lough or other nonpay status. Furthermore, subsection (h) of section 9, 5 U.S.C. 1117(h) (5 U.S.C. 5595 (h)), provides:

Severance pay under this section shall not be a basis for payment, nor be included in the basis for computation, of any other type of Federal or District of Columbia Government benefits, and any period covered by severance pay shall not be regarded as a period of Federal or District of Columbia Government service or employment.

That subsection was included in section 9 to insure that employees receiving severance pay would not be granted other benefits as employees of the United States. See S. Rept. No. 910, 89th Cong.,

1st sess., page 10.

Since the Congress provided severance pay benefits only for separated employees at a time when furlough as well as separation was authorized in Civil Service Regulations we do not believe that employees of the Alaska Railroad who would be entitled to severance pay if separated from their positions in a reduction in force may be allowed such benefit when they are not separated but placed in a furlough status. We have been advised by the General Counsel of the Civil Service Commission, the body responsible for regulating under section 9 of Public Law 89-301, that he agrees with our conclusion.

For the reason stated payments under section 9 of the Federal Employees Salary Act of 1965 should not be made to the employees in question.

[B-159310]

Courts Costs-Agencies Other Than Justice Department

Notwithstanding the Attorney General as chief law officer of the Government has the duty to institute, prosecute and defend actions on behalf of the United States in matters involving court proceedings, defraying expenses from Department of Justice appropriations, the Small Business Administration having been authorized pursuant to 15 U.S.C. 634 (b) to resort to litigation in the courts in the performance of its duties, may assume the expenses of litigation required incident to exercising the responsibilities imposed by the Small Business Investment Act, 15 U.S.C. 687c(b), including the fees and expenses of appointing a receiver, the expenses to be paid from funds or appropriations available for the expenses of the Administration.

To the Administrator, Small Business Administration, July 28, 1966:

This is in reference to your letter of May 27, 1966, requesting a decision as to whether the Small Business Administration (SBA) has authority to pay costs, fees and expenses of a receiver appointed under section 311(b) of the Small Business Investment Act of 1958, as added by the Small Business Investment Amendments of 1961, Public Law 87-341, 75 Stat. 752, 15 U.S.C. 687c (b). Such payments or advances would be made pursuant to a court order as a condition

for the appointment of a receiver or his continuance in office where the assets of the estate are insufficient or of uncertain value. Section 311, 15 U.S.C. 687c, provides:

SEC. 311. (a) Whenever, in the judgement of the Administration, a licensee or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act, or of any rule or regulation under this Act, or of any order issued under this Act, the Administration may make application to the proper district court of the United States or a United States court of any place subject to the jurisdiction of the United States for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, rule, regulation, or order, and such courts shall have jurisdiction of such actions and, upon a showing by the Administration that such licensee or other person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order, shall be granted without bond. The proceedings in such a case shall be made a preferred cause and shall be expedited in every way.

(b) In any such proceeding the court as a court of equity may, to such extent as it deems necessary, take exclusive jurisdiction of the licensee or licensees and the assets thereof, wherever located; and the court shall have jurisdiction in any such proceeding to appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed.

It is stated in your letter that proceedings are instituted by SBA under section 311 after clearance from the Department of Justice and in this connection it is said that the conduct of litigation by SBA's attorneys is coordinated with the Department pursuant to an understanding reached in exchange of correspondence with the Deputy Attorney General. We note the statement in such correspondence that "None of the above is to qualify the right of SBA attorneys to go into court and conduct litigation arising under the Small Business Investment Act, although Justice believes that there may be a few very unusual cases which it will desire to handle itself." In addition to the authority of section 311, quoted above, reference is made in your letter to section 5(b) of the Small Business Act, 15 U.S.C. 634(b), which authorizes the Administrator to sue in any State or Federal court of competent jurisdiction, and confers on him broad liquidation powers in realizing payment on SBA loans.

It is the judgment of SBA, as stated in your letter, that the authority under section 5(b) of the Small Business Act and section 311 of the Small Business Investment Act of 1958 to institute court proceedings in connection with the proper exercise of its statutory responsibilities, embraces authority to defray necessary litigation expenses, including receiver's fees and expenses, where the court determines that an agreement assuring payment is an equitable requirement, and you ask for our confirmation of your views in this matter. It has been held that fees of referees or special masters and the costs of other special proceedings legally allowed by a court are expenses incident to the action and payable from appropriated funds. See 8 Comp. Gen. 554. The general rule is that, in the absence of specific authority by the Congress for departments and establish

ments of the Government to resort to litigation in the courts in the performance of the duties and responsibilities with which they are charged, it is the duty of the Attorney General, as chief law officer of the Government, to institute, prosecute, and defend actions on behalf of the United States in matters involving court proceedings, and to defray the necessary expenses incident thereto from appropriations of the Department of Justice rather than from appropriations of the administrative office involved in the proceedings. See 44 Comp. Gen. 463. Since the SBA has statutory authority to resort to litigation in the courts in the performance of its duties, and the initiation of actions such as referred to in your letter is not under the direct control of the Department of Justice, it would be within the exception to the general rule and the expenses incident thereto, including the fees of a receiver when ordered by the court to be paid, may be defrayed from funds or appropriations available for expenses of the SBA. See 15 Comp. Gen. 81; 19 id. 551.

[B-159524]

Pay-Thirty-First Day of the Month-Active Duty for Part of

Month

A Regular Army officer who during a 6 calendar month period performed active duty for part of each month, reporting for duty on other than the first day of the month, and attended a civilian educational institution on excused leave for the other part of the month is entitled to pay and allowances for the 31st day of a month, 37 U.S.C. 1004 prescribing for "a member of a uniformed service" pay and allowances for each day of a continuous period of less than 1 month's service, including the 31st, at 1/30 of the monthly amount of pay and allowances, applying to members of all components, and the term "member" defined to include a commissioned officer and the term "uniformed service" to include the Army, both Regular and Reserve members pursuant to 10 U.S.C. 3062 (c), the Regular Army officer is entitled to pay and allowances for each 31st day within the 6 calendar month period during which he performed active duty for part of the month.

To Lieutenant Colonel K. M. Stewart, Department of the Army, July 28, 1966:

Further reference is made to your letter of May 17, 1966, forwarded here by letter dated June 22, 1966, Office of the Chief of Finance, requesting a decision whether Captain Jerome X. Lewis, II, a Regular Army officer, is entitled to pay and allowances for the 31st day of 6 calendar months. During those months he performed active duty for part of the month, reporting for duty on other than the first day of the month. For the other part of the month he was on excess leave and attending a civilian educational institution. Your request for decision has been assigned D.O. Number A 914 by the Department of Defense Military Pay and Allowance Committee.

Section 1004 of Title 37, U.S. Code, provides:

A member of a uniformed service who is entitled to pay and allowances under this title for a continuous period of less than one month is entitled to his pay and allowance for each day of that period at the rate of 1/30 of the monthly amount of his pay and allowances. The thirty-first day of a calendar month may not be excluded from a computation under this section.

By letter of October 7, 1965, the Army disallowed Captain Lewis' claim for the reason that paragraph 10254, Section F, Army Regulations 37-104, states that that provision of law applies to members of the Reserve forces and not to members of the Regular Army. That provision is a codification of section 510 of the Career Compensation Act of 1949, ch. 681, 63 Stat. 828, 37 U.S.C. 310 (1958 Ed.), the legislative history of which indicates that it was simply a restatement of "existing law." Presumably the regulations were based upon the provisions of section 3 of the Pay Readjustment Act of 1942, ch. 413, 56 Stat. 360, 37 U.S.C. 232 (1958 Ed.), which by its specific terms was limited to members of the Reserve forces. It appears, however, that the Judge Advocate General of the Army has issued an opinion that the provisions of 37 U.S.C. 1004 are applicable to members of all components.

The language of section 510 of the Career Compensation Act of 1949 is substantially the same as that of 37 U.S.C. 1004. Section 102(b) of the 1949 law, 37 U.S.C. 231 (b) (1958 Ed.), provided that the term "member," unless otherwise qualified, meant a commissioned officer, commissioned warrant officer, warrant officer, flight officer, and enlisted person of the uniformed services. The term "uniformed services," unless otherwise qualified, meant the Army of the United States, Navy, Air Force of the United States, etc., "and all Regular and Reserve components thereof." The term "member" is defined in 37 U.S.C. 101(23) as "a person appointed or enlisted in, or conscripted into, a uniformed service" and the term "uniformed services" is defined in 37 U.S.C. 101 (3) as "the Army, Navy, Air Force, Marine Corps, Coast Guard," etc. Section 3062(c) of Title 10, U.S. Code, provides that:

The Army consists of

(1) The Regular Army, the Army National Guard of the United States, the Army National Guard while in the service of the United States and the Army Reserve; and

(2) all persons appointed or enlisted in, or conscripted into the Army without component.

In view of the broad language of section 510 of the Career Compensation Act and the definitions of the terms "member" and "uniformed services" in that statute "unless otherwise qualified," as well as the broad language of 37 U.S.C. 1004 and the applicable definitions of the terms "member" and "Army" cited above, the conclusion that a member of the Regular Army was intended to be included in the term "member" as used in section 1004 appears required. It is to

be noted, however, that section 1004 applies only to "a continuous period of less than one month" and since a statement as to the exact periods for which Captain Lewis has been paid pay and allowances was not received with your request his right to pay for the particular days in question remains in doubt. If the 31st day of the month in each case covered by the vouchers was included in a continuous period of less than 1 month for which he was entitled to active duty pay and allowances, payment on the submitted vouchers, returned herewith, is authorized, if otherwise correct.

[B-159202]

Contracts Awards Small Business Concerns Size Classification Propriety

A Small Business Administration determination that a ship does not come within the definition of "real property" and that invitations soliciting bids under small business set-asides for painting both the interior and exterior of ships incorrectly cited the size standard for the construction industry that applies to contracts for painting buildings, bridges, roads, or other real property, a determination upheld on appeal, and that the service industry classification should have been used, is binding on the procurement officials of the Government, 15 U.S.C. 632 and 637 (b) (6) empowering the Administration to prescribe business size standards for industry, to determine within any industry the concerns that are small business for the purpose of Government procurement, and to consider appeals from initial determinations of procuring agencies as to the size standard applicable to a particular procurement.

Contracts-Awards-Small Business Concerns Set-Asides-Ad

ministrative Determination

Upon determination that the incorrect size standard had been used under two invitations soliciting bids from small business concerns, one for painting the interior, the other the exterior of ships, the contracting officer concluding that there was a reasonable expectation of small business participation under the corrected size classification for the interior painting procurement, but unable to arrive at the same conclusion for the exterior painting contract, properly retained the small business set-aside on the interior painting procurement, in view of the fact that the statutory policy, 10 U.S.C. 2301, favors small business awards.

Contracts-Awards-Small

tion-Unsuccessful Bidder

Business

Concerns Self-Certifica

Under a small business set-aside the fact that an unsuccessful bidder despite self-certification was not a small business concern is not open to question, paragraphs 1-703 (b) (1) and (2), Armed Services Procurement Regulation, neither providing nor contemplating a protest against the small business status of a bidder other than the "apparently successful bidder."

Contracts-Awards-Small Business Concerns-Price Reasonable

ness

A contract award on the basis that the unit prices of the low bidder under a small business set-aside were no higher, in fact lower overall, than the prices accepted on previous contracts satisfies the reasonable price criteria of para