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Campbell's case, our settlement established the proper gross rates of his retired pay under applicable laws. It did not consider or establish the separate matter of the proper amounts to be deducted from such gross rates as the costs of an annuity for his dependents. The matter of such deductions may be adjusted administratively.

Accordingly, question "a" is answered by saying that the option costs in Campbell's case are properly for adjustment by the Department of the Navy from April 1, 1954.

b. In the cases of CWO Allen and LT Cushman erroneous adjustments of the Uniformed Services Contingency Option costs were included in the General Accounting Office settlements. It appears that, in view of reference (c) [14 Comp. Gen. 572], we may not adjust the costs for the period covered in the settlements, but was it proper to adjust the Uniformed Services Contingency Option costs in each of these cases from the day following the period covered by the settlement? Would the answer be the same if the settlements had been made by the Court of Claims?

In our settlement of the claim of Chief Warrant Officer Allen for additional retired pay from June 1, 1951, to November 30, 1958, costs of his election under the Uniformed Services Contingency Option Act of 1953 were considered and should have been adjusted by deductions at the rate of 46 cents per month for the period February 1, 1954, to November 30, 1958, a total of $26.68. Instead, deductions were made at the rate of 46 cents per month from February 1, 1954, to March 31, 1955, $6.44; at the rate of 41 cents per month from April 1, 1955, to May 31, 1958, $15.58; and at the rate of 44 cents per month from June 1, 1958, to November 30, 1958, $2.64; an aggregate of $24.66. Thus, the officer was overpaid $2.02 in our settlement. We will request him to refund that amount direct to us to adjust his retired pay deductions.

In our settlement of the claim of Lieutenant Cushman for additional retired pay from March 2, 1949, to March 31, 1959, costs of his election under the Uniformed Services Contingency Option Act of 1953 were considered and should have been adjusted at the rate of $12.72 per month (difference between $45.60 and $32.88), from February 1, 1954, to March 31, 1959. Instead, deductions were made at the rate of $12.78 per month for that period resulting in an underpayment of $3.72 (62 months at 6 cents per month). A supplemental settlement will issue in the officer's favor for $3.72.

Question "b" is answered by saying that it was proper in the cases of Chief Warrant Officer Allen and Lieutenant Cushman to adjust the costs of the annuity options elected by them from the day following the period of our settlement in each case. The portion of the question which refers to the Court of Claims requires no answer since claims of the type here involved will be settled here rather than by means of suits in the Court of Claims, it having been decided that we will follow the Gordon v. United States, 134 C. Cls. 840, and Tato v. United States, 136 C. Cls. 651, cases. See 38 Comp. Gen. 348 and 37 id. 591.

Claims of this type are not concerned with Contingency Option Act matters and if a judgment were rendered in such a case the court should not consider the cost of an annuity under that act in determining the amount due the plaintiff. See answer to question "d" below.

c. May we adjust the costs for Cooke's Uniformed Services Contingency Option election to the monthly amount of $35.27 retroactive to 1 April 1954, or may the adjustment be effected only from 1 October 1955, the day following the period covered by the settlement?

d. Does the Court of Claims judgment, which did not take into consideration the change in Uniformed Services Contingency Option costs, operate to estop the adjustment of Uniformed Services Contingency Option costs for both the period covered by the settlement and any period thereafter?

The question of the proper rates of Cooke's retired pay for the period September 1, 1949, to September 30, 1955, and thereafter was settled by the judgment of the Court of Claims in his favor. See 36 Comp. Gen. 501, cited in your letter. The matter of proper costs of Cooke's Contingency Option Act election, however, was not involved in his case before the Court of Claims and is affected by the court's judgment only to the extent that such judgment fixed the rates of his retired pay.

Accordingly, question "c" is answered by saying that the matter of the annuity costs of Cooke's election of options should be adjusted by the Department of the Navy from April 1, 1954, based on the rate of $144.14 fixed by the court, and question "d" is answered in the negative.

[B-142926]

Military Personnel-Retired Pay-Fleet Reservists-Act of July 24, 1956

An enlisted member who was in receipt of retainer pay at the time of discharge from the Fleet Reserve on September 24, 1941, having been transferred to the Fleet Reserve on August 25, 1936, upon completion of 20 years of active Federal service does not come under the act of July 24, 1956, which was intended to authorize transfer to the Fleet Reserve or Fleet Marine Corps Reserve and retirement of only those former enlisted men who were discharged prior to August 10, 1946, and who had not then been eligible for transfer to the Fleet Reserve because their 20 years or more of active service was not entirely in the Navy or Marine Corps; and, therefore, the member may not be reappointed to the Fleet Reserve for entitlement to retired pay under section 3 of the act which provides for computation of retired pay on the annual and longevity pay received at time of discharge.

To the Secretary of the Navy, June 27, 1960:

Reference is made to letter of May 17, 1960, from the Assistant Secretary of the Navy (Personnel and Reserve Forces) requesting decision as to the retired pay to which Lawrence Walter Bevins, discharged from the Fleet Reserve on September 24, 1941, would be entitled upon reappointment to the Fleet Reserve and transfer to the

retired list under authority of the act of July 24, 1956, 70 Stat. 626, 34 U.S.C. 854c-1 to 5 (1952 Edition), Supp. IV, now codified as note to 10 U.S.C. 6330 (1958 Edition). Apparently the request was not assigned a "submission number" by the Department of Defense Military Pay and Allowance Committee.

It is stated that the former enlisted man was discharged from the Fleet Reserve under honorable conditions on September 24, 1941, having been transferred to the Fleet Reserve on August 25, 1936, upon completion of 20 years' service. Apparently, the former member has requested reappointment to the Fleet Reserve under the act of July 24, 1956. Since he had over 20 years of active Federal service at the time of his discharge, it was indicated that he will be reappointed. The only question submitted concerns the amount of retired pay which will be due him in view of section 3 of the act, 34 U.S.C. 854c, which provides for the computation of such retired pay on the basis "of the annual base and longevity pay he was receiving at the time of his last discharge." Since Bevins was receiving retainer pay at the time of his discharge on September 24, 1941, the belief is expressed that his retired pay should be computed on the active duty base and longevity pay he was receiving on August 25, 1936, at the time he was transferred to the Fleet Reserve.

It is not shown why Bevins was discharged from the Fleet Reserve. While it appears that he has the eligibility qualifications set forth in section 1 of the act of July 24, 1956, for appointment in the Fleet Reserve since he was discharged under honorable conditions prior to August 10, 1946, and had at least 20 years' active Federal service at time of discharge, it appears doubtful that it was intended that persons in his situation should be covered by that act since the law requires that retired pay be computed on "the annual base and longevity pay he was receiving at the time of his last discharge." He was receiving retainer pay, not active duty pay, at the time of his discharge. The primary rule of statutory construction is to ascertain and give the effect to the legislative intent. See Psychas v. Trans-Canada Highway Express, Limited, 146 F. Supp. 11. Such intent must normally be ascertained from the language of the statute and the legislative history thereof. The Circuit Court of Appeals in the case of City of Newark v. United States, 254 F. 2d, 93, at page 97, stated:

However, it has long been a fundamental cannon of statutory construction that the intention of lawmakers is paramount in determining the meaning of an act. A situation not within the intention of the enabling body, though it is within the letter of the statute, is not within the statute. Holy Trinity Church v. United States, 1892, 143 U.S. 457.

The legislative history of the act of July 24, 1956, clearly shows that it was intended to authorize the transfer to the Fleet Reserve or Fleet

Marine Corps Reserve and retirement of only those former Navy or Marine Corps enlisted men, who were discharged prior to August 10, 1946, and who had not then been eligible for transfer to the Fleet Reserve or the Fleet Marine Corps Reserve due to the fact that their 20 or more years of active service was not entirely in the Navy or Marine Corps. Under the act of August 10, 1946, 60 Stat. 993, 34 U.S.C. 854c, enlisted members of the Navy and Marine Corps were allowed credit for their active duty performed in other services toward computation of time required for transfer to the Fleet Reserve and for later entitlement to retired pay. The following discussion concerning this matter appears on pages 7959 and 7960 of the Hearings on H.R. 6729 (later enacted into law as the act of July 24, 1956) before Subcommittee No. 2, Committee on Armed Services, House of Representatives:

Mr. Kilday. The purpose of H.R. 6729 is to provide authority for appointment in the Fleet Reserve or the Fleet Maine [Marine] Corps Reserve as appropriate and for the further transfer to the retired list with retired pay of those persons with 20 or more years of active Federal service who were discharged under honorable conditions prior to August 10, 1946, and who at the time of discharge were not eligible for transfer to the Fleet Reserve under the laws then in effect since the active service performed at that time had not all been performed in the naval service.

Since August 10, 1946, enlisted members of the Navy and Marine Corps have been able to credit their active duty performed in other services toward the computation of time required for transfer to the Fleet Reserve and the later entitlement to retired pay.

There is only one known case involved but the proposed legislation is general in nature in the event other cases are disclosed.

*

Mr. Dorn of South Carolina, the author of the bill stated: *

What motivated this bill in the first place was a fellow in my district who had served 16 years in the Navy and 4 in the Army, but he is not eligible for retirement. I mean, he can't get any retirement because he spent 4 years in the Army and 16 in the Navy. But he has served 20 years. And I just understand that that is not the only case in the United States. There are others. And certainly that seems a little bit ridiculous. He spent 20 years in the Armed Forces of the United States and he should be retired or should get retirement. I just don't think that is right, Mr. Chairman. And this bill just rectifies that situation.

Since it is clear that Bevins had completed more than 20 years' service before August 25, 1936, and actually was transferred to the Fleet Reserve at that time, he is not covered by the 1956 act and that act contains no authority for his reappointment to the Fleet Reserve so as to be entitled to retired pay under section 3 thereof.

[B-142957]

Bids-Multiple-Propriety

Multiple bids submitted by one individual on behalf of two or more companies or by two or more affiliated companies do not have to be rejected when such bids are not submitted for the purpose of circumventing a law, such as the Davis-Bacon Act of August 30, 1935, for gaining an unfair advantage in case of awards by drawing lots, or for any other purpose which would be prejudicial to the United States or to other bidders. 14 Comp. Gen. 168, modified.

The rejection of two low bids submitted by affiliated companies for the purpose of obtaining partial awards for such amount of work as each company could capably perform, on the basis that multiple bids are legally objectionable, would be prejudicial to the interests of the United States and, therefore, such bids may be considered for award.

To the Secretary of Health, Education, and Welfare, June 27, 1960:

Reference is made to letter of June 16, 1960, from your Director of Administration, replying to our request dated May 26, 1960, for a report on the facts and circumstances which prompted the filing of a protest by counsel for Pergamon International Corporation against the award of contract to any other bidder under Invitation for Bids No. 171-4-21-60, issued by the National Institutes of Health.

The record discloses that in response to the said invitation the above-named bidder and Pergamon Institute and Research Information Service, among others, submitted proposals to furnish the necessary translation and publication services set forth therein. These two proposals were the lowest offers received. Upon investigation it was administratively determined that the two bidding concerns were interrelated, and that they contemplated using the facilities and personnel of both organizations in performing the work in the event of an award of a contract to either one or both concerns. Because of the established affiliation, both bids were tentatively rejected pursuant to section 7-50-90 of your Departmental Procurement Manual which stipulates that if more than one bid is submitted by, or in behalf of one person, or if a parent company and its subsidiary both submit separate bids, then such offers shall be disregarded. In view of the foregoing, and since the bids of the affiliated concerns were the lowest received, the protest raises the question whether those offers properly may be considered.

Historically, the matter of multiple bidding was made a part of section 3722, Revised Statutes (enacted March 3, 1863, 12 Stat. 828) which applied to the Department of the Navy, and which provided that if more than one bid is offered by, or in behalf of one person, all such bids may be rejected. In decision of this Office dated June 25, 1934, 14 Comp. Gen. 168, the Administrator of Veterans Affairs was advised that the information in possession of the Government, to the effect that two of the bidding companies there involved were no longer separate and distinct legal entities, should be conveyed to them, and that thereafter bids should be submitted in the name of only one of the firms. [Italics supplied.] Pursuant thereto certain procurement forms and regulations were adopted by the various departments and agencies of the Government which, in some instances, made mandatory the rejection of duplicate bids, while others were permissive in their terms.

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