Civil Defense Administration was not voluntary but was "induced" by the employees' reasonable and understandable fear that they would jeopardize their positions if they did not perform the additional after-hours duty. The court concluded that the "induced" duty officer tours were "officially ordered" and "approved" within the meaning of the Federal Employees Pay Act of 1945, [now codified at 5 U.S.C. 5542 (1970)]

The court in Baylor, at 360, also stated that:

As a prerequisite in this type of case, plaintiff has the burden of proving that the order or approval to perform overtime was issued by an official who had the authority to do so. Bowling v. United States, 181 Ct. Cl. 968 (1967); Bilello v. United States, 174 Ct. Cl. 1253 (1966); Albright *** [v. United States, 161 Ct. Cl. 356 (1963)]. * * *

The court in Bilello, supra, stated at 1257, the following:

The common denominator derived from these results is that a regulation requiring approval of overtime by a designated official before it can be paid is binding on claimants unless the regulation is unreasonable or the official who has withheld formal written approval has nevertheless actively induced and encouraged the overtime. Mere knowledge on his part, without affirmative inducement or written sanction, would not seem to be sufficient. ***

In order to determine whether Ms. Bingham is entitled to overtime compensation, it is necessary to determine whether she was ordered or induced to perform the work in question by an official who had authority to order or approve overtime work. The record indicates that such authority was vested in the Regional Director and that he was required to obtain approval of the central office when the workload of a staff member required extended periods of overtime.

The claimant has stated that she obtained her appointment on July 1, 1970, and subsequent to that date appealed to the Regional Attorney, a Mr. Harvey Letter, for assistance, stating that the overtime work necessitated by her job was injurious to her health. She further stated that Mr. Letter would not provide such assistance and explicitly ordered her not to discuss her need for assistance with the Regional Director. She further stated that Mr. Letter left the NLRB in 1972. It is clear from Ms. Bingham's own statements that there was no reason that she could not have discussed her need for assistance with the Regional Director subsequent to Mr. Letter's departure. For the period prior to Mr. Letter's departure, his injunction not to discuss the matter with the Regional Director should have been appealed. As the court in Bilello stated, at 174 Ct. Cl. 1258, in a similar situation—

*** Administrative efficiency requires observance of orderly forms, and by voicing their demands through proper channels the plaintiffs conceivably could have secured a ruling which would have resulted either in an order for overtime compensation or in a justified refusal on the part of the plaintiffs to continue performing overtime work without compensation.

There is no indication in the record that Ms. Bingham claimed any overtime prior to May 7, 1974, when she sent a memorandum to the Deputy General Counsel of the NLRB. In that communication she made known her problems and requested overtime compensation. That request was denied by a memorandum dated June 14, 1974, on the basis

that the overtime had not been officially ordered or approved. Subsequently, on August 29, 1974, she requested the Regional Director to approve the overtime in question. On December 20, 1974, the Regional Director denied her overtime compensation and admonished her for not discussing her problems with him earlier.

In view of the above, we cannot state that Ms. Bingham has met the prerequisite, as set forth in Baylor, supra, of proving that she was ordered or induced to perform overtime by an official who had authority to do so. In fact, the record indicates that the official who did have authority to order or approve overtime, the Regional Director, had no knowledge of the problem, and therefore could not have induced the overtime.

Accordingly, the disallowance of the claim for overtime compensation by Ms. Bingham is sustained.

[B-168691]

Pay-Judge Advocates General-Assistants-Officers Serving in Positions-Entitled to Pay of Rear Admirals

Court of Claims in Selman v. United States, 204 Ct. Cl. 675, held that naval officers ordered to serve in positions of Assistant Judge Advocates General are entitled to at least the pay of a rear admiral (lower half) while serving in such positions whether they were "detailed" or "assigned" to such positions. Our decision at 50 Comp. Gen. 22 which determined that such officers were not entitled to pay of rear admiral (lower half) will no longer be followed. Consequently, the successors to the plaintiffs in Selman in the statutorily created positions are also entitled to receive the pay of rear admiral (lower half).

In the matter of the pay of Assistant Judge Advocates General of the Navy, July 14, 1975:

This action is in response to a letter dated April 4, 1975, from the Secretary of the Navy, requesting an advance decision concerning the entitlement of certain naval officers serving in the positions of Assistant Judge Advocates General of the Navy to receive the pay of a rear admiral (lower half). This request was cleared through the Department of Defense Military Pay and Allowance Committee and assigned submission No. SS-N-1231.

The Secretary states that the question of the entitlement of Assistant Judge Advocates General of the Navy to receive the pay of a rear admiral (lower half) was previously presented here for determination of entitlement and by our decision, 50 Comp. Gen. 22 (1970), we concluded that entitlement did not exist. The Secretary also states that the question was then taken to the United States Court of Claims and in the case of Selman v. United States, 204 Ct. Cl. 675 (1974), the Court determined, with respect to the plaintiffs named in that action and who were the claimants in 50 Comp. Gen. 22, supra, that they were entitled

to the pay of a rear admiral (lower half) while serving in the statutorily created positions.

The Secretary further states that the Judge Advocate General of the Navy is of the opinion that the successors to the named plaintiffs in the statutorily created positions of Assistant Judge Advocates General are also entitled to the pay of a rear admiral (lower half). As a result, we have been requested to reconsider our position with regard to such entitlement.

In our decision at 50 Comp. Gen. 22, supra, we considered the situation where two Navy captains were ordered to report for duty as Assistant Judge Advocates General, but where the Chief of Naval Personnel specifically intended not to "detail" the officers so as to create entitlement to flag rank within the meaning of 10 U.S. Code § 5149 (b) and indicated that the Secretary of the Navy would have to approve such a detail. Paragraph 10214b (2) of the Department of Defense Military Pay and Allowance Entitlements Manual, then in effect, provided that an officer is entitled to the basic pay of rear admiral (lower half) when "detailed" as Assistant Judge Advocate General, but 37 U.S.C. § 202 (7) provided (and now provides) that unless appointed to a higher grade under another provision of law, an officer of the Navy serving as Assistant Judge Advocate General of the Navy is entitled to the basic pay of a rear admiral (lower half).

Section 202 (7) of Title 37, U.S. Code, provides as follows:

Unless appointed to a higher grade under another provision of law, an officer of the Navy or Marine Corps serving as Assistant Judge Advocate General of the Navy is entitled to the basic pay of a rear admiral (lower half) or brigadier general, as appropriate.

From our analysis of the legislative history of sections 202 (7) of Title 37 and 5149 (b) of Title 10, which sections originated in the act of December 8, 1967, Public Law 91-179, 81 Stat. 548, we stated in that decision that we were unable to ascertain an intent that any captain or officer of lesser rank should be paid the pay of a rear admiral (lower half). In that decision we held that the matter was entirely too doubtful for our Office to conclude that Congress intended that the pay provisions of 37 U.S.C. § 202 (7) should apply to officers so administratively assigned, but at the same time intended to deny them the benefits specifically provided by 10 U.S.C. § 5149 (b) as to the rank and grade for an officer "detailed" to so serve.

In Selman v. United States, supra, the Court of Claims, considering that the same situation, stated that the captains were ordered to report for duty as Assistant Judge Advocates General and they served in this capacity but because of a nonstatutory limit on the number of naval flag officers, imposed by the Senate Armed Forces Committee (the Stennis Ceiling), neither was advanced to the rank of rear

admiral, "which the role of [Assistant Judge Advocate General] normally calls for."

In the court's view the Government offered a three-pronged defense: (1) that section 202 (7) of Title 37, U.S. Code, must be read in conjunction with section 5149 (b) of Title 10, since both provisions were contained in the same public law; (2) that proper discernment of the meaning of section 202 (7) requires consideration of the legislative history; and (3) that acceptance of plaintiffs' construction of section 202 (7) would effectively constitute "judicial promotion." The court found none of these arguments to have merit.

The basis for the court's decision is as follows:

At the outset, we conclude this case can be decided on a simple, fundamental principle of statutory construction: a clear and unambiguous statute speaks for itself. * * *

Section 202 obviously directs that an officer of the Navy, while serving as [Assistant Judge Advocate General], is entitled to the pay of a rear admiral (lower half). Contrary to defendant's contention, nothing could be more clearly stated. Because plaintiffs during the relevant periods were Navy officers who undisputedly "served" as [Assistant Judge Advocates General], regardless of the means by which they were named to such positions, they are entitled to judgment on their claims for back pay as a matter of law. 204 Ct. Cl. at 680.

The Court of Claims has now clearly held that an officer, who is "detailed" or "assigned" to the position of Assistant Judge Advocate General and who serves in that position, is entitled to the pay of a rear admiral (lower half) under the provisions of section 202 (7) of Title 37, U.S. Code. In view of that judicial precedent we will no longer follow the decision 50 Comp. Gen. 22, supra, to the extent that it is inconsistent with the Court's holding in the Selman case.

Accordingly, the successors to the plaintiffs in Selman in the statutorily created positions are entitled to the pay of rear admiral (lower half) and our decision 50 Comp. Gen. 22, supra, will no longer be followed.

[B-178205]

Contracts-Negotiation-Awards-Validity

Validity of award by Federal Energy Administration (FEA) for dedicated automatic data processing services through facilities management contract was not affected by Brooks Act, 40 U.S.C. 759, and implementing regulations and policies, because FEA was entitled to rely on authorizations to proceed with procurement given by Office of Management and Budget (OMB) and General Services Administration after reviews of solicitation and FEA's cost and other justifications. Also, provisions of OMB Circular No. A-54 and Federal Management Circular 74-5 concerning ADPE acquisitions are ordinarily executive branch policy matters not for resolution by General Accounting Office (GAO).

Contractors-Incumbent—Elimination From Competitive Range— Negotiated Contract

Agency's elimination of incumbent contractor from competitive range had reasonable basis. Totality of many allegedly "informational" deficiencies made proposal so materially deficient that it could not be made acceptable except by major

revisions and additions. Incumbent's low proposed estimated costs did not have to be considered since proposal was found to be totally technically unacceptable. There is no basis for favoring incumbent in competitive range determination with presumptions based merely on prior satisfactory service, since proposal must demonstrate compliance with essential requests for proposals (RFP) requirements.

Contracts-Negotiation-Competition-Competitive Range Formula-Predetermined Cut-Off Score-Not Prejudicial

Although use of predetermined cut-off score to establish competitive range is not in accord with sound procurement practice, it is not prejudicial to offeror eliminated from competitive range in view of offeror's low technical score of 44.8 points on 100-point scale in relation to scores of proposals included in competitive range (96.3, 92.1 and 88.2).

Contracts-Negotiation-Cost-Plus-Award-Fee

-Cost-Plus-Award-Fee Contracts-Esti

mated Costs--Automatic Data Processing Services

Recognizing that low cost estimates should not be accepted at face value and that agency should make independent cost projection of estimated costs, agency's determination, after cost analysis, that successful offeror's proposed low estimated costs for cost-plus-award-fee contract for automatic data processing services were realistic, was reasonable, notwithstanding lack of complete explanation of why proposed costs were substantially less than those of protester, who offered similar computer configuration.

Contracts-Negotiation-Evaluation Factors-Factors Other Than Price-Relative Importance of Price

Although RFP, which only stated that "cost is an important factor in selection of the offeror for contract award," was defective for failing to apprise offerors of relative importance of estimated costs vis-a-vis other specified evaluation factors, there was no prejudice because successful offeror's proposal received highest score on technical evaluation and offered lowest evaluated estimated costs, and proposals of other offeror in competitive range completely responded to all factors considered in award selection.

Contracts-Negotiation-Competition-Exclusion of Other Firms-No Exclusion on Basis of Potential or Theoretical Conflict of Interest

In absence of condition in solicitation which clearly limited proposals only to those firms (including officers of firms) which have no connection with oil or gas industry, together with clearly supportable reason for so limiting competition, and since there is no relevant legal prohibition, award of automatic data processing services contract by FEA to firm whose Chairman of Board of Directors has some interest in oil or gas industry was not improper. Firm should not be excluded from competition simply on basis of theoretical or potential conflict of interest.

Contracts

Specifications-Conformability of Equipment, etc., Offered Administrative Determination-Basis of Evaluation

Procuring agency had reasonable basis for determining, after discussions had been conducted, that successful offeror's proposal for automatic data processing services complied with RFP requirements concerning data base management system, testing, manpower, dedicated facilities, communications processors, and telecommunications network.

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