[Protest of Army Solicitations for Roof Recoating Projects]
Highlights
A firm protested an Army solicitation for roof recoating projects, contending that the brand name specifications unduly restricted competition. GAO held that the protester, a materials manufacturer, was not: (1) a prospective bidder for the construction services contract; and (2) sufficiently interested to protest the solicitation, since it would not be in line for award even if its protest was sustained. Accordingly, the protest was dismissed.
B-107870, AUG. 17, 1965
TO KING AND KING:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1965, CONCERNING THE CLAIM OF JOSE PEREZ, USN, RETIRED (420-59-45), FOR INCREASED RETIRED PAY.
IN LETTER OF MARCH 10, 1964, YOU REQUESTED RECONSIDERATION OF AN EARLIER CLAIM WHICH HAD BEEN BASED ON THE RULE IN CALLAHAN V. UNITED STATES, CT.CL. NO. 349-62, DECIDED FEBRUARY 14, 1964. THE CLAIM FOR CALLAHAN BENEFITS WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MAY 4, 1965, FOR THE FOLLOWING REASON:
"THE RECORDS SHOW THAT UPON THE DATE OF YOUR LAST RELEASE FROM ACTIVE SERVICE, YOU HAD COMPLETED 20 YEARS, 5 MONTHS AND 26 DAYS OF ACTUAL ACTIVE SERVICE, AND 20 YEARS, 5 MONTHS AND 29 DAYS OF SERVICE INCLUDING YOUR CONSTRUCTIVE SERVICE.'
THE "RECORDS" ABOVE REFERRED TO INCLUDE THREE DOCUMENTS AS FOLLOWS: (1) COPY OF N.NAV. 395 AUTHORIZATION FOR TRANSFER TO THE FLEET NAVAL RESERVE, DATED MARCH 29, 1935, AND FIRST INDORSEMENT THEREON DATED AUGUST 2, 1935, (2) BUREAU OF NAVAL PERSONNEL LETTER DATED MARCH 15, 1965, AND (3) COPY OF DEPARTMENT OF THE NAVY LETTER OF FEBRUARY 26, 1954, ADDRESSED TO THE DEPARTMENT OF JUSTICE SUBMITTING COMPUTATION OF THE AMOUNT DUE JOSE PEREZ AS PLAINTIFF NO. 37 IN MACE, ET AL. V. UNITED STATES, CT.CL. NO. 50374 (SANDERS TYPE BENEFITS FOR THE PERIOD SEPTEMBER 8, 1945, TO JUNE 30, 1953, INCLUSIVE, UNDER THE JUDGMENT ENTERED JULY 13, 1954).
PARAGRAPH 1 OF DOCUMENT (1) ABOVE, DISCLOSES THAT THE TRANSFER OF JOSE PEREZ TO THE FLEET NAVAL RESERVE, CLASS F-4-C, HAD BEEN APPROVED "TO BE EFFECTIVE NOT EARLIER THAN 1 AUGUST 1935.' PARAGRAPH 3 THEREOF SETS FORTH A TRANSCRIPT OF SERVICE AS FOLLOWS:
CHART ENLISTED DISCHARGED DEDUCTIONS REASON SERVICE FOR TRANSFER
YR. MO. DA. YR. MO. DA. 3/10/19 3/8/24 - - - - 5 0 0 3/13/24 3/10/28 0 0 18 SKMC 3 11 12 4/3/28 4/11/32 0 0 15 SKMC 3 11 24 4/12/32 TO 8/1/35 - - - - 3 3 21
16 2 27
THE FIRST INDORSEMENT ON (1) SHOWS THAT PEREZ, HAVING MET ALL THE REQUIREMENTS PRESCRIBED FOR CLASS F-4-C OF THE FLEET NAVAL RESERVE "HAS BEEN TRANSFERRED THERETO THIS DATE (AUGUST 2, 1935).'
IT WILL BE NOTED THAT IN SHOWING THE SUBJECT MAN'S TOTAL SERVICE FOR TRANSFER AS 16 YEARS, 2 MONTHS AND 27 DAYS (WHICH, OF COURSE, INCLUDES HIS "CONSTRUCTIVE" SERVICE), HE WAS CREDITED WITH 3 YEARS, 3 MONTHS AND 21 DAYS FOR PERIOD APRIL 12, 1932, TO AUGUST 1, 1935. IT IS APPARENT THAT THE 3 YEARS, 3 MONTHS AND 21 DAYS AND THE TOTAL OF 16 YEARS, 2 MONTHS AND 27 DAYS REFLECT CREDIT FOR AUGUST 2, 1935, THE ACTUAL DATE OF TRANSFER. IN DOCUMENT (2) IT IS SHOWN THAT PEREZ WAS ON ACTIVE DUTY FROM JUNE 6, 1941, TO SEPTEMBER 7, 1945, INCLUSIVE, 4 YEARS, 3 MONTHS AND 2 DAYS, WHICH TOGETHER WITH THE SERVICE, INCLUDING CONSTRUCTIVE SERVICE, CREDITED TO HIM AT THE DATE OF HIS TRANSFER, AMOUNTS TO 20 YEARS, 5 MONTHS AND 29 DAYS.
IN REQUESTING RECONSIDERATION OF THE SETTLEMENT OF MAY 4, 1965, YOU POINT OUT THAT THE REPORT OF FEBRUARY 26, 1954, REFERRED TO AS DOCUMENT (3) ABOVE, INDICATES THAT PEREZ WAS CREDITED WITH 16 YEARS, 2 MONTHS AND 28 DAYS' SERVICE FOR TRANSFER AND 4 YEARS, 3 MONTHS AND 3 DAYS AS CREDITABLE ACTIVE NAVAL SERVICE AFTER TRANSFER, A TOTAL OF 20 YEARS, 6 MONTHS AND 1 DAY. ON THE RECORD BEFORE US THE STATEMENT OF SERVICE IN THE REPORT OF FEBRUARY 26, 1954, IS ERRONEOUS AS TO THE PERIOD OF ACTIVE DUTY, SINCE JUNE 6, 1941, TO SEPTEMBER 7, 1945, INCLUSIVE, IS ONLY 4 YEARS, 3 MONTHS AND 2 DAYS. ALSO, THE STATEMENT AS TO THE SERVICE CREDITED TO PEREZ FOR TRANSFER IS INCONSISTENT WITH THE SERVICE, INCLUDING CONSTRUCTIVE SERVICE, THAT WAS ACTUALLY CREDITED TO HIM (ON N.NAV-395) AT DATE OF HIS TRANSFER TO THE FLEET NAVAL RESERVE ON AUGUST 2, 1935.
SECTION 2, ACT OF MAY 23, 1930, CH. 311, 46 STAT. 375, IN EFFECT WHEN PEREZ WAS TRANSFERRED TO THE FLEET NAVAL RESERVE, PROVIDED THAT:
"ALL TRANSFERS OF ENLISTED MEN OF THE NAVY OR MARINE CORPS TO THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE CREATED BY THE ACTS OF AUGUST 29, 1916, AND FEBRUARY 28, 1925, AND ALL TRANSFERS OF MEMBERS OF THE FLEET NAVAL RESERVE OR FLEET MARINE CORPS RESERVE TO THE RETIRED LIST HERETOFORE OR HEREAFTER MADE BY THE NAVY DEPARTMENT SHALL BE CONCLUSIVE FOR ALL PURPOSES, AND ALL MEN SO TRANSFERRED SHALL FROM DATE OF TRANSFER BE ENTITLED TO PAY AND ALLOWANCES IN ACCORDANCE WITH THEIR RANKS OR RATING AND LENGTH OF SERVICE AS DETERMINED BY THE NAVY DEPARTMENT AT TIME OF TRANSFER.'
SEE SIMILAR PROVISIONS CONTAINED IN 10 U.S.C. 6332.
THUS, IT APPEARS THAT THE AMOUNT OF SERVICE, 16 YEARS, 2 MONTHS AND 27 DAYS, THAT WAS CREDITED TO PEREZ UPON HIS TRANSFER TO THE FLEET NAVAL RESERVE IS "CONCLUSIVE FOR ALL PURPOSES.' IN THAT CONNECTION THE THE CHIEF OF NAVAL PERSONNEL IN FIRST INDORSEMENT DATED APRIL 12, 1965, ADVISED THE CLAIMS DIVISION OF THIS OFFICE THAT "NO CHANGES OR CORRECTIONS HAVE BEEN MADE AS TO THE TOTAL CREDITABLE SERVICE FOR TRANSFER SINCE 1 AUGUST 1935.' ACCORDINGLY, SINCE THE SERVICE SET FORTH IN THE AUTHORIZATION FOR TRANSFER, TOGETHER WITH THE SUBSEQUENT PERIOD OF ACTIVE DUTY, TOTALS LESS THAN 20 YEARS AND 6 MONTHS, THERE IS NO AUTHORITY OF LAW ON THE PRESENT RECORD TO CREDIT MR. PEREZ WITH 21 YEARS OF SERVICE IN COMPUTING HIS RETIRED PAY. THE DISALLOWANCE OF THE CLAIM IN THE SETTLEMENT OF MAY 4, 1965, IS SUSTAINED.