these members unless you believe the literal interpretation of the current regulation is required by law. If you rule in favor of these cases, we will amend the JTR accordingly for future cases; that is, to permit the payment of per diem but in the manner shown in JTR, par. M4205–3a (2) (b).

In decision 48 Comp. Gen. 517 (1969), the Assistant Secretary of the Navy (Manpower and Reserve Affairs) asked (Question 1):

May the Secretaries of the uniformed services amend the JTR to deny the payment of per diem to members of the reserve components while performing annual active duty for training (ANACDUTRA) at the same location where they normally perform inactive duty training:

(c) where Government messing facilities are available but Government quarters are not available, considering that in each case the member's home and the active duty station are not located within the corporate limits of the same city or town and in some cases may be several hundred miles apart?

We answered in pertinent part as follows:

*** the purpose of clause (4) is to provide, by payment of a per diem, a means of reimbursing the reservists concerned for the cost of quarters and subsistence which they must procure for themselves when "away from home,” * * *

*

*

*

*

We recognize that the allowances provided by 37 U.S.C. 404(a) are subject to regulations prescribed by the Secretaries concerned, 37 U.S.C. 404 (b) and 411; and that those officials are authorized to specify the conditions under which the allowances will be payable and, within prescribed limitations, the kind and amount of the allowances. However, it is clear from the legislative history of clause (4) that Congress intended that per diem shall be paid to reservists on duty away from their homes for short periods when they are not furnished mess and quarters by the United States. *** [Italic supplied.]

In short, we have held that a reservist is entitled to per diem in a case where "absence from home *** subjects the reservists to expenses for quarters and subsistence." 48 Comp. Gen. 517, supra, at page 521. Since a member, when assigned to "Government bachelor quarters (including quarters in the field)," does not incur any expense regarding such quarters, they are properly considered "Government quarters" for the purpose of 1 JTR para. M6000–1.

But this does not mean that "Temporary Lodging Facilities" may be considered to be "Government quarters" for the purpose of precluding per diem for reservists on ANACDUTRA. This is so even though they were designated as such "in recognition that the quarters were possessions of an instrumentality under Government control" as indicated in the endorsement of the Executive, Per Diem, Travel and Transportation Allowance Committee.

Paragraph M1150-5a (change 256, June 1, 1974) provided that the term "Government quarters" includes (item 5) temporary lodging facilities as defined in subpara. b (now contained in Appendix J) which states that "Temporary Lodging Facilities" are:

Specifically identified interim housing facilities operated by the military services with appropriated or nonappropriated funds in order to provide short term temporary housing accommodations for occupancy by military members, their dependents, families, and guests for which a cash charge is levied without direct

charge against the quarters allowances of the occupants. Temporary lodging facilities include guest houses except transient visiting officer quarters occupied by official visitors to the installation. Temporary lodging facilities do not include facilities used primarily for rest and recreation purposes, or bachelor officer and enlisted quarters. *** Military members on temporary duty or temporary additional duty, as applicable, may occupy temporary lodging facilities voluntarily, on a space available basis, only if transient bachelor facilities are fully occupied. [Italic supplied.]

In view of the purpose of 37 U.S.C. 404 (a) (4) and the statement of the Executive, Per Diem, Travel and Transportation Allowance Committee that in redefining "Government quarters" for purposes of 1 JTR generally, the Committee failed to consider the effect of that definition on per diem entitlement in this situation, we do not believe that occupancy of temporary lodging facilities operated by nonappropriated fund activities at which a substantial daily charge is made should be considered as precluding payment of per diem under 1 JTR para. M6000-1.

Accordingly, we find that Commander Richardson is entitled to per diem while at the Navy Lodge, Naval Station, Newport, Rhode Island, while on ANACDUTRA at the rate specified for those members utilizing temporary lodging facilities under 1 JTR para. M4205-3a (2) (b). Appropriate changes should be made in pertinent provisions of 1 JTR to reflect the conclusion herein.

[B-184400]

Contracts-Protests-Timeliness—Untimely Protest Consideration

Basis

Protest alleging arbitrary and capricious action on part of contracting officer in restricting procurement wholly to small business without making independent examination of competitive market conditions, filed after bid opening, is untimely under 20.2(b) (1) of Bid Protest Procedures which requires that protests based upon alleged improprieties in any type of solicitation which are apparent prior to bid opening be filed prior to bid opening. Section 20.2 (b) (3) exception to 20.2(b) (1), concerning protest by mailgram, is inapplicable, as mailgram was not sent by third day prior to final date for filing protest.

Contracts-Protests-Timeliness—Information Copy of Protest to Agency v. Formal Copy to GAO

Fact that information copy of protest to General Accounting Office (GAO) was received by procuring activity prior to bid opening does not convert otherwise untimely direct protest to GAO (protest was not received until after bid opening) under Bid Protest Procedures, since information copy was not protest to procuring activity such as to make that portion of procedures dealing with initial protests to agencies applicable.

In the matter of Society Brand, Inc., August 7, 1975:

This is a protest filed by counsel on behalf of Society Brand, Incorporated (SBI), involving invitation for bids (IFB) No. DSA100–

75-B-1115, issued by the Defense Personnel Support Center (DPSC), Philadelphia, Pennsylvania. SBI contends "*** that the contracting officer acted arbitrarily and capriciously in restricting the procurement only to small business and did not make an independent examination of competitive market conditions."

The record indicates that bids submitted in response to the IFB were opened on July 3, 1975. SBI's mailgram protest to our Office, although dated July 1, 1975, was not received by our Office until July 7, 1975. Section 20.2 (b) (1) of our Bid Protest Procedures, 40 Fed. Reg. 17979 (1975), provides, in pertinent part, that "Protests based upon alleged improprieties in any type of solicitation which are apparent prior to bid opening *** shall be filed prior to bid opening ***." Under this section, SBI's protest was untimely filed.

Section 20.2(b) (3), which sets forth an exception to § 20.2(b) (1) in the case of a protest by mailgram states, in pertinent part, that, 66* * * 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 *** mailgram not later than the third day, prior to the final date for filing a protest as specified herein." In the instant matter, the final date for filing a protest was July 3, 1975, making the third day prior to the final date June 30, 1975. As SBI's mailgram was dated July 1, 1975, § 20.2(b) (3) is inapplicable.

Accordingly, SBI's protest is untimely and will not be considered by our Office on its merits. We reach this conclusion cognizant of the fact that SBI did not learn until July 1, 1975, that the bid opening would not be postponed. According to SBI, the firm had previously contacted the contracting officer, among others, requesting that the bid opening be postponed to permit examination by SBI as to the propriety of the total small business set-aside. However, SBI is not now protesting the fact that bid opening was not postponed but rather the fact that the procurement was wholly restricted to small business. This issue, as discussed above, had to have been, but clearly was not, protested to our Office prior to bid opening.

We also are aware of the fact that the contracting officer received a copy of SBI's July 1, 1975, protest to our Office prior to the opening of bids. This does not convert an otherwise untimely direct protest to our Office into a timely protest. The telex message the contracting officer received was only an information copy of the protest sent to our Office (apparently to comply with § 20.1 (c) of our procedures), not a protest to DPSC against the alleged improper use of a total small business set-aside or the rejection of SBI's request to postpone the date set for bid opening. As such, that portion of the procedures dealing with initial protests to agencies does not apply.

By letter dated July 11, 1975, counsel supplemented the protest mailgram by setting forth the following six issues of protest concerning this procurement:

1. Total small business set-aside was abuse of administrative discretion.

2. Instant procurement should not have been set aside for small businesses.

3. Inadequate competition existed under a total set-aside.

4. Prices received under a total set-aside were not reasonable. 5. All procurements within Standard Industrial Classification 2352 should not be made a class-set-aside for small business participation. 6. Pattern of bidding on this and related procurements by Waldman and two other bidders.

In view of the above conclusion, issues No. 1, 2 and 5, will not be considered. However, issues No. 3 and 4 will be considered only to the extent that they concern the propriety of any proposed award and not to the extent that they question the propriety of the determination to utilize a total small business set-aside for this procurement. Issue No. 6 will be considered in its entirety. These timely issues will be considered by our Office in conjunction with the protest filed by counsel on behalf of Waldman Manufacturing Company, Inc. (Waldman), under the IFB. For administrative purposes, the timely protest issues of SBI and the protest of Waldman will be docketed as B-184400, B-184234.

[B-180412]

Station Allowances-Military Personnel-Excess Living Costs Outside United States, etc.—Reservists Performing Active Duty-Less Than 20 Weeks

In view of the broad authority contained in 37 U.S.C. 405, Volume 1, Joint Travel Regulations, may be amended to authorize payment of station allowances at with or without dependent rates as appropriate to members of Reserve components who perform active duty for less than 20 weeks outside the United States or in Hawaii or Alaska and who reside permanently in those areas with their families (if any).

In the matter of station allowances for members of Reserve components of the uniformed services called to active duty for less than 20 weeks, August 8, 1975:

This is in further reference to letter dated November 27, 1973, from the Assistant Secretary of the Army (Manpower and Reserve Affairs), in which our opinion is requested concerning whether Volume 1 of the Joint Travel Regulations (1 JTR) may be amended to provide station allowance entitlements to members of the Reserve components called

1 See 55 Comp. Gen. 372.

or ordered to active duty outside the United States for less than 20 weeks, when temporary duty allowances are not payable. The request was assigned PDTATAC Control No. 73-54 by the Per Diem, Travel and Transportation Allowance Committee.

In his letter the Assistant Secretary points out that paragraph M6007 of 1 JTR was amended by change 245, effective July 1, 1973 (currently para. M6006) to provide station allowance entitlements to a member of a Reserve component called or ordered to active duty or active duty for training at a place located outside the United States whenever he is not entitled to per diem in accordance with paragraph M6001 (currently para. M6000), 1 JTR. It is stated that the following are circumstances under which a member of the Reserve components would not be entitled to per diem while performing active duty for periods of less than 20 weeks:

a. When commuting daily between home or place from which called (or ordered) to active duty and the permanent duty station (JTR, par. M6001-1a (2)).

b. When he is newly enlisted and is undergoing processing, indoctrination, initial basic training (including follow on technical training and/or home station training), or instruction, and Government quarters and a Government mess are available (JTR par. M6001-1a (3)).

c. When performing annual training duty and Government quarters and a Government mess is available (JTR, par. M 6001-1a (3)).

The Assistant Secretary also indicates that in addition to the abovementioned categories of members, Public Health Service officers called to active duty for the purpose of participating in the Commissioned Officer Student Extern Program are not entitled to per diem.

The Assistant Secretary states that, generally, periods of active duty under Part A, Chapter 6, 1 JTR, are divided into two segments, active duty for less than 20 weeks and active duty of 20 weeks or more. It is indicated that provision is made to cover bona fide extensions of temporary duty in those cases where less than 20 weeks' duty was first contemplated but must be extended for unforeseen circumstances.

Under the pertinent regulations a member performing duty for 20 weeks or more will not be entitled to a travel per diem. However, a member performing such duty is entitled to permanent change of station entitlements provided for members of the uniformed services which would include the payment of housing and cost-of-living allowances, as well as temporary lodging allowances, in appropriate cases, either with or without dependents, on the same basis as members of the Regular components.

In the case of duty of less than 20 weeks, we are informed that the member is treated as if he were on temporary duty including denial of per diem if the conditions of his duty permit the member to do his duty "without disturbing his living pattern."