTENDS THAT EITHER THE AIR
FORCE SHOULD HAVE DEVELOPED SPECIFICATIONS FOR THE EQUIPMENT AND
PROCURED IT COMPETITIVELY BY USE OF A SEPARATE WRITTEN SOLICITATION, OR
IF THE FSS WAS TO BE USED THE EQUIPMENT SHOULD HAVE BEEN PURCHASED FROM
DICTAPHONE AS, ALLEGEDLY, THE LOWEST COST SUPPLIER UNDER THE FSS
CONTRACT FOR THE DICTATING EQUIPMENT DESIRED. DICTAPHONE ALSO ASSERTS
THAT LANIER WAS AFFORDED PREFERENTIAL TREATMENT IN THE PURCHASE SO THAT
"TRUE COMPETITIVE QUOTATIONS WERE ELIMINATED FROM THE PROCUREMENT." IN
ADDITION, DICTAPHONE STATES THAT CERTAIN OF THE LANIER UNITS PURCHASED
WERE LISTED IN THE FSS AT $400 EACH, BUT THE PURCHASE PRICE TO THE AIR
FORCE WAS $300 EACH, WHICH DICTAPHONE TERMS "A CLEAR VIOLATION OF THE
GSA CONTRACT AND AN OBVIOUS INTENT AT 'BARGAINING' TO ACHIEVE THE
ORDER." FINALLY, DICTAPHONE ARGUES THAT THE AIR FORCE ACTED IMPROPERLY
IN ACCEPTING DELIVERY OF THE DICTATING EQUIPMENT BEFORE RESOLUTION OF
THE PROTEST BY OUR OFFICE. FOR THE REASONS SET FORTH BELOW, THE PROTEST
IS DENIED.
THE RECORD SHOWS THAT IN 1977 THE AIR FORCE BEGAN CONSIDERATION OF
WHETHER TO REPLACE THE MEDICAL CENTER'S DICTATING EQUIPMENT. FOUR
VENDORS WITH FSS CONTRACTS FOR SUCH EQUIPMENT, INCLUDING DICTAPHONE AND
LANIER, PROVIDED THEIR PRODUCTS TO THE MEDICAL CENTER FOR TESTING. AN
INTERNAL STUDY DONE IN 1977 FOR THE ADMINISTRATOR OF THE MEDICAL CENTER
CONCLUDED THAT ALL WERE ACCEPTABLE, BUT THAT DICTAPHONE'S EQUIPMENT
PROVIDED THE "OPTIMAL WORD PROCESSING SYSTEM," FOR ITS REQUIREMENTS AT
"A RELATIVELY LOW TOTAL COST." THE STUDY ALSO FOUND THAT THE LANIER
EQUIPMENT RECEIVED GENERALLY HIGH MARKS FROM A MAJORITY OF THE USERS.
THE STUDY'S CONCLUSION WAS BASED PRIMARILY ON A USER SURVEY IN WHICH 150
QUESTIONNAIRES WERE CIRCULATED WITH 38 RESPONSES RECEIVED, THE FSS
CONTRACT PRICES IN EXISTENCE AT THE TIME OF THE SURVEY AND AN ASSUMED
ESTIMATE OF MAINTENANCE COSTS FOR AN EIGHT-YEAR EQUIPMENT LIFE.
BECAUSE THE EQUIPMENT WAS TO BE PURCHASED FROM THE FSS, NO WRITTEN
SOLICITATION WAS ISSUED BY THE AIR FORCE. HOWEVER, THE VENDORS WERE
AFFORDED AN OPPORTUNITY TO SURVEY THE FACILITY TO DETERMINE THE
COMBINATION OF THEIR FSS LISTED EQUIPMENT THEY BELIEVED WOULD BEST MEET
THE MEDICAL CENTER'S NEEDS AND TO SUBMIT PROPOSALS THEREFORE. ONLY
DICTAPHONE INCLUDED A TRADE-IN ALLOWANCE IN ITS PROPOSAL (SUBMITTED IN
OCTOBER 1978) FOR THE EQUIPMENT THAT THE PURCHASE WOULD REPLACE, WHICH
CAUSED DICTAPHONE'S EQUIPMENT TO BE EVALUATED AS THE LOWEST COST. IN
THIS RESPECT, ALTHOUGH THE COST OF A VENDOR'S INDIVIDUAL ITEMS OF
EQUIPMENT WAS SET BY THE FSS PRICE, THE EVALUATED COST OF EACH SYSTEM
PROPOSED WOULD DEPEND ON THE COMBINATION OF COMPONENTS PROPOSED, THE
AMOUNT OF THE TRADE-IN ALLOWANCE OFFERED, AND OTHER RELEVANT FACTORS
SUCH AS EVALUATION FACTORS IMPOSED UNDER THE BUY AMERICAN ACT, 41 U.S.C.
SEC. 10A-D (1976).
THE FOUR VENDORS WERE THEREAFTER ORALLY ADVISED THAT THEY HAD A FINAL
OPPORTUNITY TO OBTAIN ANY ADDITIONAL TECHNICAL INFORMATION DESIRED FROM
THE MEDICAL CENTER CONCERNING THE REQUIREMENT, AND THAT FINAL PROPOSALS
COULD INCLUDE TRADE-IN ALLOWANCES. NEW PROPOSALS WERE RECEIVED AND
EVALUATED, WITH LANIER'S EVALUATED COST BEING THE LOWEST OF THE FOUR.
THE DELIVERY ORDER WAS ISSUED TO THE FIRM ON FEBRUARY 12, 1979.
CONCERNING THE QUESTION OF WHETHER THE SYSTEM SHOULD HAVE BEEN
PROCURED THROUGH THE USE OF A WRITTEN SOLICITATION RATHER THAN PURCHASED
UNDER THE FSS, WE POINT OUT THAT THE AIR FORCE IS A MANDATORY USER OF
THE FSS FOR THIS TYPE OF EQUIPMENT. DEFENSE ACQUISITION REGULATION
(DAR) SEC. 5-102.3 (1976 ED.). ACCORDINGLY, THE AIR FORCE DID NOT HAVE
THE OPTION TO PROCEED AS SUGGESTED BY DICTAPHONE.
DICTAPHONE'S CONTENTION THAT LANIER WAS GIVEN PREFERENTIAL TREATMENT
BY THE AIR FORCE IS BASED ON THE ALLEGATION THAT LANIER WAS FURNISHED
SPECIFICATIONS UPON WHICH TO BASE ITS PROPOSED SYSTEM CONFIGURATION,
WHILE OTHER OFFERORS WERE-NOT. DICTAPHONE ALSO ALLEGES THAT IT WAS
IMPROPER FOR THE AIR FORCE TO AFFORD THE OTHER VENDORS A SECOND
OPPORTUNITY TO SUBMIT PROPOSALS OF SYSTEM CONFIGURATION AND OFFER
TRADE-IN ALLOWANCES AFTER THE INITIAL SUBMISSIONS IN LATE 1978.
WITH RESPECT TO THE FIRST MATTER, THERE IS NO EVIDENCE IN THE RECORD
AND NOTHING HAS BEEN OFFERED BY DICTAPHONE TO SHOW THAT LANIER RECEIVED
ANY MORE INFORMATION OR GREATER OPPORTUNITY TO OBTAIN INFORMATION
REGARDING THE MEDICAL CENTER'S NEEDS THAN DID THE OTHER VENDORS, AND THE
AIR FORCE SPECIFICALLY DENIES GIVING ANY FAVORED TREATMENT TO LANIER.
THUS DICTAPHONE'S ALLEGATIONS OF FAVORITISM IN THIS REGARD ARE
UNSUPPORTED, AND WE CONCLUDE THAT IT HAS NOT MET ITS BURDEN OF
AFFIRMATIVELY PROVING ITS CASE. U. S. DURACON CORPORATION, B-194225,
B-194673, MAY 15, 1979, 79-1 CPD ___. REGARDING THE SECOND POINT, SINCE
THE RECORD INDICATES THAT ALL VENDORS, INCLUDING DICTAPHONE, WERE GIVEN
THE SAME OPPORTUNITY TO SUBMIT NEW PROPOSALS, WE DO NOT SEE HOW
DICTAPHONE WAS PREJUDICED THEREBY. WASHINGTON SCHOOL OF PSYCHIATRY/THE
METROPOLITAN EDUCATIONAL COUNCIL FOR STAFF DEVELOPMENT, B-192756, MARCH
14, 1979, 79-1 CPD 178. WE NOTE HERE THAT DICTAPHONE ALSO ASSERTS THAT
A CHANGE IN THE AIR FORCE'S REQUIREMENTS MAY HAVE BEEN COMMUNICATED ONLY
TO THE OTHER THREE OFFERORS IN THAT REQUEST FOR NEW PROPOSALS. HOWEVER,
NOTHING IN THE RECORD SUPPORTS THAT POSITION.
DICTAPHONE'S CONTENTION THAT THE PURCHASE SHOULD HAVE BEEN MADE UNDER
DICTAPHONE'S FSS CONTRACT APPARENTLY IS BASED ON THE 1977 STUDY.
HOWEVER, WE HAVE BEEN INFORMALLY ADVISED THAT THE STUDY WAS MERELY A
PRELIMINARY RECOMMENDATION TO THE CONTRACTING PERSONNEL RESPONSIBLE FOR
DETERMINING HOW BEST TO FULFILL THE MEDICAL CENTER'S REQUIREMENTS. THE
ACTUAL DETERMINATION, WITH THAT STUDY AS BACKGROUND, WAS THAT ANY OF THE
FOUR SYSTEMS TESTED WOULD MEET THE MEDICAL CENTER'S MINIMUM NEEDS.
AS A MANDATORY USER OF THE FSS, THE AIR FORCE WAS REQUIRED TO
PURCHASE THE DICTATING EQUIPMENT WHICH MET ITS NEEDS AT THE LOWEST
DELIVERED PRICE AVAILABLE (UNLESS THE PURCHASE OF HIGHER-PRICED ITEMS
WAS FULLY JUSTIFIED), FEDERAL PROPERTY MANAGEMENT REGULATIONS SEC.
101-26.408-2 (1978), AND THE RECORD SHOWS THAT DICTAPHONE WAS NOT
EVALUATED AS THE LOWEST COST VENDOR WHEN THE PURCHASE WAS MADE. IN THIS
REGARD, AT THAT TIME DICTAPHONE WAS EVALUATED AS SECOND LOW IN COST
BASED ON ITS EQUIPMENT COMBINATION AND TRADE-IN ALLOWANCE, AND HIGHEST
OF THE FOUR OFFERORS ONCE THE BUY AMERICAN ACT FACTOR WAS ADDED (DURING
THE COURSE OF THE PROCUREMENT, GSA ADVISED THE AIR FORCE THAT
DICTAPHONE'S DICTATING EQUIPMENT SHOULD BE CONSIDERED FOREIGN-MADE,
WHEREAS IT HAD ORIGINALLY BEEN EVALUATED AS A DOMESTIC SOURCE END
PRODUCT). ACCORDINGLY, WE SEE NO BASIS TO QUESTION THE PURCHASE FROM
LANIER.
WITH RESPECT TO DICTAPHONE'S ALLEGATION THAT THE PURCHASE PRICE TO
THE AIR FORCE OF CERTAIN LANIER UNITS WAS LOWER THAN THE FSS-LISTED
PRICE, THE RECORD INDICATES THAT DICTAPHONE IS NOT CORRECT. ALTHOUGH
LANIER'S FSS SINGLE UNIT PRICE WAS $400 FOR THE ITEMS IN QUESTION, THE
UNIT PRICE WHEN FIVE WERE BEING PURCHASED, AS WAS DONE HERE, WAS LISTED
AS $300. WE THEREFORE FIND NO VIOLATION OF THE FSS TERMS AS ALLEGED.
FINALLY, THERE IS NO REQUIREMENT THAT A CONTRACTING AGENCY SUSPEND
THE PERFORMANCE OF A CONTRACT BECAUSE A PROTEST HAS BEEN FILED AFTER THE
AWARD (HERE, THE ISSUANCE OF THE PURCHASE ORDER). SEE DAR SEC.
2-407.8(C); GRAPHICAL TECHNOLOGY CORPORATION, B-181723, MARCH 27, 1975,
75-1 CPD 183, AT P. 12.
THE PROTEST IS DENIED.
B-194188, JUN 19, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. TO EXTENT THAT PROTEST ALLEGES THAT IFB SPECIFICATIONS WERE
RESTRICTIVE, IT IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS, WHERE
ISSUE IS NOT RAISED UNTIL AFTER BID OPENING.
2. IFB REQUIREMENT FOR DESCRIPTIVE LITERATURE, STATED IN GENERAL
TERMS, WAS DEFECTIVE BECAUSE IT FAILED TO COMPLY WITH FPR SEC. 1-2.202-5
REQUIREMENT THAT DESCRIPTIVE DATA CLAUSE SPECIFY IN DETAIL WHAT DATA IS
REQUIRED AND EXTENT DATA WILL BE CONSIDERED IN BID EVALUATION.
NEVERTHELESS, DATA SUBMITTED WITH BID MAY NOT BE DISREGARDED FOR
PURPOSES OF DETERMINING BID RESPONSIVENESS WHERE BIDDER IS OFFERING
SYSTEM DESCRIBED BY LITERATURE. THEREFORE, LOW BID WAS PROPERLY
REJECTED WHERE LITERATURE SHOWED MATERIAL DEVIATIONS.
3. LOW BID WAS PROPERLY DETERMINED TO BE NONRESPONSIVE. AWARD TO
ONLY OTHER BIDDER WAS IMPROPER WHERE THAT BID CONTAINED MATERIAL
DEVIATIONS FROM SPECIFICATIONS. SOLICITATION SHOULD HAVE BEEN CANCELED
AND READVERTISED. DUE TO PASSAGE OF DELIVERY DATE, CORRECTIVE ACTION IS
IMPRACTICABLE; HOWEVER, AGENCY ADVISED OF PROCUREMENT DEFICIENCY TO
PREVENT RECURRENCE IN FUTURE.
4. PROTEST PROSECUTION COSTS ARE NOT RECOVERABLE AGAINST GOVERNMENT.
5. EVEN THOUGH AWARDEE'S BID SHOULD HAVE BEEN REJECTED AS
NONRESPONSIVE, CLAIM FOR BID PREPARATION COSTS BY LOW NONRESPONSIVE AND
ONLY OTHER BIDDER IS DENIED SINCE AGENCY WAS NOT ARBITRARY OR CAPRICIOUS
TOWARD CLAIMANT-BIDDER AND DISAPPOINTED CLAIMANT-BIDDER WOULD NOT HAVE
RECEIVED AWARD BECAUSE BIDDER WAS NONRESPONSIVE AND GOVERNMENT SHOULD
HAVE CANCELED SOLICITATION AND READVERTISED.
6. POST-BID-OPENING AGENCY REQUESTS FOR AND CONSIDERATION OF
CLARIFICATIONS FROM BIDDERS WHOSE BIDS WERE PATENTLY NONRESPONSIVE WERE
IMPROPER.
BLAZER INDUSTRIES, INC.:
BLAZER INDUSTRIES, INC. (BLAZER), HAS PROTESTED THE DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE'S (IRS), AWARD OF A CONTRACT TO AC
MANUFACTURING CO., C/O AIRPAC SYSTEM (AC), FOR COMPUTER ROOM AIR
CONDITIONING UNDER INVITATION FOR BIDS (IFB) NO. IRS 79-9. BLAZER, THE
LOW BIDDER, ALLEGES THAT ITS BID "MEETS OR EXCEEDS ALL FUNCTIONAL
REQUIREMENTS OF THE SPECIFICATIONS," ANY DEVIATION IS DE MINIMIS IN
NATURE OR A MINOR INFORMALITY AND, THEREFORE, THE IRS SHOULD HAVE WAIVED
OR CORRECTED THE DEVIATIONS AND CONSIDERED THE BID RESPONSIVE. BLAZER
REQUESTS THAT THE CONTRACT AWARDED BE TERMINATED AND AWARD OF A NEW
CONTRACT MADE TO BLAZER OR, ALTERNATIVELY, THAT BID PREPARATION AND
PROTEST PROSECUTION COSTS BE AWARDED TO BLAZER.
ON NOVEMBER 30, 1978, IRS ISSUED AN IFB FOR THE PURCHASE OF A
COMPUTER ROOM AIR-CONDITIONING SYSTEM. THIS PROCUREMENT WAS ADVERTISED
IN THE COMMERCE BUSINESS DAILY AND SOLICITATIONS WERE MAILED TO NINE
VENDORS. BID OPENING, AFTER AN AMENDMENT, WAS SCHEDULED FOR AND WAS
HELD ON DECEMBER 20, 1978. AWARD WAS MADE TO AC ON FEBRUARY 15, 1979.
BY LETTER, DATED JANUARY 22, 1979, BLAZER ADVISED IRS THAT ITS
"STANDARD 'COMPUTEMP' SYSTEM FAR EXCEEDS THE BASIC SPECIFICATION
OUTLINE," BUT IT SPECIFICALLY ACKNOWLEDGES AREAS WHERE ITS PRODUCT
DEVIATES FROM THE SPECIFICATIONS SET FORTH IN THE IFB. FOR INSTANCE:
"(A) DRAIN PANS SPECIFIED CALL FOR A RUST PROOF COATING, HOWEVER,
BLAZER ONLY PROVIDES STAINLESS STEEL. STAINLESS STEEL IS ITSELF RUST
PROOF SO THAT THE LACK OF A COATING IS INCONSEQUENTIAL IN TERMS OF THE
SPECIFICATION. IT IS FAR SUPERIOR IN NATURE SINCE THERE IS NO COATING
TO FAIL IN EXTENDED USE.
"(B) MOTORS ON THE LARGER UNITS CALL FOR 7.5 HP. BLAZER USES 5.0 HP
MOTOR IN CONJUNCTION WITH LARGER FANS. NOTE THAT THE SUPPLY FAN MOTOR
IS THE ONLY PART OF THE SYSTEM WHICH OPERATES CONTINUOUSLY REGARDLESS OF
THE LOAD. THUS THE BLAZER MODEL MEETS THE FUNCTIONAL NEED AT A LOWER
POWER COST OVER THE LIFE CYCLE. THE DEVIATION HERE IS AGAIN
INCONSEQUENTIAL SINCE, AS THE PERFORMANCE DATA INDICATES, THE UNIT MEETS
AND EXCEEDS THE 224,000 BTU/HR. TOTAL COOLING CAPACITY AND 192,000
BTU/HR. SENSIBLE COOLING CAPACITY."
IRS ARGUES, AMONG OTHER THINGS, THAT BLAZER'S PROTEST CONCERNS THE
ALLEGED RESTRICTIVENESS OF THE SPECIFICATIONS. BLAZER BELIEVES ITS
PROTEST CONCERNS THE EVALUATION OF A BID AND ONLY REFERS TO THE
POTENTIALLY RESTRICTIVE NATURE OF THE SPECIFICATIONS AS AN ALTERNATIVE
ARGUMENT.
TO THE EXTENT THAT BLAZER'S PROTEST MAY BE VIEWED AS RAISING AN ISSUE
CONCERNING THE RESTRICTIVENESS OF THE SPECIFICATIONS, ITS PROTEST IS
UNTIMELY FILED. OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BASED
UPON ALLEGED IMPROPRIETIES IN THE SOLICITATION MUST BE FILED PRIOR TO
BID OPENING. 4 C.F.R. SEC. 20.2(B)(1) (1978). BLAZER'S PROTEST IN THIS
REGARD, FILED ON FEBRUARY 23, 1979, MORE THAN 9 WEEKS AFTER BID OPENING,
IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.
AS TO THE RESPONSIVENESS OF BLAZER'S BID, THE IFB, IN SECTION 5.0 -
NOTICE TO BIDDERS, PROVIDED:
"5.1 BIDS SHALL INCLUDE BROCHURES, CATALOG DATA, CERTIFIED TEST DATA,
INSTALLATION, OPERATING AND MAINTENANCE INSTRUCTIONS FOR ALL COMPONENT
PARTS OF THE SYSTEM."
BLAZER COMPLIED WITH THIS CLAUSE AND SUBMITTED EXTENSIVE DESCRIPTIVE
LITERATURE CONCERNING ITS COMPUTEMP SYSTEM. IT IS CLEAR FROM THE RECORD
THAT THE IRS CONSIDERED THE AFOREMENTIONED CLAUSE AS A DESCRIPTIVE
LITERATURE CLAUSE AND EVALUATED THE BIDS ACCORDINGLY.
THE IRS CONTENDS THAT BLAZER'S BID WAS REJECTED AS NONRESPONSIVE
BECAUSE THE DESCRIPTIVE LITERATURE REVEALED THAT "BLAZER'S BID FAILED TO
MEET THE REQUIRED SPECIFICATIONS IN SEVERAL MATERIAL WAYS." WITH RESPECT
TO BLAZER'S MODEL 200 WG, THE IRS SUPPORTS ITS DETERMINATION WITH THE
FOLLOWING:
1. "BLAZER'S SYSTEM SHOWED ONE DRYCOOLER FOR EACH COMPUTER AIR
CONDITIONING UNIT FOR A TOTAL OF 4 UNITS. SPECIFICATIONS CALLED FOR ONE
DRYCOOLER FOR TWO COMPUTER AIR CONDITIONING UNITS, A TOTAL OF 2
DRYCOOLERS. INSTALLATION OF THESE TWO ADDITIONAL DRYCOOLERS WOULD
REQUIRE SUBSTANTIAL CHANGES IN THE COMPLETED CONSTRUCTION DRAWINGS,
ADDITIONAL SPACE, PIPING AND CONTROL SYSTEMS AND REDESIGN OF ELECTRICAL
FEEDER. CHANGES IN THE CONSTRUCTION DRAWINGS COULD CAUSE A MINIMUM OF
30 DAYS DELAY. A 30-DAY DELAY IN THE INSTALLATION OF THE COMPUTER
SYSTEM, IN THIS CASE, WOULD CAUSE THE GOVERNMENT AN ESTIMATED AMOUNT OF
$280,000.00 IN DELAY AND CHANGES COSTS."
2. "HOT GAS WATER HEATER FOR USE IN HUMIDIFICATION WAS REQUIRED.
BLAZER SPECIFIED USE OF AN ELECTRIC IMMERSION HEATER RATED AT 7 KW.
BASED ON 4 UNITS USING 7 KW OF HUMIDIFICATION 50% OF THE TIME FOR 24
HOURS A DAY, 365 DAYS A YEAR AT $.045 PER PER KW-HR., MEANS AN
ADDITIONAL ANNUAL OPERATING COST TO THE GOVERNMENT OF $5,518.80."
3. "BLAZER'S SYSTEM DOES NOT PROVIDE FOR A STANDBY PUMP FOR EACH
DRYCOOLER, OR FOR AUTOMATIC AND ALTERNATING CHANGEOVER OF THESE PUMPS
FROM NORMAL OPERATION TO STANDBY AS REQUIRED IN THE SPECIFICATIONS."
4. "THE STATUS PANEL ON BLAZER'S MODEL DOES NOT INCLUDE POWER LOSS,
LOSS OF AIRFLOW, HIGH/LOW HUMIDITY, AND GLYCOL PUMP FAILURE, AS REQUIRED
BY THE SPECIFICATIONS."
5. "THE GOVERNMENT SPECIFIED EXTERNAL STATIC PRESSURE OF 0.5" WG
WITH 7.5 HP FAN AS COMPARED TO 0.3" WG WITH 5 HP FAN WHICH BLAZER WANTED
TO PROVIDE. THIS MEANS THAT IN ANY CONDITION WHERE THE EXTERNAL STATIC
PRESSURE EXCEEDS 0.3" WG, THE BLAZER UNIT WOULD DELIVER LESS AIR, HENCE,
LESS AIR CONDITIONING CAPACITY. BLAZER ONLY USES A 5 HP MOTOR FOR
CIRCULATING THE SAME AMOUNT OF AIR, THE GOVERNMENT REQUIRED A 7.5 HP
MOTOR TO BE ASSURED THAT THE CAPACITY REQUIRED TO MAINTAIN DESIRED
COMPUTER ROOM CONDITIONS IS ADEQUATE AT ALL TIMES, THE ENERGY
CONSERVATION DIFFERENCE BETWEEN THE 5 HP MOTOR AND THE 7.5 HP MOTOR
NOTWITHSTANDING."
IN REGARD TO MODEL 100 WG, THE IRS ARGUES:
"1. BLAZER'S SYSTEM DOES NOT PROVIDE FOR A STANDBY PUMP. THERE WAS
NO REFERENCE TO AUTOMATIC AND ALTERNATING CHANGEOVER OF THE PUMPS FROM
NORMAL PUMP TO STANDBY PUMP AS REQUIRED IN THE SPECIFICATIONS.
"2. BLAZER'S SYSTEM DOES NOT PROVIDE FOR A CODENSATE PUMP AS
REQUIRED BY THE SPECIFICATIONS.
"3. THE STATUS PANEL ON BLAZER'S MODEL DOES NOT INCLUDE POWER LOSS,
LOSS OF AIRFLOW, HIGH/LOW HUMIDITY, GLYCOL PUMP FAILURE AND CONDENSATE
PUMP FAILURE AS REQUIRED IN THE SPECIFICATIONS.
"4. BLAZER'S SYSTEM DOES NOT PROVIDE FOR A SUPPLY AIR PLENUM."
ESSENTIALLY, IT IS BLAZER'S POSITION THAT SINCE THE DESCRIPTIVE
LITERATURE CLAUSE DID NOT COMPLY WITH THE REQUIREMENTS OF THE FEDERAL
PROCUREMENT REGULATIONS (FPR) SEC. 1-2.202-5(D)(1) (1964 ED. AMEND. 13),
IT WAS IMPROPER FOR THE IRS TO USE SUCH LITERATURE TO DETERMINE THE
RESPONSIVENESS OF BLAZER'S BID. FPR SEC. 1-2.202-5(D) (1), SUPRA,
PROVIDES, IN PERTINENT PART:
"WHEN DESCRIPTIVE LITERATURE IS REQUIRED, THE INVITATION FOR BIDS
SHALL CLEARLY STATE WHAT DESCRIPTIVE LITERATURE IS TO BE FURNISHED, THE
PURPOSE FOR WHICH IT IS REQUIRED, THE EXTENT TO WHICH IT WILL BE
CONSIDERED IN THE EVALUATION OF BIDS AND THE RULES WHICH WILL APPLY IF A
BIDDER FAILS TO FURNISH IT BEFORE BID OPENING OR IF THE LITERATURE
FURNISHED DOES NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR
BIDS. ***"
WE AGREE WITH BLAZER THAT THE INSTANT DESCRIPTIVE LITERATURE CLAUSE
DID NOT COMPLY WITH FPR'S REQUIREMENTS AND, THEREFORE, THERE WAS A
DEFICIENCY IN THE SOLICITATION. MCGRAW-EDISON COMPANY, B-181473,
FEBRUARY 13, 1975, 75-1 CPD 95. MOREOVER, WE NOTE THAT THE RECORD
FURNISHED OUR OFFICE BY THE IRS DOES NOT CONTAIN ANY JUSTIFICATION FOR
INCLUSION OF THE DESCRIPTIVE LITERATURE CLAUSE. SEE FPR SEC.
1-2.202-5(C). HOWEVER, WE DO NOT AGREE WITH BLAZER THAT UNDER THESE
CIRCUMSTANCES THE DESCRIPTIVE LITERATURE SUBMITTED BY BLAZER SHOULD HAVE
BEEN IGNORED BY THE IRS. DESCRIPTIVE LITERATURE SUBMITTED WITH A BID
MAY NOT BE DISREGARDED FOR PURPOSES OF DETERMINING BID RESPONSIVENESS
WHERE THE BIDDER IS OFFERING THE SYSTEM DESCRIBED BY SUCH LITERATURE.
46 COMP. GEN. 1 (1966); ALBEN ENGINEERING CORPORATION, B-181912, MARCH
6, 1975, 75-1 CPD 135; DOMINION ROAD MACHINERY CORPORATION, 56 COMP.
GEN. 334 (1977), 77-1 CPD 89; SPECTROLAB, INC., B-189947, DECEMBER 7,
1977, 77-2 CPD 438.
BASED ON THE FOREGOING WE BELIEVE THAT THE BLAZER BID FAILED TO
CONFORM TO THE SPECIFICATIONS AND AS SUCH WAS PROPERLY REJECTED AS
NONRESPONSIVE. WITH RESPECT TO BLAZER'S ARGUMENT THAT ANY DEVIATION
FOUND IN ITS BID IS DE MINIMIS OR A MINOR INFORMALITY, WE DISAGREE. IT
IS OUR VIEW THAT THE DEFICIENCIES SET FORTH ABOVE GO TO THE SUBSTANCE OF
THE BID BY MATERIALLY ALTERING THE OBLIGATION OF BLAZER TO FURNISH THE
REQUIRED SYSTEM WHICH MAY NOT BE WAIVED OR CURED AND REQUIRED THE BID TO
BE REJECTED AS NONRESPONSIVE. IN THIS REGARD, WE OBSERVE THAT BLAZER
DOES NOT DENY THE IRS'S COMMENTS, STATED ABOVE, EXCEPT TO SAY THAT THEY
"ARE IN MAJOR PART UTTERLY LUDICROUS." IN ADDITION, IT APPEARS THAT THE
RULE THAT DELIBERATE EXCEPTIONS TO AN INVITATION REQUIREMENT, HERE THE
SPECIFICATIONS, CANNOT BE WAIVED AS TRIVIAL OR MINIMAL GOVERNS IN THIS
CIRCUMSTANCE. ABBOTT POWER CORPORATION, B-192792, APRIL 30, 1979.
FURTHERMORE, BLAZER OBSERVES THAT THE AC BID ALSO DEVIATED FROM THE
SPECIFICATIONS, AND "IF THE BLAZER BID IS RENDERED NONRESPONSIVE FOR
THIS REASON THEN *** (AC) IS ALSO NONRESPONSIVE." WE AGREE. THE IRS
EVALUATED AC'S BID CONCLUDING:
"(AC) MEETS ALL THE SPECIFICATIONS INCLUDING REQUIRED CAPACITIES AND
EQUIPMENT DESIGN CONCEPT. CLARIFICATION IS REQUIRED ON THE FOLLOWING
ITEMS:
"A. MODEL CDXC-23
"* 5 HP. PUMPS SHOULD BE QUANTITY OF (4) INSTEAD OF (2). (THIS IS
BELIEVED TO BE A TYPOGRAPHICAL ERROR. AUTOMATIC ALTERNATING AND
CHANGEOVER OF PUMPS ARE SPECIFIED AND SHOWN IN INSTALLATION PLANS FOR
EACH OF THE TWO DRYCOOLERS.)
"* SAME OPERATING DESCRIPTION OF THE PUMPS AS INDICATED FOR THE MODEL
CUXC-12 SHOULD APPLY TO THE MODEL CDXC-23.
"B. MODEL CUXC-12
"* GLYCOL PUMP FAILURE IS NOT INCLUDED IN THE STATUS DISPLAY PANEL."
ON JANUARY 17, 1979, BY LETTER, THE IRS REQUESTED CLARIFICATION OF
AC'S BID. AC RESPONDED BY LETTER, DATED JANUARY 19, 1979. THE REQUEST
AND SUBSEQUENT ACCEPTANCE OF AC'S CLARIFICATION WERE IMPROPER SINCE AT
LEAST ONE OF THE DEVIATIONS BETWEEN AC'S BID AND THE SPECIFICATIONS WAS
MATERIAL (OMISSION OF GLYCOL PUMP FAILURE INDICATOR). THIS CONCLUSION
IS SUPPORTED BY THE FOLLOWING MATTERS OF RECORD. THE CONTRACTING
OFFICER STATES, AFTER LISTING THE ABOVE-QUOTED MATERIAL DEVIATIONS OF
BLAZER'S BID, WHICH OMITTED A GLYCOL PUMP FAILURE INDICATOR THAT:
"BLAZER'S BID WAS DETERMINED TO BE NONRESPONSIVE BASED UPON THE ABOVE
DETAILED MATERIAL DEVIATIONS FROM THE SPECIFICATIONS AND WAS GIVEN NO
FURTHER CONSIDERATION FOR AWARD."
IN ADDITION, AN IRS LEGAL MEMORANDUM STATES, AFTER INCORPORATING THE
CONTRACTING OFFICER'S STATEMENT BY REFERENCE AND SPECIFICALLY MENTIONING
THE FAILURE OF THE STATUS PANEL TO INCLUDE A GLYCOL PUMP FAILURE
INDICATOR, THAT "NONE OF THESE DEVIATIONS ARE MINOR OR DE MINIMUS AS
ALLEGED AND EACH HAS SIGNIFICANT IMPACT ON THE PRICE, QUANTITY OR
QUALITY OF THE ITEM PROCURED."
THEREFORE, AC'S BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE ALSO.
IN THESE CIRCUMSTANCES, BLAZER AND AC HAVING BEEN THE ONLY BIDDERS, THE
IRS SHOULD HAVE CANCELED THE SOLICITATION AND READVERTISED. MOREOVER,
THE DEFICIENCY IN THE DATA CLAUSE ALONE WOULD HAVE WARRANTED
CANCELLATION. SEE ALBEN ENGINEERING CORPORATION, SUPRA. THERE WERE
OTHER ISSUES RAISED WITH RESPECT TO AC'S BID WHICH NEED NOT BE DISCUSSED
SINCE THEY HAVE BEEN RENDERED ACADEMIC.
WITH REGARD TO REMEDIAL ACTION, SINCE THE IFB REQUIRED DELIVERY
WITHIN 56 CALENDAR DAYS AFTER THE AWARD DATE, FEBRUARY 15, 1979, ANY
RECOMMENDATION FOR CORRECTIVE ACTION IS RENDERED IMPRACTICABLE.
NONETHELESS, BY SEPARATE LETTER WE ARE POINTING OUT TO THE SECRETARY OF
THE TREASURY THE DEFICIENCIES IN THIS PROCUREMENT TO PREVENT A
RECURRENCE IN THE FUTURE.
IN REGARD TO BLAZER'S REQUEST FOR PROTEST PROSECUTION COSTS, WE HAVE
HELD THAT THE COSTS OF PURSUING A PROTEST ARE NOT COMPENSABLE.
DOCUMENTATION ASSOCIATES - CLAIM FOR PROPOSAL PREPARATION COSTS,
B-190238, JUNE 15, 1978, 78-1 CPD 437. ACCORDINGLY, BLAZER'S CLAIM FOR
SUCH COSTS IS DENIED.
CONCERNING BLAZER'S REQUEST FOR BID PREPARATION COSTS, WE HAVE HELD
THAT SUCH COSTS MAY NOT BE RECOVERED UNLESS THE AGENCY'S ACTIONS WERE
ARBITRARY AND CAPRICIOUS TOWARDS THE BIDDER-CLAIMANT. MORGAN BUSINESS
ASSOCIATES, B-188387, MAY 16, 1977, 77-1 CPD 344. HOWEVER, NOT EVERY
IRREGULARITY WILL GIVE RISE TO THE RIGHT TO BE COMPENSATED FOR THE
EXPENSES BY UNDERTAKING THE BIDDING PROCESS. T & H COMPANY, 54 COMP.
GEN. 1021 (1975), 75-1 CPD 345. THERE IS A SECOND REQUIREMENT APPLIED
BY OUR OFFICE THAT THE COMPLAINED-OF AGENCY ACTION DEPRIVED THE
BIDDER-CLAIMANT OF AN AWARD TO WHICH IT WAS OTHERWISE ENTITLED. UNITED
POWER & CONTROL SYSTEMS, INC.; DEPARTMENT OF THE NAVY - RECONSIDERATION,
B-184662, DECEMBER 27, 1978, 78-2 CPD 436; MORGAN BUSINESS ASSOCIATES,
SUPRA. FIRST, SINCE THE BLAZER BID WAS PROPERLY REJECTED AS
NONRESPONSIVE, THE IRS DID NOT ACT ARBITRARILY OR CAPRICIOUSLY TOWARD
BLAZER IN THE EVALUATION OF ITS BID. INSOFAR AS ACCEPTING THE AC BID,
WE TAKE COGNIZANCE OF THE FEW DEVIATIONS OF AC VIS-A-VIS THE MULTIPLE
DEVIATIONS OF BLAZER'S BID AND SIMILARLY DO NOT FIND THE STANDARD MET.
MOREOVER, BLAZER HAS NOT DEMONSTRATED THAT IT WOULD HAVE BEEN ENTITLED
TO AWARD HAD THE IRS ACTED PROPERLY AND CANCELED THE SOLICITATION. AT
BEST, BLAZER WOULD HAVE HAD THE OPPORTUNITY TO SUBMIT ANOTHER BID.
ACCORDINGLY, BLAZER'S CLAIM FOR BID PREPARATION COSTS IS DENIED.
FINALLY, BLAZER ALLEGES THAT THE IRS DELAYED IN RESPONDING TO
BLAZER'S INTENTION, EXPRESSED ORALLY, TO PROTEST IF ITS BID WAS REJECTED
AS NONRESPONSIVE. SPECIFICALLY, BLAZER STATES:
"IRS DELAYED IN PROVIDING THEIR 'REASONS' FOR REJECTING THE BLAZER
BID FOR THREE WEEKS AFTER AWARD DESPITE REPEATED REQUESTS FOR THE
DETAILS AND DESPITE THE PROVISIONS OF FPR 1-2.408 THAT 'IF THE REQUEST
IS MADE BY AN UNSUCCESSFUL BIDDER WHOSE BID PRICE WAS LOWER THAN THAT OF
THE SUCCESSFUL BIDDER, SUFFICIENT INFORMATION WILL BE FURNISHED IN THE
REPLY TO FULLY EXPLAIN THE BASIS FOR THE AWARD.' TO SAY MERELY THAT 'WE
TOOK THEIRS, WE REJECTED YOURS AS NON-RESPONSIVE' HARDLY QUALIFIES AS A
FULL EXPLANATION. TO GET ANYTHING FURTHER REQUIRED NUMEROUS PHONE
CALLS, A REQUEST FOR INFORMATION UNDER THE FREEDOM OF INFORMATION ACT
AND MUCH FRUSTRATION.
"FURTHER, AS WE NOTED IN ENCLOSURE 2 TO OUR LETTER OF 2/26/79, WE HAD
CLEARLY INFORMED IRS (AT A MEETING ON JANUARY 23, 1979) OF AN INTENTION
TO TAKE THIS MATTER TO THE GAO WERE THE BID TO BE FOUND NON-RESPONSIVE.
THIS WAS, AND SHOULD HAVE BEEN TREATED AS, A PROTEST TO THE PROCURING
AGENCY AGAINST THE ACTIONS TAKEN. IRS CHOSE, HOWEVER, TO FINISH THE
AWARD PROCESS IN SECRET AND DISREGARD THE PROVISIONS OF THE BID PROTEST
PROCEDURES AND FPR 1-2.407-8(A) AND (B)(3). THIS ACTION COMPROMISES THE
PROPER AND EFFECTIVE REMEDY OF AN AWARD TO BLAZER INDUSTRIES. WE CANNOT
CONSTRUE THIS AS ANYTHING OTHER THAN A DELIBERATE AND CONSCIOUS ATTEMPT
TO CIRCUMVENT THE BID PROTEST PROCEDURES APPLICABLE TO PRE-AWARD
PROTESTS."
UNDER THE APPLICABLE PROCUREMENT REGULATIONS, THERE IS NO REQUIREMENT
THAT AN AGENCY MUST GIVE A BIDDER DETERMINED TO BE NONRESPONSIVE A
PREAWARD REJECTION NOTIFICATION SETTING FORTH THE REASONS FOR THE
REJECTION. IN ANY EVENT, WE NOTE THAT BLAZER WAS AWARE THAT THE AGENCY
WAS HAVING PROBLEMS WITH ITS BID. ALSO, IT IS CLEAR THAT BLAZER HAD
ENOUGH KNOWLEDGE, WELL BEFORE AWARD, TO FURNISH THE AGENCY WITH A
DETAILED LETTER (DATED JANUARY 22, 1979), DISCUSSING THE AREAS OF
CONCERN RELATING TO HOW ITS SYSTEM MET OR EXCEEDED THE SPECIFICATIONS.
MOREOVER, BLAZER HAD THE BENEFIT OF A CLARIFICATION MEETING WHICH IN THE
CONTEXT OF FORMAL ADVERTISING WAS IMPROPER UNDER THOSE CIRCUMSTANCES.
SEE SPECTROLAB, INC., SUPRA. (WE OBSERVE THAT A SIMILAR IMPROPRIETY
EXISTED IN PERMITTING AC A POST-BID-OPENING CLARIFICATION.) RATHER THAN
PROTEST AT THE TIME OF THE METTING AND BE CERTAIN OF PRESERVING ITS
RIGHTS, BLAZER SIMPLY VOICED AN INTENTION TO PROTEST (WHICH IS NOT A
PROTEST) BUT FAILED TO DO SO. IT IS APPARENT THAT IN THIS CIRCUMSTANCE
BLAZER WAS MORE AWARE OF THE POSSIBILITY THAT ITS BID WOULD BE
DETERMINED NONRESPONSIVE THAN IN THE NORMAL SITUATION WHERE THE AGENCY
DOES NOT CONDUCT AN IMPROPER CLARIFICATION MEETING AND JUST REJECTS THE
BID. IN OUR VIEW WITH RESPECT TO THE ISSUE OF DELAY, THE IRS SIMILARLY
DID NOT VIOLATE ANY PROCUREMENT REGULATION. IN CONCLUSION, WE FIND
NOTHING IN THE RECORD TO INDICATE A DELIBERATE ATTEMPT TO PREVENT BLAZER
FROM FILING AN EFFECTIVE PROTEST.
B-195048, JUN 19, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PROTESTER'S LATE PROPOSAL WAS PROPERLY REJECTED BY PROCURING AGENCY
SINCE PROPOSAL WAS NOT SENT BY CERTIFIED OR REGISTERED MAIL AND THERE
HAS BEEN NO SHOWING THAT PROPOSAL WAS MISHANDLED BY AGENCY AFTER ITS
RECEIPT.
HUGHES INDUSTRIES:
HUGHES INDUSTRIES (HUGHES) PROTESTS THE REJECTION OF ITS PROPOSAL AS
LATE BY THE UNITED STATES ARMY ARMAMENT MATERIAL READINESS COMMAND
(ARMY), ROCK ISLAND, ILLINOIS, UNDER REQUEST FOR PROPOSALS (RFP) NO.
DAAA09-79-R-4680.
THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS WAS 3:45 P.M., MAY 22,
1979. HUGHES STATES THAT ITS PROPOSAL WAS SIGNED AND SENT VIA THE
UNITED STATES POSTAL SERVICE, BY REGULAR MAIL, TO THE ARMY ON MAY 18,
1979. HOWEVER, HUGHES' PROPOSAL WAS NOT RECEIVED BY THE ARMY UNTIL MAY
23, 1979, 1 DAY AFTER THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.
HUGHES DOES NOT DISPUTE THE FACT THAT ITS PROPOSAL WAS RECEIVED LATE.
HUGHES, HOWEVER, CONTENDS THAT ITS OFFER SHOULD BE CONSIDERED BECAUSE:
(1) HUGHES IS CURRENTLY AND HAS IN THE PAST SEVERAL YEARS MANUFACTURED
THE REQUESTED PROCUREMENT ITEM, AND (2) IT SEEMS "WASTEFUL" FOR THE
GOVERNMENT TO REJECT AN OFFER FROM A "REPUTABLE VENDOR" BECAUSE OF THE
POSTAL SERVICE'S FAILURE TO TIMELY DELIVER ITS PROPOSAL WHEN THERE WAS
SUFFICIENT TIME TO DO SO.
DEFENSE ACQUISITION REGULATION SEC. 7-2002.4 (1976 ED.), "LATE
PROPOSALS, MODIFICATIONS OF PROPOSALS AND WITHDRAWALS OF PROPOSALS,"
WHICH WAS INCORPORATED INTO THE RFP, STATES:
"(A) ANY PROPOSAL RECEIVED AT THE OFFICE DESIGNATED IN THE
SOLICITATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE
CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE; AND
"(I) IT WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE
FIFTH CALENDAR DAY PRIOR TO THE DATE SPECIFIED FOR RECEIPT OF OFFERS
***;
"(II) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS
DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO
MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT
INSTALLATION; OR
"(III) IT IS THE ONLY PROPOSAL RECEIVED."
IT IS OUR VIEW THAT THE REJECTION OF HUGHES' PROPOSAL BY THE
CONTRACTING OFFICER WAS PROPER. HUGHES' PROPOSAL, IN ORDER TO BE
PROPERLY CONSIDERED, SHOULD HAVE BEEN DELIVERED TO THE DESIGNATED OFFICE
PRIOR TO THE CLOSING DATE SET FOR RECEIPT OF INITIAL PROPOSALS, BUT WAS
NOT RECEIVED UNTIL 1 DAY AFTER THE TIME SPECIFIED. OUR OFFICE HAS
CONSISTENTLY HELD THAT AN OFFEROR HAS THE RESPONSIBILITY TO ASSURE
TIMELY ARRIVAL OF ITS OFFER AND MUST BEAR THE RESPONSIBILITY FOR ITS
LATE ARRIVAL. LATE RECEIPT OF AN OFFER WILL RESULT IN ITS REJECTION
UNLESS THE SPECIFIC CONDITIONS OF THE RFP ARE MET. H. OLIVER WELCH &
COMPANY, B-193870, FEBRUARY 9, 1979, 79-1 CPD 96.
UNDER THE TERMS OF THE RFP A LATE OFFER MAY BE CONSIDERED IF SENT BY
REGISTERED OR CERTIFIED MAIL IN THE MANNER OUTLINED ABOVE, WHICH IS NOT
THE CASE HERE, OR WHERE THE "LATE RECEIPT WAS DUE SOLELY TO MISHANDLING
BY THE GOVERNMENT INSTALLATION" MAKING THE PROCUREMENT. FURTHERMORE,
THE POSTAL SERVICE'S FAILURE TO TIMELY DELIVER THE PROPOSAL DOES NOT
CONSTITUTE GOVERNMENT MISHANDLING AT A GOVERNMENT INSTALLATION. KESSEL
KITCHEN EQUIPMENT CO., INC., B-189447, OCTOBER 5, 1977, 77-2 CPD 271.
GENERALLY, OUR OFFICE REQUESTS A REPORT FROM THE PROCURING AGENCY
UPON RECEIPT OF A BID PROTEST IN ACCORDANCE WITH OUR BID PROTEST
PROCEDURES, 4 C.F.R. PART 20 (1978). HOWEVER, WHERE IT IS CLEAR FROM A
PROTESTER'S SUBMISSION THAT THE PROTEST IS LEGALLY WITHOUT MERIT, WE
WILL DECIDE THE MATTER ON THAT BASIS. H. OLIVER WELCH & COMPANY, SUPRA.
THEREFORE, THE PROTEST IS SUMMARILY DENIED.
B-192008, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
WHILE FOLLOWING INITIAL TECHNICAL EVALUATION AWARDEE'S PROPOSAL WAS
RATED 9.8 POINTS LOWER THAN HIGHEST RATED TECHNICAL PROPOSAL, RESOLUTION
OF TWO AREAS OF CONCERN THROUGH SITE VISIT HAD EFFECT OF REDUCING POINT
DIFFERENTIAL. THEREFORE, PROCURING AGENCY HAD RATIONAL BASIS FOR
CONCLUDING PROPOSALS WERE ESSENTIALLY EQUAL FROM TECHNICAL STANDPOINT
AND AWARD BASED ON LOWER COST IS NOT OBJECTIONABLE.
MOSHMAN ASSOCIATES, INC.:
ON JANUARY 16, 1979, OUR OFFICE ISSUED ITS DECISION ON THE PROTEST OF
MOSHMAN ASSOCIATES, INC. (B-192008, 79-1 CPD 23), AGAINST THE AWARD OF
A CONTRACT TO ANALYSIS, MANAGEMENT AND PLANNING, INC. (AMPI) BY THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), UNDER REQUEST FOR
PROPOSALS NO. HRA-230-7B-0567. SINCE HEW FOUND THE OFFERS TO BE
ESSENTIALLY EQUAL TECHNICALLY, AWARD WAS MADE TO AMPI BASED ON ITS LOWER
PROPOSED COST.
FOLLOWING THE INITIAL TECHNICAL EVALUATION OF THE PROPOSALS, MOSHMAN
RECEIVED 92.2 POINTS OUT OF A POSSIBLE 100 POINTS AND AMPI SCORED 82.4
POINTS, OR A POINT DIFFERENCE OF 9.8 POINTS. FOLLOWING BEST AND FINAL
OFFERS, WHICH WERE NOT NUMERICALLY RESCORED, HEW DETERMINED THE
PROPOSALS TO BE ESSENTIALLY EQUAL FROM A TECHNICAL STANDPOINT. OUR
PRIOR DECISION NOTED THAT NOTHING IN THE RECORD SUPPORTED THIS
DETERMINATION AND WE REQUESTED HEW TO SUPPLY OUR OFFICE WITH THE
RATIONALE BEHIND THIS ACTION.
HEW HAS NOW SUBMITTED TO OUR OFFICE ITS RESPONSE TO OUR JANUARY 16,
1979, DECISION EXPLAINING THE RATIONALE UTILIZED BY THE CONTRACTING
OFFICER.
FOLLOWING RECEIPT AND REVIEW OF THIS EXPLANATION, MOSHMAN HAS
REQUESTED OUR OFFICE NOT TO ACCEPT THE REASONS ADVANCED BY HEW AND TO
RECOMMEND TERMINATION OF AMPI'S PERFORMANCE UNDER PHASE II OF THE
CONTRACT (OPTION PORTION), WHICH WAS AWARDED ON MARCH 29, 1979. MOSHMAN
CONTENDS THAT THE MAJORITY OF HEW'S RESPONSE RELATES TO COST AND NOT THE
TECHNICAL RATINGS OF THE TWO OFFERORS AND ADDS NOTHING NEW TO THE RECORD
WHICH SUPPORTS HEW'S AWARD.
HEW EXPLAINS THAT TWO AREAS OF CONCERN WITH AMPI'S PROPOSAL WERE THE
SUFFICIENCY OF THE STAFF IN THE COMPANY'S LOCAL OFFICE AND THE
AVAILABILITY OF A WORD PROCESSING SYSTEM AT THAT LOCALE. FOLLOWING A
SITE VISIT, IT WAS CONFIRMED THAT THE PROJECT DIRECTOR AND LOGISTICS
COORDINATOR WERE FULL-TIME STAFF AT THE LOCAL OFFICE AND THAT AMPI DID
HAVE A WORD PROCESSING SYSTEM.
MOSHMAN ARGUES THAT WHILE THE FACT THAT A SITE VISIT WAS MADE WAS
EVIDENT IN HEW'S INITIAL REPORT TO OUR OFFICE ON THE PROTEST, THAT
REPORT ONLY NOTED THE SITE VISIT WAS MADE AND NOT WHAT WAS RESOLVED
DURING THE VISIT.
REGARDING THE DIFFERENCE IN THE TECHNICAL POINT SCORES OF THE TWO
OFFERORS, WE HAVE CONSISTENTLY STATED THAT TECHINCAL POINT RATINGS ARE
USEFUL AS GUIDES FOR INTELLIGENT DECISION-MAKING, BUT WHETHER A GIVEN
POINT SPREAD BETWEEN TWO COMPETING PROPOSALS INDICATES A SIGNIFICANT
SUPERIORITY OF ONE PROPOSAL OVER ANOTHER DEPENDS UPON THE FACTS AND
CIRCUMSTANCES OF EACH PROCUREMENT AND IS PRIMARILY A MATTER WITHIN THE
DISCRETION OF THE PROCURING AGENCY. GREY ADVERTISING, INC., 55 COMP.
GEN. 1111 (1976), 76-1 CPD 325. OUR OFFICE HAS FOUND A POINT DIFFERENCE
AS GREAT AS 8.1 PERCENT NOT SUFFICIENT TO RENDER ONE PROPOSAL
TECHNICALLY SUPERIOR TO THE LOWER RATED PROPOSAL. 52 COMP. GEN. 686
(1973) AND SOUTHERN CALIFORNIA OCEAN STUDIES CONSORTIUM, 56 COMP. GEN.
725 (1977), 77-1 CPD 440.
THEREFORE, WHILE FOLLOWING THE INITIAL TECHNICAL EVALUATION THE TWO
PROPOSALS WERE 9.8 POINTS APART, WE BELIEVE THE SITE VISIT AND THE
RESOLUTION OF THE TWO AREAS OF CONCERN WOULD HAVE HAD THE EFFECT OF
NARROWING THE DIFFERENCE AND REASONABLY SUPPORT THE CONTRACTING
OFFICER'S CONCLUSION THAT THE PROPOSALS WERE ESSENTIALLY EQUAL
TECHNICALLY.
ONCE PROPOSALS HAVE BEEN DETERMINED TO BE ESSENTIALLY EQUAL
TECHNICALLY, COST CAN BECOME THE DETERMINING FACTOR IN THE AWARD
PROCESS, NOTWITHSTANDING THAT COST WAS DESIGNATED A RELATIVELY
UNIMPORTANT EVALUATION FACTOR IN THE SOLICITATION. BUNKER RAMO
CORPORATION, 56 COMP. GEN. 712 (1977), 77-1 CPD 427.
ACCORDINGLY, WE FIND HEW HAS RATIONALLY SUPPORTED ITS AWARD
SELECTION.
B-192506, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. COMPETITIVE PROCUREMENT OF REMOTE TERMINALS IS NOT BREACH OF
PROTESTER'S REQUIREMENTS CONTRACT WHERE PROTESTER CANNOT SHOW THAT
TERMINALS AVAILABLE UNDER REQUIREMENTS CONTRACT WOULD MEET ALL OF
AGENCY'S NEEDS AT TIME OF SUBMISSION OF INITIAL OFFERS UNDER COMPETITIVE
SOLICITATION. IT IS NOT SUFFICIENT THAT PROTESTER PROPOSES TO HAVE SUCH
EQUIPMENT AVAILABLE UNDER REQUIREMENTS CONTRACT BY DELIVERY DATE IN
SOLICITATION.
2. SOLICITATION FOR FOUR REMOTE TERMINALS WHICH CONTAINS OPTION TO
INCREASE QUANTITY TO 50 UNITS IS WITHIN TERMS OF DELEGATION OF
PROCUREMENT AUTHORITY (DPA) WHICH SPECIFIES 17 UNITS SINCE BASE QUANTITY
IS WITHIN THE DPA QUANTITY. IF OPTION IS EXERCISED SO THAT QUANTITY
EXCEEDS 17 UNITS ADDITIONAL DELEGATION AUTHORITY MUST BE OBTAINED.
ASTRONAUTICS CORPORATION OF AMERICA:
ASTRONAUTICS CORPORATION OF AMERICA (ACA) OBJECTS TO THE ISSUANCE OF
RFP DCA 200-78-R-0016 ON JUNE 23, 1978, BY THE DEFENSE COMMUNICATION
AGENCY (DCA) FOR LEASING OF FOUR (WITH AN OPTION TO INCREASE THE
QUANTITY TO 50) AUTODIN REMOTE TERMINALS FOR USE BY THE NAVY. AUTODIN
IS A DEPARTMENT OF DEFENSE COMMUNICATIONS NETWORK WHICH SWITCHES MESSAGE
TRAFFIC. AN AUTODIN REMOTE TERMINAL IS A DEVICE WHICH RECEIVES AND
TRANSMITS MESSAGES THROUGH AUTODIN.
ACA IS THE CURRENT HOLDER OF CONTRACT GS-OOC-50167 AWARDED IN 1975 BY
THE GENERAL SERVICES ADMINISTRATION (GSA) WHICH PROVIDES THAT ACA IS THE
MANDATORY SOURCE OF SUPPLY, WHEN IT MEETS AGENCY REQUIREMENTS, FOR
REMOTE TERMINALS AND OTHER RELATED EQUIPMENT. THIS CONTRACT CONTAINS
OPTION PROVISIONS WHICH PROVIDE FOR A POTENTIAL DURATION OF THIS
CONTRACT OF UP TO 96 MONTHS. GSA HAS DELEGATED THE ADMINISTRATION OF
THE CONTRACT TO THE ARMY.
ACA CONTENDS THAT THE RFP IS IMPROPER AS IT CAN SUPPLY EQUIPMENT
WHICH WILL FULFILL THE NAVY'S NEEDS UNDER THE REQUIREMENTS CONTRACT.
WE HAVE RECEIVED A SUBMISSION FROM SPERRY UNIVAC IN SUPPORT OF DCA'S
POSITION AND CORRESPONDENCE FROM THE PROJECT MANAGER DCS (ARMY)
COMMUNICATIONS SYSTEMS IN SUPPORT OF ACA'S PROTEST. WE HAVE CONSIDERED
THESE COMMUNICATIONS IN REACHING OUR CONCLUSION THAT THE ISSUANCE OF THE
RFP DID NOT CONSTITUTE A BREACH OF ACA'S REQUIREMENTS CONTRACT.
THE RFP SPECIFIES A REMOTE TERMINAL WHICH WILL INTERFACE DIRECTLY
WITH AUTODIN AND WHICH HAS THE FOLLOWING CHARACTERISTICS: (1) DAY
CLOCK, (2) STATION LOGS, (3) SPECIFIC AUDIO ALARM, AND (4) TAPE FORMATS
BB AND II. THE REQUIREMENTS CONTRACT AS ORIGINALLY AWARDED SEEMS TO
HAVE PROVIDED FOR REMOTE TERMINALS WHICH, EXCEPT FOR EMERGENCY
SITUATIONS, REQUIRED AN AUTOMATED MULTIMEDIA EXCHANGE (AMME) BETWEEN THE
TERMINAL AND AUTODIN. HOWEVER, BOTH ACA AND DCA APPEAR TO AGREE THAT AS
A RESULT OF ENGINEERING CHANGE PROPOSALS ACCEPTED UNDER THE CONTRACT DCA
COULD HAVE ORDERED REMOTE TERMINALS WHICH INTERFACED DIRECTLY WITH
AUTODIN UNDER THE ACA CONTRACT AT THE TIME THE RFP WAS ISSUED.
HOWEVER, DCA MAINTAINS THAT IT CANNOT NOW, NOR COULD IT WHEN THE RFP
WAS ISSUED, ORDER A REMOTE AUTODIN TERMINAL WHICH INCORPORATES THE DAY
CLOCK, STATION LOGS AND AUDIO ALARM FEATURES ALONG WITH THE REQUIRED
TAPE FORMATS UNDER THE ACA CONTRACT. THE AGENCY DOES INDICATE THAT THE
ARMY IS WORKING ON A FIRMWARE PROJECT UNDER THE ACA CONTRACT WHICH WILL
UPGRADE ACA'S EQUIPMENT SO THAT IT CAN MEET ALL DCA'S REQUIREMENTS.
HOWEVER, WE ARE INFORMED BY DCA THAT THIS PROJECT, WHICH WAS SCHEDULED
FOR COMPLETION IN MARCH 1979, IS NOT EXPECTED TO BE READY UNTIL JULY
1979. EVEN IF ACA CAN MEET ALL OF DCA'S REQUIREMENTS UNDER THE CONTRACT
THE AGENCY QUESTIONS THE PROPRIETY OF EXPANDING, WITHOUT COMPETITION,
THE SUBJECT MATTER OF THE CONTRACT FROM RELATIVELY SIMPLE REMOTE
TERMINALS TO COMPLEX STAND ALONE AUTODIN MESSAGE PROCESSERS.
ACA INSISTS THAT IT CAN PROVIDE A REMOTE TERMINAL WHICH WILL MEET ALL
DCA'S NEEDS UNDER THE REQUIREMENTS CONTRACT. ACA ARGUES THAT THE
PROVISIONS OF THE MANDATORY REQUIREMENTS CONTRACT ENVISION THE CHANGES
IN CONTROL LOGIC NEEDED TO MEET DCA'S NEEDS.
WE AGREE WITH ACA'S POSITION THAT THE CONTRACT PERMITS CONTINUING
DEVELOPMENT OF CONTROL LOGIC. THERE ARE NUMEROUS PROVISIONS THROUGHOUT
SECTION C OF THE CONTRACT WHICH EMPHASIZE THIS FEATURE. FOR EXAMPLE,
PARAGRAPH 1.12 PROVIDES "THE CONTRACTOR SHALL FURNISH THE SOFTWARE
(CONTROL LOGIC) LISTED IN SECTION F AND SHALL SUPPORT AND MAINTAIN SUCH
SOFTWARE, AS WELL AS ANY MODIFICATION THEREOF ***. THE SUPPORT PROVIDED
WILL CONSIST OF *** THE PROVISION OF MODIFICATIONS AND IMPROVEMENTS THAT
THE CONTRACTOR MAY DEVELOP ***"; PARAGRAPH 1.12.3 STATES "IN ADDITION,
THE CONTRACTOR WILL MAKE AVAILABLE ANY OTHER SOFTWARE WHICH HE HAS
ANNOUNCED OR MAY ANNOUNCE IN THE FUTURE FOR GENERAL USE ***" AND
PARAGRAPH 1.15.4C PROVIDES "(THE CONTRACTOR SHALL) DEVELOP, DOCUMENT AND
IMPLEMENT CHANGES TO THE CONTROL LOGIC PROPOSED BY THE GOVERNMENT ***."
IT IS TRUE, AS DCA ARGUES, THAT WE HAVE HELD THAT MODIFIED
REQUIREMENTS UNDER AN EXISTING CONTRACT MUST BE RECOMPETED WHEN THE
ALTERATION IS NOT WITHIN THE SCOPE OF THE COMPETITION AS INITIALLY
CONDUCTED. AMERICAN AIR FILTER CO. - DLA REQUEST FOR RECONSIDERATION,
57 COMP. GEN. 567 (1978), 78-1 CPD 443. NEVERTHELESS, WE DO NOT BELIEVE
RECOMPETITION IS REQUIRED HERE, WHERE THE CONTRACT AS ORIGINALLY AWARDED
CONTAINS NUMEROUS PROVISIONS WHICH PERMIT THE EXPANSION OF CONTROL LOGIC
CHARACTERISTICS.
ALTHOUGH ACA MAINTAINS THAT IT CAN SUPPLY EQUIPMENT WHICH HAS ALL THE
REQUIRED FEATURES ITS STATEMENTS ARE VAGUE REGARDING THEIR AVAILABILITY
DATE. ACA STATES THAT THE CONTRACTING OFFICER ISSUED A TASK ORDER UNDER
THE CONTRACT FOR CONTROL LOGIC FOR STATION LOGS AND THE REQUIRED TAPE
FORMATS AND CITES A SEPTEMBER 14, 1977, LETTER TO ACA REQUESTING THE
DEVELOPMENT OF THESE FEATURES. THERE IS NO FURTHER DOCUMENTATION
INDICATING WHEN OR IF THESE FEATURES HAVE BEEN INCORPORATED INTO THE ACA
CONTRACT. FURTHER ACA STATES IT DEVELOPED AND MADE AVAILABLE TO THE
GOVERNMENT THE CONTROL LOGIC NECESSARY FOR A DAY CLOCK. AGAIN, THERE IS
NO INDICATION WHEN THIS WAS MADE AVAILABLE UNDER THE CONTRACT. ALSO ACA
NOTES THAT THE ORIGINAL CONTRACT PROVIDED FOR AN AUDIO ALARM.
MOREOVER ACA CONTINUES BY STATING "THE CONTRACTING OFFICER UNDER THE
MANDATORY CONTRACT HAS CONFIRMED THAT THESE ITEMS WILL BE AVAILABLE FROM
THE ARMY BEFORE THE MIDDLE OF MARCH ***." ACA FURTHER ARGUES THAT SINCE
THE ARMY SOFTWARE WILL BE AVAILABLE BY MARCH THERE IS NO JUSTIFICATION
FOR NOT ORDERING THE EQUIPMENT FROM ACA UNDER THE REQUIREMENTS CONTRACT.
THEREFORE IT APPEARS THAT ACA IS NOT ABLE TO SHOW THAT AS OF JUNE 23,
1978, WHEN THE RFP WAS ISSUED, OR AUGUST 2, 1978, THE DATE INITIAL
PROPOSALS WERE DUE OR NOVEMBER 27, 1978, THE DATE BEST AND FINAL OFFERS
WERE RECEIVED, IT COULD HAVE PROVIDED EQUIPMENT MEETING ALL OF DCA'S
NEEDS UNDER ITS REQUIREMENTS CONTRACT. THIS CONCLUSION IS IN PART
SUPPORTED BY A MESSAGE FROM THE ARMY CONTRACTING OFFICER DATED FEBRUARY
2, 1978, WHICH STATES THAT EQUIPMENT UNDER THE ACA CONTRACT DID NOT, AT
THAT TIME, MEET ALL THE CITED REQUIREMENTS. BASED ON THAT ASSURANCE ON
FEBRUARY 13, 1978, GSA ISSUED A MODIFICATION TO AN EXISTING DELEGATION
OF PROCUREMENT AUTHORITY (DPA) UNDER WHICH DCA ISSUED THE SUBJECT RFP.
ACA ARGUES THAT IT PROPOSED THE SAME EQUIPMENT AVAILABLE UNDER ITS
REQUIREMENTS CONTRACT IN RESPONSE TO THE SUBJECT RFP AND NOTES THAT IT
WAS CONSIDERED BY DCA TO BE TECHNICALLY ACCEPTABLE. ACCORDINGLY ACA
CONCLUDES IT CAN SUPPLY THE EQUIPMENT UNDER ITS REQUIREMENTS CONTRACT AT
THE DESIRED DELIVERY DATES.
SEVERAL OFFERORS, INCLUDING ACA HAVE SUBMITTED PROPOSALS UNDER THE
SUBJECT RFP WHICH, AS AMENDED CONTAINED DESIRED DELIVERY DATES RANGING
FROM FEBRUARY 1979 TO MAY 1979. AWARD HAS BEEN WITHHELD PENDING
RESOLUTION OF THIS PROTEST.
ACA WILL BE ABLE TO FULLY MEET DCA'S NEEDS IF AND WHEN THE ARMY
FIRMWARE PROJECT IS COMPLETED. HOWEVER THE FACT THAT ACA INDICATED IN
ITS PROPOSAL THAT EQUIPMENT AVAILABLE UNDER ITS REQUIREMENTS CONTRACT
WOULD MEET DCA'S NEEDS AT A FUTURE DATE (THE DELIVERY DATE) DOES NOT
PROVE THAT ACA'S REQUIREMENTS CONTRACT COVERED SUCH EQUIPMENT AT THE
TIME THE RFP WAS ISSUED, OR WHEN THE PROPOSAL WAS SUBMITTED OR, IN FACT,
WOULD EVER COVER EQUIPMENT WHICH WILL MEET DCA'S REQUIREMENTS. IF
AWARDED A CONTRACT UNDER THE RFP, ACA WOULD BE OBLIGATED TO SUPPLY
CONFORMING EQUIPMENT WHETHER OR NOT ITS REQUIREMENTS CONTRACT WITH GSA
EVER INCLUDES SUCH CONFORMING EQUIPMENT.
WE HAVE HELD THAT THE TIME FOR RESOLVING THE APPLICABILITY OF A
REQUIREMENTS CONTRACT IS WHEN THE GOVERNMENT IS IN POSSESSION OF A
BINDING OFFER THAT COULD BE ACCEPTED FOR THE EQUIPMENT IN QUESTION.
PULASKI FURNITURE CORPORATION, B-188440, AUGUST 10, 1977, 77-2 CPD 107.
IN A SITUATION SUCH AS THE INSTANT ONE CONCERNING A NEGOTIATED
PROCUREMENT THE CRITICAL TIME FOR DETERMINING WHETHER THE EQUIPMENT
AVAILABLE UNDER THE REQUIREMENTS CONTRACT COULD MEET DCA'S NEEDS WOULD
NORMALLY BE THE DATE OF SUBMISSION OF INITIAL OFFERS, ASSUMING, AS WAS
THE CASE HERE, THAT AT LEAST ONE OF THOSE OFFERS WAS ACCEPTABLE. WE
HAVE FOUND THAT ACA HAS NOT BEEN ABLE TO SHOW THAT, AS OF THE DATE OF
SUBMISSION OF INITIAL OFFERS UNDER THE SUBJECT RFP (AUGUST 2), EQUIPMENT
MEETING ALL OF DCA'S NEEDS WAS AVAILABLE UNDER THE TERMS OF ACA'S
REQUIREMENTS CONTRACT. THEREFORE DCA'S COMPETITIVE PROCUREMENT OF THIS
EQUIPMENT IS NOT A BREACH OF ACA'S CONTRACT WITH GSA WHICH ONLY
OBLIGATES THE GOVERNMENT TO USE ACA AS A SOURCE OF SUPPLY FOR REMOTE
TERMINALS WHEN THE EQUIPMENT OFFERED UNDER THAT CONTRACT "MEETS
AGENCIES' REQUIREMENTS."
ACA ALSO COMPLAINS THAT SINCE THE RFP CONTAINS AN OPTION TO INCREASE
THE QUANTITY BY UP TO 50 UNITS IT EXCEEDS THE TERMS OF THE FEBRUARY 13
DPA WHICH CALLS FOR THE ACQUISITION OF 17 TERMINALS. IN VIEW OF THE
FACT THAT THE RFP PROVIDES FOR A BASE QUANTITY OF FOUR TERMINALS IT IS
WITHIN THE TERMS OF THE DPA. HOWEVER, IF DCA SEEKS TO EXERCISE THE
OPTION FOR AN ADDITIONAL QUANTITY SO THAT A TOTAL OF MORE THAN 17 UNITS
IS TO BE ACQUIRED IT WILL HAVE TO OBTAIN APPROPRIATE AUTHORITY FROM GSA.
IN ADDITION, WE BELIEVE DCA SHOULD CONSIDER THE POSSIBLE AVAILABILITY
OF CONFORMING EQUIPMENT UNDER THE ACA REQUIREMENTS CONTRACT PRIOR TO
ORDERING ANY OF THE OPTION QUANTITIES.
THE PROTEST IS DENIED.
B-193384/B-193544/B-194035, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. EMPLOYEE WORKED 5 CONSECUTIVE 8-HOUR DAYS, TUESDAY THROUGH
SATURDAY. ON WEDNESDAY HIS SCHEDULE WAS CHANGED AND THE NEXT WEEK HE
WORKED SUNDAY AND TUESDAY THROUGH FRIDAY WITH MONDAY AND SATURDAY OFF.
ALTHOUGH HE WORKED 6 CONSECUTIVE 8-HOUR DAYS, HE IS NOT ENTITLED TO
OVERTIME UNDER 5 U.S.C. SEC. 5542 OR THE FAIR LABOR STANDARDS ACT SINCE
HE DID NOT WORK MORE THAN 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR IN A
WORKWEEK OF 7 CONSECUTIVE 24-HOUR PERIODS AS REQUIRED BY THE RESPECTIVE
STATUTES AND REGULATIONS.
2. EMPLOYEES WHOSE BASIC WORKWEEK CONSISTED OF 5 8-HOUR DAYS BETWEEN
MONDAY AND SATURDAY WORKED ON SUNDAY. THEY ARE ENTITLED TO 8 HOURS OF
OVERTIME PAY AND NOT TO 8 HOURS OF SUNDAY PREMIUM PAY AND 8 HOURS OF
OVERTIME PAY. SUNDAY PREMIUM PAY UNDER 5 U.S.C. SEC. 5546(A) IS
PAYABLE ONLY FOR WORK WITHIN THE BASIC WORKWEEK AND AN AGENCY IS NOT
REQUIRED TO DESIGNATE SUNDAY AS PART OF THE BASIC WORKWEEK.
3. EMPLOYEES WORKED 8-HOUR SHIFTS BEGINNING AT 2306 AND 2300,
RESPECTIVELY, IMMEDIATELY PRECEDING WORK ON HOLIDAY. THEY WERE PROPERLY
PAID ONLY 7.1 AND 7 HOURS OF HOLIDAY PREMIUM PAY, RESPECTIVELY. UNDER 5
U.S.C. SEC. 5546(B) AN EMPLOYEE MAY BE PAID HOLIDAY PREMIUM PAY ONLY FOR
WORK PERFORMED ON A HOLIDAY. THERE IS NO REQUIREMENT THAT AN AGENCY
SCHEDULE WORK FOR AN EMPLOYEE ON A HOLIDAY. ALSO, PURPOSE OF
ESTABLISHING HOLIDAYS SUCH AS SET FORTH IN 5 U.S.C. SEC. 6103 IS TO GIVE
EMPLOYEES THE BENEFIT OF TIME OFF WITHOUT LOSS OF REGULAR COMPENSATION
AND NOT TO ESTABLISH AN ADDITIONAL FORM OF COMPENSATION REPRESENTED BY
PREMIUM PAY FOR HOLIDAYS WORKED.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION - OVERTIME - SUNDAY
AND HOLIDAY PREMIUM PAY:
THIS ACTION IS IN RESPONSE TO THREE REQUESTS FOR DECISIONS FROM
WILLIAM B. PEER, GENERAL COUNSEL OF THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, CONCERNING THE ENTITLEMENT OF AIR TRAFFIC
CONTROLLERS TO PREMIUM PAY FOR OVERTIME WORK, AND WORK ON SUNDAYS AND
HOLIDAYS. ALTHOUGH THE FACTS IN EACH OF THE GRIEVANCES PRESENTED
DIFFER, THE ISSUES RAISED ARE SIMILAR, AND, THEREFORE, THE THREE
REQUESTS ARE BEING TREATED TOGETHER.
PURSUANT TO SECTION 21.5 OF OUR PROCEDURES FOR DECISIONS ON
APPROPRIATED FUND EXPENDITURES IN THE FEDERAL LABOR-MANAGEMENT RELATIONS
PROGRAM, PART 21, TITLE 4, CODE OF FEDERAL REGULATIONS (1979), 43 FED.
REG. 32395-97 (JULY 27, 1978), COPIES OF THE REQUESTS WERE SERVED ON THE
MANAGEMENT REPRESENTATIVE OF THE FEDERAL AVIATION ADMINISTRATION (FAA).
THE AGENCY HAS INFORMALLY ADVISED US THAT IT WILL NOT FILE A WRITTEN
RESPONSE OR COMMENTS.
PREMIUM PAY FOR OVERTIME AND WORK ON SUNDAYS
THE QUESTIONS RELATING TO PREMIUM PAY FOR OVERTIME WORK AND WORK ON
SUNDAYS ARE BASED UPON THE FOLLOWING THREE SITUATIONS. IN EACH
INSTANCE, WE UNDERSTAND THAT THE EMPLOYEES INVOLVED ARE COVERED BY THE
FAIR LABOR STANDARDS ACT (FLSA) 29 U.S.C. SECS. 203 AND 207 (1976).
THEREFORE, PREMIUM PAY FOR OVERTIME WORK IS PAYABLE UNDER 5 U.S.C. SEC.
5542 (1976) OR 29 U.S.C. SEC. 207 (1976), WHICHEVER GIVES THE EMPLOYEES
THE GREATER BENEFIT. ATTACHMENT 5 TO FEDERAL PERSONNEL MANUAL LETTER
NO. 551-1, MAY 15, 1974. PREMIUM PAY FOR SUNDAY WORK IS PAYABLE
PURSUANT TO 5 U.S.C. SEC. 5546(A) (1976) AT THE RATE OF BASE PAY PLUS 25
PERCENT.
1. AN EMPLOYEE WORKED 5 CONSECUTIVE 8-HOUR DAYS, TUESDAY THROUGH
SATURDAY, WITH SUNDAY AND MONDAY AS REGULAR DAYS OFF. ON WEDNESDAY HE
WAS ADVISED THAT HIS NORMALLY ASSIGNED SCHEDULE WOULD BE CHANGED AND HE
WOULD WORK ON SUNDAY, AND WOULD HAVE MONDAY AND SATURDAY OFF. THUS, HIS
SCHEDULE FOR THE 2-WEEK PERIOD WAS AS FOLLOWS:
S M T W T F S TOTAL
8 8 8 8 8 40
8 8 8 8 8 40
HE RECEIVED NO OVERTIME PAY. THE UNION ASKS WHY HE DID NOT RECEIVE
OVERTIME PAY FOR WORK ON SUNDAY SINCE HE WORKED 6 CONSECUTIVE 8-HOUR
DAYS.
2. EMPLOYEES WHO NORMALLY WORKED 5 CONSECUTIVE 8-HOUR DAYS - MONDAY
THROUGH FRIDAY WITH SATURDAY AND SUNDAY OFF, OR TUESDAY THROUGH SATURDAY
WITH SUNDAY AND MONDAY OFF - WERE SCHEDULED IN ADVANCE TO WORK 8
ADDITIONAL HOURS ON SUNDAY. THEY WERE PAID OVERTIME FOR THE 8 HOURS
WORKED ON SUNDAY, AND RECEIVED NO OTHER PREMIUM PAY. THE UNION ASKS WHY
SUNDAY, THE FIRST DAY OF THE WEEK WAS DESIGNATED AS THE OVERTIME DAY.
IT ARGUES THAT THE OVERTIME DAY SHOULD HAVE BEEN THE LAST DAY OF THE
WEEK, NOT THE FIRST DAY. IF THIS WERE SO, THE EMPLOYEES WOULD HAVE
RECEIVED SUNDAY PREMIUM PAY FOR WORK ON SUNDAY, PLUS OVERTIME PAY FOR
THE LAST 8 HOURS WORKED ON FRIDAY OR SATURDAY.
3. THE THIRD SITUATION INVOLVES THE SAME QUESTIONS POSED ABOVE. AN
EMPLOYEE WORKED 5 CONSECUTIVE 8-HOUR DAYS, TUESDAY THROUGH SATURDAY WITH
SUNDAY AND MONDAY AS REGULAR DAYS OFF. HE WAS ASSIGNED IN ADVANCE TO
WORK OVERTIME ON SUNDAY, SO THAT HIS SCHEDULE WAS AS FOLLOWS:
S M T W T F S TOTAL
8 8 8 8 8 40
8 8 8 8 8 8 48
HE WAS PAID OVERTIME FOR THE 8 HOURS WORKED ON SUNDAY, AND RECEIVED
NO OTHER PREMIUM PAY. THE UNION ASKS IF HIS ENTITLEMENT TO 8 HOURS OF
OVERTIME PAY WAS BASED UPON THE FACT THAT HE WORKED 6 CONSECUTIVE 8-HOUR
DAYS. FURTHER, AS IN THE SECOND SITUATION DESCRIBED ABOVE, THE UNION
ASKS WHY THE EMPLOYEE DID NOT RECEIVE PREMIUM PAY FOR SUNDAY WORK, AND
OVERTIME PAY FOR THE LAST 8 HOURS WORKED ON SATURDAY.
THE FIRST ISSUE IS WHETHER OR NOT EMPLOYEES ARE ENTITLED TO OVERTIME
COMPENSATION FOR WORK IN EXCESS OF 5 CONSECUTIVE 8-HOUR DAYS. UNDER THE
PROVISIONS OF SECTION 5542, TITLE 5, OF THE UNITED STATES CODE, OVERTIME
WORK MEANS EACH HOUR OF WORK IN EXCESS OF 8 HOURS IN A DAY OR IN EXCESS
OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK. 5 C.F.R. SEC. 550.111(A).
AN ADMINISTRATIVE WORKWEEK CONSISTS OF 7 CONSECUTIVE CALENDAR DAYS. 5
C.F.R. SEC. 610.102(A) (1978). OVERTIME IS PAYABLE ONLY IF THE SIXTH OR
SEVENTH DAY IS WITHIN THE SAME ADMINISTRATIVE WORKWEEK AS THE FIRST 5
DAYS. IN OTHER WORDS, THE FACT THAT AN EMPLOYEE MAY BE REQUIRED TO WORK
MORE THAN 5 CONSECUTIVE 8-HOUR DAYS DOES NOT, IN ITSELF, GIVE RISE TO AN
ENTITLEMENT TO OVERTIME COMPENSATION. IT IS POSSIBLE, IN FACT, FOR AN
EMPLOYEE TO WORK 10 CONSECUTIVE 8-HOUR DAYS - 5 IN EACH OF 2
ADMINISTRATIVE WORKWEEKS - AND NOT BE ENTITLED TO OVERTIME COMPENSATION.
B-166794, MAY 23, 1969.
SIMILARLY, UNDER THE FLSA ENTITLEMENT TO OVERTIME COMPENSATION IS
BASED UPON THE NUMBER OF HOURS AN EMPLOYEE WORKS IN A WORKWEEK. TO
COMPUTE OVERTIME, THE EMPLOYER MUST TOTAL ALL THE HOURS WORKED BY AN
EMPLOYEE IN 1 WORKWEEK AND PAY OVERTIME COMPENSATION FOR EACH HOUR IN
EXCESS OF 40. 29 C.F.R. SEC. 778.103 (1978). AS UNDER TITLE 5, THE
WORKWEEK CONSISTS OF 7 CONSECUTIVE 24-HOUR PERIODS. IT MAY COINCIDE
WITH THE CALENDAR WEEK, BUT NEED NOT, AND MAY BEGIN ON ANY DAY AT ANY
HOUR. ONCE ESTABLISHED, HOWEVER, IT REMAINS FIXED REGARDLESS OF THE
SCHEDULE WORKED BY THE EMPLOYEE. 29 C.F.R. SEC. 778.105 (1978). THE
FACT THAT AN EMPLOYEE MAY BE REQUIRED TO WORK MORE THAN 5 CONSECUTIVE
8-HOUR DAYS DOES NOT GIVE RISE TO AN ENTITLEMENT TO OVERTIME
COMPENSATION UNLESS MORE THAN 5 SUCH DAYS ARE WORKED IN THE SAME
WORKWEEK. AS UNDER TITLE 5, AN EMPLOYEE COULD WORK 10 CONSECUTIVE DAYS
- 5 IN EACH 2 WORKWEEKS - AND NOT BE ENTITLED TO OVERTIME COMPENSATION
UNDER THE FLSA. WE ARE NOT AWARE OF ANY PROVISION IN THE FLSA WHICH
REQUIRES AN EMPLOYER TO GIVE EMPLOYEES 2 CONSECUTIVE DAYS OFF, OR
REQUIRES PAYMENT OF OVERTIME COMPENSATION FOR WORK NOT IN EXCESS OF 40
HOURS IN 1 WORKWEEK.
THE ADMINISTRATIVE WORKWEEK IN FAA BEGINS AT 0000 SUNDAY AND ENDS AT
2400 SATURDAY. ASSUMING THE FLSA WORKWEEK ESTABLISHED BY FAA IS THE
SAME AS ITS ADMINISTRATIVE WORKWEEK, THE EMPLOYEE WHO WORKED THE
SCHEDULE DESCRIBED IN SITUATION 1 ABOVE WOULD NOT BE ENTITLED TO
OVERTIME COMPENSATION BECAUSE THE HOURS OF WORK IN NEITHER WORKWEEK
EXCEEDED 40. SIMILARLY, OVERTIME COMPENSATION PAID TO THE EMPLOYEE WHO
WORKED THE SCHEDULE DESCRIBED IN SITUATION 3 ABOVE, WOULD BE BASED UPON
THE FACT THAT HOURS WORKED IN THE SECOND WORKWEEK EXCEEDED 40 HOURS, NOT
UPON THE FACT THAT THE EMPLOYEE WORKED MORE THAN 5 CONSECUTIVE 8-HOUR
DAYS.
THE SECOND ISSUE RAISED BY THE UNION IS WHICH HOURS IN EXCESS OF 40
HOURS IN A WORKWEEK ARE TO BE DESIGNATED AS OVERTIME. AN EMPLOYEE IS
NOT ENTITLED TO SUNDAY PREMIUM PAY FOR OVERTIME WORK ON SUNDAY. 5
U.S.C. SEC. 5546(A) (1976); 5 C.F.R. SEC. 550.113(C) (1978).
ACCORDINGLY, IF WORK ON SUNDAY IS DESIGNATED AS OVERTIME, THE EMPLOYEES
WHO WORKED THE SCHEDULES DESCRIBED IN SITUATIONS 2 AND 3 ABOVE WOULD
RECEIVE ONLY 8 HOURS OF OVERTIME COMPENSATION. HOWEVER, IF THE LAST
HOURS WORKED IN A 48-HOUR WORKWEEK SHOULD HAVE BEEN DESIGNATED AS
OVERTIME HOURS, AS THE UNION ALLEGES, THEN THE EMPLOYEES WOULD BE
ENTITLED TO RECEIVE SUNDAY PREMIUM PAY FOR THE 8 HOURS WORKED ON SUNDAY,
PLUS OVERTIME PAY FOR THE LAST 8 HOURS WORKED ON FRIDAY OR SATURDAY.
THE LAW AND REGULATIONS ALSO PROVIDE THAT THE HEAD OF AN AGENCY SHALL
ESTABLISH A BASIC WORKWEEK OF 40 HOURS WITHIN THE ADMINISTRATIVE
WORKWEEK, AND REQUIRE THAT THE HOURS OF WORK WITHIN THAT WORKWEEK BE
PERFORMED WITHIN A PERIOD OF NOT MORE THAN 6 OF ANY 7 CONSECUTIVE DAYS.
5 U.S.C. SEC. 6101(A)(2) (1976); 5 C.F.R. SECS. 610.102, 610.111
(1978). FOR PURPOSES OF OVERTIME PAY ADMINISTRATION, AGENCIES ARE
REQUIRED TO SPECIFY BY CALENDAR DAYS AND NUMBER OF HOURS A DAY THE
PERIODS WHICH DO NOT CONSTITUTE A PART OF THE BASIC WORKWEEK. 5 C.F.R.
SEC. 610.111(A)(2) (1978). IN THE EXAMPLES PRESENTED BY THE UNION, THE
AGENCY HAS COMPLIED WITH THIS ADMINISTRATIVE REQUIREMENT BY SPECIFYING
THAT THE EMPLOYEES WILL BE GIVEN EITHER SATURDAY AND SUNDAY OR SUNDAY
AND MONDAY OFF; THEREFORE, THEIR BASIC WORKWEEK IS THE 5 DAYS IN THE
WEEK THAT THEY ARE SCHEDULED TO BE ON DUTY.
IN ACUNA V. UNITED STATES, 202 CT. CL. 206 (1973), CERT. DENIED 416
U.S. 905 (1974), THE COURT OF CLAIMS, IN A SIMILAR SITUATION, CONSTRUED
5 C.F.R. SEC. 610.111(A) AT PAGE 218 AS FOLLOWS:
"*** THERE IS NO REQUIREMENT IN THE CIVIL SERVICE COMMISSION'S
REGULATION THAT WORK REGULARLY SCHEDULED BEYOND THE 40-HOUR BASIC
WORKWEEK BE SCHEDULED AT THE END OF THE ADMINISTRATIVE WORKWEEK, AFTER
THE BASIC WORKWEEK HAS BEEN COMPLETED. THE REQUIREMENT IS SIMPLY THAT,
ONCE THE AGENCY HAS SELECTED SUCH PERIOD, ITS REGULATIONS SPECIFY THE
PERIOD BY CALENDAR DAY, ETC., REGARDLESS OF WHERE IN THE ADMINISTRATIVE
WORKWEEK IT OCCURS. ***"
IN 58 COMP. GEN. ___ (B-189197, MAY 16, 1979) WE CITED THE ACUNA CASE
AND HELD THAT EMPLOYEES WITH A REGULARLY SCHEDULED WORKWEEK FROM MONDAY
THROUGH FRIDAY, MIDNIGHT TO 8 A.M., WERE NOT ENTITLED TO SUNDAY PREMIUM
PAY FOR TIME WORKED IMMEDIATELY PRECEDING THE CLAIMANT'S MONDAY SHIFT.
WE ALSO HELD THAT THE FACT THAT THE EMPLOYEE WAS ENTITLED TO OVERTIME
UNDER THE FLSA DID NOT OPERATE TO CHANGE THE EMPLOYEE'S NORMAL WORKWEEK
AS ESTABLISHED UNDER 5 U.S.C. SEC. 6101 (1976) AND IMPLEMENTING
REGULATIONS.
IN VIEW OF THE ABOVE THE FAA DID NOT HAVE TO DESIGNATE SUNDAY AS PART
OF THE EMPLOYEES' BASIC WORKWEEKS AND PAYMENT OF OVERTIME PAY ONLY WAS
PROPER.
HOLIDAY PREMIUM PAY
THE UNION HAS ALSO ASKED QUESTIONS CONCERNING EMPLOYEES' ENTITLEMENT
TO HOLIDAY PREMIUM PAY IN THE TWO SITUATIONS BELOW.
1. AN EMPLOYEE WORKED A SHIFT COMMENCING AT 2306 ON THE 3RD OF JULY,
1978. THE EMPLOYEE ENDED HIS SHIFT AT 0706 ON THE 4TH OF JULY, 1978, A
FEDERAL HOLIDAY. THIS EMPLOYEE, AND OTHERS WORKING THE SAME SHIFT, WERE
PAID 8 HOURS OF REGULAR PAY PLUS NORMAL NIGHT DIFFERENTIAL, AND 7.1
HOURS OF HOLIDAY PREMIUM PAY. REGULATIONS PROVIDE FOR HOLIDAY PREMIUM
PAY ONLY FOR THE HOURS ACTUALLY WORKED ON THE HOLIDAY OR A DAY
ESTABLISHED IN LIEU OF THE HOLIDAY. ON THIS PREMISE, THE EMPLOYEES WERE
PAID CORRECTLY. HOWEVER, THE UNION STATES THAT OTHER REGULATIONS
PROVIDE FOR FEDERAL EMPLOYEES TO RECEIVE NINE PAID HOLIDAYS PER YEAR.
THE UNION APPARENTLY BELIEVES THAT THE EMPLOYEES SHOULD RECEIVE 72 HOURS
OF HOLIDAY PREMIUM PAY EACH YEAR. HOWEVER, AS THE EMPLOYEES WERE
WORKING THE LAST SHIFT OF A NORMAL 5-DAY WORKWEEK, THEY WERE UNABLE TO
OBTAIN THE OTHER .9 HOURS OF HOLIDAY PREMIUM PAY ON THE FOLLOWING DAY.
SINCE THE EMPLOYEES WERE DENIED .9 HOURS OF HOLIDAY PREMIUM PAY THROUGH
SCHEDULING, RATHER THAN THROUGH A FAULT OF THEIR OWN, THE UNION ASKS IF
THE EMPLOYEES ARE ENTITLED TO 8 HOURS OF HOLIDAY PREMIUM PAY, AND IF SO,
HOW IS IT PAID.
2. AN EMPLOYEE AT THE KANSAS CITY AIR TRAFFIC CONTROL TOWER WORKED
AN 8-HOUR SHIFT FROM 0700 TO 1500. THE SAME EMPLOYEE WAS THEN SCHEDULED
TO WORK THE MID-WATCH FROM 2300 OF THAT SAME DAY TO 0700 OF THE
FOLLOWING DAY, WHICH WAS A HOLIDAY. IT IS THE FACILITY'S CONTENTION
THAT THE EMPLOYEE IS ONLY ENTITLED TO 7 HOURS OF HOLIDAY PREMIUM PAY AND
1 HOUR OF OVERTIME FOR THE MID-WATCH. HOWEVER, THE UNION STATES THAT
THE FACILITY ALSO TAKES THE POSITION THAT AN EMPLOYEE WHO TOOK OFF THE
FIRST HOUR OF THE MID-WATCH SHOULD BE CHARGED WITH HOLIDAY LEAVE RATHER
THAN ANNUAL LEAVE. THE UNION ASKS WHETHER THE AGENCY COULD RECONCILE
THIS INCONSISTENCY BY PAYING THE EMPLOYEE HOLIDAY PREMIUM PAY FOR THE
FULL 8 HOURS WITHOUT VIOLATING ANY FEDERAL PROHIBITIONS AGAINST PAYING
HOLIDAY PREMIUM PAY FOR OVERTIME WORK. ACCORDING TO THE UNION THE
APPLICABLE STATUTES AND REGULATIONS DO NOT APPEAR TO ADDRESS THIS
SPECIFIC PROBLEM.
REGARDING THE RATE OF COMPENSATION FOR WORK PERFORMED ON A HOLIDAY, 5
U.S.C. SEC. 5546(B) (1976) PROVIDES, IN PERTINENT PART:
"AN EMPLOYEE WHO PERFORMS WORK ON A HOLIDAY DESIGNATED BY FEDERAL
STATUTE, OR EXECUTIVE ORDER *** IS ENTITLED TO PAY AT THE RATE OF HIS
BASIC PAY, PLUS PREMIUM PAY AT A RATE EQUAL TO THE RATE OF HIS BASIC
PAY, FOR THAT HOLIDAY WORK WHICH IS NOT -
"(1) IN EXCESS OF 8 HOURS; OR
"(2) OVERTIME WORK AS DEFINED BY SECTION 5542(A) OF THIS TITLE."
REGULATIONS IMPLEMENTING THE STATUTE APPEAR IN 5 C.F.R. SEC. 550.131
(1978).
IN DECISION 37 COMP. GEN. 1 (1957), IN WHICH WE DEALT WITH THE SAME
QUESTION ARISING UNDER 5 U.S.C. SEC. 922, NOW CODIFIED IN 5 U.S.C. SEC.
5546(B), WE STATED THE FOLLOWING CONCERNING THE LEGISLATIVE HISTORY OF
THAT PROVISION:
"THE CONFERENCE REPORT *** MAKES IT CLEAR THAT THE PREMIUM RATE FOR
HOLIDAY WORK WAS INTENDED TO APPLY TO WORK ON A HOLIDAY WITHIN THE
40-HOUR BASIC WORKWEEK OF AN EMPLOYEE (HOUSE REPORT NO. 2665, 83D
CONGRESS, AT PAGE 22); AND SECTION 302(C), 5 U.S.C. 922(C), PROVIDES
SPECIFICALLY THAT COMPENSATION FOR OVERTIME WORK ON A HOLIDAY IS TO BE
PAID UNDER SECTION 201, AS AMENDED, 5 U.S.C. 911 (NOW CODIFIED IN 5
U.S.C. 5542(A) ***."
THE STATUTE HAS BEEN INTERPRETED TO PERMIT PAYMENT OF PREMIUM PAY
ONLY FOR THOSE HOURS OF WORK ACTUALLY PERFORMED ON HOLIDAYS DURING AN
EMPLOYEE'S REGULAR TOUR OF DUTY, I.E., THE HOURS OF HIS REGULAR SHIFT OF
DUTY. SINCE THE EMPLOYEES IN SITUATION ONE WERE ONLY SCHEDULED TO WORK
7.1 HOURS WITHIN THEIR REGULAR TOUR OF DUTY ON THE HOLIDAY, THEY WOULD
ONLY BE ENTITLED TO 7.1 HOURS OF HOLIDAY PREMIUM PAY FOR THAT DATE.
B-191561, OCTOBER 3, 1978; 50 COMP. GEN. 519, 524 (1971); 38 ID. 560
(1959). IN THIS CONNECTION WE ARE NOT AWARE OF ANY LAW OR REGULATION
WHICH WOULD REQUIRE AN AGENCY TO WORK EMPLOYEES ON HOLIDAYS WHEN THEIR
WEEKLY SCHEDULES OF WORK INCLUDE SUCH A HOLIDAY. ALSO, THE PURPOSE OF
ESTABLISHING HOLIDAYS SUCH AS SET FORTH IN 5 U.S.C. SEC. 6103 (1976) IS
TO GIVE EMPLOYEES THE BENEFIT OF TIME OFF ON SUCH DAYS WITHOUT LOSS OF
REGULAR COMPENSATION AND NOT TO ESTABLISH AN ADDITIONAL FORM OF
COMPENSATION REPRESENTED BY PREMIUM PAY FOR HOLIDAYS WORKED. B-172920,
AUGUST 11, 1971. THE UNION'S QUESTION REGARDING SITUATION ONE ABOVE IS
ANSWERED ACCORDINGLY.
THE CITED STATUTE ALSO SPECIFICALLY PRECLUDES HOLIDAY PREMIUM PAY FOR
WORK IN EXCESS OF 8 HOURS. SINCE THE 1 HOUR ON THE 3RD OF JULY WAS IN
EXCESS OF 8 HOURS AND WAS NOT WORKED ON THE HOLIDAY IT COULD NOT QUALIFY
AS HOLIDAY PREMIUM PAY. THEREFORE, IN SITUATION TWO THE EMPLOYEE WOULD
BE ENTITLED TO 1 HOUR OVERTIME IN EXCESS OF 8 HOURS WORKED AND TO 7
HOURS OF HOLIDAY PREMIUM PAY FOR THE HOURS ACTUALLY WORKED ON THE
HOLIDAY. AS PREVIOUSLY STATED, THE AGENCY HAS FAILED TO RESPOND TO THE
UNION'S ALLEGATIONS. IN VIEW OF THIS AND SINCE THE UNION HAS NOT
IDENTIFIED THE EMPLOYEE WHO WAS CHARGED "HOLIDAY LEAVE" AT THE BEGINNING
OF THE SHIFT WHICH COVERED THE HOLIDAY, WE CANNOT EXPLAIN THE ALLEGED
DISCREPANCY. HOWEVER, SINCE WE ARE NOT AWARE OF ANY LEAVE DESIGNATED
"HOLIDAY LEAVE," IT WOULD APPEAR THAT THE EMPLOYEE SHOULD HAVE BEEN
CHARGED AN HOUR OF ANNUAL LEAVE IN THE MID-WATCH SHIFT.
B-193781, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. DECISION TO CANCEL AND READVERTISE REQUIREMENTS UNDER LOTS 1-2
AND LOTS 3-4 OF IFB ARISING FROM REASONABLE EXPECTATION OF BROADENED
COMPETITION UNDER RELAXED GEOGRAPHICAL RESTRICTION CANNOT BE QUESTIONED;
CONSEQUENTLY, IT IS UNNECESSARY TO CONSIDER WHETHER LOW BIDDER SHOULD
HAVE BEEN PERMITTED TO REVIVE EXPIRED BID.
2. INASMUCH AS PROTESTER HAS NOT MET BURDEN OF PROVING ITS VERSION
OF FACTS WITH PROBATIVE EVIDENCE OTHER THAN BARE STATEMENT, GAO CANNOT
CONCLUDE THAT PREAWARD SURVEY TEAM DISCUSSED ORDERING OF SUPPLIES OR
EQUIPMENT WITH PROTESTER.
3. TO EXTENT PROTESTER UNDER LOTS 1 AND 2 OF IFB QUESTIONS ACCURACY
OF WORK ESTIMATES USED IN ASSESSING REASONABLENESS OF PRICES RECEIVED
FOR REQUIREMENTS, ISSUE IS UNTIMELY RAISED UNDER GAO'S BID PROTEST
PROCEDURES (4 C.F.R. SEC. 20 (1978)) SINCE ALLEGED INVALIDITY OF
ESTIMATES SHOULD HAVE BEEN KNOWN, AT LATEST, BEFORE OPENING, YET IT WAS
NOT RAISED UNTIL AFTER BID OPENING.
MICRO LABS INC.; BOWMAN ENTERPRISES, INC.:
MICRO LABS, INC. (MICRO LABS) AND BOWMAN ENTERPRISES, INC. (BOWMAN),
HAVE PROTESTED THE DECISION OF THE NAVAL SUPPLY CENTER, DEPARTMENT OF
THE NAVY, NORFOLK, VIRGINIA, TO CANCEL INVITATION FOR BIDS (IFB) NO.
NOO189-78-B0066. FOR THE REASONS SET FORTH BELOW, WE DENY THE PROTESTS.
BACKGROUND
THE IFB WAS ISSUED BY THE NAVY FOR THE PROCUREMENT OF MICROFILMING
SERVICES AT THE NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, NORFOLK,
VIRGINIA, AND THE NAVAL AIR REWORK FACILITY, MARINE CORPS AIR STATION,
CHERRY POINT, NORTH CAROLINA.
NORFOLK REQUIREMENT
THE IFB PROVIDED THAT FOR THESE REQUIREMENTS THE SUCCESSFUL BIDDER
MUST HAVE ITS PRODUCING FACILITY WITHIN 50 ROAD MILES OF THE FACILITY.
FOR THESE SERVICES - DESCRIBED UNDER "LOTS" 1 AND 2 OF THE IFB - THE
NAVY RECEIVED FOUR TIMELY BIDS, AS FOLLOWS:
DISCOUNT
TAKEN
"COMPANY (TOTAL)
AMERICAN DRAFTING & 318,800.38
LAMINATING, NORFOLK, VA.
INFORMATION INDEX 312,378.26
OMAHA, NEB.
MICRO LABS, INC. 299,952.18
NORFOLK, VA.
SYSTEM MANAGEMENT ASSOCIATION 864,689.05"
VIRGINIA BEACH, VA.
AS TO THE EVENTS SURROUNDING THE CONSIDERATION OF THE LOW BID OF
MICRO LABS, THE NAVY'S CONTRACTING OFFICER REPORTS, AS FOLLOWS:
"UPON REVIEW OF THE BIDS, THE BUYER NOTED THAT MICRO LABS HAD NOT
ACKNOWLEDGED AMENDMENTS 0001, 0002, 0006, AND 0007, HAD NOT SUBMITTED
BACKGROUND INFORMATION, AND HAD MADE MATHEMATICAL EXTENSION ERRORS IN
LINE ITEMS 0003AA AND 0010AA. THE BUYER THEN ADVISED MR. CORNARO,
PRESIDENT, MICRO LABS, INC., OF THE ABOVE BY TELEPHONE ON 24 NOV 78 ***
THESE DEFICIENCIES WERE DETERMINED TO BE MINOR INFORMALITIES ***.
"ON 15 DEC 78, THE REGIONAL PROCUREMENT OFFICE WAS CONTACTED BY A
COMPETITOR, WHO WAS PRESENT AT THE BID OPENING, TO INQUIRE AS TO WHETHER
OR NOT MICRO LABS HAD EXTENDED THEIR BID ACCEPTANCE PERIOD. THE BUYER
THEN PULLED THE FILE AND DISCOVERED THAT MICRO LABS HAD ALLOWED THEIR
BID TO EXPIRE AND HAD NOT NOTIFIED THIS OFFICE OF THEIR DESIRE TO EXTEND
THE ACCEPTANCE PERIOD BEYOND THE ORIGINAL 30 DAYS WHICH THEY SET FORTH
IN THEIR BID. (THE IFB PROVIDED FOR A 60-DAY BID ACCEPTANCE PERIOD
UNLESS A BIDDER INSERTED A DIFFERENT PERIOD.)"
SINCE THE NAVY VIEWED MICRO LABS' BID AS EXPIRED AND NOT FOR FURTHER
CONSIDERATION, THE NAVY THEN REVIEWED THE BIDS OF THE REMAINING BIDDERS.
BECAUSE OF THE "EXTREME RANGE IN PRICES" SUBMITTED UNDER THE IFB, THE
CONTRACTING OFFICER DETERMINED THAT "AFTER THE LOW BID EXPIRED ALL OTHER
RESPONSIVE BIDS" CONTAINED UNREASONABLE PRICES. FURTHER, THE
CONTRACTING OFFICER "FELT THE POSSIBILITY OF RESTRICTION OF COMPETITION
MAY HAVE EXISTED WHEREBY THE GOVERNMENT WOULD HAVE UNKNOWINGLY LIMITED
THOSE CONTRACTORS WHO HAD THE CAPABILITY OF DOING THE WORK BUT WERE
UNABLE TO QUALIFY BECAUSE OF THE 50 ROAD MILE (RESTRICTION)."
CONSEQUENTLY, THE CONTRACTING OFFICER DECIDED THAT IT WOULD BE IN THE
BEST INTEREST OF THE GOVERNMENT TO CANCEL (LOTS 1 AND 2) AND EXPAND THE
ROAD MILE REQUIREMENT TO 500 MILES.
CHERRY POINT REQUIREMENT
FOR THE SERVICES AT CHERRY POINT - DESCRIBED UNDER LOTS 3 AND 4 OF
THE IFB WITH A 150-MILE RESTRICTION - THE NAVY RECEIVED THREE TIMELY
BIDS, AS FOLLOWS:
DISCOUNT
TAKEN
"COMPANY (TOTAL)
BOWMAN ENTERPRISES 231,053
INFORMATION INDEX 172,652
SYSTEMS MANAGEMENT 528,052"
THE NAVY REPORTS THAT THE BID OF INFORMATION INDEX WAS EXCLUDED FROM
CONSIDERATION BECAUSE THE FIRM DID NOT HAVE ITS PRODUCING FACILITY
WITHIN 150 ROAD MILES OF THE FACILITY AS REQUIRED BY THE IFB FOR LOTS 3
AND 4.
AS TO THE NEXT LOW BID OF BOWMAN INDUSTRIES, THE CONTRACTING OFFICER
REPORTS THAT SHE WAS UNABLE TO DETERMINE THAT THE BID WAS "FAIR AND
REASONABLE" BECAUSE:
(1) BOWMAN'S BID WAS MORE THAN $50,000 HIGHER THAN THE LOW BID
EXCLUDED FOR GEOGRAPHIC REASONS AND NEARLY $300,00 LESS THAN THE NEXT
HIGHER BID - A PRICE SPREAD WHICH SUGGESTED THAT COMPETITION DID NOT
EXIST;
(2) A COMPARISON OF UNIT PRICES OFFERED FOR IDENTICAL SERVICES AT THE
NORFOLK FACILITY SHOWED BOWMAN TO BE HIGHER THAN THREE OF FOUR OTHER
BIDDERS BIDDING ON THE SAME WORK IN MOST CATEGORIES;
(3) A COMPARISON OF BOWMAN'S CURRENT AND PRIOR PRICES FOR THE WORK ON
WHICH BOWMAN IS THE INCUMBENT CONTRACTOR SHOWED PRICE INCREASES OVER THE
PREVIOUS CONTRACT RANGING FROM 29 TO 133 PERCENT;
(4) A COMPARISON OF PRICES BID BY OTHER CONCERNS UNDER PRIOR YEARS'
PROCUREMENTS WITH PRICES THOSE SAME BIDDERS BID ON THE QUESTIONED
PROCUREMENT SHOWED THAT BOWMAN'S PRICE INCREASES EXCEEDED THE PRICE
INCREASES OF OTHER CONTRACTORS IN THE SAME BUSINESS IN MOST INSTANCES;
(5) INFORMATION FROM THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH
CAROLINA, SHOWED THAT PRICES QUOTED TO THE SOUTH CAROLINA OFFICE FOR THE
SAME WORK WERE SIGNIFICANTLY LOWER THAN THE PRICES QUOTED UNDER THIS
IFB.
BECAUSE OF THIS ANALYSIS, THE CONTRACTING OFFICER DECIDED THAT IT
WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CANCEL (LOTS 3 AND 4)
AND EXPAND THE ROAD MILE REQUIREMENT TO 500 MILES.
RESOLICITATION OF IFB REQUIREMENTS
THE CONTRACTING OFFICER REPORTS THE OUTCOME OF THE REBIDDING OF THESE
REQUIREMENTS UNDER A 500-ROAD-MILE RESTRICTION, AS FOLLOWS:
LOTS 1 AND 2
"THE SECOND IFB FOR THIS WORK OPENED 24 JAN 79, SHOWING (THAT MICRO
LABS REDUCED ITS PRICE) BY $78,750.18. FURTHER, SIX OF THE SEVEN BID
PRICES ON THE SECOND IFB ARE LESS THAN THE FIRST BID PRICE OF MICRO
LABS. ALSO, IT SHOULD BE NOTED THAT THE INCUMBENT CONTRACTOR, WHO HAS
THE BEST KNOWLEDGE OF THE WORK TO BE DONE, REDUCED HIS PRICE BY
$150,050.80 WHICH FURTHER SUPPORTS THE CONTRACTING OFFICER'S SUSPICIONS
THAT POSSIBLY TRUE FULL AND FREE COMPETITION MAY NOT HAVE BEEN ACHIEVED
DUE TO THE FEW NUMBER OF COMPANIES CAPABLE OF DOING THIS WORK LOCATED
WITHIN THE 50 ROAD MILE DISTANCE AROUND NORFOLK, VIRGINIA."
LOTS 3 AND 4
"THE SECOND IFB FOR THIS WORK OPENED 24 JAN 79, SHOWING (THAT BOWMAN
REDUCED ITS) PRICE FROM $231,053.00 TO $157,514.00 WITH MINOR CHANGES
BEING MADE IN THE SOLICITATION. THERE WAS A SLIGHT REDUCTION IN THE
HAND TIME AND A REQUIREMENT THAT A KNOWLEDGEABLE PERSON FROM THE
SUCCESSFUL CONTRACTOR BE ON CALL TO HANDLE UNFORESEEN PROBLEMS WHICH MAY
ARISE. THIS IS LESS THAN THE LOWEST BID WHICH WAS DECLARED
NON-RESPONSIVE. THIS IS LOWER THAN THE SAME BID WHICH THE PROTESTANT
DID NOT FEEL WAS REALISTIC CONSIDERING THE COST OF THE WORK TO BE DONE.
WE RECEIVED BIDS FROM THREE CONTRACTORS PREVIOUSLY UNABLE TO QUOTE
BECAUSE OF THE MILEAGE REQUIREMENT. ALL BIDS ARE VERY COMPETITIVE IN
PRICE WHICH IS INDICATIVE OF A GOOD COMPETITIVE FIELD. ALL CONTRACTORS
SUBMITTED BIDS SIGNIFICANTLY LOWER ON THE SECOND IFB WHICH THE
CONTRACTING OFFICER FEELS SUPPORTS THE THEORY THAT TRUE COMPETITION WAS
RESTRICTED IN IFB NOO189-78-B-0066."
THE GROUNDS OF THE PROTESTS HERE ARE SUMMARIZED BELOW.
MICRO LABS' PROTEST
(1) MICRO LABS' BID FOR LOTS 1 AND 2 WAS PROPERLY FOR ACCEPTANCE
SINCE "MRS. GARRET OF THE NORFOLK NAVAL SUPPLY CENTER" ORALLY AGREED TO
AN EXTENSION OF THE BID BEFORE THE COMPANY'S ORIGINAL BID EXPIRED; IN
ANY EVENT, THE NAVY WAS RESPONSIBLE FOR THE DELAY IN NOT AWARDING THE
CONTRACT WITHIN THE INITIAL 30-DAY ACCEPTANCE PERIOD OF THE COMPANY'S
BID.
(2) THE RESOLICITATION OF THE REQUIREMENTS WAS IMPROPER, ESPECIALLY
SINCE IT WAS MADE BEFORE GAO RULED ON THE COMPANY'S PROTEST.
THE REDUCED PRICES ON THE RESOLICITATION ARE ESSENTIALLY DUE TO
QUANTITY REDUCTIONS; IN ANY EVENT, THE REDUCED PRICES CAN BE EXPLAINED
BY THE EXPOSURE OF THE PRICES SUBMITTED ON THE FIRST SOLICITATION.
(3) THE NAVY'S PREAWARD SURVEY TEAM EFFECTIVELY AWARDED MICRO LABS A
CONTRACT BY TELLING THE COMPANY TO "GEAR UP" FOR THE CONTRACT IN
MID-DECEMBER 1978 SUCH THAT MICRO LABS ORDERED "REQUIRED EQUIPMENT AND
SUPPLIES."
NAVY RESPONSE TO MICRO LABS' PROTEST
(1) THE NAVY PROPERLY REJECTED MICRO LABS' BID UNDER THE AUTHORITY OF
GAO DECISIONS SET FORTH IN 42 COMP. GEN. 604 (1963) AND VETERANS
ADMINISTRATION REQUEST FOR ADVANCE DECISION, B-191019, JANUARY 23, 1978,
78-1 CPD 59. MOREOVER, THE NAVY DENIES THAT IT AGREED TO A VERBAL
EXTENSION OF MICRO LABS' BID ACCEPTANCE PERIOD.
(2) SEE THE ABOVE REASONS EXPLAINING WHY THE NAVY CANCELED AND
READVERTISED THE REQUIREMENT; MOREOVER, THE BIDDING RESULTS OF THE
RESOLICITATION SUPPORT THE DECISION TO CANCEL.
(3) THE PREAWARD SURVEY TEAM STATES THAT NO ONE ON THE TEAM DISCUSSED
ORDERING ANY SUPPLIES WITH MICRO LABS.
GAO ANALYSIS
(1) CLEARLY, THERE IS A FACTUAL DISPUTE AS TO WHETHER AN ORAL
AGREEMENT WAS REACHED TO EXTEND MICRO LABS' BID BEFORE THAT BID EXPIRED
BY ITS OWN TERMS. MICRO LABS, HOWEVER, HAS NOT MET THE BURDEN OF
PROVING ITS VERSION OF THE FACTS BY INTRODUCING PROBATIVE EVIDENCE -
OTHER THAN ITS BARE STATEMENT OF THE EVENTS IN QUESTION. SEE PHELPS
PROTECTION SYSTEMS, B-181148, NOVEMBER 7, 1974, 74-2 CPD 244. THUS,
MICRO LABS' BID HAS TO BE CONSIDERED AS EXPIRED. IT IS CLEAR, HOWEVER,
THAT MICRO LABS HAS INSISTED THAT IT BE ALLOWED TO REVIVE ITS EXPIRED
BID.
NOTWITHSTANDING MICRO LABS' POSITION, WE CONSIDER IT UNNECESSARY TO
DISCUSS THE PROPRIETY OF REVIVING THE COMPANY'S BID IN VIEW OF OUR
CONCLUSION UNDER PARAGRAPH 2, BELOW.
(2) CONTRACTING OFFICERS HAVE BROAD POWERS OF DISCRETION IN DECIDING
WHETHER A SOLICITATION SHOULD BE CANCELED; CONSEQUENTLY, WE DO NOT
QUESTION THESE DECISIONS SO LONG AS THEY ARE REASONABLY FOUNDED UNDER
EXISTING PRECEDENT. THE GERSTENSLAGER COMPANY, B-192705, NOVEMBER 29,
1978, 78-2 CPD 375.
WE HAVE RECOGNIZED THAT IF THERE IS A REASONABLE EXPECTATION THAT
BIDDERS LOCATED OUTSIDE THE "IMMEDIATE AREA OF A RESPECTIVE FIELD
PROCUREMENT OFFICE AND/OR THE SITE OF THE USING AGENCY" WILL BE ABLE TO
COMPLY WITH THE REQUIREMENTS OF A PARTICULAR PROCUREMENT, COMPETITION
SHOULD BE BROADENED BY ENLARGING THE GEOGRAPHIC RESTRICTION ORIGINALLY
CONTEMPLATED. SEE 50 COMP. GEN. 769 (1971).
THERE IS NO QUESTION THAT COMPETITION WAS BROADENED ON THE
RESOLICITATION FOR LOTS 1 AND 2 SINCE - APART FROM THE DISPUTE OVER THE
PRECISE MEANING OF THE REDUCED PRICES RECEIVED ON THE REPROCUREMENT -
SEVEN, RATHER THAN FOUR, COMPANIES COMPETED FOR THE AWARD. MOREOVER, WE
CANNOT QUESTION THE NAVY'S POSITION THAT COMPANIES WITH PRODUCING
FACILITIES WITHIN A 500-MILE-ROAD RADIUS OF NORFOLK WILL BE ABLE TO
COMPLY WITH THE REQUIREMENTS OF THE PROCUREMENT. ALTHOUGH IT IS
UNFORTUNATE THAT THIS ENLARGED RADIUS COULD NOT HAVE BEEN EMPLOYED IN
THE FIRST PROCUREMENT, WE CANNOT QUESTION THE DECISION TO CANCEL THE
ORIGINAL PROCUREMENT AND READVERTISE BECAUSE OF THIS CIRCUMSTANCE.
THERE IS NO STATUTORY OR REGULATORY REQUIREMENT - CONTRARY TO THE
PROTESTER'S APPARENT BELIEF - THAT A PROCURING AGENCY MUST AWAIT A GAO
DECISION ON A PROTEST PRIOR TO INITIATING A PROCUREMENT (OR A
REPROCUREMENT).
(3) CLEARLY, THERE IS A FACTUAL DISPUTE AS TO WHETHER THE PREAWARD
SURVEY TEAM MADE STATEMENTS CONCERNING THE ORDERING OF EQUIPMENT AND
SUPPLIES. AS WITH THE FACTUAL DISPUTE DISCUSSED UNDER (1) ABOVE, IT IS
OUR VIEW THAT MICRO LABS HAS NOT MET THE BURDEN OF PROVING ITS VERSION
OF THE FACTS BY PROBATIVE EVIDENCE OTHER THAN ITS BARE STATEMENT OF THE
EVENTS IN QUESTION. CONSEQUENTLY, WE CANNOT CONCLUDE THAT THE PREAWARD
SURVEY TEAM DISCUSSED THE ORDERING OF SUPPLIES OR EQUIPMENT WITH MICRO
LABS.
BOWMAN ENTERPRISES, INC., PROTEST
(1) BOWMAN'S BID FOR THE WORK WAS REASONABLE, ESPECIALLY SINCE THE
NAVY WORK ESTIMATES ARE "SUBSTANTIALLY INFLATED" FOR THIS AND SIMILAR
PROCUREMENTS FOR PRIOR YEARS' WORK, THEREBY CAUSING PRUDENT BIDDERS,
LIKE BOWMAN, TO INCREASE THEIR BIDS; MOREOVER, THE LOWER PRICES QUOTED
BY OTHER BIDDERS WERE CAUSED BY FAILURE OF THOSE BIDDERS TO TAKE INTO
ACCOUNT AN IFB REQUIREMENT RELATING TO THE "EXIGENCIES OF FORM PS 3602"
WHICH RAISES THE CONTRACTOR'S COST SIGNIFICANTLY.
(2) THERE WERE AT LEAST TWO OTHER BIDDERS WHO COULD HAVE COMPETED
UNDER THE 150-ROAD-MILE RESTRICTION - THUS SHOWING THE REASONABLENESS OF
THE ORIGINAL RESTRICTION; MOREOVER, THE REDUCED PRICES RECEIVED ON THE
RECOMPETITION MAY BE ATTRIBUTED TO THE INCREASED VOLUME OF WORK INVOLVED
RATHER THAN INCREASED COMPETITION.
(3) THE NAVY ACTUALLY CANCELED THE IFB SO AS TO "ALLOW INFORMATION
INDEX TO COMPETE AT THE LOWER PRICE EVEN THOUGH THEY DID NOT ORIGINALLY
COMPLY WITH THE MILEAGE REQUIREMENT."
NAVY POSITION
(SET FORTH ABOVE ON PAGES 4 AND 5)
ANALYSIS
(KEYED TO THE ABOVE-NUMBERED GROUNDS OF BOWMAN'S PROTEST.)
(1) ESSENTIALLY, BOWMAN IS PROTESTING THE VALIDITY OF THE WORK
ESTIMATES SET FORTH IN THE CANCELED IFB AND IN EARLIER PROCUREMENTS
THROUGH THE COMPANY'S QUESTIONING OF THE ABOVE PRICE COMPARISONS OF THE
CONTRACTING OFFICER. SINCE THE ALLEGED INVALIDITY OF THE ESTIMATES
SHOULD HAVE BEEN KNOWN, AT THE LATEST, BEFORE NOVEMBER 13, 1978, THE
DATE ON WHICH BIDS WERE OPENED, YET NOT RAISED UNTIL AFTER BID OPENING,
WE CONSIDER THIS ISSUE UNTIMELY UNDER OUR BID PROTEST PROCEDURES, 4
C.F.R. SEC. 20 (1978).
TO THE EXTENT, MOREOVER, THAT BOWMAN QUESTIONS BIDDERS' COMPLIANCE,
FOR PRICING PURPOSE, WITH "FORM PS 3602," WE POINT OUT THAT ALL BIDDERS
ARE CHARGED WITH NOTICE OF ALL IFB REQUIREMENTS - INCLUDING COMPLIANCE
WITH THIS FORM - AND, THUS, IT MUST BE PRESUMED THAT THE PRICES BID
REFLECT THOSE REQUIREMENTS.
(2) AS NOTED ABOVE UNDER OUR RESPONSE TO THE MICRO LABS' PROTEST, WE
HAVE HELD THAT COMPETITION SHOULD BE BROADENED BY ENLARGING THE
GEOGRAPHIC RESTRICTION ORIGINALLY CONTEMPLATED IF THERE IS A REASONABLE
EXPECTATION THAT BIDDERS LOCATED OUTSIDE THE IMMEDIATE AREA OF THE
PROCURING OR USING OFFICE WILL BE ABLE TO COMPLY WITH THE REQUIREMENTS
OF A PARTICULAR PROCUREMENT. SEE 50 COMP. GEN., SUPRA.
THERE IS NO QUESTION THAT COMPETITION WAS BROADENED ON THE
RESOLICITATION FOR LOTS 3 AND 4 SINCE BIDS WERE RECEIVED FROM THREE
COMPANIES PREVIOUSLY UNABLE TO BID BECAUSE OF THE ORIGINAL MILEAGE
REQUIREMENT. ALTHOUGH WE HAVE NO KNOWLEDGE AS TO THE ACTUAL REASONS WHY
THE TWO ADDITIONAL COMPANIES WHICH BOWMAN ALLEGES COULD HAVE BID UNDER
THE ORIGINAL RESTRICTION DID NOT SO BID, THE FACT THAT THREE ADDITIONAL
COMPANIES BID ON THE REPROCUREMENT SUPPORTS THE CONTRACTING OFFICER'S
DECISION TO CANCEL AND READVERTISE IRRESPECTIVE OF THE DISPUTE BETWEEN
BOWMAN AND THE NAVY OVER THE MEANING OF THE REDUCED PRICES RECEIVED.
(3) BASED ON OUR REVIEW OF THE RECORD, WE DO NOT AGREE THAT THE NAVY
WAS ATTEMPTING TO "DIRECT" THE AWARD OF THE CONTRACT TO ANY PARTICULAR
COMPANY.
PROTESTS DENIED.
B-193814, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE WAS REASSIGNED FROM SCURRY, TEXAS, TO DALLAS, TEXAS, A
RELATIVELY SHORT DISTANCE AWAY. HOWEVER, PERMANENT CHANGE OF STATION
TRAVEL ORDER WAS NOT DELIVERED WITHIN 2 YEARS OF REPORTING FOR DUTY DUE
TO BUDGETARY CONSTRAINTS AND ADMINISTRATIVE ERRORS. THE EMPLOYEE DID
NOT MOVE WHEN HE WAS REASSIGNED AND NOW SEEKS AUTHORITY TO MOVE HIS
FAMILY AT GOVERNMENT EXPENSE. AUTHORITY MAY NOT BE GIVEN BECAUSE
NEITHER THIS OFFICE NOR THE AGENCY MAY WAIVE OR MODIFY TIME LIMITATIONS
PRESCRIBED BY STATUTORY REGULATIONS - HERE 2-YEAR LIMITATION WITHIN
WHICH TRAVEL, TRANSPORTATION AND RELOCATION MUST OCCUR.
MARION F. CLAGG - CHANGE OF DUTY STATION - DELAY IN ISSUING TRAVEL
ORDERS:
BY LETTER OF DECEMBER 29, 1978, MR. GEORGE B. FINEBERG, CHIEF,
FINANCIAL SYSTEMS DIVISION, AAA-400, OFFICE OF ACCOUNTING AND AUDIT,
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, REQUESTS
AN ADVANCE DECISION CONCERNING REIMBURSEMENT OF EXPENSES TO BE INCURRED
BY MR. MARION F. CLAGG, AN EMPLOYEE OF THAT AGENCY, PURSUANT TO A
PERMANENT CHANGE OF STATION.
ON OCTOBER 23, 1975, MR. CLAGG WAS NOTIFIED OF HIS REASSIGNMENT FROM
SCURRY, TEXAS, TO REDBIRD AIRPORT, DALLAS, TEXAS, A RELATIVELY SHORT
DISTANCE AWAY. HE REPORTED FOR DUTY AT REDBIRD AIRPORT ON NOVEMBER 23,
1975, BUT, APPARENTLY DUE TO THE LACK OF TRAVEL ORDERS AND IN VIEW OF
THE SHORT DISTANCE INVOLVED, HE DID NOT RELOCATE HIS HOME. HIS LETTER
OF REASSIGNMENT INFORMED HIM THAT SINCE THE REASSIGNMENT WAS IN THE
INTEREST OF THE AGENCY ALLOWABLE TRAVEL AND TRANSPORTATION COSTS
INVOLVED IN THE CHANGE OF HEADQUARTERS WOULD BE BORNE BY THE AGENCY.
UPON RECEIPT OF THE REASSIGNMENT LETTER MR. CLAGG EXECUTED THE
NECESSARY FORMS SUBMITTING THEM IMMEDIATELY FOLLOWING THEIR COMPLETION.
A PERMANENT CHANGE OF STATION (PCS) TRAVEL ORDER WAS PREPARED AND SIGNED
BY THE SECTOR MANAGER ON JUNE 17, 1976. HOWEVER, DUE TO BUDGETARY
CONSTRAINTS A QUOTA SYSTEM WAS IN EFFECT ON THE NUMBER OF PCS MOVES THAT
COULD BE ACCOMPLISHED EACH QUARTER AND THE PCS ORDER WAS NOT ISSUED. NO
FURTHER ACTION WAS TAKEN ON THIS MATTER UNTIL MAY 4, 1977, AT WHICH TIME
A SECOND PCS TRAVEL ORDER WAS PREPARED AND SIGNED BY THE SECTOR MANAGER.
ADDITIONAL INFORMATION WAS SUPPLIED ON AUGUST 19, 1977, AND THE PCS
MOVE WAS APPROVED ON SEPTEMBER 15, 1977. THE APPROVAL WAS RECEIVED IN
THE SECTOR ON SEPTEMBER 22, 1977, WITH MR. CLAGG BEING VERBALLY ADVISED
OF THIS ON SEPTEMBER 30, 1977. A COPY OF THE TRAVEL ORDER WAS RECEIVED
BY HIM ON OCTOBER 11, 1977. HE THEN QUERIED THE SECTOR HEADQUARTERS AS
TO THE EFFECTIVE DATE OF THE TRAVEL ORDER SINCE IT WAS SIGNED BY THE
SECTOR MANAGER ON MAY 4, 1977. AS A RESULT OF THIS AND SUBSEQUENT
INQUIRIES IT WAS LEARNED THAT THE TIME LIMIT FOR REIMBURSEMENT OF
TRANSPORTATION RELOCATION EXPENSES HAD RUN OUT ON THE PCS MOVE SINCE
MORE THAN 2 YEARS HAD ELAPSED SINCE HE REPORTED FOR DUTY AT DALLAS.
MR. CLAGG'S PCS TRAVEL ORDERS STATE THAT HE IS AUTHORIZED TO BE
REIMBURSED FOR NECESSARY EXPENSES AS PROVIDED IN THE DOT TRAVEL MANUAL
OR DEPARTMENT OF STATE FOREIGN AFFAIRS MANUAL. TIME LIMITS FOR TRAVEL
AND TRANSPORTATION ARE COVERED BY PARAGRAPH 324, DOT ORDER 1500.6 (CHG.
6, MAY 6, 1976) WHICH STATES IN PERTINENT PART, AS FOLLOWS:
"ALL TRAVEL (NOT SUBJECT TO THE FOREIGN AFFAIRS MANUAL) INCLUDING
THAT FOR THE IMMEDIATE FAMILY, AND TRANSPORTATION, INCLUDING THAT FOR
HOUSEHOLD GOODS AND PERSONAL EFFECTS ALLOWED UNDER THIS SECTION, SHOULD
BE ACCOMPLISHED AS SOON AS POSSIBLE. THE MAXIMUM TIME FOR BEGINNING
ALLOWABLE TRAVEL AND TRANSPORTATION SHALL NOT EXCEED TWO YEARS FROM THE
EFFECTIVE DATE OF THE EMPLOYEE'S TRANSFER OR APPOINTMENT, EXCEPT THAT:
"C. SEE CHAPTERS 5 AND 6 FOR ADDITIONAL TIME LIMITS ON CLAIMS FOR
CERTAIN EXPENSES."
AS CAN BE SEEN FROM ABOVE THE TWO-YEAR TIME LIMIT RUNNING FROM THE
EFFECTIVE DATE OF THE EMPLOYEE'S TRANSFER OR APPOINTMENT IS MODIFIED BY
THE TIME LIMITS FOUND IN CHAPTERS 5 AND 6. THE RELEVANT PROVISIONS IN
THOSE CHAPTERS ARE PARAGRAPH 522A, DOT ORDER 1500.6 (AUGUST 2, 1972) AND
640D, DOT ORDER 1500.6 (CHG. 2, JUNE 19, 1973). THESE PARAGRAPHS
PROVIDE, AS FOLLOWS:
"ALL TRAVEL AUTHORIZED FOR DEPENDENTS MUST BEGIN WITHIN 2 YEARS FROM
THE DATE THE EMPLOYEE REPORTS FOR DUTY AT THE NEW DUTY STATION. EVERY
POSSIBLE EFFORT SHOULD BE MADE TO COMMENCE TRAVEL AT THE EARLIEST
PRACTICABLE DATE. IF AN EMPLOYEE ENTERS UPON ACTIVE MILITARY DUTY AT
ANY TIME PRIOR TO THE EXPIRATION OF SUCH PERIOD, THE 2-YEAR PERIOD WILL
BE EXCLUSIVE OF THE TIME SPENT IN MILITARY SERVICE. FOR MOVEMENT OF
DEPENDENTS WHICH HAS BEEN DELAYED INCIDENT TO SUCCESSIVE PERMANENT
CHANGE-OF-STATION ASSIGNMENTS SEE PARAGRAPH 523."
"THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION
TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE
(INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT
THE NEW OFFICIAL STATION. UPON AN EMPLOYEE'S WRITTEN REQUEST THIS TIME
LIMIT FOR COMPLETION OF THE SALE AND PURCHASE OR LEASE TERMINATION
TRANSACTION MAY BE EXTENDED FOR AN ADDITIONAL PERIOD OF TIME, NOT TO
EXCEED ONE YEAR, REGARDLESS OF THE REASONS THEREFOR, SO LONG AS IT IS
DETERMINED THAT THE PARTICULAR RESIDENCE TRANSACTION IS REASONABLY
RELATED TO THE TRANSFER OF OFFICIAL STATION. THE CIRCUMSTANCES WHICH
ARE DETERMINED BY THE AUTHORIZING OFFICIAL TO JUSTIFY THE ADDITIONAL
PERIOD SHALL BE SET FORTH IN WRITING AND WILL BE ATTACHED TO AND MADE
PART OF THE REIMBURSEMENT VOUCHER."
UNDER THE ABOVE REGULATIONS MR. CLAGG'S TRAVEL AND TRANSPORTATION
COULD HAVE BEGUN NO LATER THAN TWO YEARS AFTER THE EFFECTIVE DATE OF HIS
TRANSFER. SINCE MR. CLAGG REPORTED FOR DUTY ON NOVEMBER 23, 1975, THE
TRAVEL AUTHORIZED FOR HIS DEPENDENTS AND THE SETTLEMENT DATES FOR THE
SALE AND PURCHASE OF RESIDENCES COULD NOT HAVE OCCURRED LATER THAN
NOVEMBER 23, 1977.
IN A SIMILAR SITUATION WE HAVE HELD THAT TIME LIMITATIONS PERTAINING
TO THE TRANSPORTATION OF AN EMPLOYEE'S DEPENDENTS AND HOUSEHOLD EFFECTS
AND REIMBURSEMENT OF REAL ESTATE EXPENSES ARE STATUTORY REGULATIONS
HAVING THE FORCE AND EFFECT OF LAW, AND, THEREFORE MAY NOT BE WAIVED IN
AN INDIVIDUAL CASE. 49 COMP. GEN. 145 (1969).
THE ARGUMENT IS MADE THAT MR. CLAGG'S SITUATION DIFFERS FROM THE
ABOVE DECISION SINCE, IN THE LATTER, TRAVEL ORDERS WERE NOT ISSUED.
WHILE THE CASES MAY BE DISTINGUISHED ON THEIR FACTS, THE PRINCIPLE OF
LAW ENUNCIATED IN THE CITED DECISION IS APPLICABLE.
WHILE IT IS UNFORTUNATE THAT MR. CLAGG APPARENTLY DELAYED MOVING
BECAUSE OF MANAGEMENT'S HANDLING OF THE TRAVEL ORDERS, IF HE MOVES NOW
THE EXPENSES WILL BE INCURRED MORE THAN 2 YEARS AFTER HE REPORTED TO HIS
NEW DUTY STATION AND HENCE BEYOND THE MAXIMUM TIME LIMIT PERMITTED BY
THE REGULATIONS. FROM AN EQUITABLE VIEWPOINT WE ARE UNABLE TO CONSIDER
MR. CLAGG'S CLAIM SINCE WE HAVE NO EQUITY JURISDICTION UNLESS IT IS
SPECIFICALLY GRANTED BY STATUTE. EDWARD B. CONNORS, B-190202, AUGUST
14, 1978; CHARLES F. OAKLEY, B-189577, NOVEMBER 2, 1977.
ACCORDINGLY, MR. CLAGG MAY NOT BE REIMBURSED FOR ANY EXPENSES TO BE
INCURRED AS A RESULT OF A MOVE INCIDENT TO THIS CHANGE OF STATION FROM
SCURRY TO DALLAS, TEXAS.
B-193821, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
SEASONAL EMPLOYEES OF THE INTERNAL REVENUE SERVICE, WHO WERE HIRED
DURING THE TAX RETURN FILING SEASON AND WHO WERE TO BE REMOVED FROM THE
ROLLS WHEN THERE WAS NO LONGER WORK TO BE DONE, ARE NOT ENTITLED TO PAY
FOR THE MEMORIAL DAY HOLIDAY ON MONDAY, MAY 26, 1975, SINCE THERE WAS NO
FURTHER WORK TO BE PERFORMED AS OF THE END OF THE DAY SHIFT ON FRIDAY,
MAY 23, 1975. THOSE EMPLOYEES WERE NOT PREVENTED FROM WORKING ON
MEMORIAL DAY SOLELY BECAUSE OF THE OCCURRENCE OF THE HOLIDAY AND ARE NOT
ENTITLED TO PAY FOR THE HOLIDAY UNDER 5 U.S.C. SEC. 6104(3). 56 COMP.
GEN. 393 AND 45 ID. 291 DISTINGUISHED.
PAY FOR HOLIDAYS - SEASONAL EMPLOYEES OF IRS:
THIS DECISION, ISSUED AT THE REQUEST OF THE INTERNAL REVENUE SERVICE
(IRS) AND THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), CONCERNS THE
ENTITLEMENT OF 57 EMPLOYEES OF THE CINCINNATI SERVICE CENTER OF THE IRS
TO BE PAID FOR THE MEMORIAL DAY HOLIDAY, MAY 26, 1975. THE INDIVIDUALS
INVOLVED ARE SEASONAL EMPLOYEES WHO WERE HIRED AND ASSIGNED TO NIGHT
SHIFT WORK DURING THE INCOME TAX RETURN FILING SEASON FROM JANUARY TO
MAY OF 1975. SEASONAL EMPLOYEES ARE HIRED ONLY FOR SO LONG AS THERE IS
SUFFICIENT WORK FOR THEM TO DO AND ARE TAKEN OFF THE ROLLS WHEN THER IS
NO LONGER WORK TO BE DONE.
THE IRS AND THE NTEU ARE IN AGREEMENT AS TO THE CIRCUMSTANCES WHICH
GAVE RISE TO THE EMPLOYEES' CLAIMS FOR COMPENSATION. IN 1975, THERE WAS
SUFFICIENT WORK TO JUSTIFY THE CONTINUED EMPLOYMENT OF SEASONAL
EMPLOYEES AT THE CINCINNATI SERVICE CENTER ONLY THROUGH THE END OF THE
DAY SHIFT OF FRIDAY, MAY 23. THERE WAS NOT ENOUGH WORK TO JUSTIFY THE
CONTINUED EMPLOYMENT OF ANY EMPLOYEE THROUGH THE NIGHT SHIFT OF MAY 23.
WE UNDERSTAND THAT THE EMPLOYEES HAD KNOWLEDGE ON THAT DATE THAT NO
FURTHER WORK WAS AVAILABLE AND THAT THEY SHOULD NOT REPORT TO WORK
THEREAFTER. ALL SEASONAL EMPLOYEES WERE SEPARATED AS OF TUESDAY, MAY
27, THE DAY FOLLOWING THE MEMORIAL DAY HOLIDAY OF MONDAY, MAY 26, 1975.
IN RELIANCE ON OUR DECISION AT 45 COMP. GEN. 291 (1965), THE IRS PAID
ALL DAY SHIFT EMPLOYEES WHO WORKED UNTIL THE CLOSE OF BUSINESS ON
FRIDAY, MAY 23, AND ALL NIGHT SHIFT EMPLOYEES WHO DID NOT HAVE AT LEAST
8 HOURS OF ANNUAL LEAVE AS OF MAY 23 WERE DENIED PAYMENT FOR THE
HOLIDAY.
THE NTEU FILED A GRIEVANCE ON BEHALF OF THE 57 NIGHT SHIFT EMPLOYEES,
ALLEGING THAT THE DENIAL OF PAY FOR THE MEMORIAL DAY HOLIDAY TO THOSE
EMPLOYEES VIOLATED A PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT IN
EFFECT IN 1975. THE GRIEVANCE WAS DENIED AND ON DECEMBER 10, 1975, THE
NTEU INVOKED ARBITRATION. BECAUSE OF DOUBT AS TO WHETHER THE IRS COULD
COMPLY WITH AN ARBITRATION AWARD OF BACKPAY FOR THE MEMORIAL DAY HOLIDAY
IN FAVOR OF THE 57 NIGHT SHIFT EMPLOYEES, THE QUESTION OF ENTITLEMENT
WAS SUBMITTED TO THIS OFFICE IN LIEU OF ARBITRATION.
IN DENYING PAY FOR THE MEMORIAL DAY HOLIDAY TO NIGHT SHIFT WORKERS
WHO WERE IN A NONPAY STATUS FOR THE NIGHT SHIFT OF MAY 23, 1975, THE IRS
RELIED ON LANGUAGE CONTAINED IN 45 COMP. GEN. 291 (1965) INDICATING
THAT, AS A GENERAL RULE, AN EMPLOYEE HAS A LEGAL RIGHT TO BE PAID BASIC
COMPENSATION FOR A HOLIDAY ON WHICH HE IS NOT ORDERED OR DIRECTED TO
WORK, WHEN HE HAS BEEN IN A PAY STATUS FOR THE FULL WORKDAY IMMEDIATELY
PRECEDING OR SUCCEEDING THE HOLIDAY. THE NTEU POINTS OUT THAT THE
HOLDING IN THAT CASE HAS BEEN MODIFIED BY 56 COMP. GEN. 393 (1977) WHICH
IT CITES FOR THE PROPOSITION THAT AN EMPLOYEE WHO IS READY, WILLING AND
ABLE TO WORK ON A DAY PRECEDING OR SUCCEEDING A HOLIDAY AND IS PREVENTED
FROM WORKING SOLELY BECAUSE OF A HOLIDAY IS ENTITLED TO BE PAID FOR THAT
HOLIDAY. IN THIS REGARD, THE NTEU NOTES THAT THE 57 NIGHT SHIFT
EMPLOYEES WERE NOT SEPARATED UNTIL TUESDAY, MAY 27, 1975, AND, THUS,
WERE NOT RELIEVED OF THEIR OBLIGATIONS TO BE READY, WILLING AND ABLE TO
WORK UNTIL MAY 27.
THE NTEU'S OBSERVATION THAT OUR HOLDING IN 56 COMP. GEN. 393 MODIFIES
45 COMP. GEN. 291 IS CORRECT. HOWEVER, IT DOES NOT OVERRULE THE
PRINCIPLE FOR WHICH 45 COMP. GEN. 291 IS CITED BY THE IRS. RATHER, AS
INDICATED BY THE FOLLOWING EXCERPT, IT EXTENDS THAT PRINCIPLE TO
SITUATIONS IN WHICH AN EMPLOYEE IN A PAY STATUS EITHER BEFORE OR AFTER A
HOLIDAY IS IN AN ABSENT WITHOUT LEAVE STATUS ON THE CORRESPONDING DAY
IMMEDIATELY BEFORE OR AFTER THE HOLIDAY:
"OUR DECISION IN 45 COMP. GEN. 291, SUPRA, ESTABLISHED A FURTHER
CATEGORY OF CIRCUMSTANCES IN WHICH IT IS TO BE PRESUMED THAT AN EMPLOYEE
IS 'RELIEVED OR PREVENTED' FROM WORKING ON A HOLIDAY SOLELY BECAUSE OF
THE OCCURRENCE OF SUCH HOLIDAY. IN HOLDING THAT THERE IS NO AUTHORITY
FOR DENIAL OF PAY FOR A HOLIDAY WHEN, IN ORDINARY CIRCUMSTANCES, AN
EMPLOYEE HAS BEEN IN A PAY STATUS BEFORE OR AFTER A HOLIDAY, WE EXTENDED
THE PRESUMPTION OF 18 COMP. GEN. 206, SUPRA, TO EMPLOYEES ON AUTHORIZED
LEAVES OF ABSENCE EITHER IMMEDIATELY BEFORE OR IMMEDIATELY AFTER A
HOLIDAY.
"*** IN THE INTEREST OF UNIFORMITY AND ADMINISTRATIVE CONVENIENCE, WE
BELIEVE THE RULE STATED IN 45 COMP. GEN. 291, SUPRA, SHOULD APPLY TO
EMPLOYEES IN AN ABSENT-WITHOUT-LEAVE STATUS IMMEDIATELY BEFORE OR AFTER
A HOLIDAY. THUS, AN EMPLOYEE IN A PAY STATUS FOR EITHER THE WORKDAY
PRECEDING A HOLIDAY OR THE WORKDAY SUCCEEDING A HOLIDAY IS ENTITLED TO
STRAIGHT-TIME PAY FOR THE HOLIDAY, WITHOUT REGARD TO WHETHER HE IS IN AN
AUTHORIZED LEAVE-WITHOUT-PAY STATUS OR AN ABSENT-WITHOUT-LEAVE STATUS
FOR THE CORRESPONDING DAY IMMEDIATELY SUCCEEDING OR PRECEDING SUCH
HOLIDAY. OUR DECISION IN 13 COMP. GEN. 206, SUPRA; 16 ID. 807, SUPRA;
18 COMP. GEN. 206, SUPRA; AND 45 COMP. GEN. 291, SUPRA, ARE MODIFIED
ACCORDINGLY."
HOWEVER, NEITHER DECISION IS DISPOSITIVE AS TO THE ENTITLEMENT OF THE
57 NIGHT SHIFT EMPLOYEES WHOSE CASES ARE HERE IN ISSUE.
WITH RESPECT TO PAY FOR HOLIDAYS, INCLUDING THE MEMORIAL DAY HOLIDAY,
5 U.S.C. SEC. 6104 (1970) PROVIDES:
"SEC. 6104. HOLIDAYS; DAILY, HOURLY, AND PIECE-WORK BASIS
EMPLOYEES.
"WHEN A REGULAR EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR
AN INDIVIDUAL EMPLOYED REGULARLY BY THE GOVERNMENT OF THE DISTRICT OF
COLUMBIA, WHOSE PAY IS FIXED AT A DAILY OR HOURLY RATE, OR ON A
PIECE-WORK BASIS, IS RELIEVED OR PREVENTED FROM WORKING ON A DAY -
"(3) SOLELY BECAUSE OF THE OCCURRENCE OF A LEGAL PUBLIC HOLIDAY UNDER
SECTION 6103 OF THIS TITLE, OR A DAY DECLARED A HOLIDAY BY FEDERAL
STATUTE, EXECUTIVE ORDER, OR, FOR INDIVIDUALS EMPLOYED BY THE GOVERNMENT
OF THE DISTRICT OF COLUMBIA, BY ORDER OF THE COMMISSIONER;
"HE IS ENTITLED TO THE SAME PAY FOR THAT DAY AS FOR A DAY ON WHICH AN
ORDINARY DAY'S WORK IS PERFORMED."
THIS SAME CONCEPT HAS LONG BEEN APPLIED TO MONTHLY AND PER ANNUM
EMPLOYEES. SEE 45 COMP. GEN. 291, 292 (1965).
OUR HOLDING IN 56 COMP. GEN. 393 WAS INTENDED TO APPLY SPECIFICALLY
TO EMPLOYEES ON THE ROLLS ON THE DAY BEFORE AND THE DAY AFTER A HOLIDAY.
THAT HOLDING IS BASED ON THE LANGUAGE OF 5 U.S.C. SEC. 6104(3) AND THE
PRESUMPTION RAISED BY AN EMPLOYEE'S PAY STATUS IMMEDIATELY BEFORE OR
IMMEDIATELY AFTER A HOLIDAY THAT HE IS "RELIEVED OR PREVENTED FROM
WORKING SOLELY BECAUSE OF THE OCCURRENCE OF THAT HOLIDAY." IT INCLUDES
THE FOLLOWING DISCUSSION:
"THOSE TWO DECISION (45 COMP. GEN. 291 (1965) AND 18 COMP. GEN. 206
(1938) LEFT AGENCIES THE DISCRETION TO INDULGE WHAT PRESUMPTION THEY
REASONABLY MIGHT WITH RESPECT TO WHETHER AN EMPLOYEE IN AN
ABSENT-WITHOUT-LEAVE STATUS IMMEDIATELY BEFORE OR AFTER A HOLIDAY IS
'RELIEVED OR PREVENTED' FROM WORKING SOLELY BY THE OCCURRENCE OF THAT
HOLIDAY. THE RESULT HAS BEEN THAT DIFFERENT AGENCIES HAVE IMPOSED
DIFFERENT PRESUMPTIONS AND, AS IN THE CASES OF THE DEPARTMENTS OF THE
ARMY AND NAVY CITED BY THE CHAIRMAN, HAVE DIFFERENT INSTRUCTIONS
REGARDING PAY ENTITLEMENT FOR HOLIDAYS.
"SINCE OUR DECISIONS PERMIT THESE DIFFERING RESULTS, WE HAVE FURTHER
CONSIDERED THE MATTER. WE NOW BELIEVE THAT IT IS AS VALID TO PRESUME
THAT AN EMPLOYEE WHO WAS ABSENT WITHOUT LEAVE THE DAY BEFORE A HOLIDAY
WOULD HAVE BEEN PRESENT ON THE HOLIDAY AS IT IS TO PRESUME THAT HE WOULD
HAVE BEEN PRESENT ON THE HOLIDAY WHEN HE IS ABSENT WITHOUT LEAVE ON THE
DAY AFTER THE HOLIDAY."
GENERALLY, WHERE AN EMPLOYEE IS NOT IN A PAY STATUS BUT IS SEPARATED
FROM THE ROLLS ON THE DAY IMMEDIATELY AFTER A HOLIDAY, HE IS ENTITLED TO
PAY FOR THE HOLIDAY IF HE WAS IN A PAY STATUS AT THE END OF THE WORKING
DAY IMMEDIATELY BEFORE THE HOLIDAY. AS INDICATED BY OUR HOLDINGS IN 45
COMP. GEN. 291 AND 56 ID. 393, THE FACT THAT A RETIRING EMPLOYEE IS IN A
PAY STATUS IMMEDIATELY PRECEDING THE HOLIDAY ENTITLES HIM TO PAY FOR THE
HOLIDAY BASED ON THE PRESUMPTION THAT HE IS "RELIEVED OR PREVENTED" FROM
WORKING ON THE HOLIDAY SOLELY BECAUSE OF THE OCCURRENCE OF THAT HOLIDAY.
WHERE AN EMPLOYEE IS HIRED ON A SEASONAL BASIS FOR ONLY SO LONG AS
THERE IS WORK TO BE PERFORMED, THERE IS NO BASIS TO PRESUME THAT HE WAS
RELIEVED OR PREVENTED FROM WORKING SOLELY BECAUSE OF A HOLIDAY WHERE, IN
FACT, THERE WAS NO LONGER ANY WORK TO BE PERFORMED. IN THE PARTICULAR
CASE BEFORE THIS OFFICE, THE 57 SEASONAL EMPLOYEES AT THE CINCINNATI
SERVICE CENTER WOULD HAVE BEEN PREVENTED FROM WORKING ON MAY 26, 1975,
FOR LACK OF WORK AND COULD HAVE BEEN SEPARATED AT THE CLOSE OF BUSINESS
ON THE LAST DAY THAT THE IRS HAD WORK FOR THEM. 34 COMP. GEN. 429
(1955). THUS, IT CANNOT BE PRESUMED THAT THEY WERE "RELIEVED OR
PREVENTED" FROM WORKING SOLELY BECAUSE MAY 26 WAS THE MEMORIAL DAY
HOLIDAY. UNDER THESE CIRCUMSTANCES, THE FACT THAT THEIR SEPARATIONS
OCCURRED ON THE DAY FOLLOWING THE HOLIDAY IS NOT CONTROLLING. THIS IS
NOT ONLY TRUE WITH RESPECT TO THE 57 NIGHT SHIFT EMPLOYEES, BUT PERTAINS
TO THE DAY SHIFT EMPLOYEES WHO WORKED ON MAY 23 AND NIGHT SHIFT
EMPLOYEES WHO WERE CARRIED IN AN ANNUAL LEAVE STATUS THROUGH THE NIGHT
SHIFT ON MAY 23, 1975. 56 COMP. GEN. 393 AND 45 ID. 291 DISTINGUISHED.
IN VIEW OF THE STATUTORY PREREQUISITE TO PAY FOR HOLIDAYS THAT THE
EMPLOYEE BE "RELIEVED OR PREVENTED" FROM WORKING SOLELY BECAUSE OF THE
OCCURRENCE OF THE HOLIDAY, THE IRS CORRECTLY DENIED PAY FOR THE MEMORIAL
DAY HOLIDAY OF MAY 26, 1975, TO THE 57 NIGHT SHIFT EMPLOYEES AND
INCORRECTLY PAID DAY SHIFT EMPLOYEES AND NIGHT SHIFT EMPLOYEES WITH 8 OR
MORE HOURS OF ANNUAL LEAVE TO THEIR CREDIT. HOWEVER, SINCE IT WOULD BE
AGAINST EQUITY AND GOOD CONSCIENCE TO COLLECT PAY FOR THE MEMORIAL DAY
HOLIDAY FROM THOSE EMPLOYEES WHO HAVE BEEN OVERPAID, AND WHO ARE WITHOUT
FAULT IN THE MATTER, THE OVERPAYMENTS ARE WAIVED UNDER 5 U.S.C. SEC.
5584 (1976).
B-193935, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. EMPLOYEE CLAIMS REIMBURSEMENT FOR LOCAL TELEPHONE CALLS WHILE
OCCUPYING TEMPORARY QUARTERS INCIDENT TO PERMANENT CHANGE OF STATION.
CHARGES FOR TELEPHONE CALLS OR SERVICE ARE ORDINARILY INCLUDED IN COST
OF LODGING AND MAY BE REIMBURSED. JAMES L. PALMER, 56 COMP. GEN. 40
(1976); AND 52 ID. 730 (1972).
2. EMPLOYEE, WHO WAS AUTHORIZED USE OF HIS AUTOMOBILE INCIDENT TO
HIS TRANSFER FROM HONOLULU TO ATLANTA, INCURRED 2 ADDITIONAL DAYS OF PER
DIEM IN LOS ANGELES WHILE AWAITING DELIVERY OF AUTOMOBILE AT PORT.
WHERE DELIVERY OF AUTOMOBILE WAS NOT DELAYED DUE TO CIRCUMSTANCES BEYOND
EMPLOYEE'S CONTROL, ADDITIONAL PER DIEM MAY NOT BE ALLOWED. HOWEVER,
EMPLOYEE MAY CLAIM REIMBURSEMENT FOR TEMPORARY QUARTERS IN LOS ANGELES
IF NO UNWARRANTED EXTENSION OF TEMPORARY QUARTERS ALLOWANCE IS INVOLVED.
ROBERT M. CROWL - CLAIM FOR TRAVEL EXPENSES AND TEMPORARY QUARTERS:
THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM
JUDITH B. CZARSTY, AN AUTHORIZED CERTIFYING OFFICER OF THE GENERAL
ACCOUNTING OFFICE (GAO), CONCERNING THE CLAIM OF MR. ROBERT M. CROWL, A
GAO EMPLOYEE, FOR ADDITIONAL TRAVEL EXPENSES INCURRED INCIDENT TO HIS
PERMANENT CHANGE OF DUTY STATION FROM HONOLULU, HAWAII, TO ATLANTA,
GEORGIA.
MR. CROWL'S TRAVEL ORDERS, AS AMENDED, AUTHORIZED THE EMPLOYEE AND
HIS FAMILY TO TRAVEL BY AIR CARRIER FROM HONOLULU TO LOS ANGELES,
CALIFORNIA, AND BY PRIVATELY OWNED VEHICLE FROM LOS ANGELES TO ATLANTA,
GEORGIA. IN ADDITION, MR. CROWL WAS AUTHORIZED TO TRAVEL VIA A
CIRCUITOUS ROUTE TO HIS NEW DUTY STATION PROVIDED HE ASSUMED ANY EXCESS
COST AND CHARGED EXCESS TRAVELTIME TO ANNUAL LEAVE. MR. CROWL'S TRAVEL
ORDERS AUTHORIZED REIMBURSEMENT FOR "TLA" OR TEMPORARY LODGING ALLOWANCE
FOR A PERIOD NOT TO EXCEED 60 DAYS WHICH WE INTERPRET AS AUTHORIZATION
FOR REIMBURSEMENT FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY
QUARTERS UNDER 5 U.S.C. SEC. 5724A(A)(3).
THE RECORD INDICATES THAT MR. CROWL AND HIS FAMILY MOVED INTO
TEMPORARY QUARTERS IN HONOLULU ON JUNE 15, 1978, AND CLAIMED
REIMBURSEMENT FOR TEMPORARY QUARTERS FOR THE PERIOD FROM JUNE 15 UNTIL
JULY 7, 1978. ON JULY 7 MR. CROWL AND HIS FAMILY FLEW TO LOS ANGELES
AND THE EMPLOYEE CLAIMED PER DIEM THROUGH JULY 11 WHILE AWAITING
DELIVERY OF HIS AUTOMOBILE AT THE LOS ANGELES PORT. MR. CROWL AND HIS
FAMILY THEN DEPARTED FOR HIS NEW DUTY STATION ON JULY 11, AND HE CLAIMED
7 1/2 DAYS PER DIEM FOR CONSTRUCTIVE TRAVELTIME SINCE THEY DID NOT
ARRIVE IN ATLANTA UNTIL AUGUST 4, 1978. FINALLY, MR. CROWL CLAIMED
REIMBURSEMENT FOR TEMPORARY QUARTERS IN ATLANTA FOR THE PERIOD FROM
AUGUST 4 TO SEPTEMBER 6, 1978.
THE CERTIFYING OFFICER DISALLOWED THREE ITEMS ON MR. CROWL'S
VOUCHERS, AND MR. CROWL HAS FILED A RECLAIM VOUCHER FOR THESE ITEMS.
THE ITEMS DENIED BY THE CERTIFYING OFFICER WERE FOR LOCAL TELEPHONE
CALLS CLAIMED BY MR. CROWL WHILE OCCUPYING TEMPORARY QUARTERS IN
HONOLULU AND PER DIEM IN LOS ANGELES WHILE HE AWAITED DELIVERY OF HIS
AUTOMOBILE. IN ADDITION, THE CERTIFYING OFFICER ADJUSTED MR. CROWL'S
CLAIM FOR TEMPORARY QUARTERS BY DENYING THE EMPLOYEE'S CLAIM ON THE DAY
HE FLEW FROM HONOLULU TO LOS ANGELES AND ADDING THAT AMOUNT (1/4 DAY) TO
HIS CLAIM FOR TEMPORARY QUARTERS IN ATLANTA.
THE AUTHORITY FOR REIMBURSEMENT OF SUBSISTENCE EXPENSES WHILE
OCCUPYING TEMPORARY QUARTERS IS CONTAINED IN 5 U.S.C. SEC. 5724A(A)(3)
(1976) AND THE IMPLEMENTING REGULATIONS IN THE FEDERAL TRAVEL
REGULATIONS (FTR) (FPMR 101-7), CHAPTER 2, PART 5. UNDER THE PROVISIONS
OF FTR PARA. 2-5.4A EMPLOYEES MAY BE REIMBURSED FOR THEIR ACTUAL
SUBSISTENCE EXPENSES INCLUDING CHARGES FOR MEALS, LODGING, AND OTHER
EXPENSES. ALTHOUGH TELEPHONE CALLS OR FEES FOR TELEPHONE SERVICE ARE
NOT SPECIFICALLY LISTED AS REIMBURSABLE ITEMS, OUR DECISIONS HAVE
RECOGNIZED SUCH CHARGES AS SERVICES ORDINARILY INCLUDED IN THE COST OF
LODGING. JAMES L. PALMER, 56 COMP. GEN. 40 (1976); AND 52 ID. 730
(1972). THEREFORE, MR. CROWL MAY BE REIMBURSED FOR TELEPHONE CHARGES
INCURRED WHILE OCCUPYING TEMPORARY QUARTERS IN THE AMOUNT OF $4.90.
THE CERTIFYING OFFICER HAS ALSO DISALLOWED MR. CROWL'S CLAIM FOR
SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS ON JULY 7, THE
DAY HE AND HIS FAMILY DEPARTED HONOLULU FOR LOS ANGELES, ON THE BASIS
THAT AN EMPLOYEE MAY NOT CLAIM REIMBURSEMENT FOR TEMPORARY QUARTERS AND
EN ROUTE TRAVEL AT THE SAME TIME UNDER THE PROVISIONS OF FTR PARA.
2-5.2I. THE CITED REGULATION DOES PROHIBIT REIMBURSEMENT FOR
SUBSISTENCE EXPENSES WHICH DUPLICATES PAYMENTS RECEIVED UNDER OTHER LAWS
OR REGULATIONS, BUT THE REGULATION DOES NOT PRECLUDE AN EMPLOYEE FROM
CLAIMING TEMPORARY QUARTERS AND PER DIEM ON THE SAME DAY SO LONG AS EACH
CLAIM IS NOT FOR THE SAME EXPENSES. SEE B-161878, JULY 21, 1967. WE
NOTE, HOWEVER, THAT IN HIS RECLAIM VOUCHER, MR. CROWL HAS NOT CLAIMED
TEMPORARY QUARTERS ON THE DAY HE DEPARTED HONOLULU (JULY 7), SO WE WILL
NOT FURTHER CONSIDER THAT ITEM.
FINALLY, THE CERTIFYING OFFICER DENIED MR. CROWL'S CLAIM FOR PER DIEM
FOR 2 DAYS IN LOS ANGELES WHILE AWAITING DELIVERY OF HIS AUTOMOBILE ON
THE GROUND THAT ADDITIONAL PER DIEM MAY NOT BE PAID WHERE AN EMPLOYEE
TRAVELS BY AN INDIRECT ROUTE OR MAKES A SEPARATE TRIP TO A PORT TO PICK
UP OR DELIVER HIS PRIVATELY OWNED VEHICLE. MR. CROWL STATES THAT HIS
AUTOMOBILE COULD NOT BE PICKED UP BEFORE JULY 10 AND THAT HE HAD THE
OPTION OF LEAVING HONOLULU ON FRIDAY, JULY 7, AND PICKING UP HIS
AUTOMOBILE ON MONDAY, JULY 10, OR STAYING IN HONOLULU UNTIL MONDAY, JULY
10, AND PICKING UP HIS AUTOMOBILE ON TUESDAY, JULY 11. MR. CROWL ARGUES
THAT IN EITHER CASE HE SHOULD BE ENTITLED TO REIMBURSEMENT AND THAT IT
IS LESS EXPENSIVE FOR THE GOVERNMENT FOR HIM TO CLAIM PER DIEM IN LOS
ANGELES THAN TO CLAIM TEMPORARY QUARTERS IN HONOLULU.
OUR OFFICE HAS HELD THAT WHERE AN EMPLOYEE'S TRAVEL ORDERS AUTHORIZE
USE OF A PRIVATELY OWNED AUTOMOBILE AS ADVANTAGEOUS TO THE GOVERNMENT,
THE EMPLOYEE MAY BE ENTITLED TO PER DIEM WHILE AWAITING DELIVERY OF HIS
AUTOMOBILE UNDER CERTAIN CIRCUMSTANCES. SEE MARVIN W. SHOAF, B-181344,
FEBRUARY 12, 1975, AND B-170850, JUNE 9, 1971, AND DECEMBER 31, 1970.
HOWEVER, THESE DECISIONS INVOLVED SITUATIONS WHERE THE DELAY IN PICKING
UP THE AUTOMOBILE WAS BEYOND THE EMPLOYEE'S CONTROL SUCH AS AWAITING THE
OPENING OF A CUSTOMS OFFICE OR AWAITING DELIVERY OF AN AUTOMOBILE WHERE
THE SHIPMENT WAS DELAYED BY THE GOVERNMENT. SEE DECISIONS CITED ABOVE.
IN THE PRESENT CASE, IT APPEARS THAT MR. CROWL KNEW HIS AUTOMOBILE
WOULD BE AVAILABLE FOR DELIVERY IN LOS ANGELES ON JULY 10, AND THERE IS
NO INDICATION THAT DELIVERY OF THE AUTOMOBILE WAS DELAYED DUE TO
CIRCUMSTANCES BEYOND THE EMPLOYEE'S CONTROL. THEREFORE, WE FIND NO
BASIS UPON WHICH TO ALLOW MR. CROWL PER DIEM IN LOS ANGELES DUE TO HIS
PREMATURE DEPARTURE FROM HONOLULU. ON THE OTHER HAND, SINCE MR. CROWL
HAS CLAIMED REIMBURSEMENT FOR TEMPORARY QUARTERS AT HIS OLD AND NEW DUTY
STATIONS, WE WOULD NOT OBJECT TO HIS CLAIMING REIMBURSEMENT FOR
TEMPORARY QUARTERS IN LOS ANGELES WHILE AWAITING DELIVERY OF HIS
AUTOMOBILE IF NO UNWARRANTED EXTENSION OF THE PERIOD OF TEMPORARY
QUARTERS ALLOWANCE IS INVOLVED. SEE FOR EXAMPLE, B-178790, AUGUST 1,
1973.
ACCORDINGLY, ACTION SHOULD BE TAKEN ON MR. CROWL'S VOUCHER CONSISTENT
WITH THE ABOVE DISCUSSION.
B-193968, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
WHERE NINE DAYS ELAPSE BETWEEN RECEIPT AT GOVERNMENT INSTALLATION OF
PROPERLY ADDRESSED INVOICE AND DELIVERY TO ADDRESSEE, ONE PERCENT/20 DAY
PROMPT PAYMENT DISCOUNT IS NOT EARNED EVEN THOUGH PAYMENT MADE ON 20TH
DAY AFTER RECEIPT OF INVOICE BY ADDRESSEE.
UNITED PEOPLES LAUNDRY, INC.:
THE ACCOUNTING AND FINANCE OFFICER, TRAVIS AIR FORCE BASE,
CALIFORNIA, HAS REQUESTED AN ADVANCE DECISION AS TO THE PROPRIETY OF THE
PAYMENT OF A CLAIM BY UNITED PEOPLES LAUNDRY, INC. (UPL), FOR THE REFUND
OF PROMPT PAYMENT DISCOUNTS TAKEN BY THE AIR FORCE UNDER TWO PURCHASE
ORDERS FOR LAUNDRY SERVICES FROM APRIL 1, 1978, THROUGH JUNE 30, 1978.
THE PURCHASE ORDERS PROVIDED FOR ONE PERCENT/20-DAY DISCOUNTS, AND
STATED THAT THE DISCOUNT PERIOD WOULD BE COMPUTED "FROM THE DATE THE
CORRECT INVOICE OR VOUCHER IS RECEIVED IN THE OFFICE SPECIFIED BY THE
GOVERNMENT" (THE BASE ACCOUNTING AND FINANCE OFFICE (AFO) IN THIS
INSTANCE), IF THAT DATE WERE LATER THAN THE DATE OF DELIVERY.
THE RECORD INDICATES THAT PROPERLY PREPARED, IDENTIFIED, AND
ADDRESSED INVOICES FOR THE SERVICES WERE SENT BY UPL TO THE AFO BY
CERTIFIED MAIL AND THAT THEY WERE DELIVERED TO AN OFFICE DESIGNATED BY
THE BASE FOR THE RECEIPT OF CERTIFIED AND REGISTERED MAIL ON JULY 10.
THE CERTIFIED MAIL RECEIPT WAS SIGNED ON JULY 10 BY AN EMPLOYEE OF THE
DESIGNATED OFFICE. THE INVOICES WERE THEN FORWARDED TO ANOTHER LOCATION
ON THE BASE ON JULY 11, AND ARRIVED AT THE AFO ON JULY 19. APPARENTLY,
THEY WERE MISDIRECTED BY GOVERNMENT PERSONNEL. PAYMENT LESS A ONE
PERCENT DISCOUNT WAS MADE ON AUGUST 8.
THE AIR FORCE SUGGESTS THAT THE DISCOUNT WAS EARNED BECAUSE PAYMENT
WAS MADE WITHIN 20 DAYS AFTER RECEIPT OF THE INVOICES AT THE AFO. UPL
ARGUES THAT SINCE THE INVOICES WERE PROPERLY PREPARED, IDENTIFIED, AND
CORRECTLY ADDRESSED TO THE AFO, SENT BY CERTIFIED MAIL AND RECEIPTED ON
JULY 10, THE DISCOUNT PERIOD BEGAN TO RUN ON THAT DATE. ON THAT BASIS,
UPL CONTENDS THAT THE PAYMENT 29 DAYS THEREAFTER SHOULD NOT HAVE
INCLUDED THE DISCOUNT.
BECAUSE THE BASE HAS DESIGNATED A PARTICULAR LOCATION FOR THE RECEIPT
OF REGISTERED AND CERTIFIED MAIL ADDRESSED TO OTHER OFFICES AT THE
INSTALLATION, WE BELIEVE THAT UPL'S RESPONSIBILITY TO DELIVER THE
INVOICES TO THE AFO ENDED WITH THE DELIVERY OF THE CERTIFIED MAIL AT
THAT LOCATION. SEE HAYDEN MANUFACTURING COMPANY, INC., ASBCA NO. 12713,
68-1 BCA SEC. 7038 (MAY 21, 1968), AT P. 32,541; B-174410, JUNE 30,
1972. SEE ALSO B-151143, JUNE 6, 1963 (IN WHICH WE HELD THAT A
GRATUITOUS PROMISE BY A GOVERNMENT EMPLOYEE TO FORWARD AN INVOICE TO THE
SPECIFIED OFFICE DOES NOT RELIEVE THE CONTRACTOR OF THE DUTY TO DELIVER
THE INVOICE TO THAT OFFICE FOR DISCOUNT PURPOSES).
NEVERTHELESS, IN OUR VIEW, CONTRACTORS MUST ASSUME THAT MAIL DIRECTED
TO A PARTICULAR OFFICE IN A GOVERNMENT INSTALLATION WILL NORMALLY BE
DELIVERED TO A CENTRAL MAILROOM BY THE POSTAL SERVICE FOR LATER
DISTRIBUTION BY EMPLOYEES OF THE INSTALLATION. SINCE BY CONTRACT, THE
DISCOUNT PERIOD WAS NOT TO COMMENCE UNTIL RECEIPT OF THE INVOICE AT THE
DESIGNATED OFFICE, WE BELIEVE THAT RECEIPT AT A CENTRAL MAIL FACILITY
CANNOT BE CONSIDERED RECEIPT AT THE SPECIFIED LOCATION. RATHER, THE
GOVERNMENT MUST BE AFFORDED A REASONABLE TIME TO DISPATCH MAIL TO THE
ADDRESSEE BEFORE THE DISCOUNT PERIOD CAN BE CONSIDERED TO COMMENCE.
HERE, THE RECORD INDICATES THAT THE MAIL WAS MISDIRECTED BY THE
GOVERNMENT AS IT WAS NOT RECEIVED AT THE PROPER LOCATION UNTIL NINE DAYS
AFTER DELIVERY BY THE POSTAL SERVICE. THUS THE DELAY IN PAYMENT WAS NOT
DUE TO ANY NEGLIGENCE ON THE PART OF THE CONTRACTOR, BUT WAS CAUSED BY
THE ACTIONS OF GOVERNMENT PERSONNEL, AND ALTHOUGH PAYMENT WAS MADE ON
THE 20TH DAY AFTER RECEIPT OF THE INVOICE AT AFO, THE DISCOUNTS WERE NOT
EARNED BECAUSE OF THE UNREASONABLE DELAY AND SHOULD BE REFUNDED. SEE
EXECUTIVE-SUITE SERVICES, INC., B-192145, JULY 7, 1978, 78-2 CPD 23;
B-172812, JANUARY 13, 1972.
B-194029, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. ALTHOUGH CARRIER IS RESPONSIBLE FOR TRANSPORTATION UNDER BILL OF
LADING WHICH COVERS ALL CHARGES INCLUDING STORAGE AND DELIVERY, GSA
REGULATIONS PERMIT CARRIER TO SUBMIT BILL FOR SERVICES FROM POINT OF
ORIGIN TO POINT OF STORAGE IN TRANSIT (SIT). THE REGULATIONS ALSO ALLOW
CARRIER, AS PRINCIPAL, TO DESIGNATE WAREHOUSEMAN ITS AGENT TO BILL IN
CARRIER'S NAME FOR SIT AND DELIVERY CHARGES.
2. CARRIER'S ATTEMPT TO CHANGE CERTIFICATE BY DISCLAIMING ITS
LIABILITY FOR OVERPAYMENT OF SIT CHARGES UNLESS BILLING FOR THOSE
CHARGES WAS TENDERED DIRECTLY TO IT VARIED CERTIFICATE TERMS SET OUT IN
GSA REGULATIONS AND IS CONTRARY TO LAW.
INTERSTATE VAN LINES, INC.:
INTERSTATE VAN LINES, INC. (INTERSTATE) REQUESTS OUR REVIEW OF AUDIT
ACTIONS TAKEN BY THE TRANSPORTATION AUDIT DIVISION, GENERAL SERVICES
ADMINISTRATION (GSA) ON THREE NOTICES OF OVERCHARGE SENT TO INTERSTATE
(OR TO ITS SUBSIDIARY, STAR WORLD WIDE FORWARDERS, INC. (STAR)).
FURTHER ACTION BY GSA ON THESE OVERCHARGES IS BEING HELD IN ABEYANCE
PENDING THIS REVIEW. THE REVIEW IS BEING MADE UNDER 49 U.S.C. SEC.
66(B) (1976) AND 4 C.F.R. SEC. 53.3 (1978), SINCE GSA HAS AGREED THAT
ITS ACTION IN THIS CASE CONSTITUTES FINALITY OF ADMINISTRATIVE
CONSIDERATION. SEE 4 C.F.R. SEC. 53.1 (1978).
THE NOTICES OF OVERCHARGE RESULT FROM MULTIPLE PAYMENTS FOR THE SAME
SERVICES MADE TO INTERSTATE AND ITS AGENTS ON THREE SHIPMENTS OF
HOUSEHOLD GOODS. THE MULTIPLE PAYMENTS INCLUDE CHARGES FOR STORING THE
HOUSEHOLD GOODS IN TRANSIT, FOR TRANSPORTING THEM FROM STORAGE TO THEIR
DESTINATIONS (SIT CHARGES) AND FOR REWEIGHING THEM AT DESTINATION.
WE HOLD THAT INTERSTATE IS LIABLE FOR THE MULTIPLE PAYMENTS MADE TO
IT AND TO ITS AGENTS. INTERSTATE'S ATTEMPT TO INSULATE ITSELF FROM
LIABILITY FOR OVERPAID SIT CHARGES BY IMPOSING CONDITIONS ON THE PAYMENT
OF THOSE CHARGES IS CONTRARY TO LAW.
THE GERALD L. HILL SHIPMENT
GOVERNMENT BILL OF LADING (GBL) NO. M-3067988, DATED AUGUST 9, 1976,
COVERED THE SHIPMENT OF GERALD L. HILL'S HOUSEHOLD GOODS FROM TACOMA,
WASHINGTON, TO ALBION, MICHIGAN. THIS SHIPMENT WAS PICKED UP AT ORIGIN
BY STAR AND TRANSPORTED TO JACKSON, MICHIGAN, WHERE IT WAS PLACED IN
STORAGE AT THE WHITE STAR MOVING & STORAGE COMPANY (WHITE STAR)
WAREHOUSE ON AUGUST 20, 1976. LINE-HAUL CHARGES OF $922.91 WERE
COLLECTED BY STAR IN DECEMBER 1976.
PAPERS SUPPORTING STAR'S BILLING FOR THE LINE-HAUL CHARGES INCLUDED A
CERTIFICATE ISSUED BY STAR AUTHORIZING THE SHIPMENT TO BE PLACED IN THE
WHITE STAR WAREHOUSE. UNDER THIS CERTIFICATE, WHITE STAR WAS AUTHORIZED
BY STAR TO COLLECT FROM THE GOVERNMENT AS AGENT OF STAR ALL SIT CHARGES
AUTHORIZED ON GBL NO. M-3067988.
WHITE STAR, BILLING IN THE NAME OF ITS PRINCIPAL STAR, COLLECTED
$187.45 IN APRIL 1977 FOR SIT CHARGES ON GBL NO. M-3067988. THIS
CARRIER PRESENTED A SECOND SIMILAR BILL FOR THE SAME CHARGES AND WAS
PAID $187.45 IN APRIL 1977. A THIRD SIMILAR BILL WAS PRESENTED BY WHITE
STAR FOR $187.45 AND PAID IN MAY 1977. THIS RESULTED IN TRIPLICATE
PAYMENTS TO WHITE STAR, AS THE AGENT OF STAR, FOR THE SAME SERVICES.
THE RICHARD L. KETTELKAMP SHIPMENT
GBL NO. H-7050508 DATED DECEMBER 4, 1974, COVERED THE MOVEMENT OF
HOUSEHOLD GOODS, PROPERTY OF RICHARD L. KETTELKAMP, FROM ALEXANDRIA,
VIRGINIA, TO TUCSON, ARIZONA. THE SHIPMENT WAS PICKED UP AT ORIGIN BY
STAR AND TRANSPORTED TO TUCSON, ARIZONA, WHERE IT WAS PLACED IN STORAGE
AT AB MOVING & STORAGE COMPANY'S (AB MOVING) WAREHOUSE ON DECEMBER 23,
1974. LINE-HAUL CHARGES OF $321.35 WERE COLLECTED BY STAR IN MARCH
1975.
PAPERS SUPPORTING STAR'S BILLING FOR THE LINE-HAUL CHARGES INCLUDE A
CERTIFICATE ISSUED BY STAR AUTHORIZING THE SHIPMENT TO BE PLACED IN AB
MOVING'S STORAGE WAREHOUSE. THIS DOCUMENT ALSO AUTHORIZED AB MOVING TO
COLLECT FROM THE GOVERNMENT, AS AGENT OF STAR, ALL SIT CHARGES
AUTHORIZED ON GBL H-7050508.
AB MOVING, BILLING IN THE NAME OF ITS PRINCIPAL, STAR, COLLECTED
$102.44 FOR SIT CHARGES IN SEPTEMBER 1975. THIS COMPANY PRESENTED A
SECOND SIMILAR BILL AND WAS PAID $102.44 IN FEBRUARY 1976, RESULTING IN
A DUPLICATE PAYMENT FOR THE SAME SERVICES.
THE HOWARD G. WOODBRIDGE SHIPMENT
GBL NO. M-2397912, DATED JUNE 15, 1977, COVERED A SHIPMENT OF
HOUSEHOLD GOODS, THE PROPERTY OF HOWARD G. WOODBRIDGE, TRANSPORTED BY
INTERSTATE FROM SPRINGFIELD, VIRGINIA, TO COLUMBUS, MISSISSIPPI, WHERE
IT WAS PLACED IN STORAGE AT THE MCCONNELL BROTHERS TRANSFER AND STORAGE,
INC. (MCCONNELL) WAREHOUSE ON JULY 5, 1977. INTERSTATE'S BILL FOR THE
LINE-HAUL CHARGES WAS SUPPORTED BY THE SAME TYPE OF CERTIFICATE USED
WITH THE OTHER TWO SHIPMENTS.
INTERSTATE'S DRIVER'S WEIGHT CERTIFICATE DATED JUNE 15, 1977, SHOWS A
GROSS WEIGHT OF 41,480 POUNDS, TARE WEIGHT OF 40,040 POUNDS AND NET
WEIGHT OF 1,440 POUNDS. THIS IS SUPPORTED BY TWO WEIGHT TICKETS DATED
JUNE 15, 1977. A REWEIGH CERTIFICATION SHOWS A GROSS WEIGHT OF 38,600
POUNDS, A TARE WEIGHT OF 36,900 POUNDS AND NET WEIGHT OF 1,700 POUNDS.
WHEN A REWEIGH IS ACCOMPLISHED THE HOUSEHOLD GOODS TARIFF PROVIDES THAT
THE APPLICABLE CHARGE IS BASED ON THE LOWER OF THE TWO WEIGHTS AND THE
CARRIER IS ENTITLED TO A REWEIGH CHARGE.
MCCONNELL AS AN AGENT OF INTERSTATE, PRESENTED A BILL FOR REWEIGH
CHARGES OF $20. THIS WAS PAID IN DECEMBER 1977. INTERSTATE PRESENTED A
BILL FOR THE SAME REWEIGH CHARGES OF $20 WHICH WAS PAID IN MARCH 1978.
THESE TRANSACTIONS CONSTITUTE A DUPLICATE PAYMENT OF REWEIGH CHARGES,
ONE TO INTERSTATE AND ONE TO ITS AGENT, MCCONNELL.
INTERSTATE CONTENDS THAT IT IS NOT LIABLE FOR THE MULTIPLE PAYMENTS
MADE TO IT OR TO ITS AGENTS. IT STATES THAT THE PAYING OFFICE HAS A
RESPONSIBILITY TO EXERCISE PRUDENT MANAGEMENT OF ITS DISBURSING ACTIVITY
TO PREVENT MULTIPLE PAYMENTS. INTERSTATE ARGUES THAT CERTAIN LANGUAGE
IN THE CERTIFICATES ISSUED BY INTERSTATE OR BY STAR GIVING ITS AGENTS
THE AUTHORITY TO BILL FOR SIT CHARGES MADE THE CERTIFICATE A CONDITIONAL
WAIVER WHICH RELEASES THE CARRIER FROM LIABILITY IN THESE CASES. THAT
LANGUAGE READS:
"THE WAREHOUSE NAMED ABOVE MAY VOUCHER AND RECEIVE PAYMENT FROM THE
GOVERNMENT AS AGENT OF CARRIER ALL S.I.T. CHARGES AUTHORIZED ON
GOVERNMENT BILL OF LADING DESCRIBED ABOVE; SUCH CHARGES TO BE AUDITED
BEFORE PAYMENT AS CARRIER ASSUMES NO LIABILITY FOR OVERPAYMENT UNLESS
BILLING IS TENDERED DIRECTLY TO CARRIER."
THESE GOVERNMENT BILL OF LADING CONTRACTS BETWEEN THE GOVERNMENT AND
INTERSTATE FOR THE TRANSPORTATION OF HOUSEHOLD GOODS ARE SINGLE UNIFIED
TRANSACTIONS. THEY INCLUDED A REQUIREMENT FOR STORAGE BEFORE DELIVERY
AT DESTINATION. INTERSTATE OR STAR IS RESPONSIBLE FOR TRANSPORTATION
UNDER THESE BILLS OF LADING WHICH COVER ALL CHARGES INCLUDING STORAGE
AND DEMURRAGE; THEY GENERALLY ARE NOT SEVERABLE INTO THEIR COMPONENT
PARTS. SEE PENNSYLVANIA R. R. V. CHARLES E. GIBSON, INC., 23 F. SUPP.
857, 860 (1938); 35 COMP. GEN. 524 (1956), 43 COMP. GEN. 290 (1963).
THE THREE SHIPMENTS OF HOUSEHOLD GOODS WERE PLACED IN CARRIER-SELECTED
STORAGE WAREHOUSES. THEREFORE, INTERSTATE (OR ITS SUBSIDIARY, STAR) IN
PRIVITY TO THE CONTRACT OF CARRIAGE AS EVIDENCED BY THE GBLS, WAS THE
CARRIER PROPERLY ENTITLED TO BILL AND RECEIVE PAYMENT FOR ALL CHARGES
ASSESSABLE FOR SERVICES PERFORMED PURSUANT TO THE TERMS OF THESE BILL OF
LADING CONTRACTS.
REGULATIONS ISSUED BY GSA PERMIT THE CARRIER TO SUBMIT A BILL FOR ITS
SERVICES FROM POINT OF ORIGIN TO THE POINT OF STORAGE IN TRANSIT (SIT)
UPON COMPLETION OF THE TRANSPORTATION TO THE STORAGE POINT, BUT PRIOR TO
ULTIMATE DELIVERY TO THE OWNER. TO OBTAIN PAYMENT, THE CARRIER MUST
SUBMIT WITH ITS BILL A SIGNED CERTIFICATE WHICH SHOULD INCLUDE THE NAME
OF WAREHOUSE, ITS LOCATION AND THE DATE THE HOUSEHOLD GOODS WERE
DELIVERED INTO SIT; THE LENGTH OF TIME SIT IS PERMITTED; A STATEMENT
THAT THE CARRIER HAULING THE SHIPMENT TO THE DESTINATION SIT POINT
ASSUMES FULL CARRIER LIABILITY FOR THE SHIPMENT DURING STORAGE AND UNTIL
DELIVERY TO THE PROPERTY OWNER; AND AN ACKNOWLEDGMENT THAT PAYMENT TO
THE CARRIER FOR TRANSPORTATION SERVICE FROM POINT OF PICKUP TO THE POINT
OF DESTINATION STORAGE IS DEPENDENT UPON ULTIMATE DELIVERY TO THE
PROPERTY OWNER. 41 C.F.R. SEC. 101-41.309-2 (1978).
THE REGULATIONS ALSO PROVIDE THAT THE CARRIER, AT ITS OPTION, MAY
INCLUDE A STATEMENT IN THE CERTIFICATE ALLOWING THE WAREHOUSE AS THE
DESIGNATED AGENT OF THE CARRIER TO VOUCHER AND RECEIVE PAYMENT FROM THE
GOVERNMENT IN THE NAME OF THE CARRIER FOR THE SIT AND DELIVERY-OUT
CHARGES AUTHORIZED ON THE GBL. 41 C.F.R. SEC. 101-41.309-2(B)(3)
(1978). THE AGENT WAREHOUSEMAN CAN BE PAID IF "THE BILL IS SUBMITTED IN
THE NAME OF THE PRINCIPAL," ALTHOUGH THE CHECKS DRAWN IN THE NAME OF THE
PRINCIPAL MAY BE MAILED TO THE AGENT. 41 C.F.R. SEC.
101-41.310-4(A)(3), (4) (1978). THIS WAS THE PROCEDURE FOLLOWED IN
THESE THREE CASES.
THE REGULATIONS WHICH PROVIDE THAT THE AGENT OF A CARRIER MAY BILL
AND RECEIVE PAYMENT WHEN THERE IS SIT PENDING DELIVERY OF HOUSEHOLD
GOODS WERE PROMULGATED IN ORDER TO IMPLEMENT THE SO-CALLED
ANTI-ASSIGNMENT STATUTES, 31 U.S.C. 203 (1976) AND 41 U.S.C. 15 (1976).
THE COURTS HAVE DECLARED THAT THE PURPOSES OF 31 U.S.C. 203 ARE: (1)
TO PREVENT THE HARASSMENT CAUSED BY MULTIPLYING THE NUMBER OF PERSONS
WITH WHOM THE GOVERNMENT MUST DEAL, (2) TO PREVENT POSSIBLE MULTIPLE
PAYMENT OF CLAIMS, (3) TO MAKE UNNECESSARY THE INVESTIGATION OF ALLEGED
ASSIGNMENTS, POWERS OF ATTORNEY AND OTHER AUTHORIZATIONS, (4) TO ENABLE
THE GOVERNMENT TO DEAL ONLY WITH THE ORIGINAL CONTRACTOR (CLAIMANT), AND
(5) TO SAVE TO THE UNITED STATES DEFENSES WHICH IT HAS TO CLAIMS BY AN
ASSIGNOR BY WAY OF SETOFF AND COUNTERCLAIM WHICH MIGHT NOT BE APPLICABLE
TO AN ASSIGNEE. UNITED STATES V. SHANNON, 342 U.S. 288 (1952); UNITED
STATES V. AETNA CASUALTY AND SURETY CO., 338 U.S. 366 (1949). GIVEN
THIS COURT LANGUAGE, DEVIATIONS FROM THE REGULATIONS WHICH OBFUSCATE THE
PURPOSE OF THE STATUTES ARE WITHOUT LEGAL BASIS AND CANNOT BE PERMITTED.
THE CERTIFICATE ISSUED BY INTERSTATE OR BY STAR HAS ALL THE
CONDITIONS REQUIRED BY 41 C.F.R. 101.41.309-(2) (1978), BUT IT PROVIDES
THAT INTERSTATE ASSUMES NO LIABILITY FOR OVERPAYMENTS UNLESS CERTAIN
CONDITIONS ARE MET. SINCE THE ATTEMPTED MODIFICATION VARIES THE FORM OF
THE CERTIFICATE REQUIRED BY GSA'S REGULATIONS, IT IS UNLAWFUL AND CANNOT
PRECLUDE THE UNITED STATES FROM COLLECTING THESE OVERCHARGES FROM
INTERSTATE. SEE B-176837, SEPTEMBER 14, 1972.
GSA'S AUDIT ACTIONS ARE SUSTAINED.
B-194073, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE OF UNITED STATES DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS,
WAS TRANSFERRED FROM PHILADELPHIA, PENNSYLVANIA, TO WASHINGTON, D. C. HE
WAS AUTHORIZED 24 DAYS OF TEMPORARY QUARTERS SUBSISTENCE EXPENSE (TQSE).
HE RENTED AN APARTMENT, MOVED IN HIS HOUSEHOLD GOODS, AND REMAINED
THERE FOR 1 YEAR BEFORE HE PURCHASED A HOME. TQSE MAY NOT BE PAID SINCE
THERE IS NO INDICATION THAT EMPLOYEE INTENDED THE APARTMENT TO BE OTHER
THAN HIS PERMANENT RESIDENCE.
MYROSLAW J. YUSCHISHIN - SUBSISTENCE WHILE OCCUPYING TEMPORARY
QUARTERS:
BY LETTER OF FEBRUARY 1, 1979, MR. JOHN H. BRANSBY, FINANCE AND
ACCOUNTING OFFICER, BALTIMORE DISTRICT, UNITED STATES DEPARTMENT OF THE
ARMY, CORPS OF ENGINEERS, REQUESTS AN ADVANCE DECISION CONCERNING THE
PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS (TQSE) CLAIMED
BY MR. MYROSLAW J. YUSCHISHIN, A CORPS EMPLOYEE, INCIDENT TO A PERMANENT
CHANGE OF STATION. FOR THE FOLLOWING REASONS MR. YUSCHISHIN IS NOT
ENTITLED TO TQSE.
THE RECORD INDICATES THAT BY TRAVEL ORDER NO. PCS 77-19, MR.
YUSCHISHIN WAS TRANSFERRED FROM PHILADELPHIA, PENNSYLVANIA, TO
WASHINGTON, D. C. HE WAS AUTHORIZED TQSE FOR 24 DAYS. IN THE
WASHINGTON, D. C. AREA HE RENTED AN APARTMENT WHICH HE OCCUPIED UNTIL HE
PURCHASED A HOME 1 YEAR LATER. MR. BRANSBY STATES THAT THE APARTMENT
CONSTITUTED MR. YUSCHISHIN'S PERMANENT RESIDENCE. THE CLAIM HAS BEEN
DISALLOWED. AT THE TIME MR. YUSCHISHIN RENTED THE APARTMENT HE MOVED IN
ALL OF HIS HOUSEHOLD GOODS. WE ARE ADVISED INFORMALLY THAT HE USED THE
MONTHLY RENT AS A BASE FIGURE TO ARRIVE AT HIS AVERAGE QUARTERS COST A
DAY AND TOGETHER WITH THE COST OF HIS MEALS HE SEEKS REIMBURSEMENT FOR
THESE ITEMS AS TQSE.
THE PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IS
GOVERNED BY PART 5, CHAPTER 2, OF THE FEDERAL TRAVEL REGULATIONS (FTR)
(FPMR 101-7) (MAY 1973). AN EMPLOYEE MAY NOT BE REIMBURSED FOR
TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AFTER HE OCCUPIES THE
RESIDENCE IN WHICH HE INTENDS TO REMAIN. 53 COMP. GEN. 508 (1974).
HOWEVER, WHERE THERE IS EVIDENCE THAT THE EMPLOYEE HAS REASONABLY
DEMONSTRATED HIS INTENT TO USE THE QUARTERS ONLY ON A TEMPORARY BASIS
REIMBURSEMENT IS PROPER. MATTER OF CALVIN REESE, B-187834, JUNE 21,
1977. THEREFORE, IT MUST BE DETERMINED WHETHER MR. YUSCHISHIN OCCUPIED
THE APARTMENT ON A PERMANENT OR TEMPORARY BASIS.
THE TERM "TEMPORARY QUARTERS" IS NOT DEFINED EITHER IN THE APPLICABLE
STATUTE, 5 U.S.C. 5724A(A)(3) (1976), OR THE IMPLEMENTING REGULATIONS
CONTAINED IN THE FTR. WE HAVE HELD THAT A DETERMINATION AS TO WHAT
CONSTITUTES TEMPORARY QUARTERS MUST BE MADE ON THE FACTS IN EACH CASE.
47 COMP. GEN. 84 (1967). IN DETERMINING WHETHER PERMANENT TYPE QUARTERS
WERE OCCUPIED TEMPORARILY WE HAVE CONSIDERED SUCH FACTORS AS MOVEMENT OF
HOUSEHOLD EFFECTS INTO THE QUARTERS, THE DURATION OF A LEASE, THE PERIOD
OF RESIDENCE IN THE QUARTERS BY THE EMPLOYEE, ANY EXPRESSIONS OF INTENT,
AND ATTEMPTS TO SECURE A PERMANENT DWELLING. SEE: MATTER OF C. BURTON
WINKLE, B-185695, JUNE 21, 1976, CITED IN REESE, SUPRA.
WE HAVE CONSISTENTLY HELD THAT WHEN AN EMPLOYEE IN A NEW LOCATION
MOVES INTO QUARTERS WHICH SUBSEQUENTLY BECOME HIS PERMANENT RESIDENCE,
THE DETERMINATION OF WHETHER OR NOT THOSE QUARTERS WERE INITIALLY
TEMPORARY IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE MOVED
INTO THE LODGINGS. MATTER OF CHARLES L. AVERY, B-179870, SEPTEMBER 26,
1974.
THE BURDEN OF PROVIDING CONVINCING EVIDENCE OF INTENT IS ON THE
PERSON REQUESTING REIMBURSEMENT. THE ABSENCE OF ANY EVIDENCE SUPPORTING
AN INTENT TO OBTAIN A PERMANENT RESIDENCE ELSEWHERE MITIGATES AGAINST
REIMBURSEMENT. SEE: AVERY, SUPRA.
HERE THERE IS NO INDICATION THAT MR. YUSCHISHIN INTENDED TO USE THE
APARTMENT FOR ANYTHING OTHER THAN HIS PERMANENT RESIDENCE. HE MOVED HIS
HOUSEHOLD GOODS INTO THE APARTMENT WHEN HE FIRST RENTED IT AND HE
REMAINED IN THE APARTMENT FOR 1 YEAR. THERE IS NO INDICATION THAT HE
SOUGHT ANOTHER PLACE TO LIVE. THE FACT THAT HE EVENTUALLY PURCHASED A
HOME 1 YEAR LATER DOES NOT DEMONSTRATE THAT THE APARTMENT WAS A
TEMPORARY RESIDENCE.
ACCORDINGLY, THE VOUCHER SETTING FORTH MR. YUSCHISHIN'S CLAIM FOR
TEMPORARY QUARTERS SUBSISTENCE EXPENSES MAY NOT BE CERTIFIED FOR
PAYMENT.
B-194222, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. ALLEGATION THAT COMPETITOR CANNOT PERFORM CONTRACT IS NOT FOR
CONSIDERATION SINCE IT AMOUNTS TO PROTEST AGAINST CONTRACTING AGENCY'S
AFFIRMATIVE DETERMINATION OF COMPETITOR'S RESPONSIBILITY AND GAO WILL
NOT REVIEW SUCH DETERMINATIONS SAVE IN LIMITED CIRCUMSTANCES NOT PRESENT
HERE.
2. ALLEGATION CONCERNING DEFICIENCY IN IFB'S TECHNICAL INFORMATION
FILED AFTER BID OPENING IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS.
3. PROTESTER HAS NOT CARRIED BURDEN TO SUBSTANTIATE ITS CLAIM THAT
AGENCY MISAPPROPRIATED DRAWING.
4. ALLEGATIONS CONCERNING PROPRIETARY DATA WHICH DIRECTLY OR
INDIRECTLY QUESTION RESPONSIBILITY OF ANOTHER CONCERN WILL NOT BE
REVIEWED.
5. MATTER INVOLVING POSSIBLE MISAPPROPRIATION OF PROPRIETARY DATA BY
FORMER EMPLOYEE RELATES TO DISPUTE BETWEEN TWO PRIVATE PARTIES AND IS
NOT FOR GAO RESOLUTION.
BOGUE ELECTRIC MANUFACTURING COMPANY:
BOGUE ELECTRIC MANUFACTURING COMPANY (BOGUE) PROTESTS THE NAVY'S
PROPOSED AWARD OF A CONTRACT TO WILCO ELECTRIC, INC. (WILCO), UNDER
INVITATION FOR BIDS (IFB) NO. N00104-78-B-1170. BOGUE STATES THREE
GROUNDS OF PROTEST: (1) WILCO IS INCAPABLE OF MEETING THE
SOLICITATION'S TECHNICAL REQUIREMENTS; (2) THE SOLICITATION DID NOT
FURNISH NECESSARY TECHNICAL DATA WITHOUT WHICH IT IS IMPOSSIBLE FOR ANY
OFFEROR OTHER THAN BOGUE OR THE GENERAL ELECTRIC COMPANY (GE) TO
MANUFACTURE THE REQUIRED EQUIPMENT; AND (3) ONLY BOGUE AND GE HAVE THE
LEGAL RIGHT TO MANUFACTURE THE REQUIRED EQUIPMENT BECAUSE OF THEIR
OWNERSHIP OF PATENT AND PROPRIETARY DATA RIGHTS.
THE IFB WAS ISSUED ON AN UNRESTRICTED BASIS FOR 11 AMPLIDYNES TO BE
USED AT SEA IN MK68 GUN DIRECTORS. AN AMPLIDYNE IS ESSENTIALLY AN
ELECTRICAL POWER AMPLIFIER IN THE CONFIGURATION OF A SOPHISTICATED
ELECTRIC MOTOR CONSISTING OF "A DIRECT-CURRENT GENERATOR THAT ***
PRECISELY CONTROLS A LARGE POWER OUTPUT WHENEVER A SMALL POWER INPUT IS
VARIED IN THE FIELD WINDING OF THE GENERATOR." WEBSTER'S NEW COLLEGIATE
DICTIONARY 39 (1975 ED.). BOGUE REPORTS THAT AMPLIDYNES WERE INVENTED
AND PATENTED MANY YEARS AGO BY GE. DURING THE KOREAN WAR, GE LICENSED
BOGUE, IN ITS CAPACITY AS A GE SUBCONTRACTOR, TO PRODUCE THE PATENTED
AMPLIDYNES. THESE AMPLIDYNES WERE, IN TURN, SOLD BY GE TO THE NAVY.
BOGUE FURTHER REPORTS THAT THE FIELD STRUCTURE OF AN AMPLIDYNE IS
ENTIRELY DIFFERENT FROM THAT FOUND IN CONVENTIONAL GENERATORS AND THAT
WITHOUT CERTAIN LAMINATION DRAWINGS HAVING A "PECULIAR GEOMETRY, IT IS
IMPOSSIBLE TO DUPLICATE THE PERFORMANCE OF AN AMPLIDYNE WITH RESPECT TO
SENSITIVITY AND RESPONSE." IN BOGUE'S OPINION, THE SPECIFIC GEOMETRY OF
THE FIELD STRUCTURE IS A WORK OF ART RATHER THAN AN ENGINEERING DESIGN.
THE FIRST GROUND OF PROTEST IS BASED ON BOGUE'S BELIEF THAT WILCO IS
INCAPABLE OF PRODUCING THE REQUIRED AMPLIDYNES. HOWEVER, SINCE WILCO'S
BID NEITHER LIMITED, REDUCED NOR MODIFIED ITS OBLIGATION TO PERFORM, IT
MUST BE CONSIDERED RESPONSIVE. 53 COMP. GEN. 396 (1973). THUS,
WILCO'S ABILITY TO FURNISH THE REQUIRED AMPLIDYNES IS A MATTER OF
RESPONSIBILITY. BOGUE'S ALLEGATION OF WILCO'S INABILITY TO PERFORM
CONSTITUTES A PROTEST AGAINST THE NAVY'S AFFIRMATIVE DETERMINATION OF
WILCO'S RESPONSIBILITY.
WE DO NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF
RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING
OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY
CRITERIA WHICH HAVE ALLEGEDLY NOT BEEN APPLIED. CENTRAL METAL PRODUCTS,
INCORPORATED, 54 COMP. GEN. 66 (1974), 74-2 CPD 64; YARDNEY ELECTRIC
CORPORATION, 54 COMP. GEN. 509 (1974), 74-2 CPD 376. SINCE NEITHER
EXCEPTION IS APPLICABLE HERE, WE WILL NOT CONSIDER THIS ASPECT OF
BOGUE'S PROTEST.
BOGUE'S SECOND GROUND OF PROTEST CONCERNS A DEFICIENCY IN THE
TECHNICAL INFORMATION WHICH WAS FURNISHED AS PART OF THE IFB. THE IFB
REQUIRED MANUFACTURE OF THE AMPLIDYNES IN ACCORDANCE WITH MIL-M-2130 (A
PERFORMANCE SPECIFICATION) AND ORDNANCE DRAWING 2679999 (A
SPECIFICATION-CONTROLLED DRAWING) WHICH LISTS BOGUE PART NUMBERS. BOGUE
ARGUES THAT THE IFB LACKS IN PROCESS TECHNICAL DATA AND IN PROCESS
PROCEDURES NECESSARY FOR MANUFACTURING THE AMPLIDYNES.
ALTHOUGH BOGUE ADVISED THE NAVY OF ITS CONCERN IN THIS REGARD IN A
FEBRUARY 5, 1979, LETTER, IT DID NOT ASSERT IT AS A GROUND OF PROTEST
UNTIL ITS FEBRUARY 27, 1979, PROTEST TO OUR OFFICE.
OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BASED UPON ALLEGED
IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING
MUST BE FILED PRIOR TO BID OPENING. 4 C.F.R. SEC. 20.2(B)(1) (1978).
THE BIDS WERE OPENED DECEMBER 1, 1978. BOGUE'S PROTEST WAS RECEIVED ON
FEBRUARY 28, 1979. SINCE THE DEFICIENCY COMPLAINED OF IS APPARENT ON
THE FACE OF THE SOLICITATION, THE PROTEST HAD TO BE RECEIVED PRIOR TO
THE DECEMBER 1, 1978, BID OPENING IN ORDER TO BE TIMELY. THUS, THIS
ASPECT OF BOGUE'S PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE
MERITS.
BOGUE'S FINAL GROUND OF PROTEST CONCERNS THE EXISTENCE OF ALLEGED
PATENT AND PROPRIETARY DATA RIGHTS WHICH BOGUE CONTENDS LEGALLY PRECLUDE
ANY MANUFACTURER, OTHER THAN GE OR ITSELF, FROM FABRICATING THE
AMPLIDYNES. THE NAVY REPORTS: (1) THAT BOGUE HAS FAILED TO FURNISH ANY
PATENT NUMBERS IN SUPPORT OF ITS ALLEGATION THAT THE AMPLIDYNE IS
COVERED BY GE PATENTS; (2) THAT BOGUE HAS FAILED TO FURNISH ANY
EVIDENCE THAT IT IS A LICENSEE OF GE UNDER THE PATENTS; (3) THAT, IF
THE PATENTS WERE INFRINGED, THE REAL PARTY IN INTEREST IS GE AND NOT
BOGUE; AND (4) THAT PATENTS ISSUED IN 1953 WOULD HAVE EXPIRED BY NOW.
IN VIEW OF THE ABOVE, WE BELIEVE THAT BOGUE HAS FAILED TO PRESENT THE
INFORMATION AND EVIDENCE NECESSARY TO SUBSTANTIATE ITS CASE.
KURZ-KASCH, INC., B-192604, SEPTEMBER 8, 1978, 78-2 CPD 181.
BOGUE'S ALLEGATIONS CONCERNING MISAPPROPRIATION OF PROPRIETARY DATA
ARE AIMED BOTH AT THE NAVY AND AT WILCO. BOGUE STATES THAT IT RECEIVED
THE DRAWINGS, TECHNICAL DATA, IN-PROCESS MANUFACTURING AND TEST
PROCEDURES NECESSARY FOR THE PRODUCTION OF HIGH PERFORMANCE AMPLIDYNES
FROM GE. WILCO, HOWEVER, STATES THAT IN THE MID-SIXTIES BOGUE UNDERBID
GE AND OBTAINED A SUBCONTRACT FROM ANOTHER FIRM WHICH REQUIRED IT TO
MANUFACTURE AMPLIDYNES AND THAT BOGUE, USING THE SAME TYPE OF
INFORMATION AS IS FOUND IN THE IFB, WAS ABLE TO SUCCESSFULLY DUPLICATE
THE PERFORMANCE OF GE AMPLIDYNES WITHOUT USING GE'S DRAWINGS.
REGARDING BOGUE'S ALLEGATION OF NAVY MISAPPROPRIATION, THE RECORD
SHOWS THAT THE NAVY POSSESSES BOGUE DRAWING NO. A-34914 AND THAT THE
DRAWING IS REFERENCED IN THE SOLICITATION'S DATA PACKAGE. HOWEVER, THE
NAVY STATES THAT THE DRAWING IS DEVOID OF ANY RESTRICTIVE PROPRIETARY
LEGEND. WE BELIEVE THIS ALONE IS AN INSUFFICIENT BASIS UPON WHICH TO
CONCLUDE THAT THE NAVY MISAPPROPRIATED THE BOGUE DRAWING. AS WE
INDICATED ABOVE, THE BURDEN IS ON THE PROTESTER TO SUBSTANTIATE ITS
CASE. KURZ-KASCH, INC., SUPRA.
REGARDING THE ALLEGATION OF MISAPPROPRIATION OF PROPRIETARY DATA
AGAINST ITS COMPETITOR, WE BELIEVE THAT SUCH AN ALLEGATION AMOUNTS TO AN
INDIRECT ATTACK ON THE RESPONSIBILITY OF BOGUE'S COMPETITOR. IN OTHER
WORDS, THE COMPETITION EITHER WILL NOT BE ABLE TO FURNISH WHAT IS
REQUIRED OR, IN THE ALTERNATIVE, THE COMPETITION CAN ONLY FURNISH WHAT
IS REQUIRED BY MISAPPROPRIATION OF BOGUE'S PROPRIETARY DATA. WE HAVE
TAKEN THE POSITION THAT IF A PROTEST CONCERNING PROPRIETARY DATA
DIRECTLY OR INDIRECTLY QUESTIONS THE RESPONSIBILITY OF ANOTHER CONCERN,
THE MATTER IS NOT APPROPRIATE FOR OUR REVIEW. WORTHINGTON PUMP INC.,
B-192385, OCTOBER 11, 1978, 78-2 CPD 267. WE NOTE THAT THE RECORD
INDICATES THAT WILCO'S PRESIDENT WAS A BOGUE EMPLOYEE FROM 1944 THROUGH
1972 AND APPARENTLY SERVED AS BOGUE'S PRESIDENT IN 1964. TO THE EXTENT
THAT BOGUE'S CURRENT ALLEGATION IS RELATED TO ITS FORMER EMPLOYMENT OF
WILCO'S PRESIDENT AND HIS POSSIBLE USE OF INFORMATION WHICH HE MIGHT
HAVE GAINED WHILE IN BOGUE'S EMPLOY, WE BELIEVE THAT SUCH AN ALLEGATION
ESSENTIALLY RELATES TO A DISPUTE BETWEEN TWO PRIVATE PARTIES REGARDING
PROPRIETARY RIGHTS WHICH SHOULD NOT BE RESOLVED BY OUR OFFICE.
WASHINGTON SCHOOL OF PSYCHIATRY, B-189702, MARCH 7, 1978, 78-1 CPD 176.
ACCORDINGLY, THE PROTEST IS DISMISSED IN PART AND DENIED IN PART.
B-194254, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. DEPARTMENT OF STATE EMPLOYEE TRAVELED BY PRIVATELY OWNED VEHICLE
(POV) FROM COPENHAGEN, DENMARK, TO SOUTHAMPTON, UNITED KINGDOM, AND
CLAIMED 902 MILES FOR TRIP. GAO CLAIMS DIVISION ASSUMED THAT FIGURE
CLAIMED WAS IN KILOMETERS SINCE MILEAGE APPEARED EXCESSIVE AND THEREFORE
ALLOWED PAYMENT FOR 559 MILES. EMPLOYEE MAY BE ALLOWED PAYMENT FOR 724
MILES AS "OFFICIAL TABLE OF DISTANCES, FOREIGN TRAVEL" GIVES THAT AS
MILEAGE ON SHORTEST, USUALLY TRAVELED ROUTE.
2. GAO CLAIMS DIVISION DENIED DEPARTMENT OF STATE EMPLOYEE PER DIEM
FROM NOON, SEPTEMBER 5, UNTIL NOON, SEPTEMBER 6, 1973, AT PORT OF
ARRIVAL, NEW YORK CITY, ON HIS RETURN FROM OVERSEAS AS HE WAS NOT
AUTHORIZED REST STOP. EMPLOYEE ARRIVED IN NEW YORK AT 9 A.M. ON
SEPTEMBER 5 BUT DID NOT CLEAR CUSTOMS UNTIL AFTERNOON. HE STATES IT WAS
NOT POSSIBLE TO ARRANGE FOR CAR RENTAL AND THE SHIPMENT OF BAGGAGE IN
REMAINING TIME SO HE STAYED OVERNIGHT IN NEW YORK AND PROCEEDED AT 9
A.M. THE NEXT DAY. IN VIEW OF THE EMPLOYEE'S EXPLANATION AND IN LIGHT
OF 6 FAM 156.4, MARCH 30, 1973, PAYMENT OF PER DIEM IS NOW ALLOWED.
JAMES H. LEWIS - MILEAGE AND PER DIEM:
MR. JAMES H. LEWIS, A FORMER EMPLOYEE OF THE DEPARTMENT OF STATE, HAS
APPEALED OUR CLAIMS DIVISION'S DENIAL OF HIS CLAIM FOR CERTAIN MILEAGE
AND PER DIEM ALLOWANCES INCURRED INCIDENT TO SEPARATION TRAVEL WHICH HE
PERFORMED FROM HELSINKI, FINLAND, TO SAN MARINO, CALIFORNIA.
THE MILEAGE CLAIM INVOLVES TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM
COPENHAGEN, DENMARK, TO SOUTHAMPTON, UNITED KINGDOM, FROM DECEMBER 15 TO
DECEMBER 18, 1972. THE DISTANCES COVERED BY FERRIES ARE NOT INCLUDED IN
MILEAGE COMPUTATION. SEE 6 FOREIGN AFFAIRS MANUAL (FAM) 145.4-3, APRIL
27, 1972.
MR. LEWIS CLAIMED HIS ODOMETER READ 62814 WHEN HE STARTED IN
COPENHAGEN AND IT READ 63716 ON ARRIVAL IN SOUTHAMPTON, GIVING A TOTAL
OF 902 MILES FOR THE TRIP. OUR CLAIMS DIVISION STATED THAT THE "902
MILES CLAIMED FOR DRIVING IN EUROPE APPEAR TO BE 902 KILOMETERS AND HAVE
BEEN ADJUSTED TO 559 MILES." MR. LEWIS INSISTS HIS ODOMETER READS IN
MILES AND HE SHOULD BE PAID THE FULL MILEAGE CLAIMED.
THE PERTINENT REGULATION CONCERNING THE COMPUTATION OF MILEAGE READS:
"WHEN TRAVEL IS PERFORMED BY A PRIVATELY OWNED MOTOR VEHICLE,
DISTANCES ARE TO BE DETERMINED BY USE OF STANDARD HIGHWAY MILEAGE GUIDES
OR BY SPEEDOMETER READINGS. ANY SUBSTANTIAL DEVIATION FROM DISTANCES
SHOWN IN THE STANDARD HIGHWAY MILEAGE GUIDES SHALL BE EXPLAINED. ***" 6
FAM 145.4-1, APRIL 27, 1972.
THE DEPARTMENT OF STATE USES GUIDES ISSUED BY THE AGENCIES OF THE
DEPARTMENT OF DEFENSE FOR COMPUTING MILEAGE. ACCORDING TO THE "OFFICIAL
TABLE OF DISTANCES, FOREIGN TRAVEL," ARMY REGULATION 55-61, EFFECTIVE
SEPTEMBER 1, 1972, THE MILEAGE DISTANCE FOR DRIVING FROM COPENHAGEN TO
SOUTHAMPTON IS 724 MILES. THE DISTANCES GIVEN IN THE "OFFICIAL TABLE OF
DISTANCES, FOREIGN TRAVEL" HAVE BEEN BASED ON THE SHORTEST, USUALLY
TRAVELED, HIGHWAY ROUTES AS SHOWN ON THE LATEST AVAILABLE HIGHWAY MAPS.
ACCORDINGLY, MR. LEWIS IS ENTITLED TO MILEAGE FOR AN ADDITIONAL 165
MILES. WE ASSUME, SINCE NO EXPLANATION HAS BEEN GIVEN TO THE CONTRARY,
THAT THE MILEAGE TRAVELED BY MR. LEWIS IN EXCESS OF 724 WAS DUE TO
CIRCUITOUS TRAVEL ON HIS PART AND THEREFORE THAT PORTION OF HIS CLAIM
MAY NOT BE PAID. SEE 6 FAM 131.3-2C AND 131.3-1, SEPTEMBER 6 1972. CF.
B-162662, NOVEMBER 8, 1967, WHERE PAYMENT FOR EXCESS MILEAGE WAS MADE
WHEN AN ADEQUATE EXPLANATION FOR THE DEVIATION WAS FURNISHED.
OUR CLAIMS DIVISION ALSO DENIED MR. LEWIS PER DIEM FROM NOON,
SEPTEMBER 5, UNTIL NOON, SEPTEMBER 6, 1973, SINCE HE WAS NOT AUTHORIZED
A REST STOP IN NEW YORK CITY UPON HIS ARRIVAL FROM OVERSEAS. MR. LEWIS
STATES THAT ALTHOUGH HE ARRIVED AT THE PIER IN NEW YORK AT 9 A.M. ON
SEPTEMBER 5, 1973, HE DID NOT CLEAR CUSTOMS UNTIL THE AFTERNOON OF THAT
DAY. HE ARGUES THAT THE PER DIEM IN QUESTION WAS NOT CLAIMED ON THE
BASIS OF A REST STOP BUT BECAUSE IT WAS NOT POSSIBLE TO ARRANGE FOR CAR
RENTAL AND THE SHIPMENT OF BAGGAGE IN THE TIME REMAINING ON SEPTEMBER 5.
HE ALSO STATES THAT IT WAS THE DEPARTMENT OF STATE'S PRACTICE TO ALLOW
UP TO 24 HOURS BETWEEN THE TIME OF ARRIVAL BY SHIP AND DEPARTURE FROM
NEW YORK BY ANOTHER MEANS OF TRANSPORT. THEREFORE, HE SPENT THE NIGHT
IN NEW YORK AND CONTINUED HIS JOURNEY AT 9 A.M. THE FOLLOWING DAY.
THE DEPARTMENT OF STATE'S REGULATION PERTINENT TO THE DISPUTED PER
DIEM CLAIM STATES:
"PER DIEM IS ALLOWED FOR ONLY SUCH PERIODS AWAITING ONWARD
TRANSPORTATION AS ARE REASONABLY NECESSARY UNDER THE CIRCUMSTANCES. THE
TRAVEL VOUCHER SHOULD CONTAIN AN EXPLANATION OF THE CIRCUMSTANCES
NECESSITATING ANY WAITING PERIOD IN EXCESS OF 12 HOURS AT TRANSFER
POINTS IN THE UNITED STATES AND 24 HOURS AT TRANSFER POINTS ABROAD. NOT
MORE THAN 5 DAYS' PER DIEM WILL BE PAID WHILE AWAITING SHIP
TRANSPORTATION." 6 FAM 156.4, MARCH 30, 1973.
IN VIEW OF MR. LEWIS' EXPLANATION AND IN LIGHT OF THE ABOVE
REGULATION THE PER DIEM FOR THE 24 HOURS CLAIMED IS NOW ALLOWED.
A SUPPLEMENTAL SETTLEMENT IN ACCORDANCE WITH THE ABOVE WILL BE
PROCESSED IN DUE COURSE.
B-194264, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. BID WHICH IS MATHEMATICALLY UNBALANCED, BUT NOT MATERIALLY
UNBALANCED, SHOULD NOT BE REJECTED.
2. LOW BIDDER IS NOT PRECLUDED FROM AWARD SIMPLY BECAUSE IT MAY HAVE
BID TOO LOW AND MAY SUFFER LOSS ON CONTRACT.
RADIOLOGY SERVICES OF TIDEWATER:
ON JANUARY 15, 1979, THE DEPARTMENT OF THE NAVY (NAVY) ISSUED
INVITATION FOR BIDS (IFB) NOO189-79-B-0019 FOR THE PROCUREMENT OF
RADIOLOGICAL AND RELATED SERVICES. THE TERM OF THE CONTRACT WAS 1 YEAR
WITH TWO 1-YEAR OPTIONS. THE IFB CONTAINED 48 LINE ITEMS WHICH
REPRESENTED DIFFERENT SERIES OF X-RAYS.
FIVE BIDS WERE RECEIVED. TIDEWATER RADIOLOGY (TIDEWATER) SUBMITTED
THE LOW EVALUATED BID. THE NAVY PROPOSES TO AWARD THE CONTRACT TO
TIDEWATER.
BEFORE AWARD, RADIOLOGY SERVICES OF TIDEWATER (RADIOLOGY), THE SECOND
LOW BIDDER, FILED A PROTEST WITH OUR OFFICE. RADIOLOGY ALLEGES THAT
TIDEWATER BID BELOW-COST PRICES FOR SOME X-RAYS AND OVERSTATED PRICES
FOR OTHER ITEMS. THEREFORE, RADIOLOGY STATES THAT TIDEWATER'S BID IS
UNBALANCED AND, AS SUCH, IS NONRESPONSIVE. MOREOVER, RADIOLOGY STATES
THAT TIDEWATER'S BID VIRTUALLY ASSURES INCREASED PROFIT AND HIGHER COSTS
TO THE GOVERNMENT IF THERE IS ANY INCREASE ABOVE THE GOVERNMENT
ESTIMATES FOR X-RAYS, AS IS LIKELY TO OCCUR.
WITH REGARD TO RADIOLOGY'S PROTEST, THE NAVY CALLS ATTENTION TO OUR
DECISION IN THE MATTER OF CHRYSLER CORPORATION, B-182754, FEBRUARY 18,
1975, 75-1 CPD 100, WHERE WE STATED:
"'IN MATTER OF OSWALD BROTHER ENTERPRISES INCORPORATED, B-180676, MAY
9, 1974, OUR OFFICE RECOGNIZED THE TWO-FOLD ASPECTS OF UNBALANCING.
SEE, ALSO, 49 COMP. GEN. 787, 792 (1970). THE FIRST IS A MATHEMATICAL
EVALUATION OF THE BID TO DETERMINE WHETHER IT IS UNBALANCED. AS NOTED
IN ARMANIACO V. BOROUGH OF CRESSKILL, 163 A. 2D 379 (1960), AND FRANK
STAMATO & CO. V. CITY OF NEW BRUNSWICK, 90 A. 2D 36 (1952), THE
MATHEMATICAL ASPECTS OF IDENTIFYING AN UNBALANCED BID FOCUS ON WHETHER
EACH BID ITEM CARRIES ITS SHARE OF THE COST OF THE WORK AND THE
CONTRACTOR'S PROFIT OR WHETHER THE BID IS BASED ON NOMINAL PRICES FOR
SOME WORK AND ENHANCED PRICES FOR OTHER WORK. THE SECOND ASPECT
INVOLVES AN ASSESSMENT OF THE COST IMPACT OF A BID FOUND TO BE
MATHEMATICALLY UNBALANCED. UNLESS THERE IS REASONABLE DOUBT THAT BY
MAKING AWARD TO A PARTY SUBMITTING A MATHEMATICALLY UNBALANCED BID,
AWARD WILL NOT RESULT IN THE LOWEST ULTIMATE COST TO THE GOVERNMENT, THE
BID SHOULD NOT BE CONSIDERED MATERIALLY UNBALANCED. SEE B-180676,
SUPRA; B-172789, JULY 19, 1971; 49 COMP. GEN., SUPRA; MATTER OF
GLOBAL GRAPHICS, INCORPORATED, B-180996, AUGUST 2, 1974, 54 COMP. GEN.
(84).'"
IN THE IMMEDIATE CASE, RADIOLOGY HAS FURNISHED NOTHING TO ESTABLISH
THAT THE ACTUAL NUMBER OF X-RAYS WILL BE SO MUCH HIGHER THAN THE
ESTIMATED QUANTITY THAT AN AWARD TO TIDEWATER WILL NOT RESULT IN THE
LOWEST ULTIMATE COST TO THE GOVERNMENT. RADIOLOGY HAS POINTED OUT THAT
AT LEAST ONE ITEM IN THE IFB INCREASED BY 69 PERCENT OVER THE PREVIOUS
YEAR'S ESTIMATE. HOWEVER, THE CONTRACTING AGENCY HAS INDICATED THAT
EVEN IF IT WERE TO PROJECT A 70-PERCENT INCREASE FOR EACH YEAR OF THE
CONTRACT FOR EACH OF THE THREE ITEMS UPON WHICH RADIOLOGY WAS THE LOW
BIDDER, IT WOULD NOT CHANGE THE STANDING BETWEEN THE TWO BIDDERS FOR ANY
YEAR OF THE CONTRACT, INCLUDING THE OPTION YEARS. THUS, WHILE
TIDEWATER'S BID MAY BE MATHEMATICALLY UNBALANCED, IT IS NOT MATERIALLY
UNBALANCED. THEREFORE, IT SHOULD NOT BE REJECTED AS NONRESPONSIVE.
OSWALD BROTHERS ENTERPRISES, INCORPORATED, B-180676, MAY 9, 1974, 74-1
CPD 238; EDWARD B. FRIEL, INC.; FREE STATE BUILDERS, INC.; MICHAEL
O'CONNOR, INC., B-183579, NOVEMBER 20, 1975, 75-2 CPD 333; ACCENT
GENERAL, INC., B-192058, SEPTEMBER 21, 1978, 78-2 CPD 215; DEMENT
CONSTRUCTION COMPANY; UNIVERSAL CONSTRUCTION COMPANY, B-192794,
DECEMBER 8, 1978, 78-2 CPD 399.
RADIOLOGY HAS SUGGESTED ALSO THAT THE OVERALL PRICING STRUCTURE IN
THE TIDEWATER BID MAY RESULT IN A TOTAL BELOW-COST CONTRACT. HOWEVER,
WE HAVE HELD THAT THE FACT THAT THE LOWEST BIDDER MAY HAVE BID TOO LOW
AND MAY SUFFER A LOSS ON THE CONTRACT DOES NOT PRECLUDE AN AWARD TO THAT
BIDDER. MOOREHEAD ELECTRIC CO., INC., B-192075, AUGUST 9, 1978, 78-2
CPD 109.
BASED ON THE FOREGOING, THE PROTEST IS DENIED.
B-194622, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. DETERMINATION TO SET ASIDE PROCUREMENT UNDER SECTION 8(A) OF
SMALL BUSINESS ACT IS MATTER FOR CONTRACTING AGENCY AND SBA, AND IS NOT
SUBJECT TO REVIEW BY GAO IN ABSENCE OF SHOWING OF FRAUD OR BAD FAITH ON
PART OF GOVERNMENT OFFICIALS.
2. IN PROTEST INVOLVING "8(A)" PROCUREMENT, FRAUD OR BAD FAITH IS
NOT SHOWN MERELY BY ALLEGATION THAT SBA IS VIOLATING ITS STANDARD
OPERATING PROCEDURES, SINCE THEY MAY BE WAIVED OR REVOKED.
3. CONTRACTING OFFICER COULD REASONABLY CONCLUDE THAT IT WAS IN THE
PUBLIC INTEREST TO CANCEL IFB PRIOR TO BID OPENING IN ORDER TO CORRECT
ADMINISTRATIVE ERROR WHICH RESULTED IN FAILURE TO PLACE PROCUREMENT
UNDER SOCIO-ECONOMIC PROGRAM.
A.R.&S. ENTERPRISES, INC.:
A.R.&S. ENTERPRISES, INC. (AR&S), PROTESTS THE CANCELLATION OF
INVITATION FOR BIDS (IFB) DABT31-79-B-0071 WHICH WAS ISSUED AS A 100
PERCENT SMALL BUSINESS SET-ASIDE BY FORT LEONARD WOOD, MISSOURI, FOR
HOSPITAL CUSTODIAL SERVICES. THE CANCELLATION WAS UNDERTAKEN BY THE
ARMY AT THE REQUEST OF THE SMALL BUSINESS ADMINISTRATION (SBA) SO THAT
THE REQUIREMENT COULD BE AWARDED TO AN "8(A)" BUSINESS CONCERN, TOMBS
JANITORIAL SERVICES, INC., UNDER THE PROVISIONS OF THE 8(A) PROGRAM (15
U.S.C. SEC. 637(A) (1976), AS AMENDED BY PUB. L. NO. 95-507, SEC. 202,
92 STAT. 1761).
THE ARMY REPORTS THAT THE SERVICES HAD PREVIOUSLY BEEN PERFORMED BY
TOMBS UNDER THE 8(A) PROGRAM, BUT WERE SOLICITED COMPETITIVELY UNDER THE
IFB AFTER SBA ADVISED THAT TOMBS HAD GRADUATED FROM THE PROGRAM IN
FISCAL YEAR 1978. SUBSEQUENT TO ISSUANCE OF THE IFB, HOWEVER, SBA
REQUESTED THE ARMY TO CANCEL THE SET-ASIDE AND RESERVE THE REQUIREMENT
FOR TOMBS, WHO HAD BEEN RE-ADMITTED TO THE PROGRAM. SBA EXPLAINED THAT
ITS KANSAS CITY REGIONAL OFFICE HAD INADVERTENTLY RETURNED THE
REQUIREMENT TO FORT LEONARD WOOD. THE ARMY ACQUIESCED IN SBA'S REQUEST
BY CANCELING THE SOLICITATION AND FORWARDING A NEW SOLICITATION TO THE
SBA REGIONAL OFFICE FOR AWARD UNDER THE 8(A) PROGRAM.
AR&S CONTENDS THAT THE CANCELLATION VIOLATED ONE OF SBA'S STANDARD
OPERATING PROCEDURES (SOP) FOR THE "8(A)" PROGRAM WHICH PROVIDES THAT
PROPOSED PROCUREMENTS WILL NOT BE ACCEPTED FOR 8(A) CONCERNS WHEN, INTER
ALIA, A PUBLIC SOLICITATION HAS ALREADY BEEN ISSUED UNDER A SMALL
BUSINESS SET-ASIDE FOR THE PROCUREMENT IN QUESTION.
THIS IDENTICAL ISSUE WAS ADDRESSED IN A PRIOR PROTEST BY AR&S IN
WHICH WE STATED THAT IN VIEW OF THE BROAD DISCRETION ACCORDED SBA UNDER
THE CITED STATUTE TO ENTER INTO CONTRACTS WITH PROCURING AGENCIES FOR
THE PURPOSE OF LETTING SUBCONTRACTS TO 8(A) FIRMS, WE WILL NOT REVIEW
PROTESTS AGAINST 8(A) SET-ASIDES UNLESS THE PROTESTER SHOWS FRAUD ON THE
PART OF THE GOVERNMENT OR SUCH WILLFUL DISREGARD OF THE FACTS BY
GOVERNMENT OFFICIALS AS TO NECESSARILY IMPLY BAD FAITH. SEE A.R.&S.
ENTERPRISES, INC., B-189832, SEPTEMBER 12, 1977, 77-2 CPD 186 AND
CITATIONS THEREIN. FRAUD OR BAD FAITH IN THE MAKING OF A SET-ASIDE IS
NOT SHOWN BY THE ALLEGATION THAT SBA IS VIOLATING ITS SOP, WHICH MAY BE
WAIVED OR REVOKED. A.R.&S. ENTERPRISES, INC., SUPRA; TIDEWATER
PROTECTIVE SERVICES, INC., B-190957, JANUARY 13, 1978, 78-1 CPD 33.
THUS, EVEN WHERE SBA IS REQUIRED TO PROPERLY WAIVE ITS SOP, THE MANNER
IN WHICH THAT WAIVER IS EFFECTED IS FOR SBA, NOT GAO, TO DECIDE.
AR&S FURTHER ARGUES THAT THE CANCELLATION CONTRAVENES DEFENSE
ACQUISITION REGULATION (DAR) SEC. 2-209 (1976 ED.) WHICH ACKNOWLEDGES
THAT CANCELLATION OF AN INVITATION FOR BIDS USUALLY INVOLVES THE LOSS OF
TIME, EFFORT AND MONEY BY BOTH THE GOVERNMENT AND BIDDERS, AND THEREFORE
PROVIDES THAT INVITATIONS SHOULD NOT BE CANCELED PRIOR TO BID OPENING
UNLESS CLEARLY IN THE PUBLIC INTEREST. AR&S QUESTIONS WHETHER THE
PUBLIC INTEREST IS SERVED BY THE CANCELLATION IN THIS INSTANCE.
A SOMEWHAT SIMILAR SITUATION EXISTED IN HEPPER OIL COMPANY, B-189196,
NOVEMBER 16, 1977, 77-2 CPD 378, WHERE A PORTION OF AN INVITATION FOR
BIDS WAS CANCELED AFTER BID OPENING WHEN IT WAS DISCOVERED THAT THROUGH
ADMINISTRATIVE ERROR ITEMS WERE INCLUDED IN THE SOLICITATION WHICH
SHOULD HAVE BEEN SET ASIDE FOR INDIAN FIRMS UNDER THE "BUY INDIAN ACT."
UNDER THESE CIRCUMSTANCES, WE DID NOT OBJECT TO THE CANCELLATION OF THE
SOLICITATION. HERE, IT ALSO APPEARS THAT AN ADMINISTRATIVE ERROR LED TO
THE FAILURE TO RESERVE A PROCUREMENT FOR AWARD UNDER A SOCIO-ECONOMIC
PROGRAM. WE BELIEVE THE CONTRACTING OFFICER REASONABLY COULD CONCLUDE
THAT THE RECTIFICATION OF THIS ERROR WAS IN THE "PUBLIC INTEREST."
PROTEST DENIED.
B-194673, B-194225, JUN 18, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PREVIOUS DECISION DENYING PROTEST IS AFFIRMED WHERE REQUEST FOR
RECONSIDERATION FAILS TO DEMONSTRATE ERRORS OF FACT OR LAW IN PRIOR
DECISION OR TO PROVIDE NEW INFORMATION NOT PREVIOUSLY CONSIDERED.
U. S. DURACON CORPORATION (RECONSIDERATION):
U. S. DURACON CORPORATION (USDC) REQUESTS RECONSIDERATION OF OUR
DECISION OF MAY 15, 1979, WHICH DENIED ITS PROTEST OF INVITATIONS FOR
BIDS (IFB) N62472-79-B-0098 AND N62472-79-13-2319 ISSUED BY THE
DEPARTMENT OF THE NAVY.
USDC IS A SUPPLIER OF UNDERGROUND HEAT DISTRIBUTION CONDUIT (PIPING).
THE BASIS FOR THE PROTEST WAS THE GOVERNMENT'S REFUSAL TO ISSUE A
LETTER OF ACCEPTABILITY TO USDC, A PREREQUISITE TO SUPPLYING THE PIPING
FOR INSTALLATION AT THE CONSTRUCTION PROJECTS INVOLVED UNDER THE IFBS.
THE LETTERS WERE DENIED BECAUSE USDC'S PIPING DID NOT MEET THE DESIGN
REQUIREMENTS OF THE SPECIFICATIONS. NONETHELESS, USDC CLAIMED THAT ITS
PIPING PASSED ALL OF THE REQUISITE LABORATORY PERFORMANCE TESTS FOR
QUALIFICATION, AND THUS BELIEVED IT WAS ENTITLED TO THE LETTER OF
ACCEPTABILITY. USDC ALSO ASSERTED THAT PRESENT SUPPLIERS OF THE PIPING
HOLDING LETTERS OF ACCEPTABILITY WERE FALSELY CERTIFYING THAT THEIR
MATERIALS MET THE SPECIFICATION REQUIREMENTS.
OUR DECISION HELD THAT USDC'S INTERPRETATION OF THE SPECIFICATIONS
WAS NOT REASONABLE SINCE THE ISSUANCE OF A LETTER OF ACCEPTABILITY FOR
USDC'S UNDERGROUND HEAT DISTRIBUTION CONDUIT BASED SOLELY UPON
SUCCESSFUL COMPLETION OF LABORATORY PERFORMANCE TESTS WOULD IN EFFECT
CONVERT A CLEARLY DELINEATED DESIGN SPECIFICATION TO A PERFORMANCE
SPECIFICATION. WE ALSO FOUND THAT USDC HAD FAILED TO SUSTAIN ITS BURDEN
OF PROVING ITS ALLEGATION THAT OTHER SUPPLIERS WERE FURNISHING FALSE
CERTIFICATIONS UNDER EXISTING LETTERS OF ACCEPTABILITY SINCE USDC
PROVIDED ONLY UNSUPPORTED ALLEGATIONS THAT THESE CERTIFICATIONS WERE
FALSELY MADE. USDC NOW RAISES THE SAME ISSUES IN ITS REQUEST FOR
RECONSIDERATION YET ADVANCES NO ADDITIONAL FACTS OR LEGAL ARGUMENTS
WHICH SHOW THAT OUR EARLIER DECISION WAS ERRONEOUS. IT MERELY REQUESTS
THE NAVY FURNISH COPIES OF ANY APPROVED CHANGES IN THE PIPING MATERIAL
FURNISHED BY OTHER SUPPLIERS TO PROVE ITS ALLEGATION OF FRAUD BECAUSE IT
SUSPECTS "NO SUCH APPROVAL WAS EVER GRANTED."
SECTION 20.9 OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.9
(1977), PROVIDES THAT REQUESTS FOR RECONSIDERATION " CONTAIN A DETAILED
STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR
MODIFICATION IS DEEMED WARRANTED, SPECIFYING ANY ERRORS OF LAW MADE OR
INFORMATION NOT PREVIOUSLY CONSIDERED." USDC'S REQUEST FOR
RECONSIDERATION MERELY REITERATES THE ARGUMENTS MADE IN ITS ORIGINAL
PROTEST AND DISAGREES WITH OUR DECISION. SINCE THE PROTESTER HAS MADE
NO SHOWING THAT OUR PRIOR CONCLUSION IS ERRONEOUS, WE SEE NO REASON TO
CONSIDER THESE ARGUMENTS FURTHER. VIRGINIA- MARYLAND ASSOCIATES, INC. -
RECONSIDERATION, B-191252, JULY 7, 1978, 78-2 CPD 19.
THE DECISION IS AFFIRMED.
B-193732, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. PROTEST ALLEGING SPECIFICATION DEFICIENCIES WHICH IS FILED AFTER
THE CLOSING DATE FOR RECEIPT OF PROPOSALS IS UNTIMELY.
2. CONTRACT AWARDED ON BASIS OF INITIAL PROPOSALS WITHOUT
DISCUSSIONS IS PROPER WHERE SOLICITATION NOTIFIED OFFERORS OF SUCH
POSSIBILITY AND THERE WAS ADEQUATE COMPETITION RESULTING IN A FAIR AND
REASONABLE PRICE.
3. WHILE CONTRACTING OFFICER'S ORAL AUTHORIZATION TO SUCCESSFUL
OFFEROR TO BEGIN PERFORMANCE PRIOR TO COMPLETE EXECUTION OF CONTRACT IS
CONTRARY TO AGENCY PROCEDURES, PROTESTER WAS NOT PREJUDICED THEREBY AND
AWARD IS NOT ILLEGAL.
4. AGENCY DECISION NOT TO DISCLOSE INFORMATION TO PROTESTER PURSUANT
TO FREEDOM OF INFORMATION ACT REQUEST IS NOT REVIEWABLE BY GAO.
5. COMPLAINT CONCERNING AWARDEE'S ALLEGED NONCOMPLIANCE WITH
AFFIRMATIVE ACTION AND EQUAL OPPORTUNITY PROVISIONS OF PRIOR CONTRACT
WILL NOT BE REVIEWED BY GAO WHERE DEPARTMENT OF LABOR (DOL), WHICH HAS
PRIMARY RESPONSIBILITY IN THE AREA, FOUND AWARDEE TO BE "ELIGIBLE FOR
AWARD" AND PROTESTER IS PURSUING MATTER WITH DOL.
FOREMAN INDUSTRIES INC.:
FOREMAN INDUSTRIES INC. (FOREMAN) PROTESTS THE AWARD OF A CONTRACT TO
BENDIX FIELD ENGINEERING CORPORATION (BENDIX) BY THE DEPARTMENT OF THE
AIR FORCE (AIR FORCE) UNDER REQUEST FOR PROPOSALS (RFP) NO.
F33601-78-R-9159.
THE RFP WAS ISSUED ON AUGUST 22, 1978. IT SOLICITED PROPOSALS TO
PROVIDE MAINTENANCE AND REPAIR SERVICES FOR 125 FACILITIES AT
WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THE AMENDED CLOSING DATE FOR
RECEIPT OF INITIAL PROPOSALS WAS OCTOBER 30, 1978. THE CONTRACT AWARDED
TO BENDIX COVERS A BASE PERIOD OF DECEMBER 1, 1978, THROUGH SEPTEMBER
30, 1979, AND HAS TWO 12-MONTH OPTION PERIODS.
FOREMAN HAS RAISED A NUMBER OF GROUNDS FOR PROTEST WHICH FALL WITHIN
3 GENERAL CATEGORIES. THE FIRST GROUP OF FOREMAN'S OBJECTIONS RELATES
TO THE SOLICITATION. THE SECOND GROUP PERTAINS TO THE AIR FORCE'S
CONDUCT OF THE PROCUREMENT. THE LAST GROUP CONCERNS BENDIX'S
PERFORMANCE UNDER A PRIOR CONTRACT.
WE FIND PART OF THE PROTEST UNTIMELY AND THE REMAINDER WITHOUT MERIT
FOR THE FOLLOWING REASONS.
WITH REGARD TO THE SOLICITATION, FOREMAN CONTENDS THAT AMENDMENTS
WHICH CHANGED THE MODEL YEAR OF THE VEHICLES TO BE USED UNDER THE
CONTRACT, CHANGED REQUIREMENTS RELATING TO A SUPERVISORY FOREMAN AND
DELETED VARIOUS COMPUTER REQUIREMENTS WERE IMPROPER BECAUSE THEY WERE
MADE TO ACCOMMODATE THE INCUMBENT CONTRACTOR, BENDIX. IN ADDITION,
FOREMAN OBJECTS TO THE EVALUATION FACTORS LISTED IN THE RFP AND ALSO TO
THE AGENCY'S FAILURE TO PROVIDE NUMERICAL POINT VALUES FOR THE
EVALUATION CRITERIA. MOREOVER, FOREMAN ALLEGES THAT THE WAGE
DETERMINATION INCLUDED IN THE SOLICITATION WAS INCORRECT.
THE PROCEDURES WHICH GOVERN OUR CONSIDERATION OF BID PROTESTS REQUIRE
THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH
ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS
BE FILED PRIOR TO THAT CLOSING DATE. 4 C.F.R. SEC. 20.2(B)(1) (1978).
WHILE ALL OF FOREMAN'S OBJECTIONS TO THE SOLICITATION WERE APPARENT
BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS, FOREMAN FIRST
PROTESTED THESE ALLEGED DEFICIENCIES ON DECEMBER 27, 1978, ALMOST TWO
MONTHS AFTER THE CLOSING DATE. CONSEQUENTLY, THIS PART OF THE PROTEST
IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS. CALIFORNIA
COMPUTER PRODUCTS, INC., B-193437, DECEMBER 5, 1978, 78-2 CPD 391.
WITH REGARD TO THE CONDUCT OF THE PROCUREMENT, FOREMAN ALLEGES THAT
THE SOLICITATION WAS SENT TO THE BENDIX LAUNCH SUPPORT DIVISION, BUT THE
AWARD WAS MADE TO THE BENDIX FIELD ENGINEERING CORPORATION. (IN
COMMENTING UPON FOREMAN'S PROTEST, BENDIX HAS ADVISED OUR OFFICE THAT
THE LAUNCH SUPPORT DIVISION IS NOW "ESSENTIALLY INACTIVE" AND THAT THE
FIELD ENGINEERING CORPORATION RESPONDED TO THE RFP AND WAS AWARDED THE
CONTRACT.) FOREMAN DOES NOT EXPLAIN HOW THIS CIRCUMSTANCE AFFECTS THE
LEGALITY OF THE AWARD. WE THINK IT DOES NOT, AND THAT THIS CONTENTION
IS WITHOUT MERIT.
NEXT, FOREMAN OBJECTS TO THE "LACK OF GOOD FAITH" EXHIBITED BY THE
CONTRACTING OFFICER IN NOT OPENING DISCUSSIONS IN RESPONSE TO FOREMAN'S
REQUEST FOR "CLARIFICATIONS" MADE AFTER THE CLOSING DATE.
IN NEGOTIATED PROCUREMENTS, DISCUSSIONS ARE GENERALLY REQUIRED TO BE
CONDUCTED WITH OFFERORS WITHIN A COMPETITIVE RANGE. ONE OF THE
EXCEPTIONS TO THIS GENERAL REQUIREMENT INVOLVES PROCUREMENTS IN WHICH IT
CAN BE CLEARLY DEMONSTRATED FROM THE EXISTENCE OF ADEQUATE COMPETITION
OR ACCURATE PRIOR COST EXPERIENCE THAT ACCEPTANCE OF THE MOST FAVORABLE
PROPOSAL WOULD RESULT IN A FAIR AND REASONABLE PRICE AND THE
SOLICITATION NOTIFIES OFFERORS THAT AWARD MIGHT BE MADE WITHOUT
DISCUSSIONS. DEFENSE ACQUISITION REGULATION (DAR) SEC. 3-805.1(A) (1976
ED.).
IN THIS REGARD, SECTION C OF THE SOLICITATION NOTIFIED ALL OFFERORS
THAT AWARD MIGHT BE MADE WITHOUT DISCUSSIONS. THE AIR FORCE STATES THAT
THERE WAS ADEQUATE COMPETITION IN THAT THREE OFFERS WERE RECEIVED WHICH
WERE DETERMINED TO BE TECHNICALLY ACCEPTABLE, AND THAT IT DETERMINED
THAT BENDIX'S INITIAL OFFER WAS FOR A FAIR AND REASONABLE PRICE. IN
ADDITION, THE AIR FORCE NOTES, THIS PROCUREMENT IS ESSENTIALLY A
FOLLOW-ON OF ITS PREVIOUS PROCUREMENT FOR THE SAME SERVICES AND THAT IT
HAD DEVELOPED CONSIDERABLE COST EXPERIENCE DATA FOR THESE REQUIREMENTS.
THE CONTRACTING OFFICER MUST DETERMINE, UNDER THE CIRCUMSTANCES OF
EACH CASE, WHETHER A PARTICULAR PRICE OFFERED IS REASONABLE. OTIS
ELEVATOR COMPANY, B-190432, MARCH 15, 1978, 78-1 CPD 204. OUR REVIEW IS
LIMITED TO THE QUESTION OF WHETHER THE CONTRACTING OFFICER ACTED
REASONABLY IN MAKING HIS DETERMINATION. IN THIS CASE, AMONG THE THREE
PROPOSALS RECEIVED, BENDIX'S WAS LOWEST IN PRICE. WE BELIEVE THERE WAS
ADEQUATE COMPETITION IN THE PROCUREMENT AND ALSO THAT THE AGENCY WAS IN
A POSITION TO HAVE ACCURATE PRIOR COST EXPERIENCE FOR THESE SERVICES.
ACCORDINGLY, WE THINK THE REGULATORY REQUIREMENTS FOR ADEQUATE
COMPETITION, PRICE REASONABLENESS AND PRIOR COST EXPERIENCE ARE
SATISFIED AND THEREFORE CAN NOT OBJECT TO THE AWARD ON THE BASIS OF
INITIAL PROPOSALS. SEE FRANCIS & JACKSON, ASSOCIATES, 54 COMP. GEN. 244
(1978), 78-1 CPD 79; SAI COMSYSTEMS CORPORATION, B-189407, DECEMBER 19,
1977, 77-2 CPD 480.
FOREMAN NEXT CONTENDS THAT THE CONTRACT WAS AWARDED 15 DAYS AFTER THE
ANTICIPATED AWARD DATE, THAT BENDIX WAS WORKING WITHOUT AN EXTENSION TO
ITS EXISTING CONTRACT, AND, IN EFFECT, A RETROACTIVE AWARD WAS
NEGOTIATED TO COVER THAT PERIOD. THE AIR FORCE REPORTS THAT BENDIX'S
PRIOR CONTRACT WAS SCHEDULED TO EXPIRE ON NOVEMBER 30, 1978, AND THAT
ITS CURRENT CONTRACT WAS EXECUTED BY BOTH THE CONTRACTING OFFICER AND
BENDIX BY NOVEMBER 22. HOWEVER, THE CONTRACT PROVIDED THAT IT WOULD NOT
BE BINDING UPON THE GOVERNMENT UNLESS APPROVED BY A HIGHER LEVEL WITHIN
THE AGENCY. BECAUSE THE AGENCY NEEDED CONTINUOUS SERVICES SO THAT
RESEARCH AND DEVELOPMENT PROJECTS WOULD NOT BE INTERRUPTED, THE
CONTRACTING OFFICER STATES HE AUTHORIZED BENDIX TO PROCEED WORKING ON
DECEMBER 1, 1978, UNDER THE TERMS OF BENDIX'S OFFER. HOWEVER, THE
CONTRACT WAS NOT FORMALLY APPROVED UNTIL DECEMBER 15.
THE AIR FORCE STATES THAT THE CONTRACTING OFFICER'S ORAL
AUTHORIZATION TO BENDIX TO BEGIN PERFORMANCE PRIOR TO COMPLETE EXECUTION
OF THE CONTRACT IS CONTRARY TO AIR FORCE PROCEDURES AND THAT ITS
CONTRACT AWARD AND ADMINISTRATIVE FUNCTIONS ARE BEING REVIEWED "TO
ASSURE ACTIONS ARE ACCOMPLISHED IN AN APPROPRIATE AND TIMELY MANNER."
WHILE FOREMAN OBJECTS TO THE CONTRACTING OFFICER'S ACTION, IT HAS NOT
EXPLAINED HOW THIS MIGHT AFFECT THE LEGALITY OF THE AWARD OR IN ANY WAY
PREJUDICE FOREMAN. WE THINK IT DOES NOT, AND THAT THIS CONTENTION TOO
IS WITHOUT MERIT.
FOREMAN'S NEXT CONTENTION CONCERNS THE AIR FORCE'S REFUSAL TO FURNISH
IT INFORMATION RELATING TO BENDIX'S PERFORMANCE UNDER THE PREVIOUS
CONTRACT. FOREMAN REQUESTED SUCH INFORMATION UNDER THE FREEDOM OF
INFORMATION ACT. HOWEVER, WE HAVE NO AUTHORITY TO DETERMINE WHAT
INFORMATION MUST BE DISCLOSED BY GOVERNMENT AGENCIES UNDER THE FREEDOM
OF INFORMATION ACT, AND THUS THERE IS NO BASIS FOR US TO REVIEW THE
CONTRACTING AGENCY'S DECISION NOT TO COMPLY WITH BENDIX'S REQUEST.
UNITRON INCORPORATED, B-191273, JULY 5, 1978, 78-2 CPD 7.
FOREMAN'S REMAINING OBJECTIONS RELATE TO BENDIX'S PERFORMANCE UNDER
THE PRIOR CONTRACT. FOREMAN ALLEGES THAT BENDIX FAILED TO COMPLY WITH
THE AFFIRMATIVE ACTION COMPLIANCE AND EQUAL OPPORTUNITY REQUIREMENTS
(EEO) UNDER ITS PREVIOUS CONTRACT WITH THE AIR FORCE, AND, THEREFORE,
PURSUANT TO DAR 12-801(C), WAS NOT ELIGIBLE FOR AWARD. FOREMAN FURTHER
ALLEGES THAT NO MINORITY UTILIZATION REPORTS WERE FILED BY BENDIX AND
THAT NO COMPLIANCE REVIEWS HAVE BEEN CONDUCTED.
THE AIR FORCE STATES THAT THE APPROPRIATE COMPLIANCE AGENCY, THE
OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, DEPARTMENT OF LABOR,
"DETERMINED THAT BENDIX WAS ELIGIBLE FOR AWARD." FOREMAN ALSO INDICATES
IT HAS PROTESTED THESE MATTERS TO THE DEPARTMENT OF LABOR. SINCE THE
AIR FORCE APPARENTLY WAS INFORMED THAT THERE WAS NO RECORD OF
NONCOMPLIANCE ON THE PART OF BENDIX, AND SINCE FOREMAN IS TAKING UP THE
MATTER WITH THE LABOR DEPARTMENT, WHICH HAS PRIMARY RESPONSIBILITY IN
THIS AREA, WE WILL NOT CONSIDER THE MATTER FURTHER. SEE B-176684,
OCTOBER 2, 1972, INFLATED PRODUCT COMPANY, INC., B-190877, MAY 11, 1978,
78-1 CPD 362.
THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.
B-193826, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHILE GAO RECOGNIZES THAT ADMINISTRATION OF PROPERLY AWARDED
CONTRACT - INCLUDING DECISION TO TERMINATE FOR CONVENIENCE OF GOVERNMENT
- IS RESPONSIBILITY OF COGNIZANT PROCUREMENT OFFICIALS, WHERE ALLEGED
IMPROPRIETY IN AWARD PROCESS IS BASIS FOR GOVERNMENT'S DECISION TO
TERMINATE, GAO WILL REVIEW PROPRIETY OF AWARD TO DETERMINE IF
TERMINATION IS JUSTIFIED.
2. "PLUS OR MINUS" BID IS AMBIGUOUS AND NONRESPONSIVE. TO EXTENT
NONRESPONSIVENESS IS RESULT OF ORAL ADVICE ALLEGEDLY PROVIDED BY
CONTRACTING AGENCY PERSONNEL, BIDDER ACTED AT ITS PERIL.
3. DETERMINATION OF CONTRACTING AGENCY TO READVERTISE
REQUIREMENT-TYPE IFB WHICH DID NOT PROVIDE ESTIMATE OF REPAIR PARTS IS
SUSTAINED, SINCE BIDDERS ARE NOT COMPETING ON EQUAL BASIS WHEN NOT
APPRISED BEFORE SUBMISSION OF BIDS OF WHAT MAY BE REQUIRED UNDER
CONTRACT.
INSTANT REPLAY EQUIPMENT COMPANY; RECORDING CENTER SERVICE COMPANY:
RECORDING CENTER SERVICE COMPANY HAS REFUSED THE REQUEST OF THE
UNITED STATES MARINE CORPS (MARINE CORPS) THAT IT VOLUNTARILY ACCEPT
CANCELLATION OF THE CONTRACT AWARDED UNDER INVITATION FOR BIDS (IFB) NO.
M00243-79-B-0002 AND HAS PROTESTED THE MARINE CORPS' PROPOSED
TERMINATION OF THE CONTRACT UNDER THE TERMINATION FOR THE CONVENIENCE
CLAUSE IN THE CONTRACT.
BACKGROUND
IFB NO. M00243-79-B-0002 FOR MAINTENANCE SERVICES FOR CLOSED CIRCUIT
INSTRUCTIONAL TELEVISION SYSTEMS WAS ISSUED NOVEMBER 27, 1978, BY THE
CONTRACTING AND PURCHASING BRANCH, MARINE CORPS RECRUIT DEPOT, SAN
DIEGO, CALIFORNIA. THE IFB SOLICITED PRICES TO MAINTAIN THE INDIVIDUAL
COMPONENTS OF THE SYSTEMS UNDER THREE LOTS, REPRESENTING SYSTEMS AT
THREE LOCATIONS. THE PRINCIPAL FOCUS OF THE PRESENT REVIEW INVOLVES THE
FOLLOWING IFB PROVISION:
"REPAIR PARTS PRICES WILL BE QUOTED AT THE MANUFACTURER'S LIST PRICE.
BIDDERS SHALL QUOTE A PLUS OR MINUS PERCENTAGE TO MANUFACTURER'S LIST
PRICE. FAILURE TO INDICATE EITHER 'PLUS' OR 'MINUS' WILL BE INTERPRETED
AS A 'MINUS' BID. REPAIR PARTS FURNISHED BY THE CONTRACTOR WILL BE
BILLED AS A SEPARATE ITEM ON THE INVOICE."
BIDS WERE OPENED ON DECEMBER 15, 1978. THE FOUR BIDS WERE AS
FOLLOWS:
OFFEROR LOT I LOT II LOT III TOTAL PARTS DISCOUNT
INSTANT REPLAY
EQUIPMENT CO. $26,649.00 $14,505.12 $16,646.68 $57,800.80 + - 15%
RECORDING CENTER
SERVICE CO. 19,272.00 16,890.00 23,526.00 59,688.00 - 10%
VIDEO-COM INTER-
NATIONAL CORP. 36,650.00 23,860.00 27,400.00 87,910.00 + - 10%
VIDEO EQUIP-
MENT CORP. OF
AMERICA 22,600.00 19,550.00 26,350.00 68,500.00 NET %
INSTANT REPLAY EQUIPMENT COMPANY WAS REJECTED AS NONRESPONSIVE
BECAUSE IT BID BOTH "PLUS AND MINUS" INSTEAD OF EITHER "A PLUS OR MINUS"
PERCENTAGE AS REQUIRED BY THE IFB PROVISION FOR REPAIR PARTS BIDDING.
THE CONTRACT WAS AWARDED TO RECORDING CENTER SERVICE COMPANY ON DECEMBER
20, 1978.
INSTANT REPLAY EQUIPMENT COMPANY PROTESTED THE REJECTION OF ITS BID
IN A LETTER TO THE MARINE CORPS DATED DECEMBER 22, 1978. THE PROTEST
STATED IN PART:
"IT SHOULD BE POINTED OUT THAT NO SPECIFIC DOLLAR AMOUNT RELATING TO
REPAIR PARTS WAS MENTIONED IN THE TEXT OF THIS (IFB). MOREOVER, NO
BIDDER WAS EVER ASKED *** TO PROVIDE *** ANY LIST OF THE MANUFACTURERS
WITH WHICH HE IS FACTORY-AUTHORIZED OR FROM WHICH HE CAN PURCHASE PARTS
AT A DISCOUNT FROM MANUFACTURER'S PRICE LIST. THUS THE DISCOUNT
PERCENTAGE CALLED FOR ON PAGE 27 OF THE BID GAVE INFORMATIONAL DATA ONLY
- NOT A TANGIBLE DOLLAR FIGURE WHICH COULD BE DIRECTLY USED IN
EVALUATING THE OVERALL DESIRABILITY OF ANY BIDDER'S OFFER, SINCE THERE
WAS NO REFERENCE LIST OF MANUFACTURERS FROM WHICH REPAIR PARTS COULD BE
PURCHASED AT A DISCOUNT BY ANY GIVEN CONTRACTOR."
INSTANT REPLAY EQUIPMENT COMPANY'S PROTEST ALSO ALLEGED THAT, AS A
RESULT OF QUESTIONS RAISED AT THE PREBID CONFERENCE WHICH WAS HELD ON
DECEMBER 7, 1978, IT HAD BEEN ORALLY ADVISED BY A MARINE CORPS
REPRESENTATIVE THAT BOTH A PLUS AND MINUS FIGURE COULD BE QUOTED FOR THE
REPAIR PARTS. IN THIS WAY THE CONTRACTOR COULD EXTEND A DISCOUNT ON
PARTS FROM MANUFACTURERS WITH WHICH IT WAS FACTORY AUTHORIZED AND
RECOVER ITS COSTS FOR PARTS OBTAINED FROM MANUFACTURERS WITH WHICH IT
WAS NOT FACTORY AUTHORIZED.
BY LETTER OF DECEMBER 27, 1978, INSTANT REPLAY EQUIPMENT COMPANY ALSO
PROTESTED TO OUR OFFICE.
UPON INITIAL REVIEW OF THE INSTANT REPLAY EQUIPMENT COMPANY PROTEST,
MARINE CORPS HEADQUARTERS CONCLUDED THAT AN ILLEGAL AWARD HAD BEEN MADE
UNDER THE IFB AND THAT THE AWARD SHOULD HAVE BEEN MADE TO INSTANT REPLAY
EQUIPMENT COMPANY. THE CONTRACTING OFFICER WAS ADVISED TO SEEK
VOLUNTARY ACCEPTANCE OF A CANCELLATION OF THE CONTRACT FROM RECORDING
CENTER SERVICE COMPANY.
UPON FURTHER DETAILED REVIEW, HEADQUARTERS CONCLUDED THAT THE IFB WAS
DEFECTIVE IN THE FOLLOWING RESPECTS:
"FIRST WITH REGARD TO THE EVALUATION OF REPAIR PARTS, SINCE THE IFB
DID NOT ASSIGN AN ESTIMATED DOLLAR AMOUNT FOR PARTS BASED ON PRIOR
EXPERIENCE AND FUTURE PROJECTIONS AGAINST WHICH A DISCOUNT COULD BE
APPLIED, IT IS IMPOSSIBLE TO DETERMINE THE OVERALL LOW BID.
"SECONDLY, IT WAS THE INTENTION OF THE CONTRACTING OFFICE TO AWARD
THE CONTRACT IN THE AGGREGATE TO THE OVERALL LOW BIDDER RATHER THAN BY
LOT AS SET FORTH IN THE IFB. IT WAS NOT BELIEVED TO BE COST EFFECTIVE
TO ADMINISTER MORE THAN ONE CONTRACT FOR THIS REQUIREMENT.
"THIRD, THE IFB WAS UNCLEAR AS TO WHETHER AN ANNUAL OR MONTHLY PRICE
FOR MAINTENANCE WAS BEING SOLICITED AND WHICH WOULD BE THE BASIS OF
EVALUATION.
"FOURTH, ALTHOUGH THIS IS A REQUIREMENT FOR ROUTINE MAINTENANCE, THE
IFB'S WORK STATEMENT (PAGE 28) REQUIRED 'TRAINING/INSTRUCTION' AND
'ENGINEERING SERVICES' BOTH OF WHICH WERE UNQUANTIFIED. THE POTENTIAL
OF SUCH REQUIREMENTS COULD MISLEAD OFFERORS WHO WERE NOT FAMILIAR WITH
THE PRIOR PERFORMANCE OF THE REQUIREMENTS AND MIGHT HAVE AFFECTED THEIR
PRICING."
IN VIEW OF THESE FINDINGS, THE MARINE CORPS HAS CONCLUDED THAT IT IS
IMPOSSIBLE TO MAKE ANY AWARD UNDER THE IFB AS ISSUED. THEREFORE, THE
MARINE CORPS HAS PROPOSED THAT THE CONTRACT BE TERMINATED FOR THE
CONVENIENCE OF THE GOVERNMENT AND READVERTISED UNDER REVISED
SPECIFICATIONS.
RECORDING CENTER SERVICE COMPANY CONTENDS THAT THE CONTRACT SHOULD BE
ENFORCED AS AWARDED.
SCOPE OF REVIEW
ONCE A CONTRACT IS PROPERLY AWARDED, THE ADMINISTRATION OF THE
CONTRACT - INCLUDING THE RENDERING OF DECISIONS AS TO WHETHER THE
CONTRACT SHOULD BE TERMINATED - IS THE RESPONSIBILITY AND WITHIN THE
AUTHORITY OF THE COGNIZANT PROCUREMENT OFFICIALS RATHER THAN THIS
OFFICE. KAUFMAN DEDELL PRINTING, INC. - RECONSIDERATION, B-188054,
OCTOBER 25, 1977, 77-2 CPD 321. HOWEVER, WHERE AN ALLEGED IMPROPRIETY
IN THE AWARD PROCESS IS THE BASIS FOR THE GOVERNMENT'S DECISION TO
TERMINATE, THIS OFFICE WILL REVIEW THE PROPRIETY OF THE CONTRACT AWARD
FOR THE PURPOSE OF DETERMINING WHETHER THE TERMINATION IS JUSTIFIED
UNDER THE FACTS PRESENTED. SAFEMASTERS COMPANY, INC., B-192941, JANUARY
22, 1979, 79-1 CPD 38. THUS, FOR EXAMPLE, IN MICHAEL O'CONNOR, INC., ET
AL., B-183381, JULY 6, 1976, 76-2 CPD 8, WE FOUND UNDER THE FACTS
PRESENTED THAT, WHERE AN AGENCY'S DECISION TO TERMINATE A CONTRACT FOR
THE CONVENIENCE OF THE GOVERNMENT ARISES OUT OF A PENDING PROTEST
AGAINST THE CONTRACT AWARD, THERE WAS A SUFFICIENT CONNECTION BETWEEN
THE TERMINATION AND THE SUBJECT MATTER OF THE PROTEST TO JUSTIFY A
REVIEW BY OUR OFFICE OF THE PROPRIETY OF THE INITIAL AWARD.
RESPONSIVENESS ISSUE
INSTANT REPLAY EQUIPMENT COMPANY'S "+" BID ON REPAIR PARTS IS
AMBIGUOUS. AN AMBIGUOUS BID IS A NONRESPONSIVE BID. 50 COMP. GEN. 379
(1970). IN FIRE & TECHNICAL EQUIPMENT CORP., B-192408, AUGUST 4, 1978,
78-2 CPD 91, WE STATED:
"*** ONLY MATERIAL AVAILABLE AT BID OPENING MAY BE CONSIDERED BY THE
CONTRACTING OFFICER WHEN DETERMINING THE RESPONSIVENESS OF THE BID. TO
PERMIT EXPLANATIONS AFTER BID OPENING TO RENDER RESPONSIVE A BID WHICH
IS NONRESPONSIVE ON ITS FACE WOULD BE TANTAMOUNT TO GRANTING AN
OPPORTUNITY TO SUBMIT A NEW BID. 52 COMP. GEN. 602 (1973). THUS, A
NONRESPONSIVE BID MAY NOT BE CORRECTED AND IT DOES NOT MATTER WHETHER
THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE IFB WAS DUE TO
INADVERTENCE, MISTAKE OR OTHERWISE. 45 COMP. GEN. 434 (1966)."
THIS IS THE RULE DESPITE THE POTENTIAL FOR GAINING A LOWER PRICE IN A
PARTICULAR PROCUREMENT. TENNESSEE LITHOGRAPHING COMPANY, B-188967, MAY
26, 1977, 77-1 CPD 371.
ALSO, IN FIRE & TECHNICAL EQUIPMENT CORP, SUPRA, WE STATED:
"FURTHERMORE, WAIVER OF MINOR INFORMALITIES OR IRREGULARITIES IN BIDS
IS LIMITED TO CONDITIONS WHICH DO NOT GO TO THE SUBSTANCE, AS
DISTINGUISHED FROM THE FORM, OF A BID. A DEVIATION GOES TO THE
SUBSTANCE OF THE BID WHEN IT AFFECTS PRICE, QUANTITY, QUALITY OR
DELIVERY OF THE ITEMS OFFERED. DEFENSE ACQUISITION REGULATION SEC.
2-404.2(D). ***"
IN THIS CASE, THE AMBIGUITY CANNOT BE CONSIDERED A MINOR INFORMALITY,
SINCE THE IFB REPAIR PARTS PROVISION IMPACTS ON THE PRICE THE GOVERNMENT
IS TO PAY FOR REPAIR PARTS UNDER THE CONTRACT.
TO THE EXTENT THAT INSTANT REPLAY EQUIPMENT COMPANY BID
NONRESPONSIVELY AS THE RESULT OF ORAL ADVICE ALLEGEDLY PROVIDED BY THE
CONTRACTING ACTIVITY, IT ACTED AT ITS PERIL. THE IFB INSTRUCTIONS AND
CONDITIONS STATE IN PARAGRAPH 3 THAT ORAL EXPLANATIONS OR INSTRUCTIONS
GIVEN PRIOR TO AWARD WILL NOT BE BINDING. ERRONEOUS ADVICE GIVEN BY
GOVERNMENT OFFICIALS CANNOT ESTOP AN AGENCY FROM REJECTING A BID AS
NONRESPONSIVE WHEN REQUIRED TO DO SO BY LAW. EDWARD E. DAVIS
CONTRACTING, INC., B-188986, NOVEMBER 29, 1977, 77-2 CPD 419.
IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE INSTANT REPLAY
EQUIPMENT COMPANY BID WAS NONRESPONSIVE AND, THEREFORE, NOT FOR
CONSIDERATION FOR AWARD. ACCORDINGLY, WE CONCUR WITH THE MARINE CORPS'
INITIAL DETERMINATION TO REJECT THE BID.
CANCELLATION AND RESOLICITATION OF IFB ISSUE
THE FIRST BASIS ADVANCED FOR CANCELLATION OF THE IFB IS THAT THE
FAILURE TO CONTAIN A REPAIR PARTS ESTIMATE MADE IT IMPOSSIBLE TO
DETERMINE WHICH BID WAS THE OVERALL LOW BID. A REQUIREMENTS-TYPE IFB
WHICH FAILS TO INCLUDE ESTIMATED QUANTITIES IS DEFECTIVE. MICHAEL
O'CONNOR, INC., 56 COMP. GEN. 107 (1976), 76-2 CPD 456. ALSO, AN IFB
WHICH DOES NOT PROVIDE FOR THE EVALUATION OF BIDS ON THE BASIS OF ALL
THE WORK TO BE LET IS DEFECTIVE. LLOYD KESSLER, B-186594, SEPTEMBER 3,
1976, 76-2 CPD 218. IN THIS CASE, THE BIDDERS WERE NOT FURNISHED ALL
THE INFORMATION THAT WOULD BE IMPORTANT TO ARRIVE AT AN INTELLIGENT BID
ON A COMMON BASIS. BIDDERS HAD TO SPECULATE ON THE AMOUNT OF REPAIR
PARTS THAT WOULD BE REQUIRED UNDER THE CONTRACT. BIDDERS ARE NOT
COMPETING ON AN EQUAL BASIS WHEN THEY ARE NOT APPRISED BEFORE THE
SUBMISSION OF BIDS OF WHAT MAY BE REQUIRED UNDER THE CONTRACT TO BE
AWARDED. 43 COMP. GEN. 544 (1961) AND 39 ID. 570 (1960). IT MAY VERY
WELL BE THAT THE OMISSION OF THE REPAIR PARTS ESTIMATE CONTRIBUTED TO
THE CONFUSION WHICH RESULTED IN THE NONRESPONSIVE BIDS. FURTHER, THE
INCLUSION OF AN ESTIMATE IN THE READVERTISED IFB WOULD BE A SIGNIFICANT
DIFFERENCE FROM THE ORIGINAL IFB.
IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE MARINE CORPS HAS
PROVIDED AN ADEQUATE BASIS FOR RESOLICITING THE CONTRACT. THEREFORE, IT
IS UNNECESSARY FOR US TO CONSIDER THE OTHER THREE BASES ADVANCED BY THE
MARINE CORPS FOR RESOLICITATION.
ACCORDINGLY, WE BELIEVE IT WOULD BE APPROPRIATE TO TERMINATE
RECORDING CENTER SERVICE COMPANY'S CONTRACT FOR THE CONVENIENCE OF THE
GOVERNMENT.
THE PROTESTS OF RECORDING CENTER SERVICE COMPANY AND INSTANT REPLAY
EQUIPMENT COMPANY ARE DENIED.
B-193934, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
REFORMATION OF PURCHASER ROAD CREDIT IS NOT PROPER EVEN THOUGH AGENCY
MADE ERROR IN ADDING TOTAL CREDITS SINCE ERROR COULD EASILY HAVE BEEN
DETECTED FROM CONTRACT DOCUMENTS AND CLAIMANT WAS NOT INDUCED BY ERROR
TO EXPEND MORE THAN IT PLANNED ON ROAD CONSTRUCTION.
WEST COAST ORIENT CO.:
THE FOREST SERVICE OF THE DEPARTMENT OF AGRICULTURE HAS REQUESTED OUR
DECISION ON WHETHER WEST COAST ORIENT CO. (WEST) CAN BE PAID AN
ADDITIONAL $10,099 UNDER THE PURCHASER ROAD CREDIT PROVISIONS OF THE
WINSTON TIMBER SALE CONTRACT NO. 02620-0. THE FOREST SERVICE ADMITS IT
MADE A MISTAKE IN TOTALING THE APPLICABLE CREDITS IN THE TIMBER SALE
PROSPECTUS AND CONTRACT BUT RECOMMENDS THAT THE CLAIM BE DENIED.
UNDER THE TERMS OF THE TIMBER SALE WEST WAS TO CONSTRUCT CERTAIN
ROADS INCLUDING ROAD NO. 147. BOTH THE CONTRACT AND THE PROSPECTUS FOR
THE SALE INDICATED THAT A TOTAL PURCHASER ROAD CREDIT OF $616,402 WAS
AVAILABLE FOR THIS PURPOSE. AFTER THE SALE CONTRACT WAS AWARDED TO WEST
IT DISCOVERED THAT THE PURCHASER ROAD CREDIT WAS INCORRECTLY CALCULATED.
SECTIONS A-10 AND A-11 OF THE CONTRACT SHOW THAT AN ERROR WAS MADE IN
ADDING TWO COMPONENTS (ITEM A, $148,775 AND ITEM R, $326) WHICH MAKE UP
THE BASE WORK FOR ROAD NO. 147. WHEN ADDED CORRECTLY THE BASE WORK FOR
ROAD NO. 147 SHOULD BE $149,102 NOT $139,002 AS LISTED IN SECTION A-10
OF THE CONTRACT. CONSEQUENTLY, THE PURCHASER ROAD CREDIT FOR ROAD NO.
147 SHOULD HAVE BEEN $295,617 NOT $285,608 AS LISTED AND THE TOTAL
PURCHASER ROAD CREDIT SHOULD HAVE BEEN $626,501.
THE FOREST SERVICE RECOMMENDS THAT WEST'S CLAIM OF $10,099 BE DENIED,
IN PART, BECAUSE WEST SHOULD HAVE DISCOVERED THE ERROR IN THE CONTRACT
DOCUMENTS PRIOR TO SIGNING THE INSTRUMENT.
IN A RECENT DECISION, TIMBER INVESTORS, INC. V. UNITED STATES (CT.
CL. 61-75, NOVEMBER 15, 1978) THE COURT OF CLAIMS CONSIDERED THE
RELATIONSHIP OF THE PRINCIPLE OF MUTUAL MISTAKE TO AN ERROR IN THE
CALCULATION OF THE PURCHASER ROAD CREDIT IN A TIMBER SALE CONTRACT. THE
COURT HELD THAT A MUTUAL MISTAKE JUSTIFYING REFORMATION WOULD EXIST
WHERE THE PURCHASER AND THE FOREST SERVICE BELIEVED THAT THE ESTIMATES
WERE REASONABLY ACCURATE AND WHERE, IN FACT, PERFORMANCE SHOWED
UNREASONABLY INACCURATE ESTIMATES DUE TO A MISTAKE ON THE FOREST
SERVICE'S PART. SEE ALSO SIERRA PACIFIC INDUSTRIES - RECONSIDERATION,
B-193399, APRIL 5, 1979, 58 COMP. GEN. ___, 79-1 CPD 238. HOWEVER THE
COURT SPECIFICALLY LIMITED ITS DECISION TO SITUATIONS WHERE THE ERRANT
ESTIMATE COULD NOT BE READILY VERIFIED BY THE CONTRACTOR. IN THIS
REGARD THE COURT HELD, "THIS DOES NOT MEAN, HOWEVER, THAT PLAINTIFF AND
ITS SUBCONTRACTOR CAN SHUT THEIR EYES WITH REFERENCE TO A PARTICULAR
COST ESTIMATE WHICH COULD EASILY BE VERIFIED BY MERELY CONTACTING A
LOCAL SUPPLIER. A BIDDER MUST ACT REASONABLY IN RELYING ON ESTIMATES."
TIMBER INVESTORS, INC. V. UNITED STATES, SUPRA, AT PAGE 9.
HERE, WEST COULD HAVE EASILY CHECKED THE ACCURACY OF THE FOREST
SERVICE CALCULATIONS BY MERELY READING THE CONTRACT DOCUMENTS IT WAS
CALLED UPON TO SIGN. ALSO THIS ERROR IS NOT LIKE THAT IN TIMBER
INVESTORS OR SIERRA PACIFIC WHERE A MISTAKE IS MADE IN THE ESTIMATE OF
THE AMOUNT OF WORK NEEDED TO BUILD THE ROAD AND THE CONTRACTOR DOES NOT
DISCOVER THE ERROR UNTIL IT HAS SPENT MORE THAN THE PURCHASER CREDIT
AMOUNT TO BUILD THE ROAD. IN THIS INSTANCE WEST DOES NOT DISPUTE THE
AGENCY'S ESTIMATES OF THE AMOUNT OF WORK INVOLVED. ALSO WEST DOES NOT
ARGUE THAT THE TOTAL ESTIMATE WAS GROSSLY ERRONEOUS OR THAT IT WAS
MISLED INTO SIGNING THE CONTRACT BECAUSE OF THE ESTIMATE. IT MERELY
INSISTS THAT SINCE THE FOREST SERVICE MADE AN ERROR IN THE CALCULATION
IT IS ENTITLED TO COMPENSATION AT THE CORRECTED RATE.
WE DISAGREE. WHERE, AS HERE, THE CLAIMANT DOES NOT SHOW IT WAS
MISLED INTO SPENDING MORE THAN IT REASONABLY ANTICIPATED BECAUSE OF THE
ERRONEOUS ESTIMATE AND WHERE THE ERROR COULD EASILY HAVE BEEN DETECTED
FROM THE CONTRACT SIGNED BY THE CLAIMANT, RECOVERY ON THE BASIS OF
MUTUAL MISTAKE IS NOT APPROPRIATE. B-176649, JANUARY 24, 1973.
THE CLAIM IS DISALLOWED.
B-194449, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PROTEST FILED WITH GAO MORE THAN 10 DAYS AFTER NOTIFICATION OF
INITIAL ADVERSE AGENCY ACTION (DENIAL OF PROTEST TO AGENCY) IS UNTIMELY
AND WILL NOT BE CONSIDERED.
KENNETH ROBERTS & ASSOCIATES, INC.:
KENNETH ROBERTS & ASSOCIATES, INC. (KRA), PROTESTS THE PROPOSED AWARD
OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. TSC/721-0017-RN TO
SAGE MANAGEMENT CONSULTANTS (SAGE) BY THE DEPARTMENT OF TRANSPORTATION
(DOT) TO CONDUCT A REVIEW AND ASSESSMENT AND DEVELOP SYSTEM SOFTWARE
IMPROVEMENTS TO A BUS SCHEDULING SYSTEM.
KRA CONTENDS THAT: (1) PRIOR TO THE RFP DUE DATE, IT WAS INFORMED
THAT "NO INSTALLERS NEED APPLY" AND SAGE IS AN INSTALLER; (2) AWARD TO
SAGE (A CANADIAN COMPANY) WOULD VIOLATE THE "BUY AMERICAN ACT;" (3) SAGE
PUBLICLY STATED THAT SOFTWARE DEVELOPED FOR ITS CANADIAN SPONSORS WILL
NOT BE MADE AVAILABLE TO DOT AS PART OF PROPOSED PROJECT; (4) THE
PROPOSED AWARD DETERMINATION WAS MADE ON THE BASIS OF SOFTWARE PRODUCTS
CURRENTLY BEING DEVELOPED BY SAGE BUT THE RFP EMPHASIZED PROVEN
IMPLEMENTATION AND KNOWLEDGE OF TRANSIT INDUSTRY NEEDS; AND (5) STEPS
SHOULD HAVE BEEN TAKEN BY DOT IN ADVANCE OF ANY AWARD TO INSURE THAT ALL
INSTALLERS WOULD BE PROTECTED AND WOULD NOT SUFFER A DISADVANTAGE
BECAUSE OF THE PROCUREMENT.
BY LETTER DATED DECEMBER 5, 1978, TO DOT, KRA INITIALLY FILED A
PROTEST BASED ON THESE CONTENTIONS. BY LETTER DATED DECEMBER 22, 1978,
DOT DENIED THE PROTEST. SUBSEQUENTLY, KRA'S PROTEST TO OUR OFFICE WAS
FILED ON MARCH 27, 1979.
SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20
(1978), STATES:
"PROTESTERS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS
INITIALLY WITH THE CONTRACTING AGENCY. IF A PROTEST HAS BEEN FILED
INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE
GENERAL ACCOUNTING OFFICE FILED WITHIN 10 (WORKING) DAYS OF FORMAL
NOTIFICATION OF OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE
AGENCY ACTION WILL BE CONSIDERED ***."
SINCE THE LETTER OF DECEMBER 22, 1978, WAS THE INITIAL ADVERSE AGENCY
ACTION (DENIAL OF THE PROTEST TO THE AGENCY) AND KRA DID NOT FILE ITS
PROTEST WITH OUR OFFICE UNTIL MARCH 27, 1979, THE PROTEST IS UNTIMELY
AND WILL NOT BE CONSIDERED. BILTWELL DEVELOPMENT COMPANY OF SAN
FRANCISCO, B-193827, JANUARY 30, 1979, 79-1 CPD 73.
THE PROTEST IS DISMISSED.
B-194482, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PURSUANT TO FEDERAL FIRE PREVENTION AND CONTROL ACT OF 1974, U. S.
FIRE ADMINISTRATION PURCHASED MARJORIE WEBSTER JUNIOR COLLEGE AS SITE
FOR NATIONAL ACADEMY FOR FIRE PREVENTION AND CONTROL. AS A RESULT OF
CONTROVERSY OVER THE SITE, CONGRESS, IN PUB. L. NO. 95-422 (OCTOBER 5,
1978) AUTHORIZED ADMINISTRATOR TO SELL MARJORIE WEBSTER SITE AND RETAIN
PROCEEDS, WITHIN LIMITS, FOR ACQUISITION AND IMPROVEMENT OF NEW SITE.
SINCE PUB. L. NO. 95-422 IS LATER AND MORE SPECIFIC ENACTMENT OF
CONGRESS, IT AUTHORIZES ADMINISTRATOR TO SELL MARJORIE WEBSTER SITE
WITHOUT REGARD TO REQUIREMENTS OF FEDERAL PROPERTY AND ADMINISTRATIVE
SERVICES ACT OF 1949.
U. S. FIRE ADMINISTRATION - SALE OF MARJORIE WEBSTER JUNIOR COLLEGE:
THIS DECISION IS IN RESPONSE TO A LETTER FROM THE ADMINISTRATOR, U.
S. FIRE ADMINISTRATION, DEPARTMENT OF COMMERCE, ASKING WHETHER THE FIRE
ADMINISTRATION IS AUTHORIZED TO SELL THE FORMER MARJORIE WEBSTER JUNIOR
COLLEGE WITHOUT REGARD TO THE REQUIREMENTS OF THE FEDERAL PROPERTY AND
ADMINISTRATIVE SERVICES ACT OF 1949. FOR THE REASONS GIVEN BELOW, THE
QUESTION IS ANSWERED IN THE AFFIRMATIVE.
SECTION 7 OF THE FEDERAL FIRE PREVENTION AND CONTROL ACT OF 1974 (THE
ACT), 15 U.S.C. SEC. 2206 (1976), DIRECTED THE ESTABLISHMENT OF A
NATIONAL ACADEMY FOR FIRE PREVENTION AND CONTROL AND AUTHORIZED THE
SECRETARY OF COMMERCE TO SELECT A SITE FOR ITS LOCATION. PURSUANT TO
THIS AUTHORITY, THE SECRETARY SELECTED THE FORMER CAMPUS OF MARJORIE
WEBSTER JUNIOR COLLEGE (CAMPUS). ON MAY 4, 1977, CONGRESS APPROPRIATED
$2,850,000 FOR THE PURCHASE AND RENOVATION OF THE CAMPUS (PUB. L. NO.
95-26, 91 STAT. 61, 91), AND ON MAY 26, 1977, THE CAMPUS WAS PURCHASED.
SUBSEQUENTLY, PROBLEMS DEVELOPED CONCERNING THE USE OF THE CAMPUS AS
THE ACADEMY SITE. THESE PROBLEMS WERE DISCUSSED DURING HEARINGS ON THE
SECOND SUPPLEMENTAL APPROPRIATIONS ACT, 1978, PUB. L. NO. 95-355
(SEPTEMBER 8, 1978), 92 STAT. 523. SEE HEARINGS ON THE SECOND
SUPPLEMENTAL APPROPRIATIONS BILL FOR FISCAL YEAR 1978 BEFORE
SUBCOMMITTEES OF THE HOUSE APPROPRIATIONS COMMITTEE, 95TH CONG., 2D
SESS., PT. 2, AT 346-363 (1978). PUB. L. NO. 95-355 APPROPRIATED $6.15
MILLION FOR "FACILITIES AS AUTHORIZED BY THE ACT OF OCTOBER 29, 1974."
HOWEVER, THE CONFERENCE COMMITTEE SPECIFIED THAT THE FUNDS WERE TO BE
USED TO ACQUIRE AND IMPROVE A NEW SITE, EXPLAINING ITS ACTION AS
FOLLOWS:
"THE CONFEREES ARE AGREED THAT A FEDERAL FIRE SERVICE TRAINING AND
EDUCATIONAL FACILITY IS REQUIRED TO MEET THE NEED FOR IMPROVED TRAINING
OF THE NATION'S FIRE SERVICE PERSONNEL. HOWEVER, THE CONFEREES BELIEVE
THAT A SITE FOR SUCH A FACILITY WHICH WOULD PERMIT ENHANCEMENT OF THE
PRESENTLY PLANNED TRAINING PROGRAM WOULD BETTER SERVE THIS NEED THAN THE
PRESENT SITE. CONSEQUENTLY, THE CONFEREES ARE AGREED THAT THE FUNDS
PROVIDED ARE TO BE USED FOR THE ACQUISITION AND IMPROVEMENT OF A NEW
SITE FOR A NATIONAL FIRE ACADEMY. THE CONFEREES URGE THE DEPARTMENT OF
COMMERCE TO BEGIN AN EXPEDITED SEARCH FOR A NEW SITE IMMEDIATELY. IN
ADDITION, THE CONFEREES URGE THE APPROPRIATE AUTHORIZING COMMITTEES OF
THE HOUSE AND SENATE TO CONSIDER LEGISLATION WHICH WOULD MAKE THE
PROCEEDS OF ANY SALE OF THE MARJORIE WEBSTER JUNIOR COLLEGE SITE
AVAILABLE FOR THE PURCHASE AND IMPROVEMENT OF THE SITE SELECTED." H.R.
REP. NO. 95-1475, P. 13 (1978).
IT WAS THEN PROPOSED THAT THE 1974 ACT BE AMENDED TO COMPLY WITH THE
WISHES OF THE CONFEREES EXPRESSED ABOVE. SEE 124 CONG. REC. H10343
(SEPTEMBER 21, 1978) AND S15878-79 (SEPTEMBER 22, 1978). THIS WAS
ACCOMPLISHED BY THE ENACTMENT OF PUB. L. NO. 95-422 (OCTOBER 5, 1978),
SEC. 4, 92 STAT. 932, 933, WHICH ADDED A NEW SECTION 25 TO THE ACT,
PROVIDING THAT:
"(A) THE ADMINISTRATOR IS AUTHORIZED TO SELL THE FORMER MARJORIE
WEBSTER JUNIOR COLLEGE FACILITY, LOCATED IN WASHINGTON, D. C., WHICH WAS
PREVIOUSLY PURCHASED AS THE SITE FOR THE ACADEMY. IN THE EVENT OF THE
SALE OF SUCH FACILITY, THE ADMINISTRATOR SHALL ESTABLISH WITHIN THE
ADMINISTRATION AN ACADEMY ACQUISITION AND CONSTRUCTION ACCOUNT
(HEREINAFTER REFERRED TO AS THE 'ACCOUNT'), AND SHALL DEPOSIT INTO SUCH
ACCOUNT ONLY THE PROCEEDS FROM THE SALE OF SUCH FACILITY. FOLLOWING
SUCH DEPOSIT, THE ADMINISTRATOR SHALL CALCULATE THE SUM OF BOTH THE
FUNDS DEPOSITED INTO THE ACCOUNT, AND THE TOTAL MONIES WHICH HAVE BEEN
OR MAY BE APPROPRIATED FOR THE ACQUISITION, CONSTRUCTION, AND/OR
REHABILITATION OF A SITE FOR THE ACADEMY. IF THE ADMINISTRATOR FINDS
THAT THE TOTAL AMOUNT SO CALCULATED WOULD EXCEED $9,000,000, THE
ADMINISTRATOR SHALL DEDUCT FROM THE ACCOUNT THE DIFFERENCE BETWEEN THIS
COMBINED TOTAL AND $9,000,000, AND SHALL DEPOSIT SUCH DIFFERENCE INTO
THE TREASURY AS MISCELLANEOUS RECEIPTS.
"(B) THE ADMINISTRATOR IS THEREAFTER AUTHORIZED AND DIRECTED TO
RETAIN AND APPLY FUNDS IN THE ACCOUNT FOR THE ACQUISITION, CONSTRUCTION,
AND/OR REHABILITATION OF ANY SITE WHICH MAY BE SELECTED, TOGETHER WITH
SUCH OTHER MONIES AS HAVE BEEN OR MAY BE APPROPRIATED FOR SUCH PURPOSES,
EXCEPT THAT THE TOTAL AUTHORIZED EXPENDITURE FOR SUCH MONIES SHALL NOT
EXCEED $9,000,000. SUCH SUMS SHALL REMAIN AVAILABLE UNTIL EXPENDED."
THE ADMINISTRATOR ALSO CALLS OUR ATTENTION TO SECTION 21(B)(3) OF THE
ACT, 15 U.S.C. SEC. 2218(B)(3), WHICH AUTHORIZES THE ADMINISTRATOR TO:
"PURCHASE, LEASE, OR OTHERWISE ACQUIRE, OWN, HOLD, IMPROVE, USE, OR
DEAL IN AND WITH ANY PROPERTY (REAL, PERSONAL, OR MIXED, TANGIBLE OR
INTANGIBLE), OR INTEREST IN PROPERTY, WHEREVER SITUATED; AND SELL,
CONVEY, MORTGAGE, PLEDGE, LEASE, EXCHANGE, OR OTHERWISE DISPOSE OF
PROPERTY AND ASSETS."
WHATEVER MAY BE THE EFFECT OF SECTION 21(B) OF THE ACT, THE PURPOSE
OF THE NEW SECTION 25 IS CLEAR - TO AUTHORIZE THE ADMINISTRATOR TO SELL
THE CAMPUS SITE AND TO MAKE THE PROCEEDS FROM THE SALE AVAILABLE FOR
PAYMENT OF PART OF THE COST OF ACQUIRING A NEW SITE FOR THE NATIONAL
ACADEMY. OTHERWISE THE PROCEEDS WOULD HAVE HAD TO BE DEPOSITED IN THE
TREASURY AS MISCELLANEOUS RECEIPTS. 31 U.S.C. SEC. 484 (1976).
THE CONCERN OF THE ADMINISTRATOR ARISES FROM THE APPARENT CONFLICT
BETWEEN THE LANGUAGE OF SECTION 25 OF THE ACT AND THE PROPERTY USE AND
DISPOSAL PROVISIONS OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES
ACT OF 1949, 40 U.S.C. SECS. 471 ET SEQ., AS IMPLEMENTED BY REGULATIONS
ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA). SPECIFICALLY,
SECTION 602(C) OF THE 1949 ACT, AS AMENDED, 40 U.S.C. SEC. 474, MAKES
THE AUTHORITY CONFERRED BY THE 1949 ACT PARAMOUNT TO ANY AUTHORITY
CONFERRED BY ANY OTHER LAW AND NOT SUBJECT TO THE PROVISIONS OF ANY LAW
INCONSISTENT WITH THE 1949 ACT. IF THE PROVISIONS OF THE 1949 ACT
RELATING TO UTILIZATION OF EXCESS REAL PROPERTY (40 U.S.C. SEC. 483), AS
IMPLEMENTED BY 41 C.F.R. SECS. 101-47.201 ET SEQ., ARE COMPLIED WITH,
THE CAMPUS COULD BE TRANSFERRED (NOT SOLD) TO ANOTHER FEDERAL AGENCY AND
THE ADMINISTRATOR REIMBURSED NO MORE THAN 50 PERCENT OF THE FAIR MARKET
VALUE OF THE SITE AND POSSIBLY RECEIVE NO REIMBURSEMENT AT ALL. SEE 41
C.F.R. SEC. 101-47.203-7(F). THIS WOULD NOT ACCOMPLISH THE STATUTORY
INTENT OF SECTION 25 THAT THE SALE PRICE RECEIVED BE USED TO DEFRAY
ACQUISITION AND CONSTRUCTION COSTS FOR A NEW SITE.
ALSO, DISPOSAL OF THE PROPERTY IN QUESTION AS "SURPLUS" UNDER THE
1949 ACT WOULD NOT ACCOMPLISH THE PURPOSE OF SECTION 25, SINCE UNDER
SECTION 204 OF THE 1949 ACT THE PROCEEDS OF SALE WOULD BE FOR DEPOSIT
INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, WITH CERTAIN EXCEPTIONS NOT
PERTINENT HERE.
THERE ARE SEVERAL WELL ESTABLISHED AREAS OF STATUTORY CONSTRUCTION
WHICH SHOULD BE CONSIDERED. GENERALLY, A STATUTE OR PROVISION OF A
STATUTE SHOULD NOT BE CONSTRUED IN A MANNER WHICH WOULD RENDER IT
USELESS, MEANINGLESS, OR REDUNDANT. F.T.C. V. MANAGER, RETAIL CREDIT
CO., MIAMI BRANCH OFFICE, 515 F. 2D 988, 994 (D. C. CIR. 1975); JACKSON
V. KELLY, 557 F. 2D 735, 740 (10TH CIR. 1977). ALSO, WHEN THERE IS A
CONFLICT BETWEEN AN EARLIER STATUTE AND A LATER STATUTE, THE PROVISION
OF THE LATER STATUTE WILL NORMALLY CONTROL AS THE LATEST EXPESSION OF
CONGRESSIONAL INTENT. 55 COMP. GEN. 117 (1975). FINALLY, A SPECIFIC
STATUTORY PROVISION PREVAILS OVER A MORE GENERAL PROVISION. F.T.C.,
SUPRA AT 993.
APPLYING THESE PRINCIPLES TO THE SITUATION AT HAND, TO CONCLUDE THAT
ANY SALE OF THE CAMPUS SITE BY THE ADMINISTRATOR IS SUBJECT TO THE
PROVISIONS OF THE 1949 ACT WOULD RENDER SECTION 25(A) OF THE 1974 ACT
MEANINGLESS. FURTHERMORE, SUCH A CONCLUSION WOULD ALLOW AN EARLIER,
MORE GENERAL PROVISION REGARDING PROPERTY DISPOSALS TO PREVAIL OVER A
LATER, SPECIFIC PROVISION CONCERNING THE CAMPUS. IT FOLLOWS, THEREFORE,
THAT IF SECTION 25(A) IS TO BE GIVEN EFFECT AS THE LATER AND MORE
SPECIFIC ACT OF CONGRESS, IT MUST BE CONSTRUED AS AUTHORIZING THE
ADMINISTRATOR TO SELL THE MARJORIE WEBSTER SITE WITHOUT COMPLIANCE WITH
THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT.
THIS CONCLUSION IS CONSISTENT WITH THE GSA REGULATIONS WHICH EXEMPT
FROM THE APPLICATION OF ITS EXCESS AND SURPLUS PROPERTY REQUIREMENTS,
TRANSFERS AND DISPOSALS OF REAL PROPERTY AUTHORIZED TO BE MADE BY ANY
"SPECIAL STATUTE" WHICH DIRECTS OR REQUIRES AN EXECUTIVE AGENCY TO
TRANSFER OR CONVEY SPECIFICALLY DESCRIBED REAL PROPERTY IN ACCORDANCE
WITH THE PROVISIONS OF THAT STATUTE. 41 C.F.R. SECS. 101-47.201-4 AND
101-47.301-3 (1977). SECTION 25 OF THE 1974 ACT, IN OUR VIEW, MEETS
THIS EXCEPTION.
THEREFORE, NOTWITHSTANDING 40 U.S.C. SEC. 474, THE ADMINISTRATOR IS
AUTHORIZED TO SELL THE CAMPUS SITE UNDER SECTION 25 OF THE 1974 ACT
WITHOUT REGARD TO THE REQUIREMENTS OF THE FEDERAL PROPERTY AND
ADMINISTRATIVE SERVICES ACT OF 1949 AND MAY, WITHIN THE LIMITS IMPOSED
BY SECTION 25, RETAIN THE PROCEEDS TO BE USED FOR SITE ACQUISITION AND
CONSTRUCTION OF THE NATIONAL ACADEMY.
B-194545, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE IN VIETNAM AT THE END OF LEAVE YEAR 1974 WHO FORFEITED 124
HOURS OF ACCRUED LEAVE MAY NOT HAVE LEAVE RESTORED UNDER 5 U.S.C.
6304(D)(1)(B) (1976) IN THE ABSENCE OF TIMELY WRITTEN REQUEST FOR
SCHEDULING OF LEAVE AS REQUIRED BY THE LAW AND APPLICABLE REGULATIONS.
ARTHUR E. QUILLO - RESTORATION OF FORFEITED ANNUAL LEAVE:
THIS ACTION IS IN RESPONSE TO AN APPEAL OF A SETTLEMENT OF OUR CLAIMS
DIVISION DATED JANUARY 4, 1979, WHICH DISALLOWED MR. ARTHUR E. QUILLO'S
CLAIM FOR RESTORATION OF 124 HOURS OF ANNUAL LEAVE. THE LEAVE WAS
FORFEITED UNDER THE PROVISIONS OF 5 U.S.C. SEC. 6304 (1976) AT THE END
OF LEAVE YEAR 1974.
MR. QUILLO WAS ASSIGNED TO THE DEFENSE ATTACHE OFFICE, SAIGON,
VIETNAM, FROM MARCH 14, 1974, UNTIL MARCH 15, 1975. MR. QUILLO STATES
THAT HE WAS NOT ALLOWED TO USE HIS ANNUAL LEAVE IN 1974 BECAUSE OF
EXIGENCIES OF PUBLIC BUSINESS. HE ALSO INDICATES THAT NORMAL LEAVE
COULD NOT BE TAKEN IN HIS CASE BECAUSE OF THE CONDITIONS EXISTING IN
VIETNAM AT THAT TIME.
IN SUPPORT OF HIS CLAIM MR. QUILLO ASSERTS THAT OTHERS SIMILARLY
SITUATED HAD LEAVE RESTORED UPON THEIR RETURN FROM VIETNAM. HE ALLEGES
THAT HE HAD BEEN ASSURED BY HIS SUPERVISORS THAT THE LEAVE WOULD NOT BE
LOST, THAT ALL HIS REQUESTS FOR LEAVE WERE VERBAL AND THEREFORE THERE
WOULD BE NO DOCUMENTATION.
THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, WHICH MAINTAINED THE
RECORDS OF THE EMPLOYEES OF THE DEFENSE ATTACHE OFFICE, SAIGON, REPORTS
THAT MR. QUILLO HAS NOT PROVIDED EVIDENCE TO SUPPORT THE APPROVAL OF
LEAVE ON SPECIFIC DATES NOR DOCUMENTATION OF THE REASONS FOR
CANCELLATION OF THE APPROVED LEAVE.
ON NOVEMBER 13, 1974, THE CHIEF, PERSONNEL DIVISION, ISSUED DA FORM
2496, SETTING FORTH THE DETERMINATION OF THE DEFENSE ATTACHE THAT THE
EXIGENCIES OF THE PUBLIC SERVICE DURING THE 1974 LEAVE YEAR HAD BEEN
SUCH THAT SOME ASSIGNED EMPLOYEES HAD BEEN PRECLUDED FROM USING ALL OF
THEIR ACCRUED LEAVE. THE INSTRUCTION ALSO CITED THE LAW AUTHORIZING THE
RESTORATION OF ANNUAL LEAVE AND THE ESTABLISHMENT OF SPECIAL LEAVE
ACCOUNTS. FURTHER, IT WAS STATED THAT CERTAIN DOCUMENTATION WOULD HAVE
TO BE AVAILABLE BEFORE FORFEITED LEAVE COULD BE RESTORED. THIS INCLUDED
AN SF 71 FORM, OR OTHER APPROPRIATE LEAVE APPLICATION FORM SHOWING THE
CALENDAR DATE THE LEAVE WAS SCHEDULED, AND APPROVAL OF THE OFFICIAL
HAVING THE AUTHORITY TO APPROVE LEAVE AND DATES THE LEAVE WAS SCHEDULED
FOR ACTUAL USE, INCLUDING THE NUMBER OF HOURS SCHEDULED.
FORFEITED ANNUAL LEAVE CAN BE RESTORED UNDER THE LIMITED
CIRCUMSTANCES SET OUT IN 5 U.S.C. SEC. 6304(D)(1), WHICH PROVIDES:
"ANNUAL LEAVE WHICH IS LOST BY OPERATION OF THIS SECTION BECAUSE OF -
"(A) ADMINISTRATIVE ERROR WHEN THE ERROR CAUSES A LOSS OF ANNUAL
LEAVE OTHERWISE ACCRUABLE AFTER JUNE 30, 1960;
"(B) EXIGENCIES OF THE PUBLIC BUSINESS WHEN THE ANNUAL LEAVE WAS
SCHEDULED IN ADVANCE; OR
"(C) SICKNESS OF THE EMPLOYEE WHEN THE ANNUAL LEAVE WAS SCHEDULED IN
ADVANCE;
SHALL BE RESTORED TO THE EMPLOYEE."
THE CIVIL SERVICE COMMISSION'S IMPLEMENTING REGULATIONS AND
GUIDELINES, ISSUED PURSUANT TO 5 U.S.C. SECS. 6304(D)(2) AND 6311, ARE
CONTAINED IN FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 630-22, DATED
JANUARY 11, 1974. THE REGULATIONS WERE PUBLISHED IN THE FEDERAL
REGISTER OF JANUARY 11, 1974, AND HAVE BEEN CODIFIED IN SUBPART C, PART
630, TITLE 5, CODE OF FEDERAL REGULATIONS.
FOR RESTORATION UNDER SUBSECTIONS (B) OR (C), THERE IS A STATUTORY
REQUIREMENT THAT THE ANNUAL LEAVE BE SCHEDULED IN ADVANCE. SEE MATTER
OF MICHAEL DANA, 56 COMP. GEN. 470 (1977). REGARDING THIS REQUIREMENT
5 C.F.R SEC. 630.308 PROVIDES:
"BEGINNING WITH THE 1974 LEAVE YEAR, BEFORE ANNUAL LEAVE FORFEITED
UNDER SECTION 6304 OF TITLE 5, UNITED STATES CODE, MAY BE CONSIDERED FOR
RESTORATION UNDER THAT SECTION, USE OF THE ANNUAL LEAVE MUST HAVE BEEN
SCHEDULED IN WRITING BEFORE THE START OF THE THIRD BIWEEKLY PAY PERIOD
PRIOR TO THE END OF THE LEAVE YEAR."
PARAGRAPH 5C.(3)(C) OF THE ATTACHMENT TO FPM 630-22 FURTHER
ELABORATES:
"*** THE SCHEDULING AND, AS NECESSARY, RESCHEDULING OF ANNUAL LEAVE
MUST BE IN WRITING. (IN THIS REGARD, STANDARD FORM 71, APPLICATION FOR
LEAVE, MAY BE USED TO DOCUMENT THE ACTIONS, SUPPLEMENTED AS REQUIRED.)
DOCUMENTATION MUST INCLUDE THE FOLLOWING:
"- THE CALENDAR DATE THE LEAVE WAS SCHEDULED, I.E., APPROVED BY THE
OFFICIAL HAVING AUTHORITY TO APPROVE LEAVE ***."
THE RULE REQUIRING APPROVAL IN WRITING STEMS FROM THE LEGISLATIVE
HISTORY OF SECTION 6304(D)(1) ITSELF:
"THE COMMITTEE INTENDS THAT FOR PURPOSES OF COMPLYING WITH THE
'SCHEDULED IN ADVANCE' REQUIREMENT, SOME FORMAL DOCUMENTATION WILL HAVE
TO BE FURNISHED TO SHOW THAT THE EMPLOYEE, A REASONABLE TIME BEFORE THE
END OF THE LEAVE YEAR, DID, IN FACT, REQUEST A CERTAIN AMOUNT OF ANNUAL
LEAVE IN ADVANCE, THAT SUCH REQUEST WAS APPROVED BY THE APPROPRIATE
AUTHORITY, AND THAT SUCH ANNUAL LEAVE WAS LOST DUE TO EXIGENCIES OF THE
SERVICE OR SICKNESS OF THE EMPLOYEE." H.R. REP. NO. 93-456, 93RD CONG.,
1ST SESS. 9 (1973).
IN THIS REGARD, INFORMAL NOTIFICATION OR VERBAL REQUEST BY EMPLOYEES
FOR LEAVE IS NOT CONSIDERED AS MEETING THE DOCUMENTATION REQUIREMENTS OF
THE LAW AND REGULATIONS. FURTHERMORE, IT HAS BEEN HELD THAT THE
SCHEDULING REQUIREMENT UNDER 5 U.S.C. 6304(D)(1)(B) MAY NOT BE WAIVED OR
MODIFIED EVEN WHERE EXTENUATING CIRCUMSTANCES EXIST. MATTER OF MICHAEL
DANA, ET AL., 56 COMP. GEN. 470 (1977). SEE ALSO B-191379, SEPTEMBER
28, 1978.
WHILE MR. QUILLO MAY HAVE BEEN MISLED BY HIS SUPERVISORS AS TO THE
NECESSITY OF DOCUMENTING SCHEDULED LEAVE AND BY HIS OWN PRACTICE AS A
SUPERVISOR AND CIVIL SERVICE EMPLOYEE FOR MANY YEARS AND THUS LOST LEAVE
THAT MIGHT OTHERWISE BE RESTORED IF PROPERLY DOCUMENTED, THE LIABILITY
OF THE GOVERNMENT, NEVERTHELESS, IS LIMITED TO THAT PROVIDED BY LAW.
THE GOVERNMENT CANNOT BE BOUND BEYOND THE ACTUAL AUTHORITY CONFERRED ON
ITS AGENTS BY STATUTE. 54 COMP. GEN. 747 (1975).
THE LIMITED FACTS SET FORTH IN MR. QUILLO'S LETTERS CONCERNING OTHERS
SIMILARLY SITUATED WHO IT IS ASSERTED HAD LEAVE RESTORED PRECLUDE A
CONCLUSIVE DETERMINATION AS TO WHAT OCCURRED.
WHILE WE ARE NOT UNMINDFUL OF THE SITUATION IN VIETNAM AT THE END OF
THE YEAR 1974, ON THE BASIS OF THE RECORD BEFORE US WE ARE UNABLE TO
CONCLUDE THAT THE REQUIREMENTS NECESSARY FOR RESTORATION OF FORFEITED
LEAVE HAVE BEEN MET. ACCORDINGLY, THE DISALLOWANCE OF MR. QUILLO'S
CLAIM BY OUR CLAIMS DIVISION IS SUSTAINED.
B-194560, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PROTEST BY PROSPECTIVE SECOND TIER SUBCONTRACTOR WHICH PRESENTS NO
FACTS SHOWING PROCUREMENT COMES WITHIN CONDITIONS SPECIFIED IN OPTIMUM
SYSTEMS, INCORPORATED, 54 COMP. GEN. 767 (1975) WILL NOT BE CONSIDERED
ON MERITS.
INDUSTRIAL COILS, INC.:
INDUSTRIAL COILS, INC. (INDUSTRIAL COILS) PROTESTS AWARD OF A
CONTRACT FOR MAGNETIC COILS TO BROWN BOVERI CORPORATION (BROWN) BY
EBASCO SERVICES INCORPORATED (EBASCO), A SUBCONTRACTOR UNDER A
DEPARTMENT OF ENERGY PRIME CONTRACT WITH PRINCETON UNIVERSITY
(PRINCETON). WE HAVE CONCLUDED, HOWEVER, THAT THIS MATTER SHOULD NOT BE
CONSIDERED ON THE MERITS.
THIS OFFICE WILL CONSIDER SUBCONTRACTOR COMPLAINTS IN LIMITED
CIRCUMSTANCES: (1) WHERE THE PRIME CONTRACTOR IS ACTING AS PURCHASING
AGENT OF THE GOVERNMENT; (2) IN CASES WHERE THE GOVERNMENT'S ACTIVE OR
DIRECT PARTICIPATION IN THE SELECTION OF THE SUBCONTRACTOR HAS THE NET
EFFECT OF REJECTING OR SELECTING A POTENTIAL SUBCONTRACTOR, OR
SIGNIFICANTLY LIMITING SUBCONTRACT SOURCES; (3) WHERE FRAUD OR BAD
FAITH IS SHOWN IN GOVERNMENT APPROVAL OF THE SUBCONTRACT AWARD OR
PROPOSED AWARD; (4) WHERE THE SUBCONTRACT AWARD IS "FOR" AN AGENCY OF
THE FEDERAL GOVERNMENT; AND (5) WHERE THE QUESTIONS CONCERNING THE
AWARDS OF SUBCONTRACTS ARE SUBMITTED BY OFFICIALS OF FEDERAL AGENCIES
WHO ARE ENTITLED TO ADVANCE DECISIONS FROM OUR OFFICE. OPTIMUM SYSTEMS,
INCORPORATED, 54 COMP. GEN. 767 (1975), 75-1 CPD 166. DOE STATES THAT
NONE OF THESE CIRCUMSTANCES EXISTS WITH REGARD TO THIS PROCUREMENT.
INDUSTRIAL COILS CONTENDS THAT: ITS PROPOSED PRICE WAS SUBSTANTIALLY
BELOW THAT OF THE AWARDEE; THE SCORING OF ITS PROPOSAL WAS INCONSISTENT
WITH THE HISTORICAL PREFERENCE FOR FIRMS DOING BUSINESS IN ECONOMICALLY
DEPRESSED AREAS; ITS TECHNICAL PROPOSAL WAS AT LEAST EQUAL TO OTHER
OFFERORS AND ERRONEOUSLY EVALUATED; THE AWARD TO A FOREIGN CORPORATION
VIOLATES THE BUY AMERICAN ACT, 41 U.S.C. SEC. 10A-10D; AND ITS
REJECTION RESULTED FROM A PREDETERMINED BIAS AGAINST ITS SMALL BUSINESS
STATUS. THE PROTESTER CONTENDS THAT NOTWITHSTANDING OUR DECISION IN
OPTIMUM SYSTEMS, SUPRA, WE SHOULD CONSIDER THIS CASE BECAUSE OF THE
ERRONEOUS PROCUREMENT PROCEDURES FOLLOWED.
IN OUR OPINION, THESE FACTS AND ARGUMENTS ARE NOT SUFFICIENT TO
WARRANT AN EXCEPTION TO OUR GENERAL POLICY OF NOT CONSIDERING PROTESTS
FROM POTENTIAL SUBCONTRACTORS.
INDUSTRIAL DISAGREES WITH DOE'S STATEMENT THAT NO FRAUD OR BAD FAITH
ON THE PART OF THE GOVERNMENT PROCUREMENT OFFICIALS HAS BEEN SHOWN. IT
STATES THAT THE SUPPORTING DOCUMENTATION SUBMITTED IN CONNECTION WITH
ITS PROTEST CLEARLY DEMONSTRATES THE PROCURING OFFICIALS ACTED
ARBITRARILY AND CAPRICIOUSLY IN IGNORING THE LOWEST BID RECEIVED AND
AWARDING THE CONTRACT TO A FOREIGN COMPANY. INDUSTRIAL, HOWEVER, HAS
NOT CHALLENGED DOE'S STATEMENT THAT NEITHER THE SELECTION NOR THE AWARD
WAS SUBJECT TO ITS APPROVAL AND THAT IT DID NOT PARTICIPATE THEREIN IN
ANY MANNER. BAD FAITH IN THE SELECTION PROCESS IS NOT ENOUGH. BAD
FAITH ON THE PART OF THE GOVERNMENT PROCUREMENT OFFICIALS IN APPROVING
THE SUBCONTRACT AWARD MUST BE SHOWN BEFORE THIS OFFICE WILL DECIDE THE
PROTEST. SARGENT INDUSTRIES, B-188220, FEBRUARY 23, 1977, 77-1 CPD 133.
WITH REGARD TO THE GOVERNMENT PROCURING PERSONNEL, INDUSTRIAL HAS SHOWN
NEITHER BAD FAITH NOR THE RIGHT TO APPROVE OR DISAPPROVE THE SELECTION.
REGARDING INDUSTRIAL'S ASSERTIONS THAT THE EVALUATION OF ITS PROPOSAL
WAS INCONSISTENT WITH THE PREFERENCE FOR SMALL BUSINESS IN ECONOMICALLY
DEPRESSED AREAS, WE POINT OUT THAT EVEN IN DIRECT UNRESTRICTED FEDERAL
PROCUREMENTS, IT WOULD BE IMPROPER TO EVALUATE PROPOSALS ON A BASIS
OTHER THAN THAT SPECIFIED IN THE SOLICITATION. PIASECKI AIRCRAFT
CORPORATION, B-190178, JULY 6, 1978, 78-2 CPD 10; FRANCIS & JACKSON,
ASSOCIATES, 57 COMP. GEN. 244 (1978), 78-1 CPD 79.
MOREOVER, THE SUBCONTRACTING PRACTICES OF EBASCO ARE SUBJECT TO THE
TERMS AND CONDITIONS IN ITS CONTRACT WITH PRINCETON AND PRINCETON'S
SUBCONTRACTING PRACTICES ARE, IN TURN, GOVERNED BY ITS PRIME CONTRACT
WITH DOE. THUS, THE QUESTION IN THIS CASE WHETHER AN AWARD TO BROWN
VIOLATES THE BUY AMERICAN ACT OBLIGATIONS OF EITHER EBASCO OR PRINCETON
IS A MATTER OF CONTRACT ADMINISTRATION AND NOT FOR RESOLUTION UNDER THE
BID PROTEST FUNCTIONS OF THIS OFFICE. 4 C.F.R. PART 20 (1978). IN ANY
EVENT, THE FOREIGN STATUS OF THE AWARDEE, OF ITSELF, DOES NOT VIOLATE
THE ACT. LEMMON PHARMACAL COMPANY, B-186124, AUGUST 2, 1976, 76-2 CPD
110.
IN SUPPORT OF ITS CONTENTION THAT THIS OFFICE SHOULD CONSIDER THE
PROTEST ON ITS MERITS, INDUSTRIAL CITES HAYES INTERNATIONAL CORPORATION
V. MCLUCAS, 509 F. 2D 247 (5TH CIR.) CERT. DENIED, 423 U.S. 864 (1975).
IN THAT CASE, THE COURT HELD THAT A DISAPPOINTED BIDDER FOR A PRIME
GOVERNMENT CONTRACT HAD LEGAL STANDING IN COURT TO CHALLENGE THE AWARD.
THE STANDING OF A POTENTIAL SECOND TIER SUBCONTRACTOR WAS NOT AT ISSUE.
A SECOND TIER SUBCONTRACTOR HAS NO PRIVITY WITH A PRIME CONTRACTOR.
UNDERSEA ENGINEERING & CONSTRUCTION CORP. V. INTERNATIONAL TELEPHONE &
TELEGRAPH CORP., 429 F. 2D. 543 (5TH CIR. 1970).
THIS PROTEST IS DISMISSED.
B-194863, JUN 15, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
WHERE CONTRACTING OFFICER HAS DETERMINED SMALL BUSINESS BIDDER TO BE
NONRESPONSIBLE AND HAS REFERRED MATTER TO SMALL BUSINESS ADMINISTRATION
(SBA) FOR POSSIBLE ISSUANCE OF CERTIFICATE OF COMPETENCY, OUR OFFICE
WILL NOT CONSIDER PROTEST SINCE SBA HAS STATUTORY AUTHORITY TO
CONCLUSIVELY DETERMINE RESPONSIBILITY OF SMALL BUSINESS BIDDER.
INDUSTRIAL STEEL, INC.:
INDUSTRIAL STEEL, INC. (INDUSTRIAL), PROTESTS THE CONTRACTING
OFFICER'S DETERMINATION THAT IT IS A NONRESPONSIBLE BIDDER AND THUS
INELIGIBLE FOR AWARD UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
INVITATION FOR BIDS NO. 10-0042-9. WE HAVE BEEN ADVISED THAT THE
CONTRACTING OFFICER HAS FORWARDED HIS DETERMINATION TO THE SMALL
BUSINESS ADMINISTRATION (SBA) FOR ITS REVIEW AND FOR THE POSSIBLE
ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC).
THE FINAL DETERMINATION AS TO WHETHER A SMALL BUSINESS BIDDER IS
RESPONSIBLE FOR A PARTICULAR PROCUREMENT IS MADE BY THE SBA UNDER ITS
COC PROCEDURES. SEE 15 U.S.C. SEC. 637(B)(7) (1976), AS AMENDED BY PUB.
L. 95-89, 91 STAT. 553. OUR OFFICE HAS DECLINED TO REVIEW THE SBA'S
DETERMINATION, TO REQUIRE ISSUANCE OF A COC, OR TO REOPEN A CASE WHEN A
COC HAS BEEN DENIED. SEE, E.G., PRECISION ELECTRONICS LABS, B-186751,
OCTOBER 29, 1976, 76-2 CPD 369; SPECIALTY TOOLS, INC., B-193649,
FEBRUARY 16, 1979, 79-1 CPD 119.
ACCORDINGLY, WE WILL NOT CONSIDER THE INDUSTRIAL PROTEST.
B-194353, JUN 14, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE LEASE AGREEMENT BASES YEARLY RENTAL ADJUSTMENTS ON
FLUCTUATION OF "COST OF LIVING INDEX," AND PAST PERFORMANCE OF PARTIES
TO THE AGREEMENT EXHIBITS AN INTENT TO BE BOUND BY AN INDEX WHICH IS
MADE UP OF ALL SEGMENTS OF THE ECONOMY, EVEN THOUGH A MORE SPECIFIC AND
RELEVANT HOUSING INDEX EXISTED, GAO HAS NO LEGAL OBJECTION TO THE
APPLICATION OF THE OVERALL INDEX. HOWEVER, GAO RECOMMENDS MODIFICATION
OF LEASE AGREEMENT TO BASE FUTURE RENTAL EXTENSIONS AND ADJUSTMENTS ON
THE MORE APPROPRIATE INDEX RELATING SPECIFICALLY TO RENTAL HOUSING.
2. ADVANCE PAYMENTS BY THE DEPARTMENT OF THE NAVY FOR RENT IN
FOREIGN COUNTRY IS NOT ILLEGAL IF SUCH PAYMENTS ARE NECESSARY TO ACCORD
WITH LOCAL CUSTOM, AS PROVIDED BY LAW.
DEPARTMENT OF THE NAVY - REQUEST FOR ADVANCE DECISION:
THE DEPARTMENT OF THE NAVY REQUESTS OUR ADVANCE DECISION AS TO THE
CORRECTNESS OF RENTAL PAYMENTS MADE BY THE U. S. NAVAL SUPPORT ACTIVITY,
NAPLES, ITALY. SPECIFICALLY, WE HAVE BEEN ASKED TO INTERPRET LEASE
AGREEMENT LANGUAGE WHICH CONTROLS THE AMOUNT OF INCREASE OR DECREASE IN
YEARLY RENTAL ADJUSTMENTS. THE NAVY HAS FURTHER REQUESTED OUR
DETERMINATION REGARDING THE PROPRIETY OF MAKING ADVANCE PAYMENTS UNDER
THE PROVISIONS OF THIS LEASE.
ON MAY 15, 1975, THE NAVY, ON BEHALF OF THE UNITED STATES OF AMERICA,
ENTERED INTO A YEARLY RENEWABLE LEASE AGREEMENT WITH THE SOCIETA' N. C.
COPPOLA PINETAMARE OF NAPLES, ITALY, TO PROVIDE 101 APARTMENTS AND
PARKING SPACES FOR U. S. GOVERNMENT PERSONNEL IN ITALY. THIS LEASE
PROVIDES THAT, UPON YEARLY RENEWAL, THE RENTAL CHARGES WILL BE ADJUSTED
ACCORDING TO THE INCREASE OR DECREASE OF THE COST OF LIVING INDEX AS
PUBLISHED BY THE INSTITUTO ITALIANO DI STATISTICA (ISTAT).
IN ACCORDANCE WITH THE MOST RECENT ISTAT OVERALL COST OF LIVING
INDEX, WHICH INDICATES A 12% INCREASE, THE NAVY HAS PREPARED A VOUCHER
FOR PAYMENT OF RENTAL CHARGES AMOUNTING TO A 12% INCREASE OVER THE
PREVIOUS RENT. NOTING THAT ISTAT ALSO PUBLISHED A COST OF LIVING INDEX
SPECIFICALLY RELATING TO THE RENTAL AND HOUSING SECTOR OF THE ITALIAN
ECONOMY WHICH INDICATED ONLY A 7.9% INCREASE, THE NAVY, FEARING A
POSSIBLE OVERPAYMENT SITUATION, IS WITHHOLDING PAYMENT OF THE 12%
INCREASE VOUCHER PENDING OUR DECISION AS TO WHICH COST OF LIVING INDEX
(OVERALL-12% OR SPECIFIC-7.9%) IS APPLICABLE HERE.
THE LEASE AGREEMENT'S RENTAL ADJUSTMENT LANGUAGE REFERS ONLY TO "THE
COST OF LIVING INDEX PUBLISHED BY *** ISTAT" WITH NO DESCRIPTION OF WHAT
SEGMENTS OF THE ITALIAN ECONOMY ARE TO BE INCLUDED IN THE MAKEUP OF THAT
INDEX.
IN OUR OPINION, NEITHER THE GENERAL INDEX NOR THE SPECIFIC INDEX IS
BEYOND THE SCOPE OF THE LEASE'S RENTAL ADJUSTMENT PROVISION. IN SUCH
CIRCUMSTANCES, THE PARTIES TO THE AGREEMENT ARE IN THE BEST POSITION TO
KNOW AND EXHIBIT WHAT APPLICATION THEY INTENDED. WHERE AN AGREEMENT
INVOLVES REPEATED OCCASIONS FOR PERFORMANCE BY EITHER PARTY WITH
KNOWLEDGE OF THE NATURE OF THE PERFORMANCE AND OPPORTUNITY FOR OBJECTION
TO IT BY THE OTHER, ANY COURSE OF PERFORMANCE ACCEPTED OR ACQUIESCED IN
WITHOUT OBJECTION IS GIVEN GREAT WEIGHT IN THE INTERPRETATION OF THE
TERMS OF THAT AGREEMENT. RESTATEMENT (SECOND) OF CONTRACTS, SEC. 228
(1973). THE COURT OF CLAIMS, FOR EXAMPLE, GIVES GREAT, IF NOT
CONTROLLING, WEIGHT TO THE INTERPRETATION PLACED UPON THE CONTRACT
PROVISIONS BY THE PARTIES THEMSELVES PRIOR TO THE TIME WHEN THE CONTRACT
BECOMES THE SUBJECT OF CONTROVERSY. DITTMORE-FREIMUTH CORPORATION V.
UNITED STATES, 182 CT. CL. 507, 530, 390 F. 2D 664, 679 (1968).
IN THIS REGARD, THE NAVY'S CORRESPONDENCE INDICATES THAT PREVIOUS
RENTAL ADJUSTMENTS DURING THE LIFE OF THE LEASE WERE MADE AT THE OVERALL
COST OF LIVING INDEX RATE. BECAUSE IT IS EVIDENT FROM ENCLOSURES TO THE
CORRESPONDENCE THAT ISTAT HAS BEEN ISSUING OVERALL AS WELL AS SPECIFIC
RENTAL AND HOUSING INDICES DURING THE ENTIRE LIFE OF THE LEASE, WE
BELIEVE THAT THE PARTIES' CHOICE OF THE OVERALL COST OF LIVING INDEX FOR
USE IN ALL PREVIOUS RENTAL ADJUSTMENTS IS THE BEST INDICATION OF THEIR
INTENT TO BE BOUND BY THAT INDEX WHEN THEY ENTERED INTO THE LEASE
AGREEMENT IN MAY 1975.
MOREOVER, NAVY HAS ADVISED US THAT DURING THE PERIOD OF LEASE
NEGOTIATIONS ONLY AN OVERALL COST OF LIVING INDEX WAS IN EXISTENCE, AND
THAT THE FIRST SPECIFIC RENTAL AND HOUSING INDEX (FOR MAY 1975) WAS NOT
RELEASED BY ISTAT UNTIL JUNE 1975, AFTER EXECUTION OF THE LEASE. NAVY
CONSIDERS IT UNLIKELY THAT THOSE WHO NEGOTIATED THE LEASE WERE AWARE OF
ISTAT'S PLANNED ISSUANCE OF SPECIFIC INDICES. WE VIEW THIS TO BE
FURTHER INDICATION OF THE PARTIES' INTENT TO BE BOUND BY THE OVERALL
INDEX.
THEREFORE, WE HAVE NO LEGAL OBJECTION TO THE PAYMENT OF THE VOUCHER,
IF OTHERWISE PROPER, BASED ON THE 12% INCREASE IN THE OVERALL COST OF
LIVING INDEX BECAUSE THE PARTIES TO THE LEASE APPEAR TO HAVE AGREED TO
BE BOUND BY THAT INDEX. HOWEVER, WE RECOMMEND THAT THE NAVY ATTEMPT TO
MODIFY THE LEASE AGREEMENT SO THAT FOR FUTURE EXTENSIONS, RENTAL
ADJUSTMENTS WILL BE BASED ON THE MORE RELEVANT SPECIFIC RENTAL AND
HOUSING COST OF LIVING INDEX PUBLISHED BY ISTAT.
THE NAVY'S SECOND QUESTION TO OUR OFFICE CONCERNS THE LEGALITY OF
MAKING ADVANCE PAYMENTS OF RENT UNDER THE TERMS OF THE LEASE.
31 U.S.C. SEC. 529 (1976) PROVIDES:
"NO ADVANCE OF PUBLIC MONEY SHALL BE MADE IN ANY CASE UNLESS
AUTHORIZED BY THE APPROPRIATION CONCERNED OR OTHER LAW. AND IN ALL
CASES OF CONTRACTS FOR THE PERFORMANCE OF ANY SERVICE, OR THE DELIVERY
OF ARTICLES OF ANY DESCRIPTION, FOR THE USE OF THE UNITED STATES,
PAYMENT SHALL NOT EXCEED THE VALUE OF THE SERVICE RENDERED, OR OF THE
ARTICLES DELIVERED PREVIOUSLY TO SUCH PAYMENT ***."
AN EXCEPTION TO THIS PROHIBITION IS PROVIDED IN 31 U.S.C. SEC. 529I
FOR RENT IN FOREIGN COUNTRIES, AS FOLLOWS:
"*** SECTION 529 OF THIS TITLE SHALL NOT APPLY IN THE CASE OF
PAYMENTS MADE FROM APPROPRIATIONS TO THE DEPARTMENT OF DEFENSE *** TO
PAYMENTS FOR RENT IN SUCH (FOREIGN) COUNTRIES FOR SUCH PERIODS AS MAY BE
NECESSARY TO ACCORD WITH LOCAL CUSTOM ***."
THE RECORD SUBMITTED BY THE NAVY CONTAINS NO BASIS FOR CONCLUDING
WHETHER THE RENTAL PAYMENT AGREED TO BY THE PARTIES IS IN ACCORD WITH
LOCAL CUSTOM. THEREFORE, UPON A DETERMINATION THAT THE PAYMENTS ARE IN
ACCORD WITH LOCAL CUSTOM, THE VOUCHERS MAY BE PAID.
B-192438, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
RICE UNIVERSITY MADE PAYMENT OF $12,000 TO FACULTY MEMBER FOR
CONSULTING FEES THAT HE LOST WHEN IT DETAILED HIM TO DEPARTMENT OF
ENERGY (DOE) UNDER INTERGOVERNMENTAL PERSONNEL ACT (IPA) OF 1970.
BEFORE DETAIL, EMPLOYEE WAS REGULARLY PAID CONSULTING FEES BY PRIVATE
CORPORATION ON 1 BUSINESS DAY OFF PER WEEK GRANTED BY UNIVERSITY FOR
SUCH PURPOSE. OFFICE OF PERSONNEL MANAGEMENT CONSIDERS SUCH FEES TO BE
PART OF EMPLOYEE'S ACCADEMIC PAY. THE UNIVERSITY'S PAYMENT TO THE
FACULTY MEMBER MAY BE REIMBURSED BY DOE UNDER 5 U.S.C. SEC. 3374(C).
GERALD C. PHILLIPS - INTERGOVERNMENTAL PERSONNEL ACT - CONSULTING
FEES:
THIS DECISION RESPONDS TO THE REQUEST OF ROBERT L. ZANETELL,
DIRECTOR, OFFICE OF FINANCE AND ACCOUNTING, DEPARTMENT OF ENERGY (DOE),
FOR AN ADVANCE DECISION AS TO WHETHER THE DOE MAY REIMBURSE WILLIAM
MARSH RICE UNIVERSITY, HOUSTON, TEXAS, AN AMOUNT OF $12,000 THAT IT PAID
TO ITS FACULTY MEMBER, DR. GERALD C. PHILLIPS. THIS AMOUNT REPRESENTS
CONSULTING FEES WHICH DR. PHILLIPS WOULD HAVE EARNED FROM A PRIVATE
COMPANY HAD HE NOT BEEN DETAILED FROM THE UNIVERSITY TO SERVE 1 YEAR
WITH DOE UNDER THE AUTHORITY OF THE INTERGOVERNMENTAL PERSONNEL ACT OF
1970, 5 U.S.C. SECS. 3371, ET SEQ.
THE ISSUE IS WHETHER DOE REIMBURSEMENT OF THE CONSULTING FEES IS
AUTHORIZED UNDER 5 U.S.C. SEC. 3374(C) OF THE ACT, WHICH PERMITS FEDERAL
EXECUTIVE AGENCIES TO REIMBURSE STATE OR LOCAL GOVERNMENTS FOR THE "PAY"
OF THEIR EMPLOYEES DETAILED TO THE AGENCIES.
DR. PHILLIPS WAS DETAILED TO SERVE 1 YEAR FROM APPROXIMATELY
SEPTEMBER 1, 1976, TO AUGUST 31, 1977. THE DOE AGREED TO REIMBURSE RICE
UNIVERSITY FOR 12 MONTHS OF DR. PHILLIPS' BASIC SALARY OF $44,000,
RELATED FRINGE BENEFITS OF $7,084 AS WELL AS THE UNIVERSITY'S PAYMENT
FOR THE CONSULTANT FEES GIVEN UP BY DR. PHILLIPS DURING THE DETAIL.
THE POLICY OF RICE UNIVERSITY, AS EXPRESSED IN A FORMAL MEMORANDUM,
IS TO PERMIT FACULTY MEMBERS 1 DAY EACH WEEK TO PERFORM CONSULTING AND
OTHER SERVICES TO OUTSIDE ORGANIZATIONS FOR REMUNERATION. THE
UNIVERSITY RECOGNIZES THAT SUCH ACTIVITIES ENRICH TEACHING AND RESEARCH,
THEREBY BENEFITING BOTH THE UNIVERSITY AND THE INDIVIDUAL FACULTY
MEMBER. THE UNIVERSITY'S COMPTROLLER OFFICE HAS INFORMALLY ADVISED US
THAT THE 1 DAY PER WEEK COVERS PERIODS DURING BUSINESS HOURS ORDINARILY
SPENT IN TEACHING, RESEARCH, AND OTHER ACTIVITIES. THE FREE DAY IS
TAKEN INTO ACCOUNT BY RICE UNIVERSITY IN ESTABLISHING TEACHING LOADS AND
OTHER FACULTY TIME AVAILABLE TO THE UNIVERSITY. THE EARNINGS DERIVED
FROM THE 1 DAY OF OUTSIDE ACTIVITY MAKE POSSIBLE A SUBSTANTIAL
SUPPLEMENT TO THE FACULTY MEMBERS' SALARIES. THE ADDITIONAL
COMPENSATION INDUCES PERSONS WITH HIGH QUALIFICATIONS TO BECOME FACULTY
MEMBERS AND REMAIN AT THE UNIVERSITY.
IN DR. PHILLIPS' CASE, THE ANNUAL FACULTY REPORTS SUBMITTED TO THE
UNIVERSITY FOR THE YEARS 1974, 1975, AND 1976 SHOW THAT HE HAD A
PROFESSIONAL RELATIONSHIP WITH COLUMBIA SCIENTIFIC INDUSTRIES, INC.,
INVOLVING APPROXIMATELY 50 DAYS EACH YEAR. BY LETTER OF JANUARY 30,
1978, THE PRESIDENT OF COLUMBIA SCIENTIFIC INDUSTRIES INFORMED DOE THAT
DR. PHILLIPS WAS A CO-FOUNDER OF THAT CORPORATION, A MAJOR SHAREHOLDER,
AND A MEMBER OF ITS BOARD OF DIRECTORS. THE LETTER SAID THAT DR.
PHILLIPS WAS ROUTINELY RECEIVING FROM THE CORPORATION COMPENSATION IN
EXCESS OF $1,000 PER MONTH BEFORE HE HAD ACCEPTED THE APPOINTMENT WITH
DOE. SUCH COMPENSATION TERMINATED WHEN HE ACCEPTED THE APPOINTMENT.
ALTHOUGH THE UNIVERSITY IS A PRIVATE ORGANIZATION, 5 U.S.C. SEC.
3372(B) STATES THAT 5 U.S.C. SECS. 3371-3376 APPLY TO EMPLOYEES OF
INSTITUTIONS OF HIGHER EDUCATION ASSIGNED TO FEDERAL EXECUTIVE AGENCIES.
CONSEQUENTLY, DR. PHILLIPS AND THE UNIVERSITY ARE REGARDED THE SAME AS
AN EMPLOYEE AND A STATE OR LOCAL GOVERNMENT EMPLOYER, RESPECTIVELY, FOR
THE PURPOSE OF A FEDERAL EXECUTIVE AGENCY'S REIMBURSEMENT OF PAY FOR A
DETAILED EMPLOYEE UNDER 5 U.S.C. SEC. 3374(C).
THE AUTHORITY TO PRESCRIBE REGULATIONS FOR ADMINISTRATION OF THE
INTERGOVERNMENTAL PERSONNEL ACT HAS BEEN DELEGATED TO THE OFFICE OF
PERSONNEL MANAGEMENT (OPM). 5 U.S.C. SEC. 3376 (1976) AND EXECUTIVE
ORDER NO. 11589, APRIL 1, 1971, AMENDED BY EXECUTIVE ORDER NO. 12107, 44
FEDERAL REGISTER 1055, JANUARY 3, 1979. IN RESPONSE TO OUR REQUEST FOR
ADVICE IN THIS MATTER, MR. NORMAN BECKMAN, ASSISTANT DIRECTOR FOR
INTERGOVERNMENTAL PROGRAMS, OPM, STATED IN A LETTER DATED APRIL 20,
1979, IN PERTINENT PART:
"*** AS IN THE CASE OF MR. PHILLIPS, WE HAVE ADVISED FEDERAL AGENCIES
INTERESTED IN IPA ASSIGNMENTS WITH UNIVERSITIES THAT WHEN THE REGULAR
TOUR OF DUTY FOR A UNIVERSITY EMPLOYEE INCLUDES AN ALLOTMENT OF TIME FOR
CONSULTING, OR WHEN THE EMPLOYEE IS PERFORMING ANY JOB-RELATED
CONSULTING THAT CANNOT BE CONTINUED DURING THE ASSIGNMENT, THE MONIES
RECEIVED FROM THE CONSULTING MAY BE REGARDED AS PART OF THE EMPLOYEE'S
ACADEMIC PAY. ***"
MR. BECKMAN CONCLUDED AS FOLLOWS:
"THE IPA MOBILITY PROGRAM PROVISIONS ON THIS ISSUE ARE CONSISTENT
WITH THE OVERALL PAY SETTING POLICIES OF THE OFFICE OF PERSONNEL
MANAGEMENT. THEY WOULD ALLOW THE $12,000 PAID TO DR. PHILLIPS BY THE
UNIVERSITY TO BE INCLUDED IN HIS UNIVERSITY PAY FOR THE PURPOSE OF
REIMBURSEMENT BY DOE."
WE CONCUR WITH THE VIEWS OF OPM, AS EXPRESSED IN MR. BECKMAN'S
LETTER. ACCORDINGLY, THE AMOUNT PAID TO DR. PHILLIPS BY RICE UNIVERSITY
FOR LOST CONSULTANT FEES MAY BE REIMBURSED UNDER ITS AGREEMENT WITH DOE.
B-193614, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. AWARDEE CONTENDS THAT PROTEST IS UNTIMELY BECAUSE IT WAS NOT
FILED WITHIN 10 WORKING DAYS OF DATE THAT PURCHASE ORDER WAS ISSUED.
WHERE ISSUANCE OF PURCHASE ORDER DOES NOT IN ITSELF ESTABLISH BASIS OF
PROTEST AND WHERE RECORD DOES NOT DISCLOSE WHEN PROTESTER FIRST LEARNED
OF BASIS OF PROTEST, DOUBT IS RESOLVED IN PROTESTER'S FAVOR AND GAO
CONSIDERS PROTEST TO BE TIMELY FILED.
2. WHERE AGENCY ISSUES PURCHASE ORDER WHICH CONTEMPLATES PROCURING
DICTATING AND TRANSCRIBING SYSTEM AND NOT MERELY COLLECTION OF
COMPONENTS AND WHERE MORE THAN 50 PERCENT OF SYSTEM'S COST WAS
ATTRIBUTABLE TO AMERICAN-MADE COMPONENTS, BUY AMERICAN ACT DIFFERENTIALS
DO NOT APPLY.
3. WHERE PROCURING ACTIVITY IS SELECTING LOW-PRICED DICTATING AND
TRANSCRIBING "SYSTEM" FROM ACCEPTABLE FEDERAL SUPPLY SCHEDULE
CONTRACTORS, PRICE COMPARISON MUST BE BASED ON FUNCTIONALLY COMPARABLE
COMPONENTS OF SYSTEMS. THEREFORE, SELECTION BASED ON COMPARISON OF ONE
VENDOR'S SYSTEM UTILIZING EXISTING TELEPHONES AND ANOTHER VENDOR'S
SYSTEM UTILIZING ATTENDANT PHONES WAS IMPROPER WHERE RECORD REFLECTS
THAT BOTH SYSTEMS COULD HAVE BEEN COMPARABLY CONFIGURED, RESULTING IN
PROTESTER'S SYSTEM BEING LOWER PRICED THAN AWARDEE'S.
DICTAPHONE CORPORATION:
DICTAPHONE CORPORATION PROTESTS THE ISSUANCE OF A PURCHASE ORDER
UNDER GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT NO. GS-005-66750
WITH LANIER BUSINESS PRODUCTS, INC. (LANIER), BY THE NAVAL WEAPONS
SUPPORT CENTER, CRANE, INDIANA, FOR THE RENTAL OF A CENTRAL DICTATION
AND TRANSCRIBING SYSTEM. THE PURCHASE ORDER, ISSUED SEPTEMBER 27, 1978,
WAS IN THE MONTHLY RENTAL AMOUNT OF $1,292.80 FOR A 6-MONTH PERIOD
BEGINNING FEBRUARY 2, 1979, THUS TOTALLING $7,756.80.
SINCE THE REQUIRED SYSTEM WAS AVAILABLE ON GSA FEDERAL SUPPLY
SCHEDULE CONTRACTS WITH THREE VENDORS, THE NAVY DETERMINED, RELYING ON
DAR SEC. 5-103 (1976 ED.), THAT THE PROPER METHOD OF ACQUISITION WAS TO
INFORMALLY CONTACT THE THREE VENDORS AND REQUEST WRITTEN PROPOSALS FROM
THE THREE VENDORS, SELECT A SUPPLIER OF ACCEPTABLE EQUIPMENT AT THE LOW
PRICE, AND PLACE AN ORDER UNDER THE SUPPLIER'S GSA CONTRACT. THE NAVY
FOLLOWED ITS PROCUREMENT PLAN RESULTING IN THE AWARD TO LANIER.
DICTAPHONE CONTENDS THAT: (1) IT WAS NOT TREATED FAIRLY BECAUSE IT
WAS PERMITTED TO "OVERQUOTE" BY INCLUDING SIX ATTENDANT PHONES, SIX
MACHINE CABINETS, AND ELECTRONIC VOICE-OPERATED RELAYS IN ITS PROPOSAL,
WHICH WERE NOT REQUIRED BY THE NAVY; (2) ITS WRITTEN PROPOSAL WAS
MISEVALUATED BY THE NAVY BECAUSE (A) THE NAVY DID NOT CREDIT DICTAPHONE
WITH AN 11-PERCENT DISCOUNT AND INSTEAD ERRONEOUSLY USED A 6-PERCENT
DISCOUNT AND (B) THE NAVY DID NOT SUBTRACT FROM THE RENTAL QUOTE THE
AMOUNT ATTRIBUTED TO THE "OVERQUOTED" EQUIPMENT; AND (3) THE NAVY
SHOULD HAVE APPLIED THE BUY AMERICAN ACT IN EVALUATING LANIER'S PROPOSAL
BECAUSE LANIER'S PORTABLE CASSETTE MACHINES AND TRANSCRIBING UNITS ARE
NOT AMERICAN MADE.
IN RESPONSE, THE NAVY REPORTS THAT (1) DICTAPHONE'S SYSTEM MUST
INCLUDE THE SIX ATTENDANT PHONES IN ORDER TO MEET THE NAVY'S NEEDS, BUT
THE LANIER SYSTEM DOES NOT REQUIRE ATTENDANT PHONES; THUS, DICTAPHONE
IS NOT ENTITLED TO AN ADJUSTMENT FOR THIS ITEM; (2) DICTAPHONE'S
VOICE-OPERATED RELAY IS A STANDARD FEATURE OF ITS EQUIPMENT, BUT IS IN
EXCESS OF THE NAVY'S NEEDS; THUS, THE RENTAL PRICE OF THE EQUIVALENT
LANIER OPTIONAL FEATURE NEED NOT BE ADDED TO LANIER'S PROPOSAL FOR A
VALID COMPARISON OF PRICES; AND (3) THE NAVY DID NOT CREDIT DICTAPHONE
WITH THE 11-PERCENT DISCOUNT THAT IT SHOULD HAVE RECEIVED AND THE NAVY
SHOULD HAVE EXCLUDED THE SIX MACHINE CABINETS PROPOSED BY DICTAPHONE,
THUS REDUCING DICTAPHONE'S SYSTEM MONTHLY RENTAL TO $1,324.02, OR $31.22
PER MONTH HIGHER THAN LANIER'S PRICE. CITING OUR DECISION IN THE MATTER
OF DICTAPHONE CORPORATION, B-191383, MAY 8, 1978, 78-1 CPD 343, THE NAVY
ARGUES THAT THE BUY AMERICAN ACT IS NOT APPLICABLE TO LANIER'S SYSTEM
BECAUSE 59.8 PERCENT OF THE COST OF THE SYSTEM'S COMPONENTS WAS
MANUFACTURED IN AMERICA. IN SUM, THE NAVY CONCLUDES THAT THE AWARD WAS
PROPERLY MADE TO THE ACCEPTABLE, LOW-PRICED VENDOR, LANIER.
IN REPLY, DICTAPHONE STATES IT IS INCONCEIVABLE THAT ANYONE WOULD
THINK THAT A DICTAPHONE SYSTEM WOULD NEED ATTENDANT PHONES WHEN A LANIER
SYSTEM DOES NOT; BOTH SYSTEMS DO THE SAME THING AND NEITHER REQUIRES
ATTENDANT PHONES FROM THE VENDOR OR FROM THE TELEPHONE COMPANY. THUS,
DICTAPHONE CONCLUDES THAT ITS PRICE SHOULD BE REDUCED BY THE CHARGE FOR
ATTENDANT PHONES IN THE AMOUNT OF $59.16 PER MONTH FOR A TOTAL MONTHLY
RENTAL PRICE OF $1,264.86 OR $27.94 LOWER THAN LANIER'S PRICE.
LANIER ARGUES THAT DICTAPHONE'S PROTEST IS UNTIMELY BECAUSE ITS
PROTEST WAS NOT FILED WITHIN 10 WORKING DAYS OF THE DATE THE PURCHASE
ORDER WAS ISSUED.
A. TIMELINESS
OUR BID PROTEST PROCEDURES PROVIDE THAT PROTESTS SHALL BE FILED NOT
LATER THAN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR
SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 20.2(B)(2)
(1978). CONTRARY TO LANIER'S ARGUMENT, THE ISSUANCE OF A PURCHASE ORDER
TO A FIRM OTHER THAN THE PROTESTER DOES NOT IN ITSELF ESTABLISH THAT THE
PROTESTER (1) HAS A BASIS OF PROTEST, (2) KNEW OR SHOULD HAVE KNOWN OF A
POSSIBLE BASIS OF PROTEST, OR (3) EVEN KNEW THAT THE PURCHASE ORDER WAS
ISSUED. THE RECORD DOES NOT DISCLOSE WHEN DICTAPHONE LEARNED THAT THE
PURCHASE ORDER WAS ISSUED, BUT THE RECORD INDICATES THAT DICTAPHONE DID
NOT RECEIVE A COPY OF THE PURCHASE ORDER UNTIL AFTER IT FILED THE
PROTEST. WHERE DOUBT EXISTS AS TO WHEN A PROTESTER KNEW OR SHOULD HAVE
KNOWN OF THE BASIS FOR PROTEST, THAT DOUBT IS RESOLVED IN FAVOR OF THE
PROTESTER. MEMOREX CORPORATION, 57 COMP. GEN. 865 (1978), 78-2 CPD 236.
ACCORDINGLY, THE DICTAPHONE PROTEST IS CONSIDERED TO HAVE BEEN FILED IN
A TIMELY MANNER.
B. BUY AMERICAN ACT'S APPLICABILITY
OUR FIRST CONCERN MUST BE THE APPLICABILITY OF THE BUY AMERICAN ACT.
UNDER EXECUTIVE ORDER 10582, ARTICLES, MATERIALS AND SUPPLIES SHALL BE
CONSIDERED TO BE OF FOREIGN ORIGIN IF THE COST OF FOREIGN PRODUCTS USED
IN THEM CONSTITUTES 50 PERCENT OR MORE OF THE COST OF ALL COMPONENT
PRODUCTS USED IN THEM. UNDER THIS ORDER, A BUY AMERICAN ACT
DIFFERENTIAL MUST BE APPLIED IF THE "END PRODUCT" TO BE FURNISHED IS NOT
MANUFACTURED IN THE UNITED STATES OR IS MANUFACTURED IN THE UNITED
STATES AND CONTAINS FOREIGN COMPONENTS WHICH MAKE UP 50 PERCENT OR MORE
OF THE TOTAL COMPONENT COST. SEE BLODGETT KEYPUNCHING COMPANY, 56 COMP.
GEN. 18 (1976), 76-2 CPD 331.
IN DICTAPHONE CORPORATION, SUPRA, CITED BY THE NAVY, THE AIR FORCE
PURCHASED A CENTRAL DICTATION SYSTEM FROM LANIER AND DICTAPHONE
PROTESTED CONTENDING THAT THE BUY AMERICAN ACT WAS APPLICABLE BUT NOT
CONSIDERED BY THE AIR FORCE IN SELECTING LANIER. WE HELD THAT SINCE THE
AIR FORCE PURCHASED A "SYSTEM" RATHER THAN A COLLECTION OF COMPONENTS
AND THAT SINCE THE COST OF THE AMERICAN-MADE COMPONENTS WAS GREATER THAN
50 PERCENT OF THE TOTAL COST, BUY AMERICAN ACT DIFFERENTIALS WERE NOT
APPLICABLE TO LANIER'S OFFER.
WE BELIEVE THAT THE DICTAPHONE DECISION IS CONTROLLING HERE BECAUSE
THE NAVY WAS PROCURING A SYSTEM, NOT A COLLECTION OF COMPONENTS, AND
MORE THAN 50 PERCENT OF THE COST OF THE SYSTEM WAS ATTRIBUTABLE TO
AMERICAN MADE COMPONENTS.
C. EVALUATION OF DICTAPHONE'S PROPOSAL
IN VIEW OF THE NAVY'S DESIRE TO PURCHASE THE ACCEPTABLE, LOW-PRICED
SYSTEM, AND SINCE THE NAVY RECOGNIZES THAT THE 11-PERCENT DISCOUNT WAS
APPLICABLE TO DICTAPHONE'S PROPOSAL AND THAT THE MACHINE CABINETS SHOULD
HAVE BEEN EXCLUDED FROM THE EVALUATION OF DICTAPHONE'S PROPOSAL, THE
REMAINING POINT OF DISPUTE IS THE NECESSITY TO INCLUDE ATTENDANT PHONES
IN THE EVALUATION OF DICTAPHONE'S PROPOSAL BUT NOT LANIER'S. IF THE
MONTHLY RENTAL OF DICTAPHONE'S PROPOSED SYSTEM COULD BE REDUCED BY THE
AMOUNT ATTRIBUTED TO THE RENTAL OF ATTENDANT PHONES, $59.16,
DICTAPHONE'S PROPOSED SYSTEM WOULD HAVE BEEN LOWER PRICED THAN LANIER'S.
UNDER THE NAVY'S PROCUREMENT PLAN, DICTAPHONE WOULD HAVE BEEN THE
SELECTED SUPPLIER IF IT WOULD HAVE REMAINED LOW AFTER ANY ADDITIONAL
CHARGE FOR OTHER DICTAPHONE DEVICES (LIKE LANIER'S TELEPHONE COUPLER,
SEE INFRA) THAT MAY BE NECESSARY WHERE NO ATTENDANT PHONES ARE UTILIZED.
WHILE THE NAVY EVALUATED LANIER'S PROPOSAL WITHOUT THE ATTENDANT
PHONES, THE NAVY CONCLUDED THAT "WITHOUT THE SIX ATTENDANT PHONES,
DICTAPHONE'S SYSTEM WOULD NOT MEET THE GOVERNMENT'S MINIMUM NEEDS." THE
RATIONALE FOR THAT CONCLUSION WAS NOT PROVIDED BY THE NAVY. DICTAPHONE
ARGUES THAT THE NAVY'S CONCLUSION IS "INCONCEIVABLE" BECAUSE BOTH
SYSTEMS DO THE SAME THING AND SHOULD HAVE BEEN EVALUATED ON THE SAME
BASIS. DICTAPHONE STATES THAT ITS SYSTEM DOES NOT REQUIRE AN ATTENDANT
PHONE. LANIER DID NOT ELECT TO COMMENT ON THIS POINT.
WE HAVE EXAMINED BOTH VENDORS' LITERATURE WHICH WAS SUBMITTED TO THE
NAVY AND WHICH FORMED THE BASIS FOR THE NAVY'S EVALUATION. IT APPEARS
THAT THE NAVY SELECTED SEVERAL LANIER COMPONENTS TO SATISFY ITS NEEDS;
ONE COMPONENT WAS A TELEPHONE COUPLER INTERFACE, FROM WHICH WE CONCLUDE
THAT LANIER PROPOSED TO UTILIZE THE EXISTING TELEPHONE SYSTEM. ON THE
OTHER HAND, THE NAVY SELECTED NONCOMPARABLE DICTAPHONE COMPONENTS
(ATTENDANT PHONES) WHEN IT COULD HAVE SELECTED A SYSTEM COMPARABLE TO
LANIER'S USING THE EXISTING PHONE SYSTEM. THUS, ABSENT ANY RATIONALE
FOR TE NAVY'S CONCLUSION - THAT WITHOUT ATTENDANT PHONES, DICTAPHONE'S
SYSTEM WOULD NOT SATISFY THE GOVERNMENT'S NEEDS - WE MUST CONCLUDE THAT
DICTAPHONE'S SYSTEM WAS NOT EVALUATED ON THE SAME BASIS THAT LANIER'S
WAS AND THIS CONSTITUTES THE BREACH OF A FUNDAMENTAL PRINCIPLE THAT
COMPETITORS MUST BE TREATED EQUALLY. SERV-AIR, INC., 57 COMP. GEN. 827
(1978), 78-2 CPD 223.
D. CONCLUSION AND RECOMMENDATION
PROTEST SUSTAINED. HOWEVER, IN VIEW OF THE DELIVERY TIME AND THE
6-MONTH TERM OF THE RENTAL, WE RECOGNIZE THAT NO CORRECTIVE ACTION IS
POSSIBLE AT THIS TIME UNDER THE EXISTING CONTRACT. THEREFORE, BY LETTER
OF TODAY TO THE SECRETARY OF THE NAVY, WE ARE RECOMMENDING THAT THE NAVY
REEVALUATE DICTAPHONE'S SYSTEM ON A BASIS COMPARABLE TO LANIER'S BEFORE
THE NAVY TAKES ANY FURTHER PROCUREMENT ACTION REGARDING THIS DICTATION
SYSTEM.
B-193834, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. GRADE NM-09 CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN
THE PANAMA CANAL ZONE, WHO BETWEEN NOVEMBER 1976 AND NOVEMBER 1977 WAS
ASSIGNED ADDITIONAL DUTIES WHICH WERE NOT CONTAINED IN HIS POSITION
DESCRIPTION AND WHICH INVOLVED THE SUPERVISION OF ANOTHER GRADE NM-09
EMPLOYEE, IS NOT ENTITLED TO A RETROACTIVE PROMOTION WITH BACKPAY BASED
ON THE ADDITIONAL SUPERVISORY DUTIES PERFORMED, SINCE A FEDERAL EMPLOYEE
IS ENTITLED ONLY TO THE SALARY OF THE POSITION TO WHICH HE IS ACTUALLY
APPOINTED REGARDLESS OF THE DUTIES PERFORMED. UNITED STATES V. TESTAN,
424 U.S. 392 (1976).
2. AN EMPLOYEE "DETAILED" OR ASSIGNED TO PERFORM ADDITIONAL
SUPERVISORY DUTIES DID NOT THEREBY BECOME ENTITLED TO A RETROACTIVE
PROMOTION WITH BACKPAY UNDER THE PRINCIPLES SET FORTH IN MATTER OF
TURNER-CALDWELL, 55 COMP. GEN. 539 (1975), AND MATTER OF RECONSIDERATION
OF TURNER-CALDWELL, 56 COMP. 427 (1977), WHICH CONCERN THE PROMOTION OF
FEDERAL EMPLOYEES DETAILED TO HIGHER GRADE POSITIONS, SINCE IT WAS NOT
SHOWN THAT THE EMPLOYEE WAS ACTUALLY ON AN OFFICIAL DETAIL TO AN
EXISTING, ESTABLISHED, CLASSIFIED, HIGHER GRADE FEDERAL POSITION.
3. NO ACTION WILL BE TAKEN BY THE GENERAL ACCOUNTING OFFICE ON THE
CLAIM OF AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY THAT HE WAS DENIED A
PROMOTION AS THE RESULT OF ILLEGAL RACIALLY DISCRIMINATORY EMPLOYMENT
PRACTICES, SINCE IT IS NOT WITHIN THE JURISDICTION OF THIS OFFICE TO
CONDUCT INVESTIGATIONS INTO OR RENDER DECISIONS ON CLAIMS OF
DISCRIMINATION IN EMPLOYMENT IN OTHER AGENCIES OF THE GOVERNMENT. 42
U.S.C. 2000E-16 (1976).
CLEM H. GIFFORD - CLAIM FOR RETROACTIVE PROMOTION AND BACKPAY:
THIS ACTION CONCERNING MR. CLEM H. GIFFORD, 2082 OAK PARK LANE,
DECATUR, GEORGIA 30032, RECONSIDERS SETTLEMENT CERTIFICATE Z-2789692
DATED NOVEMBER 18, 1978, ISSUED BY OUR CLAIMS DIVISION, DISALLOWING HIS
CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION AND BACKPAY FOR THE PERIOD
MARCH 16, 1977, TO NOVEMBER 30, 1977, INCIDENT TO HIS EMPLOYMENT WITH
THE DEPARTMENT OF THE ARMY IN THE PANAMA CANAL ZONE.
BETWEEN NOVEMBER 1976 AND NOVEMBER 1977, MR. GIFFORD HELD THE
POSITION OF ADMINISTRATIVE OFFICER, NM-341-09, IN THE ADMINISTRATIVE AND
MANAGEMENT BRANCH, G4 MAINTENANCE DIVISION, 193D INFANTRY BRIGADE,
COROZAL, CANAL ZONE. THE "NM" GRADE DESIGNATION REFLECTS CLASSIFICATION
IN THE NON-MANUAL CATEGORY OF FEDERAL EMPLOYEES IN THE CANAL ZONE, AND
IT CORRESPONDS TO A GRADE GS-09 POSITION UNDER THE GENERAL SCHEDULE. 35
C.F.R., CHAPTER 1, SUBCH. E (1977).
ON NOVEMBER 15, 1976, MR. GIFFORD WAS ASSIGNED THE RESPONSIBILITY OF
SUPERVISING AN EMPLOYEE WHO HELD THE POSITION OF MANAGEMENT ANALYST,
NM-343-09, IN THE SAME LOCAL ORGANIZATION. HE CONTINUED TO EXERCISE
SUCH SUPERVISORY DUTIES UNTIL NOVEMBER 30, 1977, WHEN HE WAS REASSIGNED
TO THE DIRECTORATE OF INDUSTRIAL OPERATIONS, FORT MCPHERSON, GEORGIA, IN
THE POSITION OF PROGRAM ANALYST, GS-345-09.
MR. GIFFORD CONTENDED THAT BECAUSE HE WAS GIVEN THE RESPONSIBILITY OF
SUPERVISING AN EMPLOYEE WITH A GRADE NM-09 CLASSIFICATION, HIS OWN
POSITION CLASSIFICATION SHOULD HAVE BEEN UPGRADED FROM GRADE NM-09 TO
GRADE NM-11. HE STATES THAT AS EARLY AS NOVEMBER 19, 1976, HE INITIATED
INQUIRIES ABOUT THE POSSIBILITY OF HIS PROMOTION. A STANDARD FORM 52,
"REQUEST FOR PERSONNEL ACTION," WAS SUBMITTED TO THE LOCAL CIVILIAN
PERSONNEL OFFICE ON JANUARY 11, 1977, CONTAINING A WRITTEN REQUEST THAT
HIS POSITION DESCRIPTION AND GRADE CLASSIFICATION BE UPGRADED TO THE
NM-11 LEVEL. HOWEVER, A GRADE NM-11 ADMINISTRATIVE OFFICER POSITION WAS
NOT ESTABLISHED PURSUANT TO THE REQUEST. ARMY AUTHORITIES REPORT THAT
THIS WAS PRIMARILY DUE TO A DETERMINATION MADE IN JUNE 1977 THAT THE
MANAGEMENT ANALYST POSITION UNDER MR. GIFFORD'S SUPERVISION SHOULD BE
TRANSFERRED FROM THE LOCAL G4 MAINTENANCE DIVISION TO THE DIRECTORATE OF
INDUSTRIAL OPERATIONS. MR. GIFFORD WAS SUBSEQUENTLY ADVISED THAT THE
MANAGEMENT ANALYSIS FUNCTIONS WERE BEING TRANSFERRED TO THE DIRECTORATE
LEVEL, AND THAT WHILE HIS POSITION WOULD THEREFORE NOT BE UPGRADED, AN
ENTRY WAS BEING MADE IN HIS PERSONNEL RECORDS TO SHOW HIS "DETAIL" TO
PERFORM "ADDITIONAL DUTIES" INVOLVING THE SUPERVISION OF A MANAGEMENT
ANALYST, NM-343-09, FROM NOVEMBER 15, 1976, TO NOVEMBER 30, 1977.
BY LETTER DATED JANUARY 12, 1978, MR. GIFFORD SUBMITTED A CLAIM TO
THE CLAIMS DIVISION OF THIS OFFICE FOR A RETROACTIVE TEMPORARY PROMOTION
TO GRADE NM-11, WITH BACKPAY, FOR THE PERIOD MARCH 16, 1977, TO NOVEMBER
30, 1977. HE SUGGESTED THAT HE WAS ENTITLED TO A PROMOTION EFFECTIVE
THE 121ST DAY OF HIS "DETAIL" UNDER COMPTROLLER GENERAL DECISIONS
RENDERED IN MATTER OF TURNER-CALDWELL, 55 COMP. GEN. 539 (1975), AND
MATTER OF RECONSIDERATION OF TURNER-CALDWELL, 56 COMP. GEN. 427 (1977).
UPON THE RECEIPT OF MR. GIFFORD'S CLAIM, OUR CLAIMS DIVISION
REQUESTED THE DEPARTMENT OF THE ARMY TO FURNISH AN ADMINISTRATIVE REPORT
IN THE MATTER. ON OCTOBER 19, 1978, THE ARMY FINANCE AND ACCOUNTING
CENTER SUBMITTED A REPORT OF FINDINGS AND RECOMMENDATIONS. IN THE
REPORT IT WAS NOTED THAT WHILE MR. GIFFORD HAD PERFORMED SUPERVISORY
DUTIES NOT INCLUDED IN HIS OFFICIAL POSITION DESCRIPTION, A HIGHER
GRADED NM-11 ADMINISTRATIVE OFFICER POSITION WAS NOT ESTABLISHED DURING
HIS TENURE IN THE G4 MAINTENANCE DIVISION. IT WAS THEREFORE RECOMMENDED
THAT THE CLAIM BE DENIED. AS PREVIOUSLY INDICATED, OUR CLAIMS DIVISION
DISALLOWED MR. GIFFORD'S CLAIM IN ITS NOVEMBER 18, 1978 SETTLEMENT,
ESSENTIALLY FOR THE REASON THAT HE HAD NOT ACTUALLY BEEN DETAILED TO A
POSITION CLASSIFIED AT A HIGHER GRADE.
MR. GIFFORD HAS QUESTIONED THE CORRECTNESS OF THE ADMINISTRATIVE
REPORT. IN SUBSTANCE, HE SUGGESTS THAT HE WAS, IN FACT, DETAILED TO A
HIGHER GRADE POSITION, AS EVIDENCED BY THE ENTRY IN HIS PERSONNEL
RECORDS SHOWING HIS "DETAIL" TO PERFORM ADDITIONAL SUPERVISORY DUTIES.
HE ALSO GENERALLY CONTENDS THAT BETWEEN NOVEMBER 1976 AND NOVEMBER 1977
HE WAS MISCLASSIFIED AND IMPROPERLY DENIED PAY AS THE RESULT OF
INORDINATE DELAYS IN THE PROCESSING OF HIS REQUEST FOR RECLASSIFICATION.
IN THAT CONNECTION, HE ASSERTS THAT HE SHOULD NOT HAVE BEEN ASSIGNED IN
GRADE NM-09 TO SUPERVISE ANOTHER GRADE NM-09 EMPLOYEE; THAT IN THE
DIRECTORATE OF INDUSTRIAL OPERATIONS, GRADE GS-09 EMPLOYEES HAVE GRADE
GS-11 SUPERVISORS; AND THAT ARMY AUTHORITIES IMPROPERLY DELAYED ACTION
ON HIS REQUEST FOR PROMOTION TO GRADE NM-11. HE CLAIMS RELIEF UNDER
REGULATIONS CONTAINED IN FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2,
WHICH IMPLEMENT THE BACK PAY ACT, 5 U.S.C. 5596 (1976). HE FURTHER
SUGGESTS THAT HIS NONPROMOTION WAS THE RESULT OF RACIAL DISCRIMINATION.
IN THAT REGARD, HE ASSERTS THAT CAUCASIAN ADMINISTRATIVE OFFICERS IN THE
DIRECTORATE OF INDUSTRIAL OPERATIONS WERE CLASSIFIED AT THE GRADE GS-11
LEVEL, AND THAT THE DENIAL OF HIS PROMOTION TO GRADE NM-11 WAS IN
RETALIATION FOR HIS FILING A DISCRIMINATION COMPLAINT IN 1975. HE ALSO
SUGGESTS GENERALLY THAT HE SHOULD BE GRANTED RELIEF IN ACCORDANCE WITH
THE PRINCIPLES ENUNCIATED IN ALBERMARLE PAPER CO. V. MOODY, 422 U.S.
407 (1975), A CASE DECIDED BY THE UNITED STATES SUPREME COURT INVOLVING
DISCRIMINATION IN EMPLOYMENT.
THERE ARE INNUMERABLE INSTANCES IN THE GOVERNMENT SERVICE WHERE
EMPLOYEES OF A LOWER CLASSIFICATION PERFORM DUTIES OF A HIGHER
CLASSIFICATION, BUT AS A GENERAL RULE AN EMPLOYEE IS ENTITLED ONLY TO
THE SALARY OF THE POSITION TO WHICH HE IS ACTUALLY APPOINTED, REGARDLESS
OF THE DUTIES HE PERFORMS. WHEN AN EMPLOYEE PERFORMS DUTIES NORMALLY
RESERVED TO EMPLOYEES IN A GRADE LEVEL HIGHER THAN THE ONE HE HOLDS, HE
IS NOT ENTITLED TO THE SALARY OF THE HIGHER GRADE LEVEL UNTIL SUCH TIME
AS HE IS PROMOTED TO THAT GRADE. DIANISH V. UNITED STATES, 183 CT. CL.
702 (1968); MATTER OF MARION MCCALEB, 55 COMP. GEN. 515 (1975).
FURTHERMORE, THE BACK PAY ACT, 5 U.S.C. 5596, AND THE IMPLEMENTING
REGULATIONS CITED BY MR. GIFFORD, DO NOT AUTHORIZE A RETROACTIVE
PROMOTION WITH BACKPAY FOR THE PERIOD OF AN ALLEGED IMPROPER
CLASSIFICATION. UNITED STATES V. TESTAN, 424 U.S.C. 392 (1976). ALSO,
RETROACTIVE PROMOTIONS MAY NOT BE AWARDED SOLELY ON THE BASIS OF
ADMINISTRATIVE DELAYS IN THE PROCESSING OF PERSONNEL ACTIONS. MATTER OF
CANAL ZONE EMPLOYEES, 39 COMP. GEN. 583 (1960); MATTER OF ADRIENNE
AHEARN ET AL., B-186649, JANUARY 3, 1977. HENCE, MR. GIFFORD MAY NOT
GAIN ENTITLEMENT TO A RETROACTIVE PROMOTION ON THE BASIS OF ANY CLAIMS
THAT HE WAS MISCLASSIFIED; OR PERFORMED DUTIES NORMALLY RESERVED TO
EMPLOYEES IN A HIGHER GRADE CLASSIFICATION; OR EXPERIENCED
ADMINISTRATIVE DELAYS IN THE PROCESSING OF A REQUEST FOR
RECLASSIFICATION.
WITH RESPECT TO MR. GIFFORD'S CLAIM THAT HE IS ENTITLED TO A
RETROACTIVE PROMOTION ON THE BASIS OF A "DETAIL" TO PERFORM ADDITIONAL
SUPERVISORY DUTIES, THIS OFFICE HAS RECOGNIZED THAT IN CERTAIN
CIRCUMSTANCES AN EMPLOYEE MAY BE ENTITLED TO A RETROACTIVE PROMOTION IF
HE IS OFFICIALLY DETAILED TO AN EXISTING, CLASSIFIED, HIGHER GRADED
POSITION FOR AN EXTENDED PERIOD. A DETAIL IS THE TEMPORARY ASSIGNMENT
OF AN EMPLOYEE TO A DIFFERENT POSITION WITHIN THE SAME AGENCY FOR A
BRIEF, SPECIFIED PERIOD, WITH THE EMPLOYEE RETURNING TO HIS REGULAR
DUTIES AT THE END OF THE DETAIL. FEDERAL PERSONNEL MANUAL, CHAPTER 300,
SUBCH. 8. IN THE COMPTROLLER GENERAL DECISIONS REFERRED TO BY MR.
GIFFORD, MATTER OF TURNER-CALDWELL, 55 COMP. GEN. 539, SUPRA, AND MATTER
OF RECONSIDERATION OF TURNER-CALDWELL, 56 COMP. GEN. 427, SUPRA, IT WAS
HELD THAT EMPLOYEES OFFICIALLY DETAILED TO ESTABLISHED HIGHER LEVEL
POSITIONS FOR MORE THAN 120 DAYS WITHOUT PROPER SANCTION ARE ENTITLED TO
RETROACTIVE TEMPORARY PROMOTIONS WITH BACKPAY BEGINNING WITH THE 121ST
DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED.
IN THE PRESENT CASE, IT IS INDICATED THAT NO ESTABLISHED, CLASSIFIED
NM-11 ADMINISTRATIVE OFFICER POSITION EXISTED IN THE G-4 ADMINISTRATIVE
DIVISION BETWEEN NOVEMBER 1976 AND NOVEMBER 1977. IT IS THEREFORE ALSO
OUR VIEW THAT MR. GIFFORD IS NOT ENTITLED TO A RETROACTIVE PROMOTION ON
THE BASIS OF THE "DETAIL" SHOWN IN HIS PERSONNEL RECORDS. SEE MATTER OF
RETROACTIVE PROMOTIONS, 57 COMP. GEN. 767 (1978); MATTER OF DONALD P.
KONRADY, B-193555, JANUARY 26, 1979.
FINALLY, WITH RESPECT TO MR. GIFFORD'S CLAIM OF RACIAL
DISCRIMINATION, IT IS TO BE NOTED THAT TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, AS AMENDED, 42 U.S.C. 2000E-16 (1976), GOVERNS THE CLAIMS OF
CIVILIAN EMPLOYEES OF THE UNITED STATES WHO BELIEVE THEY ARE THE VICTIMS
OF ILLEGAL DISCRIMINATORY EMPLOYMENT PRACTICES. SEE BROWN V. GENERAL
SERVICES ADMINISTRATION, 425 U.S. 820 (1976). IT IS NOT WITHIN THE
JURISDICTION OF THIS OFFICE TO CONDUCT INVESTIGATIONS INTO OR RENDER
DECISIONS ON CLAIMS OF DISCRIMINATION IN EMPLOYMENT IN OTHER AGENCIES OF
THE GOVERNMENT UNDER THAT PROVISION OF LAW. HENCE, WE ARE NOT EMPOWERED
TO RENDER ANY DECISION ON MR. GIFFORD'S CLAIM OF RACIAL DISCRIMINATION,
OR TO CONSIDER HIS CONTENTION THAT HE IS ENTITLED TO RELIEF IN
ACCORDANCE WITH ALBERMARLE PAPER CO. V. MOODY, SUPRA. COMPARE MATTER OF
ELIZABETH MCLAUGHLIN, B-186556, JULY 27, 1976.
ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION IS SUSTAINED.
B-194114, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. REQUIREMENT THAT CONTRACTOR FURNISH "BRAND NAME OR EQUAL" PARTS
IN COURSE OF PROVIDING MAINTENANCE SERVICE IS PERFORMANCE REQUIREMENT
AND NOT DEFINITIVE RESPONSIBILITY CRITERION.
2. CONTRACTING AGENCY DID NOT MAKE SPECIAL EXCEPTION FOR BIDDER IN
PERMITTING BIDDER TO PROVIDE INFORMATION PERTAINING TO RESPONSIBILITY
AFTER OPENING OF BIDS, SINCE ANY BIDDER WHO MIGHT HAVE CHOSEN TO FURNISH
INFORMATION AFTER SUBMISSION OF BIDS WOULD HAVE BEEN ENTITLED TO SAME
TREATMENT WHETHER STATED IN IFB OR NOT.
REMCO BUSINESS SYSTEMS, INC.:
REMCO BUSINESS SYSTEMS, INC. (REMCO), PROTESTS THE AWARD OF A
PREVENTIVE AND EMERGENCY MAINTENANCE CONTRACT FOR GOVERNMENT-OWNED
REMINGTON LEKTRIEVERS TO NATIONAL OFFICE SYSTEMS, INC. (NOSI), UNDER
INVITATION FOR BIDS (IFB) NO. 20-79-HEW-0S, ISSUED BY THE DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE (HEW).
REMCO PROTESTS ON TWO GROUNDS: (1) THAT NOSI IS NEITHER AUTHORIZED
BY REMINGTON TO SERVICE REMINGTON EQUIPMENT NOR AUTHORIZED TO SECURE
REPLACEMENT PARTS FOR REMINGTON LEKTRIEVERS; AND (2) THAT HEW
IMPROPERLY WAIVED CERTAIN INFORMATIONAL REQUIREMENTS OF THE IFB FOR
NOSI'S SOLE BENEFIT.
THE FIRST GROUND OF PROTEST IS BASED ON REMCO'S INTERPRETATION OF THE
LAST SENTENCE OF ARTICLE II(B)(6) OF THE IFB'S SPECIFICATIONS, WHICH
REMCO BELIEVES SETS FORTH A DEFINITIVE RESPONSIBILITY CRITERION.
ARTICLE II(B)(6) PROVIDES:
"THOROUGH INSPECTIONS BY THE CONTRACTOR ARE TO BE MADE IN ACCORDANCE
WITH COMMERCIAL PRACTICE GOVERNING MAINTENANCE OF LEKTRIEVERS. THE COST
OF INSPECTIONS AND SERVICE CALLS SHALL INCLUDE NECESSARY REPAIR PARTS,
UNLESS OTHERWISE SPECIFIED, EXCEPT SUPPLIES OR ACCESSORIES, TO KEEP THE
LEKTRIEVERS IN GOOD OPERATING CONDITION. ONLY NEW, STANDARD PARTS,
MANUFACTURED BY THE MAKER OF LEKTRIEVERS, OR PARTS OF EQUAL QUALITY,
WILL BE USED."
SINCE NOSI'S BID NEITHER LIMITED, REDUCED NOR MODIFIED ITS OBLIGATION
TO PERFORM THE REQUIRED SERVICE, IT MUST BE CONSIDERED RESPONSIVE. 53
COMP. GEN. 396 (1973). THUS, NOSI'S ABILITY TO FURNISH APPROPRIATE
PARTS IN THE COURSE OF ITS PERFORMANCE OF THE REQUIRED SERVICE IS A
MATTER OF RESPONSIBILITY. REMCO'S ALLEGATION THAT NOSI IS NEITHER
AUTHORIZED TO SERVICE REMINGTON EQUIPMENT NOR AUTHORIZED TO SECURE
REPLACEMENT PARTS FROM REMINGTON CONSTITUTES A PROTEST AGAINST HEW'S
AFFIRMATIVE DETERMINATION OF NOSI'S RESPONSIBILITY.
WE DO NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF
RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING
OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY
CRITERIA WHICH HAVE ALLEGEDLY NOT BEEN APPLIED. CENTRAL METAL PRODUCTS,
INCORPORATED, 54 COMP. GEN. 66 (1974), 74-2 CPD 64; YARDNEY ELECTRIC
CORPORATION, 54 COMP. GEN. 509 (1974), 74-2 CPD 376. WE DO NOT SHARE
REMCO'S BELIEF THAT ITS ALLEGATION FALLS WITHIN THE AMBIT OF THE
DEFINITIVE RESPONSIBILITY CRITERIA EXCEPTION. IN OUR VIEW, A
REQUIREMENT THAT A CONTRACTOR USE WHAT AMOUNTS TO "BRAND NAME OR EQUAL"
PARTS IN THE COURSE OF MAINTAINING AND SERVICING GOVERNMENT-OWNED
EQUIPMENT IS A PERFORMANCE REQUIREMENT. DESCRIPTIONS OF HOW WORK IS TO
BE ACCOMPLISHED DO NOT BECOME DEFINITIVE RESPONSIBILITY CRITERIA JUST
BECAUSE THEY ARE STATED IN DETAIL. CONTRA COSTA ELECTRIC, INC.,
B-190916, APRIL 5, 1978, 78-1 CPD 268. THEREFORE, WE WILL NOT CONSIDER
THIS ASPECT OF REMCO'S PROTEST.
REMCO'S SECOND GROUND OF PROTEST CONCERNS NOSI'S REACTION TO THE
IFB'S APPENDIX "A," ENTITLED "BIDDER'S QUALIFICATION SHEET," WHICH READS
IN PART:
"EXPERIENCE: LIST CONTRACT YOU ARE PRESENTLY WORKING ON AND THOSE
COMPLETED DURING THE PAST TWO YEARS OF A NATURE SIMILAR TO THE WORK
DESCRIBED IN THE INVITATION. IT IS REFERRED THAT YOU INCLUDE THOSE
CONTRACTS PERFORMED FOR FEDERAL GOVERNMENT AGENCIES, BUT CONTRACT FOR
COMMERCIAL ORGANIZATIONS MAY ALSO BE INCLUDED."
THE FACTS SURROUNDING REMCO'S CONTENTION, THAT HEW IMPROPERLY WAIVED
THE ABOVE INFORMATIONAL REQUIREMENT FOR NOSI'S SOLE BENEFIT, ARE AS
FOLLOWS.
HEW REPORTS THAT AFTER ITS DECEMBER 11, 1978, ISSUANCE OF THE IFB, IT
RECEIVED A LETTER, DATED DECEMBER 29, 1978, FROM NOSI. THE LETTER
SOUGHT SUBSTANTIVE AND PROCEDURAL INFORMATION WHICH NOSI REQUIRED FOR
THE COMPUTATION OF ITS BID. ONE OF THE PROCEDURAL ASPECTS WHICH
CONCERNED NOSI WAS THE POTENTIALLY ADVERSE COMMERCIAL IMPACT OF
DISCLOSING ALL OF ITS CURRENT AND PREVIOUS CONTRACTS IN ITS BID. NOSI
ASKED:
"WITH RESPECT TO APPENDIX 'A' BIDDERS QUALIFICATION SHEET PARAGRAPH
HEADING 'EXPERIENCE', IS IT REQUIRED THAT WE LIST OUR CURRENT AND
PREVIOUS CONTRACTS, OTHER THAN THE ONES WITH THE DEPARTMENT OF HEALTH
EDUCATION AND WELFARE? WE WILL FURNISH THIS INFORMATION IF IT WILL BE
TREATED AS CONFIDENTIAL BY HEW, OTHERWISE, SUCH INFORMATION COULD BE
USEFUL TO OUR COMPETITORS IF IT WAS TO BECOME PUBLIC INFORMATION."
ON JANUARY 3, 1979, HEW RESPONDED TO THE NOSI INQUIRY AS FOLLOWS:
"WITH RESPECT TO APPENDIX 'A' BIDDERS QUALIFICATION SHEET PARAGRAPH
HEADING 'EXPERIENCE', YOU MAY LIST ANY CONTRACTS OTHER THAN THOSE WITH
DHEW, AT YOUR DISCRETION. INFORMATION SUBMITTED IN RESPONSE TO AN
INVITATION FOR BIDS IS SUBJECT TO PUBLIC SCRUTINY. WHILE WE WOULD NOT
GRATUITOUSLY DISSEMINATE SUCH DATA, IF IT WERE ASKED FOR WE COULD NOT
WITHHOLD IT."
AT THE JANUARY 15, 1979, BID OPENING, APPENDIX "A" OF NOSI'S BID
CONTAINED ONLY THE FOLLOWING ENTRY:
"PURSUANT TO OUR LETTER OF ENQUIRY, 12/29/78, AND YOUR RESPONSE OF
1/2/79 WE RESERVE THE RIGHT TO WITHHOLD INFORMATION ON OTHER CONTRACTS
FOR THE REASONS STATED IN OUR LETTER."
IT IS OUR UNDERSTANDING THAT SUBSEQUENT TO BID OPENING, BUT PRIOR TO
AWARD, NOSI FURNISHED HEW WITH A LIST OF ITS PREVIOUS CONTRACTS WHICH
WAS USED BY HEW IN ITS PREAWARD SURVEY OF NOSI.
REMCO RECOGNIZES THAT THE APPENDIX "A" INFORMATION WAS TO BE USED BY
HEW IN ARRIVING AT A BIDDER RESPONSIBILITY DETERMINATION. REMCO ALSO
ACKNOWLEDGES THAT "THE INADVERTENT FAILURE OF A BIDDER TO SUPPLY
INFORMATION RELEVANT TO THE DETERMINATION OF RESPONSIBILITY SHOULD NOT
BE CONSIDERED A MATTER OF BID RESPONSIVENESS." HOWEVER, REMCO ARGUES
THAT THE DELIBERATE NATURE OF NOSI'S OMISSION, EXECUTED UNDER THE AEGIS
OF HEW'S EX PARTE SANCTION, RAISES THE ISSUE ABOVE A BID RESPONSIVENESS
VERSUS BIDDER RESPONSIBILITY PLANE AND TURNS IT INTO A MATTER WHICH
TOUCHES THE VERY INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. REMCO
BELIEVES THAT HEW'S ACTION IN WAIVING THE INFORMATIONAL REQUIREMENT FOR
NOSI WITHOUT NOTIFYING OTHER BIDDERS OR POTENTIAL BIDDERS VIOLATES THE
PRINCIPLE THAT ALL COMPETITORS MUST BE GIVEN THE OPPORTUNITY TO SUBMIT
OFFERS ON A COMMON BASIS. REMCO IS FURTHER OF THE OPINION THAT HAD HEW
SO NOTIFIED ALL POTENTIAL BIDDERS, COMPETITION MIGHT HAVE BEEN
INCREASED.
IN OUR VIEW, THE ISSUE RAISED CONCERNS AN INVITATION REQUIREMENT
WHICH SEEKS TO ESTABLISH NOSI'S GENERAL CAPACITY TO PERFORM IN
ACCORDANCE WITH THE CONTRACT TERMS. WE HAVE OBSERVED THAT:
"THE DISTINCTION BETWEEN RESPONSIBILITY AND RESPONSIVENESS IS AN
IMPORTANT ONE BECAUSE A BID WHICH IS NONRESPONSIVE AT BID OPENING MUST
BE REJECTED; IT CANNOT BE MADE RESPONSIVE AFTER BID OPENING THROUGH THE
SUBMISSION OF ADDITIONAL INFORMATION. 46 COMP. GEN. 434 (1966); 40
ID. 432 (1961); SEE SHNITZER, GOVERNMENT CONTRACT BIDDING 237-9 (1976).
HOWEVER, A BID MAY NOT BE REJECTED FOR FAILURE TO INCLUDE INFORMATION
RELATING TO THE BIDDER'S RESPONSIBILITY; INFORMATION BEARING ON
RESPONSIBILITY MAY BE FURNISHED AFTER BID OPENING. ALLIS-CHALMERS
CORPORATION, 53 COMP. GEN. 487 (1974), 74-1 CPD 19; CONCEPT
MERCHANDISING, INC., ET AL., B-187720, DECEMBER 17, 1976, 76-2 CPD 505.
THIS IS SO EVEN WHERE THE SOLICITATION STATES THAT THE INFORMATION MUST
BE SUBMITTED WITH THE BID OR THAT THE BID WILL BE REJECTED IF THE
INFORMATION IS NOT INCLUDED. VICTORY VAN CORPORATION, 53 COMP. GEN. 750
(1974), 74-1 CPD 178; 52 COMP. GEN. 647, SUPRA; ID. 389 (1972); ID.
265 (1972); 48 ID. 158 (1968)." CUBIC WESTERN DATA, INC., 57 COMP. GEN.
17, 20 (1977), 77-2 CPD 279.
AS THE FOREGOING QUOTATION INDICATES, IT IS AN ESTABLISHED LEGAL
PRINCIPLE THAT ANY BIDDER WHO DOES NOT FURNISH DATA PERTAINING TO ITS
RESPONSIBILITY WITH ITS BID MAY SUBMIT SUCH DATA ANY TIME BEFORE A
DETERMINATION OF RESPONSIBILITY IS MADE. THEREFORE, WE DO NOT FIND THAT
HEW MADE A SPECIAL EXCEPTION FOR NOSI IN PERMITTING IT TO PROVIDE
INFORMATION PERTAINING TO RESPONSIBILITY AFTER THE OPENING OF BIDS. ANY
BIDDER WHO MIGHT HAVE CHOSEN TO FURNISH THE RESPONSIBILITY INFORMATION
AFTER THE SUBMISSION OF ITS BID WOULD HAVE BEEN ENTITLED TO THE SAME
TREATMENT WHETHER STATED IN THE IFB OR NOT. THUS, BIDDERS WERE NOT
PRECLUDED FROM SUBMITTING BIDS ON A COMMON BASIS.
FOR THE FOREGOING REASONS, THE PROTEST IS DISMISSED IN PART AND
DENIED IN PART.
B-194334, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE PROTESTER TESTED ITS BID SAMPLE AFTER REJECTION AND FOUND
IT COMPLIANT WITH LISTED EVALUATION CHARACTERISTIC, CONFLICT REGARDING
TEST RESULTS MUST BE RESOLVED IN FAVOR OF THE AGENCY FINDING IN ABSENCE
OF SHOWING THAT AGENCY'S TEST WAS DEFECTIVE, IMPROPERLY CONDUCTED, OR
THAT RESULTS WERE ERRONEOUSLY REPORTED.
2. WHERE LOW BIDDER'S BID SAMPLE WAS DETERMINED NONCOMPLIANT WITH
LISTED SAMPLE EVALUATION CHARACTERISTIC AND SOLICITATION REQUIRED
REJECTION OF BID FOR SUCH NONCONFORMITY, DEFECT MAY NOT BE WAIVED OR
CURED AFTER BID OPENING; THEREFORE LOW BID WAS PROPERLY REJECTED AS
NONRESPONSIVE.
CATHEY ENTERPRISES, INC.:
CATHEY ENTERPRISES, INC. (CATHEY) PROTESTS THE REJECTION OF ITS LOW
BID FOR POLICE LEATHER UNIFORM ITEMS UNDER MARINE CORPS INVITATION FOR
BIDS NO. M00027-79-B-0010. CATHEY'S BID WAS REJECTED WHEN ONE OF ITS
BID SAMPLES FOR HOLSTERS FAILED TO HOLD THE REVOLVERS SPECIFIED BY THE
INVITATION. CATHEY CONTENDS THAT THE REJECTION OF ITS BID WAS WRONG
SINCE IT TESTED THE SAMPLE HOLSTER AFTER IT WAS RETURNED BY THE AGENCY
AND THE REVOLVERS FIT. CATHEY THEREFORE REQUESTS TERMINATION OF THE
CONTRACT AWARDED TO A HIGHER-PRICED BIDDER AND AWARD TO IT.
THE INVITATION SOLICITED BIDS FOR FIVE ITEMS ON A BRAND NAME OR EQUAL
BASIS, AND PROVIDED THAT A SINGLE AWARD WOULD BE MADE FOR ALL ITEMS.
THE INVITATION FURTHER PROVIDED THAT SUBMISSION OF A BID SAMPLE WAS
REQUIRED FOR "OR EQUAL" BIDS.
AS REQUIRED BY THE STANDARD "BRAND NAME OR EQUAL" CLAUSE SET OUT IN
THE BID SCHEDULE, EACH OF THE FIVE BRAND NAME ITEMS WAS ACCOMPANIED BY A
LIST OF "SALIENT CHARACTERISTICS" CONSIDERED ESSENTIAL TO THE MINIMUM
NEEDS OF THE MARINE CORPS. THE SOLICITATION FURTHER ADVISED BIDDERS
THAT SUCH SALIENT CHARACTERISTICS WOULD BE UTILIZED FOR EVALUATION
PURPOSES TO DETERMINE WHETHER "EQUAL PRODUCTS," OFFERED AS AN
ALTERNATIVE TO THE BRAND NAME PRODUCTS, WERE IN FACT "EQUAL." THE
SOLICITATION ALSO INCLUDED A CLAUSE ENTITLED "BID SAMPLES (1974 APR)"
WHICH STIPULATED NOT ONLY THAT BID SAMPLES, WHEREVER REQUIRED, WOULD BE
TESTED TO DETERMINE COMPLIANCE WITH ALL CHARACTERISTICS LISTED FOR
EVALUATION (I.E., THE SALIENT CHARACTERISTICS REFERENCED ABOVE), BUT
THAT FAILURE OF SAMPLES TO CONFORM TO ALL SUCH CHARACTERISTICS WOULD
REQUIRE REJECTION OF THE BID.
ITEM 0002 SPECIFIED A "POLICE UNIFORM HOLSTER, BIANCHI LEATHER
PRODUCTS MODEL #99T OR EQUAL." AND SET FORTH FIVE SALIENT
CHARACTERISTICS TO WHICH ALTERNATIVE PRODUCTS WERE REQUIRED TO CONFORM
IN ORDER TO BE CONSIDERED "EQUAL" TO THE SPECIFIED BIANCHI MODEL. THE
PROTEST CENTERS ON THE FOLLOWING CHARACTERISTIC:
" * * * * *
5. THE HOLSTER MUST ACCOMMODATE THE .38 CALIBER SMITH & WESSON MODEL
10 REVOLVER (4" BARREL) AND THE .38 CALIBER STURM-RUGER SERVICE - SIX
MILITARY MODEL REVOLVER (4" BARREL).
CATHEY'S BID OFFERED ITS MODEL LHW (SL) 1054 HOLSTER AS AN "EQUAL"
PRODUCT. HOWEVER, ITS BID WAS REJECTED AS NONRESPONSIVE BECAUSE THE
MARINE CORPS DETERMINED THAT THE SAMPLE CATHEY HOLSTER WOULD NOT
ACCOMMODATE THE SPECIFIED WEAPONS AS THE THUMBBREAK STRAP WOULD NOT
FASTEN WITH THE REVOLVER IN PLACE.
CATHEY ASSERTS THAT APPROXIMATELY ONE WEEK AFTER BEING NOTIFIED BY
TELEPHONE THAT ITS SAMPLE WAS REJECTED THE SAMPLE WAS RETURNED IN A BOX
WHICH WAS NOT OPENED. THE PROTESTER REPORTS THAT SEVERAL DAYS LATER A
DEFENSE CONTRACT ADMINISTRATION SERVICES QUALITY ASSURANCE
REPRESENTATIVE (QAR), ON A REGULAR INSPECTION TRIP, WAS REQUESTED TO
OPEN THE BOX AND TRY THE REVOLVER FOR FIT IN THE HOLSTER. CATHEY STATES
THAT WHEN A REPLICA SMITH & WESSON MODEL 10 WAS PLACED IN THE HOLSTER
AND THE STRAP SNAPPED, "THE FIT WAS TIGHT AS WELL AS THE STRAP WHICH IS
COMMON WITH UNUSED LEATHER PRODUCTS." NEVERTHELESS, CATHEY BELIEVES THE
FIT TO HAVE BEEN "SUFFICIENT" AND THAT THERE WERE NOT ADEQUATE GROUNDS
TO REJECT THE SAMPLE. CATHEY FURTHER ADVISES THAT ON THE FOLLOWING DAY,
ITS PRESIDENT AND THE QAR VISITED A "SHOOTING CENTER" WHERE THE HOLSTER
IN QUESTION WAS TRIED FOR FIT WITH A RUGER SECURITY SIX, FOUR INCH
BARREL AS WELL AS THE SMITH & WESSON MODEL AND BOTH REVOLVERS FIT IN THE
HOLSTER AND THE RETAINER STRAP SNAPPED INTO POSITION. THE AGENCY
REPORTS THAT IT CONTACTED THE QAR AND VERIFIED CATHEY'S ASSERTION THAT
THE SAMPLE HOLSTER SUCCESSFULLY ACCOMMODATED A REPLICA SMITH & WESSON
REVOLVER UPON ITS REMOVAL FROM THE SEALED BOX.
THE MARINE CORPS' REPORT INCLUDES SWORN AFFIDAVITS FROM THE FOUR
MEMBER PANEL THAT EVALUATED THE BID SAMPLES. IN THE AFFIDAVITS EACH
MEMBER ASSERTS THAT THE CATHEY HOLSTER WOULD NOT ACCOMMODATE EITHER OF
THE SPECIFIED REVOLVERS BECAUSE THE THUMB-BREAK COULD NOT BE FASTENED
AROUND EITHER WEAPON.
IN MATTERS CONCERNING THE EVALUATION OF BID SAMPLES, WE HAVE TAKEN
THE POSITION THAT SINCE PROCUREMENT OFFICERS ARE BETTER QUALIFIED THAN
THIS OFFICE TO EVALUATE THE SUFFICIENCY OF OFFERED PRODUCTS AND TO
DETERMINE WHETHER THEY MEET A SOLICITATION'S REQUISITE CHARACTERISTICS,
WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY
UNLESS THE RECORD ESTABLISHES THAT SUCH JUDGMENT WAS WITHOUT A BASIS IN
FACT, OR THAT SAMPLES WERE NOT FAIRLY AND CONSCIENTIOUSLY EVALUATED IN
ACCORDANCE WITH THE REQUIREMENTS OF THE PURCHASE DESCRIPTION. AIRWAYS
INDUSTRIES, INC. ET AL., 57 COMP. GEN. 686, 694 (1978), 78-2 CPD 115.
SINCE THE AFFIDAVITS STATE THAT THE CATHEY HOLSTER WAS TESTED BY
THREE DIFFERENT MEMBERS OF THE EVALUATION PANEL WITH THE SAME RESULT,
AND THAT RESULT WAS CONFIRMED BY THE AFFIDAVIT OF THE FOURTH MEMBER WHO
WITNESSED THE TESTS, WE HAVE NO BASIS TO CONCLUDE THAT THE HOLSTER WAS
NOT EVALUATED FAIRLY OR CONSCIENTIOUSLY IN ACCORDANCE WITH THE LISTED
CHARACTERISTIC.
WE ARE UNABLE TO ACCOUNT FOR THE CONFLICTING RESULTS OF THE
RESPECTIVE TESTS PERFORMED ON THE HOLSTER. NOTWITHSTANDING THAT TESTS
PERFORMED BY A PROTESTER ON ITS BID SAMPLE MAY PRODUCE A DIFFERENT
RESULT FROM THOSE PERFORMED BY AN AGENCY, WE HAVE STATED THAT THE MERE
EXISTENCE OF SUCH A FACTUAL DISPUTE IS INSUFFICIENT TO NULLIFY THE
AGENCY'S FINDING WITHOUT A SHOWING THAT THE GOVERNMENT'S TEST WAS IN
SOME WAY DEFECTIVE OR IMPROPERLY CONDUCTED, OR THAT THE RESULTS WERE
ERRONEOUSLY REPORTED. 51 COMP. GEN. 583, 585-586 (1972). NO SUCH
SHOWING HAS BEEN MADE HERE.
IN ADDITION TO ITS POSITION THAT ITS HOLSTER IS ABLE TO ACCOMMODATE
THE SPECIFIED REVOLVER, CATHEY ARGUES THAT EVEN IF THE AGENCY COULD
CONCLUDE THAT THE REVOLVERS WOULD NOT FIT, THAT SHOULD NOT REQUIRE
REJECTION OF THE BID BECAUSE "MINOR MANUFACTURING PROCEDURES" WOULD
CORRECT ANY EXISTING DEFECT. WE FIND NO MERIT TO THIS PROPOSITION.
WHERE A BRAND NAME OR EQUAL PURCHASE DESCRIPTION SETS FORTH SALIENT
CHARACTERISTICS AND PROVIDES THAT BIDS OFFERING "EQUAL" PRODUCTS MUST
FULLY MEET THE SALIENT CHARACTERISTICS LISTED IN ORDER TO BE RESPONSIVE,
WE HAVE HELD THAT THESE PARTICULAR FEATURES MUST BE PRESUMED TO BE
MATERIAL AND ESSENTIAL, AND AWARD MAY NOT BE MADE TO A BIDDER WHOSE
SAMPLE DID NOT CONFORM IN ALL RESPECTS TO SUCH FEATURES. S. LIVINGSTON
& SON, INC., B-183820, SEPTEMBER 24, 1975, 75-2 CPD 179. ACCORDINGLY,
FAILURE OF A SAMPLE HOLSTER TO COMPLY WITH ANY OF THE FIVE LISTED
EVALUATION CHARACTERISTICS WOULD MANDATE A BID'S REJECTION, AND THE
NONCONFORMITY MAY NOT BE WAIVED AS A MINOR INFORMALITY OR CURED AFTER
BID OPENING.
THE PROTEST IS DENIED.
B-194556, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
A FORMER NAVY MEMBER WHO CLAIMS REIMBURSEMENT FOR SHIPPING HIS
HOUSEHOLD EFFECTS AND SUPPORTS HIS CLAIM WITH RECEIPTS INDICATING THAT
THE SHIPMENT WAS MADE 11 MONTHS PRIOR TO THE ISSUANCE OF PERMANENT
CHANGE-OF-STATION ORDERS MAY NOT BE REIMBURSED SINCE GENERALLY SHIPMENT
OF HOUSEHOLD EFFECTS PRIOR TO ORDERS IS NOT AUTHORIZED. HIS STATEMENT
THAT THE SHIPMENT WAS MADE AFTER HIS ORDERS WERE ISSUED, NOT ON THE DATE
OF THE RECEIPTS, IS INSUFFICIENTLY SUPPORTED TO OVERCOME THE STRONG
PRESUMPTION THAT THE SHIPMENT WAS MADE ABOUT THE TIME OF THE RECEIPT
DATES.
IRVIN ALEXANDER, JR.:
THIS ACTION IS IN RESPONSE TO A LETTER DATED MARCH 2, 1979, FROM MR.
IRVIN ALEXANDER, JR., A FORMER MEMBER OF THE UNITED STATES NAVY, WHICH
CONSTITUTES AN APPEAL FROM A SETTLEMENT BY OUR CLAIMS DIVISION DATED
MARCH 7, 1977. THAT SETTLEMENT DENIED HIS CLAIM FOR REIMBURSEMENT OF
THE COST OF SHIPPING HIS HOUSEHOLD GOODS FROM NEWPORT, RHODE ISLAND, TO
PHILADELPHIA, PENNSYLVANIA, BECAUSE HIS GOODS WERE SHIPPED PRIOR TO
ISSUANCE OF PERMANENT CHANGE-OF-STATION ORDERS. SINCE THE RECEIPTS FOR
THE EXPENSES INCURRED IN SHIPPING HIS HOUSEHOLD GOODS ARE DATED IN
JANUARY 1966, AND HIS ORDERS WERE ISSUED IN OCTOBER 1966, WE ALSO
CONCLUDE THAT THE SHIPMENT WAS MADE PRIOR TO THE ORDERS, AND WE SUSTAIN
THE DISALLOWANCE OF THE CLAIM.
ON OCTOBER 5, 1965, MR. ALEXANDER, AT THE TIME A MEMBER OF THE UNITED
STATES NAVY, REQUESTED A TRANSFER TO A SHIP HOMEPORTED IN NEWPORT, RHODE
ISLAND, OR PHILADELPHIA, PENNSYLVANIA, FOR HUMANITARIAN REASONS. ON
DECEMBER 29, 1965, HE WAS ASSIGNED TO TEMPORARY ADDITIONAL DUTY FOR
INSTRUCTION FOR 16 WEEKS EFFECTIVE JANUARY 3, 1966, AT PHILADELPHIA FROM
BOSTON, MASSACHUSETTS. BY ORDERS DATED OCTOBER 28, 1966, MR. ALEXANDER
WAS DIRECTED TO REPORT NO LATER THAN NOVEMBER 17, 1966, TO THE INACTIVE
SHIP MAINTENANCE FACILITY AT PHILADELPHIA, PENNSYLVANIA, FROM NEWPORT,
RHODE ISLAND, FOR SHORE DUTY (A PERMANENT CHANGE OF STATION).
MR. ALEXANDER FILED A CLAIM FOR $627.90 AS THE COST OF SHIPPING HIS
HOUSEHOLD GOODS FROM NEWPORT, RHODE ISLAND, TO PHILADELPHIA,
PENNSYLVANIA. AS SUPPORT FOR THE CLAIM HE FURNISHED TWO RECEIPTS FROM
J. HAWKINS FOR MONEY RECEIVED FROM IRVIN ALEXANDER, JR., FOR SHIPMENT OF
HOUSEHOLD GOODS FROM NEWPORT, RHODE ISLAND, TO PHILADELPHIA - ONE DATED
JANUARY 1, 1966, IN THE AMOUNT OF $445, THE OTHER DATED JANUARY 6, 1966,
IN THE AMOUNT OF $182.90, FOR A TOTAL OF $627.90. OUR CLAIMS DIVISION
DISALLOWED THE CLAIM BECAUSE ON THE BASIS OF THAT EVIDENCE, THE SHIPMENT
WAS MADE LONG PRIOR TO THE ISSUANCE OF THE OCTOBER 28, 1966 ORDER.
IN APPEALING THE DISALLOWANCE MR. ALEXANDER NOW SAYS THAT HIS
HOUSEHOLD GOODS WERE NOT MOVED UNTIL NOVEMBER 1967, OVER A YEAR AFTER
HIS ORDERS WERE ISSUED. MR. ALEXANDER HAS SUBMITTED A STATEMENT DATED
DECEMBER 14, 1978, FROM A FINANCE COMPANY TO THE EFFECT THAT MONEY WAS
LOANED TO HIM IN NOVEMBER 1967 TO SHIP FURNITURE TO PHILADELPHIA FROM
NEWPORT, RHODE ISLAND.
UNDER THE PROVISIONS OF 37 U.S.C. 406(B), A MEMBER OF A UNIFORMED
SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED
TO TRANSPORTATION OF HIS HOUSEHOLD GOODS, OR TO REIMBURSEMENT THEREFOR.
THE ENTITLEMENT AUTHORIZED BY THE ABOVE SUBSECTION IS SUBJECT UNDER 37
U.S.C. 406(C) TO CONDITIONS AND LIMITATIONS PRESCRIBED BY THE SECRETARY
CONCERNED. GENERALLY, TRANSPORTATION OF HOUSEHOLD GOODS INCIDENT TO A
PERMANENT CHANGE OF STATION IS NOT AUTHORIZED PRIOR TO THE ISSUANCE OF
PERMANENT CHANGE-OF-STATION ORDERS. SEE VOLUME 1, JOINT TRAVEL
REGULATIONS, PARAGRAPH M8015-1 (CHANGE 164, SEPTEMBER 1, 1966) AND 52
COMP. GEN. 769 (1973).
WHILE MR. ALEXANDER NOW STATES THAT HE SHIPPED HIS HOUSEHOLD GOODS IN
NOVEMBER 1967, NOT JANUARY 1966, THE RECEIPTS HE HAS FURNISHED AS
SUPPORT FOR HIS CLAIM ARE DATED IN JANUARY 1966 AT WHICH TIME HE WAS
APPARENTLY PERFORMING TEMPORARY DUTY AT PHILADELPHIA. THE ONLY EVIDENCE
HE HAS FURNISHED TO SUPPORT HIS STATEMENT THAT THE GOODS WERE SHIPPED IN
NOVEMBER IS A STATEMENT FROM A FINANCE COMPANY, ISSUED OVER 11 YEARS
LATER, THAT THEY EXTENDED CREDIT TO HIM IN NOVEMBER 1967 TO SHIP
"FURNITURE AND TRAILER GOODS" TO PHILADELPHIA. HE ALSO FURNISHED SOME
DOCUMENTS INDICATING THAT HE PURCHASED A HOUSE IN PHILADELPHIA IN
OCTOBER 1967. THAT MATERIAL IS NOT SUFFICIENT TO OVERCOME THE STRONG
PRESUMPTION THAT THE SHIPMENT TOOK PLACE IN JANUARY 1966, ON OR ABOUT
THE DATES OF THE RECEIPTS FOR THE SHIPMENT, WHICH WAS LONG BEFORE MR.
ALEXANDER'S ORDERS WERE ISSUED.
IN VIEW OF THE FOREGOING, NO AUTHORITY EXISTS FOR PAYMENT OF MR.
ALEXANDER'S CLAIM. THEREFORE, THE SETTLEMENT OF OUR CLAIMS DIVISION IS
SUSTAINED.
B-194712, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
CONTRACT MAY NOT BE RESCINDED ON BASIS OF UNCONSCIONABILITY, SINCE
CIRCUMSTANCES DO NOT ESTABLISH THAT GOVERNMENT IS "OBVIOUSLY GETTING
SOMETHING FOR NOTHING."
COLONIAL ALUMINUM SALES, INC.:
THE DEPARTMENT OF TRANSPORTATION (DOT) HAS FORWARDED FOR OUR
CONSIDERATION A CLAIM OF MISTAKE IN BID SUBMITTED BY COLONIAL ALUMINUM
SALES, INC. (COLONIAL), AFTER THE AWARD TO THE FIRM OF A $10,500
CONTRACT TO FURNISH AND INSTALL VINYL SIDING AT TWO AIRPORTS IN NEW
YORK.
COLONIAL SUBMITTED THE ONLY BID UNDER THE SOLICITATION FOR THE
SERVICES. SINCE THE GOVERNMENT ESTIMATE WAS $15,000, THE CONTRACTING
OFFICER ADVISED COLONIAL THAT ITS BID WAS 30 PERCENT BELOW THE
GOVERNMENT ESTIMATE AND REQUESTED THAT COLONIAL VERIFY ITS BID, WHICH
THE FIRM DID ON SEPTEMBER 27, 1978. CONTRACT NO. DOT-FA78EA-9368 WAS
AWARDED TO COLONIAL ON THAT SAME DATE. IN VIEW OF THE NATURE OF THE
REQUEST FOR VERIFICATION AND THE RESPONSE, WE BELIEVE THE MISTAKE WAS
UNILATERAL, NOT MUTUAL, AND THUS A VALID AND BINDING CONTRACT RESULTED
FROM THE AWARD. PORTA-KAMP MANUFACTURING COMPANY, INC., 54 COMP. GEN.
545 (1974), 74-2 CPD 393.
SHORTLY AFTER AWARD, COLONIAL ALLEGED THAT IT HAD MISREAD AS $300,000
THE SOLICITATION'S REQUIREMENT THAT THE CONTRACTOR PROCURE BODILY INJURY
AND PROPERTY DAMAGE LIABILITY INSURANCE IN THE AMOUNT OF $3,000,000.
COLONIAL STATED THAT THE COST OF THE ADDITIONAL COVERAGE WOULD BE
$6,700. IN SUPPORT OF THE CLAIM OF MISTAKE, COLONIAL SUBMITTED A LETTER
FROM ITS INSURANCE COMPANY ADVISING THE FIRM OF THE COST OF THE
NECESSARY COVERAGE. THE FIRM'S WORKSHEETS APPEAR TO INDICATE THAT IN
PREPARING THE BID COLONIAL ALLOCATED LESS THAN $1,000 FOR INSURANCE.
DOT SUGGESTS THAT ALTHOUGH THE MISTAKE WAS UNILATERAL ON COLONIAL'S
PART AND THE FIRM VERIFIED THE BID, ENFORCEMENT OF THE CONTRACT AT THE
PRICE OF $10,500 WOULD BE UNCONSCIONABLE, AND THE CONTRACT SHOULD BE
RESCINDED. WE DISAGREE.
WHERE THE QUESTION OF UNCONSCIONABILITY IS CONCERNED, THE TEST
APPLIED BY OUR OFFICE IS WHETHER THE CONTRACT PRICE IS SO LOW THAT THE
GOVERNMENT IS "OBVIOUSLY GETTING SOMETHING FOR NOTHING." YANKEE
ENGINEERING COMPANY, INC., B-180573, JUNE 19, 1974, 74-1 CPD 333; 53
COMP. GEN. 187 (1973). THUS, WE HAVE FOUND CONTRACTS TO BE
UNCONSCIONABLE WHEN THE DISPARITY BETWEEN THE AWARDEE'S BID AND THE
SECOND LOW BID HAS BEEN 280 AND 300 PERCENT. ON THE OTHER HAND,
DIFFERENCES OF 53 AND 58 PERCENT HAVE BEEN DETERMINED INSUFFICIENT TO
DEMONSTRATE UNCONSCIONABILITY. SEE WALTER MOTOR TRUCK COMPANY,
B-185385, APRIL 22, 1976, 76-1 CPD 272. IN CONSIDERING THIS ISSUE, WE
HAVE REVIEWED FACTORS SUCH AS THE QUANTUM OF ERROR, THE METHOD OF
VERIFICATION, OR THE SUSPICION OF A SPECIFIC MISTAKE IN ADDITION TO
PRICE DIFFERENTIAL. SEE PETERMAN, WINDHAM & YAUGHN, INC., 56 COMP. GEN.
239 (1977), 77-1 CPD 20; BUREAU OF RECLAMATION, DEPARTMENT OF THE
INTERIOR, B-187718, DECEMBER 15, 1976, 76-2 CPD 499; B-170691, JANUARY
28, 1971.
HERE, WHILE COLONIAL'S BID WAS 30 PERCENT LOWER THAN THE GOVERNMENT
ESTIMATE, WE HAVE RECOGNIZED THE INEXACT NATURE OF GOVERNMENT ESTIMATES.
SEE SCHOTTEL OF AMERICA, INC., B-190546, MARCH 21, 1978, 78-1 CPD 220.
IN THIS RESPECT, DOT'S SOLICITATION FOR THE SERVICES ESTABLISHED AN
"ESTIMATED PRICE RANGE" OF $10,000 TO $20,000, WHICH WOULD ENCOMPASS THE
ACTUAL CONTRACT PRICE. IN ADDITION, ALTHOUGH THE ALLEGED $6,700 ERROR
IS 64 PERCENT OF THE CONTRACT PRICE, A BREAKDOWN PROVIDED BY DOT OF THE
GOVERNMENT ESTIMATE SHOWS THAT THE ESTIMATE FOR INSURANCE WAS ONLY
$3,000. FINALLY, WE NOTE THAT COLONIAL HAS OFFERED TO PERFORM THE
CONTRACT FOR $14,000, AN INCREASE OF $3,500 IN THE CONTRACT PRICE, BUT
$3,200 LESS THAN THE AMOUNT OF THE ALLEGED ERROR.
UNDER THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE GOVERNMENT IS
"OBVIOUSLY GETTING SOMETHING FOR NOTHING," AND ENFORCEMENT OF THE
CONTRACT AT THE AWARDED PRICE THEREFORE WOULD NOT BE UNCONSCIONABLE.
ACCORDINGLY, WE FIND NO BASIS FOR REVISION OF THIS CONTRACT.
B-194818, JUN 13, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. PROTEST IS DISMISSED WHERE PROTESTER'S INITIAL SUBMISSION
DEMONSTRATES AFFIRMATIVELY THAT PROTEST IS UNTIMELY.
2. PROTEST CONCERNING REJECTION OF BID WHICH IS NOT FILED WITHIN 10
WORKING DAYS AFTER RECEIPT OF LETTER FROM PROCURING ACTIVITY SETTING
FORTH REASON FOR REJECTION IS UNTIMELY UNDER GAO BID PROTEST PROCEDURES
AND NOT FOR CONSIDERATION ON MERITS.
3. DELAY IN SUBMITTING PROTEST ATTRIBUTED TO OBTAINING COPIES OF GAO
DECISIONS CITED IN AGENCY'S REJECTION OF BID AS ILLUSTRATIVE OF RULE
THAT AMBIGUOUS BID MUST BE REJECTED IS NOT DELAY FOR "GOOD CAUSE" UNDER
GAO BID PROTEST PROCEDURES. REVIEW OF GAO DECISIONS WAS NOT ESSENTIAL
TO PERMIT PROTESTER TO OBJECT TO AGENCY'S POSITION THAT PENCILLED
INSERTION IN BID CAUSED AN AMBIGUITY AS TO WHETHER BIDDER INTENDED TO
CONFORM TO SPECIFICATION.
SCHRECK INDUSTRIES, INC.:
SCHRECK INDUSTRIES, INC. (SCHRECK) PROTESTS THE REJECTION OF ITS BID
AND THE AWARD OF A CONTRACT TO THE RAYMOND CORPORATION FOR ONE TRUCK,
FORK, REACHING, TIERING, BY THE U.S. ARMY CORPS OF ENGINEERS,
HUNTSVILLE, ALABAMA (ARMY) AS A RESULT OF INVITATION FOR BIDS (IFB)
DACA87-79-B-0130.
BY LETTER RECEIVED APRIL 16, 1979, THE ARMY ADVISED SCHRECK THAT ITS
BID WAS REJECTED AS NONRESPONSIVE UNDER THE PROVISIONS OF DEFENSE
ACQUISITION REGULATION (DAR) 2-404.2(D)(V) BECAUSE:
"THE NUMBER 83-130 WAS ENTERED UNDER PARAGRAPH 3.1(B) ON PAGE 1,
SECTION F OF YOUR BID ON THE REFERENCED IFB. THIS NUMBER WAS NOT
EXPLAINED AND, THEREFORE, CREATED AN AMBIGUITY IN YOUR BID IN THAT IT
WAS NOT CLEAR WHETHER YOU ARE OFFERING TO SUPPLY THE REQUIRED ITEM IN
COMPLETE CONFORMANCE WITH THE SPECIFICATION, OR MERELY A SIMILAR ITEM
WHICH MAY OR MAY NOT CONFORM TO THE SPECIFICATIONS."
THE LETTER ALSO CITED FOUR DECISIONS OF THIS OFFICE AS ILLUSTRATIVE
OF CASES IN WHICH THE CONTRACTING OFFICER PROPERLY REJECTED AMBIGUOUS
BIDS.
IN ITS PROTEST, RECEIVED BY THIS OFFICE ON MAY 9, 1979, SCHRECK
STATES THAT:
"*** WE DISAGREE WITH THE CONTRACTING OFFICER'S CONTENTION FOR THE
FOLLOWING REASONS:
(1) THE ENTRY '83-130' WAS IN PENCIL, WHEREIN THE REMAINDER OF OUR
BID SUBMISSION WAS TYPEWRITTEN.
(2) THE ENTRY '83-130' WAS MADE ADJACENT TO THE ORDERING DATA, PARA.
(B), WHICH STATES THE SIZE OF THE MAST REQUIRED AND WAS MADE AS A NOTE
FOR EASY REFERRAL DURING PRICING BY THE SALESMAN AND IN NO WAY CAN BE
CONSTRUED AS QUALIFYING THE BID WHEN THE SIZE MAST REQUIRED BY SIZE 2 OF
THE SPECIFICATION IS 85-130. IT IS A COMMON PRACTICE TO INDICATE THE
COLLAPSED MAST HEIGHT AND LIFT HEIGHT AS TWO NUMBERS SEPARATED BY A
DASH, I.E. 83-130 MEANS 83" COLLAPSED MAST HEIGHT, 130" LIFT HEIGHT.
"IT IS OUR CONTENTION THAT THIS PENCIL INSERTION WAS A 'MISTAKE IN
BID' FOR THE SIMPLE FACT THAT THIS PENCIL NOTATION WAS NOT INTENDED TO
BE IN OUR BID BECAUSE IT WAS NOT TYPEWRITTEN AS THE REST OF OUR BID WAS.
THE PENCIL NOTATION SHOULD HAVE BEEN ERASED AND THE FACT THAT IT WAS
OVERLOOKED DURING PROOF READING IS A SIMPLE CLERICAL ERROR.
"NONE OF THE CASES CITED IN SUBJECT LETTER ARE RELATED TO THIS CASE
IN ANY WAY BECAUSE EVERY NOTATION MADE IN THOSE BIDS WAS INTENDED TO BE
THERE BY THE BIDDER AND EVERY NOTATION COULD BE RELATED TO A SPECIFIC
PART NUMBER OR PIECE OFFERED."
SCHRECK HAS ORALLY ADVISED US THAT AFTER RECEIPT OF THE ARMY LETTER,
IT CONTACTED THIS OFFICE BY TELEPHONE ON APRIL 16, 1979, AND REQUESTED
COPIES OF OUR DECISIONS CITED BY THE ARMY. THESE WERE RECEIVED ON MAY
4, 1979.
THIS CASE IS DISMISSED ON THE BASIS OF THE PROTESTER'S INITIAL
SUBMISSION AND WITHOUT FURTHER DEVELOPMENT PURSUANT TO OUR PROTEST
PROCEDURES BECAUSE THE DOCUMENT SUBMITTED AND READ IN THE LIGHT MOST
FAVORABLE TO THE PROTESTER AFFIRMATIVELY DEMONSTRATES THAT THE PROTEST
IS UNTIMELY. MURPHY ANDERSON VISUAL CONCEPTS - RECONSIDERATION,
B-191850, JULY 31, 1978, 78-2 CPD 79.
OUR BID PROTEST PROCEDURES (4 C.F.R. PART 20 (1978)) PROVIDE THAT A
PROTEST, TO BE TIMELY, MUST BE RECEIVED BY OUR OFFICE NOT LATER THAN 10
WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE
BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. 20.2(B)(2). WE BELIEVE THAT
WHEN SCHRECK RECEIVED THE ARMY LETTER ON APRIL 16, 1979, IT KNEW THE
BASIS FOR ITS PROTEST AS THE LETTER ADVISED ITS BID WAS REJECTED BECAUSE
IT WAS CONSIDERED AMBIGUOUS. SCHRECK DID NOT NEED OUR DECISIONS TO
ARGUE, AS IT HAS, THAT THE PENCILLED INSERTIONS IN ITS BID WERE THE
RESULT OF A MISTAKE AND WERE NOT INTENDED AS QUALIFYING ITS BID.
MOREOVER, OUR DECISIONS WERE CITED AS PRECEDENT FOR THE RULE THAT AN
AMBIGUOUS BID MUST BE REJECTED AND THE PROTESTER MERELY ARGUES THAT
APPLICATION OF THAT RULE IS UNJUSTIFIED ON THE FACTS OF THIS CASE.
OBVIOUSLY, IT WAS NOT NECESSARY FOR THE PROTESTER TO OBTAIN COPIES OF
OUR DECISIONS TO STATE THAT POSITION.
MOREOVER, OUR OFFICE PROVIDES COPIES OF SPECIFIC DECISIONS AS TIME
AND RESOURCES PERMIT; HOWEVER, ANY DELAY IN RECEIVING COPIES OF OUR
DECISIONS WAS AT THE PROTESTER'S RISK. OTHERWISE, THE PURPOSE OF THE
10-DAY RULE, TO ALLOW POTENTIAL PROTESTERS A REASONABLE OPPORTUNITY TO
DETERMINE IF THEY DESIRE TO PROTEST, WOULD BE SUBVERTED. THUS, WE FIND
SCHRECK'S PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES AS IT WAS
NOT FILED WITHIN 10 WORKING DAYS AFTER THE BASIS OF ITS PROTEST WAS
KNOWN, 4 C.F.R. 20.2(B)(2); WEATHER MEASURE CORPORATION, B-194230,
APRIL 10, 1979, 79-1 CPD 251; BAUER ORDNANCE COMPANY, B-193308,
DECEMBER 28, 1978, 78-2 CPD 441, AND WE DO NOT FIND ANY "GOOD CAUSE" FOR
THE UNTIMELY SUBMISSION OR ANY SIGNIFICANT ISSUE RAISED BY THE PROTEST.
SEE 4 C.F.R. 20.2(C). CONSEQUENTLY, THE PROTEST IS DISMISSED.
FOR THE INFORMATION OF THE PROTESTER, WE POINT OUT THAT, GENERALLY,
THE RULES COVERING CORRECTION OF MISTAKES CONCERN MISTAKES IN BID PRICES
AND MAY NOT BE USED TO CORRECT AN ERROR THAT MAKES THE BID NONRESPONSIVE
AND INELIGIBLE FOR AWARD. 40 COMP. GEN. 432 (1961).
B-193993, JUN 12, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. DECISION TO PROCURE CERTAIN BRAND NAME COMPONENTS AS PART OF
SYSTEM BASED ON NEED FOR STANDARDIZATION OF AMMUNITION-RELATED EQUIPMENT
IS REASONABLE AND NOT OVERSTATEMENT OF MINIMUM NEEDS.
2. PROVISIONS OF PUBLIC LAW 95-507, SUCH AS THOSE PROVIDING FOR
WAIVER OF BONDING REQUIREMENTS, PERTAIN ONLY TO "8(A) SUBCONTRACTING"
ACTIVITIES OF THE SMALL BUSINESS ADMINISTRATION AND ARE NOT APPLICABLE
TO SMALL BUSINESS SET-ASIDES BY PROCURING AGENCIES.
3. AGENCY DETERMINATION TO PROCURE NINE SYSTEMS AS PACKAGE RATHER
THAN THROUGH SEPARATE PROCUREMENTS FOR MATERIALS AND SERVICES OR THROUGH
A SEPARATE PROCUREMENT FOR EACH SYSTEM IS MATTER PRIMARILY WITHIN AGENCY
DISCRETION AND WILL NOT BE DISTURBED UNLESS PROTESTER PROVES DECISION
WAS UNREASONABLE.
4. IFB FOR TOTAL SMALL BUSINESS SET-ASIDE MAY SPECIFY COMPONENT
PARTS IDENTIFIED BY BRAND NAME TO LARGE BUSINESS MANUFACTURERS, SO LONG
AS SMALL BUSINESS WILL MAKE A SIGNIFICANT CONTRIBUTION TO MANUFACTURE OF
THE END ITEM. SMALL BUSINESS ACT IS NOT VIOLATED BY SPECIFYING LARGE
BUSINESS COMPONENTS.
JAZCO CORPORATION:
JAZCO CORPORATION (JAZCO), A MINORITY CONTROLLED SMALL BUSINESS
ENTERPRISE, PROTESTS IFB NO. DAAG 49-79-B-0041, ISSUED BY THE TOOELE
ARMY DEPOT. THE IFB CALLS FOR THE FABRICATION AND INSTALLATION OF AIR
POLLUTION CONTROL SYSTEMS (SYSTEMS), CONNECTION OF THE SYSTEMS TO
EXISTING EXPLOSIVE WASTE INCINERATORS AND START UP SUPPORT FOR THE
INCINERATORS AND THE SYSTEMS. THE IFB DESIGNATES THE PROCUREMENT AS A
TOTAL SMALL BUSINESS SET-ASIDE.
THE PROTESTER RAISES A NUMBER OF OBJECTIONS, DIRECTED IN LARGE
MEASURE TO THE SPECIFICATIONS AND THEIR IMPACT ON SMALL BUSINESS FIRMS.
EACH OBJECTION WILL BE DEALT WITH IN TURN; OUR DECISION DENIES EACH
BASIS FOR PROTEST.
THE CENTRAL ISSUE, AS WE SEE IT, IS JAZCO'S OBJECTION TO THE ARMY'S
SPECIFYING SEVERAL BRAND NAME COMPONENTS FOR THE SYSTEMS. JAZCO, A
SUPPLIER OF SIMILAR COMPONENTS, ALLEGES THAT THE SPECIFICATION BY BRAND
NAME OF A COMPETITOR'S PRODUCTS PREVENTED IT FROM BIDDING AS A GENERAL
CONTRACTOR. WE HAVE CONCLUDED THAT THE SPECIFICATION OF BRAND NAME
COMPONENTS WAS PROPER BECAUSE OF THE NEED FOR STANDARDIZATION OF
AMMUNITION-RELATED EQUIPMENT.
GENERALLY, SPECIFICATIONS MUST BE EXPRESSED IN TERMS OF THE SALIENT
PHYSICAL AND FUNCTIONAL CHARACTERISTICS NECESSARY TO MEET THE
GOVERNMENT'S MINIMUM NEEDS. THIS INSURES MAXIMUM COMPETITION IN
PROCUREMENT. DEFENSE ACQUISITION REGULATION (DAR) 1-1206.1 (1976 ED.)).
WHERE APPROPRIATE, THE GOVERNMENT MAY DESIGNATE AN ITEM AS "BRAND NAME
OR EQUAL" (DAR 1-1206.2 (1976 ED.)) AND IN SOME INSTANCES, PROCUREMENT
OF ONLY A BRAND NAME ITEM WILL BE NECESSARY. HERE, THE SYSTEMS BEING
PROCURED WERE NOT BRAND NAME ITEMS WHICH WOULD RESTRICT THE PROCUREMENT
TO A SOLE SOURCE OF SUPPLY, BUT CERTAIN BRAND NAME COMPONENTS WERE
REQUIRED. IN SUCH CIRCUMSTANCES, MANY FIRMS ARE ELIGIBLE TO COMPETE,
LIMITED AS THEY ARE BY ALL SPECIFICATIONS TO WHAT THEY COULD FURNISH.
IN REVIEWING THIS MATTER WE WILL CONSIDER WHETHER OR NOT THIS
PROCUREMENT WAS UNDULY RESTRICTIVE OF COMPETITION. B-165555, JANUARY
24, 1969.
THE ARMY POINTS OUT THAT THE PRESENT DESIGN AND COMPONENTS WERE
ESTABLISHED AND TESTED IN A COMPETITIVELY PROCURED PILOT SYSTEM. THE
SOLICITATION FOR THE PILOT PROJECT CONTAINED NO SPECIFICATION OF BRAND
NAME COMPONENTS, AND JAZCO COULD HAVE PARTICIPATED IN THE PILOT PROJECT.
IT DID NOT ELECT TO DO SO, AND ITS CURRENT SITUATION IS AT LEAST PARTLY
DUE TO THIS FACT. IN ADDITION, AT PRESENT THERE ARE NINE OR MORE
SYSTEMS IN EXISTENCE AT A NUMBER OF LOCATIONS. THE ARMY HAS STATED ITS
REASONS FOR SPECIFIFYING CERTAIN BRAND NAME COMPONENTS AS FOLLOWS:
"A TO MAINTAIN REPLACEMENT STOCK LEVELS FOR FEWER MODELS OF
EQUIPMENT.
"B. TO MAINTAIN DRAWINGS AND RECORDS THAT ARE APPLICABLE TO ALL
INSTALLATIONS WITHOUT HAVING TO NOTE THAT SOME DEPOTS HAVE DIFFERENT
MODELS OF EQUIPMENT.
"C. FABRICATION OF COMPONENTS IS SIMPLIFIED WHEN WORKING WITH ONLY
ONE SET OF DRAWINGS.
"D. WHEN MAKING MODIFICATIONS OR REVISIONS TO THE DESIGN, WE CAN
STANDARDIZE MUCH EASIER, KNOWING THAT ALL SYSTEMS ARE IDENTICAL.
"E. THE JOB OF FIELD TECHNICAL SUPPORT AND TRAINING OF OPERATORS IS
MORE EFFICIENTLY ACCOMPLISHED WHEN DEALING WITH IDENTICAL SYSTEMS.
"F. INTERCOMMUNICATION BETWEEN DEPOTS OR BETWEEN DEPOTS AND THULE
ARMY DEPOT ARE GREATLY SIMPLIFIED.
"G. THE STANDARDIZATION OF ALL AIR POLLUTION CONTROL SYSTEMS IS COST
EFFECTIVE TO THE GOVERNMENT."
ADDITIONALLY, WE HAVE BEEN INFORMED THAT THE EQUIPMENT AS SPECIFIED
MEETS STATE AIR QUALITY STANDARDS IN ALL STATES WHERE THE SYSTEMS WILL
BE USED. IF SUBSTITUTIONS OF CRITICAL COMPONENTS WERE TO BE MADE AT
THIS TIME, THE ARMY STATES THAT THE EQUIPMENT WOULD HAVE TO BE RETESTED
IN EACH STATE, CAUSING CONSIDERABLE ADDITIONAL EXPENSE AND DELAY.
THE PROTESTER, ON THE OTHER HAND, ARGUES THAT THE ARMY'S DECISION NOT
TO SUBSTITUTE EQUIPMENT IN THESE CIRCUMSTANCES "ONLY HAMPERS PROGRESS
DUE TO UNDUE REGULATIONS BY THE AGENCIES." HOWEVER, THE PROTESTER'S
ALLEGATIONS THAT AIR QUALITY REGULATIONS ARE UNREASONABLE ARE NOT
DETERMINATIVE OF THE REASONABLENESS OF THE ARMY'S DECISION TO OBSERVE
THOSE REGULATIONS OR TO AVOID THE EXPENSE OF RETESTING EQUIPMENT.
THE ARMY ALSO POINTS TO THE REQUIREMENT FOR STANDARDIZATION IN
(DARCOM) REGULATION 750-20 AS A REASON FOR REQUIRING CERTAIN BRAND NAME
COMPONENTS. THIS REQUIREMENT WOULD NOT NECESSARILY BE MET BY A
PROCUREMENT DESIGNATED BY THE BROADER DESCRIPTION "BRAND NAME OR EQUAL,"
EVEN THOUGH SUCH A DESCRIPTION MIGHT HAVE PERMITTED CONSIDERATION OF
JAZCO EQUIPMENT, AT LEAST ONE OF WHICH IS IDENTICAL IN DIMENSIONS TO THE
SPECIFIED BRAND NAME COMPONENT. A PRODUCT DESCRIPTION OF BRAND NAME OR
EQUAL "WILL NOT NORMALLY PROVIDE ITEMS OF IDENTICAL DESIGN." BRAND-REX
COMPANY, TELTRONICS DIVISION, B-187546, DECEMBER 15, 1976, 76-2 CPD 498.
ALTHOUGH THE DAR STATES AT 1-1206.2(B) THAT THE "OR EQUAL" DESCRIPTION
MAY NOTE THAT INTERCHANGEABILITY OF PARTS IS REQUIRED, THIS MAY RESULT
IN ADAPTATIONS OR MODIFICATIONS OF ESTABLISHED DESIGNS TO MEET SPECIFIC
REQUIREMENTS. INTERCHANGEABILITY AND STANDARDIZATION OF EQUIPMENT ARE
NOT CO-EXTENSIVE CONCEPTS.
WE HAVE ALSO RECOGNIZED UNIQUE NEEDS OF THE MILITARY, HOLDING THAT
BRAND NAME REQUIREMENTS ARE REASONABLE WHEN THE ITEMS TO BE PROCURED
MUST FIT INTO THE EXISTING MILITARY SUPPLY SYSTEM AND PROVIDE CONTINUING
LOGISTICAL SUPPORT. BOSTON PNEUMATICS, INC., B-185000, MAY 27, 1976,
76-1 CPD 345.
JAZCO ARGUES THAT DARCOM REGULATION 750-20 DOES NOT PROHIBIT THE
PROCUREMENT OF A JAZCO SYSTEM BECAUSE IT IS OFFERING THE SAME
SUBCOMPONENTS. BY THIS WE ASSUME THE PROTESTER MEANS THAT ITS PRODUCT
LINE IS MERELY SIMILAR TO THE SPECIFICATIONS. JAZCO HAS SUBMITTED
INFORMATION THAT ONE OF ITS COMPONENTS, A CYCLONE, IS IDENTICAL IN
DIMENSIONS TO THE SPECIFIED BRAND NAME PART. EVEN ASSUMING THAT ITS
CYCLONE IS ALSO EQUAL IN QUALITY, THERE IS NO DEMONSTRATION BY THE
PROTESTER THAT THE OTHER COMPONENTS WHICH IT PROPOSES TO SUBSTITUTE
WOULD ALSO BE INDENTICAL TO THE SPECIFIED BRAND NAME COMPONENTS.
FURTHER, JAZCO'S STATEMENT THAT IT OFFERS THE SAME COMPONENT PARTS
OCCURS IN THE CONTEXT OF A LETTER WHICH DETAILS NUMEROUS DESIGN AND
SPECIFICATION CHANGES WHICH JAZCO WOULD SUGGEST TO IMPROVE THE SYSTEM.
THIS MAKES IT IMPOSSIBLE TO HARMONIZE JAZCO'S OFFER OF THE "SAME
SUBCOMPONENTS" WITH THE AGENCY'S DESIRE TO STANDARDIZE THE SYSTEMS.
ON THE ABOVE BASES, IT IS APPARENT THAT THE ARMY HAS NOT OVERSTATED
ITS MINIMUM NEEDS IN SPECIFYING BRAND NAME COMPONENTS AND THAT THIS
PROCUREMENT DOES NOT UNDULY RESTRICT COMPETITION. FURTHERMORE, WE NOTE
THAT THE PROTESTER DOES NOT ALLEGE THAT IT MADE ANY EFFORT TO OBTAIN
PRICES OR OTHER INFORMATION FROM THE DESIGNATED SUPPLIERS. IT APPEARS
THAT JAZCO SIMPLY CHOSE NOT TO COMPETE FOR THIS PROCUREMENT BASED ON ITS
OWN BUSINESS JUDGMENT. THEREFORE, WE CANNOT SAY THAT JAZCO WAS
PRECLUDED FROM SUBMITTING A BID FOR THIS PROCUREMENT.
ADDITIONALLY, THE ARMY ADVISES US THAT, AS JAZCO ALLEGES, THE FIRST
SYSTEMS DID HAVE SOME DIFFICULTY WITH FIRES IN THE BAGHOUSE. THAT
PROBLEM WAS CAUSED BY IMPROPER INSTRUMENTATION IN THE DEACTIVATION
FURNACE AND NOT BY DEFECTS IN THE AIR POLLUTION CONTROL SYSTEM OR IN THE
BAGHOUSE ITSELF, AS ALLEGED BY JAZCO. THE ARMY STIPULATES THAT IT HAS
BEEN COMPLETELY REMEDIED AT THIS TIME. HENCE, JAZCO'S ASSERTIONS THAT
ITS DESIGN AND COMPONENT CHANGES WOULD RESULT IN REDUCED FIRE HAZARD DO
NOT PERSUADE US THAT A CHANGE IN COMPONENTS IS WARRANTED FOR REASONS OF
SAFETY AND EFFICIENCY.
THE REMAINDER OF THE PROTESTER'S REQUESTS DEAL WITH MATTERS RELATED
TO THE SMALL BUSINESS ADMINISTRATION (SBA), SMALL BUSINESS SET-ASIDES,
AND MINORITY BUSINESS CONCERNS.
PROTESTER REQUESTED THAT "THE MINORITY BUSINESS PROVISIONS BE
INCORPORATED AND IMPLEMENTED BY THE ARMY." THE ARMY REPORTS THAT IT
ATTEMPTED TO SECURE A MINORITY FIRM FOR THE CONTRACT THROUGH THE SBA'S
SUBCONTRACTING PROGRAM UNDER SECTION 8(A) OF THE SMALL BUSINESS ACT, 15
U.S.C. SEC. 637(A) (1976), AS AMENDED BY PUBLIC LAW NO. 95-507, 92 STAT.
1757. WHEN THE SBA WAS NOT ABLE TO PROVIDE A MINORITY FIRM, THE ARMY
DECIDED TO CONDUCT THE PROCUREMENT AS A SMALL BUSINESS SET-ASIDE. THE
IFB CONTAINED THE PROVISION IN DAR 7-2003 WHICH REQUESTS BIDDERS TO
IDENTIFY WHETHER THEY ARE MINORITY-OWNED ENTERPRISES. THE FACT THAT NO
MINORITY BUSINESSES SUBMITTED BIDS CONFIRMS THE SBA'S INITIAL BELIEF
THAT MINORITY FIRMS WERE NOT AVAILABLE TO SATISFY THE GOVERNMENT'S
REQUIREMENTS AS SPECIFIED.
THE PROTESTER IS CORRECT IN STATING THAT THE CONTRACT AWARDED SHOULD
CONTAIN A CLAUSE TO THE EFFECT THAT MINORITY-OWNED BUSINESSES BE GIVEN
MAXIMUM CONSIDERATION CONSISTENT WITH EFFICIENT PERFORMANCE OF THE
CONTRACT IN THE AWARDING OF SUBCONTRACTS. PUBLIC LAW NO. 95-507, SEC.
211, 92 STAT. 1757, 1767. HOWEVER, THAT CLAUSE REQUIRES ONLY THAT THE
SUCCESSFUL BIDDER CONSIDER AWARDING SUBCONTRACTS TO SMALL AND MINORITY
BUSINESSES. BY ITS TERMS THAT SECTION DOES NOT REGULATE AN AGENCY'S
SPECIFICATION FOR A BRAND NAME COMPONENT, NOR DOES IT PREVENT A
SUCCESSFUL BIDDERS' USE OF SPECIFIED COMPONENTS WHERE REQUIRED TO DO SO
BY THE IFB.
THE PROTESTER'S REQUEST THAT THE BONDING PROVISIONS BE WAIVED AS
PROVIDED IN PUBLIC LAW NO. 95-507 IS INAPPROPRIATE AS THIS PROCEDURE IS
APPLICABLE ONLY IN THE CONTEXT OF SBA 8(A) SUBCONTRACTING. SEE SEC.
202.
JAZCO'S FINAL OBJECTIONS DEAL WITH THE STRUCTURING OF THE
PROCUREMENT. THE PROTESTER ASSERTS THAT THE CONTRACT SHOULD HAVE BEEN
DIVIDED BETWEEN MATERIALS AND FABRICATION, OR ALTERNATIVELY THAT EACH
SYSTEM SHOULD HAVE BEEN CONTRACTED FOR SINGLY. IT IS ALLEGED THAT THIS
WOULD FACILITATE THE PARTICIPATION OF SMALL BUSINESS.
IN CASES WHERE PROTESTERS HAVE URGED THAT A PROCUREMENT SHOULD HAVE
BEEN DIVIDED INTO SEVERAL SMALLER PROCUREMENTS, WE HAVE CONSISTENTLY
HELD THAT IF THE AGENCY'S DECISION TO PROCURE ON A PACKAGE BASIS IS
REASONABLE, THIS OFFICE WILL NOT INTERFERE. ALLEN AND VICKERS, INC.;
AMERICAN LAUNDRY MACHINERY, 54 COMP. GEN. 445 (1974), 74-2 CPD 303;
AMPEX CORPORATION, B-191132, JUNE 16, 1978, 78-1 CPD 439.
THE FACT THAT FOUR BIDS WERE SUBMITTED CREATES A STRONG PRESUMPTION
THAT THE PROCUREMENT WAS NOT UNDULY RESTRICTIVE, AND THE BURDEN IS ON
THE PROTESTER TO PROVE THE CONTRARY. ASIDE FROM SUGGESTING THAT SMALL
BUSINESS WOULD BE BETTER SERVED BY MULTIPLE CONTRACTS, JAZCO HAS NOT
OFFERED ANY INFORMATION WHICH WARRANTS QUESTIONING THE AGENCY'S
JUDGMENT.
IMPLICIT IN JAZCO'S PROTEST IS THE CONTENTION THAT THE
CONGRESSIONALLY ENDORSED POLICY FAVORING SMALL BUSINESS IS VIOLATED IN
THIS PROCUREMENT BECAUSE THE SPECIFIED BRAND NAME COMPONENTS ARE
IDENTIFIED TO LARGE BUSINESS MANUFACTURERS. HOWEVER, A CONTRACT AWARD
TO A SMALL BUSINESS CONCERN UNDER A SMALL BUSINESS SETASIDE IS PROPER,
EVEN WHEN SOME WORK WILL BE PERFORMED BY LARGE BUSINESS CONCERNS. 49
COMP. GEN. 41 (1969); SAMPSON ELECTRONICS, INC., B-190863, JANUARY 4,
1978, 78-1 CPD 4 (74 PERCENT OF WORK SUBCONTRACTED TO LARGE BUSINESS);
J. & H. SMITH MFG. CO., INC., B-186303, JULY 14, 1976, 76-2 CPD 45
(MAJORITY OF WORK SUBCONTRACTED), AND LARGE BUSINESS MANUFACTURED
COMPONENT PARTS MAY BE SPECIFIED IN THE IFB FOR A SMALL BUSINESS
SET-ASIDE. KINETIC SYSTEMS, INC., B-189146, JULY 1, 1977, 77-2 CPD 5.
DESPITE THE FACT THAT FOUR OF SEVEN COMPONENT PARTS WERE SPECIFIED AS
LARGE BUSINESS PRODUCTS, THE SOLICITATION DOES NOT PRECLUDE PERFORMANCE
OF A MAJORITY OF THE WORK ON THE CONTRACT BY SMALL BUSINESS. TASKS
WHICH COULD BE COMPLETED BY SMALL BUSINESS INCLUDE OBTAINING ALL OTHER
SUPPLIES, CONSTRUCTION OF SUPPORT STRUCTURES, ASSEMBLY OF THE SYSTEMS,
CONNECTION TO THE DEACTIVATION FURNACE OF THE EXPLOSIVE WASTE
INCINERATORS AND PROVISION OF TECHNICAL ASSISTANCE IN THE START UP OF
BOTH SYSTEMS. IT IS OBVIOUS THAT THESE ACTIVITIES CONSTITUTE A
SIGNIFICANT CONTRIBUTION TO THE PERFORMANCE REQUIRED UNDER THE
SOLICITATION.
THE PROTEST IS DENIED.
B-194491, JUN 12, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
QUESTION WHETHER AGENCY MAY PROPERLY REQUEST BID EXTENSION IS NOT A
SIGNIFICANT ISSUE WARRANTING EXCEPTION TO GAO TIMELINESS STANDARDS.
SINGLETON ENTERPRISES - RECONSIDERATION:
SINGLETON ENTERPRISES (SINGLETON) REQUESTS RECONSIDERATION OF OUR
DECISION SINGLETON ENTERPRISES, B-194491, APRIL 18, 1979, 79-1 CPD 276,
DISMISSING ITS PROTEST AS UNTIMELY.
SINGLETON PROTESTED THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE
ARMY TO THE SECOND LOW BIDDER UNDER SOLICITATION NO. DABT02-78-B-0140.
AWARD WAS APPARENTLY NOT MADE TO SINGLETON, THE LOW BIDDER, BECAUSE OF
ITS REFUSAL TO GRANT THE GOVERNMENT A 30-DAY EXTENSION OF ITS BID
ACCEPTANCE PERIOD. WE DISMISSED THE PROTEST SINCE IT WAS NOT TIMELY
FILED AS REQUIRED BY OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20
(1978).
SINGLETON CONTENDS THAT ITS PROTEST SHOULD HAVE BEEN CONSIDERED ON
ITS MERITS BECAUSE IT RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES
AND PROCEDURES. OUR PROCEDURES DO PERMIT CONSIDERATION OF UNTIMELY
PROTESTS WHERE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES ARE RAISED.
4 C.F.R. SEC. 20.2(C).
HOWEVER, THE SIGNIFICANT ISSUE EXCEPTION IS LIMITED TO MATTERS WHICH
ARE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY (A PRINCIPLE OF
BROAD APPLICATION WHICH HAS NOT BEEN CONSIDERED BEFORE) AND IS INVOKED
SPARINGLY SO THAT THE TIMELINESS STANDARDS DO NOT BECOME MEANINGLESS.
WE HAVE HELD THAT IT IS NOT ILLEGAL FOR THE GOVERNMENT TO REQUEST BID
EXTENSIONS, ALTHOUGH IT IS FOR EACH BIDDER TO DECIDE WHETHER IT WISHES
TO EXTEND ITS BID. SEE TENNESSEE APPAREL CORPORATION, B-194461, APRIL
9, 1979, 79-1 CPD 247. THUS, WE SEE NOTHING IN THE PRESENT CASE TO
WARRANT INVOKING THIS EXCEPTION.
OUR DECISION IS AFFIRMED.
B-194612, JUN 12, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. UNINTENTIONAL ACTIONS OF AGENCY WHICH PRECLUDE PROTESTER
(INCUMBENT CONTRACTOR) FROM COMPETING ON PROCUREMENT DO NOT CONSTITUTE
COMPELLING REASON TO RESOLICIT SINCE ADEQUATE COMPETITION WAS GENERATED,
PRICES WERE NOT SHOWN TO BE UNREASONABLE, AND THERE WAS NO EVIDENCE THAT
SUCH ACTIONS WERE RESULT OF DELIBERATE OR CONSCIOUS ATTEMPT TO PRECLUDE
PROTESTER FROM COMPETING.
2. FAILURE OF AGENCY TO SYNOPSIZE PROCUREMENT IN COMMERCE BUSINESS
DAILY DOES NOT PROVIDE COMPELLING REASON TO RESOLICIT PROCUREMENT UNLESS
SUFFICIENT COMPETITION HAS NOT BEEN GENERATED OR THERE IS PROOF THAT
FAILURE TO SYNOPSIZE WAS PURPOSELY MEANT TO PRECLUDE PROTESTER FROM
COMPETING.
CHECK MATE INDUSTRIES, INC.:
CHECK MATE INDUSTRIES, INC. (CHECK MATE), PROTESTS ANY AWARD UNDER
INVITATION FOR BIDS (IFB) NO. DLA100-79-B-0501, ISSUED BY THE DEFENSE
LOGISTICS AGENCY (DLA) ON MARCH 22, 1979. THE SOLICITATION INVOLVED THE
PURCHASE OF BELT BUCKLES. THE GROUNDS FOR CHECK MATE'S PROTEST ARE THAT
DLA DID NOT SOLICIT A BID FROM CHECK MATE, THE INCUMBENT CONTRACTOR, AND
THAT THE PROPOSED PROCUREMENT WAS NOT PUBLISHED IN THE COMMERCE BUSINESS
DAILY. CHECK MATE WISHES TO HAVE THE IFB CANCELLED AND RESOLICITED. IN
ADDITION, CHECK MATE REQUESTS THAT OUR OFFICE STOP ANY AWARD OF A
CONTRACT PRIOR TO OUR RENDERING A DECISION.
REGARDING THE REQUEST THAT WE STOP AWARD PRIOR TO FINAL RESOLUTION OF
THIS PROTEST, OUR PROTEST PROCEDURES DO NOT PROVIDE FOR SUCH RELIEF AND
IT IS NOT OUR PRACTICE TO DO SO. TYMSHARE, INC., B-186858, JANUARY 23,
1978, 78-1 CPD 56. THE PROPER FORUM FOR SEEKING INJUNCTIVE RELIEF IS
THE FEDERAL COURTS. ID.
PROCEEDING TO THE MERITS OF CHECK MATE'S PROTEST, WE DENY THE PROTEST
FOR THE FOLLOWING REASONS. WE HAVE HELD THAT UNINTENTIONAL ACTIONS OF
AN AGENCY WHICH RESULT IN A POTENTIAL SUPPLIER BEING PRECLUDED FROM
COMPETING ON A PROCUREMENT DO NOT IN THEMSELVES CONSTITUTE A COMPELLING
REASON TO CANCEL THE SOLICITATION AND RESOLICIT WHERE ADEQUATE
COMPETITION WAS GENERATED, REASONABLE PRICES WERE OBTAINED, AND NO
DELIBERATE OR CONSCIOUS ATTEMPT WAS MADE TO PRECLUDE ANY POTENTIAL
BIDDER FROM COMPETING. THIS IS SO EVEN THOUGH THE POTENTIAL SUPPLIER IS
AN INCUMBENT CONTRACTOR. U.S. AIR TOOL CO., INC., B-192401, OCTOBER 30,
1978, 78-2 CPD 307.
THERE HAVE BEEN NO ALLEGATIONS OF AN INTENTIONAL ATTEMPT BY DLA TO
PRECLUDE CHECK MATE FROM COMPETING IN THIS PROCUREMENT. DLA REPORTS
THAT IT PUT A BID PACKAGE ADDRESSED TO CHECK MATE IN THE MAIL, AND
CANNOT EXPLAIN THE FAILURE OF CHECK MATE TO RECEIVE IT. AS REGARDS THE
NOTICE IN COMMERCE BUSINESS DAILY, THE REPORT CONTAINS A COPY OF A
LETTER TO THE COMMERCE BUSINESS DAILY DATED MARCH 14, 1979 (30 DAYS
BEFORE BID OPENING ON APRIL 11, 1979), WHICH CONTAINS A SYNOPSIS OF THE
SUBJECT PROCUREMENT. DLA REPORTS THAT IT QUESTIONED COMMERCE BUSINESS
DAILY PERSONNEL AS TO WHY THE SYNOPSIS HAD NOT BEEN PUBLISHED, AND WAS
TOLD THAT THE OMISSION WAS PROBABLY DUE TO A CLERICAL ERROR.
BASED ON THE RECORD BEFORE US, WE BELIEVE THAT THE FAILURE OF CHECK
MATE TO RECEIVE A BID PACKAGE AND THE OMISSION OF THE ANNOUNCEMENT FROM
THE COMMERCE BUSINESS DAILY WERE NOT THE RESULT OF DELIBERATE OR
CONSCIOUS ATTEMPTS BY DLA TO PRECLUDE CHECK MATE FROM COMPETING.
FURTHER, THE CONTRACTING OFFICER REPORTS THAT DLA RECEIVED TWO BIDS,
FROM WHICH HE HAS DETERMINED THAT THERE WAS ADEQUATE COMPETITION AND
THAT REASONABLE PRICES WERE OBTAINED. ALTHOUGH THE PROTESTER QUESTIONS
WHETHER TWO BIDS CONSTITUTE "ADEQUATE COMPETITION," WE DO NOT BELIEVE IT
HAS BEEN SHOWN THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETION IN
THIS REGARD. IN FACT, WE HAVE HELD THAT AWARD MAY BE MADE TO THE ONLY
BIDDER WHERE ONE BID WAS SUBMITTED, IF THE BID OFFERED A REASONABLE
PRICE AND THE AGENCY HAD MADE NO DELIBERATE ATTEMPT TO EXCLUDE A
PARTICULAR FIRM. CULLIGAN INC., CINCINNATI, OHIO, 56 COMP. GEN. 1011,
1013 (1977), 77-2 CPD 242. THEREFORE, THE OMISSION OF CHECK MATE FROM
THE SUBJECT PROCUREMENT DOES NOT REQUIRE A RESOLICITATION. SEE U.S. AIR
TOOL CO., INC., SUPRA.
THE PROTEST IS DENIED.
B-194886, JUN 12, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PROTEST AGAINST ALLEGED IMPROPRIETIES IN RFQ SENT BY CERTIFIED MAIL
LESS THAN 5 DAYS PRIOR TO DEADLINE FOR RECEIPT IN GAO AND ACTUALLY
RECEIVED AFTER CLOSING DATE FOR RECEIPT OF QUOTATIONS IS UNTIMELY AND
NOT FOR CONSIDERATION.
THERM-AIR MFG. CO., INC.:
THERM-AIR MFG. CO., INC. (THERM-AIR), PROTESTS THE AWARD OF A
CONTRACT BY THE DEPARTMENT OF THE NAVY, NAVAL SHIPS PARTS CONTROL
CENTER, MECHANICSBURG, PENNSYLVANIA, UNDER REQUEST FOR QUOTATIONS (RFQ)
NO. N00104-79-T-BW60. THERM-AIR CONTENDS THAT THE RFQ IS DEFECTIVE,
AMBIGUOUS AND CONFLICTS WITH ASPR REGULATIONS THAT PERTAIN TO
"PROCUREMENT OF SUPPLIES AND SERVICES."
THE PROCUREMENT IS FOR AIR CONDITIONERS. THE RFQ, ISSUED ON APRIL
30, 1979, SET THE CLOSING DATE FOR RECEIPT OF QUOTATIONS FOR MAY 14,
1979. THERM-AIR'S PROTEST TO OUR OFFICE WAS SENT BY CERTIFIED MAIL ON
MAY 10, 1979, AND RECEIVED (FILED) ON MAY 16.
SECTION 20.2(B)(1) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20
(1978), PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF
SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE
FOR RECEIPT OF INITIAL PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR
THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. ***"
SINCE THERM-AIR'S PROTEST WAS NOT FILED WITH OUR OFFICE PRIOR TO THE
CLOSING DATE FOR RECEIPT OF QUOTATIONS (MAY 14), THERM-AIR'S PROTEST IS
UNTIMELY.
HOWEVER, SEC. 20.2(B)(3) OF OUR PROCEDURES PROVIDES FOR CONSIDERATION
OF PROTESTS WHICH ARE UNTIMELY FILED IF THEY ARE SENT BY REGISTERED OR
CERTIFIED MAIL. SECTION 20.2(B)(3) STATES, IN PERTINENT PART, AS
FOLLOWS:
"*** ANY PROTEST RECEIVED IN THE GENERAL ACCOUNTING OFFICE AFTER THE
TIME LIMITS PRESCRIBED IN THIS SECTION SHALL NOT BE CONSIDERED UNLESS IT
WAS SENT BY REGISTERED OR CERTIFIED MAIL NOT LATER THAN THE FIFTH DAY
*** PRIOR TO THE FINAL DATE FOR FILING A PROTEST AS SPECIFIED HEREIN.
THE ONLY ACCEPTABLE EVIDENCE TO ESTABLISH THE DATE FOR MAILING SHALL BE
THE U.S. POSTAL SERVICE POSTMARK ON THE WRAPPER OR THE ORIGINAL RECEIPT
***."
THERM-AIR'S PROTEST WAS SENT BY "CERTIFIED MAIL" LESS THAN 5 DAYS
PRIOR TO THE DEADLINE FOR RECEIPT IN OUR OFFICE AND WAS ACTUALLY
RECEIVED HERE 2 DAYS AFTER THAT DEADLINE. SINCE THE PROTEST WAS NOT
SENT WITHIN THE TIME LIMIT PROVIDED FOR MAILING PROTESTS BY CERTIFIED
MAIL, OUR OFFICE WILL NOT CONSIDER THE PROTEST UNDER THE "CERTIFIED
MAIL" EXCEPTION.
THEREFORE, THE PROTEST IS DISMISSED.
B-194947, JUN 12, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE PROTESTER ALLEGES THAT LOW BIDDER'S BID PRICE IS
UNREASONABLY LOW, MERE FACT THAT BELOW-COST BID IS SUBMITTED DOES NOT
CONSTITUTE LEGAL BASIS FOR PRECLUDING AWARD.
2. WHETHER LOW BIDDER HAS ABILITY TO PERFORM CONTRACT BECAUSE IT
SUBMITTED BELOW-COST BID IS MATTER OF RESPONSIBILITY NOT FOR REVIEW BY
GAO EXCEPT IN CIRCUMSTANCES NOT PRESENT HERE.
GEORGE'S TREE SERVICE:
GEORGE'S TREE SERVICE (GTS) PROTESTS AWARD OF A CONTRACT BY THE MT.
TAYLOR RANGER DISTRICT TO THE TIMBERLINE CO. (TIMBERLINE) UNDER FOREST
SERVICE SOLICITATION NO. R3-03-74-4.
GTS CONTENDS THAT TIMBERLINE'S BID PRICE IS UNREASONABLY LOW AND THAT
TIMBERLINE WILL THEREFORE DEFAULT ON THE CONTRACT.
REGARDING GTS'S CONTENTION THAT TIMBERLINE'S BID PRICE IS
UNREASONABLY LOW, WE HAVE HELD THAT THE MERE FACT THAT A BIDDER MAY HAVE
SUBMITTED A BELOW-COST BID DOES NOT CONSTITUTE A LEGAL BASIS FOR
PRECLUDING A CONTRACT AWARD. EASTERN BROKERS INC. AND JAN PRO
CORPORATION, B-193774, JANUARY 31, 1979, 79-1 CPD 75.
TO REJECT A BID AS BEING UNREASONABLY LOW WOULD REQUIRE A
DETERMINATION THAT THE BIDDER IS NOT RESPONSIBLE. HOWEVER, AS REGARDS
THE ISSUE OF THE ABILITY OF A BIDDER TO PERFORM A CONTRACT BECAUSE OF A
BELOW-COST BID, OUR OFFICE NO LONGER REVIEWS PROTESTS INVOLVING A
CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF THE BIDDER'S
RESPONSIBILITY, UNLESS EITHER FRAUD IS SHOWN ON THE PART OF THE
PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE
RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. EASTERN
BROKERS INC. AND JAN PRO CORPORATION, SUPRA. SINCE THE RESPONSIBILITY
OF TIMBERLINE HAS NOT BEEN CHALLENGED ON EITHER OF THESE BASIS, WE WILL
NOT REVIEW THE MATTER.
THEREFORE, THE PROTEST IS DISMISSED.
B-191551, JUN 11, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
FORMER ARMY ENLISTED MEMBERS' CLAIM FOR TEMPORARY LODGING ALLOWANCE
FOR THEIR USE OF TEMPORARY LODGING IN GERMANY DURING A 10-DAY PERIOD IN
1973, WHICH THEY FIRST CLAIMED FROM THE ARMY A YEAR LATER, MAY NOT BE
ALLOWED SINCE ARMY RECORDS DO NOT CONTAIN THE DOCUMENTS REQUIRED BY
REGULATIONS TO SUPPORT THE CLAIM, AND THE CLAIMANTS ARE UNABLE TO
FURNISH THEM.
MICHAEL J. BADERA AND SUE ANN BADERA:
THIS ACTION IS IN RESPONSE TO A LETTER FROM FORMER SPECIALIST FOURTH
CLASS MICHAEL J. BADERA APPEALING OUR CLAIMS DIVISION'S DISALLOWANCE OF
HIS AND HIS WIFE'S (FORMER SPECIALIST FOURTH CLASS SUE ANN BADERA)
CLAIMS FOR TEMPORARY LODGING ALLOWANCE (TLA) INCIDENT TO THEIR SERVICE
IN THE UNITED STATES ARMY IN AUGSBURG, GERMANY.
WE SUSTAIN THE DISALLOWANCE OF THE CLAIM BECAUSE OF THE LACK OF
SUBSTANTIATING DOCUMENTS AND THE OVERSEAS COMMANDER'S DETERMINATION OF
THE NECESSITY FOR USING TEMPORARY LODGING REQUIRED BY THE APPLICABLE
REGULATIONS.
MR. AND MRS. BADERA CLAIM TLA FOR THE 10-DAY PERIOD OF AUGUST 9-18,
1973, DURING WHICH THEY INDICATE THEY WERE REQUIRED TO LIVE IN
"TOURIST/HOTEL" TYPE ACCOMMODATIONS UPON THEIR ARRIVAL AT THEIR DUTY
STATION, DETACHMENT N, ECKSTEIN, AUGSBURG, GERMANY. THEY SAY THEY FIRST
APPLIED FOR TLA FOR THAT PERIOD IN SEPTEMBER 1974, OVER A YEAR AFTER
THEIR ARRIVAL AT DETACHMENT N BECAUSE PREVIOUSLY THEY WERE UNAWARE OF
THEIR ENTITLEMENT TO TLA. THEY STATE THAT AT THAT TIME THE DETACHMENT
FIRST SERGEANT CHECKED WITH THE FINANCE SECTION, WHICH ADVISED THAT THEY
WERE ENTITLED TO TLA, AND HE THEN FORWARDED THE TLA FORMS ON TO THE
DETACHMENT COMMANDER FOR HIS SIGNATURE.
APPARENTLY THE BADERAS DID NOT RECEIVE PAYMENT AND THEY INDICATE THEY
APPLIED FOR TLA FOR THAT PERIOD AGAIN BEFORE LEAVING THE ARMY IN
NOVEMBER 1974. MR. BADERA INDICATES THAT BOTH OF THESE CLAIMS AND
SUPPORTING DOCUMENTS WERE LOST BY THE ARMY.
IN DECEMBER 1975, AFTER LEAVING THE ARMY, THEY AGAIN FILED A CLAIM
FOR THE TLA WHICH WAS FORWARDED TO OUR CLAIMS DIVISION BY THE ARMY
FINANCE CENTER AS A DOUBTFUL CLAIM BECAUSE OF THE LACK OF SUPPORTING
DOCUMENTS. IN SUPPORT OF THEIR CLAIM THE BADERAS FURNISHED THEIR
SIGNED, NOTARIZED STATEMENT TO THE EFFECT THAT THERE WERE NO GOVERNMENT
QUARTERS AVAILABLE TO THEM, THAT THEY STAYED IN PRIVATE TOURIST/HOTEL
ACCOMMODATIONS; AND THE APPROXIMATE COST OF THOSE ACCOMMODATIONS. THEY
ALSO FURNISHED A COPY OF A MAY 9, 1975 LETTER TO THEM FROM THE FIRST
SERGEANT, COMPANY B (ECKSTEIN) IN WHICH HE SAYS THE FINANCE SECTION SENT
THEIR REQUESTS FOR TLA TO FORT DIX, NEW JERSEY, FOR FURTHER PROCESSING
ON NOVEMBER 11, 1974, BECAUSE THE BADERAS' RECORDS WERE NO LONGER
AVAILABLE IN GERMANY.
THE ARMY FINANCE CENTER AND THE FORT DIX FINANCE AND ACCOUNTING
OFFICE WERE APPARENTLY UNABLE TO LOCATE THE SUBSTANTIATING DOCUMENTATION
TO SUPPORT THE BADERAS' CLAIM. UPON RECEIPT OF THE BADERAS' APPEAL
LETTER WE REQUESTED A FURTHER SEARCH OF ARMY RECORDS. WE HAVE BEEN
ADVISED THAT THE ARMY FINANCE CENTER, AFTER FURTHER INQUIRY TO FORT DIX,
HAS BEEN UNABLE TO LOCATE ANY ADDITIONAL INFORMATION CONCERNING THE
CLAIM.
PURSUANT TO 37 U.S.C. 405 (1976), VOLUME 1, JOINT TRAVEL REGULATIONS
(1 JTR), PARAGRAPH M4303, AUTHORIZES TLA FOR THE PURPOSE OF "PARTIALLY
REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES" INCURRED AT
HOTELS OR HOTEL-LIKE ACCOMMODATIONS. TLA IS AUTHORIZED UPON INITIAL
ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND
PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR PENDING COMPLETION OF
ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT
QUARTERS ARE NOT AVAILABLE. PARAGRAPH M4303-2 PROVIDES CERTAIN
CONDITIONS UNDER WHICH TLA IS PAYABLE. INCLUDED IN THESE CONDITIONS IS
A DETERMINATION BY THE OVERSEAS COMMANDER THAT OCCUPANCY OF TEMPORARY
LODGING IS NECESSARY AND THAT GOVERNMENT QUARTERS ARE NOT AVAILABLE.
ALSO NECESSARY TO SUBSTANTIATE A CLAIM SUCH AS THIS WOULD BE A COPY
OF THE PERMANENT CHANGE-OF-STATION ORDERS TO THE OVERSEAS STATION AND
EVIDENCE OF THE EXPENSES AND LENGTH OF STAY IN THE TEMPORARY LODGING,
SUCH AS HOTEL RECEIPTS.
WHILE THE BADERAS HAVE FURNISHED THEIR PERSONAL STATEMENT AS TO THE
COST AND NECESSITY OF THEIR TEMPORARY LODGING AND THE LETTER FROM THE
DETACHMENT FIRST SERGEANT SAYING THEIR CLAIM HAD BEEN SENT TO FORT DIX,
THAT IS NOT SUFFICIENT EVIDENCE FOR US TO ALLOW THEIR CLAIM. WHILE IT
IS UNFORTUNATE THAT THEIR DOCUMENTATION MAY HAVE BEEN LOST, PRIMARY
RESPONSIBILITY FOR FURNISHING SATISFACTORY EVIDENCE TO SUPPORT PAYMENT
OF A CLAIM IS UPON THE CLAIMANT. 53 COMP. GEN. 181, 184 (1973) AND 31
COMP. GEN. 340 (1952). AS IS INDICATED ABOVE, ALTHOUGH SEVERAL SEARCHES
OF ARMY RECORDS HAVE BEEN MADE, THE SUPPORTING INFORMATION THE BADERAS
INDICATE WAS SENT FORWARD IN 1974 HAS NOT BEEN LOCATED.
IN THESE CIRCUMSTANCES WE HAVE NO ALTERNATIVE BUT TO DISALLOW THE
CLAIM. ACCORDINGLY, THE ACTION OF THE CLAIMS DIVISION IS SUSTAINED.
B-192562, JUN 11, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
ADMINISTRATIVE LAW JUDGES, WHO SERVED AS TEMPORARY GS-14 BLACK LUNG
HEARING EXAMINERS, REQUEST RETROACTIVE ADJUSTMENT OF PAY ON BASIS OF
HIGHEST PREVIOUS RATE RULE. THEY ARE NOT ENTITLED TO ADJUSTMENT BECAUSE
APPLICATION OF HIGHEST PREVIOUS RATE RULE IS DISCRETIONARY AND RATE WAS
PROPERLY SET IN ACCORDANCE WITH THE AGENCY'S REGULATIONS WHEN THEY WERE
GIVEN PERMANENT GS-13 POSITIONS PURSUANT TO PUB. L. NO. 92-603.
HOWEVER, THEY SHOULD BE GIVEN CREDIT FOR TIME SPENT IN GS-14 BLACK LUNG
POSITION TOWARD WITHIN-GRADE INCREASES IN THEIR GS-14 ADMINISTRATIVE LAW
JUDGE TEMPORARY POSITIONS UNDER PUB. L. NO. 94-202 SINCE THEIR
REASSIGNMENT TO SUCH POSITIONS DID NOT START NEW WAITING PERIODS.
MILTON MORVITZ, ET AL. - SOCIAL SECURITY ADMINISTRATION
ADMINISTRATIVE LAW JUDGES - WITHIN-GRADE SALARY INCREASES:
THIS DECISION IS IN RESPONSE TO A CLAIM BY SOCIAL SECURITY
ADMINISTRATION (SSA) ADMINISTRATIVE LAW JUDGES (ALJ) MILTON MORVITZ,
WANDA M. LEWANDOWSKI, JACK R. REED, AUBREY L. TOMLIN, AND ROBERT B.
BELL, FOR WITHIN-GRADE SALARY INCREASES UNDER THE PROVISIONS OF 5 U.S.C.
SEC. 5335 (1976). WE HAVE ALSO BEEN ADVISED BY THE DIRECTOR, OFFICE OF
PERSONNEL POLICY, OFFICE OF THE SECRETARY, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE (HEW), THAT THERE ARE ABOUT 100 ALJS WHOSE
CIRCUMSTANCES ARE THE SAME AND THAT THEY WILL ALSO BE AFFECTED BY THIS
DECISION.
ADMINISTRATIVE LAW JUDGES ARE NORMALLY GIVEN CAREER APPOINTMENTS
UNDER 5 U.S.C. SEC. 3105 (1970) AND 5 C.F.R. PART 930, SUBPART B.
HOWEVER, THE SUPPLEMENTAL APPROPRIATIONS ACT OF 1972, PUB. L. NO.
92-184, 85 STAT. 627 (DEC. 15, 1971), GAVE AUTHORITY TO THE COMMISSIONER
OF SOCIAL SECURITY TO APPOINT PERSONS TO CONDUCT HEARINGS ARISING OUT OF
THE FEDERAL COAL MINE HEALTH AND SAFETY ACT, 30 U.S.C. SEC. 901 (1970),
WITHOUT MEETING THE REQUIREMENTS FOR HEARING EXAMINERS APPOINTED UNDER 5
U.S.C. SEC. 3105. THE CIVIL SERVICE COMMISSION DETERMINED THAT THE
BLACK LUNG HEARING EXAMINERS (BLH EXAMINERS) WOULD BE IN THE EXCEPTED
SERVICE. THE ACT PLACED A TIME LIMIT ON THE DURATION OF THE AUTHORITY
TO NOT LATER THAN DECEMBER 31, 1973; HOWEVER, THE DATE WAS EXTENDED
SEVERAL TIMES BY SUBSEQUENT LEGISLATION. THE APPOINTMENTS WERE MADE ON
A NOT-TO-EXCEED BASIS, AND WERE CLASSIFIED AT THE GS-14 GRADE.
IN OUR DECISION OF OCTOBER 26, 1972, B-164031, WE HELD THAT THESE
EXCEPTED SERVICE, TIME-LIMITED APPOINTMENTS WERE ANALOGOUS TO TERM
APPOINTMENTS IN THE COMPETITIVE SERVICE AND THAT THE HEARING EXAMINERS
SERVING UNDER THE NOT-TO-EXCEED APPOINTMENTS WERE ENTITLED TO
WITHIN-GRADE SALARY INCREASES. SEE ALSO 58 COMP. GEN. 25 (B-191861,
OCTOBER 20, 1978). THUS, THE INDIVIDUALS WERE ADVANCED FROM STEP TO
STEP UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5335 (1970).
SECTION 1631(D)(2) OF THE SOCIAL SECURITY ACT, AS ADDED BY SECTION
301 OF PUB. L. NO. 92-603, 86 STAT. 1476 (OCT. 30, 1972), 42 U.S.C. SEC.
1383(D)(2) (SUPP. II, 1972), AUTHORIZED THE SECRETARY OF HEW TO APPOINT
HEARING EXAMINERS TO CONDUCT HEARINGS RELATED TO THE SUPPLEMENTAL
SECURITY INCOME PROVISIONS OF THAT ACT WITHOUT REGARD TO THE
REQUIREMENTS FOR HEARING EXAMINERS APPOINTED UNDER 5 U.S.C. SEC. 3105.
POSITIONS FOR THESE INDIVIDUALS WERE ESTABLISHED AS ATTORNEY-EXAMINER
(GENERAL) AT THE GS-13 LEVEL. THESE INDIVIDUALS ARE REFERRED TO AS SSI
HEARING EXAMINERS AND THERE WAS NO TIME LIMIT ON THEIR APPOINTMENTS.
THE AGENCY REPORT STATES THAT SSA WAS CONCERNED THAT THE GS-14 BLH
EXAMINERS MIGHT LEAVE THEIR TIME-LIMITED TEMPORARY APPOINTMENTS TO TAKE
A GS-13 SSI HEARING EXAMINER PERMANENT POSITION WITHOUT A TIME LIMIT.
BECAUSE OF THE CRITICAL NEED FOR PERSONNEL TO CONTINUE WORKING ON THE
BLACK LUNG CASES UNTIL THE BACKLOG COULD BE REDUCED, A PLAN WAS DEVISED
BY HEW IN 1973 OR 1974, TO GIVE THE BLH EXAMINERS WHO SO DESIRED
APPOINTMENTS TO SSI EXAMINER POSITIONS TO ASSURE THEM OF POSITIONS IN
THE SSI PROGRAM WHEN THE BLACK LUNG APPOINTMENTS WERE TERMINATED. TO
AVOID DUAL COMPENSATION, THEY WERE IMMEDIATELY PLACED IN A
LEAVE-WITHOUT-PAY (LWOP) STATUS IN THE GS-13 POSITIONS, AND THEY
CONTINUED TO BE PAID AT THE GS-14 RATE OF THE BLACK LUNG POSITION.
THUS, EACH INDIVIDUAL HELD A PERMANENT POSITION AT THE GS-13 LEVEL, AND
A TEMPORARY POSITION IN THE NATURE OF A DETAIL, AT GRADE GS-14.
PUBLIC LAW NO. 94-202, 89 STAT. 1135 (JAN. 2, 1976), REPEALED SECTION
1631(D)(2) OF THE SOCIAL SECURITY ACT. HOWEVER, PROVISION WAS MADE IN
PUB. L. NO. 94-202 FOR PERSONS WHO HAD BEEN APPOINTED UNDER SECTION
1631(D)(2) TO CONTINUE TO SERVE FOR A PERIOD NOT TO EXCEED DECEMBER 31,
1978, DURING WHICH TIME THEY COULD, IF THE SECRETARY OF HEW SO
DETERMINED, CONDUCT HEARINGS UNDER TITLES II, XVI, AND XVIII OF THE
SOCIAL SECURITY ACT. THE SECRETARY MADE THAT DETERMINATION, 41 FED.
REG. 9242 (MARCH 3, 1976), AND A POSITION OF ADMINISTRATIVE LAW JUDGE
(TEMPORARY) GS-14, WAS ESTABLISHED TO REFLECT THE ADDITIONAL DUTIES THAT
COULD BE ADDED TO THE SSI POSITION.
PUBLIC LAW NO. 94-202 DID NOT PROVIDE FOR ANY NEW APPOINTMENT AS
ALJS; THEREFORE, ONLY THOSE INDIVIDUALS HOLDING PERMANENT POSITIONS AS
SSI HEARING EXAMINERS, GS-13, WERE ELIGIBLE. THUS, HEW RETURNED THE BLH
EXAMINERS TO DUTY FROM AN LWOP STATUS TO THEIR PERMANENT POSITIONS AS
SSI HEARING EXAMINERS. AT THE SAME TIME THE BLACK LUNG POSITIONS WERE
TERMINATED AND THE EMPLOYEES WERE PROMOTED TO THE GS-14 ADMINISTRATIVE
LAW JUDGE (TEMPORARY) POSITIONS. SECTION 371 OF PUB. L. NO. 95-216, 91
STAT. 1559 (DEC. 20, 1977), CONVERTED THE APPOINTMENTS OF THE HEARING
EXAMINERS TO CAREER-ABSOLUTE AT THE GS-15 GRADE, AND ALL ARE NOW
PERMANENT ADMINISTRATIVE LAW JUDGES, GS-15.
THE TWO SIGNIFICANT ACTIONS ON THE PART OF HEW THAT GAVE RISE TO
THESE CLAIMS OCCURRED WHEN THE BLH EXAMINERS WERE GIVEN PERMANENT
APPOINTMENTS AS GS-13 SSI EXAMINERS IN 1974 AND 1975, AND CONTINUED TO
SERVE IN THEIR TEMPORARY POSITIONS AS BLH EXAMINERS, AND AGAIN IN 1976,
AFTER THE PASSAGE OF PUB. L. NO. 94-202, WHEN THE BLH EXAMINERS WERE
RETURNED TO THEIR GS-13 SSI EXAMINER POSITIONS AND PROMOTED TO GS-14
TEMPORARY ADMINISTRATIVE LAW JUDGE POSITIONS.
THE CLAIMANTS STATE THAT HEW DID NOT APPLY THE "HIGHEST PREVIOUS RATE
RULE" IN 1974 AND 1975 WHEN THEY WERE APPOINTED TO THEIR PERMANENT
POSITIONS AT THE GS-13 LEVEL, AND PLACED IN AN LWOP STATUS IN THE GS-13
POSITIONS WHILE THEY CONTINUED TO SERVE AS BLH EXAMINERS, GS-14. THE
CLAIMANTS ALLEGE THAT THIS ACTION WAS CONTRARY TO HEW POLICY, AND THAT
INEQUITIES OCCURRED BECAUSE THOSE INDIVIDUALS WHO CHOSE NOT TO CONTINUE
AS BLH EXAMINERS, AND REMAINED AS SSI EXAMINERS WERE GIVEN THE ADVANTAGE
OF THE HIGHEST PREVIOUS RATE RULE. THIS ACTION ON THE PART OF HEW HAD
THE EFFECT OF PLACING THE CLAIMANTS AT A LOWER STEP IN GRADE IN 1976,
AFTER THE PASSAGE OF PUB. L. NO. 94-202, THAN THE INDIVIDUALS WHO
REMAINED AS SSI EXAMINERS. FOR EXAMPLE, AN SSI EXAMINER WHO, IN 1974 OR
1975 DID NOT REMAIN A BLH EXAMINER WAS GIVEN A STEP 9 IN GRADE GS-13
BECAUSE OF THE APPLICATION OF THE HIGHEST PREVIOUS RATE RULE AND WAS
PLACED AT A GRADE GS-14, STEP 6, UPON PROMOTION IN 1976 TO AN ALJ
(TEMPORARY). ON THE OTHER HAND, THE INDIVIDUALS WHO REMAINED AS BLH
EXAMINERS WERE GIVEN A STEP 5 OR 6 IN PERMANENT GRADES OF GS-13 BECAUSE
HEW DID NOT APPLY THE HIGHEST PREVIOUS RATE RULE TO THEM. WHEN THEY
WERE GIVEN APPOINTMENTS AS ALJS (TEMPORARY) IN 1976, THEY REMAINED AT
STEP 4 OF GS-14. THESE INDIVIDUALS WERE THEN DETAILED BACK TO SERVE AS
BLH EXAMINERS AT THEIR PRIOR RATE OF GS-14, STEP 4.
THE CLAIMANTS STATE THAT THEIR PRINCIPAL CLAIM IS THAT THEY SHOULD
HAVE BEEN GIVEN TWO OR MORE IN-GRADE STEP INCREASES IN GS-13 IN 1974 AND
1975. HOWEVER, THEY ALSO POINT OUT THAT THEY HAVE BEEN IN GRADE GS-14,
STEP 4, IN EXCESS OF 2 YEARS, ALTHOUGH ONLY 2 YEARS IN GRADE IS REQUIRED
FOR PROMOTION TO THE NEXT STEP. 5 C.F.R. SEC. 531.403(A)(II) (1976).
THE RATE OF BASIC PAY TO WHICH AN EMPLOYEE IS ENTITLED UPON CHANGE OF
POSITION OR TYPE OF APPOINTMENT IS GOVERNED BY REGULATIONS PRESCRIBED BY
THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF PERSONNEL MANAGEMENT) 5
U.S.C. SEC. 5334 (1970). THE CIVIL SERVICE COMMISSION PRESCRIBED SUCH
REGULATIONS IN TITLE 5 OF THE CODE OF FEDERAL REGULATIONS, SECTION
531.203(C) (1976), WHICH STATES IN PERTINENT PART THAT:
"*** WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED,
PROMOTED, OR DEMOTED, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE
WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE; HOWEVER, IF HIS
HIGHEST PREVIOUS RATE FALLS BETWEEN TWO RATES OF HIS GRADE, THE AGENCY
MAY PAY HIM AT THE HIGHER RATE. ***"
WE HAVE CONSISTENTLY VIEWED THIS REGULATION AS VESTING DISCRETION IN
THE AGENCY REGARDING APPLICATION OF THE SO-CALLED "HIGHEST PREVIOUS RATE
RULE" IN THE ESTABLISHMENT OF AN EMPLOYEE'S RATE OF PAY. PASWATER,
B-191881, JULY 25, 1978; RUSSELL, B-186554, DECEMBER 28, 1976.
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE CONCEDES THAT IT
APPLIED THE HIGHEST PREVIOUS RATE RULE IN SOME CASES AND NOT IN OTHER
CASES. THE HEW FURTHER STATES THAT IT WAS UNABLE TO DETERMINE FROM ITS
RECORDS THE BASIS FOR THE DECISION IN EACH CASE. HOWEVER, IT STATES
THAT:
"*** DEPARTMENTAL POLICY IS THAT, WITH CERTAIN EXCEPTIONS, AN
EMPLOYEE'S PAY WILL BE SET ON THE BASIS OF HIS HIGHEST PREVIOUS RATE.
*** BUT APPOINTING OFFICERS ARE AUTHORIZED TO PAY LESS THAN THE HIGHEST
PREVIOUS RATE WHEN SUCH RATE IS NOT CONSIDERED WARRANTED. THUS, IN
APPLYING THE HIGHEST PREVIOUS RATE RULE, BHA (BUREAU OF HEARINGS AND
APPEALS, SSA) HAD THE AUTHORITY TO DETERMINE THE RATE THAT WAS WARRANTED
AND TO SET PAY ACCORDINGLY. WE BELIEVE THAT BHA MADE THE APPROPRIATE
DETERMINATIONS IN CONCLUDING THAT THE EMPLOYEES SHOULD BE RESTORED TO
THE GS-14 PAY THEY WERE RECEIVING UNDER THEIR NOT-TO- EXCEED
APPOINTMENTS."
WE AGREE WITH HEW AS TO ITS DETERMINATIONS UNDER THE HIGHEST PREVIOUS
RATE RULE. THE HEW HAS PROMULGATED REGULATIONS PERTAINING TO PAY UNDER
THE GENERAL SCHEDULE IN HEW INSTRUCTION 531-2. THE INSTRUCTION STATES
IN PERTINENT PART:
"531-2-40 USUAL POLICY
"A. FPM 531, SUBCHAPTER 2 STATES THE REQUIREMENTS FOR DETERMINING
THE RATE OF BASIC PAY. WITHIN THESE REQUIREMENTS, THE DEPARTMENT MAY
EXERCISE DISCRETION IN SETTING THE SALARY OF A PERSON WITH PREVIOUS
FEDERAL SERVICE WHOSE HIGHEST PREVIOUS RATE (AS DEFINED IN THE FPM) WAS
ABOVE THE MINIMUM SCHEDULED RATE OF THE GENERAL SCHEDULE GRADE TO WHICH
HE IS BEING APPOINTED OR CHANGED. WHERE SUCH DISCRETION IS PERMITTED,
THE DEPARTMENT'S POLICY IS AS FOLLOWS:
"1. UNLESS OTHERWISE PROVIDED IN THIS INSTRUCTION, THE EMPLOYEE'S
PAY WILL NORMALLY BE SET ON THE BASIS OF HIS HIGHEST PREVIOUS RATE IN
ACCORDANCE WITH THE PROVISIONS OF FPM 531, SUBCHAPTER 2-4. FOR
INSTANCE, IF THE HIGHEST PREVIOUS RATE FALLS BETWEEN TWO STEPS OF A
GRADE, THE HIGHER OF THE TWO STEPS WILL BE CHOSEN UNLESS OTHERWISE
SPECIFIED IN THIS INSTRUCTION OR THE FPM.
"B. THE APPOINTING OFFICIAL SHALL MAKE SURE THAT EMPLOYEES IN LIKE
CIRCUMSTANCES ARE TREATED ALIKE.
"531-2-50 EXCEPTIONS TO THE USUAL POLICY
"A. APPOINTING OFFICERS ARE AUTHORIZED TO PAY LESS THAN THE HIGHEST
PREVIOUS RATE WHEN SUCH RATE IS NOT CONSIDERED WARRANTED. THE FOLLOWING
ARE EXAMPLES OF SUCH CIRCUMSTANCES:
"3. THE EMPLOYEE IS CHANGED TO A LOWER GRADE AT HIS OWN REQUEST WITH
GOOD PROSPECTS OF RE-PROMOTION. SELECT A RATE IN THE LOWER GRADE WHICH
UPON RE-PROMOTION WOULD PLACE THE EMPLOYEE AT A RATE OF PAY HE WOULD
HAVE ATTAINED HAD HE REMAINED AT THE HIGHER GRADE."
IT IS APPARENT THAT HEW HAS A POLICY OF APPLYING THE HIGHEST RATE
RULE, BUT THE EMPHASIZED PORTIONS OF THE INSTRUCTION PLAINLY POINT OUT
THAT THIS POLICY IS DISCRETIONARY. FURTHER, THE FACTS IN THIS CASE
INDICATE THAT THE EXCEPTION IN HEW INSTRUCTION 531-2-50-A- 3 WOULD HAVE
APPLIED IN 1974 WHEN THE BLH EXAMINERS WERE ASSIGNED TO A PERMANENT
POSITION AS SSI HEARING EXAMINERS, GS-13. THE EMPLOYEES DID SO AT THEIR
OWN REQUEST IN ORDER TO GAIN PERMANENT STATUS. THUS, HEW FOLLOWED THE
INSTRUCTIONS FOR DETERMINING THE RATE OF BASIC PAY IN FPM SUPPLEMENT
990-2, BOOK 531, SUBCHAPTER S2-4B(3) (REVISED JULY 1969) WHICH PROVIDES
THAT:
"(3) OBJECTIONAL USE OF HIGHEST PREVIOUS RATE. WHEN AN EMPLOYEE IS
DEMOTED AT HIS OWN REQUEST WITH THE PROSPECT OF REPROMOTION BACK TO THE
FORMER GRADE AS SOON AS POSSIBLE UNDER MERIT PROMOTION RULES (E.G., A
DEMOTION TO ACQUIRE STATUS), AGENCIES SHOULD SELECT A RATE IN THE LOWER
GRADE WHICH UPON PROMOTION BACK WILL PLACE THE EMPLOYEE IN THE RATE IN
THE HIGHER GRADE WHICH HE WOULD HAVE ATTAINED HAD HE REMAINED IN THAT
GRADE."
THE CLAIMANTS ALSO ALLEGE THAT HEW DID NOT TREAT ALL OF THE EMPLOYEES
IN LIKE CIRCUMSTANCES ALIKE AND THUS WERE ARBITRARY. ALTHOUGH THE
RECORD IS SILENT IN THE MATTER, IT APPEARS (1) THAT THE AGENCY APPLIED
THE HIGHEST PREVIOUS RATE RULE ONLY TO THOSE EMPLOYEES WHO REMAINED AS
SSI HEARING EXAMINERS, AND (2) THAT THOSE WHO ELECTED TO RETURN TO THEIR
DUTIES AS BLH EXAMINERS WERE PLACED IN STEPS IN GS-13 WHICH, UPON
RE-PROMOTION, WOULD PLACE THEM AT THE RATE OF PAY THEY WOULD HAVE
ATTAINED HAD THEY REMAINED AT THE HIGHER GRADE. THEREFORE, HEW
EXERCISED ITS DISCRETIONARY AUTHORITY AND TREATED THE INDIVIDUALS IN
EACH GROUP ALIKE.
WE HAVE ALSO HELD THAT THE HIGHEST PREVIOUS RATE RULE SHOULD NOT BE
USED AS A VEHICLE TO CIRCUMVENT THE PERIOD REQUIRED FOR WITHIN-GRADE
SALARY ADVANCEMENTS. 35 COMP. GEN. 370 (1955). THIS WOULD HAVE
OCCURRED IN 1974, IF HEW HAD APPLIED THE HIGHEST PREVIOUS RATE RULE AND
THEN REPROMOTED THE EMPLOYEES TO GS-14. SECTION 531.203(C), TITLE 5,
CODE OF FEDERAL REGULATIONS, AND HEW INSTRUCTION 531-2 GIVE BROAD
DISCRETION TO AGENCY APPOINTING OFFICIALS TO GRANT OR DENY THE HIGHEST
PREVIOUS RATE IN A VARIETY OF PERSONNEL ACTIONS. WHERE AGENCY ACTION IS
COMMITTED TO AGENCY DISCRETION, THE STANDARD TO BE APPLIED BY THE
REVIEWING AUTHORITY IN REVIEWING THE ACTION OF THE AGENCY IS WHETHER THE
ACTION IS ARBITRARY, CAPRICIOUS, AN ABUSE OF DISCRETION, OR OTHERWISE
NOT IN ACCORDANCE WITH LAW. ARBITRARINESS AND CAPRICIOUSNESS EXIST IF
AGENCY ACTION LACKS A RATIONAL BASIS. 54 COMP. GEN. 310 (1974). THERE
IS NO EVIDENCE IN THE RECORD THAT THE AGENCY'S ACTION LACKS A RATIONAL
BASIS.
IN VIEW OF THE ABOVE, WE MUST CONCLUDE THAT THERE WAS NOTHING
IMPROPER IN HEW'S REFUSAL TO APPLY THE HIGHEST PREVIOUS RATE RULE TO
THOSE INDIVIDUALS CONCERNED.
THE CLAIMANTS ALSO ARGUE THAT HEW WAS AGAIN GIVEN THE DISCRETION TO
APPLY THE HIGHEST PREVIOUS RATE RULE IN 1976. AT THAT TIME THE BLACK
LUNG POSITION WAS TERMINATED PURSUANT TO PUB. L. NO. 94-202, AND HEW
ADMINISTRATIVELY REMOVED THE BLH EXAMINERS FROM THEIR LWOP STATUS. THIS
ACTION ON THE PART OF HEW APPARENTLY HAD THE EFFECT OF RETURNING THE BLH
EXAMINERS TO THEIR PERMANENT POSITION AS SSI EXAMINERS, GS-13. BY
STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, THE CLAIMANTS WERE
THEN PLACED IN THE POSITION OF GS-14 ALJS (TEMPORARY) AS ESTABLISHED BY
PUB. L. NO. 94-202.
AS PREVIOUSLY STATED, THE AGENCY HAS BROAD DISCRETION IN ITS
APPLICATION OF THE HIGHEST PREVIOUS RATE RULE. MOREOVER, BECAUSE OF OUR
SUBSEQUENT DISPOSITION OF THE SECOND ISSUE INVOLVED IN THIS CASE, THAT
OF CREDIT FOR TIME SPENT IN A WITHIN GRADE, WE ARE OF THE OPINION THAT
IT IS NOT NECESSARY TO FURTHER DISCUSS THIS ISSUE AT THIS POINT.
THE HEW HAS ALSO SUGGESTED THAT THERE IS JUSTIFICATION FOR TREATING
THE ACTION PURSUANT TO PUB. L. NO. 94-202 AS THOUGH IT WERE A
REASSIGNMENT FROM ONE GS-14 POSITION TO ANOTHER, AND THUS GIVE CREDIT
FOR THE TIME SPENT IN THE GS-14 POSITION TOWARD A WITHIN-GRADE INCREASE
IN THE GS-14 ADMINISTRATIVE LAW JUDGE TEMPORARY POSITION.
PUBLIC LAW NO. 94-202 APPLIED ONLY TO THOSE EMPLOYEES WHO HELD SSI
HEARING EXAMINER APPOINTMENTS. THUS, HEW APPARENTLY BELIEVED IT WAS
NECESSARY TO ADMINISTRATIVELY TRANSFER THE BLH EXAMINERS FROM THEIR
TEMPORARY GS-14 POSITIONS TO THEIR PERMANENT POSITIONS AS SSI EXAMINERS,
GS-13, IN ORDER TO COMPLY WITH THE PROVISONS OF THE ACT. THE HEW ALSO
STATES THAT IT CAN FIND NO BASIS FOR ANY CONCLUSION OTHER THAN THE
PROMOTIONS FROM GS-13 TO GS-14 ARE EQUIVALENT INCREASES IN PAY UNDER THE
PROVISIONS OF 5 U.S.C. SEC. 5335(A)(A) (1976), AND THE EMPLOYEES WERE
REQUIRED TO BEGIN NEW WAITING PERIODS ON THE DATE OF SUCH PROMOTION.
UNDER THE TERMS OF 5 U.S.C. SEC. 5335(A), THE CONCEPT OF EQUIVALENT
INCREASE IS ONLY USED TO DETERMINE WHETHER AN EMPLOYEE MAY BE GRANTED A
WITHIN-GRADE STEP INCREASE. THAT AUTHORITY DOES NOT ADDRESS THE ISSUE
OF THE RATE AT WHICH AN EMPLOYEE'S PAY IS TO BE SET UPON PERMANENT
PROMOTION. B-189324, OCTOBER 18, 1977. IN THAT DECISION WE HELD THAT
IT WAS NOT NECESSARY TO RESTORE AN EMPLOYEE WHO HAD BEEN TEMPORARILY
PROMOTED TO HIS PERMANENT LOWER GRADE WHEN HE WAS PERMANENTLY PROMOTED
TO A DIFFERENT POSITION IN THE HIGHER GRADE. LIKEWISE, WE DO NOT
BELIEVE THERE IS A REQUIREMENT TO RESTORE AN EMPLOYEE WHO HAS BEEN
TEMPORARILY PROMOTED TO HIS PERMANENT LOWER GRADE BEFORE REASSIGNING HIM
TO A SECOND TEMPORARY POSITION IN THE HIGHER GRADE.
A REASSIGNMENT IS DEFINED IN 5 C.F.R. SEC. 531.202(J) (1976) AS A
CHANGE OF AN EMPLOYEE, WHILE SERVING CONTINUOUSLY IN THE SAME AGENCY,
FROM ONE POSITION TO ANOTHER WITHOUT PROMOTION OR DEMOTION. IN THIS
CASE THE BLH EXAMINERS WERE ASSIGNED TO A TEMPORARY POSITION FROM 1972
UNTIL 1977, WHEN THE PASSAGE OF PUB. L. NO. 95-216, 91 STAT. 1559,
CHANGED THEIR APPOINTMENTS TO CAREER-ABSOLUTE. UNDER THE PROVISIONS OF
PUB. L. NO. 94-202, SUPRA, THE AUTHORITY TO APPOINT SSI HEARING
EXAMINERS WAS REPEALED AND THE SECRETARY OF HEW WAS AUTHORIZED TO SELECT
THE EXAMINERS WHO HAD BEEN PREVIOUSLY APPOINTED TO CONDUCT HEARINGS
UNDER TITLES II, XVI, AND XVIII OF THE SOCIAL SECURITY ACT. HOWEVER,
THERE WAS NO REQUIREMENT IN PUB. L. NO. 94-202 THAT BLH HEARING
EXAMINERS, WHO HAD APPOINTMENTS AS SSI HEARING EXAMINERS AND WERE IN AN
LWOP STATUS IN THEIR GS-13 POSITIONS, HAD TO HAVE THEIR LWOP STATUS
TERMINATED BEFORE RECEIVING ALJ APPOINTMENTS AUTHORIZED BY PUB. L. NO.
94-202. ALSO, AS NOTED ABOVE, AN EMPLOYEE WHO HAS BEEN TEMPORARILY
PROMOTED, IS NOT REQUIRED TO BE RESTORED TO HIS LOWER GRADE POSITION
BEFORE ASSIGNMENT TO A SECOND POSITION IN THE HIGHER GRADE. IN THIS
CASE THE RECORD SHOWS THAT THE PERSONNEL INVOLVED NEVER RECEIVED PAY AT
THE GS-13 LEVEL IN THEIR PERMANENT POSITIONS, THEIR DUTIES REMAINED THE
SAME, THAT OF BLACK LUNG HEARING EXAMINERS, AND THEY WERE PAID FOR THE
ENTIRE PERIOD AS TEMPORARY GS-14S.
ACCORDINGLY, UNDER THE CIRCUMSTANCES, THE BLH EXAMINERS DID NOT BEGIN
NEW WAITING PERIODS WHEN THEY RECEIVED APPOINTMENTS PURSUANT TO PUB. L.
NO. 94-202 AND THEY SHOULD BE GIVEN CREDIT FOR THE TIME SPENT IN THE
GS-14 BLACK LUNG POSITION TOWARD WITHIN-GRADE INCREASES IN THE GS-14
ADMINISTRATIVE LAW JUDGE TEMPORARY POSITIONS. ALSO, WHEN THE CREDIT OF
SUCH TIME RESULTS IN WITHIN-GRADE INCREASES IN THE ALJ GS-14 AND GS-15
POSITIONS, APPROPRIATE PAY ADJUSTMENTS SHOULD BE MADE.
B-193378, JUN 11, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. PROTEST THAT AGENCY FAILED TO FOLLOW STATED EVALUATION CRITERIA
BY DOWNGRADING PROPOSAL FOR NONEXISTENT AND/OR IRRELEVANT WEAKNESSES IS
DENIED WHERE RECORD SHOWS THAT ADMITTED ERRORS IN EVALUATION WERE NOT
SUCH AS WOULD HAVE GAINED AWARD FOR PROTESTER AND HENCE PREJUDICED IT.
2. SCORING PROPOSAL UNDER INAPPROPRIATE CRITERIA MAY PREJUDICE
PROTESTER BY ALTERING WEIGHTS ASSIGNED TO VARIOUS CRITERIA UNDER RFP'S
STATED EVALUATION SCHEME; HOWEVER, IN SELECTING OFFEROR FOR AWARD,
AGENCY SELECTION OFFICIALS ARE NOT BOUND BY POINT SCORES, FINDINGS, AND
RECOMMENDATIONS OF LOWER LEVEL EVALUATORS.
3. PROTEST BASED ON AGENCY FAILURE TO ADVISE PROTESTER OF PERCEIVED
WEAKNESS IN PROPOSAL IS DENIED WHERE IT IS DOUBTFUL IN SOME INSTANCES
THAT INDIVIDUAL EVALUATOR'S CONCERNS WERE ADOPTED BY WHOLE EVALUATION
PANEL AND WHERE, IN OTHER INSTANCES, NOTWITHSTANDING EVALUATION PANEL'S
ADOPTION OF SUCH CONCERNS, AGENCY'S FAILURE TO CLEARLY COMMUNICATE SUCH
CONCERNS DID NOT PREJUDICE PROTESTER WHO FAILED TO CORRECT OTHER
DEFICIENCIES.
HUMANICS ASSOCIATES:
HUMANICS ASSOCIATES (HUMANICS) PROTESTS THE AWARD OF A
COST-REIMBURSEMENT SERVICES CONTRACT TO TUSKEGEE INSTITUTE (TUSKEGEE)
UNDER REQUEST FOR PROPOSALS (RFP) NO. HEW-78-0009, ISSUED BY THE
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), FOR TRAINING AND
TECHNICAL ASSISTANCE (T&TA) SERVICES TO BE DELIVERED TO HEAD START
GRANTEES IN THE STATE OF ALABAMA.
HUMANICS PROTESTS ON TWO GROUNDS: (1) THAT HEW NEITHER FOLLOWED NOR
FAIRLY APPLIED THE STATED EVALUATION CRITERIA IN ITS EVALUATION OF
HUMANICS' PROPOSAL; AND (2) THAT HEW FAILED TO ADVISE HUMANICS OF
SEVERAL PERCEIVED WEAKNESSES IN ITS PROPOSAL, AN OMISSION WHICH HUMANICS
BELIEVES RESULTED IN DEFICIENT NEGOTIATIONS. NOTWITHSTANDING HEW'S
ADMISSION THAT "THIS PROCUREMENT HAS A NUMBER OF SHORTCOMINGS," WITH
WHICH WE CONCUR, WE DENY THE PROTEST, FOR THE REASONS THAT FOLLOW,
BECAUSE IN THE CONTEXT OF THE PROCUREMENT AS A WHOLE, THE SHORTCOMINGS
DID NOT PREJUDICE THE PROTESTER.
THE RECORD SHOWS THAT TWO FACTORS WERE DETERMINATIVE IN HEW'S
REJECTION OF THE HUMANICS PROPOSAL: HUMANICS' ESTIMATED COST EXCEEDED
TUSKEGEE'S BY $14,730; AND HEW WAS CONCERNED ABOUT THE EXPERIENCE AND
AVAILABILITY OF HUMANICS' PROPOSED STAFF. SOME PERSONNEL WERE PERCEIVED
AS HAVING LIMITED EXPERIENCE, WHILE OTHERS APPEARED, AT THE TIME OF THE
EVALUATIONS, TO HAVE ALREADY COMMITTED THEMSELVES TO WORK ON OTHER HEW
CONTRACTS.
HUMANICS FOCUSES ITS PROTEST ON THE INDIVIDUAL EVALUATIONS OF ITS
PROPOSAL BY EACH OF THE MEMBERS OF HEW'S TECHNICAL EVALUATION PANEL
(TEP), FOR IT IS AT THIS STAGE OF THE PROCUREMENT THAT HUMANICS BELIEVES
IT WAS PREJUDICED BY THE DOWNGRADING OF ITS PROPOSAL FOR NONEXISTENT
AND/OR IRRELEVANT WEAKNESSES. THIS INITIAL PREJUDICE WAS, IN HUMANICS'
VIEW, EXACERBATED BY HEW'S FAILURE, DURING NEGOTIATIONS, TO COMMUNICATE
ITS CONCERNS ABOUT THE NONEXISTENT AND/OR IRRELEVANT WEAKNESSES TO
HUMANICS. THIS, HUMANICS CONTENDS, RESULTED IN SEVERE PREJUDICE, SINCE
IT WAS UNABLE TO CLARIFY ITS SUBMISSION AND WAS THUS DENIED ANY
OPPORTUNITY TO IMPROVE ITS ALREADY ARTIFICIALLY LOW SCORE.
THE RFP STATED THAT "PARAMOUNT CONSIDERATION SHALL BE GIVEN TO THE
EVALUATION OF TECHNICAL PROPOSALS, AS WELL AS PRICE, IN THE AWARD OF A
CONTRACT." IT FURTHER PROVIDED THAT ALL PROPOSALS WOULD BE EVALUATED IN
ACCORDANCE WITH THE STATED EVALUATION FACTORS (CRITERIA), WITH AWARD
BEING MADE TO THE FIRM "WHOSE PROPOSAL DEMONSTRATES THAT THE FIRM WOULD
BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS
CONSIDERED."
THE EVALUATION CRITERIA HAD THE FOLLOWING WEIGHTS:
"WEIGHTING CRITERIA
"20 POINTS 1. *** PROPOSAL *** ORGANIZATION,
UNDERSTANDING OF THE TASK REQUIRED,
ABILITY TO EXPAND UPON SUBJECT
MATTER PRESENTED IN RFP ***.
"20 POINTS 2. *** ORGANIZATION'S KNOWLEDGE OF
AND EXPERIENCE IN HEAD START, (AND)
OTHER *** PROJECTS INVOLVING
EXTENSIVE TRAINING.
"30 POINTS 3. *** ORGANIZATION'S RESOURCES IN
TERMS OF ABILITY TO DEVELOP MATERIALS,
TECHNICAL KNOWLEDGE OF THE SUBJECT
AREAS AND OTHER NECESSARY CAPABILITIES
TO CONDUCT THE TRAINING AND RENDER
TECHNICAL ASSISTANCE.
"10 POINTS 4. *** ADMINISTRATIVE CONTROLS ***.
"5 POINTS 5. *** OFFEROR'S KNOWLEDGE OF AND
EXPERIENCE WITH THE HEAD START
GRANTEES IN REGION IV.
"CRITERIA FOR BUSINESS PROPOSAL EVALUATION
"15 POINTS 6. COST PROPOSAL (***)."
THREE PROPOSAL WERE RECEIVED IN RESPONSE TO THE SOLICITATION. THE
TEP SCORED THE PROPOSALS FOR THE PURPOSE OF MAKING A RECOMMENDATION
REGARDING WHICH OFFERS SHOULD BE CONSIDERED TO BE WITHIN THE COMPETITIVE
RANGE. THE CONTRACTING OFFICER FOUND TWO PROPOSALS TO BE WITHIN THE
COMPETITIVE RANGE, NUMERICALLY RANKED AS FOLLOWS:
TECH. SCORE BUSINESS SCORE COST
TUSKEGEE 77.4 15 $232,011
HUMANICS 75.6 0 246,741
HEW ESTIMATE 237,000
IN THE PROCESS OF EVALUATION, THE TEP MEMBERS COMMENTED ON THE
RESPECTIVE STRENGTHS AND WEAKNESSES OF THE TWO OFFERORS. THE TEP
REPORT, A SUMMARIZED VERSION OF THE SCORESHEET COMMENTS, FURNISHED THE
BASIS FOR ORAL NEGOTIATIONS WITH EACH OFFEROR. HUMANICS WAS PERCEIVED
IN THE REPORT AS HAVING EXTENSIVE TECHNICAL KNOWLEDGE, BACKGROUND AND
EXPERIENCE IN REGION IV HEAD START PROGRAMS, BUT LACKING IN AN ABILITY
TO PROVIDE CHILD DEVELOPMENT ASSOCIATE (CDA) TRAINING. THERE WAS ALSO A
CONCERN ABOUT HUMANICS' ABILITY TO ACTUALLY FURNISH THE STAFF WHICH IT
PROPOSED TO USE.
ON SEPTEMBER 11, 1978, HEW INITIATED TELEPHONIC NEGOTIATIONS WITH THE
TWO OFFERORS. HUMANICS REPORTS THAT HEW'S CONTRACTING OFFICER REQUESTED
THE FOLLOWING INFORMATION IN ITS BEST AND FINAL OFFER (B&FO):
"1. A LIST OF KEY PERSONNEL AND THEIR RESUMES;
"2. A LETTER OF COMMITTMENT FROM EACH OF THE KEY PERSONNEL;
"3. A REVISED COST PROPOSAL REFLECTING ANTICIPATED CHANGES IN THE
FRINGE BENEFIT, G & A, AND OVERHEAD RATES; AND
"4. CONFIRMATION OF THE LOCATION OF HUMANICS' PROPOSED ALABAMA
FACILITY."
HEW'S PROJECT OFFICER REVIEWED THE B&FO'S OF TUSKEGEE AND HUMANICS.
HE ADVISED THAT TUSKEGEE HAD CURED ITS DEFICIENCIES UNDER CRITERION 2
AND CRITERION 4 AND THAT ITS TECHNICAL SCORE BE INCREASED FROM 77.4 TO
81, GIVING TUSKEGEE A COMBINED TECHNICAL/BUSINESS SCORE OF 96. ON THE
OTHER HAND, HE ADVISED THAT HUMANICS' B&FO DID NOT WARRANT A REVISION IN
ITS 75.6 TECHNICAL RATING AS IT HAD FAILED TO CURE ITS STAFFING
DEFICIENCY. THE CONTRACTING OFFICER, ON THE BASIS OF THE PROJECT
OFFICER'S ADVICE AND HER OWN REVIEW OF THE B&FO COST PROPOSALS,
CONCLUDED THAT THE LOWER COST TUSKEGEE PROPOSAL WAS MOST ADVANTAGEOUS TO
THE GOVERNMENT AND RECOMMENDED AWARD TO TUSKEGEE. AWARD WAS MADE TO
TUSKEGEE IN THE TOTAL ESTIMATED AMOUNT OF $232,001 ON SEPTEMBER 29,
1978.
HUMANICS' TECHNICAL PROPOSAL WAS VIEWED BY HEW FROM THREE SUCCESSIVE
PERSPECTIVES. INITIALLY, FROM THE PERSPECTIVE OF THE INDIVIDUAL
EVALUATORS, AS REFLECTED ON THEIR RESPECTIVE SCORESHEETS, THERE WAS
CONCERN IN THE FOLLOWING AREAS: HUMANICS' ABILITY TO OFFER CDA
TRAINING; HUMANICS' LACK OF AN AFFILIATION WITH AN ALABAMA INSTITUTION
OF HIGHER LEARNING; HUMANICS' FAILURE TO ADDRESS AN ASPECT OF A
VALIDATION REQUIREMENT; AND HUMANICS' ABILITY TO PROPERLY STAFF THE
PROJECT. THEN, FROM THE COLLECTIVE PERSPECTIVE OF THE TEP, AS
SUMMARIZED IN THE TEP REPORT TO THE CONTRACTING OFFICER, THE CONCERNS
WERE LIMITED TO THE AREAS OF HUMANICS' ABILITY TO OFFER CDA TRAINING AND
ITS ABILITY TO STAFF THE PROJECT. FINALLY, FROM THE PERSPECTIVE OF THE
CONTRACTING OFFICER, FOLLOWING NEGOTIATIONS, AS REFLECTED IN HEW'S
TELEGRAPHIC REQUEST FOR B&FO, THE TECHNICAL CONCERN HAD NARROWED TO
HUMANICS' ABILITY TO STAFF THE PROJECT. THE ESTIMATED COST OF HUMANICS'
PROPOSAL WAS A PARALLEL HEW CONCERN THROUGHOUT THE EVALUATION PROCESS.
HUMANICS' PROTEST IS PREMISED ON THE ASSUMPTION THAT HEW'S FIRST
PERSPECTIVE OF ITS PROPOSAL, THAT OF THE INDIVIDUAL EVALUATORS, IS MORE
SIGNIFICANT THAN EITHER THE SECOND, THAT OF THE WHOLE TEP, OR THE THIRD,
THAT OF THE CONTRACTING OFFICER FOLLOWING NEGOTIATIONS. HUMANICS HAS
TOTALED THE SUM OF ALLEGEDLY ERRONEOUS REMARKS FOUND ON THE SCORESHEETS
OF THE INDIVIDUAL EVALUATORS AND CONCLUDED THAT IT WOULD HAVE HAD A
HIGHER INITIAL SCORE ON ITS TECHNICAL PROPOSAL THAN TUSKEGEE IF ALL TEP
MEMBERS HAD PROPERLY EVALUATED ITS PROPOSAL. FOR INSTANCE, TWO OF THE
FIVE EVALUATORS PENALIZED HUMANICS A TOTAL OF 7 POINTS FOR ITS INABILITY
TO OFFER CDA TRAINING; ONE EVALUATOR DEDUCTED 10 POINTS FOR BOTH
HUMANICS' FAILURE TO SHOW AN AFFILIATION WITH AN ALABAMA INSTITUTION OF
HIGHER LEARNING AND ITS FAILURE TO CLARIFY WHAT VALIDATION ASSISTANCE
THE STATE TRAINING OFFICE WOULD PROVIDE; AND ONE EVALUATOR SUBTRACTED A
TOTAL OF 13 POINTS FROM CRITERIA 1, 2, AND 3 BASED ON A CONCERN THAT, IN
LIGHT OF HUMANICS' THREE OTHER HEW CONTRACTS, ITS STAFF WAS SPREAD SO
THIN THAT IT COULD NOT EFFECTIVELY HANDLE A FOURTH CONTRACT.
WHILE SOME OF HUMANICS' ALLEGATIONS ARE SOUND, WE BELIEVE THAT OTHERS
ARE NOT WELL FOUNDED. FOR EXAMPLE, HEW REPORTS THAT THE 7-POINT CDA
TRAINING DEDUCTION WAS JUSTIFIED BECAUSE HUMANICS FAILED TO DEMONSTRATE
TO THE TEP'S SATISFACTION THAT IT COULD PERFORM CDA TRAINING OF AN
ACCEPTABLE QUALITY. IN SUPPORT OF ITS POSITION, HEW POINTS OUT SECTIONS
OF HUMANICS' PROPOSAL WHICH MERELY PARROT THE RFP WORK STATEMENT. THE
RFP WARNS OFFERORS THAT "PROPOSALS WHICH MERELY OFFER TO CONDUCT A
PROGRAM IN ACCORDANCE WITH THE REQUIREMENTS OF THE GOVERNMENT'S SCOPE OF
WORK WILL BE CONSIDERED NONRESPONSIVE TO THIS REQUEST AND WILL NOT BE
CONSIDERED FURTHER. THE OFFEROR MUST SUBMIT AN EXPLANATION OF THE
TECHNICAL APPROACH AND A DETAILED DESCRIPTION OF THE TASKS TO BE
PERFORMED TO ACHIEVE THE PROJECT OBJECTIVES."
HUMANICS CHARACTERIZES ONE EVALUATOR'S DEDUCTION OF 10 POINTS, FOR
THE AFOREMENTIONED AFFILIATION/VALIDATION DEFICIENCY, AS "TOTALLY
ARBITRARY AND IRRATIONAL." HOWEVER, WE THINK IT IS ARGUABLE THAT THE
DEDUCTION WAS WELL FOUNDED SINCE THE STATEMENT OF WORK REQUIREMENTS (1)
THAT THE CONTRACTOR WILL "ASSIST NON-HEAD START STAFFS *** TO ACQUIRE
CDA TRAINING FROM THE INSTITUTIONS IN THEIR GEOGRAPHIC AREA" AND (2)
THAT "REGION IV *** WILL REQUIRE A MINIMUM TWO (2) CDA TRAINING
INSTITUTIONS IN EACH STATE" TO WORK WITH THE CONTRACTOR IN THE
DEVELOPMENT OF AT LEAST TWO TRAINING SESSIONS, EACH SESSION HAVING A
2-DAY DURATION, COULD IN OUR OPINION LEAD AN EVALUATOR TO THE CONCLUSION
THAT THE LACK OF AN AFFILIATION WITH AN ALABAMA INSTITUTION MADE
HUMANICS' PROPOSAL SOMEWHAT LESS DESIRABLE. MOREOVER, THE RECORD
INDICATES THAT ALTHOUGH HUMANICS COMPLIED WITH TWO OF THE RFP'S
VALIDATION REQUIREMENTS, IT FAILED TO COMPLY WITH A THIRD WHICH REQUIRED
IT TO MONITOR, REPORT ON, AND PROVIDE NEEDED TECHNICAL ASSISTANCE TO
GRANTEES WHO RECEIVED AN IN-DEPTH VALIDATION IN FISCAL YEAR 1977-1978.
HOWEVER, HEW POINTS OUT THAT EVEN IF IT IS CONCEDED THAT THE 10 POINTS
WERE ERRONEOUSLY DEDUCTED AND ALL SCORING BY THE EVALUATOR IN QUESTION
IS DISREGARDED, THE NET EFFECT OF DISREGARDING HIS SCORING IS TO CHANGE
THE AVERAGE TECHNICAL SCORES OF HUMANICS TO 77.75, AND OF TUSKEGEE TO
76.75, WHICH, IN HEW'S OPINION, INDICATES VIRTUAL TECHNICAL EQUALITY.
WE BELIEVE THERE IS MERIT IN HUMANICS' OBJECTION TO THE ACTION OF
ANOTHER EVALUATOR WHO DOWNGRADED THE HUMANICS PROPOSAL A TOTAL OF 13
POINTS UNDER THREE SEPARATE CRITERIA FOR WHAT IS ESSENTIALLY A STAFFING
DEFICIENCY. THE SCORESHEET IN QUESTION READS, IN PART, AS FOLLOWS:
"WEIGHT REMARKS (DEFINE
FACTOR (%) SCORE STRONG AND WEAK AREAS)
(CRITERION 1) 20 16 VERY GOOD-HOWEVER
HOW THIN CAN HUMANICS
SPREAD ACROSS OUR 8
STATE REGION?
(CRITERION 2) 20 16 SAME COMMENT AS ABOVE
(CRITERION 3) 30 25 " " " " "
ALTHOUGH HEW ADMITS THAT THE 4-POINT SCORE REDUCTION UNDER CRITERION
1 (PROPOSAL ORGANIZATION) MAY HAVE BEEN ERRONEOUS, IT ARGUES THAT THE 4
POINTS DEDUCTED UNDER CRITERION 2 (ORGANIZATION KNOWLEDGE AND EXPERIENCE
IN TRAINING) AND THE 5 POINTS DEDUCTED UNDER CRITERION 3 (ORGANIZATION
RESOURCES) ARE APPOSITE SINCE THEY ARE CLEARLY RELATED TO THE EXPERIENCE
AND AVAILABILITY OF HUMANICS' PROPOSED STAFF. HEW FURTHER ARGUES THAT
"WHILE THE SIMILAR REDUCTION IN REGARD TO CRITERION I MAY HAVE BEEN
ERRONEOUS UNDER THAT CRITERION A REDUCTION OF SIMILAR MAGNITUDE COULD
HAVE BEEN MADE UNDER CRITERION II OR III AND THE 'CORRECT' DEDUCTION
WOULD HAVE PRODUCED THE SAME NET EFFECT."
WE AGREE IN PART AND DISAGREE IN PART WITH HEW'S ANALYSIS. THE RFP
IS EXPLICIT IN ITS STATEMENT OF WHAT IS REQUIRED IN THE TECHNICAL
PROPOSALS WITH REGARD TO PROPOSED STAFF. IT PROVIDES:
"2. QUALIFICATIONS OF OFFEROR'S PERSONNEL
"A. EXPERIENCE:
GENERAL BACKGROUND, EXPERIENCE, AND QUALIFICATIONS OF THE OFFEROR.
SPECIAL NOTATION SHOULD BE MADE OF SIMILAR OR RELATED GOVERNMENT
PROGRAMS, PERFORMED FOR THE GOVERNMENT INCLUDING DOCUMENTATION WITH
REFERENCE TO THE APPLICABLE CONTRACT NUMBERS AND THE SUPERVISING
COGNIZANCE AGENCIES.
"B. PERSONNEL:
PERSONNEL WHO WILL BE ASSIGNED FOR DIRECT WORK ON THIS PROGRAM.
INFORMATION IS REQUIRED WHICH WILL SHOW THE COMPOSITION OF THE TASK OR
WORK GROUP, ITS QUALIFICATIONS, AND RECENT EXPERIENCE WITH SIMILAR
EQUIPMENT OR PROGRAMS. SPECIAL MENTION SHALL BE MADE OF DIRECT
TECHNICAL SUPERVISORS, KEY TECHNICAL PERSONNEL, AND THE PERCENTAGE OF
TIME EACH WILL BE ASSIGNED TO THIS PROGRAM. RESUMES SHALL BE SUBMITTED
WHICH WILL INDICATE EDUCATION, BACKGROUND, RECENT EXPERIENCE, AND
SPECIFIC SCIENTIFIC OR TECHNICAL ACCOMPLISHMENTS.
"C. ADDITIONAL PERSONNEL, IF ANY, WHO WILL BE REQUIRED FOR FULL-TIME
EMPLOYMENT, OR ON A SUBCONTRACT OR CONSULTANT BASIS. THE TECHNICAL
AREAS, CHARACTER AND EXTENT OF SUBCONTRACT OR CONSULTANT ACTIVITY WILL
BE INDICATED AND THE ANTICIPATED SOURCES WILL BE BOTH SPECIFIED AND
QUALIFIED."
THE RFP STATEMENT OF WORK PROVIDES:
"3. THE PROPOSAL SHALL CONTAIN SUCCINCT BUT ADEQUATE INFORMATION OF
PREVIOUS RELATED EXPERIENCE, BY THE OFFEROR AS A FIRM AS WELL AS BY
STAFF MEMBERS WHO WILL BE INVOLVED IN THE PROJECT. PREVIOUS EXPERIENCE
SHOULD BE IN ADMINISTRATIVE AND MANAGEMENT COMPONENT AREAS AND
HANDICAPPING CONDITIONS.
"E. PROJECT PERSONNEL MUST BE SPECFICIALLY IDENTIFIED. SUCH
STATEMENTS AS 'STAFF WILL CONSIST OF PERSONNEL SUCH AS' WILL BE
CONSIDERED NONRESPONSIVE. IF A NEW STAFF MEMBER WILL BE HIRED
CONTINGENT ON AWARD OF THIS CONTRACT, A LETTER OF INTENT BY THE
IDENTIFIED PERSON SHALL BE REQUIRED OF THE PERSON TO BE HIRED.
"F. THE PROPOSAL MUST BE WRITTEN BY PROPOSED KEY STAFF MEMBERS FOR
THE PROJECT. THEY SHOULD BE IDENTIFIED BY NAME AND FUNCTION IN THE
PROJECT AND BE IDENTIFIED ACCORDING TO THE SECTIONS OF THE PROPOSAL THEY
WROTE."
BOTH CRITERION 2 AND CRITERION 3 CLEARLY RELATE TO THE ABOVE.
MOREOVER, HEW'S CONCERN ABOUT HUMANICS' PROPOSED STAFF REMAINED CONSTANT
THROUGHOUT THE THREE SUCCESSIVE LAYERS OF EVALUATION UNTIL IT ULTIMATELY
BECAME THE DECISIVE TECHNICAL CONCERN BEHIND THE REJECTION OF HUMANICS'
PROPOSAL.
NOTWITHSTANDING THE ABOVE, WE DO NOT BELIEVE THAT IT CAN BE ASSUMED
THAT AN EVALUATOR RESTRICTED TO TWO CRITERIA, INSTEAD OF THREE, WOULD
AUTOMATICALLY INCREASE THE AMOUNT DEDUCTED SO AS TO PRODUCE THE SAME NET
EFFECT AS IF HE WAS RATING THREE CRITERIA. WE HAVE HELD THAT SCORING
UNDER INAPPROPRIATE CRITERIA MAY BE PREJUDICIAL TO A PROTESTER SINCE IT
TENDS TO MAKE THE FACTOR SCORED WORTH MORE IN THE EVALUATION PROCESS
THAN THE WEIGHT IT WAS ASSIGNED IN THE RFP. THE CENTER FOR EDUCATION
AND MANPOWER RESOURCES, B-191453, JULY 7, 1978, 78-2 CPD 21.
DESPITE OUR RESERVATIONS ABOUT THE MANNER IN WHICH THIS PARTICULAR
EVALUATOR RATED HUMANICS' PROPOSAL AND ASSUMING THAT THERE IS SUFFICIENT
MERIT IN HUMANICS' OBJECTION TO THE SCORING OF THE EVALUATOR WHO
DEDUCTED THE 10 POINTS FOR AFFILIATION/VALIDATION TO JUSTIFY TOTAL
DISREGARD OF HIS SCORING, WE DO NOT BELIEVE THAT HUMANICS CAN PREVAIL ON
ITS FIRST GROUND OF PROTEST, HEW'S FAILURE TO FOLLOW AND APPLY THE
STATED EVALUATION CRITERIA. WE HOLD THIS VIEW BECAUSE, IN OUR OPINION,
THE ERRORS, WHICH THE RECORD INDICATES DID OCCUR, IN THE EVALUATION WERE
NOT OF SUCH A NATURE AS WOULD PREJUDICE HUMANICS. IN THE OHIO STATE
UNIVERSITY RESEARCH FOUNDATION, B-190530, JANUARY 11, 1979, 79-1 CPD 15,
WE HELD THAT IN SELECTING AN OFFEROR FOR AWARD, AGENCY SELECTION
OFFICIALS ARE NOT BOUND BY POINT SCORES, FINDINGS, OR RECOMMENDATIONS OF
LOWER LEVEL EVALUATORS AND WE ALSO OBSERVED THAT:
"*** 'IT IS APPARENT THAT AVERAGED SCORES MAY REFLECT THE DISPARATE,
SUBJECTIVE AND OBJECTIVE JUDGMENTS OF THE EVALUATORS,' 56 COMP. GEN. AT
716, AND IT IS FOR THAT REASON THAT NUMERICAL SCORES IN GENERAL ARE USED
AS GUIDES IN SELECTION DECISIONS, BUT 'USUALLY DO NOT DETERMINE THE
OUTCOME OF A COMPETITIVE SOURCE SELECTION.' TELECOMMUNICATIONS
MANAGEMENT CORP. 57 COMP. GEN. 251, 254 (1978), 78-1 CPD 80; SEE ALSO
GREY ADVERTISING, INC. 55 COMP. GEN. 1111 (1976), 76-1 CPD 325 ***."
HERE, THREE OF FIVE EVALUATORS RANKED TUSKEGEE HIGH, WHILE THE OTHER
TWO EVALUATORS ARRIVED AT THE OPPOSITE CONCLUSION AND RANKED HUMANICS
HIGH. THIS INCONGRUITY IS A WEAK BASIS FOR A CONCLUSION THAT, BUT FOR A
FEW POINTS, HUMANICS' PROPOSAL WOULD HAVE BEEN A CLEAR WINNER. THE OHIO
STATE UNIVERSITY RESEARCH FOUNDATION, SUPRA. MOREOVER, EVEN IF THE
SCORING OF THE EVALUATOR WHO DEDUCTED THE 10 POINTS FOR AFFILIATION/
VALIDATION IS DISREGARDED AND THE 4 POINTS INAPPROPRIATELY DEDUCTED FROM
CRITERION 1 ARE RESTORED, WE NOTE THAT HUMANICS' OVERALL
(TECHNICAL/BUSINESS) SCORE ONLY INCREASES TO 78.75 WHEREAS TUSKEGEE'S
FINAL OVERALL RATING IS 96, OF WHICH 81 POINTS ARE TECHNICAL. FURTHER,
THE TECHNICAL CONCERN WHICH ULTIMATELY PROVED DECISIVE, THE STAFFING
DEFICIENCY, WAS DISCUSSED WITH HUMANICS. WHILE HUMANICS' B&FO
SUBSTITUTED SOME KEY PERSONNEL, IT STILL PROPOSED A KEY STAFF MEMBER WHO
WAS COMMITTED FULL TIME TO ANOTHER HEW CONTRACT.
LIKE ITS FIRST GROUND OF PROTEST, HUMANICS' SECOND GROUND, THAT HEW
FAILED TO ADVISE IT OF SEVERAL PERCEIVED WEAKNESSES IN ITS PROPOSAL, HAS
SOME MERIT. HUMANICS CONTENDS THAT HEW DID NOT MENTION CONCERNS
REGARDING: HUMANICS' FAILURE TO FULLY MEET THE VALIDATION REQUIREMENT;
ITS NONAFFILIATION WITH AN ALABAMA INSTITUTION OF HIGHER LEARNING; ITS
INABILITY TO OFFER CDA TRAINING; NOR ITS STAFF DEFICIENCY. WE HAVE
PREVIOUSLY NOTED THAT THESE CONCERNS REFLECT THE SCORESHEET COMMENTS OF
INDIVIDUAL TEP MEMBERS.
ALTHOUGH HEW ADMITS THAT THE VALIDATION REQUIREMENT CONCERN OF ONE
EVALUATOR WAS NOT DISCUSSED WITH HUMANICS, WE CANNOT CONCLUDE ON THIS
RECORD THAT IT OUGHT TO HAVE BEEN. IT IS NOT CLEAR THAT THE TEP, AS A
WHOLE, VIEWED HUMANICS' RESPONSE TO THE VALIDATION REQUIREMENT AS A
GROUND FOR CONCERN, FOR THERE IS NO MENTION OF THE MATTER IN ITS REPORT
TO THE CONTRACTING OFFICER. ON THE OTHER HAND, THE TEP DID NOT ACT TO
RESTORE THE POINTS WHICH THE INDIVIDUAL EVALUATOR DEDUCTED AS A RESULT
OF HIS PECULIAR CONCERN. THUS, THE EXACT STATUS OF HEW'S CONCERN ABOUT
THE VALIDATION REQUIREMENT IS AS BEST AMBIGUOUS.
MUCH THE SAME CAN BE SAID ABOUT HUMANICS' NONAFFILIATION WITH AN
ALABAMA INSTITUTION OF HIGHER LEARNING. WHILE HEW STATES THAT THE
COMMENT REPRESENTS AN ASPECT OF HUMANICS' PROPOSAL WHICH "IN THE VIEW OF
ONE EVALUATOR MADE THE HUMANICS PROPOSAL SOMEWHAT LESS DESIRABLE," IT IS
NOT CLEAR THAT THE TEP, AS A WHOLE, SO REGARDED IT. HOWEVER, THE TEP
DID NOT ADJUST THE TOTAL AVERAGE POINT SCORES SO AS TO CLEARLY SHOW THAT
IT DISAGREED.
OUR PRINCIPAL CONCERN, THE MANNER IN WHICH HEW CONDUCTED NEGOTIATIONS
WITH HUMANICS, STEMS FROM HEW'S ADMISSION THAT THE CONTRACTING OFFICER
DID NOT "CLEARLY COVER" THE MATTER OF CDA TRAINING IN THE NEGOTIATIONS.
HUMANICS' ABILITY TO OFFER CDA TRAINING WAS CLEARLY A CONCERN OF THE
WHOLE TEP. THE TEP REPORT CITES INABILITY TO OFFER CDA TRAINING AS
HUMANICS' SOLE WEAKNESS UNDER CRITERIA 2 AND 3. SUCH A WEAKNESS SHOULD
HAVE BEEN DISCUSSED WITH HUMANICS. SEE DYNALECTRON CORPORATION,
B-184203, MARCH 10, 1976, 76-1 CPD 167. WE DO NOT HOWEVER BELIEVE THAT
THE CONTRACTING OFFICER'S FAILURE TO "CLEARLY COVER" THE MATTER OF CDA
TRAINING PREJUDICED HUMANICS BECAUSE OF ITS PREVIOUSLY DISCUSSED
INABILITY TO CURE THE DEFICIENCIES IN ITS PROPOSED STAFF. ALTHOUGH
HUMANICS ALLEGES THAT THE STAFF DEFICIENCY WAS NOT DISCUSSED WITH IT,
HEW ASSERTS THAT IT WAS. THE ABOVE-MENTIONED FACT THAT HUMANICS MADE
SOME KEY PERSONNEL SUBSTITUTIONS IN ITS B&FO WOULD TEND TO SUPPORT HEW'S
POSITION. MOREOVER, IF (1) THE 7 POINTS DEDUCTED FOR HUMANICS' CDA
TRAINING DEFICIENCY ARE RESTORED, ON THE THEORY THAT IF IT HAD BEEN
DISCUSSED HUMANICS WOULD HAVE CURED THE DEFICIENCY AND REGAINED THE 7
POINTS; (2) THE SCORING OF THE EVALUATOR WHO DEDUCTED THE 10 POINTS FOR
AFFILIATION/VALIDATION IS DISREGARDED; AND (3) THE 4 POINTS ERRONEOUSLY
DEDUCTED FROM CRITERION 1 FOR THE STAFFING DEFICIENCY ARE RESTORED THE
END RESULT IS A TECHNICAL SCORE OF 80.5 FOR HUMANICS. IN VIEW OF
TUSKEGEE'S FINAL TECHNICAL SCORE OF 81 WE AGREE WITH HEW THAT BOTH
OFFERS ARE ESSENTIALLY TECHNICALLY EQUAL. IN SUCH A SITUATION ESTIMATED
COST MAY BECOME THE DETERMINATIVE FACTOR IN AWARD SELECTION. THE ONYX
CORPORATION, B-187599, JULY 20, 1977, 77-2 CPD 37.
ACCORDINGLY, THE PROTEST IS DENIED.
B-193693, JUN 11, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. ADDITIONAL INFORMATION PROVIDED BY AGENCY WITH REQUEST FOR
RECONSIDERATION OF DECISION FINDING THAT AGENCY HAD NOT PROVIDED
REASONABLE SUPPORT FOR SPECIFICATION REQUIREMENTS WILL BE CONSIDERED.
2. GAO WILL NOT QUESTION AGENCY'S DETERMINATION AS TO WHAT
CONSTITUTES ITS ACTUAL MINIMUM NEEDS UNLESS THERE IS CLEAR SHOWING THAT
DETERMINATION LACKS REASONABLE BASIS.
3. ALTHOUGH THERE IS STATEMENT IN BID THAT BIDDER HAS BEGUN
EXPANDING ITS MANUFACTURING CAPABILITY BY OPENING NEW PRODUCTION SITE IN
CANADA, CONSIDERATION OF BID AS DOMESTIC BID DOES NOT APPEAR TO HAVE
BEEN INAPPROPRIATE, SINCE BIDDER CERTIFIED IN BID THAT EACH END PRODUCT
WOULD BE DOMESTIC END PRODUCT AND STATEMENT IN BID AS TO BIDDER'S
CAPABILITY DOES NOT SAY THAT MACHINES TO BE FURNISHED UNDER SOLICITATION
ARE TO BE MANUFACTURED IN CANADA.
4. GAO DOES NOT REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY
ABSENT CIRCUMSTANCES NOT APPLICABLE IN PRESENT CASE.
INTERSTATE COMMERCE COMMISSION - RECONSIDERATION:
THE INTERSTATE COMMERCE COMMISSION (ICC) HAS REQUESTED
RECONSIDERATION OF LANIER BUSINESS PRODUCTS, INC., B-193693, APRIL 3,
1979, 79-1 CPD 232. IN THAT DECISION, WE SUSTAINED THE LANIER PROTEST
ON THE BASIS THAT THE ICC HAD NOT SUBMITTED ANY SUBSTANTIATION FOR THE
BACKGROUND MODE REQUIREMENT AND THE SUBSCRIPT AND SUPERSCRIPT ON SCREEN
DISPLAY REQUIREMENT FOR THE TEXT PROCESSING EQUIPMENT IN SOLICITATION
NO. ICC 79B-0001.
THE ICC HAS NOW PROVIDED INFORMATION TO SUPPORT THE REQUIREMENTS.
LANIER CONTENDS THAT THE INFORMATION SHOULD NOT BE CONSIDERED SINCE IT
WAS AVAILABLE TO THE ICC DURING THE PENDENCY OF THE PROTEST AND,
THEREFORE, DOES NOT CONSTITUTE NEW EVIDENCE. TO SUPPORT ITS POSITION
THAT THE INFORMATION SHOULD NOT BE CONSIDERED, LANIER CITES CASES OF
VARIOUS BOARDS OF CONTRACT APPEALS AND LITE INDUSTRIES, INC., -
RECONSIDERATION, B-184403, JULY 29, 1976, 76-2 CPD 91, A DECISION WHICH
HELD THAT A PROTESTER'S REQUEST FOR RECONSIDERATION DID NOT PRESENT NEW
FACTUAL INFORMATION. HOWEVER, WE HAVE CONSIDERED ADDITIONAL INFORMATION
PROVIDED BY AN AGENCY UPON THE REQUEST OF THE AGENCY FOR RECONSIDERATION
OF A DECISION FINDING THAT THE AGENCY HAD NOT PROVIDED REASONABLE
SUPPORT FOR ITS REQUIREMENT. THE RAYMOND CORPORATION; AIR FORCE -
REQUESTS FOR RECONSIDERATION, B-188277, SEPTEMBER 16, 1977, 77-2 CPD
197. AND WHERE WE HAVE RECOMMENDED RESOLICITATION, WE HAVE INVITED
FURTHER JUSTIFICATION FROM THE PROCURING ACTIVITY. ROY'S RABBITRY,
B-193628, MAY 2, 1979. THUS, WE WILL CONSIDER THE ADDITIONAL
JUSTIFICATION PROVIDED BY ICC IN THIS CASE.
THE ICC HAS INDICATED THAT IN RECENT YEARS THERE HAS BEEN A NEED TO
INCREASE THE OUTPUT OF ITS WRITTEN COMMUNICATIONS EFFECTIVELY AND
EFFICIENTLY. TO ACHIEVE THIS END, THE ICC INITIATED A PAPERWORK
MANAGEMENT STUDY. THE STUDY RECOMMENDED, AMONG OTHER THINGS, THE
UTILIZATION OF TEXT PROCESSING EQUIPMENT.
THE ICC HAS INDICATED THAT THE REQUIREMENT FOR BACKGROUND MODE
PROCESSING WAS INCLUDED IN THE SPECIFICATION FOR THE TEXT PROCESSING
EQUIPMENT FOR THE FOLLOWING REASONS:
"THE CAPABILITY OF DUPLICATING INFORMATION FROM ONE MEDIUM TO THE
OTHER IN BACKGROUND MODE WAS NECESSITATED BY THE COMMISSION'S HEAVY
PAPERWORK LOAD AND MINIMUM RESPONSE REQUIREMENTS WHICH REQUIRE DOCUMENT
TRANSFERRING TO VARIOUS CENTERS, REGIONAL OFFICES AND OTHER USERS. A
BACKGROUND MODE WILL SATISFY THE AGENCY'S NEED TO PROVIDE INFORMATION
MATERIAL TO OUR OTHER OFFICES IN SUPPORT OF ITS CONSUMER PROGRAM. IN
ADDITION, SUCH CAPABILITY STRENGTHENS THE DOCUMENT TRANSFERRING PROCESS
AS THE WORKLOAD FLUCTUATES AND TO COMMISSION FACILITIES OUTSIDE OF ITS
HEADQUARTERS BUILDING. FURTHER, IT IS IMPERATIVE THAT OPERATOR TIME BE
MINIMIZED TO THE DEGREE WHICH ALLOWS THEM, AT ALL TIMES, FULL USE OF
THEIR EQUIPMENT. MOREOVER, IN VIEW OF THE FACT THAT ALL TYPING SERVICES
FOR LEGAL/SCIENTIFIC/PROFESSIONAL PERSONNEL IN THE COMMISSION ARE
CENTRALIZED, WITH A RATIO OF 1 OPERATOR TO EVERY 13 AUTHORS, IT IS AN
OPERATIVE, MINIMUM REQUIREMENT THAT ANY DUPLICATION PROCESS FUNCTION
INDEPENDENTLY WITH FULL USE OF THE SYSTEM FOR INPUT/OUTPUT NEEDS. THIS
FUNCTION IS IN SUPPORT OF THE COMMISSION'S MAIN GOAL TO PROVIDE MAXIMUM
USE OF EQUIPMENT AND PERSONNEL AT ALL TIMES."
FURTHER, THE ICC HAS STATED:
"THE COMMISSION'S WORKLOAD FURTHER NECESSITATES THAT ALL TEXT
PROCESSORS BE AVAILABLE AT ALL TIMES FOR GENERAL USE (I.E., INPUTTING/
OUTPUTTING). USE OF THIS FEATURE INSURES THAT THE CLUSTERS/CENTER ARE
ALWAYS CAPABLE OF PROVIDING MAXIMUM EQUIPMENT AND OPERATOR UTILIZATION.
USE OF THE BACKGROUND MODE FOR TRANSFERRING INFORMATION FROM ONE MEDIUM
TO ANOTHER, OR MERGING OF SEVERAL APPLICATIONS SUCH AS MAILING NOTICES
TO CARRIERS, CONGRESSIONAL CORRESPONDENCE AND PUBLICATION MAILINGS,
FREES THE OPERATOR TO INPUT OR REVISE EXISTING WORK. WITHOUT THIS
CAPABILITY THE WORKFLOW PROCESS WOULD BE IMPACTED IN A NEGATIVE FASHION.
IT IS ESTIMATED THAT 88 MAN-HOURS WEEKLY WOULD BE WASTED IN
ACCOMPLISHING THIS SIMPLE TASK WITHOUT THE FEATURE."
WITH RESPECT TO THE SPECIFICATION REQUIREMENT THAT THE SUBSCRIPTS AND
SUPERSCRIPTS APPEAR ON SCREEN IN THEIR RESPECTIVE ELEVATED AND/OR
DEPRESSED POSITIONS THROUGH THE USE OF CODES, THE ICC HAS PROVIDED THE
FOLLOWING REASONS:
"AS A MINIMUM, THE COMMISSION HAS A REQUIREMENT WHICH SUPPORTS THE
NEED OF SUBSCRIPTS AND SUPERSCRIPTS IN THE FOLLOWING APPLICATION AREAS:
. HEARING TRANSCRIPTS AND SUPPORTIVE DOCUMENTATION
. LEGAL DECISION & BRIEFS
. SAFETY & HEALTH DOCUMENTS
. COMPLETION OF GOVERNMENT PREPRINTED FORMS
. CARRIER REPORTING IN THE FORM OF STATISTICAL AND NARRATIVE REPORTS
. LENGTHY BUDGET SUBMISSIONS TO CONGRESS AND SUPPORT DOCUMENTATION
. ENVIRONMENTAL DOCUMENTATION AND REFERENCES TO CHEMICALS
TRANSPORTED BY SURFACE CARRIERS
. PUBLICATIONS - LEGAL AND ADMINISTRATIVE
"THESE APPLICATIONS REPRESENT APPROXIMATELY 50 PERCENT OF THE
APPLICATIONS INVOLVING LEGAL, ENVIRONMENTAL AND ACCOUNTING AREAS OF THE
COMMISSION. IT WAS A MINIMUM REQUIREMENT THAT THESE CODES APPEAR ON THE
SCREEN ONLY AND ACT AS COMMANDS DURING PRINTING SO THAT THE FOOTNOTES
APPEAR ON THE PRINTED PAGE IN THEIR PROPER DEPRESSED/ELEVATED POSITIONS
WITHOUT PRINTED CODES, AND WITHOUT A REQUIREMENT FOR THE OPERATOR TO
MANUALLY INTERVENE WITHOUT PRINTOUT."
LANIER OBJECTS TO THE ICC JUSTIFICATION FOR THE REQUIREMENTS ON THE
GROUNDS THAT IT IS UNSUBSTANTIATED. FOR EXAMPLE, IT OBJECTS TO THE ICC
ESTIMATE THAT THE ABSENCE OF THE BACKGROUND MODE FEATURE WOULD RESULT IN
A LOSS OF 88 MAN-HOURS PER WEEK, SINCE THE ICC HAS FURNISHED NO EVIDENCE
TO SUPPORT THAT CONCLUSION.
ALTHOUGH, AS LANIER HAS POINTED OUT, THE ICC HAS NOT PROVIDED ANY
STATISTICS TO SHOW HOW THE 88 MANHOURS' ESTIMATE WAS ARRIVED AT, WE ARE
UNABLE TO CONCLUDE FROM AN OVERALL REVIEW OF THE JUSTIFICATION FOR THE
BACKGROUND MODE FEATURE THAT THERE IS NO REASONABLE BASIS FOR THE
REQUIREMENT. SINCE THE APPARENT PURPOSE IN OBTAINING THE TEXT
PROCESSING EQUIPMENT WAS TO MAKE THE WRITTEN COMMUNICATION PROCESS
EFFICIENT, WE WOULD HAVE TO AGREE WITH THE ICC THAT EQUIPMENT WHICH
PERMITS TWO FUNCTIONS TO OCCUR AT ONCE - DUPLICATION OF MATERIAL IN THE
BACKGROUND MODE WHILE DIFFERENT MATERIAL IS BEING PREPARED IN THE
FOREGROUND MODE - WOULD ACHIEVE THAT END. IN THAT REGARD, WE HAVE HELD
THAT WE WILL NOT QUESTION AN AGENCY'S DETERMINATION AS TO WHAT
CONSTITUTES ITS ACTUAL MINIMUM NEEDS UNLESS THERE IS A CLEAR SHOWING
THAT THE DETERMINATION HAS NO REASONABLE BASIS. MAREMONT CORPORATION,
55 COMP. GEN. 1362 (1976), 76-2 CPD 181; JOHNSON CONTROLS, INC.,
B-184416, JANUARY 2, 1976, 76-1 CPD 4.
HOWEVER, WHILE THE ICC JUSTIFICATION DOES SUPPORT THE NEED FOR
SUBSCRIPT AND SUPERSCRIPT MATERIAL BEING SHOWN "ON SCREEN," WE FIND
NOTHING THEREIN THAT INDICATES WHY THE "CODES" MUST APPEAR "ON SCREEN"
AS WELL. IN THIS REGARD, WE NOTE THAT LANIER HAS REPRESENTED THAT ITS
EQUIPMENT DOES PRINT SUBSCRIPTS AND SUPERSCRIPTS IN THEIR RESPECTIVE
POSITIONS ALTHOUGH THE EQUIPMENT DOES NOT DISPLAY THEM IN THAT MANNER ON
THE SCREEN.
IN THE IMMEDIATE SITUATION, WE DO NOT FIND THAT THE "ON SCREEN"
REQUIREMENT WAS PREJUDICIAL TO LANIER, SINCE IT HAS INDICATED THAT IT
COULD NOT HAVE COMPLIED WITH THE BACKGROUND MODE FEATURE. HOWEVER, WE
SUGGEST THAT THE ICC REVIEW THE NEED FOR THE "ON SCREEN" REQUIREMENT
BEFORE IT UTILIZES IT AGAIN IN ANY FUTURE PROCUREMENT.
IN VIEW OF THE FOREGOING, WE WITHDRAW THE RECOMMENDATION IN THE APRIL
3 DECISION THAT THE SOLICITATION BE RESOLICITED.
AS A RESULT, IT BECOMES NECESSARY FOR US TO CONSIDER LANIER'S
ARGUMENT THAT MICOM'S BID SHOULD HAVE BEEN EVALUATED AS A FOREIGN END
ITEM BECAUSE OF THE FOLLOWING STATEMENT IN ITS BID:
"*** MICOM HAS BEGUN EXPANDING ITS MANUFACTURING CAPABILITY TO OVER
500 MACHINES PER MONTH BY OPENING A NEW PRODUCTION SITE NEAR ITS
CORPORATE OFFICES IN MONTREAL, CANADA."
HOWEVER, AS NOTED BY LANIER, MICOM, IN THE BUY AMERICAN CERTIFICATE
IN THE BID, CERTIFIED THAT EACH END PRODUCT WOULD BE A DOMESTIC END
PRODUCT. IN THIS REGARD, OUR OFFICE HAS HELD THAT WHERE A BIDDER OR
OFFEROR EXCLUDES NO END PRODUCTS FROM THE BUY AMERICAN CERTIFICATE IN
ITS BID AND DOES NOT INDICATE THAT IT IS OFFERING ANYTHING OTHER THAN
DOMESTIC SOURCE END PRODUCTS, THE ACCEPTANCE OF THE OFFER, IF OTHERWISE
ACCEPTABLE, WILL RESULT IN AN OBLIGATION ON THE PART OF THE BIDDER TO
FURNISH DOMESTIC SOURCE END PRODUCTS. ABBOTT POWER CORPORATION,
B-192792, APRIL 30, 1979, 79-1 CPD 295. THE STATEMENT QUOTED FROM
MICOM'S BID DOES NOT MEAN THAT IT WAS NOT GOING TO FURNISH A DOMESTIC
END PRODUCT. THE STATEMENT ONLY SPEAKS OF THE CAPABILITY OF THE COMPANY
TO PRODUCE 500 MACHINES A MONTH AS THE RESULT OF THE OPENING OF A NEW
FACTORY IN CANADA. THE STATEMENT DOES NOT SAY THAT THE MACHINES TO BE
FURNISHED UNDER THE IMMEDIATE SOLICITATION ARE TO BE MANUFACTURED IN
CANADA. ACCORDINGLY, CONSIDERATION OF THE MICOM BID AS A DOMESTIC BID
DOES NOT APPEAR TO HAVE BEEN INAPPROPRIATE.
IN THE ALTERNATIVE, LANIER CONTENDS THAT MICOM SHOULD HAVE BEEN FOUND
NONRESPONSIBLE BY REASON OF LACK OF INTEGRITY FOR MISLEADING THE ICC
INTO BELIEVING THAT MICOM WILL BE IN COMPLIANCE WITH THE BUY AMERICAN
ACT REQUIREMENTS. HOWEVER, OUR OFFICE DOES NOT REVIEW PROTESTS
INVOLVING AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY IN THE ABSENCE OF
CIRCUMSTANCES NOT APPLICABLE HERE. AMMARK CORPORATION, B-192052,
DECEMBER 21, 1978, 78-2 CPD 428.
BY LETTERS OF TODAY, THE APPROPRIATE CONGRESSIONAL COMMITTEES ARE
BEING ADVISED THAT THIS DECISION ELIMINATES THE ICC'S OBLIGATIONS UNDER
THE LEGISLATIVE REORGANIZATION ACT OF 1970, 31 U.S.C. SECS. 1171-76
(1976), REFERRED TO IN OUR APRIL 3 DECISION.
B-194831, JUN 11, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. PROPOSAL RECEIVED AFTER CLOSING DATE FOR RECEIPT OF INITIAL
PROPOSALS WAS PROPERLY REJECTED AS LATE WHERE IT WAS NOT MAILED BY ANY
OF PRESCRIBED METHODS AND IT WAS NOT ONLY PROPOSAL RECEIVED.
2. ALLEGATION OF ANTITRUST VIOLATION IS MATTER FOR CONSIDERATION BY
DEPARTMENT OF JUSTICE, NOT GAO.
3. WHERE INITIAL SUBMISSION REVEALS PROTEST HAS NO LEGAL MERIT,
DECISION WILL BE RENDERED WITHOUT OBTAINING AGENCY REPORT.
SYNERGENESIS CORPORATION:
SYNERGENESIS CORPORATION (SYNERGENESIS) PROTESTS THE REJECTION BY THE
DEFENSE COMMUNICATIONS AGENCY (DCA), DEFENSE COMMERICAL COMMUNICATIONS
OFFICE (DECCO), OF ITS LATE PROPOSAL SUBMITTED IN RESPONSE TO REQUEST
FOR PROPOSALS (RFP) DCA-200-79-R-0009. WE ARE DENYING THE PROTEST
BECAUSE THE REASON FOR THE LATE DELIVERY IS NOT ONE OF THE EXCUSABLE
REASONS SPECIFIED IN THE SOLICITATION'S LATE PROPOSAL CLAUSE (DEFENSE
ACQUISITION REGULATION (DAR) SEC. 7-2002.4 (1976 ED.)).
SYNERGENESIS REPORTS THAT IT ARRANGED FOR ITS SUBCONTRACTOR, AMERICAN
TELEPHONE AND TELEGRAPH (ATT), LONGLINES DIVISION, TO PICK UP ITS
PROPOSAL AT THE OZARK AIRLINES TICKET COUNTER AT CHICAGO'S O'HARE
AIRPORT FOR ULTIMATE DELIVERY TO DECCO PRIOR TO THE TIME SET FOR RECEIPT
OF INITIAL PROPOSALS. THE RENDEZVOUS FAILED WHEN ATT'S REPRESENTATIVE
SHOWED UP AT THE ST. LOUIS AIRPORT INSTEAD OF THE CHICAGO AIRPORT.
SUBSEQUENTLY, DECCO REFUSED TO CONSIDER SYNERGENESIS' LATE PROPOSAL.
THE GENERAL RULE FOLLOWED BY OUR OFFICE IS THAT AN OFFEROR HAS THE
RESPONSIBILITY FOR DELIVERY OF ITS OFFER TO THE PROPER PLACE AT THE
PROPER TIME, AND LATE OFFERS, WITH EXCEPTIONS NOT APPLICABLE HERE, MUST
BE REJECTED IF THE CAUSE OF THE LATE DELIVERY FAILS TO FALL WITHIN THE
EXACT CIRCUMSTANCES SPECIFIED IN THE LATE PROPOSAL CLAUSE, DAR SEC.
7-2002.4, SUPRA. UBTL DIVISION, UNIVERSITY OF UTAH RESEARCH INSTITUTE,
B-193655, APRIL 4, 1979, 79-1 CPD 233. THE CLAUSE PROVIDES THREE
CIRCUMSTANCES UNDER WHICH LATE PROPOSALS MAY BE CONSIDERED. TWO OF
THESE CIRCUMSTANCES CONCERN LATE PROPOSALS DELIVERED BY REGISTERED,
CERTIFIED OR REGULAR MAIL PRIOR TO AWARD WHILE THE THIRD CONCERNS
SITUATIONS WHERE ONLY ONE PROPOSAL IS RECEIVED. BECAUSE SYNERGENESIS'
PROPOSAL WAS NOT SENT BY ANY OF THE PRESCRIBED METHODS AND WAS NOT THE
ONLY PROPOSAL RECEIVED, NONE OF THE CIRCUMSTANCES WHICH WOULD PERMIT
CONSIDERATION OF ITS LATE PROPOSAL UNDER THE CLAUSE ARE APPLICABLE.
IN VIEW OF OUR CONCLUSION THAT SYNERGENESIS' OFFER WAS PROPERLY
REJECTED, IT IS NOT NECESSARY TO CONSIDER THE OTHER ASPECTS OF
SYNERGENESIS' PROTEST.
REGARDING SYNERGENESIS' BELIEF THAT ATT'S FAILURE TO TIMELY DELIVER
SYNERGENESIS' PROPOSAL RAISES ANTITRUST IMPLICATIONS, THE APPROPRIATE
AGENCY FOR CONSIDERATION OF ALLEGED ANTITRUST ACTIVITIES IS THE
DEPARTMENT OF JUSTICE AND NOT THE GENERAL ACCOUNTING OFFICE. MARS
SIGNAL LIGHT COMPANY, B-193942, MARCH 7, 1979, 79-1 CPD 164.
FINALLY, BECAUSE WE BELIEVE THAT SYNERGENESIS' INITIAL SUBMISSION TO
OUR OFFICE CLEARLY REVEALS THAT THE PROTEST HAS NO LEGAL MERIT, THIS
DECISION HAS BEEN RENDERED WITHOUT OBTAINING AN AGENCY REPORT PURSUANT
TO OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.3(C) (1978). INFLATED
PRODUCTS COMPANY, INC., B-190877, MAY 11, 1978, 78-1 CPD 362.
THE PROTEST IS DENIED.
B-184175, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEES DROVE DAILY TO A TEMPORARY DUTY SITE. ALTHOUGH MILEAGE MAY
BE ALLOWED FOR POV TRAVEL FROM RESIDENCE TO NEARBY TEMPORARY DUTY SITE,
EMPLOYEES HERE ARE NOT ENTITLED TO PAYMENT SINCE AGENCY DID NOT
AUTHORIZE MILEAGE. AUTHORIZATION IN SUCH SITUATIONS IS WITHIN THE
AGENCY'S DISCRETION. MILEAGE ERRONEOUSLY PAID TO ANOTHER EMPLOYEE
SIMILARLY SITUATED PROVIDES NO BASIS FOR PAYING THESE CLAIMS.
BRIAN E. CHARNICK AND OTHERS - TDY NEAR PERMANENT DUTY STATION:
THE ISSUES PRESENTED ARE WHETHER MILEAGE EXPENSES INCURRED IN
TRAVELING TO A TEMPORARY DUTY SITE FROM EMPLOYEES' RESIDENCES MAY BE
REIMBURSED WHERE THE EMPLOYING AGENCY HAS NOT AUTHORIZED MILEAGE AND
WHETHER ERRONEOUS PAYMENT TO ONE EMPLOYEE SIMILARLY SITUATED PROVIDES A
BASIS FOR PAYING THE MILEAGE EXPENSES OF OTHER EMPLOYEES.
THE CLAIMANTS - BRIAN E. CHARNICK, PANFILO TIRABASSI, SAUL S.
SCHUSTER, WALTER P. LUCAS, JEROME J. SURRETSKY - CIVILIAN EMPLOYEES OF
THE ARMY, WERE PERMANENTLY ASSIGNED TO THE JOINT TACTICAL COMMUNICATIONS
(TRI-TAC) OFFICE LOCATED AT NEW SHREWSBURY, NEW JERSEY, A SITE WHICH IS
CONSIDERED A PART OF FORT MONMOUTH, NEW JERSEY. DURING THE PERIOD
OCTOBER 9, 1973, THROUGH MARCH 30, 1974, THE EMPLOYEES WERE ASSIGNED AS
MEMBERS OF THE SOURCE SELECTIONS AND EVALUATION BOARD (SSEB). THE SSEB
DUTY WAS PERFORMED IN THE EVANS AREA OF FORT MONMOUTH, A DISTANCE OF
APPROXIMATELY 15 MILES SOUTH OF THE MAIN POST. THE EVANS AREA IS
LOCATED AT A REMOTE SITE WITH NO PUBLIC TRANSPORTATION. EACH OF THE
EMPLOYEES COMMUTED DAILY FROM HIS PERMANENT RESIDENCE TO THE SSEB DUTY
SITE BY PRIVATE AUTOMOBILE WITHOUT REPORTING FIRST TO THE PERMANENT DUTY
STATION.
IN MATTER OF BRIAN E. CHARNICK, B-184175, AUGUST 5, 1975, WE
DISALLOWED THE CLAIM FOR MILEAGE EXPENSES OF MR. BRIAN E. CHARNICK, UPON
THE BASIS THAT IT IS DISCRETIONARY WITH AN AGENCY TO ALLOW MILEAGE FROM
RESIDENCE TO A TEMPORARY DUTY POST. IT WAS POINTED OUT THAT IN
EXERCISING ITS DISCRETION THE AGENCY SHOULD CONSIDER THE INTERESTS OF
BOTH THE GOVERNMENT AND THE EMPLOYEE, CITING 32 COMP. GEN. 235 (1952);
B-177555, FEBRUARY 22, 1973, AND 36 COMP. GEN. 795 (1957). IN
CHARNICK, WE DETERMINED THAT SINCE THE AUTHORIZATION OF TRAVEL
ALLOWANCES IN SUCH SITUATIONS IS A DISCRETIONARY ONE, IT IS NOT WITHIN
OUR JURISDICTION TO QUESTION THE PROPRIETY OF THE REFUSAL OF AN AGENCY
TO AUTHORIZE SUCH EXPENSES.
SUBSEQUENT TO CHARNICK, THE CLAIM OF MR. PANFILO TIRABASSI,
Z-2578937, WAS PRESENTED TO THE CLAIMS DIVISION OF THIS OFFICE. MR.
TIRABASSI WAS A MEMBER OF THE SAME SSEB BOARD AS MR. CHARNICK AND WAS
ALSO PERMANENTLY ASSIGNED TO TRI-TAC AT FORT MONMOUTH. BY SETTLEMENT
CERTIFICATE DATED MAY 11, 1978, MR. TIRABASSI'S CLAIM FOR MILEAGE
EXPENSES FOR DRIVING FROM HIS RESIDENCE TO THE SSEB DUTY SITE FROM
OCTOBER 1973 TO MARCH 1974 IN THE AMOUNT OF $383.20 WAS ALLOWED.
MR. CHARNICK NOW ASKS FOR RECONSIDERATION OF HIS CLAIM, CITING THE
PAYMENT TO MR. TIRABASSI. ALSO, CLAIMS WERE RECEIVED FROM WALTER P.
LUCAS, JEROME J. SURRETSKY, AND SAUL S. SCHUSTER, EACH BEING A MEMBER OF
THE SSEB AT FORT MONMOUTH AT THE SAME TIME AS CHARNICK AND TIRABASSI AND
EACH CLAIMING SIMILAR MILEAGE EXPENSES.
THE ESTABLISHED RULE IS THAT EMPLOYEES MUST PLACE THEMSELVES AT THEIR
REGULAR PLACES OF WORK AND RETURN TO THEIR RESIDENCES AT THEIR OWN
EXPENSE, ABSENT STATUTORY OR REGULATORY AUTHORITY TO THE CONTRARY. THE
INCREASE IN SUCH EXPENSES INCIDENT TO OVERTIME DUTY OR OTHER EMERGENCY
CONDITIONS DOES NOT CHANGE THE BASIC RULE THAT THE EMPLOYEE MUST BEAR
THE EXPENSE OF TRAVEL BETWEEN HIS RESIDENCE AND OFFICIAL DUTY STATION.
B-190071, MAY 1, 1978, AND B-185974, MARCH 21, 1977.
WHEN AN EMPLOYEE IS ASSIGNED TO A NEARBY TEMPORARY DUTY POST IT IS
WITHIN ADMINISTRATIVE DISCRETION TO PERMIT SUCH EMPLOYEE AN ALLOWANCE
FOR MILEAGE WITHOUT A DEDUCTION FOR THE DISTANCE HE WOULD NORMALLY
TRAVEL BETWEEN HIS HOME AND HEADQUARTERS, AND IRRESPECTIVE OF WHETHER HE
PERFORMS DUTY AT HIS HEADQUARTERS ON THAT DAY. ADMINISTRATIVE OFFICIALS
MAY REFUSE TO AUTHORIZE REIMBURSEMENT FOR SUCH EXPENSES IF NO ADDITIONAL
TRAVEL COSTS ARE INCURRED OR MAY LIMIT REIMBURSEMENT TO THE COST OF
TRAVEL BETWEEN THE EMPLOYEE'S HEADQUARTERS AND HIS TEMPORARY POST OF
DUTY. WHERE APPROPRIATE, OFFICIALS SHOULD EXERCISE THEIR DISCRETION TO
RESTRICT THE AMOUNT OF REIMBURSEMENT BY WAY OF A REDUCED RATE OR
DISTANCE WHEN THE EMPLOYEE PERFORMS WORK AT A TEMPORARY DUTY POST WITHIN
A REASONABLE COMMUTING AREA. AGENCY POLICY TO REGARD SUCH EXPENSES AS
NORMAL COMMUTING EXPENSES AND APPLICATION THEREOF MUST BE REASONABLE.
OFFICIALS ARE TO GIVE DUE CONSIDERATION TO THE INTERESTS OF BOTH THE
GOVERNMENT AND THE EMPLOYEE. B-189061, MARCH 15, 1978, AND CASES CITED.
IN THE PRESENT CASE EACH OF THE EMPLOYEES DROVE FROM HIS RESIDENCE TO
THE TEMPORARY DUTY SITE A SHORT DISTANCE FROM HIS PERMANENT DUTY
STATION. IT WAS NOT UNREASONABLE FOR THE AGENCY TO MAKE THE
DETERMINATION THAT THE MILEAGE EXPENSES BE REGARDED AS NORMAL COMMUTING
EXPENSES AND FAILURE TO AUTHORIZE A MILEAGE ALLOWANCE IS NOT AN ABUSE OF
THE AGENCY'S DISCRETIONARY POWERS. SINCE THERE IS NO AUTHORIZATION HERE
FOR A MILEAGE ALLOWANCE WE FIND NO AUTHORITY TO REQUIRE PAYMENT OF THE
TRAVEL CLAIMS OF THESE EMPLOYEES.
THE PROVISIONS OF 31 U.S.C. 71 (1976) REQUIRE US TO DETERMINE EACH
PERSON'S ENTITLEMENT TO A PAYMENT FROM THE UNITED STATES ON ITS OWN
MERITS UNDER THE LAW. B-154330, AUGUST 16, 1968. MONEY PAID OUT BY THE
UNITED STATES UPON AN ERRONEOUS DETERMINATION OF LAW BY GOVERNMENT
OFFICERS MAY BE RECOVERED BACK FROM THE RECIPIENT. 22 COMP. GEN. 952
(1943); 31 COMP. GEN. 75 (1951); AND 31 COMP. GEN. 177 (1951). THUS,
THE ERRONEOUS PAYMENT OF A CLAIM PROVIDES NO BASIS FOR THE PAYMENT OF
SIMILAR CLAIMS.
ACCORDINGLY, UPON RECONSIDERATION, CHARNICK, SUPRA, IS AFFIRMED. THE
CLAIMS OF SAUL S. SCHUSTER AND WALTER P. LUCAS, CONSIDERED HERE FOR THE
FIRST TIME ARE DENIED. THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS
OFFICE DATED DECEMBER 31, 1975, DISALLOWING THE CLAIM OF JEROME J.
SURRETSKY IS AFFIRMED. THE SETTLEMENT OF THE CLAIMS DIVISION DATED MAY
11, 1978, WHICH CERTIFIED FOR PAYMENT THE SUM OF $383.20 AS
REIMBURSEMENT OF MILEAGE AND TOLLS EXPENSES TO PANFILO TIRABASSI BEING
CONTRARY TO CHARNICK, SUPRA, IS OVERRULED. THE CLAIMS DIVISION WILL
INITIATE COLLECTION OF THE SUM OF $383.20.
B-192511, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. STATE DEPARTMENT MAY ISSUE INSTRUCTIONS TO U.S. EMBASSY IN
BOGOTA, COLOMBIA, STATING THAT CERTIFYING OFFICER (CO) WILL NOT BE
LIABLE FOR ADVANCE SEVERANCE PAY PAID TO ELIGIBLE EMPLOYEES WHO
SUBSEQUENTLY LOSE ELIGIBILITY FOR SUCH PAYMENT PROVIDED CERTIFICATION OF
PAYMENT WAS MADE ON BASIS OF INFORMATION PROVIDED CO THAT WAS COMPLETE
ON ITS FACE WITH RESPECT TO PURPOSE OF PAYMENT AND SHOWED ADMINISTRATIVE
FINDING OF COMPLIANCE WITH DEPARTMENT'S FOREIGN SERVICE NATIONAL
EMPLOYEE SEVERANCE PAY PLAN.
2. STATE DEPARTMENT MAY ESTABLISH COMPENSATION PLANS FOR ALIEN
FOREIGN SERVICE EMPLOYEES BASED ON "COMPENSATION PRACTICES FOR
CORRESPONDING TYPES OF POSITIONS IN THE LOCALITY, TO THE EXTENT
CONSISTENT WITH THE PUBLIC INTEREST." 22 U.S.C. SEC. 889 (1976).
HOWEVER, DEPARTMENT MAY NOT, SOLELY BECAUSE PRACTICE OF LOCAL EMPLOYERS
IS NOT TO SEEK RECOVERY, REFRAIN FROM COLLECTION EFFORTS WHEN ALIEN
EMPLOYEE LOSES ELIGIBILITY FOR CERTAIN COMPENSATION. FEDERAL CLAIMS
COLLECTION ACT MANDATES ATTEMPTS TO RECOVER. 31 U.S.C. SECS. 951-953
(1976).
LIABILITY OF CERTIFYING OFFICERS FOR ADVANCES OF SEVERANCE PAY IN
COLOMBIA TO FOREIGN SERVICE LOCAL EMPLOYEES:
THIS RESPONDS TO A REQUEST FROM THE DEPUTY ASSISTANT SECRETARY FOR
BUDGET AND FINANCE, DEPARTMENT OF STATE (DEPARTMENT) FOR OUR OPINION ON
THE FOLLOWING QUESTIONS:
1. "IF AN ADVANCE SEVERANCE PAYMENT WERE MADE TO AN FSN (FOREIGN
SERVICE NATIONAL) EMPLOYEE OF THE EMBASSY OR A CONSULATE IN COLOMBIA AND
THE SAME EMPLOYEE WERE LATER TERMINATED FOR CAUSE, THUS NOT ENTITLED TO
SEVERANCE BENEFITS, WOULD THE CERTIFYING OFFICER WHO APPROVED THE
ADVANCE PAYMENT BE EXEMPT FROM COLLECTING OR REPAYING THE AMOUNT
ADVANCED?
2. "IF THE ANSWER TO THE ABOVE QUESTION IS AFFIRMATIVE, WOULD THE
DEPARTMENT BE CORRECT IN ISSUING AN INSTRUCTION TO THE EMBASSY IN BOGOTA
THAT CERTIFYING OFFICERS WILL NOT BE LIABLE FOR ANY ADVANCE PAYMENTS
MADE IN COMPLIANCE WITH THE FOREIGN SERVICE NATIONAL EMPLOYEE SEVERANCE
PAY PLAN, PROVIDED ALL CONDITIONS OF THE PLAN ARE OTHERWISE MET?"
THE ABOVE QUESTIONS AROSE AS THE RESULT OF OUR DECISION, ADVANCES OF
SEVERANCE PAY TO FOREIGN SERVICE LOCAL EMPLOYEES OF UNITED STATES IN
COLOMBIA, B-192511, DATED FEBRUARY 5, 1979, IN WHICH WE CONCLUDED THAT
SEVERANCE PAYMENTS MAY BE MADE TO FOREIGN SERVICE LOCAL EMPLOYEES OF THE
U.S. EMBASSY IN COLOMBIA IN ADVANCE OF THEIR SEPARATION FROM GOVERNMENT
SERVICE IN ACCORDANCE WITH THE FOLLOWING LOCAL PRACTICE.
COLOMBIAN LAW REQUIRES THAT EMPLOYERS PROVIDE EMPLOYEES WITH
SEVERANCE PAY AND AUTHORIZES THE ADVANCE PAYMENT OF ACCRUED SEVERANCE
PAY FOR THE PURPOSE OF:
1. PURCHASING A HOME;
2. PAYING A MORTGAGE THEREON; OR
3. MAKING IMPROVEMENTS ON A HOME PREVIOUSLY PURCHASED. (ARTICLES
249, 256, COLOMBIAN LABOR CODE (1978).)
UNDER 22 U.S.C. SEC. 889(A)(1) (1976), THE SECRETARY OF STATE IS
AUTHORIZED TO ESTABLISH COMPENSATION PLANS FOR ALIEN EMPLOYEES IN
ACCORDANCE WITH PREVAILING LOCAL PRACTICES TO THE EXTENT CONSISTENT WITH
THE PUBLIC INTEREST. PURSUANT TO THIS AUTHORITY, THE DEPARTMENT
ESTABLISHED A FOREIGN SERVICE NATIONAL (FSN) EMPLOYEE SEVERANCE PAY PLAN
FOR ELIGIBLE COLOMBIAN EMPLOYEES OF ALL U.S. GOVERNMENT AGENCIES IN
COLOMBIA. IN OUR DECISION, ADVANCES OF SEVERANCE PAY, SUPRA, WE
AUTHORIZED THE ADVANCE PAYMENT OF SEVERANCE PAY FOR THE THREE PURPOSES
SET FORTH ABOVE.
THUS, WITH REGARD TO THE APPLICATION OF FUNDS, AN ADMINISTRATIVE
DETERMINATION SHOULD BE MADE THAT THE PLAN HAS BEEN COMPLIED WITH, AND
THAT THE FSN EMPLOYEE COMPLIED WITH THE LOCAL PRACTICE AS SET FORTH IN
ARTICLE 256 OF THE COLOMBIAN LABOR CODE. THAT ARTICLE (AS TRANSLATED BY
THE STATE DEPARTMENT) REQUIRES THAT -
"*** ADVANCES *** BE APPROVED BY THE RESPECTIVE WORK INSPECTOR OR IN
HIS ABSENCE, BY THE MUNICIPAL MAYOR, AFTER IT IS DETERMINED THAT THEY
ARE GOING TO BE DEDICATED TO THE ENDS INDICATED IN SAID PARAGRAPHS."
THE PROBLEM IN THIS CASE ARISES BECAUSE THE EMPLOYEES' RIGHT TO
SEVERANCE PAY IS NOT ABSOLUTE. UNDER THE DEPARTMENT'S PLAN, EMPLOYEES
MAY LOSE THEIR ELIGIBILITY FOR SEVERANCE PAY IF EMPLOYMENT IS
TERMINATED:
"A) FOR CAUSE OF MISCONDUCT OR MALFEASANCE AS DETERMINED BY EMPLOYING
AGENCY.
"B) FOR CAUSE OF WILLFULLY COMMITTING MATERIAL DAMAGE TO HIS OFFICE
OR BUILDING, MACHINERY, MATERIALS, INSTRUMENTS AND OTHER OBJECTS
CONNECTED WITH HIS WORK.
"C) FOR CAUSE OF SECURITY WHEN EMPLOYING AGENCY DETERMINES THAT
TERMINATION IS NECESSARY AND ADVISABLE IN THE INTEREST OF THE NATIONAL
SECURITY OF THE UNITED STATES."
IN VIEW OF THE FACT THAT AN EMPLOYEE MAY LOSE HIS ELIGIBILITY FOR
SEVERANCE PAY SUBSEQUENT TO THE ADVANCE PAYMENT, THE DEPARTMENT IS
CONCERNED ABOUT THE LIABILITY OF CERTIFYING OFFICERS WHO CERTIFY
VOUCHERS COVERING SUCH ADVANCE PAYMENTS. UNDER 31 U.S.C. SEC. 82C
(1976), WHICH SETS FORTH THE RESPONSIBILITIES OF CERTIFYING OFFICERS -
"THE OFFICER OR EMPLOYEE CERTIFYING A VOUCHER SHALL (1) BE HELD
RESPONSIBLE FOR THE EXISTENCE AND CORRECTNESS OF THE FACTS RECITED IN
THE CERTIFICATE OR OTHERWISE STATED ON THE VOUCHER OR ITS SUPPORTING
PAPERS AND FOR THE LEGALITY OF THE PROPOSED PAYMENT UNDER THE
APPROPRIATION OR FUND INVOLVED; AND (2) BE HELD ACCOUNTABLE FOR AND
REQUIRED TO MAKE GOOD TO THE UNITED STATES THE AMOUNT OF ANY ILLEGAL,
IMPROPER, OR INCORRECT PAYMENT RESULTING FROM ANY FALSE, INACCURATE, OR
MISLEADING CERTIFICATE MADE BY HIM, AS WELL AS FOR ANY PAYMENT
PROHIBITED BY LAW OR WHICH DID NOT REPRESENT A LEGAL OBLIGATION UNDER
THE APPROPRIATION OR FUND INVOLVED: ***."
UNDER THE ABOVE STATUTORY PROVISION, VOUCHERS FOR ADVANCES OF
SEVERANCE PAY TO FSN EMPLOYEES IN COLOMBIA MAY BE CERTIFIED FOR PAYMENT
(IF OTHERWISE PROPER) PROVIDED THAT THE RECORD BEFORE THE CERTIFYING
OFFICER IS COMPLETE ON ITS FACE WITH RESPECT TO THE PURPOSE OF THE
PAYMENT, AND INDICATES THAT THE APPROPRIATE DEPARTMENT OFFICIAL HAS MADE
A FINDING THAT THE PROPOSED PAYMENT IS IN COMPLIANCE WITH THE
DEPARTMENT'S FSN EMPLOYEE SEVERANCE PAY PLAN.
AS A GENERAL PROPOSITION, IF CERTIFICATIONS ARE MADE IN ACCORDANCE
WITH THE CONDITIONS SET FORTH ABOVE, THEN THE CERTIFYING OFFICER WOULD
NOT BE HELD LIABLE FOR OTHERWISE PROPER PAYMENTS IF THE FSN EMPLOYEE
SHOULD SUBSEQUENTLY LOSE HIS ELIGIBILITY FOR SEVERANCE PAY, FOR CAUSES
WHICH DID NOT EXIST AT THE TIME OF THE PAYMENT, OR WHICH EXISTED BUT
WHICH THE CERTIFYING OFFICER DID NOT KNOW OF AND HAD NO REASON TO KNOW
OF. IF THE DEPARTMENT'S PROPOSED INSTRUCTION IS CAREFULLY WORDED TO
INCLUDE THE QUALIFICATIONS IN THE PRECEDING PARAGRAPH, THEN WE WOULD
HAVE NO OBJECTION TO ITS ISSUANCE TO THE U.S. EMBASSY IN BOGOTA.
THE DEPARTMENT REFERS TO CORRESPONDENCE INDICATING THAT -
"THE LOCAL PRACTICE OF COLOMBIAN EMPLOYERS IS NOT TO ATTEMPT TO
COLLECT ANY SEVERANCE PAY AMOUNTS ADVANCED TO AN EMPLOYEE WHO IS LATER
TERMINATED FOR CAUSE, NOTWITHSTANDING THE FACT THAT THE INDIVIDUAL,
BECAUSE OF THE NATURE OF THE SEPARATION, BECOMES TECHNICALLY INELIGIBLE
FOR THE AMOUNTS PREVIOUSLY ADVANCED."
UNDER 22 U.S.C. SEC. 889(A)(1), THE SECRETARY MAY FOLLOW LOCAL
PRACTICE AS TO "PREVAILING WAGE RATES AND COMPENSATION PRACTICES."
HOWEVER, THIS DOES NOT CONFER AUTHORITY TO FOLLOW LOCAL PRACTICE AS TO
COLLECTION OF CLAIMS IN FAVOR OF THE UNITED STATES. THE DEPARTMENT
WOULD STILL BE REQUIRED TO ATTEMPT COLLECTION OF THE ADVANCE SEVERANCE
PAY. SEE THE FEDERAL CLAIMS COLLECTION ACT, 31 U.S.C. SECS. 951-953
(1976). THE FACT THAT THE PAYMENT WAS PROPER AT THE TIME IT WAS MADE
DOES NOT AFFECT THE DEBT TO THE UNITED STATES THAT AROSE BY REASON OF
THE EMPLOYEE'S TERMINATION FOR CAUSE.
B-193386, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. A MEMBER OF THE NATIONAL GUARD WHO IS DISABLED IN LINE OF DUTY
FROM INJURY WHILE PERFORMING ACTIVE DUTY FOR TRAINING IS ENTITLED BY LAW
TO CONTINUED PAY AND ALLOWANCES DURING THE SUBSEQUENT PERIOD WHEN HE
REMAINS INCAPACITATED FOR THE PERFORMANCE OF HIS NORMAL MILITARY DUTIES,
AND THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO
THE EXERCISE OF SOUND ADMINISTRATIVE JUDGMENT. IN EACH CASE THE SERVICE
CONCERNED IS TO DETERMINE WHEN THE INJURED MEMBER HAS RECOVERED OR
DETERMINE THAT HE SHOULD BE SEPARATED FOR DISABILITY. 37 U.S.C. 204(H)
(1976).
2. WHEN A NATIONAL GUARD MEMBER IS INJURED IN LINE OF DUTY WHILE
PERFORMING ACTIVE DUTY FOR TRAINING, ADMINISTRATIVE DETERMINATIONS
CONCERNING THE MEMBER'S DISABILITY SHOULD, WHENEVER POSSIBLE, BE BASED
UPON THE FINDINGS AND CONCLUSIONS OF SERVICE MEDICAL PERSONNEL (AS
DISTINGUISHED FROM CIVILIAN PHYSICIANS), BUT IN THE ABSENCE OF SUCH
FINDINGS, MILITARY COMMAND AUTHORITIES MAY REASONABLY RELY ON SECONDARY
EVIDENCE, INCLUDING STATEMENTS FROM PRIVATE PHYSICIANS, IN MAKING THE
NECESSARY ADMINISTRATIVE DETERMINATION AS TO WHETHER THE MEMBER IS
PHYSICALLY ABLE, AND SHOULD THEREFORE BE REQUIRED, TO RESUME HIS NORMAL
MILITARY DUTIES.
3. A NATIONAL GUARD MEMBER INJURED IN THE LINE OF DUTY ON JUNE 12,
1977, WHO WAS THEREAFTER RELIEVED BY MILITARY COMMAND AUTHORITIES FROM
THE PERFORMANCE OF HIS NORMAL MILITARY DUTIES FOR REASONS OF PHYSICAL
UNFITNESS UNTIL MARCH 24, 1978, ON THE BASIS OF EVALUATIONS BY CIVILIAN
PHYSICIANS AND EVIDENCE THAT HE WAS PHYSICALLY UNABLE TO PURSUE HIS
CIVILIAN FARMING OCCUPATION, MAY BE ALLOWED DISABILITY PAY AND
ALLOWANCES THROUGH MARCH 24, 1978, EVEN THOUGH VETERANS ADMINISTRATION
PERSONNEL ADVISED HIM TO "TRY WORKING" ON JULY 26, 1977, SINCE SUCH
ADVICE DID NOT CONSTITUTE A FINAL DETERMINATION REGARDING FITNESS FOR
ACTIVE MILITARY SERVICE.
SP4 CARL L. ADAMS, MN ARNG:
THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 28, 1978, WITH
ENCLOSURES, FROM CAPTAIN ROBERT C. AKERVICK, FC, FINANCE AND ACCOUNTING
OFFICER, FORT MCCOY, WISCONSIN, REQUESTING AN ADVANCE DECISION AS TO THE
PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE NET AMOUNT OF $3,135 TO
SP4 CARL L. ADAMS, MN ARNG, 000-00-8083, REPRESENTING DISABILITY PAY AND
ALLOWANCES FOR THE PERIOD JULY 27 THROUGH DECEMBER 14, 1977, AS A RESULT
OF INJURIES HE SUSTAINED ON JUNE 12, 1977, WHILE ON ANNUAL TRAINING DUTY
WITH THE MINNESOTA ARMY NATIONAL GUARD. THE REQUEST WAS FORWARDED HERE
BY THE OFFICE OF THE COMPTROLLER OF THE ARMY BY LETTER DATED OCTOBER 31,
1978 (DACA-FAB), AND HAS BEEN ASSIGNED CONTROL NO. DO-A-1306 BY THE
DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.
IT IS INDICATED THAT THE MEMBER WAS INJURED IN THE LINE OF DUTY WHEN
STRUCK BY A FALLING TREE ON JUNE 12, 1977, WHILE HE WAS PERFORMING 2
WEEKS' ANNUAL ACTIVE DUTY FOR TRAINING WITH HIS NATIONAL GUARD UNIT. HE
COMPLETED THE ACTIVE DUTY TOUR, IN A LIMITED DUTY STATUS, BUT HAD
CONTINUING HEADACHES TOGETHER WITH SEVERE NECK AND BACK PAIN. HE
APPARENTLY ATTENDED HIS SCHEDULED UNIT WEEKEND DRILL IN JULY AND WAS
THEN REFERRED TO THE VETERANS HOSPITAL AT FARGO, NORTH DAKOTA, FOR
FURTHER MEDICAL TREATMENT. THE VETERANS ADMINISTRATION (VA) MEDICAL
RECORDS STATE IN PERTINENT PART AS FOLLOWS: "7/26/77 DISCHARGED FROM
FURTHER CARE OR MEDICATION. ADVISED TO TRY WORKING." THE MEMBER
RECEIVED DISABILITY PAY THROUGH JULY 26, 1977, PURSUANT TO 37 U.S.C.
204(H) AND PARAGRAPH 80254 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND
ALLOWANCES ENTITLEMENTS MANUAL (DODPM).
IT IS FURTHER INDICATED, HOWEVER, THAT THE MEMBER THEREAFTER
CONTINUED TO SUFFER PHYSICAL DISCOMFORT TO THE EXTENT THAT HE WAS UNABLE
TO PERFORM HIS CIVILIAN OCCUPATION AS A SELF-EMPLOYED FARMER AND HAD TO
HIRE OUTSIDE HELP TO DO HIS FARM WORK. IT ALSO APPEARS THAT HE SOUGHT
FURTHER MEDICAL TREATMENT FROM PHYSICIANS OF HIS OWN CHOOSING. A
STATEMENT IN THE FILE DATED DECEMBER 14, 1977, FROM ONE OF HIS PRIVATE
PHYSICIANS SAYS IN PART:
"*** INJURIES OF THIS KIND USUALLY TAKE A LONG TIME TO HEAL AND STILL
MAY LEAVE HIM WITH SOME DEGREE OF RESIDUAL DISABILITY. HE IS CURRENTLY
BEING MANAGED ON NO EXCESSIVE ACTIVITIES, PHYSICAL THERAPY AND
ANTI-INFLAMMATORY AGENTS. AT THIS STAGE NO PREDICTION CAN BE MADE AS TO
WHEN HE WILL BE READY AGAIN FOR NATIONAL GUARD DUTY. ***"
EVENTUALLY ON MARCH 24, 1978, THE MEMBER WAS EVALUATED AT THE
FITZSIMMONS ARMY MEDICAL CENTER, DENVER, COLORADO, AND WAS THEN
DETERMINED TO BE FIT FOR ACTIVE MILITARY SERVICE WITH NO PHYSICAL
PROFILE LIMITATIONS. IT WAS NOTED THAT HE WAS STILL EXPERIENCING SOME
RESIDUAL PAIN AS THE RESULT OF HIS INJURY, BUT THAT HIS CONDITION HAD
SLOWLY IMPROVED WITH THE PASSAGE OF TIME.
BETWEEN JULY 27, 1977, AND MARCH 24, 1978, THE MEMBER WAS EXCUSED BY
MILITARY AUTHORITIES FROM ATTENDING HIS UNIT TRAINING ASSEMBLIES. IN
THAT REGARD, IT WAS DETERMINED BY THE MEMBER'S UNIT COMMANDER THAT HE
COULD NOT PERFORM ALL OF THE MILITARY DUTIES CALLED FOR IN HIS MILITARY
OCCUPATION SPECIALTIES, AND WOULD HAVE BEEN LIMITED TO THE PERFORMANCE
OF LIGHT DUTY. IN APRIL 1978 THE MEMBER RESUMED PAID ATTENDANCE AT HIS
UNIT DRILLS AND THE PERFORMANCE OF HIS NORMAL MILITARY DUTIES.
IN THE SUBMISSION, DOUBT IS EXPRESSED AS TO WHETHER THE MEMBER IS
ENTITLED TO DISABILITY PAY FOR PERIODS BEYOND JULY 26, 1977, IN THESE
CIRCUMSTANCES. IN EFFECT, IT IS QUESTIONED WHETHER THE MEMBER'S RELEASE
FROM MEDICAL TREATMENT BY VA AUTHORITIES ON JULY 26, 1977, CONSTITUTES
AN EVENT WHICH WOULD OPERATE TO TERMINATE HIS ENTITLEMENT TO FURTHER
DISABILITY PAY. IN THAT CONNECTION, IT IS ALSO, IN EFFECT, QUESTIONED
WHETHER THE MEMBER'S SUBSEQUENT INABILITY TO PERFORM HIS CIVILIAN
FARMING OCCUPATION, AND THE OPINIONS EXPRESSED BY HIS PRIVATE PHYSICIANS
THAT HE WAS UNFIT FOR THE PERFORMANCE OF NATIONAL GUARD DUTY, CONSTITUTE
A SUFFICIENT BASIS FOR THE CONTINUATION OF DISABILITY PAY.
SUBSECTION 204(H) OF TITLE 37, UNITED STATES CODE (1976), PROVIDES
THAT A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE PAY AND
ALLOWANCES PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR
ARMY OR REGULAR AIR FORCE OF CORRESPONDING GRADE AND LENGTH OF SERVICE,
WHENEVER HE IS CALLED OR ORDERED TO PERFORM ACTIVE DUTY FOR TRAINING
UNDER 32 U.S.C. 502-505, AND IS DISABLED IN LINE OF DUTY FROM INJURY
WHILE SO EMPLOYED.
ADMINISTRATIVE DIRECTIVES WHICH IMPLEMENT THIS STATUTORY PROVISION
ARE CONTAINED IN THE DODPM AND REGULATIONS ISSUED BY THE SERVICE
SECRETARIES.
SUBPARAGRAPH 80254(D)(3), DODPM, IN EFFECT AT THE TIME, PROVIDES THAT
A MEMBER'S ENTITLEMENT TO PAY AND ALLOWANCES WHILE DISABLED TERMINATES
UPON DETERMINATION BY PROPER AUTHORITY THAT THE MEMBER HAS RECOVERED
SUFFICIENTLY TO PERFORM HIS NORMAL MILITARY DUTIES, OR WHEN HE IS
ACTUALLY RESTORED TO HIS NORMAL MILITARY DUTIES, WHICHEVER OCCURS FIRST.
THIS PROVISION FURTHER STATES THAT ATTENDANCE AT A UNIT TRAINING
ASSEMBLY OR PERFORMANCE OF LIMITED OR RESTRICTED DUTY DOES NOT, IN
ITSELF, CONSTITUTE RESTORATION TO NORMAL MILITARY DUTIES.
RULE 1, TABLE 8-2-4 OF THE DODPM, PROVIDES THAT IF A MEMBER OF A
RESERVE COMPONENT IS DISABLED IN THE LINE OF DUTY DUE TO INJURY WHILE
SERVING ON ACTIVE DUTY FOR ANY PERIOD OF TIME, THEN HE IS ENTITLED TO
ACTIVE DUTY PAY AND ALLOWANCES AND MEDICAL BENEFITS COMMENSURATE WITH
THE REGULAR FORCES SO LONG AS HE IS UNFIT FOR HIS NORMAL MILITARY DUTY
PER MEDICAL AUTHORITY. THIS RULE ALSO PROVIDES THAT SUCH ENTITLEMENT IS
NOT AFFECTED BY THE MEMBER'S RESUMPTION OF HIS NORMAL CIVILIAN
OCCUPATION, BUT THAT FAILURE OF THE MEMBER TO PROVIDE CURRENT AND
SUFFICIENT INFORMATION MAY RESULT IN THE DISCONTINUANCE OF ACTIVE DUTY
PAY AND ALLOWANCES.
SUBPARAGRAPH 4-2J OF ARMY REGULATION 40-3 IN EFFECT AT THE TIME,
STATES THAT WHEN A MEMBER OF THE ARMY RESERVE OR THE ARMY NATIONAL GUARD
IS HOSPITALIZED OR REQUIRES CONTINUED MEDICAL TREATMENT AT THE
EXPIRATION OF HIS PERIOD OF TRAINING DUTY FOR AN IN-LINE-OF-DUTY
CONDITION, HE IS ENTITLED TO CONTINUATION OF PAY AND ALLOWANCES AS
AUTHORIZED IN PARAGRAPH 80254 AND TABLE 8-2-4, DODPM. THE REGULATION
ALSO STATES THAT ENTITLEMENT TO PAY AND ALLOWANCES CEASES WHEN TREATMENT
IS TERMINATED BY MEDICAL AUTHORITY; WHEN THE INDIVIDUAL CAN PERFORM HIS
MILITARY DUTIES IN THE SAME MANNER AS BEFORE THE MEDICAL CONDITIONS
OCCURRED; OR WHEN DISABILITY PROCESSING IS COMPLETED THROUGH A PHYSICAL
EVALUATION BOARD, WHICHEVER OCCURS FIRST.
WE HAVE HELD THAT THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES UNDER
37 U.S.C. 204(H) AND SIMILAR STATUTORY PROVISIONS APPLICABLE TO MEMBERS
OF THE RESERVES, IS BASED UPON THE MEMBER'S PHYSICAL DISABILITY TO
PERFORM HIS NORMAL MILITARY DUTY, NOT HIS NORMAL CIVILIAN PURSUIT, AND
THE DETERMINATION AS TO HOW LONG THE DISABILITY CONTINUES IS LEFT TO THE
EXERCISE OF SOUND ADMINISTRATIVE JUDGMENT. IN EACH CASE THE SERVICE
CONCERNED IS TO DETERMINE WHEN THE INJURED MEMBER RECOVERS SUFFICIENTLY
TO PERFORM HIS NORMAL MILITARY DUTIES OR TO DETERMINE THAT HE SHOULD BE
SEPARATED FOR DISABILITY. 54 COMP. GEN. 33, 36 (1974); 52 ID. 99
(1972); 43 ID. 733, 737 (1964).
WE HAVE FURTHER EXPRESSED THE VIEW THAT AN ADMINISTRATIVE
DETERMINATION CONCERNING DISABILITY SHOULD, WHENEVER POSSIBLE, BE BASED
UPON THE FINDINGS AND CONCLUSIONS OF SERVICE MEDICAL PERSONNEL (AS
DISTINGUISHED FROM CIVILIAN PHYSICIANS), CLEARLY SETTING FORTH THE
PERIOD OF INABILITY TO PERFORM NORMAL MILITARY DUTIES BECAUSE OF THE
PARTICULAR DISABILITY. 47 COMP. GEN. 531, 534 (1968); 36 ID. 692, 694
(1957). A DETERMINATION MADE BY SERVICE MEDICAL AUTHORITIES THAT A
MEMBER IS AGAIN PHYSICALLY FIT FOR DUTY TERMINATES HIS ENTITLEMENT TO
DISABILITY PAY AND ALLOWANCES, IN THE ABSENCE OF CONTRARY PROOF THAT HE
IS, IN FACT, STILL PHYSICALLY INCAPACITATED. IN SUCH CIRCUMSTANCES, THE
MEMBER'S COMPLAINT OF CONTINUING PHYSICAL DISCOMFORT AND HIS FURTHER
TREATMENT BY CIVILIAN PHYSICIANS ARE GENERALLY INSUFFICIENT IN
THEMSELVES TO OVERCOME THE PRESUMPTION THAT HE HAS RECOVERED THE ABILITY
TO RESUME HIS NORMAL MILITARY DUTIES. 52 COMP. GEN. 667, 670 (1973).
HOWEVER, WE HAVE ALSO RECOGNIZED THAT CASES MAY OCCUR IN WHICH THE
INJURED MEMBER IS CONDITIONALLY DISCHARGED FROM HOSPITALIZATION OR CARE
BY SERVICE MEDICAL PERSONNEL WITHOUT ANY FINAL DETERMINATION HAVING BEEN
MADE AS TO WHETHER THE MEMBER HAS RECOVERED TO THE POINT OF BEING
PHYSICALLY ABLE TO RESUME HIS NORMAL MILITARY DUTIES. IN SUCH CASES, IT
IS PERMISSIBLE FOR THE MEMBER'S UNIT COMMANDER OR OTHER APPROPRIATE
MILITARY AUTHORITY TO USE SECONDARY EVIDENCE, INCLUDING PERSONAL
INTERVIEWS WITH THE MEMBER, STATEMENTS FROM CIVILIAN PHYSICIANS, AND
INFORMATION CONCERNING THE MEMBER'S ABILITY TO RESUME HIS CIVILIAN
OCCUPATION, IN MAKING THE NECESSARY ADMINISTRATIVE DETERMINATION AS TO
WHETHER THE MEMBER IS PHYSICALLY ABLE, AND SHOULD THEREFORE BE REQUIRED,
TO RESUME HIS NORMAL MILITARY DUTIES. 52 COMP. GEN. 99, SUPRA; 36 ID.
692, 694 SUPRA; B-187049, NOVEMBER 9, 1976; B-184239/B-183984,
NOVEMBER 13, 1975. IN SUCH CIRCUMSTANCES, THE MEMBER REMAINS ENTITLED
TO CONTINUED DISABILITY PAY AND ALLOWANCES, PROVIDED HE COOPERATES WITH
SERVICE AUTHORITIES AND KEEPS THEM CURRENTLY ADVISED CONCERNING HIS
CONDITION. 52 COMP. GEN. 99, 104-105, SUPRA.
IN THE PRESENT CASE, THE MEMBER WAS DISCHARGED FROM THE VA HOSPITAL
ON JULY 26, 1977, WITH THE ADVICE THAT HE SHOULD "TRY WORKING." SUCH
ADVICE CANNOT PROPERLY BE REGARDED AS A FINAL DETERMINATION THAT THE
MEMBER WAS THEN FULLY FIT FOR ACTIVE MILITARY SERVICE WITHOUT PHYSICAL
PROFILE LIMITATIONS, AND IT WAS OBVIOUSLY NOT TREATED AS A FINAL
DISPOSITION OF THE MATTER BY THE CONCERNED MILITARY COMMAND AUTHORITIES
AT THE TIME. IN OUR VIEW, THOSE AUTHORITIES ACTED PRUDENTLY, AND WITHIN
THE BOUNDS OF SOUND ADMINISTRATIVE DISCRETION, IN DETERMINING THAT THE
MEMBER REMAINED INCAPACITATED FOR THE PERFORMANCE OF HIS NORMAL MILITARY
DUTIES THROUGH DECEMBER 14, 1977, ON THE BASIS OF THE PERIODIC
EVALUATIONS BY THE CIVILIAN PHYSICANS AND THE OTHER INFORMATION
SUBMITTED. MOREOVER, IT APPEARS THAT THE MEMBER COOPERATED WITH HIS
COMMANDING OFFICERS, KEPT THEM REGULARLY ADVISED AS TO HIS CONDITION,
AND OTHERWISE ACTED IN GOOD FAITH IN THE MATTER THROUGHOUT THE PERIOD
ENDING ON DECEMBER 14, 1977.
ACCORDINGLY, THE MEMBER IS ALLOWED DISABILITY PAY AND ALLOWANCES FOR
THE PERIOD JULY 27 THROUGH DECEMBER 14, 1977. THE VOUCHER, WHICH IS
RETURNED TOGETHER WITH THE RELATED DOCUMENTATION, MAY BE PROCESSED FOR
PAYMENT, IF OTHERWISE CORRECT.
FURTHERMORE, ALTHOUGH THE DOCUMENTATION SUBMITTED DOES NOT FULLY
COVER THE SUBSEQUENT PERIOD FROM DECEMBER 15, 1977, TO MARCH 24, 1978,
IT IS INDICATED THAT THE MEMBER WAS RELIEVED FROM THE PERFORMANCE OF
MILITARY DUTY DURING THAT PERIOD FOR REASONS OF PHYSICAL INCAPACITATION.
IT IS THEREFORE OUR VIEW THAT THE MEMBER MAY BE PAID ADDITIONAL AMOUNTS
OF DISABILITY PAY AND ALLOWANCES FOR THE SUBSEQUENT PERIOD ENDING MARCH
24, 1978 (THE DATE HE WAS FINALLY DETERMINED BY SERVICE MEDICAL
AUTHORITIES TO BE AGAIN FIT FOR MILITARY DUTY), PROVIDED THAT THE
CONCERNED MILITARY COMMAND AUTHORITIES ARE SATISFIED THAT THE MEMBER
REMAINED COOPERATIVE AND THAT A SUFFICIENT FACTUAL BASIS EXISTED TO
JUSTIFY THEIR RELIEVING HIM FROM HIS NORMAL DUTIES BECAUSE OF PHYSICAL
UNFITNESS DURING THAT TIME.
B-193516, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
PROTEST FILED WITH GAO MORE THAN 10 WORKING DAYS AFTER PROTESTER WAS
ORALLY ADVISED THAT ISSUANCE OF ORDER TO COMPETITOR WOULD NOT BE
CANCELED IS UNTIMELY UNDER BID PROTEST PROCEDURES.
LANIER BUSINESS PRODUCTS INC.:
LANIER BUSINESS PRODUCTS, INC. (LANIER) PROTESTS THE ISSUANCE OF AN
ORDER TO PHILIPS BUSINESS SYSTEMS (PHILIPS) FOR THE RENTAL OF DICTATING
EQUIPMENT BY THE AIR FORCE CRYPTOLOGIC DEPOT (AIR FORCE), KELLY AIR
FORCE BASE, TEXAS. THE ORDER, ISSUED ON OCTOBER 20, 1978, IS TO BE
EFFECTIVE UNTIL SEPTEMBER 30, 1979.
LANIER OBJECTS TO THE SOLE-SOURCE AWARD TO PHILIPS, MAINTAINING THAT
IT ALSO COULD OFFER THE DESIRED EQUIPMENT. FURTHER, LANIER ALLEGES THAT
THE PRICE OF ITS DOMESTICALLY MANUFACTURED EQUIPMENT WOULD BE LOWER THAN
THE EVALUATED PRICE OF PHILIPS' FOREIGN MADE EQUIPMENT IF THE BUY
AMERICA ACT DIFFERENTIAL WERE APPLIED TO PHILIPS' OFFER.
THE AIR FORCE CONSIDERS THE PROTEST TO BE UNTIMELY. WE AGREE AND ARE
DISMISSING THE PROTEST FOR THE REASONS STATED BELOW.
THE PROTESTER'S SUBMISSIONS TO OUR OFFICE INDICATE THAT ON OCTOBER
25, 1978, LANIER REPRESENTATIVES MET WITH THE CONTRACTING OFFICER AND
OBJECTED TO THE AIR FORCE'S FAILURE TO CONSIDER LANIER'S EQUIPMENT AND
TO APPLY THE BUY AMERICAN ACT DIFFERENTIAL IN THE EVALUATION OF PHILIPS'
OFFER. AT THAT TIME, LANIER INDICATES THE CONTRACTING OFFICER STATED HE
WOULD CONSIDER "CANCELING" THE ORDER AFTER REVIEW OF THE MATTER WITH THE
AGENCY'S CHIEF OF PROCUREMENT. ON THE FOLLOWING DAY, OCTOBER 26, LANIER
INDICATES THE CONTRACTING OFFICER INFORMED THE FIRM THAT THE "AWARD WAS
GOING TO PHILIPS."
ON OCTOBER 26, LANIER STATES IT ORALLY PROTESTED THE AGENCY'S ACTION.
FIVE DAYS LATER, ON OCTOBER 31, LANIER INDICATES THE CONTRACTING
OFFICER TOLD IT THAT THE AIR FORCE POSITION WAS UNCHANGED AND THAT AWARD
"WAS GOING TO BE MADE" TO PHILIPS. WHILE LANIER CONTINUED TO DISCUSS
THE MATTER WITH THE AIR FORCE, THAT AGENCY REFUSED TO CHANGE ITS
POSITION.
IN THE AGENCY'S VIEW, LANIER WAS AWARE OF THE BASIS OF ITS PROTEST ON
OCTOBER 26, WHEN THE AIR FORCE NOTIFIED THE FIRM THAT THE AWARD TO
PHILIPS WOULD NOT BE CANCELED, EVEN THOUGH LANIER HAD ALLEGED ON THE DAY
BEFORE THAT ITS EQUIPMENT WAS TECHNICALLY SUITABLE TO THE AGENCY'S
REQUIREMENTS AND THE BUY AMERICAN ACT WAS IMPROPERLY APPLIED. CITING
OUR BID PROTEST PROCEDURES WHICH STATE THAT A PROTEST TO GAO MUST BE
RECEIVED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN (4
C.F.R. SEC. 20.2(B)(2) (1978)), THE AIR FORCE MAINTAINS THE PROTEST IS
UNTIMELY BECAUSE IT WAS NOT FILED IN OUR OFFICE UNTIL NOVEMBER 17.
LANIER, ON THE OTHER HAND, VIEWS THE PROTEST AS TIMELY. LANIER
CONTENDS THAT IT FILED AN ORAL PROTEST WITH THE AIR FORCE ON OCTOBER 26,
AND ON LATER DATES, AND THAT THE TIMELINESS QUESTION SHOULD BE GOVERNED
BY THE PART OF OUR PROCEDURES WHICH PROVIDES THAT WHERE A PROTEST IS
FILED WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE
WILL BE TIMELY IF FILED "WITHIN 10 DAYS OF FORMAL NOTIFICATION OR OF
ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION," 4
C.F.R. SEC. 20.2(A)(1978). LANIER BELIEVES THAT ITS FIRST NOTICE OF
ADVERSE AGENCY ACTION WAS ON NOVEMBER 8, 1978, THE DATE, IT CONTENDS,
LANIER WAS FIRST AWARE AN ORDER HAD BEEN AWARDED TO PHILIPS. IN ANY
CASE, LANIER FEELS ITS PROTEST RAISES SIGNIFICANT ISSUES WHICH SHOULD BE
RESOLVED EVEN IF ITS PROTEST WAS NOT TIMELY FILED. FINALLY, LANIER
NOTES THAT THE AIR FORCE DID NOT SUBMIT ITS REPORT ON THE PROTEST WITHIN
25 WORKING DAYS OF OUR REQUEST FOR A REPORT, AND ADDITIONALLY PROTESTS
"THIS DELAYING TACTIC."
THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED. IT IS CLEAR FROM
THE PROTESTER'S SUBMISSIONS THAT IT KNEW THE BASIS OF ITS PROTEST ON
OCTOBER 25. EVEN IF WE ASSUME THE VALIDITY OF THE ORAL PROTEST TO THE
CONTRACTING AGENCY (THE CONTRACTING AGENCY INDICATES WHILE LANIER WAS
UNHAPPY WITH THE PROCUREMENT ACTION AND SAID IT MIGHT PROTEST, THE
AGENCY KNOWS OF NO PROTEST OTHER THAN THE ONE FILED HERE), ANY
SUBSEQUENT PROTEST TO OUR OFFICE SHOULD HAVE BEEN FILED WITHIN 10
WORKING DAYS OF NOTICE OF INITIAL ADVERSE AGENCY ACTION. THE AGENCY'S
NOTICE TO LANIER ON OCTOBER 26, 1978, AND AGAIN ON OCTOBER 31, 1978,
THAT AWARD WOULD BE MADE TO PHILIPS WAS CLEARLY "INITIAL ADVERSE AGENCY
ACTION." AS WE HAVE HELD, ADVERSE ACTION IS ANY ACTION WHICH IS
PREJUDICIAL TO THE PROTESTER'S POSITION AND NEED NOT BE FORMAL NOTICE OF
AN ACTUAL AWARD. SEE SONO-TEK CORPORATION, 58 COMP. GEN. 26 (1978),
78-2 CPD 290. SINCE LANIER FAILED TO FILE A PROTEST WITH OUR OFFICE
WITHIN 10 WORKING DAYS OF OCTOBER 31, THE PROTEST IS UNTIMELY. JONES &
GUERRERO CO., INCORPORATED, B-192328, OCTOBER 23, 1978, 78-2 CPD 296.
THE MATTERS INVOLVED IN THIS PROTEST DO NOT RAISE SIGNIFICANT ISSUES
WHICH SHOULD BE CONSIDERED UNDER THE EXCEPTION TO OUR TIMELINESS RULES
CITED BY LANIER. SEE 4 C.F.R. SEC. 20.2(C) (1978). THE SIGNIFICANT
ISSUE EXCEPTION IS LIMITED TO ISSUES WHICH ARE OF WIDESPREAD INTEREST TO
THE PROCUREMENT COMMUNITY AND IS EXERCISED SPARINGLY SO THAT THE
TIMELINESS STANDARDS DO NOT BECOME MEANINGLESS. GENERAL AUTOMATIC
CORPORATION, B-190216, JANUARY 5, 1978, 78-1 CPD 8.
IT IS TRUE, AS LANIER ALLEGES, THAT THE AIR FORCE RESPONSE TO OUR
REQUEST FOR REPORT ON THE PROTEST TOOK 37 WORKING DAYS, RATHER THAN THE
25 WORKING DAYS GENERALLY ANTICIPATED BY OUR PROCEDURES FOR MOST
REPORTS. 4 C.F.R. SEC. 20.3(C)(1978). THIS, HOWEVER, HAS NO EFFECT ON
THE TIMELINESS OF LANIER'S PROTEST. IN FACT, IT WAS THE PROTESTER'S
SUBMISSIONS, NOT THE AGENCY REPORT, WHICH ESTABLISHED THE UNTIMELINESS
OF THE PROTEST.
B-193885, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. EMPLOYEE, WHO TRANSFERRED FROM NEW YORK, NEW YORK, TO ATLANTA,
GEORGIA, CLAIMS TEMPORARY QUARTERS EXPENSES AT LOCATION NEAR HIS NEW
RESIDENCE IN FLORIDA. CLAIM MAY BE ALLOWED SINCE TEMPORARY QUARTERS
NEED NOT BE LOCATED IN VICINITY OF EITHER OLD OR NEW DUTY STATION.
ALSO, EMPLOYEE NECESSARILY OCCUPIED TEMPORARY QUARTERS ALTHOUGH HE HAD
PURCHASED NEW RESIDENCE BECAUSE HIS FAMILY HAD TO REMAIN AT OLD
RESIDENCE IN CONNECTION WITH ITS SALE, UTILITIES WERE NOT CONNECTED IN
NEW RESIDENCE, AND EMPLOYEE HAD TO BUY BEDS AND OTHER FURNITURE FOR NEW
HOUSE.
2. EMPLOYEE, WHO TRANSFERRED TO ATLANTA, GEORGIA, CLAIMS REAL ESTATE
EXPENSES FOR PURCHASE OF RESIDENCE WHICH IS NOT LOCATED NEAR NEW DUTY
STATION. CLAIM MAY NOT BE ALLOWED SINCE EMPLOYEE DOES NOT COMMUTE TO
STATION DAILY AND ATLANTA IS NOT IN REMOTE AREA. HOWEVER, SINCE
EMPLOYEE STATES THAT HE DOES NOT REGULARLY REPORT TO HIS NEW DUTY
STATION, HIS CLAIM MAY BE RECONSIDERED IF HE SUBMITS EVIDENCE THAT HIS
NEW DUTY STATION WAS DESIGNATED PRIMARILY FOR PER DIEM PURPOSES. SEE
ROBERT H. VAN WINKLE, B-184004, APRIL 27, 1976.
IRVING R. WARNASCH - CLAIM FOR REAL ESTATE AND TEMPORARY QUARTERS
EXPENSES:
THIS ACTION IS IN RESPONSE TO THE APPEAL BY MR. IRVING R. WARNASCH,
AN EMPLOYEE OF THE SMALL BUSINESS ADMINISTRATION (SBA), OF THE
DETERMINATION BY OUR CLAIMS DIVISION DENYING HIS CLAIM FOR REAL ESTATE
AND TEMPORARY QUARTERS SUBSISTENCE EXPENSES INCIDENT TO A CHANGE OF
OFFICIAL DUTY STATION. THE QUESTION PRESENTED FOR DECISION IS WHETHER
MR. WARNASCH IS ENTITLED TO REIMBURSEMENT FOR REAL ESTATE AND TEMPORARY
QUARTERS EXPENSES WHERE HIS NEW RESIDENCE AND HIS TEMPORARY QUARTERS
WERE NOT LOCATED AT HIS NEW DUTY STATION.
MR. WARNASCH WAS TRANSFERRED FROM NEW YORK, NEW YORK, TO ATLANTA,
GEORGIA, AND WAS AUTHORIZED REIMBURSEMENT FOR TEMPORARY QUARTERS AND
REAL ESTATE EXPENSES. MR. WARNASCH STATES THAT SINCE HIS NEW JOB
REQUIRED EXTENSIVE TRAVEL AND BECAUSE OF PERSONAL FAMILY REASONS, HE
PURCHASED A NEW RESIDENCE IN CASSELBERRY, FLORIDA, NEAR ORLANDO,
FLORIDA. HIS FAMILY VACATED THEIR RESIDENCE AT THEIR OLD DUTY STATION
ON AUGUST 15, 1975, AND FLEW DOWN TO FLORIDA THE FOLLOWING DAY. MR.
WARNASCH STATES FURTHER THAT HIS HOUSEHOLD GOODS ARRIVED ON AUGUST 16,
1975, AND WERE MOVED INTO HIS NEW RESIDENCE THAT NIGHT. HOWEVER, HE AND
HIS FAMILY REMAINED IN TEMPORARY QUARTERS IN A MOTEL AT DAYTONA BEACH,
FLORIDA, UNTIL SEPTEMBER 15, 1975, WHILE THEY WAITED FOR UTILITIES TO BE
RECONNECTED AND WHILE THEY PURCHASED FURNITURE AND HOUSEHOLD ITEMS. IN
THIS CONNECTION MR. WARNASCH STATES THAT ONLY PART OF HIS HOUSEHOLD
GOODS WERE SHIPPED TO FLORIDA BECAUSE MOST OF THEM INCLUDING BEDS, WERE
NOT SUITABLE FOR THE HOT CLIMATE. HE ALSO STATES THAT HIS WIFE AND
CHILDREN WERE REQUIRED TO STAY IN THEIR OLD HOME PENDING ITS SALE.
THE SMALL BUSINESS ADMINISTRATION DENIED MR. WARNASCH'S CLAIM FOR
TEMPORARY QUARTERS ON THE GROUNDS THAT HIS DECISION TO REMAIN IN
TEMPORARY QUARTERS RATHER THAN OCCUPYING HIS NEW RESIDENCE WAS FOR
PERSONAL REASONS AND THAT ONCE A NEW RESIDENCE WAS OBTAINED, THERE WAS
NO FURTHER JUSTIFICATION FOR THE PAYMENT OF TEMPORARY QUARTERS EXPENSES.
WITH REGARD TO MR. WARNASCH'S CLAIM FOR REAL ESTATE EXPENSES INCIDENT
TO THE PURCHASE OF A NEW RESIDENCE, SBA DENIED HIS CLAIM ON THE BASIS
THAT HIS OFFICIAL DUTY STATION WAS ATLANTA, GEORGIA, WHERE HE WOULD
REGULARLY REPORT FOR WORK, AND THAT THE EXPENSES FOR THE PURCHASE OF A
RESIDENCE AWAY FROM THE OFFICIAL DUTY STATION COULD NOT BE PAID UNDER
THE APPLICABLE REGULATIONS. THE CLAIMS DIVISION SETTLEMENT SUSTAINED
THE AGENCY'S DENIAL OF MR. WARNASCH'S CLAIMS FOR REIMBURSEMENT.
ON APPEAL, MR. WARNASCH ARGUES THAT REIMBURSEMENT FOR TEMPORARY
QUARTERS IS NOT LIMITED TO LODGINGS OCCUPIED WHILE THE EMPLOYEE ATTEMPTS
TO LOCATE A NEW RESIDENCE BUT INSTEAD COVERS ANY LODGING TEMPORARILY
OCCUPIED BY THE EMPLOYEE OR HIS FAMILY AFTER THEY HAVE VACATED THEIR
RESIDENCE AT THE OLD DUTY STATION. WITH REGARD TO HIS CLAIM FOR REAL
ESTATE EXPENSES, MR. WARNASCH ARGUES THAT HIS WORK INVOLVES A
SUBSTANTIAL AMOUNT OF TRAVEL, THAT HE DOES NOT REGULARLY REPORT TO WORK
AT ATLANTA OR ANY OTHER OFFICE, AND THAT HE REPORTS TO WORK FROM HIS
RESIDENCE IN CASSELBERRY, FLORIDA, AS OFTEN HE DOES FROM ATLANTA.
UNDER THE PROVISIONS OF 5 U.S.C. SEC. 5724A(A)(3), AN EMPLOYEE MAY BE
REIMBURSED THE SUBSISTENCE EXPENSES OF HIMSELF AND HIS IMMEDIATE FAMILY
FOR UP TO 30 DAYS WHILE OCCUPYING TEMPORARY QUARTERS. THE IMPLEMENTING
REGULATIONS CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR
101-7) PROVIDE THAT THE PERIOD FOR TEMPORARY QUARTERS SHOULD BE REDUCED
OR AVOIDED IF THE EMPLOYEE HAS HAD ADEQUATE OPPORTUNITY TO COMPLETE
ARRANGEMENTS FOR PERMANENT QUARTERS (FTR PARA. 2-5.1) AND THAT TEMPORARY
QUARTERS ARE TO BE REGARDED AS AN EXPEDIENT TO BE USED ONLY IF OR FOR SO
LONG AS NECESSARY UNTIL THE EMPLOYEE CAN MOVE INTO PERMANENT RESIDENCE
QUARTERS (FTR PARA. 2-5.2D). THE REGULATIONS ALSO PROVIDE IN PARA.
2-5.2C AS FOLLOWS:
"WHAT CONSTITUTES TEMPORARY QUARTERS. THE TERM 'TEMPORARY QUARTERS'
REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE
OCCUPIED TEMPORARILY BY THE EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY
WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT
THE TIME THE TRANSFER WAS AUTHORIZED."
OUR DECISIONS HAVE HELD THAT THE LOCATION OF THE TEMPORARY QUARTERS
NEED NOT BE IN THE VICINITY OF EITHER THE OLD OR NEW OFFICIAL DUTY
STATIONS SO LONG AS THE QUARTERS CONSTITUTE TEMPORARY QUARTERS UNDER THE
APPLICABLE REGULATIONS. SEE JAMES W. NICKS, B-191374, SEPTEMBER 21,
1978, AND DECISIONS CITED THEREIN. IN ADDITION, THE REGULATIONS DO NOT
REQUIRE AN AGENCY TO TERMINATE AN EMPLOYEE'S ENTITLEMENT TO TEMPORARY
QUARTERS WHEN PERMANENT QUARTERS ARE OBTAINED, BUT RATHER WHEN THEY ARE
OCCUPIED OR WHEN THE ALLOWABLE TIME LIMIT EXPIRES, WHICHEVER OCCURS
FIRST. SEE FTR PARA. 2-5.2F. THEREFORE, WE FIND NO BASIS TO DENY MR.
WARNASCH'S CLAIM FOR TEMPORARY QUARTERS ON THE GROUNDS THAT THE QUARTERS
WERE NOT LOCATED AT EITHER THE OLD OR NEW DUTY STATIONS OR THAT
PERMANENT RESIDENCE QUARTERS WERE OBTAINED PRIOR TO THE TIME THE
EMPLOYEE OCCUPIED THOSE PERMANENT QUARTERS. HOWEVER, FOR REIMBURSEMENT
OF THE EXPENSES OF OCCUPYING TEMPORARY QUARTERS, A DETERMINATION MUST BE
MADE THAT THEY WERE NECESSARILY OCCUPIED. SEE FTR PARA. 2-5.2A.
ORDINARILY, SUCH DETERMINATION IS MADE BY THE AGENCY ON AN INDIVIDUAL
BASIS IN LIGHT OF SURROUNDING CIRCUMSTANCES. DOUGLAS C. STAAB,
B-185514, SEPTEMBER 2, 1976. HOWEVER, OUR OFFICE MAY MAKE SUCH
DETERMINATION ON THE BASIS OF FACTS PRESENTED TO US BY A CLAIMANT AND
HIS AGENCY. SEE NICKS, SUPRA. IN THE INSTANT CASE MR. WARNASCH'S
FAMILY WAS REQUIRED TO REMAIN AT THE OLD STATION INCIDENT TO ITS SALE,
THE UTILITIES IN THE NEW HOME WERE NOT CONNECTED WHEN IT BECAME
AVAILABLE FOR OCCUPANCY, AND THE FAMILY DID NOT HAVE ESSENTIAL
FURNITURE, SUCH AS BEDS. UNDER SUCH CIRCUMSTANCES WE BELIEVE MR.
WARNASCH WAS JUSTIFIED IN OCCUPYING TEMPORARY QUARTERS. THEREFORE, HIS
CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES IS ALLOWABLE IF
OTHERWISE PROPER.
WITH REGARD TO MR. WARNASCH'S CLAIM FOR REAL ESTATE EXPENSES INCIDENT
TO THE PURCHASE OF A NEW RESIDENCE, WE NOTE THAT UNDER 5 U.S.C. SEC.
5724A(A)(4) AN EMPLOYEE MAY BE REIMBURSED THE EXPENSES OF THE PURCHASE
OF A HOME AT THE NEW OFFICIAL STATION. FOR CONDITIONS UNDER WHICH THIS
ALLOWANCE IS PAYABLE SEE FTR PARA. 2-6.1. THE TERM "OFFICIAL STATION"
IS DEFINED IN FTR PARA. 2-1.4I AS FOLLOWS:
"THE BUILDING OR OTHER PLACE WHERE THE OFFICER OR EMPLOYEE REGULARLY
REPORTS FOR DUTY. *** WITH RESPECT TO ENTITLEMENT UNDER THESE
REGULATIONS RELATING TO THE RESIDENCE AND THE HOUSEHOLD GOODS AND
PERSONAL EFFECTS OF AN EMPLOYEE, OFFICIAL STATION OR POST OF DUTY ALSO
MEANS THE RESIDENCE OR OTHER QUARTERS FROM WHICH THE EMPLOYEE REGULARLY
COMMUTES TO AND FROM WORK. HOWEVER, WHERE THE OFFICIAL STATION OR POST
OF DUTY IS IN A REMOTE AREA WHERE ADEQUATE FAMILY HOUSING IS NOT
AVAILABLE WITHIN REASONABLE DAILY COMMUTING DISTANCE, RESIDENCE INCLUDES
THE DWELLING WHERE THE FAMILY OF THE EMPLOYEE RESIDES OR WILL RESIDE,
BUT ONLY IF SUCH RESIDENCE REASONABLY RELATES TO THE OFFICIAL STATION AS
DETERMINED BY AN APPROPRIATE ADMINISTRATIVE OFFICIAL."
OUR DECISIONS HAVE HELD THAT THE NEW RESIDENCE MUST BE THE DWELLING
FROM WHICH THE EMPLOYEE REGULARLY COMMUTES ON A DAILY BASIS, NOT JUST ON
WEEKENDS. SEE STANLEY H. FRETWELL, B-186185, NOVEMBER 15, 1976;
CLIFTON E. KLINEFELTER, B-185584, JUNE 30, 1976; ROBERT A. VAN WINKLE,
B-184004, APRIL 27, 1976; AND DECISIONS CITED THEREIN. THE EVIDENCE
BEFORE US IN THE PRESENT CASE INDICATES THAT MR. WARNASCH DID NOT
COMMUTE DAILY FROM HIS RESIDENCE IN CASSELBERRY TO HIS OFFICIAL STATION
IN ATLANTA. MOREOVER, ATLANTA IS NOT IN A REMOTE AREA WHERE ADEQUATE
FAMILY HOUSING IS NOT AVAILABLE.
HOWEVER, MR. WARNASCH STATES THAT HE DOES NOT REGULARLY REPORT FOR
DUTY TO ATLANTA OR ANY SPECIFIC OFFICE ON A STEADY BASIS AND THAT HE
REPORTS TO WORK FROM CASSELBERRY AS FREQUENTLY AS FROM ATLANTA. IN VAN
WINKLE, SUPRA, WE HELD THAT WHERE AN EMPLOYEE DOES NOT REGULARLY REPORT
TO DUTY AT HIS DESIGNATED OFFICIAL DUTY STATION BUT RATHER TO VARIOUS
TEMPORARY DUTY STATIONS AND WHERE HIS OFFICIAL STATION WAS SO DESIGNATED
PRIMARILY TO DETERMINE HIS PER DIEM AT HIS ACTUAL WORK SITES, HE MAY BE
REIMBURSED REAL ESTATE EXPENSES IN CONNECTION WITH A TRANSFER OF
STATION. ON THE RECORD BEFORE US WE CANNOT DETERMINE THAT ATLANTA WAS
DESIGNATED MR. WARNASCH'S OFFICIAL STATION PRIMARILY TO DETERMINE HIS
PER DIEM AT HIS ACTUAL WORK SITES. ACCORDINGLY, WE MUST SUSTAIN THE
DISALLOWANCE OF HIS CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES.
HOWEVER, MR. WARNASCH'S CLAIM WILL BE RECONSIDERED IF HE SUBMITS
ADDITIONAL EVIDENCE THAT ATLANTA WAS DESIGNATED HIS OFFICIAL DUTY
STATION ONLY FOR PER DIEM PURPOSES.
ACCORDINGLY, THE CLAIMS FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES
AND FOR REAL ESTATE EXPENSES WILL BE PROCESSED CONSISTENT WITH THE
ABOVE.
B-194065, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE'S FAMILY MOVED INTO THEIR RESIDENCE AT NEW DUTY STATION
PRIOR TO EMPLOYEE'S DEPARTURE FROM HIS OLD DUTY STATION AND PRIOR TO
ARRIVAL OF THEIR HOUSEHOLD GOODS. HIS FAMILY ATE THEIR MEALS IN
RESTAURANTS. NOTWITHSTANDING THAT USE OF A MOTEL WOULD HAVE BEEN MORE
COSTLY TO THE GOVERNMENT, HE MAY NOT BE REIMBURSED EXPENSES FOR FAMILY'S
MEALS. THEY OCCUPIED RESIDENCE IN WHICH THEY INTENDED TO REMAIN AND
THEREFORE THEIR QUARTERS WERE NOT TEMPORARY SO AS TO ENTITLE EMPLOYEE TO
REIMBURSEMENT.
KENNETH C. CRAWFORD - TEMPORARY QUARTERS SUBSISTENCE EXPENSES:
MR. KENNETH C. CRAWFORD, AN EMPLOYEE OF THE NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION (NOAA), HAS REQUESTED THAT NOAA SUBMIT HIS
CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES TO THIS OFFICE FOR
DECISION.
THE RECORD SHOWS THAT MR. CRAWFORD WAS TRANSFERRED FROM NEW ORLEANS,
LOUISIANA, TO FORT WORTH, TEXAS, PURSUANT TO ORDERS APPROVED ON
SEPTEMBER 18, 1978. SINCE HE KNEW OF HIS SELECTION AND HAD GIVEN HIS
ORAL ACCEPTANCE OF THE POSITION IN FORT WORTH ON AUGUST 24, 1978, HIS
FAMILY DEPARTED EARLY FOR TEXAS IN ORDER THAT HIS CHILDREN COULD START
THE NEW SCHOOL YEAR THERE. MR. CRAWFORD'S FAMILY ARRIVED IN BEDFORD,
TEXAS, ON AUGUST 28, 1978, AND TOOK UP RESIDENCE IN A HOME WHICH MR.
CRAWFORD HAD OWNED FOR 3 YEARS. MR. CRAWFORD COULD NOT BE RELEASED FROM
HIS OLD POSITION IN NEW ORLEANS UNTIL OCTOBER AND HIS HOUSEHOLD GOODS
WERE NOT MOVED FROM NEW ORLEANS UNTIL SEPTEMBER 28, 1978.
MR. CRAWFORD CLAIMS TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE
MEALS CONSUMED BY HIS FAMILY IN BEDFORD FROM AUGUST 28, 1978, UNTIL
SEPTEMBER 27, 1978. THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
DENIED HIS CLAIM ON THE GROUNDS THAT HIS HOME WAS NOT TEMPORARY QUARTERS
AS REQUIRED BY THE REGULATIONS. SEE PARA. 2-5.2F OF THE FEDERAL TRAVEL
REGULATIONS. (FPMR 101-7, MAY 1973).
IN SUPPORT OF HIS CLAIM, MR. CRAWFORD STATES THAT HIS FAMILY ELECTED
NOT TO STAY AT A MOTEL IN BEDFORD IN ORDER TO SAVE THE GOVERNMENT MONEY
AND TO MEET THEIR REASONABLE DESIRE TO STAY IN THEIR HOME. HE ARGUES
THAT HIS HOME WAS IN FACT TEMPORARY QUARTERS FOR THAT PERIOD BECAUSE IT
CONTAINED NO HOUSEHOLD FURNISHINGS. HE CLAIMS NO EXPENSES FOR LODGING.
WE HAVE CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT BE REIMBURSED
SUBSISTENCE EXPENSES DURING THE PERIOD HE OR HIS FAMILY OCCUPY THE
RESIDENCE IN WHICH THEY INTEND TO REMAIN EVEN IN THE ABSENCE OF
HOUSEHOLD EFFECTS WHICH ARRIVE AT A LATER DATE. THAT SUCH OCCUPANCY
RESULTS IN SAVINGS THE GOVERNMENT MAY NOT SERVE AS A BASIS FOR HOLDING
OTHERWISE. MATTER OF JACK CARSON, B-191626, NOVEMBER 20, 1978; MATTER
OF JACK P. COLLINS, B-190108, FEBRUARY 13, 1978.
THE EVIDENCE SHOWS THAT MR. CRAWFORD'S FAMILY INTENDED TO OCCUPY
THEIR RESIDENCE IN BEDFORD ON A PERMANENT BASIS. ALTHOUGH THE HOUSE WAS
UNFURNISHED AND LACKED COOKING AND EATING FACILITIES, IT DOES NOT
QUALIFY AS TEMPORARY QUARTERS IN WHICH MR. CRAWFORD'S FAMILY INTENDED TO
RESIDE FOR A SHORT PERIOD PRIOR TO MOVING INTO PERMANENT QUARTERS.
CARSON, SUPRA. THE CLAIM IS DENIED.
B-194431, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
AN INDIVIDUAL AGE 15 WAS APPOINTED TO A POSITION BEFORE ATTAINING THE
MINIMUM AGE REQUIREMENT OF 16, AND PERFORMED THE DUTIES OF THE POSITION
FOR 139 HOURS BEFORE THE ERROR WAS DISCOVERED AND HIS EMPLOYMENT
TERMINATED. THE INDIVIDUAL WAS A DE FACTO EMPLOYEE, AND MAY BE
COMPENSATED FOR THE SERVICES ACTUALLY RENDERED.
MYRON D. STARR - DE FACTO EMPLOYEE:
THE ISSUE PRESENTED IN THIS CASE ON A REQUEST FOR AN ADVANCE DECISION
FROM THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD) IS WHETHER AN
INDIVIDUAL MAY BE COMPENSATED FOR A PERIOD OF WORK PERFORMED PRIOR TO
HIS MEETING THE AGE REQUIREMENTS FOR APPOINTMENT PURSUANT TO FEDERAL
REGULATIONS. THE ANSWER IS IN THE AFFIRMATIVE.
MR. MYRON D. STARR WAS EMPLOYED AS A STUDENT AIDE BY THE DETROIT AREA
OFFICE OF HUD ON A REFERRAL FROM THE MICHIGAN EMPLOYMENT SECURITY
COMMISSION AND PRESENTATION OF A STUDENT WORKING PERMIT. THE MICHIGAN
LAW AUTHORIZES EMPLOYMENT OF PERSONS 14 YEARS OF AGE AND OLDER. DURING
THE PERIOD OF EMPLOYMENT, DECEMBER 18, 1978, THROUGH FEBRUARY 7, 1979,
MR. STARR WAS 15 YEARS OLD. MR. STARR WAS APPOINTED TO THE FEDERAL
POSITION IN A SPECIAL YOUTH PROGRAM NAMED THE "STAY-IN-SCHOOL CAMPAIGN",
FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 213, APPENDIX F (JULY 1, 1974).
PARAGRAPH 213-F-2A OF THE FPM PROVIDES THAT A PERSON MAY NOT BE
APPOINTED IN THIS PROGRAM UNLESS HE HAS REACHED HIS 16TH BIRTHDAY. MR.
STARR FILLED AN EXISTING POSITION AND PERFORMED THE DUTIES OF THAT
POSITION FOR 139 HOURS BEFORE THE ERROR IN APPOINTMENT WAS DISCOVERED
AND HIS EMPLOYMENT TERMINATED. THERE IS NO INDICATION OF ANY FAULT BY
MR. STARR OR ANY ATTEMPT BY HIM TO CONCEAL HIS AGE EITHER BEFORE OR
AFTER HIS APPOINTMENT.
WE HAVE LONG HELD THAT A DE FACTO EMPLOYEE MAY RETAIN COMPENSATION
THAT HAS BEEN PAID TO HIM. 38 COMP. GEN. 175 (1958). MORE RECENTLY, WE
HAVE AUTHORIZED PAYMENT OF COMPENSATION TO A DE FACTO EMPLOYEE AFTER IT
WAS ASCERTAINED THAT THE EMPLOYEE'S STATUS WAS THAT OF A DE FACTO
EMPLOYEE. 52 COMP. GEN. 700 (1973) AND 55 ID. 109 (1975). IN BOTH OF
THESE CASES, INDIVIDUALS PERFORMED SERVICES IN GOOD FAITH, UNDER COLOR
OF AUTHORITY, BUT WITHOUT A VALID APPOINTMENT. IN EACH CASE, AT THE
TIME OF TERMINATION, THE INDIVIDUALS HAD RECEIVED NO COMPENSATION FOR
THE SERVICES PERFORMED. IN BOTH CASES WE AUTHORIZED PAYMENT.
IN THE INSTANT CASE, MR. STARR MAY BE CONSIDERED A DE FACTO EMPLOYEE.
THE FACTS INDICATE THAT HE SERVED IN GOOD FAITH AND WITHOUT FRAUD. HE
MAY BE PAID THE REASONABLE VALUE OF HIS SERVICES DESPITE LACK OF
AUTHORIZED APPOINTMENT IN VIEW OF THE FACT THAT HAD COMPENSATION BEEN
PAID, HE COULD RETAIN IT UNDER THE DE FACTO RULE OR RECOVERY COULD BE
WAIVED UNDER 5 U.S.C. 5584 (1976).
ACCORDINGLY, MR. STARR MAY BE COMPENSATED FOR SERVICES PERFORMED.
B-194442, JUN 8, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
WAGE BOARD EMPLOYEE, WHO WAS PROMOTED AND TRANSFERRED TO DUTY STATION
WITH SPECIAL WAGE SCHEDULE, CLAIMS RETROACTIVE PAY FOR DIFFERENCE
BETWEEN WG-11, STEP 1 AND STEP 3. CLAIM IS DENIED SINCE RATE OF PAY IN
WG-11 WAS PROPERLY SET UNDER APPLICABLE CIVIL SERVICE COMMISSION
REGULATIONS.
WILLIAM G. COVERT - CLAIM FOR HIGHER RATE OF PAY ON PROMOTION:
MR. WILLIAM G. COVERT HAS APPEALED OUR CLAIMS DIVISION DETERMINATION
DENYING HIS CLAIM FOR RETROACTIVE PAY INCIDENT TO HIS PROMOTION AND
TRANSFER TO A NEW WAGE AREA. MR. COVERT BELIEVES HIS RATE OF PAY SHOULD
HAVE BEEN SET AT WG-11, STEP 3, INSTEAD OF WG-11, STEP 1, AND HE SEEKS
RETROACTIVE COMPENSATION FOR THE PERIOD FROM DECEMBER 26, 1971, TO JULY
1976.
MR. COVERT WAS EMPLOYED BY THE DEPARTMENT OF THE AIR FORCE AND WAS
TRANSFERRED AND PROMOTED FROM HIS WAGE BOARD POSITION AT THE HILL AIR
FORCE BASE, WG-10, STEP 3, TO A WG-11 POSITION AT THE HILL AIR FORCE
RANGE, EFFECTIVE DECEMBER 26, 1971. THE REPORT FROM THE AIR FORCE
STATES THAT UNDER THE CIVIL SERVICE COMMISSION (CSC) REGULATIONS IN
EFFECT AT THE TIME OF HIS PROMOTION, MR. COVERT WAS ENTITLED TO BE PAID
AT THE LOWEST SCHEDULED RATE OF HIS NEW GRADE WHICH EXCEEDED HIS PRIOR
RATE OF PAY BY NO LESS THAN ONE STEP RATE INCREMENT. IT APPEARS THAT
MR. COVERT WAS RECEIVING $4.69 PER HOUR IN HIS WG-10, STEP 3, POSITION,
AND THAT THE STEP INCREMENT WAS 18 CENTS PER HOUR. THUS, MR. COVERT HAD
TO RECEIVE AT LEAST $4.87 PER HOUR UPON PROMOTION. SINCE THE RATE OF
PAY FOR THE FIRST STEP OF WG-11 AT THE HILL AIR FORCE RANGE WAS $5.04
PER HOUR, MR. COVERT'S SALARY WAS SET AT WG-11, STEP 1.
THE RECORD BEFORE US ALSO SHOWS THAT IN 1967 A SPECIAL FEDERAL WAGE
SYSTEM SCHEDULE WAS ESTABLISHED FOR THE HILL AIR FORCE RANGE SO AS TO
COMPENSATE EMPLOYEES FOR THE EXTRA EXPENSE AND TIME ASSOCIATED WITH
COMMUTING TO THIS REMOTE WORKSITE. THIS SPECIAL SCHEDULE WAS 12 PERCENT
HIGHER THAN THE NEARBY LOCALITY RATE, AND MR. COVERT'S RATE OF PAY WAS
SET UNDER THIS SPECIAL WAGE SCHEDULE IN 1971. HOWEVER, IN 1975 THE CSC
ADVISED THE AIR FORCE THAT THE HILL AIR FORCE RANGE MET THE CRITERIA FOR
PAYMENT OF A REMOTE WORKSITE COMMUTING ALLOWANCE UNDER 5 S.C. SEC. 5942
BUT THAT SUCH ALLOWANCE COULD NOT BE PAID UNTIL THE SPECIAL WAGE
SCHEDULE WAS CHANGED. EFFECTIVE JUNE 8, 1975, THE SPECIAL WAGE SCHEDULE
WAS TERMINATED, AND MR. COVERT BECAME ELIGIBLE FOR A REMOTE WORKSITE
COMMUTING ALLOWANCE.
MR. COVERT APPARENTLY BELIEVES THAT BECAUSE OF THE SPECIAL WAGE
SCHEDULE AT HILL AIR FORCE RANGE HE WAS DENIED THE ONE-STEP INCREMENT
INCREASE THAT A WAGE BOARD EMPLOYEE IS ENTITLED TO UPON PROMOTION, AND
HE ARGUES THAT HIS RATE OF PAY SHOULD HAVE BEEN SET AT WG-11, STEP 3, IN
1971. AS DISCUSSED ABOVE, MR. COVERT'S RATE OF PAY UPON PROMOTION WAS
IN EXCESS OF THE ONE-STEP INCREASE AND APPEARS TO HAVE BEEN SET IN
ACCORDANCE WITH THE APPLICABLE CSC REGULATIONS. SEE FEDERAL PERSONNEL
MANUAL (FPM) SUPP. 532-1, S8-3D (INST. 5, MAY 20, 1971). MR. COVERT
ALSO ARGUES THAT UNDER THE REGULATIONS, HE WAS ENTITLED TO A HIGHER RATE
OF PAY WHERE MORE THAN ONE PERSONNEL ACTION WAS EFFECTED AT THE SAME
TIME. THE REGULATION WHICH MR. COVERT CITES, FPM SUPP. 532-1, S10-12,
CONCERNS CONVERSION TO THE COORDINATED FEDERAL WAGE SYSTEM AND IS NOT
APPLICABLE TO MR. COVERT'S PROMOTION AND TRANSFER TO A NEW WAGE AREA.
ACCORDINGLY, WE SUSTAIN OUR CLAIMS DIVISION DETERMINATION DENYING MR.
COVERT'S CLAIM FOR RETROACTIVE PAY.
B-192205(1), B-192206(1), JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE NEGOTIATED CONTRACT IS AWARDED ON BASIS OF INITIAL
PROPOSALS WITHOUT DISCUSSIONS, CONTRACTING OFFICER'S REFUSAL TO CONSIDER
OFFER OF WAIVER OF REIMBURSEMENT FOR TRAINING COSTS IN EVALUATION OF
PROPOSALS IS PROPER, SINCE EVALUATION PLAN DOES NOT PROVIDE FOR
CONSIDERATION OF TRAINING COSTS IN DETERMINING LOW OFFEROR.
2. AWARD OF NEGOTIATED CONTRACT BASED ON INITIAL PROPOSALS IS PROPER
WHERE INSUFFICIENT TIME IS AVAILABLE BETWEEN SOLICITATION AND
PERFORMANCE TO CONDUCT DISCUSSIONS.
3. WHERE AWARD IS BASED STRICTLY ON COST, AND EVALUATION PLAN MAY
RESULT IN AWARD THAT DOES NOT REPRESENT LOWEST TOTAL COST TO GOVERNMENT,
AGENCY SHOULD CONSIDER REVISION TO EVALUATION PLAN FOR FUTURE
PROCUREMENTS.
ENSEC SERVICE CORP.:
ENSEC SERVICE CORP. (ENSEC) PROTESTS THE AWARD BY THE GENERAL
SERVICES ADMINISTRATION (GSA) OF 90-DAY INTERIM CONTRACTS UNDER REQUEST
FOR PROPOSALS (RFP) NO. 03C8108401 (NEG) AND RFP NO. 03C8108501 (NEG)
FOR ARMED SECURITY GUARD SERVICES AT BUILDINGS IN SILVER SPRING,
MARYLAND, AND THE DISTRICT OF COLUMBIA.
THE ESSENTIALLY IDENTICAL SOLICITATIONS WERE ISSUED IN EARLY JUNE OF
1978, AND THE SAME CONTRACTING OFFICER CONDUCTED BOTH PROCUREMENTS.
EACH REQUIRED THE OFFEROR TO PROPOSE A PRICE-PER-HOUR FOR PRODUCTIVE
MAN-HOURS, AND A PRICE-PER-HOUR FOR SUPERVISORY MAN-HOURS. AWARD UNDER
EACH RFP WAS TO BE MADE TO THE LOW OFFEROR AS DETERMINED BY MULTIPLYING
AN OFFEROR'S PRICES PER-HOUR BY THE APPROPRIATE ESTIMATED NUMBER OF
MAN-HOURS LISTED IN THE RFP, AND ADDING THE TOTAL.
EACH SOLICITATION ALSO REQUIRED CERTAIN SPECIFIED TRAINING, THE COST
OF WHICH WAS TO BE REIMBURSED THE CONTRACTOR BY THE GOVERNMENT AT THE
OFFEROR'S MAN-HOUR RATE. SECTION VIII OF EACH RFP SET OUT THE TRAINING
REQUIREMENTS IN DETAIL AND INCLUDED THE FOLLOWING PROVISION:
"WAIVERS OF TRAINING. CONTRACTOR EMPLOYEES WHO CAN PROVIDE WRITTEN
DOCUMENTATION OF HAVING COMPLETED TRAINING THAT IS EQUAL TO OR THAT
EXCEEDS THE REQUIREMENTS SET FORTH IN *** THIS SECTION, AS PARTICULARLY
HEREIN PROVIDED FOR OR WITHIN 18 MONTHS OR 545 DAYS PRECEDING THE DATE
OF THEIR EMPLOYMENT UNDER THIS CONTRACT, MAY BE EXEMPTED BY THE
GOVERNMENT FROM CERTAIN PORTIONS OF THE REQUIRED TRAINING. THE GRANTING
OF ANY EXEMPTIONS FROM TRAINING IS THE OPTION OF THE CONTRACTING OFFICER
OR HIS DESIGNEE, AND EXEMPTIONS MAY ONLY BE MADE AFTER THE CONTRACTOR
SUBMITS WRITTEN REQUESTS WITH COMPLETE JUSTIFICATION, INCLUDING ALL
PERTINENT DOCUMENTATION, TO THESE OFFICIALS. ALL TRAINING WILL BE
COMPLETED BY EACH EMPLOYEE, EXCEPT AS EXPRESSLY WAIVED, BEFORE THEY
ENTER ON DUTY. WAIVERS WILL BE LIMITED BY THE FOLLOWING CIRCUMSTANCES
AND CONDITIONS:
(1) A SEPARATE STATEMENT MUST BE SUBMITTED ON EACH EMPLOYEE FOR WHOM
A WAIVER IS REQUESTED, AND APPROVAL MUST BE GRANTED BY THE GOVERNMENT
PRIOR TO ANY SUCH EMPLOYEES ENTERING ON DUTY.
(2) IN EMERGENCY SITUATIONS THE GOVERNMENT MAY AUTHORIZE ADDITIONAL
POSTS TO BE MANNED BY PARTIALLY TRAINED PERSONNEL FOR SHORT TIME
PERIODS. IN THIS CASE, THE NEED FOR ANY OTHER WAIVERS MUST BE ARRANGED
THROUGH GSA BEFORE THE WORK IS PERFORMED. ***."
ENSEC WAS THE INCUMBENT CONTRACTOR FOR THE SERVICES. IN A TELEPHONE
CONVERSATION WITH THE CONTRACTING OFFICER PRIOR TO THE SCHEDULED JUNE 15
RECEIPT OF PROPOSALS, ENSEC SUGGESTED THAT UNLESS THE AWARD METHOD
PROVIDED FOR CONSIDERATION OF THE EXTENT OF TRAINING COSTS THAT WOULD
HAVE TO BE REIMBURSED TO AN OFFEROR IF AWARDED A CONTRACT, THE PROPOSED
PRICE WOULD NOT PROPERLY REFLECT ALL THE COSTS TO THE GOVERNMENT FOR THE
SERVICES. THE CONTRACTING OFFICER RESPONDED THAT THE PROCUREMENT WOULD
PROCEED AS PUBLISHED.
ENSEC INCLUDED A COVER LETTER WITH EACH OF ITS PROPOSALS IN WHICH THE
FIRM REPEATED ITS ORAL SUGGESTION TO THE CONTRACTING OFFICER, AND
POINTED OUT THAT AS THE INCUMBENT CONTRACTOR ITS EMPLOYEES WERE ALREADY
ADEQUATELY TRAINED. ENSEC STATED THAT IT WOULD IN ANY CASE WAIVE ITS
RIGHT TO BE REIMBURSED FOR ANY TRAINING FOR ITS EMPLOYEES THAT WOULD BE
DEEMED NECESSARY BY THE CONTRACTING OFFICER.
ENSEC WAS NOT THE LOW OFFEROR ON EITHER SOLICITATION ON THE BASIS FOR
EVALUATION AS SET OUT THEREIN, AND ON JUNE 16 IT WAS ADVISED THAT THE
CONTRACTS WOULD BE AWARDED TO OTHER FIRMS. AWARDS WERE MADE BASED ON
INITIAL PROPOSALS ON JUNE 30.
ENSEC HAS FILED A PROTEST IN OUR OFFICE AGAINST THE CONTRACT AWARDS
ON THE BASIS OF ITS POSITION AS COMMUNICATED TO THE CONTRACTING OFFICER.
IN ADDITION, ENSEC CONTENDS THAT SINCE THE PROCUREMENTS WERE
NEGOTIATED, GSA SHOULD HAVE CONSIDERED THE FIRM'S OFFER TO WAIVE ALL
TRAINING COSTS IN EVALUATING PROPOSALS FOR AWARD NOTWITHSTANDING THAT
THE RFPS AS ISSUED DID NOT PROVIDE FOR SUCH CONSIDERATION.
WE NOTE AT THE OUTSET THAT FORMAL PROTESTS AGAINST THE AWARD METHODS
WERE NOT FILED IN OUR OFFICE UNTIL AFTER THE CLOSING DATES FOR RECEIPT
OF INITIAL PROPOSALS UNDER THE RFPS. OUR BID PROTEST PROCEDURES, 4
C.F.R. SEC. 20.2(B)(1) (1978), REQUIRE THAT A PROTEST AGAINST AN ALLEGED
RFP IMPROPRIETY MUST BE FILED PRIOR TO THAT DATE. ALTHOUGH ORAL
PROTESTS TO CONTRACTING AGENCIES ARE ACCEPTABLE, FEDERAL PROCUREMENT
REGULATIONS (FPR) SEC. 12.407-8 (1964 ED. AMEND. 139), WE DO NOT BELIEVE
THAT THE TELEPHONE DISCUSSION WITH THE CONTRACTING OFICER PRIOR TO THE
TIME SET FOR RECEIPT OF PROPOSALS CAN BE CONSTRUED AS A PROTEST, SINCE
THERE IS NO EVIDENCE TO SUGGEST THAT SUCH WAS ENSEC'S INTENTION. SEE
HYDRO CONDUIT CORPORATION, B-188999, OCTOBER 11, 1977, 77-2 CPD 282;
JOHNSON CONTROLS, INC., B-184416, JANUARY 2, 1976, 76-1 CPD 4. THUS, IN
OUR VIEW THE PROTEST AGAINST THE CONTRACTING OFFICER'S FAILURE TO AMEND
THE EVALUATION FACTORS FOR AWARD TO CONSIDER THE TRAINING COSTS IS
UNTIMELY.
ENSEC NONETHELESS CONTENDS THAT BECAUSE THESE WERE NEGOTIATED
PROCUREMENTS, "THE GOVERNMENT HAD AN OBLIGATION" TO CONSIDER ITS OFFER
OF A WAIVER FOR REIMBURSEMENT OF ALL TRAINING COSTS, AND THE CONTRACTING
OFFICER SHOULD HAVE AVAILED HIMSELF OF AN OPPORTUNITY TO SAVE THE
GOVERNMENT MONEY VIA NEGOTIATIONS.
IN SOME CIRCUMSTANCES WE WOULD VIEW ENSEC'S POSITION AS CORRECT. FOR
EXAMPLE, WE HAVE HELD THAT:
"*** THE PRESENCE OR ABSENCE OF AN EVALUATION FACTOR AND THE AMOUNT
THEREOF CAN HAVE AN IMPACT UPON THE PRICES OFFERED AND IN THAT SENSE CAN
AFFECT ONE OF THE ESSENTIAL TERMS (PRICE) OF THE CONTRACT. WE BELIEVE
THAT ANY PROSPECTIVE OFFEROR *** WHO REQUESTS' AN OPPORTUNITY TO DISCUSS
THE BASIS FOR A PARTICULAR EVALUATION FACTOR ORDINARILY SHOULD BE
ACCORDED SUCH AN OPPORTUNITY. *** WE RECOGNIZE THAT OPPORTUNITY FOR
SUCH DISCUSSIONS MIGHT NOT HAVE RESULTED IN ANY CHANGE IN THE ***
EVALUATION FACTOR, BUT THE OFFEROR, AT LEAST, MIGHT HAVE SATISFIED
ITSELF *** OF THE CORRECTNESS OF THE ADMINISTRATIVE POSITION OR, IN THE
ABSENCE THEREOF, WOULD HAVE HAD AN OPPORTUNITY TO SHOW THE PROCUREMENT
ACTIVITY WHEREIN IT MIGHT HAVE ERRED. MOREOVER, IT IS ENTIRELY
CONCEIVABLE THAT CHANGES BENEFITTING THE GOVERNMENT COULD RESULT FROM
SUCH DISCUSSIONS *** (AND THE REGULATIONS) CONTEMPLATE THE ISSUANCE OF
AMENDMENTS TO THE REQUEST FOR PROPOSALS WHICH REFLECT THE RESULTS OF
SUCH DISCUSSIONS. *** WE DO NOT BELIEVE THAT AN OTHERWISE ELIGIBLE
OFFEROR SHOULD BE DENIED THE OPPORTUNITY TO DISCUSS THE ELEMENTS OF AN
EVALUATION FACTOR WHICH IS DIRECTLY PREJUDICIAL TO ITS COMPETITIVE
POSITION." 49 COMP. GEN. 98, 100 (1969).
HOWEVER, WHILE THE PORTION OF THE FEDERAL PROCUREMENT REGULATIONS
GOVERNING THE USE OF NEGOTIATED PROCUREMENT PROCEDURES REQUIRE THAT
WRITTEN AND ORAL DISCUSSIONS BE HELD WITH ALL RESPONSIBLE OFFERORS WHO
SUBMITTED PROPOSALS WITHIN A COMPETITIVE RANGE, THERE ARE EXCEPTIONS,
ONE OF WHICH IS THE SITUATION WHERE TIME WILL NOT PERMIT THOSE
DISCUSSIONS. FPR SEC. 1-3.805-1(A)(3) (1964) ED. AMEND 153). HERE,
LESS THAN ONE MONTH WAS AVAILABLE FROM THE TIME THE SOLICITATIONS WERE
ISSUED (LESS THAN TWO WEEKS FROM THE TIME PROPOSALS WERE RECEIVED)
BEFORE PERFORMANCE WAS SCHEDULED TO COMMENCE. IN VIEW OF THIS SHORT
TIME FRAME AVAILABLE, THE CONTRACTING OFFICER DETERMINED TO AWARD THE
CONTRACTS BASED ON THE PROPOSALS AS INITIALLY RECEIVED. IN THIS
CIRCUMSTANCE, THE CONTRACTING OFFICER WAS PRECLUDED FROM CONSIDERING
ENSEC'S PROPOSED WAIVER OF ANY REIMBURSEMENT FOR THE TRAINING COSTS IN
HIS EVALUATION OF THE PROPOSALS, AS ONCE OFFERORS ARE INFORMED OF THE
CRITERIA AGAINST WHICH THEIR PROPOSALS ARE TO BE EVALUATED, IT IS
INCUMBENT ON THE PROCURING AGENCY TO ADHERE TO THAT CRITERIA OR INFORM
ALL OFFERORS OF THE CHANGES MADE IN THE EVALUATION SCHEME. GROUP
OPERATIONS, INCORPORATED, B-185871, JULY 26, 1976, 76-2 CPD 79. ON THIS
BASIS ALONE, WE CONCLUDE THAT THE AWARDS MADE UNDER THESE SOLICITATIONS
WERE PROPER.
WE DO BELIEVE, HOWEVER, THAT ENSEC HAS RAISED AN ISSUE WHICH MAY
MERIT CONSIDERATION IN FUTURE PROCUREMENTS OF THESE SERVICES, SINCE A
CONTRACT AWARDED WITHOUT CONSIDERATION OF THE TRAINING COSTS THAT WOULD
HAVE TO BE REIMBURSED EACH OFFEROR MIGHT NOT RESULT IN A CONTRACT AT THE
LOWEST COST TO THE GOVERNMENT.
IN THIS RESPECT, GSA NOTES THAT THE ACTUAL TRAINING COSTS THE
GOVERNMENT WOULD BE REQUIRED TO BEAR CANNOT BE DETERMINED UNTIL TRAINING
WAIVERS ARE REQUESTED BY THE CONTRACTOR, E.G., AFTER AWARD. GSA THUS
CITES 52 COMP. GEN. 997 (1973) AS SUPPORT FOR ITS POSITION THAT THESE
COSTS MAY NOT BE CONSIDERED AS AN EVALUATION FACTOR BECAUSE THEY ARE
SPECULATIVE. WE AGREE, SO LONG AS THE TRAINING COSTS CANNOT BE
QUANTIFIED WITH REASONABLE ACCURACY. HOWEVER, IT MAY BE FEASIBLE TO
REQUIRE OFFERORS TO FURNISH THE RELEVANT PERSONNEL INFORMATION WITH
THEIR PROPOSALS, THEREBY ELIMINATING THE SPECULATIVE NATURE OF THE
COSTS.
WE ARE BY SEPARATE LETTER OF TODAY BRINGING THE MATTER TO THE
ATTENTION OF THE ADMINISTRATOR OF GENERAL SERVICES FOR CONSIDERATION IN
FUTURE PROCUREMENTS.
B-192435, JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE ON EXTENDED TEMPORARY DUTY IN ST. LOUIS, MISSOURI,
TERMINATED HIS RENTAL AGREEMENT AT PERMANENT DUTY STATION AND RENTED AN
APARTMENT IN ST. LOUIS TO PROVIDE ADEQUATE LIVING SPACE FOR HIS TWO
CHILDREN. HE PURCHASED A HOUSE IN ST. LOUIS AND MOVED HIS HOUSEHOLD
GOODS THERE AFTER IT APPEARED THAT THE ASSIGNMENT WOULD LAST LONGER THAN
ANTICIPATED. EMPLOYEE MAY BE PAID A PER DIEM ALLOWANCE DURING OCCUPANCY
OF THE APARTMENT AND THE RESIDENCE BASED ON AN ALLOWANCE FOR MEALS AND
MISCELLANEOUS EXPENSES PLUS LODGING COSTS DETERMINED WHEN HE OCCUPIED
THE HOUSE AS A PRORATION OF MONTHLY INTEREST, PROPERTY TAX AND UTILITY
COSTS ACTUALLY INCURRED.
JAMES H. QUIGGLE - LODGING - TEMPORARY DUTY:
THE ISSUE IS WHETHER JAMES H. QUIGGLE, AN EMPLOYEE OF THE GENERAL
SERVICES ADMINISTRATION, IS ENTITLED TO REIMBURSEMENT FOR LODGING
EXPENSES INCURRED WHILE ON TEMPORARY DUTY. HE RENTED AN APARTMENT AND
SUBSEQUENTLY PURCHASED A HOUSE AT HIS TEMPORARY DUTY STATION. HE IS
ENTITLED TO BE REIMBURSED FOR THE LODGING EXPENSES AS PART OF A PER DIEM
FOR REASONS GIVEN BELOW.
THE QUESTION IS PRESENTED BY MR. HOYT SHIELDS, AUTHORIZED CERTIFYING
OFFICER, AND REGIONAL DIRECTOR, FINANCE DIVISION, REGION 6, GENERAL
SERVICES ADMINISTRATION. WE UNDERSTAND PAYMENT HAS BEEN MADE. THE
STATUTORY AUTHORITY, 31 U.S.C. 82D, UNDER WHICH THIS OFFICE RENDERS
DECISIONS TO CERTIFYING OFFICERS PROVIDES THAT A CERTIFYING OFFICER IS
ENTITLED TO A DECISION BY THE COMPTROLLER GENERAL ON A QUESTION OF LAW
INVOLVED IN PAYMENT ON A SPECIFIC VOUCHER, WHICH SHOULD ACCOMPANY THE
SUBMISSION TO THIS OFFICE. 52 COMP. GEN. 83 (1972). NO VOUCHER
ACCOMPANIED THE REQUEST OF MR. SHIELDS; HOWEVER, WE ARE RENDERING A
DECISION UNDER THE BROAD AUTHORITY OF 31 U.S.C. 74 UNDER WHICH DECISIONS
ARE RENDERED TO HEADS OF DEPARTMENTS ON QUESTIONS INVOLVING PAYMENTS
WHICH MAY BE MADE BY THEM. 55 COMP. GEN. 652, 653 (1976).
THE RECORD INDICATES THAT MR. JAMES H. QUIGGLE'S PERMANENT DUTY
STATION WAS KANSAS CITY, MISSOURI. IN DECEMBER 1976, THE GENERAL
SERVICES ADMINISTRATION (GSA) SENT HIM TO ST. LOUIS ON A TEMPORARY DUTY
ASSIGNMENT WITH A TRAVEL AUTHORIZATION AT $35 PER DIEM. SINCE IT WAS
APPARENT THAT THE ASSIGNMENT MIGHT LAST FOR AN EXTENDED PERIOD, MR.
QUIGGLE TERMINATED HIS RENTAL LODGING IN KANSAS CITY.
MR. QUIGGLE FIRST RENTED A MOTEL ROOM IN ST. LOUIS. ENTITLEMENT TO
PER DIEM DURING OCCUPANCY OF THE MOTEL ROOM IS NOT QUESTIONED. HOWEVER,
IN JANUARY 1977, WHEN IT WAS EVIDENT THAT THE ASSIGNMENT WAS GOING TO BE
EXTENDED HE RENTED AN APARTMENT TO PROVIDE ADEQUATE LIVING SPACE FOR
HIMSELF AND HIS TWO CHILDREN. HIS PER DIEM RATE WAS REDUCED TO $28 PER
DAY AFTER 60 DAYS TEMPORARY DUTY.
IN AUGUST 1977, MR. QUIGGLE'S ASSIGNMENT APPEARED AS THOUGH IT WOULD
LAST FOR SEVERAL MORE MONTHS OR EVEN TURN INTO A PERMANENT ASSIGNMENT.
IN LIGHT OF THIS AND IN ORDER FOR HIS CHILDREN TO ATTEND SCHOOL, HE
PURCHASED A HOUSE. THE TEMPORARY ASSIGNMENT ENDED IN DECEMBER 1977,
WHEREUPON, HE WAS RETURNED TO KANSAS CITY.
MR. QUIGGLE CLAIMED TEMPORARY TRAVEL COST REIMBURSEMENT BASED ON THE
COST OF LODGING PLUS $16, NOT TO EXCEED $35 PER DAY, WITH PER DIEM $28
AFTER FIRST 60 DAYS. HE DEVELOPED HIS CLAIM BY PRORATING HIS MONTHLY
RENT PLUS UTILITIES FOR HIS APARTMENT TO A DAILY RATE. HE BASED HIS
LODGING PER DIEM CLAIM FOR THE HOUSE HE BOUGHT BY PRORATING HIS MONTHLY
MORTGAGE INTEREST, PROPERTY TAX, AND UTILITY COSTS INCURRED TO A DAILY
RATE.
IN A SIMILAR SITUATION WE HELD THAT AN EMPLOYEE WHO PURCHASED A
RESIDENCE AT HIS TEMPORARY DUTY LOCATION AFTER ASSIGNMENT THERE AND THEN
RENTED OUT HIS RESIDENCE AT HIS PERMANENT DUTY STATION WAS ENTITLED TO A
PER DIEM ALLOWANCE BASED ON THE MEALS AND MISCELLANEOUS EXPENSES
ALLOWANCE PLUS LODGING COSTS DETERMINED AS A PRORATION OF MONTHLY
INTEREST, PROPERTY TAX AND UTILITY COSTS ACTUALLY INCURRED. MATTER OF
ROBERT E. LARRABEE, 57 COMP. GEN. 147 (1977). WE DISTINGUISHED THE
ABOVE CASE FROM OUR DECISION IN MATTER OF SANFORD O. SILVER, 56 COMP.
GEN. 223 (1977).
IN SILVER, WE HELD THAT AN EMPLOYEE WHO STAYS AT A SECOND FAMILY
RESIDENCE WHILE PERFORMING TEMPORARY DUTY MAY NOT BE REIMBURSED LODGING
EXPENSES BASED ON MORTGAGE, UTILITY AND MAINTENANCE EXPENSES. WE
DISALLOWED THESE EXPENSES ON THE BASIS THAT THE COSTS OF PURCHASING AND
MAINTAINING THE RESIDENCE WERE INCURRED BY REASON OF THE EMPLOYEE'S
DESIRE TO MAINTAIN A SECOND RESIDENCE, AND NOT BY VIRTUE OF HIS TRAVEL.
IN THE PRESENT SITUATION, AS IN LARRABEE, MR. QUIGGLE PURCHASED THE
RESIDENCE ONLY AFTER HIS NEED FOR EXTENDED LODGINGS AT THE TEMPORARY
DUTY STATION WAS ESTABLISHED. SIMILARLY, IT WOULD BE UNREASONABLE TO
CONCLUDE THAT THE COSTS HE INCURRED BY MAINTAINING HIS ST. LOUIS
RESIDENCE WERE A RESULT OF HIS DESIRE TO MAINTAIN A SECOND RESIDENCE
WHEN THE CIRCUMSTANCES CLEARLY DEMONSTRATE THAT THE RESIDENCE WAS
PURCHASED BECAUSE OF HIS TEMPORARY DUTY ASSIGNMENT. UNDER THESE
CIRCUMSTANCES, THE FACT THAT HE TERMINATED HIS RENTAL LODGING IN KANSAS
CITY DURING THE PERIOD OF HIS TEMPORARY DUTY ASSIGNMENT AND RELOCATED
HIS HOUSEHOLD GOODS AND FAMILY TO THE TEMPORARY DUTY SITE DOES NOT
DEFEAT HIS ENTITLEMENT TO LODGING COSTS IN CONNECTION WITH HIS OCCUPANCY
OF THE ST. LOUIS RESIDENCE. SEE LARRABEE, SUPRA AND ITS REFERENCE TO
MATTER OF NICHOLAS G. ECONOMY, B-188515, AUGUST 18, 1977;
SINCE MR. QUIGGLE'S ST. LOUIS APARTMENT WAS RENTED IN CONNECTION WITH
HIS ASSIGNMENT, HE MAY BE PAID A PER DIEM WHILE ON TEMPORARY DUTY. THE
PER DIEM IS BASED ON THE APPLICABLE STANDARD MEALS AND MISCELLANEOUS
EXPENSES ALLOWANCE PLUS LODGING COSTS DETERMINED AS A PRORATION OF
MONTHLY INTEREST, PROPERTY TAX, AND UTILITY COSTS ACTUALLY INCURRED. IN
DETERMINING HIS DAILY LODGING COSTS, THESE MONTHLY COSTS SHOULD BE
DIVIDED BY THE NUMBER OF DAYS IN THE MONTH AND NOT THE NUMBER OF DAYS HE
ACTUALLY OCCUPIED THE RESIDENCE. SEE: LARRABEE, SUPRA, AND ECONOMY,
SUPRA.
B-193277, JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE ONLY EVIDENCE OF TIMELY SUBMISSION OF BID IS CONFLICTING
STATEMENTS FROM PROTESTER AND CONTRACTING AGENCY, PROTESTER HAS NOT MET
BURDEN OF AFFIRMATIVELY PROVING ITS CASE.
2. OMISSION OF BIDDER'S NAME AND ADDRESS FROM BID FORM MAY BE WAIVED
AS MINOR INFORMALITY, SINCE BID FORM CONTAINED NAME AND SIGNATURE OF
PRESIDENT OF FIRM AND ITS CORPORATE IDENTIFICATION NUMBER FOR FEDERAL
TAX PURPOSES, AND CONTRACTING OFFICER'S CONCLUSION THAT EVIDENCE WAS
SUFFICIENT TO INDICATE BIDDER'S INTENT TO BE BOUND WAS REASONABLE.
3. FAILURE OF LOW BIDDER TO SUBMIT WITH BID REQUIRED LIST OF
EQUIPMENT THAT IT WOULD USE IN PERFORMING HELICOPTER SEEDING SERVICE DID
NOT RENDER BID NONRESPONSIVE SINCE LIST RELATED TO RESPONSIBILITY OF
BIDDER AND THEREFORE COULD BE SUBMITTED AFTER BID OPENING.
4. FAILURE TO NOTIFY GAO OF INTENTION TO AWARD CONTRACT PRIOR TO TO
RESOLUTION OF PROTEST IS PROCEDURAL DEFICIENCY THAT DOES NOT AFFECT
VALIDITY OF AWARD.
5. COSTS OF PURSUING BID PROTEST ARE NOT COMPENSABLE. IN ADDITION,
CLAIM FOR BID PREPARATION COSTS IS DENIED WHERE THERE HAS BEEN NO
SHOWING THAT CONTRACTING AGENCY DEPRIVED PROTESTER OF AWARD TO WHICH IT
WAS OTHERWISE ENTITLED.
AIRWEST HELICOPTERS, INC.:
AIRWEST HELICOPTERS, INC. (AIRWEST), PROTESTS THE AWARD OF A CONTRACT
BY THE DEPARTMENT OF AGRICULTURE TO HIGH COUNTRY HELICOPTERS (HCH), THE
LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. SCS-33-CO- 78. THE
SOLICITATION, ISSUED ON OCTOBER 13, 1978, WAS FOR THE HELICOPTER SEEDING
OF APPROXIMATELY 3,000 ACRES OF FOREST BURN AREA IN COLORADO. AIRWEST,
THE SECOND LOW BIDDER, ALLEGES THAT HCH'S BID WAS ACCEPTED AFTER THE
TIME FOR BID OPENING; THAT THE BID WAS IN ANY EVENT NONRESPONSIVE; AND
THAT THE CONTRACT IMPROPERLY WAS AWARDED ON OCTOBER 25, 1978, BEFORE
RESOLUTION BY OUR OFFICE OF AIRWEST'S PROTEST FILED ON OCTOBER 24, AND
WITHOUT NOTICE TO OUR OFFICE OR AIRWEST OF THE INTENTION TO SO AWARD.
THE CONTRACT WAS COMPLETED SHORTLY AFTER AWARD.
AS A GENERAL RULE, BIDS MUST BE RECEIVED IN THE OFFICE DESIGNATED IN
THE IFB NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. FEDERAL
PROCUREMENT REGULATIONS (FPR) SEC 1-2.302, 1-2.303 (1964 ED., CIRC. 1).
BID OPENING UNDER THE INSTANT IFB WAS SCHEDULED FOR 1 P.M., OCTOBER 20.
THREE BIDS, INCLUDING AIRWEST'S HAD BEEN RECEIVED BY 12:30 P.M. AIRWEST
STATES THAT HCH'S REPRESENTATIVE DID NOT ENTER THE BID OPENING ROOM TO
HAND-DELIVER THE FIRM'S BID UNTIL 15 TO 20 SECONDS AFTER 1 P.M., AND THE
CONTRACTING OFFICER'S REPRESENTATIVE DELAYED UNTIL RECEIPT OF THE HCH
BID TO DECLARE THE BIDDING CLOSED.
IN A REPORT ON THE PROTEST, AGRICULTURE STATES THAT THE HCH
REPRESENTATIVE ENTERED THE ROOM PRIOR TO 1 P.M., AND THAT ALL BIDS WERE
RECEIVED BY THAT TIME. THUS, THE ONLY EVIDENCE OF THE TIME OF RECEIPT
OF THE HCH BID IS THE CONFLICTING STATEMENTS OF THE PARTIES. IN THIS
CIRCUMSTANCE, WE MUST ACCEPT THE STATEMENT OF THE AGENCY, BECAUSE THE
PROTESTER HAS NOT MET THE BURDEN TO AFFIRMATIVELY PROVE ITS CASE. SEE
CUSTOM BURGLAR ALARM, INC., B-192351, JANUARY 18, 1979, 79-1 CPD 30.
AIRWEST ALSO ASSERTS THAT HCH'S BID WAS NONRESPONSIVE BECAUSE THE
FIRM FAILED TO ENTER ITS NAME AND ADDRESS IN BLOCK 17 ON THE BID FORM
(STANDARD FORM 33) AND FAILED TO INCLUDE WITH THE BID A LIST OF THE
EQUIPMENT TO BE USED IN THE PERFORMANCE OF THE CONTRACT, AS REQUIRED BY
PARAGRAPH 24 OF THE IFB'S SOLICITATION INSTRUCTIONS AND CONDITIONS.
THE TEST OF "RESPONSIVENESS" IS WHETHER A BID AS SUBMITTED IS AN
OFFER TO PERFORM WITHOUT EXCEPTION THE EXACT THING CALLED FOR IN THE
INVITATION. 49 COMP. GEN. 553, 556 (1970). IF THE TEST IS MET, THE
BIDDER IS EFFECTIVELY BOUND BY THE GOVERNMENT'S ACCEPTANCE TO PERFORM IN
ACCORDANCE WITH THE INVITATION'S REQUIREMENTS. SEE EDW. KOCHARIAN &
COMPANY, 58 COMP. GEN. 214 (1979), 79-1 CPD 20.
THE RECORD INDICATES THAT AT THE BID OPENING THE HCH REPRESENTATIVE
IDENTIFIED THE BID AS HCH'S. IN ADDITION, THE NAME AND SIGNATURE OF THE
PRESIDENT OF HCH APPEARED ON THE BID FORM IN BLOCKS 18 AND 19 (ALTHOUGH
THE COMPANY NAME WAS NOT INDICATED),AND THE FIRM'S IDENTIFICATION NUMBER
FOR FEDERAL TAX PURPOSES APPEARED IN BLOCK 6 (C). THESE FACTORS
SATISFIED THE CONTRACTING OFFICER OF THE INTENT TO BID BY HCH, AND THE
SUBJECT OMISSION WAS WAIVED AS A MINOR INFORMALITY UNDER FPR SEC.
1-2.405 (1964 ED., CIRC. 1). UNDER THE CIRCUMSTANCES, WE BELIEVE THAT
THE CONTRACTING OFFICER PROPERLY CONCLUDED THAT HCH INTENDED TO BE BOUND
BY THE GOVERNMENT'S ACCEPTANCE OF THE BID AS SUBMITTED, AND THE BID
THEREFORE WAS RESPONSIVE. CONTRAST FOREST SCIENTIFIC, INC.,
B-192827,B-192796, B-193062, FEBRUARY 9, 1979, 79-1 CPD 188.
WITH REGARD TO THE MISSING EQUIPMENT LIST, THE RECORD INDICATES THAT
THE PURPOSE OF THE LIST WAS ONLY TO AID THE CONTRACTING OFFICER IN
DETERMINING WHETHER THE BIDDER WAS CAPABLE OF PERFORMING THE CONTRACT.
THUS, THE LIST HAD NO BEARING ON THE BIDDER'S OBLIGATION TO PERFORM,
I.E., THE BID'S RESPONSIVENESS, BUT WAS A MATTER OF BIDDER
RESPONSIBILITY. SEE 53 COMP. GEN. 396 (1973). ACCORDINGLY, THE
REQUIREMENT TO SUBMIT THE LIST COULD BE FULFILLED AFTER BID OPENING. 49
COMP. GEN., SUPRA.
CONCERNING THE TIMING OF THE AWARD TO HCH, AIRWEST'S PROTEST WAS
FILED IN OUR OFFICE ON OCTOBER 24, AND THE CONTRACTING AGENCY WAS
NOTIFIED OF THE PROTEST THAT DATE BY TELEPHONE. THE CONTRACTING OFFICER
PROPOSED TO AWARD THE CONTRACT ON OCTOBER 25, PRIOR TO OUR RESOLUTION OF
AIRWEST'S PROTEST, ON THE BASIS OF URGENCY, PURSUANT TO FPR SEC.
1-2.407-8(B) (4) (1964 ED. AMEND. 68). ORAL APPROVAL FROM A HIGHER
LEVEL WAS OBTAINED ON THE SAME DATE IN ACCORDANCE WITH FPR SEC.
1-2.407-8(B) (3) AND WAS CONFIRMED IN WRITING SHORTLY THEREAFTER.
ACCORDINGLY, AND IN VIEW OF OUR ABOVE DISCUSSION, THE DETERMINATION TO
PROCEED WITH THE CONTRACT AWARD ON OCTOBER 25 IS NOT SUBJECT TO
OBJECTION BY OUR OFFICE. SEE LABARGE INCORPORATED, B-190051, JANUARY 5,
1978, 78-1 CPD 7; STARLINE, INCORPORATED, 55 COMP. GEN. 1160, 1172
(1976), 76-1 CPD 365. IN ADDITION, BASED ON THE SHORT TIME BETWEEN THE
FILING OF AIRWEST'S PROTEST AND THE URGENCY AWARD, WE CANNOT OBJECT TO
AGRICULTURE'S FAILURE TO NOTIFY OUR OFFICE AND AIRWEST OF THE
DETERMINATION BEFORE AWARDING THE CONTRACT. IN ANY CASE, WE HAVE HELD
THAT NOTIFICATION DEFICIENCIES OF THAT TYPE ARE PROCEDURAL
IRREGULARITIES WHICH DO NOT AFFECT THE VALIDITY OF THE CONTRACT. NEW
HAVEN AMBULANCE SERVICE, INC., 57 COMP. GEN. 361, 367 (1978), 78-1 CPD
225.
AIRWEST HAS ALSO REQUESTED REIMBURSEMENT FOR CERTAIN UNSTATED
EXPENSES INCURRED BY THE FIRM. WE PRESUME THAT SUCH EXPENSES INCLUDE
THOSE INVOLVED IN PURSUING THE INSTANT BID PROTEST AND IN PREPARING A
BID UNDER THE IFB. HOWEVER, THE COSTS OF PURSUING A BID PROTEST ARE
NONCOMPENSABLE. TENNESSEE VALLEY SERVICE COMPANY, B-188771, DECEMBER 8,
1977, 77-2 CPD 442. MOREOVER, SINCE THERE HAS BEEN NO SHOWING THAT THE
AGENCY DEPRIVED THE PROTESTER OF AN AWARD TO WHICH IT WAS OTHERWISE
ENTITLED, THERE IS NO BASIS UPON WHICH A REQUEST FOR BID PREPARATION
COSTS CAN BE GRANTED. SYSTEM DEVELOPMENT CORPORATION, B-191195, AUGUST
31, 1978, 78-2 CPD 159.
THE PROTEST IS DENIED.
B-193443, JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE OF HEW ASSIGNED TO STATE EDUCATION AGENCY UNDER
INTERGOVERNMENTAL PERSONNEL ACT (IPA) MAY NOT BE REIMBURSED FOR
UNEXPIRED LEASE EXPENSE BECAUSE 5 U.S.C. SEC. 3375, ENUMERATING
AUTHORIZED RELOCATION EXPENSES INCIDENT TO IPA ASSIGNMENTS, DOES NOT
INCLUDE SUCH AN EXPENSE. SINCE SUCH AUTHORITY IS LIMITED BY STATUTE,
FACT THAT AGENCY TERMINATED ASSIGNMENT AGREEMENT 1 YEAR EARLIER THAN
STATED HAS NO EFFECT ON EMPLOYEE'S ENTITLEMENT.
BURNELL F. PETERS - RELOCATION EXPENSES - SETTLEMENT OF UNEXPIRED
LEASE:
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) REQUESTS A
DECISION AS TO WHETHER MR. BURNELL F. PETERS, AN EMPLOYEE OF THE
DEPARTMENT, MAY BE REIMBURSED $555 FOR SETTLEMENT OF A LEASE IN
CONNECTION WITH THE TERMINATION OF AN INTERGOVERNMENTAL PERSONNEL ACT
(IPA) ASSIGNMENT.
THE RECORD SHOWS THAT MR. PETERS WAS ASSIGNED TO A DETAIL WITH THE
TEXAS EDUCATION AGENCY, AUSTIN, TEXAS, FROM HIS PERMANENT STATION WITH
HEW, IN DALLAS, TEXAS, UNDER THE PROVISIONS OF THE IPA OF 1970, AS
AMENDED, 5 U.S.C. SECS. 3371-3376 (1976). IN ACCORDANCE WITH THE IPA,
HEW AND MR. PETERS EXECUTED AN ASSIGNMENT AGREEMENT COVERING A 2-YEAR
PERIOD FROM JULY 1, 1975, TO JULY 1, 1977. THE ASSIGNMENT WAS LATER
EXTENDED BY HEW FOR AN ADDITIONAL 2 YEARS UNDER THE PROVISIONS OF 5
U.S.C. SEC. 3372(A) (1976). HOWEVER, THE ASSIGNMENT WAS TERMINATED BY
HEW ON JUNE 30, 1978, 1 YEAR EARLIER THAN AGREED UPON, SO THAT MR.
PETERS COULD BE RETURNED TO HIS DALLAS OFFICE FOR REASSIGNMENT.
THE AGENCY STATES THAT IT DENIED MR. PETERS' CLAIM FOR $555 INCURRED
IN SETTLING AN UNEXPIRED LEASE BECAUSE THERE IS NO AUTHORITY UNDER THE
IPA AGREEMENT FOR SUCH PAYMENT.
MR. PETERS STATES THAT HEW CAUSED THE UNEXPIRED LEASE EXPENSE BY ITS
EARLY TERMINATION OF THE ASSIGNMENT AGREEMENT. HE STATES THAT HEW
INSTRUCTION 334-1 DOES NOT CLEARLY PROVIDE FOR HOUSING-RELATED EXPENSES
IN AN IPA CHANGE OF STATION BUT HE SAYS THAT:
"*** IT DOES PROVIDE PROTECTION FOR THE GOVERNMENT BY STATING 'IF THE
EMPLOYEE VIOLATES THE AGREEMENT, THE MONEY SPENT BY THE FEDERAL
GOVERNMENT IS RECOVERABLE FROM THE EMPLOYEE AS A DEBT DUE THE U. S.' I
WOULD EXPECT WHEN PROPERLY EXPLAINED THAT A REVERSE SITUATION IN FAVOR
OF THE EMPLOYEE COULD ALSO BE APPROVED. ***"
PURSUANT TO SECTION 402 (A) OF THE IPA, 5 U.S.C. SEC. 3375 (1976),
APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO REIMBURSE A
FEDERAL EMPLOYEE FOR CERTAIN TRAVEL EXPENSES. THAT SECTION READS IN
PART AS FOLLOWS:
"(A) APPROPRIATIONS OF AN EXECUTIVE AGENCY ARE AVAILABLE TO PAY, OR
REIMBURSE, A FEDERAL OR STATE OR LOCAL GOVERNMENT EMPLOYEE IN ACCORDANCE
WITH -
"(1) SUBCHAPTER I OF CHAPTER 57 OF HIS TITLE, FOR THE EXPENSES OF -
"(A) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, TO AND FROM THE
ASSIGNMENT LOCATION;
"(B) A PER DIEM ALLOWANCE AT THE ASSIGNMENT LOCATION DURING THE
PERIOD OF THE ASSIGNMENT; AND
"(C) TRAVEL, INCLUDING A PER DIEM ALLOWANCE, WHILE TRAVELING ON
OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY DURING THE
ASSIGNMENT WHEN THE HEAD OF THE EXECUTIVE AGENCY CONSIDERS THE TRAVEL IN
THE INTEREST OF THE UNITED STATES:
"(2) SECTION 5724 OF THIS TITLE, FOR THE EXPENSES OF TRANSPORTATION
OF HIS IMMEDIATE FAMILY AND OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS
TO AND FROM THE ASSIGNMENT LOCATION;
"(3) SECTION 5724A(A)(1) OF THIS TITLE, FOR THE EXPENSES OF PER DIEM
ALLOWANCES FOR THE IMMEDIATE FAMILY OF THE EMPLOYEE TO AND FROM THE
ASSIGNMENT LOCATION;
"(4) SECTION 5724A(A)(3) OF THIS TITLE, FOR SUBSISTENCE EXPENSES OF
THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS
AT THE ASSIGNMENT LOCATION AND ON RETURN TO HIS FORMER POST OF DUTY;
AND
"(5) SECTION 5726(C) OF THIS TITLE, FOR THE EXPENSES OF NONTEMPORARY
STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS IN CONNECTION WITH
ASSIGNMENT AT AN ISOLATED LOCATION."
THE LANGUAGE IN THE ASSIGNMENT AGREEMENT QUOTED BY MR. PETERS IS
REQUIRED BY 5 U.S.C. SEC. 3375(B) (1976).
IN CONSIDERING WHAT RELOCATION EXPENSES SHOULD BE REIMBURSED TO AN
EMPLOYEE PARTICIPATING IN THE IPA PROGRAM, CONGRESS DETERMINED THAT SUCH
EMPLOYEES WERE ENTITLED ONLY TO THE RELOCATION EXPENSES LISTED IN
SECTIONS 5724A(A)(1) AND (3), AND SECTION 5726(C) OF TITLE 5 OF THE
UNITED STATES CODE. NO PROVISION WAS MADE FOR REIMBURSEMENT OF EXPENSES
INCURRED IN THE SETTLEMENT OF AN UNEXPIRED LEASE. MATTER OF JAMES D.
BROMAN, B-185810, NOVEMBER 16, 1976; MATTER OF ALAN O. MANN, B-183042,
APRIL 24, 1975.
THE ASSIGNMENT AGREEMENT STATES IN PART VIII - APPLICABILITY OF
RULES, REGULATIONS, AND POLICIES, THAT:
"2. ASSIGNEE HAS BEEN INFORMED THAT THE ASSIGNMENT MAY BE TERMINATED
AT ANY TIME AT THE OPTION OF THE FEDERAL EXECUTIVE AGENCY OR THE STATE
OR LOCAL GOVERNMENT.
"3. ASSIGNEE HAS BEEN INFORMED THAT ANY TRAVEL AND TRANSPORTATION
EXPENSES COVERED FROM FEDERAL AGENCY APPROPRIATIONS MAY BE RECOVERABLE
AS A DEBT DUE THE UNITED STATES, IF HE DOES NOT SERVE UNTIL THE
COMPLETION OF HIS ASSIGNMENT (UNLESS TERMINATED EARLIER BY EITHER
EMPLOYER) OR ONE YEAR, WHICHEVER IS SHORTER."
BOTH OF THE ABOVE PARAGRAPHS ARE CHECK-MARKED, WHICH INDICATES THAT
MR. PETERS WAS AWARE AT THE TIME HE SIGNED THE ASSIGNMENT AGREEMENT THAT
IT COULD BE TERMINATED AT ANY TIME, NOT JUST AFTER THE COMPLETION OF THE
EXTENDED 2-YEAR PERIOD. ALSO, THE AUTHORITY TO PAY TRAVEL EXPENSES IN
CONNECTION WITH IPA ASSIGNMENTS IS LIMITED BY STATUTE; THEREFORE, THE
FACT THAT THE AGENCY CANCELLED THE ASSIGNMENT 1 YEAR EARLIER HAS NO
EFFECT ON AN EMPLOYEE'S ENTITLEMENT. SEE MATTER OF DONALD B. KORNREICH,
B-170589, SEPTEMBER 18, 1974.
ACCORDINGLY, MR. PETERS' CLAIM FOR REIMBURSEMENT FOR AN UNEXPIRED
LEASE EXPENSE MAY NOT BE ALLOWED.
B-193591, JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. GAO WILL CONSIDER PROTEST OF AGENCY'S EXERCISE OF OPTION WHERE
PROTESTER'S CONTRACT ALSO CONTAINS OPTION FOR SAME EQUIPMENT AND
PROTESTER CONTENDS AGENCY ACTED CONTRARY TO REGULATIONS GOVERNING
EXERCISE OF OPTIONS.
2. WHERE OPTIONS ARE AVAILABLE, UNDER TWO DIFFERENT CONTRACTS, GAO
WILL NOT QUESTION AGENCY EXERCISE OF HIGHER-PRICED OPTION WHERE AGENCY
CONCLUDES THAT ONLY HIGHER-PRICED CONTRACTOR COULD MEET ITS NEEDS.
BRISTOL ELECTRONICS, INC.:
BRISTOL ELECTRONICS, INC. (BRISTOL) PROTESTS THE EXERCISE OF AN
OPTION BY THE U. S. ARMY COMMUNICATIONS AND ELECTRONICS MATERIEL
READINESS COMMAND (ARMY) UNDER CONTRACT DAAB05-73-C-0006 WITH CINCINNATI
ELECTRONICS (CINCINNATI). THE PROTESTER CONTENDS THAT THE ARMY COULD
HAVE OBTAINED THE REQUIRED RADIO EQUIPMENT PURSUANT TO AN OPTION UNDER
BRISTOL'S CONTRACT WITH THE ARMY AT A LOWER PRICE.
WHILE WE DO NOT REVIEW CONTRACT ADMINISTRATION MATTERS PURSUANT TO
OUR BID PROTEST PROCEDURES, (4 C.F.R. PART 20 (1978)) WE POINTED OUT IN
KET, INCORPORATED, B-191949, OCTOBER 27, 1978, 78-2 CPD 305, THAT WE
WILL CONSIDER PROTESTS AGAINST THE EXERCISE OF CONTRACT OPTIONS WHEN THE
PROTESTER CONTENDS THAT SUCH ACTION IS OR WOULD BE CONTRARY TO THE
REGULATORY PROVISIONS GOVERNING THE EXERCISE OF OPTIONS. HERE, SINCE
THE ESSENCE OF BRISTOL'S POSITION IS THAT THE ARMY VIOLATED THE
PROVISIONS OF DEFENSE ACQUISITION REGULATION (DAR) 1-1505 (1976 ED., DPC
76-6) BY NOT EXERCISING THE OPTION OF THE LOWER PRICED CONTRACTOR WE
WILL CONSIDER THIS MATTER.
BOTH BRISTOL AND CINCINNATI HOLD MULTI-YEAR CONTRACTS WITH THE ARMY
FOR TWO TYPES OF RADIO EQUIPMENT, AN/PRC-77 AND RT-841. EACH CONTRACT
CONTAINS AN OPTION CLAUSE WHICH PROVIDES THAT THE GOVERNMENT MAY
INCREASE EACH YEARLY QUANTITY BY 100 PERCENT. CINCINNATI'S OPTION PRICE
FOR BOTH TYPES OF EQUIPMENT IS $557 PER UNIT WHILE BRISTOL'S PRICE IS
$563 FOR AN/PRC-77 UNITS AND $518 FOR RT-841 UNITS.
THE ARMY HAD PROCUREMENT REQUIREMENTS FOR 3002 ADDITIONAL RADIO
UNITS. ALL BUT 2 OF THESE UNITS CARRIED A PRIORITY DESIGNATOR AND 1,192
OF THEM WERE FOR PAST DUE GRANT AID REQUIREMENTS. THE ARMY DETERMINED
THAT A NEW PROCUREMENT WAS IMPRACTICAL BECAUSE OF THE URGENCY OF THE
REQUIREMENTS AND BECAUSE OF ITS BELIEF THAT THE TOTAL QUANTITY WAS ONE
THIRD OF AN ECONOMICAL PRODUCTION QUANTITY FOR A NEW PROCUREMENT.
CONSEQUENTLY THE ARMY COMPARED OPTIONS IN THE TWO CONTRACTS TO DECIDE
WHICH WAS THE MOST ADVANTAGEOUS.
THE AGENCY VIEWED DELIVERY AS THE KEY FACTOR IN COMPARING THE TWO
OPTIONS. THE ARMY DETERMINED THAT WHILE CINCINNATI COULD BEGIN OPTION
DELIVERIES IN AUGUST 1979 AT A RATE OF 1080 UNITS PER MONTH, BRISTOL
COULD NOT BEGIN OPTION DELIVERIES UNTIL AT LEAST APRIL 1981. THE AGENCY
ALSO CONSIDERED THE FACT THAT BOTH CINCINNATI AND BRISTOL HAVE SUBMITTED
MULTI-MILLION DOLLAR CLAIMS UNDER THEIR CONTRACTS. SINCE THE ARMY COULD
NOT, AT THE TIME OF EVALUATION, PREDICT THE EFFECT OF THESE CLAIMS ON
THE UNIT PRICES OF BOTH FIRMS THIS ELEMENT WAS NOT A FACTOR IN THE PRICE
COMPARISON. IN THIS COMPARISON BRISTOL WAS DETERMINED TO BE $1,383
LOWER. FINALLY, THE AGENCY CONSIDERED THE RELATIVE CONFIDENCE IT HAD IN
RECEIVING TIMELY DELIVERY FROM THE TWO CONTRACTORS AND JUDGED CINCINNATI
SUPERIOR AS IT WAS THEN PRODUCING 1080 RADIOS PER MONTH WHILE BRISTOL
HAD YET TO COMPLETE FIRST ARTICLE TESTING UNDER ITS CONTRACT. BASED ON
ITS EVALUATION OF THESE FACTORS THE ARMY CONCLUDED THAT $1,383 WAS AN
INSIGNIFICANT PREMIUM FOR COMPLETION OF DELIVERY TWO YEARS EARLIER AND
EXERCISED THE OPTION IN CINCINNATI'S CONTRACT.
THE PROPRIETY OF AN AGENCY'S EXERCISING AN OPTION UNDER AN EXISTING
CONTRACT MUST BE DETERMINED IN LIGHT OF DAR SEC. 1-1505(C) (III) WHICH
STATES THAT OPTIONS SHOULD BE EXERCISED ONLY IF IT IS THE MOST
ADVANTAGEOUS METHOD OF FULFILLING THE GOVERNMENT'S NEED, PRICE AND OTHER
FACTORS CONSIDERED.
BRISTOL OBJECTS TO THE ARMY'S DETERMINATION BECAUSE IT ARGUES THAT
THE AGENCY INCORRECTLY CALCULATED THE PRICE DIFFERENTIAL AND FAILED TO
CONTACT BRISTOL TO NEGOTIATE A MORE FAVORABLE DELIVERY SCHEDULE WHICH IT
WAS PERMITTED TO DO UNDER THE CONTRACT.
THE PROTESTER POINTS OUT THAT UNDER CINCINNATI'S BASIC CONTRACT THE
AGENCY MUST FURNISH SEVERAL ACCESSORIES IN ORDER TO MAKE COMPLETE RADIO
UNITS WHILE ONLY ONE ACCESSORY NEED BE FURNISHED TO COMPLETE BRISTOL'S
UNIT. THIS, ACCORDING TO BRISTOL, RESULTS IN A $207,138 PRICE
DIFFERENTIAL IN ITS FAVOR. FURTHER, BRISTOL ARGUES THAT CINCINNATI'S
PENDING CLAIM OF $10 MILLION, OF WHICH $2 MILLION HAS ALREADY BEEN PAID
BY THE ARMY, ADDS AN ESTIMATED $600,000 TO THE PRICE DIFFERENTIAL.
FINALLY, THE PROTESTER NOTES THAT THE ADDITIONAL UNITS ORDERED WILL
PROVIDE A HIGHER COST BASE FOR THE ECONOMIC PRICE ADJUSTMENT CLAUSE IN
CINCINNATI'S CONTRACT RESULTING IN A PRICE INCREASE OF $167,211.40. AS
A RESULT, BRISTOL URGES THE PRICE DIFFERENTIAL IS NOT $1,383 AS THE ARMY
STATES BUT $974,349. THE PROTESTER MAINTAINS THAT THE AGENCY CANNOT
SPEND ALMOST $1 MILLION MORE ON THE CINCINNATI UNITS WITHOUT FIRST
DETERMINING WHETHER DELIVERY COULD BE OBTAINED FROM BRISTOL.
ALTHOUGH THE ARMY AGREES WITH BRISTOL THAT MORE ACCESSORY ITEMS MUST
BE FURNISHED BY THE GOVERNMENT UNDER THE CINCINNATI CONTRACT IT DOES NOT
APPEAR TO AGREE WITH BRISTOL'S CALCULATION OF THE PRICE DIFFERENTIAL AND
IT DISPUTES THE PROTESTER'S POSITION REGARDING THE EFFECT OF THE PENDING
CLAIMS AND PRICE ADJUSTMENT CLAUSE ON THE PRICE COMPARISON.
THE ARMY VIEWS BOTH THE UNSETTLED CLAIMS AND THE ECONOMIC PRICE
ADJUSTMENT AS SPECULATIVE FACTORS WHICH SHOULD NOT BE INCLUDED IN THE
PRICE COMPARISON. THE AGENCY STATES THAT SINCE THE TOTAL AMOUNT OF
CINCINNATI'S CLAIM IS NOT SETTLED IT DID NOT CONSIDER IT APPROPRIATE TO
ALLOCATE THE PROVISIONAL PAYMENTS MADE TO THE OPTION PRICES. FURTHER,
THE AGENCY BELIEVES THAT SINCE BRISTOL'S PENDING CLAIM OF $9,611,496 WAS
NOT FACTORED INTO THE EVALUATION IT ACTED REASONABLY AND CONSISTENTLY IN
NOT SPECULATING AS TO THE OUTCOME OF EITHER CLAIM. THE AGENCY ALSO
POINTS OUT THAT, LIKE THE CINCINNATI CONTRACT, BRISTOL'S CONTRACT
CONTAINS AN ECONOMIC PRICE ADJUSTMENT CLAUSE WHICH WOULD AFFECT ITS UNIT
PRICES IF AN OPTION QUANTITY WERE ORDERED.
WE AGREE WITH THE AGENCY'S DECISION TO EXCLUDE THE UNSETTLED PORTION
OF BOTH CONTRACTOR'S CLAIMS AND POSSIBLE PRICE INCREASES DUE TO THE
PRICE ADJUSTMENT CLAUSES IN EACH CONTRACT BECAUSE OF THEIR SPECULATIVE
NATURE. HOWEVER, THE ADDITIONAL EXPENSE THE AGENCY MUST INCUR BECAUSE
OF THE NEED FOR ACCESSORIES TO COMPLETE THE CINCINNATI UNIT AND THAT
PORTION OF CINCINNATI'S CLAIM THAT HAD BEEN REDUCED TO PROVISIONAL
PAYMENTS AT THE TIME OF EVALUATION DO NOT SEEM TO BE OF SUCH A
SPECULATIVE NATURE. IT WOULD HAVE BEEN APPROPRIATE FOR THE ARMY TO
CALCULATE THESE AMOUNTS AND TO HAVE INCLUDED THEM IN THE PRICE
COMPARISON.
NEVERTHELESS, THE AGENCY INSISTS THAT IT WAS BRISTOL'S INABILITY TO
DELIVER THE UNITS WHEN NEEDED WHICH MOST INFLUENCED ITS CHOICE. BRISTOL
IMPLIES THAT IT MAY BE ABLE TO MEET THE ARMY'S DELIVERY REQUIREMENTS.
THE PROTESTER POINTS OUT THAT THE DELIVERY PROVISIONS IN ITS OPTION
CLAUSE ARE NEGOTIABLE AND INDICATES THAT IT HAS OFFERED TO ACCELERATE
ITS PROGRAM TO MEET THE AGENCY'S NEEDS.
THE AGENCY RECOGNIZES THAT THE OPTION CLAUSE IN BRISTOL'S CONTRACT
CONTAINS THE STANDARD FORM LANGUAGE WHICH PERMITS THE PARTIES TO AGREE
BY MODIFICATION TO A DELIVERY SCHEDULE OTHER THAN THAT SPECIFIED.
HOWEVER, THE ARMY ALSO POINTS OUT THAT IT CANNOT IMPOSE ITS REQUIREMENTS
ON BRISTOL WHILE CINCINNATI IS OBLIGATED BY THE TERMS OF ITS OPTION
CLAUSE TO COMMENCE DELIVERY OF THE OPTION QUANTITY IN AUGUST 1979 AND
COMPLETE DELIVERY BY OCTOBER. SIMILARLY THE ARMY IS UNIMPRESSED WITH
BRISTOL'S OFFER OF ACCELERATION. IT STATES THAT SINCE BRISTOL CONTENDS
IT IS ENTITLED TO A ONE-YEAR EQUITABLE ADJUSTMENT IN ITS DELIVERY
SCHEDULE BECAUSE OF ITS CLAIM, THE ACCELERATION OFFER ONLY BRINGS
BRISTOL TO ITS ORIGINAL APRIL 1981 DELIVERY DATE. IN SHORT, THE AGENCY
COMPARED THE EXISTING DELIVERY SCHEDULES OF BOTH CONTRACTORS AND
DETERMINED THAT ONLY CINCINNATI COULD MEET ITS NEEDS.
WHILE THERE IS NO REGULATORY PROVISION THAT DEALS EXPLICITLY WITH
THIS SITUATION, THE PROVISIONS OF DAR SEC. 1-1505 DO CALL FOR THE AGENCY
TO MAKE A JUDGMENT AS TO WHETHER THE EXERCISE OF A PARTICULAR OPTION IS
THE MOST ADVANTAGEOUS METHOD OF FULFILLING THE GOVERNMENT'S NEEDS, PRICE
AND OTHER FACTORS CONSIDERED. WE HELD IN CONSOLIDATED AIRBORNE SYSTEMS,
INCORPORATED, B-177758, JULY 10, 1974, 74-2 CPD 15, THAT THESE OTHER
FACTORS WHICH SHOULD BE CONSIDERED INCLUDE THE AGENCY'S DELIVERY
REQUIREMENTS. HERE THE AGENCY COMPARED THE PRICES AND EXISTING DELIVERY
SCHEDULES OF BOTH BRISTOL AND CINCINNATI AND DETERMINED THAT ALTHOUGH
BRISTOL OFFERED THE LOWEST PRICE IT COULD NOT MEET THE DELIVERY
REQUIREMENTS.
AS NOTED EARLIER WE DO QUESTION THE AGENCY'S JUDGMENT IN NOT
INCLUDING THE COSTS NEEDED TO COMPLETE THE CINCINNATI UNIT AND THE
PROVISIONAL PAYMENTS MADE ON THE CINCINNATI CLAIM IN THE PRICE
COMPARISON. ALTHOUGH THE AGENCY WAS NOT PRECLUDED FROM ENTERING INTO
DELIVERY NEGOTIATIONS WITH BRISTOL, IN THESE CIRCUMSTANCES WHERE BRISTOL
HAS YET TO DELIVER A UNIT UNDER ITS CONTRACT, AND THE ORIGINAL DELIVERY
SCHEDULE IS ALMOST TWO YEARS BEHIND THAT OF CINCINNATI, THE RECORD IS
SUFFICIENT TO SUPPORT THE AGENCY'S JUDGMENT IN DETERMINING THAT PRICE IS
NOT THE CRITICAL FACTOR AND CONCLUSION THAT CINCINNATI COULD BEST MEET
ITS NEEDS.
THE PROTEST IS DENIED.
B-194077, JUN 7, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. REJECTION OF BIDS BY GRANTEE BECAUSE BIDS RECEIVED WERE EXCESSIVE
WAS PROPER EXERCISE OF ADMINISTRATIVE DISCRETION, REGARDLESS OF FACT
THAT STATE'S ESTIMATE MAY HAVE BEEN LOWER THAN IT SHOULD HAVE BEEN,
SINCE LOW BID AS COMPARED WITH REVISED ESTIMATE SUGGESTED BY COMPLAINANT
WOULD STILL HAVE BEEN CONSIDERED EXCESSIVE.
2. STATUTE REQUIRING CONDITIONS PRECEDENT TO AWARD TO BE SET FORTH
IN THE ADVERTISED SPECIFICATIONS DOES NOT PRECLUDE CANCELLATION OF A
SOLICITATION FOR VALID REASONS.
CONCRETE CONSTRUCTION COMPANY:
CONCRETE CONSTRUCTION COMPANY (CCC) HAS FILED A COMPLAINT CONCERNING
THE DETERMINATION THAT BIDS RECEIVED BY THE OHIO DEPARTMENT OF
TRANSPORTATION (ODOT) UNDER PROJECT NO. I-75-1(100)04 ARE TOO HIGH AND
THE DETERMINATION TO REJECT ALL BIDS. THE SOLICITATION WAS FOR HIGHWAY
IMPROVEMENT WORK PURSUANT TO A GRANT FOR APPROXIMATELY 90 PERCENT OF THE
COST OF THE PROJECT BY THE FEDERAL HIGHWAY ADMINISTRATION (FHWA). OUR
REVIEW IS UNDERTAKEN PURSUANT TO OUR NOTICE ENTITLED "REVIEW OF
COMPLAINTS CONCERNING CONTRACTS UNDER FEDERAL GRANTS," 40 FED. REG.
42406 (1975). CONSISTENT WITH THE STATUTORY OBLIGATION OF THIS OFFICE
TO INVESTIGATE THE RECEIPT, DISBURSEMENT, AND APPLICATION OF PUBLIC
FUNDS, WE CONSIDER COMPLAINTS CONCERNING CONTRACTS AWARDED UNDER FEDERAL
GRANTS.
THE FOLLOWING FOUR BIDS WERE RECEIVED BY THE GRANTEE:
CONCRETE CONSTRUCTION COMPANY $13,470,696.29
FOLEY CONSTRUCTION COMPANY 13,625,447.70
JOHN R. JURGENSEN COMPANY 13,697,193.22
THE SHELL COMPANY 15,431,644.91
THE GRANTEE'S ESTIMATE WAS $11,555,000.
UPON OBTAINING THE CONCURRENCE OF THE FHWA DIVISION ADMINISTRATOR
(REQUIRED BY 23 C.F.R. SEC. 635.111(E) (1978)), THE GRANTEE REJECTED ALL
BIDS AS BEING EXCESSIVE ON THE BASIS THAT THE LOW BID (SUBMITTED BY THE
COMPLAINANT) EXCEEDED THE STATE'S ESTIMATE BY 20.759 PERCENT. THE
COMPLAINANT CONTENDS THAT THE REJECTION OF ALL BIDS VIOLATES THE FEDERAL
AID HIGHWAY ACT, AS AMENDED, 23 U.S.C. SEC. 112(B) (1976), WAS ARBITRARY
AND CAPRICIOUS AND CONTRAVENES FUNDAMENTAL PRINCIPLES OF FEDERAL
PROCUREMENT LAW.
THE COMPLAINANT ARGUES THAT THE REJECTION OF BIDS WAS DUE TO AN FHWA
NOTICE ENTITLED "COMBATING INFLATION IN HIGHWAY CONSTRUCTION COSTS,"
WHICH STATED THAT:
"WHERE A LOW BID EXCEEDS THE ENGINEER'S ESTIMATE BY MORE THAN 7
PERCENT, BIDS SHOULD BE REJECTED UNLESS AN AWARD OF CONTRACT IS
JUSTIFIED AS AN EXCEPTION. EXCEPTIONS MAY BE JUSTIFIED *** WHERE THE
ENGINEER'S ESTIMATE IS CLEARLY UNREALISTICALLY LOW."
THE COMPLAINANT SUBMITS EVIDENCE THAT THE ENGINEER'S ESTIMATE WAS AT
LEAST $1,000,000 TOO LOW, THAT THE GRANTEE KNEW THE ESTIMATE WAS TOO
LOW, AND THAT CANCELING THE INVITATION WAS ARBITRARY IN LIGHT OF FHWA'S
NOTICE. THE COMPLAINANT, REFERRING TO OUR DECISIONS HOLDING THAT WHERE
BIDS SUBSTANTIALLY EXCEED THE GOVERNMENT ESTIMATE, THE CONTRACTING
AGENCY SHOULD REVIEW THE ESTIMATE, SEE, E.G., LEO JOURNIGAN CONSTRUCTION
CO., INC., B-192644, JANUARY 29, 1979, 79-1 CPD 59, ALSO OBJECTS TO THE
GRANTEE'S FAILURE TO MAKE A FORMAL REVIEW OF THE ESTIMATE. FINALLY, THE
COMPLAINANT BELIEVES THAT THE GRANTEE'S FAILURE TO APPRISE PROSPECTIVE
BIDDERS OF THE 7 PERCENT LIMITATION VIOLATED THE FEDERAL-AID HIGHWAY ACT
BECAUSE IT VIEWS THE LIMITATION AS A CONDITION PRECEDENT TO THE AWARD OF
A CONTRACT WHICH CONDITION WAS REQUIRED TO BE SET FORTH IN THE
ADVERTISED SPECIFICATIONS. IN THIS REGARD, THE ACT STATES:
"SEC. 112. LETTING OF CONTRACTS
(B) *** NO REQUIREMENT OR OBLIGATION SHALL BE IMPOSED AS A CONDITION
PRECEDENT TO THE AWARD OF A CONTRACT TO (THE LOWEST RESPONSIBLE) BIDDER
FOR A PROJECT, OR TO THE SECRETARY'S CONCURRENCE IN THE AWARD OF A
CONTRACT TO SUCH BIDDER, UNLESS SUCH REQUIREMENT OR OBLIGATION IS
OTHERWISE LAWFUL AND IS SPECIFICALLY SET FORTH IN THE ADVERTISED
SPECIFICATIONS."
AS EXPLAINED BELOW, WE BELIEVE THE GRANTEE COULD HAVE CANCELED THE
SOLICITATION BECAUSE OF EXCESSIVELY HIGH BID PRICES WITHOUT RELYING ON
THE FHWA NOTICE AND THAT IN ANY EVENT THE ABOVE QUOTED PROVISION OF THE
ACT DOES NOT PRECLUDE CANCELLATION OF A SOLICITATION FOR OTHERWISE
LAWFUL REASONS.
THE PROVISION IN 23 U.S.C. 112(B) REGARDING CONDITIONS PRECEDENT TO
THE AWARD OF CONTRACTS WOULD APPLY WHERE AN AWARD IS TO BE MADE UNDER A
SOLICITATION WHICH DOES NOT CONTAIN A DESIRED REQUIREMENT OR OBLIGATION.
THE PROVISION NEITHER REQUIRES THE LETTING OF CONTRACTS NOR PRECLUDES
CANCELLATION AND RESOLICITATION OF A PROCUREMENT IN ORDER TO INCLUDE A
REQUIREMENT WHICH WAS NOT PROVIDED FOR. THUS, WE THINK THE PROVISION
DOES NOT APPLY WHERE, UNDER THE FEDERAL NORM, A SOLICITATION IS CANCELED
FOR VALID REASONS.
FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH APPLY ONLY TO DIRECT
PROCUREMENT BY FEDERAL AGENCIES, DO NOT APPLY PER SE TO PROCUREMENT BY
GRANTEES. SEE LAMETTI & SONS, INC., 55 COMP. GEN. 413 (1975), 75-2 CPD
265. WE HAVE HELD, HOWEVER, THAT THE GRANTEE MUST COMPLY WITH THOSE
PRINCIPLES OF PROCUREMENT LAW WHICH GO TO THE ESSENCE OF THE COMPETITIVE
BIDDING SYSTEM. ILLINOIS EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS FOR
PUBLIC CONTRACTS, 54 COMP. GEN. 6, 9 (1974), 74-2 CPD 1.
WE HAVE FURTHER EXPLAINED:
"OBVIOUSLY, IT IS DIFFICULT TO DETAIL ALL THAT IS 'FUNDAMENTAL' TO
THE FEDERAL SYSTEM OF COMPETITIVE BIDDING. HOWEVER, BASIC FEDERAL
PRINCIPLES OF COMPETITIVE BIDDING ARE INTENDED TO PRODUCE RATIONAL
DECISIONS AND FAIR TREATMENT. TO THE EXTENT, THEREFORE, THAT A
GRANTEE'S PROCUREMENT DECISION (AND THE CONCURRENCE IN THAT DECISION BY
THE GRANTOR AGENCY) IS NOT RATIONALLY FOUNDED, IT MAY BE CONSIDERED AS
CONFLICTING WITH A FUNDAMENTAL FEDERAL NORM. THE DECISION WILL, IN ALL
LIKELIHOOD, ALSO BE CONSIDERED INCONSISTENT WITH FUNDAMENTAL CONCEPTS
INHERENT IN ANY SYSTEM OF COMPETITIVE BIDDING." COPELAND SYSTEMS, INC.,
55 COMP. GEN. 390 (1975), 75-2 CPD 237.
A PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM IS THAT A FORMALLY
ADVERTISED SOLICITATION SHOULD NOT BE CANCELED AFTER BID OPENING ABSENT
A "COGENT AND COMPELLING REASON." THE MASSMAN CONSTRUCTION CO. V. UNITED
STATES, 102 CT. CL. 699 (1945). THIS IS BECAUSE THE REJECTION OF BIDS
AFTER BIDS ARE EXPOSED AND MANPOWER AND MONEY IS EXPENDED IN PREPARING
BIDS WITHOUT THE POSSIBILITY OF AWARD TENDS TO DISCOURAGE COMPETITION.
52 COMP. GEN. 285 (1972). NEVERTHELESS, A CONTRACTING AGENCY HAS BROAD
DISCRETION TO REJECT ALL BIDS AND WE DO NOT QUESTION THIS DETERMINATION
UNLESS THE DECISION IS UNREASONABLE. HERCULES DEMOLITION CORPORATION,
B-186411, AUGUST 18, 1976, 76-2 CPD 173.
WHEN THE LOW BID PRICE IS GREATER THAN WHAT THE GOVERNMENT BELIEVES
IT SHOULD PAY FOR SUPPLIES OR SERVICES, REJECTION OF ALL BIDS IS A
PROPER EXERCISE OF ADMINISTRATIVE DISCRETION. THIS CONFORMS WITH THE
DUTY OF ADMINISTRATIVE OFFICIALS TO ACT IN THE BEST INTEREST OF THE
GOVERNMENT. 36 COMP. GEN. 364 (1956). THUS, WE FIND NO ABUSE OF
DISCRETION BY THE GRANTEE IN REJECTING THE BIDS WHERE IT REASONABLY
BELIEVES THE LOW RESPONSIVE BID PRICE IS EXCESSIVE. FURTHERMORE, THE
RECORD INDICATES THAT THE GRANTEE DID INFORMALLY REVIEW ITS ESTIMATE
IMMEDIATELY AFTER BID OPENING AND DISCOVERED THAT SEVERAL ITEMS APPEARED
TO BE TOO LOW. NOTWITHSTANDING THE ERRORS, HOWEVER, WE OBSERVE THAT THE
LOW BID PRICE WOULD STILL BE APPROXIMATELY 10 PERCENT GREATER THAN THE
ESTIMATE REVISED UPWARDS BY THE MINIMUM AMOUNT SUBMITTED IN EVIDENCE BY
THE COMPLAINANT. WE HAVE UPHELD THE REJECTION OF BIDS WHERE THE LOWEST
ELIGIBLE BID EXCEEDED THE GOVERNMENT ESTIMATE BY AS LITTLE AS 7.2
PERCENT, BUILDING MAINTENANCE SPECIALISTS, INC., B-186441, SEPTEMBER 10,
1976, 76-2 CPD 233, AND WE SEE NO BASIS TO OBJECT TO THE INFORMAL REVIEW
OF THE ESTIMATE IN A LESS THAN PUNCTILIOUS MANNER. C.J. COAKLEY
COMPANY, INC., B-181057, JULY 23, 1974, 74-2 CPD 51. CONSEQUENTLY, WE
BELIEVE THAT WHILE THE GRANTEE'S ESTIMATE MAY HAVE BEEN SOMEWHAT LOWER
THAN IT SHOULD HAVE BEEN, THE DECISION TO CANCEL BECAUSE OF THE HIGH BID
PRICE IS RATIONALLY FOUNDED. SEE COPELAND SYSTEMS, INC., SUPRA.
FINALLY, THE COMPLAINANT ARGUES THAT RESOLICITATION IN THIS CASE
WOULD RUN COUNTER TO FHWA'S OWN LONGSTANDING POLICY AGAINST
READVERTISEMENT OF FEDERAL-AID PROJECTS ABSENT SIGNIFICANT CHANGES OR
ADDITIONS OF CONTRACT PROVISIONS THAT WOULD RESULT IN CHANGING THE
COMPETITIVE NATURE OF THE PROJECT. THE RECORD INDICATES THAT THE
GRANTEE EXPRESSED INTENTION TO "STUDY THE SITUATION IN DETAIL AND
POSSIBLY TAKE STEPS TO RESOLVE PROBLEMS OR IMPROVE THE PROJECTS TO
REDUCE COSTS (AND) *** CLARIFY CONTRACT PROVISIONS." THUS, THE POLICY
STATED ABOVE MAY IN FACT BE FOLLOWED IN THIS CASE. IN ANY EVENT, WE
BELIEVE THE NEW ANTI-INFLATION POLICY ANNOUNCED IN THE FHWA NOTICE
AMPLIFIES ANY PRIOR POLICY CONCERNING READVERTISEMENT OF FEDERAL-AID
PROJECTS.
THE COMPLAINT IS DENIED.
B-164497(3), JUN 6, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
GREAT RIVER ROAD STATUTE (23 U.S.C. SEC. 148) AUTHORIZES
APPROPRIATIONS OUT OF (1) HIGHWAY TRUST FUND AND (2) GENERAL FUND OF
TREASURY. FUNDING OF FEDERALLY-AIDED HIGHWAY PROJECTS IN TITLE I OF 23
U.S.C. IS BY CONTRACT AUTHORITY; SEE SECTIONS 118 AND 106(A). NO
REASON APPEARS TO TREAT SECTION 148 DIFFERENTLY FROM OTHER AUTHORITY IN
TITLE I. MOREOVER, CONGRESS AND EXECUTIVE HAVE IN DIFFERENT CONTEXTS
IDENTIFIED TRUST FUND PORTION OF SECTION 148 AS CONTRACT AUTHORITY. GAO
AGREES THAT TRUST FUND PORTION OF SECTION 148 RESULTS IN CONTRACT
AUTHORITY; GENERAL FUND PORTION REQUIRES ANNUAL APPROPRIATION BEFORE
AVAILABILITY.
GREAT RIVER ROAD - CONTRACT AUTHORITY:
JOHN S. HASSELL, JR., DEPUTY ADMINISTRATOR, FEDERAL HIGHWAY
ADMINISTRATION (FHWA), DEPARTMENT OF TRANSPORTATION, HAS ASKED WHETHER
SECTION 148 OF TITLE 23, UNITED STATES CODE, "DEVELOPMENT OF A NATIONAL
SCENIC AND RECREATIONAL HIGHWAY," PROVIDES CONTRACT AUTHORITY WITH
RESPECT TO THOSE FUNDS DERIVED FROM THE HIGHWAY TRUST FUND.
THE DEPUTY ADMINISTRATOR EXPLAINS THAT -
"SECTION 148 OF TITLE 23, U.S.C., PROVIDES FOR THE DEVELOPMENT AND
CONSTRUCTION OF THE GREAT RIVER ROAD. THE SECTION PROVIDES FOR SPLIT
FUNDING. IT HAS BEEN THE CONSISTENT POSITION OF THE DEPARTMENT OF
TRANSPORTATION THAT THE PORTIONS OF THE GREAT RIVER ROAD WHICH ARE
FINANCED OUT OF THE HIGHWAY TRUST FUND ARE DONE SO UNDER THE TERMS OF
CONTRACT AUTHORITY WHILE THOSE PORTIONS FINANCED FROM THE GENERAL FUND
OF THE TREASURY ARE CONSIDERED TO BE AVAILABLE CONSISTENT WITH ANNUAL
BUDGET AUTHORITY, I.E., REQUIRING AN APPROPRIATIONS ACT BEFORE BEING
AVAILABLE FOR COMMITMENT AND EXPENDITURE.
"THE SPECIFIC AUTHORITY FOR CONSIDERING SECTION 148 OF TITLE 23,
U.S.C., AS CONVEYING CONTRACT AUTHORITY IN THIS INSTANCE RESTS UPON THE
SECTION'S INCLUSION IN CHAPTER 1 OF THAT TITLE. SECTION 118(A) OF TITLE
23, U.S.C., CLEARLY STATES THAT, 'ON AND AFTER THE DATE THAT THE
SECRETARY HAS CERTIFIED TO EACH STATE HIGHWAY DEPARTMENT THE SUMS
APPORTIONED TO EACH FEDERAL-AID SYSTEM OR PART THEREOF PURSUANT TO AN
AUTHORIZATION UNDER THIS TITLE, OR UNDER PRIOR ACTS, SUCH SUMS SHALL BE
AVAILABLE FOR EXPENDITURE UNDER THE PROVISIONS OF THIS TITLE.'
"SECTION 106(A) OF TITLE 23, U.S.C., FURTHER MAKES IT CLEAR THAT,
'THE SECRETARY SHALL ACT UPON SUCH SURVEYS, PLANS, SPECIFICATIONS, AND
ESTIMATES AS SOON AS PRACTCABLE AFTER THE SAME HAVE BEEN SUBMITTED, AND
HIS APPROVAL OF ANY SUCH PROJECT (INCLUDING PROJECTS PURSUANT TO SECTION
148) SHALL BE DEEMED A CONTRACTUAL OBLIGATION OF THE FEDERAL GOVERNMENT
FOR THE PAYMENT OF ITS PROPORTIONAL CONTRIBUTION THERETO.'
"THESE PROVISIONS READ TOGETHER PROVIDE THE BASIS FOR, AND DEFINE,
CONTRACT AUTHORITY FOR THE PURPOSES OF FEDERAL-AID HIGHWAY PROGRAMS.
THIS INTERPRETATION IS CONSISTENT WITH THE PROVISIONS OF THE BUDGET
CONTROL ACT OF 1974, 31 U.S.C. 1351, PUB. L. 93-344, 88 STAT. 317.
SECTION 1351(D)(1)(B) OF TITLE 31, U.S.C., PROVIDES AN EXCEPTION TO THIS
ACT'S GENERAL PROHIBITION OF 'BACKDOOR SPENDING' IN THE CASE OF OUTLAYS
FROM CERTAIN TRUST FUNDS. THE HIGHWAY TRUST FUND MEETS THE TEST SET
FORTH IN THIS SUBSECTION. IT IS THE OPERATION OF THE BUDGET CONTROL ACT
OF 1974 WHICH PRECLUDES THE EXISTENCE OF CONTRACT AUTHORITY WITH RESPECT
TO THOSE FUNDS AUTHORIZED FOR THE GREAT RIVER ROAD OUT OF THE GENERAL
FUND OF THE TREASURY.
"THIS LONG-STANDING INTERPRETATION BY THIS DEPARTMENT HAS BEEN MOST
RECENTLY RECOGNIZED AND ACKNOWLEDGED BY THE CONGRESS IN THE DEPARTMENT
OF TRANSPORTATION AND RELATED AGENCIES APPROPRIATION ACT OF 1979, PUB.
L. 95-335, 95 STAT. 435, AUG. 4, 1978. TITLE I OF THIS ACT PROVIDES
CERTAIN APPROPRIATIONS EXPRESSLY FOR THE 'NATIONAL SCENIC AND
RECREATIONAL HIGHWAY (LIQUIDATION OF CONTRACT AUTHORIZATION).'
"THEREFORE, AS STATED ABOVE, IT HAS BEEN, AND IS, OUR POSITION THAT
CONTRACT AUTHORITY EXISTS WITH REGARD TO THE GREAT RIVER ROAD INSOFAR AS
FUNDS DERIVED FROM THE HIGHWAY TRUST FUND FOR THIS PURPOSE ARE
CONCERNED."
THE FEDERAL-AID HIGHWAY ACT OF 1973 (PUB. L. NO. 93-87, TITLE I,
SECTION 129(B), AUGUST 13, 1973, 87 STAT. 265) SPECIFICALLY AMENDED
CHAPTER 1 OF TITLE 23 OF THE UNITED STATES CODE, BY INSERTING AT THE END
THEREOF THE NEW SECTION 148, "DEVELOPMENT OF A NATIONAL SCENIC AND
RECREATIONAL HIGHWAY." SECTION 148 AUTHORIZES THE LOCATION AND
CONSTRUCTION AND RECONSTRUCTION OF THE GREAT RIVER ROAD BY THE 10 STATES
BORDERING THE MISSISSIPPI RIVER. WITH REGARD TO FUNDING, SUBSECTION (G)
OF 23 U.S.C. SEC. 148 (1976) PROVIDES AS FOLLOWS:
"(G) THERE IS AUTHORIZED TO BE APPROPRIATED TO CARRY OUT THIS
SECTION, OUT OF THE HIGHWAY TRUST FUND, FOR CONSTRUCTION OR
RECONSTRUCTION OF ROADS ON A FEDERAL-AID HIGHWAY SYSTEM, NOT TO EXCEED
$10,000,000 FOR THE FISCAL YEAR ENDING JUNE 30, 1974, $25,000,000 FOR
THE FISCAL YEAR ENDING JUNE 30, 1975, AND $25,000,000 FOR THE FISCAL
YEAR ENDING JUNE 30, 1976, FOR ALLOCATIONS TO THE STATES PURSUANT TO
THIS SECTION, AND THERE IS AUTHORIZED TO BE APPROPRIATED TO CARRY OUT
THIS SECTION OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE
APPROPRIATED, NOT TO EXCEED $10,000,000 FOR EACH OF THE FISCAL YEARS
ENDING JUNE 30, 1974, JUNE 30, 1975, AND JUNE 30, 1976, FOR CONSTRUCTION
AND RECONSTRUCTION OF ROADS NOT ON A FEDERAL-AID HIGHWAY SYSTEM."
WE FIND NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF 23 U.S.C.
SEC. 148 OR IN CHAPTER 1 OF TITLE 23 GENERALLY THAT WOULD SUPPORT A
FINDING OF CONGRESSIONAL INTENT TO DISTINGUISH THE GREAT RIVER ROAD FROM
OTHER PROJECTS IN THE FEDERAL-AID HIGHWAY PROGRAM BY EXCLUDING THE GREAT
RIVER ROAD PROJECT FROM THE FUNDING MECHANISM OF THE FEDERAL-AID HIGHWAY
PROGRAM AS SET FORTH IN CHAPTER 1. THAT MECHANISM IS, GENERALLY, THAT
THE CONGRESS AUTHORIZES FUNDS TO CARRY OUT PROGRAMS IN TITLE 23.
TYPICALLY, THESE AUTHORIZATIONS ARE COUCHED IN TERMS ESSENTIALLY SIMILAR
TO THOSE USED IN 23 U.S.C. SEC. 148(G), SUPRA; THAT IS, THEY AUTHORIZE
APPROPRIATIONS "OUT OF THE HIGHWAY TRUST FUND." SEE, E.G., SECTION
104(A), PUB. L. NO. 92-87, 87 STAT. 251. THE AUTHORIZATIONS ARE
APPORTIONED AMONG THE STATES. 23 U.S.C. SEC. 104. THEN, AS THE DEPUTY
ADMINISTRATOR POINTS OUT, THE SUMS APPORTIONED BECOME "AVAILABLE FOR
EXPENDITURE UNDER THE PROVISIONS OF (CHAPTER 1 OF TITLE 23)." 23 U.S.C.
SEC. 118.
MORE SPECIFICALLY, THE STATES SUBMIT PROGRAMS FOR CONSTRUCTION AFTER
THE APPORTIONMENT OF AUTHORIZATIONS. 23 U.S.C. SEC. 105. ONCE IT HAS
AN APPROVED PROGRAM, A STATE MAY SUBMIT INDIVIDUAL PROJECTS. APPROVAL
BY FHWA OF A PROJECT "SHALL BE DEEMED A CONTRACTUAL OBLIGATION OF THE
FEDERAL GOVERNMENT ***." 23 U.S.C. SEC. 106(A). FHWA MAY THEN MAKE
PAYMENTS TO THE STATES FOR THE FEDERAL SHARE OF CONSTRUCTION COSTS OF
APPROVED PROJECTS. 23 U.S.C. SEC. 121. THESE PAYMENTS ARE MADE FROM
LIQUIDATING APPROPRIATIONS, PURSUANT TO THE AUTHORIZATIONS, TO MEET THE
GOVERNMENT'S CONTRACTUAL OBLIGATION. WE SEE NO REASON TO TREAT THE
AUTHORIZATION IN SECTION 148(G) OF APPROPRIATIONS FROM THE HIGHWAY TRUST
FUND ANY DIFFERENTLY FROM THOSE UNDER OTHER PORTIONS OF CHAPTER 1 OF
TITLE 23. (SECTION 148(G) ALSO CONTAINS AN AUTHORIZATION OF
APPROPRIATIONS FROM THE GENERAL FUND OF THE TREASURY WHICH, FHWA AGREES,
REQUIRES AN APPROPRIATION BEFORE BEING AVAILABLE FOR OBLIGATION AND
EXPENDITURE.)
ACTIONS BY THE EXECUTIVE BRANCH AND CONGRESS HAVE BEEN CONSISTENT
WITH THIS VIEW. SECTION 1012 OF THE IMPOUNDMENT CONTROL ACT OF 1974
(PUB. L. NO. 93-344, JULY 12, 1974, 88 STAT. 332), REQUIRES A SPECIAL
MESSAGE FROM THE PRESIDENT TO THE CONGRESS REPORTING ANY PROPOSED
RESCISSION OF BUDGET AUTHORITY. IN JULY 1975, THE PRESIDENT TRANSMITTED
RESCISSION PROPOSAL NO. R 76-1 TO THE CONGRESS. THE PROPOSED RESCISSION
TARGETED THE NATIONAL SCENIC AND RECREATIONAL HIGHWAY AUTHORIZATION
PROVIDED UNDER SECTION 148 OF TITLE 23 OF THE UNITED STATES CODE, AND
SPECIFICALLY INDENTIFIED THE TYPE OF BUDGET AUTHORITY INVOLVED AS
"CONTRACT AUTHORITY." HOUSE DOCUMENT NO. 94-206, 94TH CONG., 1ST SESS.
16.
MOREOVER, AS THE DEPUTY ADMINISTRATOR POINTS OUT, THE DEPARTMENT OF
TRANSPORTATION AND RELATED AGENCIES APPROPRIATION ACT OF 1979 (PUB. L.
NO. 95-335, AUGUST 4, 1978, 92 STAT. 435) PROVIDES, UNDER THE RUBRIC
"NATIONAL SCENIC AND RECREATIONAL HIGHWAY (LIQUIDATION OF CONTRACT
AUTHORIZATION)," FOR PAYMENT OF OBLIGATIONS INCURRED IN CARRYING OUT THE
PROVISIONS OF 23 U.S.C. SEC. 148, "TO REMAIN AVAILABLE UNTIL EXPENDED,
$19,000,000, OF WHICH $13,000,000 SHALL BE DERIVED FROM THE HIGHWAY
TRUST FUND." ALSO, THE BUDGET OF THE UNITED STATES GOVERNMENT, APPENDIX,
FISCAL YEAR 1980, AT PAGE 715, SPECIFICALLY SETS OUT IN THE PROGRAM AND
FINANCING DESCRIPTION OF THE NATIONAL SCENIC AND RECREATIONAL HIGHWAY
ACCOUNT THE "STATUS OF UNFUNDED CONTRACT AUTHORITY," PROVIDING FIGURES
AND ESTIMATES ON THE UNFUNDED BALANCE AT THE START OF THE YEAR, AND
SUBSEQUENT APPROPRIATIONS TO LIQUIDATE CONTRACT AUTHORITY.
THEREFORE, WE CONCUR IN THE DETERMINATION THAT SECTION 148 OF TITLE
23, UNITED STATES CODE, "DEVELOPMENT OF A NATIONAL SCENIC AND
RECREATIONAL HIGHWAY," WHEN READ TOGETHER WITH SECTIONS 106 AND 118 OF
THAT TITLE, PROVIDES CONTRACT AUTHORITY WITH RESPECT TO THOSE FUNDS
DERIVED FROM THE HIGHWAY TRUST FUND.
B-192949, JUN 6, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. ARMY MEMBER WHO WAS TRANSFERRED FROM DHAHRAN, SAUDI ARABIA, TO
FORT DIX, NEW JERSEY, UNDER PERMANENT CHANGE-OF-STATION ORDERS FOR
PURPOSES OF RETIREMENT SEPARATION PROCESSING, AND WHO THEN TRAVELED ON
TO HIS HOME OF SELECTION FOR RETIREMENT IN ATHENS, GREECE, IS ENTITLED
TO TRAVEL ALLOWANCES FOR ALL PERSONAL TRAVEL PERFORMED. HOWEVER, SINCE
HIS TRAVEL FROM THE UNITED STATES TO GREECE WAS AT PERSONAL EXPENSE VIA
COMMERCIAL AIRLINE, AND IT IS NOT INDICATED THAT GOVERNMENT
TRANSPORTATION WAS UNAVAILABLE, HIS REIMBURSEMENT FOR THAT TRAVEL IS
LIMITED TO THE COST FOR MILITARY AIRLIFT ESTABLISHED BY REGULATION.
2. THERE IS NO AUTHORITY FOR A DEPENDENT TO ACCOMPANY A SERVICE
MEMBER AT GOVERNMENT EXPENSE TO THE MEMBER'S LAST DUTY STATION UNDER HIS
PERMANENT CHANGE-OF-STATION ORDERS, WHERE THE SOLE PURPOSE OF THE
MEMBER'S TRANSFER IS RETIREMENT PROCESSING AND HE HAS NO INTENTION OF
ESTABLISHING A PERMANENT HOME AT OR NEAR THE LAST DUTY STATION, SINCE A
MEMBER IS NOT ENTITLED TO HAVE HIS DEPENDENTS ACCOMPANY HIM AT
GOVERNMENT EXPENSE ON A TEMPORARY ASSIGNMENT FOR PERSONAL CONVENIENCE TO
A PLACE WHERE THEY DO NOT INTEND TO ESTABLISH A PERMANENT HOME.
3. ARMY MEMBER WHO TRAVELED FROM HIS PERMANENT DUTY STATION AT
DHAHRAN, SAUDI ARABIA, TO FORT DIX, NEW JERSEY FOR PURPOSES OF
SEPARATION PROCESSING AND THEN TO HIS HOME OF SELECTION ON RETIREMENT AT
ATHENS, GREECE, IS NOT ENTITLED TO ALLOWANCES FOR HIS DEPENDENTS' TRAVEL
FROM DHAHRAN TO FORT DIX OR FROM FORT DIX TO ATHENS, SINCE HE WAS NOT
ENTITLED TO THE CONCURRENT TRAVEL OF HIS DEPENDENTS ON HIS TEMPORARY
ASSIGNMENT AT FORT DIX. HENCE, REIMBURSEMENT FOR HIS DEPENDENTS' TRAVEL
TO THE HOME OF SELECTION IS LIMITED TO THE COST OF GOVERNMENT
TRANSPORTATION DIRECTLY FROM DHAHRAN TO ATHENS.
LIEUTENANT COLONEL JAMES Z. METALIOS USA, RETIRED:
LIEUTENANT COLONEL JAMES Z. METALIOS, USA, RETIRED, HAS REQUESTED
RECONSIDERATION OF OUR CLAIMS DIVISION'S JUNE 27, 1978 SETTLEMENT WHICH
DISALLOWED HIS CLAIM FOR ADDITIONAL AMOUNTS FOR HIS PERSONAL AND
DEPENDENTS' TRAVEL INCIDENT TO HIS RETIREMENT FROM THE ARMY IN JANUARY
1977 AND INSTEAD FOUND HIM TO HAVE BEEN OVERPAID. IN VIEW OF THE
APPLICABLE PROVISIONS OF LAW AND REGULATIONS WE SUSTAIN THE CLAIMS
DIVISION'S SETTLEMENT.
IN DECEMBER 1976 COLONEL METALIOS SUBMITTED A REQUEST FOR VOLUNTARY
RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 3911 (1976), ON THE BASIS
OF HIS HAVING COMPLETED MORE THAN 20 YEARS OF CREDITABLE ACTIVE MILITARY
SERVICE. AT THAT TIME HE WAS SERVING ON ACTIVE DUTY WITH THE ARMY CORPS
OF ENGINEERS. HIS PERMANENT DUTY STATION WAS DHAHRAN, SAUDI ARABIA, AND
HE WAS ACCOMPANIED AT DHAHRAN BY HIS WIFE AND THEIR 2 CHILDREN.
PURSUANT TO THIS REQUEST A SPECIAL ORDER DATED JANUARY 7, 1977, WAS
ISSUED ANNOUNCING COLONEL METALIOS'S PLACEMENT ON THE RETIRED LIST
EFFECTIVE JANUARY 31, 1977, WITH FORT DIX, NEW JERSEY, NAMED AS THE
AUTHORIZED PLACE OF RETIREMENT. THEREAFTER, BY A SPECIAL ORDER DATED
JANUARY 9, 1977, ISSUED BY HEADQUARTERS, MIDDLE EAST DIVISION, CORPS OF
ENGINEERS, COLONEL METALIOS WAS DIRECTED TO PROCEED ON A PERMANENT
CHANGE OF STATION (PCS) TO FORT DIX FOR THE PURPOSE OF SEPARATION
PROCESSING, WITH A REPORTING DATE OF JANUARY 25, 1977. CONCURRENT
TRAVEL OF HIS DEPENDENTS WAS PURPORTEDLY AUTHORIZED UNDER ADDITIONAL
REMARKS CONTAINED IN THE PCS ORDER.
IN ACCORDANCE WITH THESE ORDERS, COLONEL METALIOS WAS PROVIDED WITH
GOVERNMENT TRANSPORTATION REQUESTS (TR'S) FOR HIS TRAVEL AND THE TRAVEL
OF HIS 3 DEPENDENTS VIA COMMERCIAL AIRLINE FROM SAUDI ARABIA TO FORT
DIX. THE COST TO THE GOVERNMENT OF THE TR'S WAS $474.90 EACH. HE THEN
TRAVELED WITH HIS FAMILY FROM SAUDI ARABIA TO FORT DIX, WHERE HE
COMPLETED HIS SEPARATION PROCESSING.
IMMEDIATELY UPON HIS RETIREMENT, IT APPEARS THAT COLONEL METALIOS
REQUESTED AND WAS ISSUED TRAVEL ORDERS BY HEADQUARTERS, UNITED STATES
MILITARY ACADEMY, WEST POINT, NEW YORK, WHICH PURPORTED TO PROVIDE
ENTITLEMENT TO FURTHER TRAVEL AT GOVERNMENT EXPENSE FOR HIMSELF AND HIS
DEPENDENTS FROM NEW YORK CITY TO HIS HOME OF SELECTION UPON RETIREMENT:
ATHENS, GREECE. THOSE ORDERS WERE DATED FEBRUARY 1, 1977. THEY
AUTHORIZED BUT DID NOT DIRECT THE USE OF GOVERNMENT TRANSPORTATION.
ON FEBRUARY 2, 1977, COLONEL METALIOS PURCHASED 4 ONE-WAY TRANS WORLD
AIRLINE TICKETS AT A PERSONAL COST OF $492 EACH, FOR HIS FAMILY'S TRAVEL
FROM NEW YORK CITY TO ATHENS. IT IS NOT INDICATED THAT HE FIRST
ATTEMPTED TO SECURE GOVERNMENT TRANSPORTATION OR THAT GOVERNMENT
TRANSPORTATION WAS UNAVAILABLE. THE FAMILY DEPARTED THE UNITED STATES
ON FEBRUARY 20 AND ARRIVED AT ATHENS ON FEBRUARY 21, 1977.
IN A TRAVEL VOUCHER DATED FEBRUARY 25, 1977, SUBMITTED TO ARMY
AUTHORITIES, COLONEL METALIOS CLAIMED REIMBURSEMENT IN THE AMOUNT OF
$1,988, REPRESENTING THE COST TO HIM OF THE 4 AIRLINE TICKETS FOR TRAVEL
FROM NEW YORK CITY TO ATHENS, PLUS AN ADDITIONAL $20 FOR GROUND
TRANSPORTATION AND BAGGAGE HANDLING EXPENSES. PAYMENT WAS NOT MADE ON
THE VOUCHER; INSTEAD, THE ARMY FINANCE AND ACCOUNTING CENTER FORWARDED
THE MATTER TO THE CLAIMS DIVISION OF THIS OFFICE AS A DOUBTFUL CLAIM.
IN ITS SETTLEMENT OF JUNE 27, 1978, OUR CLAIMS DIVISION DETERMINED
THAT COLONEL METALIOS HAD BEEN PERSONALLY ENTITLED TO GOVERNMENT
TRANSPORTATION FROM SAUDI ARABIA TO FORT DIX FOR THE PURPOSE OF
SEPARATION PROCESSING, AND TO FURTHER GOVERNMENT TRANSPORTATION FROM
FORT DIX TO ATHENS, HIS HOME OF SELECTION UPON RETIREMENT. HIS
ENTITLEMENT FOR REIMBURSEMENT FOR TRAVEL FROM FORT DIX TO ATHENS WAS
COMPUTED TO BE IN THE AMOUNT OF $239, THE COST TO THE GOVERNMENT OF
MILITARY TRANSPORTATION BETWEEN THOSE 2 POINTS.
IN THE SETTLEMENT, IT WAS FURTHER DETERMINED THAT HE HAD NOT BEEN
ENTITLED TO HAVE HIS WIFE AND CHILDREN TRANSPORTED AT GOVERNMENT EXPENSE
FROM SAUDI ARABIA TO FORT DIX AND THEN TO ATHENS. RATHER, IT WAS
DETERMINED THAT HIS ENTITLEMENT TO DEPENDENT TRAVEL WAS DIRECTLY FROM
SAUDI ARABIA TO ATHENS ONLY, AT A COST TO THE GOVERNMENT OF $83 FOR EACH
DEPENDENT, OR A TOTAL OF $249. SINCE THE GOVERNMENT-PROVIDED TR'S FOR
THE 3 DEPENDENTS' TRAVEL FROM SAUDI ARABIA TO FORT DIX HAD COST
$1,424.70, AND THIS EXCEEDED THE AMOUNTS DEEMED DUE COLONEL METALIOS ON
ACCOUNT OF HIS PERSONAL TRAVEL ENTITLEMENT FROM FORT DIX TO ATHENS
($239) TOGETHER WITH HIS ENTITLEMENT TO DEPENDENTS' TRAVEL FROM SAUDI
ARABIA TO ATHENS ($249), IT WAS CONCLUDED THAT HE WAS DUE NOTHING AND
WAS INSTEAD INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $936.70.
IN SUBSEQUENT CORRESPONDENCE COLONEL METALIOS HAS QUESTIONED THE
CORRECTNESS OF THAT SETTLEMENT AND REQUESTED INFORMATION ON HOW TO
APPEAL, WHICH WE THEN FURNISHED HIM. HE SUBSEQUENTLY ADVISED US BY
LETTER DATED DECEMBER 28, 1978, THAT HE WOULD BE OUT OF THE COUNTRY FOR
90 DAYS AND WOULD NOT BE ABLE TO ACT UNTIL HE RETURNED. WE HAVE HEARD
NOTHING FURTHER FROM HIM SO WE ARE PROCEEDING TO REVIEW THE SETTLEMENT
BASED ON THE PRESENT RECORD.
A SERVICE MEMBER'S ENTITLEMENT TO MILITARY PAY AND ALLOWANCES,
INCLUDING TRAVEL ALLOWANCES, IS DEPENDENT UPON A STATUTORY RIGHT. THE
LAWS AND IMPLEMENTING REGULATIONS GOVERNING TRAVEL ENTITLEMENTS UPON
RETIREMENT DIFFER WITH RESPECT TO A SERVICE MEMBER'S PERSONAL TRAVEL AND
THE TRAVEL OF HIS DEPENDENTS. HENCE, COLONEL METALIOS'S ENTITLEMENT TO
PERSONAL TRAVEL TO HIS HOME OF SELECTION UPON RETIREMENT, AND HIS
ENTITLEMENT TO HAVE HIS DEPENDENTS TRANSPORTED TO THAT PLACE, WILL BE
CONSIDERED SEPARATELY HERE.
I. THE MEMBER'S ENTITLEMENT TO TRAVEL AT PUBLIC EXPENSE TO HIS PLACE
OF SEPARATION AND THEN TO HIS HOME OF SELECTION UPON RETIREMENTNT
SUBSECTION 404(A)(1) OF TITLE 37, UNITED STATES CODE, PROVIDES THAT
UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A
UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES
UPON A CHANGE OF PERMANENT STATION.
SUBSECTION 404(A)(3) OF TITLE 37, UNITED STATES CODE, FURTHER
PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED,
A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION
ALLOWANCES UPON SEPARATION OR RETIREMENT FROM HIS LAST DUTY STATION TO
HIS HOME OR THE PLACE FROM WHICH HE WAS CALLED TO ACTIVE DUTY.
SUBSECTION 404(C) PROVIDES THAT A MEMBER RETIRED WITH PAY MAY, NOT LATER
THAN 1 YEAR FROM THE DATE HE IS SO RETIRED, SELECT HIS HOME FOR THE
PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY
SUBSECTION 404(A).
REGULATIONS PROMULGATED PURSUANT TO THOSE STATUTORY PROVISIONS ARE
CONTAINED IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR).
PARAGRAPH M4159-1, 1 JTR, GENERALLY AUTHORIZES THE PAYMENT OF TRAVEL
AND TRANSPORTATION ALLOWANCES FOR A MEMBER TRAVELING UNDER PCS ORDERS
FOR PURPOSES OF SEPARATION TO A PROCESSING STATION LOCATED IN THE UNITED
STATES FROM A STATION OUTSIDE THE UNITED STATES. IN ADDITION, PARAGRAPH
M4158, 1 JTR, GENERALLY AUTHORIZES PAYMENT OF THE TRAVEL AND
TRANSPORTATION ALLOWANCES PRESCRIBED IN PARAGRAPH M4159, FOR A MEMBER'S
TRAVEL FROM HIS LAST DUTY STATION TO A HOME OF SELECTION UPON RETIREMENT
LOCATED OUTSIDE THE UNITED STATES.
WITH RESPECT TO REIMBURSEMENT FOR TRANSOCEANIC TRAVEL, PARAGRAPH
M4159-4 PROVIDES IN PERTINENT PART THAT WHEN GOVERNMENT TRANSPORTATION
IS AVAILABLE AND TRAVEL BY GOVERNMENT TRANSPORTATION IS AUTHORIZED IN
THE TRAVEL ORDERS, BUT TRANSOCEANIC TRAVEL IS PERFORMED AT PERSONAL
EXPENSE, THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE
TRANSPORTATION UTILIZED NOT TO EXCEED THE AMOUNT THE SPONSORING SERVICE
WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE TRANSPORTATION.
UNDER THESE PROVISIONS OF LAW AND REGULATION, IT IS EVIDENT THAT
COLONEL METALIOS WAS PERSONALLY ENTITLED TO GOVERNMENT TRANSPORTATION
FROM DHAHRAN, SAUDI ARABIA, TO FORT DIX, NEW JERSEY, FOR PURPOSES OF
SEPARATION PROCESSING. IT IS ALSO EVIDENT THAT HE WAS PERSONALLY
ENTITLED TO GOVERNMENT TRANSPORTATION FROM FORT DIX TO HIS HOME OF
SELECTION UPON RETIREMENT, ATHENS, GREECE.
COLONEL METALIOS WAS PROVIDED WITH A GOVERNMENT TR WHICH COVERED HIS
PERSONAL TRAVEL FROM SAUDI ARABIA TO FORT DIX. HE DID NOT, HOWEVER,
TRAVEL FROM FORT DIX TO ATHENS VIA MILITARY TRANSPORT OR UNDER A
GOVERNMENT TR, BUT INSTEAD ELECTED TO PURCHASE COMMERCIAL AIR
TRANSPORTATION OF HIS OWN CHOICE FOR TRAVEL FROM NEW YORK CITY TO
ATHENS. SINCE IT IS NOT INDICATED THAT HE FIRST ATTEMPTED TO SECURE
GOVERNMENT TRANSPORTATION OR THAT GOVERNMENT TRANSPORTATION WAS
UNAVAILABLE, HIS ENTITLEMENT TO REIMBURSEMENT IS LIMITED BY PARAGRAPH
M4159-4, 1 JTR, TO THE AMOUNT OF THE COST TO THE GOVERNMENT FOR
TRANSPORTING A PASSENGER FROM FORT DIX TO ATHENS. THE TABLES OF
GOVERNMENT TARIFFS FOR MILITARY AIRLIFT CONTAINED IN AIR FORCE
REGULATION 76-11 IN EFFECT IN FEBRUARY 1977, SET THAT COST AT $239.
HENCE, COLONEL METALIOS IS ENTITLED TO THAT AMOUNT RATHER THAN THE
AMOUNT CLAIMED BY HIM, $492, AS REIMBURSEMENT FOR HIS PERSONAL TRAVEL
FROM FORT DIX TO ATHENS.
II. THE MEMBER'S ENTITLEMENT TO HAVE HIS DEPENDENTS TRANSPORTED AT
PUBLIC EXPENSE TO HIS HOME OF SELECTION UPON RETIREMENT
SUBSECTION 406(G) OF TITLE 37, UNITED STATES CODE, PROVIDES THAT
UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER WHO
IS RETIRED WITH PAY IS, NOT LATER THAN 1 YEAR FROM THE DATE HE IS SO
RETIRED, ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS TO THE HOME OF
RETIREMENT SELECTED UNDER 37 U.S.C. 404(C).
IMPLEMENTING REGULATIONS SET FORTH IN PARAGRAPH M7010, 1 JTR, PROVIDE
THAT A MEMBER ON ACTIVE DUTY WILL BE ENTITLED TO TRANSPORTATION OF
DEPENDENTS (TRANSPORTATION IN KIND, INCLUDING TRANSPORTATION REQUESTS,
OR THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATES
PRESCRIBED) "FROM HIS LAST PERMANENT DUTY STATION, OR THE PLACE TO WHICH
THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE," TO THE HOME SELECTED
BY HIM WHEN HE IS RETIRED WITH PAY.
UNDER THESE PROVISIONS OF LAW AND REGULATION, COLONEL METALIOS WAS
CLEARLY ENTITLED TO HAVE HIS DEPENDENTS TRANSPORTED AT GOVERNMENT
EXPENSE TO HIS HOME OF SELECTION ON RETIREMENT: ATHENS, GREECE. ARMY
AUTHORITIES EXPRESSED DOUBT, HOWEVER, AS TO WHETHER HIS DEPENDENTS HAD
BEEN PROPERLY TRANSPORTED AT GOVERNMENT EXPENSE FROM SAUDI ARABIA TO
FORT DIX, AND THEREFORE THE MATTER OF THEIR FURTHER TRAVEL AT GOVERNMENT
EXPENSE FROM FORT DIX TO ATHENS WAS ALSO BROUGHT INTO QUESTION.
THE ESSENTIAL ISSUE THUS PRESENTED IS WHETHER COLONEL METALIOS WAS
PROPERLY AUTHORIZED CONCURRENT TRAVEL OF HIS DEPENDENTS UNDER THE PCS
ORDER TRANSFERRING HIM FROM SAUDI ARABIA TO FORT DIX FOR PURPOSES OF HIS
SEPARATION PROCESSING.
UNDER 37 U.S.C. 406(A) AND (B) A MEMBER OF A UNIFORMED SERVICE WHO IS
ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO
TRANSPORTATION IN KIND FOR HIS DEPENDENTS, SUBJECT TO SUCH CONDITIONS
AND LIMITATIONS, AND TO AND FROM SUCH PLACES, PRESCRIBED BY THE
SECRETARIES CONCERNED. IMPLEMENTING REGULATORY PROVISIONS OF PARAGRAPH
M7000, 1 JTR, PROVIDE IN PERTINENT PART AS FOLLOWS:
"MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF
DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION ***
EXCEPT:
"13. FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED
IN THIS VOLUME TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A
RESIDENCE; TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR
PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENTS' RESIDENCE AS
AUTHORIZED BY THIS VOLUME MAY NOT BE CONSIDERED AN OBLIGATION OF THE
GOVERNMENT;"
WE HAVE CONSISTENTLY HELD THAT UNDER THE APPLICABLE PROVISIONS OF LAW
AND REGULATION THERE IS ORDINARILY NO AUTHORITY FOR A DEPENDENT TO
TRAVEL AT GOVERNMENT EXPENSE UNDER PCS ORDERS TO A MEMBER'S LAST DUTY
STATION WHERE THE PURPOSE FOR HIS ASSIGNMENT IS FOR SEPARATION
PROCESSING, SINCE SUCH ASSIGNMENT IS IN FACT TEMPORARY IN NATURE. IF A
MEMBER'S PERMANENT HOME OF SELECTION UPON RETIREMENT IS AT THE SAME
LOCATION AS HIS POINT OF SEPARATION, HIS DEPENDENT MAY TRAVEL TO THAT
LOCATION FOR THAT PURPOSE ONLY UNDER THE MEMBER'S PCS ORDERS, AND IN
THOSE LIMITED CIRCUMSTANCES THE MEMBER MAY BE REIMBURSED FOR SUCH
TRAVEL. HOWEVER, IF THE DEPENDENT ACCOMPANIES THE MEMBER TO HIS
SEPARATION POINT, AND THEIR STAY AT THAT PLACE DOES NOT EXCEED THE SPAN
OF AN ORDINARY VISIT, VACATION, OR TEMPORARY DUTY ASSIGNMENT, AND OTHER
FACTS IN THE CASE INDICATE THAT TRAVEL WAS FOR PURPOSES OTHER THAN TO
ESTABLISH A PERMANENT HOME, THE CONCLUSION IS REQUIRED THAT THE TRAVEL
WAS NOT TO A BONA FIDE RESIDENCE. IN THAT CASE THERE IS NO ENTITLEMENT
TO DEPENDENT TRAVEL AT GOVERNMENT EXPENSE. SEE 53 COMP. GEN. 44 (1973);
B-180394, DECEMBER 24, 1974; B-180666, JULY 18, 1975; B-188462, JULY
11, 1977; AND B-150187, AUGUST 26, 1977.
IN THE PRESENT CASE, THERE IS NO INDICATION THAT COLONEL METALIOS
EVER INTENDED TO ESTABLISH A PERMANENT RESIDENCE AT OR NEAR FORT DIX,
NEW JERSEY, UPON HIS RETIREMENT. RATHER, IT APPEARS HE TRAVELED TO THAT
PLACE ON OFFICIAL BUSINESS FOR THE SOLE PURPOSE OF A BRIEF STAY TO
ACCOMPLISH HIS PERSONAL SEPARATION PROCESSING PRIOR TO PROCEEDING ON TO
HIS PERMANENT HOME OF SELECTION ON RETIREMENT IN GREECE. FURTHERMORE,
THERE IS NO INDICATION THAT HIS DEPENDENTS ACCOMPANIED HIM TO FORT DIX,
INSTEAD OF TRAVELING DIRECTLY TO THE SELECTED HOME IN GREECE, FOR ANY
REASONS OTHER THAN PERSONAL CONVENIENCE OR TO HAVE A VACATION IN NEW
YORK. HENCE, UNDER THE APPLICABLE LAWS AND REGULATIONS COLONEL METALIOS
WAS NOT ENTITLED TO THE CONCURRENT TRAVEL AT GOVERNMENT EXPENSE OF HIS
DEPENDENTS TO FORT DIX UNDER HIS PCS ORDERS.
IT IS THEREFORE OUR VIEW THAT HE WAS ENTITLED ONLY TO HAVE HIS
DEPENDENTS TRANSPORTED AT GOVERNMENT EXPENSE DIRECTLY FROM DHAHRAN,
SAUDI ARABIA, TO ATHENS, GREECE. THE TABLES OF GOVERNMENT TARIFFS
CONTAINED IN AIR FORCE REGULATION 76-11 IN EFFECT IN FEBRUARY 1977 SET
THE COST OF PASSAGE FOR ONE PERSON VIA MILITARY TRANSPORT FROM DHAHRAN
TO ATHENS AT $83. THUS, COLONEL METALIOS IS ENTITLED TO TRAVEL
ALLOWANCES FOR HIS 3 DEPENDENTS' TRAVEL TO HIS HOME OF SELECTION IN THE
AMOUNT OF $249. AS PREVIOUSLY INDICATED, HE IS ALSO DUE A TRAVEL
ALLOWANCE OF $239 FOR HIS PERSONAL TRANSPORTATION FROM FORT DIX TO
ATHENS, SO THAT HE IS DUE TRAVEL ALLOWANCES IN THE TOTAL AMOUNT OF $488.
HOWEVER, SINCE HE WAS NOT ENTITLED TO HAVE HIS DEPENDENTS TRANSPORTED
FROM SAUDI ARABIA TO FORT DIX, HE IS OBLIGATED TO REFUND THE COST OF THE
GOVERNMENT TR'S FOR THEIR TRAVEL THERE VIA COMMERCIAL AIRLINE. THIS
OBLIGATION AMOUNTS TO $474.90 FOR EACH TR, OR AN INDEBTEDNESS IN THE
GROSS AMOUNT OF $1,424.70. WE THEREFORE HAVE NO ALTERNATIVE BUT TO
CONCLUDE THAT COLONEL METALIOS IS DUE NOTHING ON HIS CLAIM AND IS
INSTEAD INDEBTED TO THE UNITED STATES IN THE NET AMOUNT OF $936.70.
ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION IS SUSTAINED.
B-193953, JUN 6, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
1. WHERE PROTESTER RAISES ISSUES THAT HAD BEEN THOROUGHLY CONSIDERED
IN PRIOR DECISIONS AND PROTESTER HAS FAILED TO SUPPLY ADDITIONAL FACTS
OR OFFER ANY ARGUMENTS OF LAW TO DEMONSTRATE PRIOR DECISIONS WERE IN
ERROR, PRIOR DECISIONS DENYING PROTEST ARE REAFFIRMED.
2. WHERE GOVERNMENT INSTALLATION EMPLOYEE PICKS UP MAIL AT POSTAL
SERVICE BRANCH AND TIME/DATE STAMP INDICATING RECEIPT OF BID BY POSTAL
SERVICE WAS ILLEGIBLE, IT MUST BE ASSUMED THAT BID HAD BEEN RECEIVED
LATE BY BOTH POSTAL SERVICE AND GOVERNMENT INSTALLATION EMPLOYEE.
GROSS ENGINEERING COMPANY - RECONSIDERATION:
GROSS ENGINEERING COMPANY (GROSS) REQUESTS RECONSIDERATION OF OUR
DECISION IN GROSS ENGINEERING COMPANY, B-193953, FEBRUARY 23, 1979, 79-1
CPD 129, AFFIRMED APRIL 24, 1979. OUR PRIOR DECISIONS DENIED GROSS'
PROTEST AGAINST THE REJECTION OF ITS BID AS LATE UNDER INVITATION FOR
BIDS NO. 132-8918, ISSUED BY THE UNITED STATES PENITENTIARY,
LEAVENWORTH, KANSAS (LEAVENWORTH). WE DENIED THE PROTEST BECAUSE THE
ONLY DOCUMENTARY EVIDENCE INDICATED THAT THE BID HAD NOT BEEN RECEIVED
AT LEAVENWORTH UNTIL AFTER THE DATE SET FOR BID OPENING.
SECTION 20.9(C) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20
(1978), PROVIDES THAT A "REQUEST FOR RECONSIDERATION SHALL CONTAIN A
DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL
OR MODIFICATION IS DEEMED WARRANTED,SPECIFYING ANY ERRORS OF LAW MADE OR
INFORMATION NOT PREVIOUSLY CONSIDERED."
IN ITS REQUEST FOR RECONSIDERATION, GROSS RAISES SEVERAL ISSUES THAT
HAVE ALREADY BEEN THOROUGHLY CONSIDERED AND REPORTED IN OUR PRIOR
DECISIONS WITH REASONS FOR THE CONCLUSIONS REACHED. GROSS HAS FAILED TO
SUPPLY ADDITIONAL FACTS OR OFFER ANY ARGUMENTS OF LAW TO DEMONSTRATE
THAT OUR INITIAL DECISION WAS IN ERROR WITH RESPECT TO THESE ISSUES.
HOWEVER, GROSS DOES RAISE ONE ISSUE WHICH HAS NOT BEEN CONSIDERED IN
OUR PRIOR DECISIONS AND, THEREFORE, WILL BE ADDRESSED AT THIS TIME.
GROSS CONTENDS THAT SINCE THE LEAVENWORTH POST OFFICE DOES NOT DELIVER
MAIL TO LEAVENWORTH BUT IT IS PICKED UP BY A LEAVENWORTH EMPLOYEE,
"RECEIPT AT THE GOVERNMENT INSTALLATION" SHOULD BE DETERMINED WHEN THAT
EMPLOYEE HAS RECEIVED THE PACKAGE.
AS WE HAVE STATED PREVIOUSLY, DOCUMENTARY EVIDENCE IS NECESSARY TO
ESTABLISH WHETHER A BID WAS TIMELY RECEIVED AND THE ONLY ACCEPTABLE
EVIDENCE TO ESTABLISH RECEIPT "AT (BY) THE GOVERNMENT INSTALLATION IS
THE TIME/DATE STAMP ON THE BID WRAPPER OR OTHER DOCUMENTARY EVIDENCE."
IN OUR PRIOR DECISION, WE NOTED THAT THE TIME/DATE STAMP AFFIXED TO
THE ENVELOPE INDICATING RECEIPT AT THE LEAVENWORTH POST OFFICE WAS NOT
LEGIBLE. THE ONLY DOCUMENTARY EVIDENCE INDICATED THAT THE HAD BEEN
RECEIVED AT (BY) LEAVENWORTH AFTER THE DATE SET FOR BID OPENING. SINCE
THE POST OFFICE'S TIME/DATE STAMP WAS ILLEGIBLE, THERE IS NO EVIDENCE AS
TO WHEN THE BID HAD BEEN RECEIVED BY THE POST OFFICE AND SUBSEQUENTLY
PICKED UP BY THE LEAVENWORTH EMPLOYEE. WE THEREFORE CONCLUDE THAT THE
ONLY EVIDENCE AVAILABLE TO SHOW RECEIPT AT OR "BY" THE GOVERNMENT
INSTALLATION IS THE TIME/DATE STAMP ON THE ENVELOPE, WHICH INDICATED
LATE RECEIPT.
FURTHERMORE, WE HAVE BEEN INFORMED BY LEAVENWORTH THAT SINCE THE MAIL
IS PICKED UP AT THE POST OFFICE LEAVENWORTH FOLLOWS A STANDARD PROCEDURE
TO DETERMINE WHETHER A BID PACKAGE COULD HAVE BEEN RECEIVED PRIOR TO BID
OPENING BUT NOT PICKED UP. UNDER THE PROCEDURE THE CONTRACTING OFFICER
CONTACTS THE (1) LEAVENWORTH CONTROL CENTER (FRONT DOOR), (2)
SWITCHBOARD (RECEPTIONIST), AND (3) THE MAILROOM (LEAVENWORTH POST
OFFICE) TO DETERMINE WHETHER A BID PACKAGE HAS BEEN RECEIVED BUT NOT
PICKED UP. IN THIS CASE, THE PROCEDURE WAS FOLLOWED AND IT WAS
DETERMINED THAT NO BID PACKAGE HAD BEEN RECEIVED BUT NOT PICKED UP PRIOR
TO BID OPENING.
IN VIEW OF THE ABOVE, OUR DECISION IS REAFFIRMED.
B-194062, JUN 6, 1979
HEADNOTES-UNAVAILABLE
DIGEST:
EMPLOYEE ASSIGNED SOME DUTIES OF ABOLISHED HIGHER-GRADE POSITION IS
NOT ENTITLED TO RETROACTIVE TEMPORARY PROMOTION SINCE SHE DID NOT
PERFORM HIGHER-GRADE DUTIES OF CLASSIFIED, ESTABLISHED POSITION.
LILLIAN T. LEVANDOSKI - RETROACTIVE TEMPORARY PROMOTION:
MR. ALFRED M. ZUCK, ASSISTANT SECRETARY FOR ADMINISTRATION AND
MANAGEMENT, U. S. DEPARTMENT OF LABOR, REQUESTED OUR DECISION ON THE
CLAIM OF LILLIAN T. LEVANDOSKI, WHO BELIEVES SHE IS ENTITLED TO A
RETROACTIVE TEMPORARY PROMOTION FOR AN ASSIGNMENT TO A POSITION AT A
HIGHER GRADE.
THE ISSUE IS WHETHER MS. LEVANDOSKI ACTUALLY PERFORMED ALL ESSENTIAL
DUTIES AND RESPONSIBILITIES OF AN ESTABLISHED POSITION AT A GRADE LEVEL
HIGHER THAN SHE WAS PAID.
MS. LEVANDOSKI WAS A SUPERVISORY GENERAL CLERK, AT GRADE LEVEL GS-5
IN THE WILKES-BARRE, PENNSYLVANIA, OFFICE OF THE U. S. MINING
ENFORCEMENT AND SAFETY ADMINISTRATION, DEPARTMENT OF THE INTERIOR (NOW
DEPARTMENT OF LABOR). SHE STATES THAT DURING 1975, HER SUPERVISOR, THE
DISTRICT MANAGER IN THE WILKES-BARRE OFFICE, INFORMED HER THAT SHE WOULD
PERFORM THE DUTIES OF THE POSITION TITLED ADMINISTRATIVE OFFICER,
GS-341-9, WHICH WAS THEN VACANT. SHE CLAIMS TO HAVE BEEN ASSIGNED ALL
OF THE DUTIES OF THAT POSITION FROM THEN UNTIL MARCH 18, 1977.
HOWEVER, THE FILE CONTAINS A MEMORANDUM DATED JUNE 30, 1976, FROM THE
SUPERVISOR TO MS. LEVANDOSKI AND ANOTHER EMPLOYEE SAYING:
"*** I AM REQUESTING THAT EACH OF YOU ASSIST IN IMPLEMENTING SOME OF
THE DUTIES OF THIS POSITION (ADMINISTRATIVE ASSISTANT) ON A BI-MONTHLY
BASIS."
SIGNIFICANTLY, THE SUPERVISOR STATED THAT "SOME" RATHER THAN ALL OF
THE DUTIES OF THE ADMINISTRATIVE OFFICER POSITION WOULD BE PERFORMED BY
MS. LEVANDOSKI AND A FELLOW EMPLOYEE. THE RECORD ALSO CONTAINS A LIST
OF THOSE DUTIES MS. LEVANDOSKI DID AND DID NOT PERFORM. AMONG OTHER
THINGS, IT SAYS "AT NO TIME DID SHE FURNISH TECHNICAL AND DETAILED
ADVICE TO THE DISTRICT MANAGER ON BUDGETARY, PERSONNEL, AND OFFICE
MANAGEMENT PHASES OF THE OPERATION."
BY LETTER OF SEPTEMBER 6, 1978, THE ACTING PERSONNEL OFFICER, MINE
SAFETY AND HEALTH ADMINISTRATION, INFORMED THE NATIONAL VICE PRESIDENT
OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3RD DISTRICT, WHO
REPRESENTED MS. LEVANDOSKI, THAT HER CLAIM WAS DENIED. ACCORDING TO THE
ACTING PERSONNEL OFFICER, THE ADMINISTRATIVE OFFICER, GS-9, POSITION HAD
BEEN ABOLISHED AND ONLY THE LOWER GRADE DUTIES OF THE ABOLI