[Protest of DOE Subcontract Solicitation]
Highlights
Two firms protested a Department of Energy (DOE) subcontract solicitation for supply store operations. One protester contended that the prime contractor improperly reopened the procurement and amended the solicitation after receiving best-and-final offers (BAFO). The second protester contended that the prime contractor improperly engaged in post-BAFO discussions with the first protester. GAO held that the: (1) first protester was not prejudiced by the reopening of the procurement; (2) solicitation amendment did not favor the incumbent contractor; and (3) prime contractor properly amended the solicitation and requested new BAFO. Accordingly, the protests were denied in part and dismissed in part.
A-31585, JUNE 20, 1930, 9 COMP. GEN. 517
STORAGE OF HOUSEHOLD EFFECTS OF OFFICERS AND EMPLOYEES OF BUREAU OF FOREIGN AND DOMESTIC COMMERCE ON CHANGE OF STATION PROVISIONS CONTAINED IN THE ANNUAL APPROPRIATION ACTS FOR THE TRANSPORTATION OF EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE IN GOING TO AND RETURNING FROM THEIR POSTS OF DUTY, OR WHEN TRAVELING UNDER THE ORDER OF THE SECRETARY OF COMMERCE, DO NOT AUTHORIZE PAYMENT OF THE COST OF STORAGE OF SUCH EFFECTS AT THE OLD OR THE NEW STATION PRIOR TO, OR SUBSEQUENT TO, THEIR TRANSPORTATION.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JUNE 20, 1930:
DEPARTMENT OF COMMERCE REGULATIONS, DATED OCTOBER 1, 1928, EFFECTIVE DECEMBER 1, 1928, TO GOVERN THE ALLOWANCE OF EXPENSES FOR TRANSPORTATION AND SUBSISTENCE OF FAMILIES AND EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE, AS CHANGED BY AMENDMENT NO. 3, EFFECTIVE APRIL 1, 1930, ARE IN PART AS FOLLOWS:
47. STORAGE OF HOUSEHOLD EFFECTS.--- WHEN IT IS IMPOSSIBLE FOR AN OFFICER OR EMPLOYEE TO SECURE SUITABLE QUARTERS ON THE ARRIVAL OF HIS HOUSEHOLD EFFECTS AT THE DESTINATION AUTHORIZED, HE MAY STORE EFFECTS FOR A PERIOD OF NOT TO EXCEED 90 DAYS WHILE SUITABLE QUARTERS ARE SECURED. HOWEVER, IN EXCEPTIONAL CASES A LONGER PERIOD MAY BE AUTHORIZED BY THE DIRECTOR.
WHEN AN OFFICER OR EMPLOYEE IS PERMANENTLY TRANSFERRED FROM ONE POST TO ANOTHER HE MAY BE ALLOWED STORAGE CHARGES AT HIS FORMER POST ON HIS EFFECTS, INCLUDING AN AUTOMOBILE, WHILE HE IS TRAVELING TO HIS NEW POST, EITHER DIRECTLY OR INDIRECTLY, UNDER COMPETENT ORDERS, AND/OR WHILE HE IS SECURING SUITABLE LIVING QUARTERS AFTER HIS ARRIVAL AT HIS NEW POST.
WHEN STORAGE CHARGES ARE NECESSARY, THE REIMBURSEMENT ACCOUNT MUST BE SUPPORTED BY A FULL EXPLANATION OF THE NECESSITY THEREFOR, TOGETHER WITH A RECEIPT OF THE PAYMENT. WHEN IT IS NECESSARY TO STORE HOUSEHOLD EFFECTS, THE COST OF HAULING BOTH TO AND FROM THE STORAGE WAREHOUSE WILL BE ALLOWED.
THE SOLE STATUTORY AUTHORITY FOR THE TRANSPORTATION AT GOVERNMENT EXPENSE OF FAMILIES AND EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE IS FOUND IN ANNUAL APPROPRIATION ACTS, IN TERMS AS FOLLOWS:
* * * TO PAY THE ITEMIZED AND VERIFIED STATEMENTS OF THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION AND SUBSISTENCE, UNDER SUCH REGULATIONS AS THE SECRETARY OF COMMERCE MAY PRESCRIBE, OF FAMILIES AND EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE IN GOING TO AND RETURNING FROM THEIR POSTS, OR WHEN TRAVELING UNDER THE ORDER OF THE SECRETARY OF COMMERCE. * * * (SEE ACT OF JANUARY 25, 1929, 45 STAT. 1119, AND PRIOR APPROPRIATION ACTS; ALSO, PUBLIC NO. 142, APPROVED APRIL 18, 1930, MAKING APPROPRIATIONS FOR THE DEPARTMENT OF COMMERCE FOR THE FISCAL YEAR ENDING JUNE 30, 1931.)
THE STATUTORY AUTHORITY IS TO PAY THE ACTUAL AND NECESSARY EXPENSES OF TRANSPORTATION OF THE EFFECTS OF THE OFFICERS AND EMPLOYEES AND THE STATUTES DO NOT IN TERMS AUTHORIZE THE STORAGE OF THE EFFECTS AT GOVERNMENT EXPENSE PRIOR OR SUBSEQUENT TO THEIR TRANSPORTATION. THE WORD ,TRANSPORTATION" MEANS LITERALLY THE ACTION OF CARRYING OVER OR ACROSS, AND WHEN USED IN ITS ORDINARY SENSE IT MEANS THE MOVING OR CONVEYING FROM ONE PLACE TO ANOTHER (ASHER V. STATE, 142 N.E. 407, 408; 194 IND. 553), A MEANING OF CONTRARY SENSE TO THAT OF "STORAGE," WHICH RELATES TO KEEPING GOODS IN THE SAME PLACE INSTEAD OF MOVING THEM FROM ONE PLACE TO ANOTHER. ALTHOUGH THE TERM "TRANSPORTATION" MAY HAVE AN ENLARGED MEANING WHEN USED IN THE TECHNICAL SENSE AS APPLIED TO THE SPECIAL CALLING OF CONDUCTING A RAILROAD BUSINESS AND WHEN SO USED, AS FOR EXAMPLE, IN THE INTERSTATE COMMERCE ACT, SEE 41 STAT. 475 (49 U.S.C. 1), MAY INCLUDE CHARGES FOR STORAGE FURNISHED BY A CARRIER, RAILWAY V. FREEDOM OIL WORKS, 247 FED.REP. 573, 575, WHEN THE TERM IS USED ONLY IN ITS ORDINARY SIGNIFICANCE, IT DOES NOT INCLUDE SUCH EXTRANEOUS SERVICES BUT ONLY THE CONVEYING FROM ONE PLACE TO ANOTHER AND THE SERVICES DIRECTLY INCIDENTAL THERETO. SEE MAGNOLIA WAREHOUSE AND STORAGE CO. V. DAVIS AND BLACKWELL, 195 S.W. 184, 185; 108 TEX. 422.
THERE IS NOTHING TO INDICATE THAT THE TERM "TRANSPORTATION" IS USED IN ANY EXTRAORDINARY SENSE IN THE ANNUAL APPROPRIATION ACTS AUTHORIZING THE TRANSPORTATION OF THE EFFECTS OF OFFICERS AND EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE, AND, OF COURSE, THE MEANING OF THAT TERM AS USED IN THE STATUTES CAN NOT BE EXTENDED BY ADMINISTRATIVE REGULATIONS. SEE 2 COMP. GEN. 598; 9 COMP. GEN. 434. WHILE THE STORAGE OF EFFECTS MAY BE NECESSARILY INCIDENTAL TO THE TRANSFER FROM ONE STATION TO ANOTHER OF AN OFFICER OR EMPLOYEE SUCH STORAGE IS NOT DIRECTLY INCIDENTAL TO THE TRANSPORTATION OF THE EFFECTS. THE STATUTES DO NOT AUTHORIZE PAYMENT OF ALL EXPENSES OF THE TRANSFER OF AN OFFICER OR EMPLOYEE BUT ONLY THE TRANSPORTATION EXPENSES OF SUCH TRANSFER. ACCORDINGLY, I HAVE TO ADVISE YOU THAT IN THE ABSENCE OF MORE SPECIFIC STATUTORY AUTHORITY THAN IS NOW CONTAINED IN THE ANNUAL APPROPRIATION ACTS, THE REGULATIONS IN QUESTION, IN SO FAR AS THEY PURPORT TO PROVIDE FOR PAYMENT AT GOVERNMENT EXPENSE OF THE COSTS OF STORAGE OF EFFECTS OF OFFICERS AND EMPLOYEES AT THEIR OLD OR NEW STATIONS PRIOR TO OR SUBSEQUENT TO THE ACTUAL TRANSPORTATION OF THE EFFECTS ARE NOT AUTHORIZED BY LAW.