[Request for Reconsideration of Protest Under State Department Solicitation]
Highlights
A firm requested reconsideration of its denied protest against the Department of State's refusal to consider it eligible to compete for the design and construction of U.S. embassies. GAO had held that: (1) State reasonably determined that the protester lacked the requisite experience; (2) the protester was required to form a joint venture with its parent company in order to qualify its experience; and (3) the protester untimely filed its protest. In its request for reconsideration, the protester contended that it: (1) timely filed its protest; and (2) was led to believe that State would consider its parent company's experience in its eligibility determination. GAO held that: (1) there was no evidence that State considered the experience of the protester's parent company in qualifying it for past procurements; (2) the protester could not reasonably expect State to disregard the eligibility requirements; and (3) the protester failed to provide any evidence that warranted reversal of the original decision. Accordingly, the request for reconsideration was denied.
B-239493, Feb 7, 1991
CIVILIAN PERSONNEL - Compensation - Compensation restrictions - Rates - Amount determination DIGEST: 1. Employee, a firefighter, who works regularly scheduled standby duty on Sundays, is not entitled to premium pay on an annual basis at the rate of 22-1/2 percent, even though he worked two work shifts on Sunday which transcended two pay periods, since he performed Sunday work for one 24- hour period, a calendar Sunday, which under 5 C.F.R. Sec. 550.144(a)(4) constitutes one, not two calendar Sundays. Therefore, under the cited regulation, the employee has not worked the required 20 to 40 Sundays over a year's period so as to be entitled to premium pay at the 22-1/2 percent rate. 2. Firefighters may not be paid a flat rate of 25 percent premium pay, irrespective of the number of Sundays worked during a year since the applicable regulation in 5 C.F.R. Sec. 550.144(a)(4) clearly bases any increase in the basic rate of premium pay (20 percent) upon the average number of Sundays worked over a year's period.
Randy W. Hoffman:
The issue for decision is whether Mr. Randy W. Hoffman, a firefighter with the Department of the Navy, is entitled to 2-1/2 percent additional premium pay for regularly scheduled standby duty performed on Sundays in 1989. /1/
Section 550.141, title 5, Code of Federal Regulations (1990), authorizes an agency to pay premium pay on an annual basis, instead of regular premium pay, to employees in positions requiring the performance of substantial periods of regularly scheduled standby duty. This premium pay is an appropriate percentage not in excess of 25 percent of the employee's rate of basic pay. Section 550.144(a)(4) provides for premium pay on an annual basis for regularly scheduled standby duty beginning at 20 percent of basic pay. The agency shall then increase this rate by adding 2-1/2 percent when the employee is required to perform Sunday work on an average of 20 to 40 Sundays over a year's period.
Mr. Hoffman filed a grievance concerning the rate of his premium pay for a tour of duty in 1989 which required him to work 24 hours each day for 6 days, Thursday through Tuesday, with 8 days off, Wednesday through Wednesday. He was paid premium pay for Sunday work at the rate of 22-1/2 percent until July 1989 when he changed to a work schedule that did not include Sundays and he was reduced to 20 percent premium pay for standby duty beginning in July 1989.
Mr. Hoffman contends that, based upon 5 C.F.R. Sec. 550.144(a)(4), he is entitled to the 22-1/2 percent rate for the entire 1989 calendar year. claims that he worked a total of 30 Sundays in 1989. The Navy disagrees and states that he only worked a total of 12 Sundays in 1989.
A review of Mr. Hoffman's timecards shows that from January through June 1989, he worked the last Saturday of a pay period and the following day, Sunday, in the next pay period. For example, during the pay period ending on January 14, 1989, Mr. Hoffman worked a 24-hour shift beginning at 9 a.m. on Saturday, and including 9 hours of Sunday work from 12:01 a.m. to 9 a.m. on Sunday, January 15 (the start of the following pay period). then worked another 24-hour shift from 9 a.m. on Sunday, January 15, until 9 a.m. on Monday, January 16.
This Office has recognized that since there may be problems involving employees with uncommon tours of duty which create the need for flexibility, any 24-hour period may be treated as a "day." /2/ Further, in order to determine the number of Sundays an employee will be scheduled to work, any work which is scheduled to be performed on Sunday is included as Sunday work. Thus, an employee is credited with working on a Sunday when his tour of duty begins on a Saturday and ends on Sunday as well as when his tour of duty begins on Sunday and ends on Monday. /3/
However, although Mr. Hoffman worked two workshifts on every other Sunday during the first 6 months of 1989, he, in fact, worked only one calendar Sunday each pay period. The fact that the Sunday work encompassed two different workshifts does not transmute it into two Sundays under the provisions of section 550.144(a)(4) for purposes of payment of premium pay on an annual basis.
Accordingly, we find that Mr. Hoffman worked only 12 Sundays in 1989 prior to the change in his tour of duty. Hence, he is not entitled to an increase of 2-1/2 percent in his rate of premium pay for the remainder of 1989 (July 2 through December 31).
Finally, the proposal by Mr. Hoffman and his union representative that all firefighters be paid a flat rate of 25 percent premium pay for regularly scheduled standby duty, irrespective of the number of Sundays worked during a year, may not be implemented. The regulatory provision, 5 C.F.R. Sec. 550.144(a)(4) clearly bases the increases in the basic rate of premium pay (20 percent) upon the average number of Sundays worked over a year's period.
/1/ The request was jointly submitted by the Department of the Navy and the National Association of Government Employees pursuant to the labor- management relations procedures set forth in 4 C.F.R. part 22 (1990).
/2/ Council and Washburn, 58 Comp.Gen. 347, 349 (1979); 42 Comp.Gen. 195, 200 (1962).
/3/ Federal Personnel Manual Supplement 990-2, Book 550, Subchapter S1- 6d(3), Inst. 68, Mar. 7, 1983.