In view of certifying officers' statutory right to request and receive
advance decision from the Comptroller General on matters of law,
certifying officers are not "bound" by conclusion of law rendered by
agency's general counsel. 31 U.S.C. 82d__
Failure to carry out agency policy
Supervisors of wage board employees
Supervisor, whose salary was less than that of wage board employee
whom he supervised, was not identified as eligible for pay adjustment.
Since prompt identification was required by nondiscretionary agency
regulation, noncompliance constitutes administrative error which may
be rectified by the granting of backpay under 5 U.S.C. 5596_-.
Leaves of absence
Forfeiture due to administrative error. (See LEAVES OF AB-
SENCE, Annual, Accrual, Maximum limitation, Forfeiture
due to administrative error)
Promotions
Subsequent correction
Two Bureau of Mines employees were detailed to higher grade posi-
tions in excess of 120 days and no prior approval of extension beyond
120 days was sought from CSC. Employees are entitled to retroactive
temporary promotions for period beyond 120 days until details were
terminated because Board of Appeals and Review, CSC, has interpreted
regulations to require temporary promotions in such circumstances.
Amplified by 55 Comp. Gen. 785-
ADMINISTRATIVE PROCEDURES
Contract advertising v. negotiation
Recommendation is made that options in questioned negotiated
janitorial services contract, and similar outstanding janitorial services
contracts, not be exercised and that GSA immediately commence
study of appropriate methods and clauses for improving formal advertis-
ing procurement method for future needs of janitorial services__
Grant of extraordinary contractual relief under Public Law 85-804-
which has effect of making exercise of contract option viable possibility
and leads agency to compare contract option price with prices of pro-
posals received under RFP-does not constitute improper use of Public
Law 85-804 authority to negotiate contract. Proscription in act is that
extraordinary authority cannot be used to negotiate contracts for
supplies or services which are required to be procured by formal ad-
vertising, which is not what occurred in this case..
Contract exclusion
Although contractual matters are statutorily exempted from rule
making provisions of 5 U.S.C. 553, Secretary of Labor has waived
reliance on that exemption for rule making by his Department, thereby
necessitating Department of Labor compliance with statutory provi-
ADVERTISING
Advertising v. negotiation
Advertising when feasible and practicable
Notwithstanding desired use of negotiated award method for given
procurement or range of procurements, negotiation must be objectively
justified in view of statutory preference (41 U.S.C. 252(c)) for formal
advertising--.
None of the exceptions to formal advertising (as set forth in 41 U.S.C.
252(c)(1)–(15)) expressly authorizes use of negotiations only to secure
desired level of quality of janitorial services or to obtain incentive-type
contract. Moreover, analysis of legislative history of Federal Property
and Administrative Services Act (40 U.S.C. 471), under which questioned
negotiated award of services was made, shows that Congress specifically
rejected proposal to permit negotiation to secure desired level of quality
of supplies or services____
Since negotiating rationale employed by GSA is same as was cited in
Nationwide Building Maintenance, Inc., 55 Comp. Gen. 693, where it
was found that GSA had no legal basis to negotiate janitorial services
procurements, and since award has been made, option should not be
exercised and any future requirement for services should be formally
advertised.
Conduct of negotiations with only firm considered to be in competitive
range does not require additional D&F to support sole source award where
procurement was negotiated pursuant to D&F justifying use of negotia-
tion authority under FPR 1-3.210(a) (8) relating to procurement of
studies and surveys--
Grant of extraordinary contractual relief under Public Law 85-804-
which has effect of making exercise of contract option viable possibility
and leads agency to compare contract option price with prices of pro-
ADVERTISING-Continued
Advertising v. negotiation-Continued
Negotiation propriety-Continued
posals received under RFP-does not constitute improper use of Public
Law 85-804 authority to negotiate contract. Proscription in act is that
extraordinary authority cannot be used to negotiate contracts for
supplies or services which are required to be procured by formal ad-
vertising, which is not what occurred in this case_
Specifications availability
Impossibility of drafting adequate specifications is criterion for au-
thorizing negotiation under 10 U.S.C. 2304 (a) (10); Armed Services
Procurement Regulation 3-210.2(xiii). Where record does not show
reasonable grounds to support conclusion of "impossibility," neither
difficulty of drafting adequate specification for radio sets nor desire for
negotiations in order to enhance or assure offerors' understanding of
requirements justifies negotiation in lieu of advertised procurement.
General Accounting Office (GAO) recommends that if Army cannot
find other basis to authorize current ongoing negotiated procurement,
RFP should be canceled...
Services
Procurement
Delivery type contract
Use of indefinite delivery type of contract to procure advertising
services is not improper since applicable regulations provide only that
agencies may use basic ordering agreement for obtaining advertising
services but do not preclude use of other contractual vehicles and since
advertising services are a "commercial item".
Overtime policies. (See REGULATIONS, Overtime policies)
Promotion procedures. (See REGULATIONS, Promotion procedures)
AGENTS
Responsibility of persons dealing with agents
Since persons who enter contractual relationships with the Govt.
are charged with responsibility of accurately ascertaining extent of a
limited agent's authority, Govt. is not bound by damage clause signed by
employee beyond scope of his authority
Government liability for negligent or erroneous acts
Fact that bidder alleges it was told by procuring agency personnel
to include cover letter with bid which conditioned bid upon possession
of local license, resulting in rejection of bid, does not alter nonrespon-
siveness of bid as Govt. is not responsible for negligence of employee
absent specific statutory provision___
Of private parties
Authority
Contracts
Evidence required to establish authority of particular person to bind
corporation is for determination of contracting officer, and record
provides no basis for concluding that contracting officer incorrectly
determined that agent was authorized to sign bid bond__.
AGRICULTURE DEPARTMENT
Domestic food programs
Authority to continue
Continuing resolution
Appropriation of funds in continuing resolution for fiscal year 1976
for domestic food programs established under National School Lunch
Act and Child Nutrition Act confers upon Dept. of Agriculture necessary
authority to continue such programs until termination of continuing
resolution, notwithstanding expiration of funding authorization in
enabling legislation on Sept. 30, 1975-----
Experts and consultants
Compensation
In excess of Classification Act rates
Decision 55 Comp. Gen. 567, applicable to experts and consultants
hired by Department of Agriculture pursuant to delegated authority
under section 626(a) of Public Law 87-195, as amended, limits pay rates
for such personnel to $100 per diem since that is maximum amount
authorized by section 626 (a). As no applicable law similarly limits pay
rates of experts and consultants hired as authorized in 5 U.S.C. 3109
(1970) by virtue of section 702 of Public Law 94-212, general rule of
section 3109 governs pay rates for such personnel and they may be
compensated at rates not in excess of $145.36, currently the per diem
equivalent of the top step of GS-15---
Forest Service
Cooperative agreements
Educational institutions
Income from bequest
Forest Products Laboratory, Department of Agriculture, has authority
to accept bequest from private citizen only for purpose of establishing
and operating forestry research facilities. It may not enter into coopera-
tive agreement with University of Wisconsin Foundation to invest
proceeds of bequest and to use income for fellowships, scholarships,
special seminars and symposia since agency may not do indirectly what
it cannot do directly.
Proposed cooperative agreement provision which would
would permit
recipient of funds to use funds for unspecified purposes in future at its own
option is not proper. Appropriated funds may be used only for purposes
for which appropriated. Proposed provision does not limit future use of
funds to authorized purposes only-
National forest permittees
Department of Agriculture (Agriculture) may, pursuant to section 5
of Granger-Thye Act, enter into cooperative agreements with National
Forest permittees whereby Agriculture maintains and operates waste
disposal systems, permittees pay Agriculture their pro rata share of
expenses for this operation and maintenance, and Agriculture deposits
payments in cooperative trust accounts__.
Acquisition by purchase or transfer
For use by grantees
Acquisition by agencies of aircraft and passenger motor vehicles by
purchase or transfer is prohibited by 31 U.S.C. 638a, unless specifically
authorized by appropriation act or other law, and this prohibition
applies to acquisition by transfer by Law Enforcement Assistance Admin.
of aircraft or passenger motor vehicles for use by grantees in their regular
law enforcement functions because agency obtains custody and accounta-
bility and exception would reduce congressional control over aircraft and
vehicles. See 44 Comp. Gen. 117...
Carriers
Bills of lading
Notice requirements
Bills of lading v. tariffs
Claim against air carrier for damage to shipment moved on Govt.
bill of lading is not subject to notice requirements of governing air tariff
because use of Govt. bill of lading—which in Condition 7 contains waiver
of usual notice requirements-is required by air tariff and creates am-
biguity over applicability of notice requirements which is resolved in
favor of shipper..
Availability of American carriers
HEW employee may use foreign flag air carriers during travel while
performing temporary duty because the use of one such carrier saved
more than 12 hours from origin airport to destination airport than use of
American flag air carrier, and use of other such carrier is essential to
accomplish the Dept.'s mission, which would render American flag air
carriers "unavailable" under § 5 of International Air Transportation Fair
Competitive Practices Act of 1974, Pub. L. 93-623, 88 Stat. 2104 (49
U.S.C. 1517)-----
Consistent with the Fly America Guidelines, traveler should use cer-
tificated service available at point of origin to furthest practicable inter-
change point on a usually traveled route. Where origin or interchange
point of such route is not serviced by a certificated carrier, noncertificated
service should be used to the nearest practicable interchange point to
connect with certificated service. Travelers will not be held accountable
for nonsubstantial differences in distances between points serviced by
certificated carriers. The foregoing principles are not controlling where
their application results in use of noncertificated service for actual travel
between the United States and another continent____
Property damage, loss, etc.
Liability of carrier
Burden of proof
Air carrier is liable for damages sustained to shipment of Govt.
property notwithstanding contention of improper packing, since appli-
cable tariff filed with CAB provides that acceptance of shipment con-
stitutes prima facie evidence of proper packing and puts burden of proof
on carrier to show absence of negligence. Issue of liability is determinable
under provisions of tariff; common law rules and presumptions apply
only when not in conflict with tariff............
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