[Protest of Air Force Contract Award]
Highlights
A firm protested an Air Force contract award, contending that the awardee's bid price was unrealistically low. GAO held that it would not review the Air Force's affirmative responsibility determination, since there was no evidence of fraud or bad faith. Accordingly, the protest was dismissed.
B-165518, JAN. 21, 1969
TO MR. J. E. STEVENS:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1968 (REF: 7240, JES:JES), AND ATTACHMENTS, REQUESTING A DECISION AS TO THE ENTITLEMENT OF CAPTAIN A. E. MANNING, 083490, TO REIMBURSEMENT FOR PERSONAL TRAVEL AND TRANSPORTATION OF DEPENDENTS UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 68-35 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.
BY DIVISION SPECIAL ORDER NO. 267-65, 3RD MARINE DIVISION, (REIN), FMF, FPO, SAN FRANCISCO, 96601 DATED SEPTEMBER 26, 1965, CAPTAIN MANNING WAS TRANSFERRED FROM THE 9TH MOTOR TRANSPORT BATTALION AT THAT STATION TO THE FLEET MARINE FORCE, PACIFIC, CAMP H. M. SMITH, HAWAII, WITH AUTHORIZED LEAVE IN HAWAII OR THE CONTINENTAL UNITED STATES, ALL TRAVEL TIME IN EXCESS OF THAT AUTHORIZED BY THE MOST DIRECT ROUTE TO HIS NEW STATION TO BE CHARGEABLE AS LEAVE.
BY FIRST ENDORSEMENT DATED NOVEMBER 27, 1965, TO HIS ORDERS, CAPTAIN MANNING WAS DIRECTED TO REPORT, ON OR ABOUT DECEMBER 4, 1965, TO THE OFFICER IN CHARGE, FMF PAC TRANSIENT FACILITY, WEST PAC, CAMP S. D. BUTLER, FOR TRANSPORTATION TO THE CONTINENTAL UNITED STATES WHERE HE WAS TO REPORT TO THE NEAREST MARINE CORPS ACTIVITY FOR ENDORSEMENT TO HIS ORDERS TO DETERMINE THE EFFECTIVE DATES OF PROCEED, DELAY AND TRAVEL IN REPORTING TO HIS NEW STATION. MEMORANDUM ENDORSEMENT DATED DECEMBER 7, 1965, TO HIS ORDERS, SHOWS THAT CAPTAIN MANNING REPORTED TO THE MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, ON DECEMBER 7, 1965, AND WAS DIRECTED TO PROCEED IN ACCORDANCE WITH HIS BASIC ORDERS AND REPORT TO HIS NEW STATION NO LATER THAN JANUARY 10, 1966.
YOU REFER TO ADMINISTRATIVE REGULATIONS PROVIDING IN PART THAT THE DETACHING COMMAND IS RESPONSIBLE FOR ARRANGING A PORT CALL FOR THE DEPENDENTS' TRAVEL AND TO ENDORSE THE MEMBER'S ORDERS INDICATING WHAT ARRANGEMENTS, IF ANY, HAVE BEEN MADE, BUT POINT OUT THAT IN THIS PARTICULAR CASE THE DETACHING COMMAND DID NOT COMPLY WITH THE REGULATIONS TO ARRANGE A PORT CALL FOR THE DEPENDENTS OF CAPTAIN MANNING. YOU ALSO SAY THAT CAPTAIN MANNING ATTEMPTED TO ARRANGE A PORT CALL WHILE IN A DELAY EN ROUTE STATUS; THAT UPON ARRIVAL AT TREASURE ISLAND, SAN FRANCISCO, AT THE EXPIRATION OF HIS DELAY STATUS HE WAS INFORMED THAT ARRANGEMENTS FOR HIS DEPENDENTS' TRAVEL HAD NOT BEEN MADE AND THAT THERE WOULD NOT BE ANY SPACE AVAILABLE FOR A CONSIDERABLE LENGTH OF TIME; THAT HE WAS ALSO INFORMED THAT HE WAS NOT ENTITLED TO GOVERNMENT TRANSPORTATION FOR HIS OWN TRAVEL; AND THAT IN THOSE CIRCUMSTANCES HE PROCURED COMMERCIAL AIR TRANSPORTATION FOR HIMSELF AND HIS DEPENDENTS FROM SAN FRANCISCO, CALIFORNIA, TO HAWAII.
YOU FURTHER SAY IN YOUR LETTER THAT CAPTAIN MANNING'S ORDERS NEITHER AUTHORIZED NOR DIRECTED GOVERNMENT TRANSPORTATION FOR THE TRANSOCEANIC TRAVEL OF HIS DEPENDENTS; THAT PARAGRAPH M7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES IN PART THAT GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED EXCEPT WHEN IT WOULD SEPARATE A FAMILY WHICH WOULD OTHERWISE TRAVEL TOGETHER; AND THAT PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS STATES THAT WHEN GOVERNMENT TRANSPORTATION REQUESTS ARE NOT AVAILABLE TO THE MEMBER HE IS ENTITLED TO REIMBURSEMENT FOR THE LEAST COSTLY COMMERCIAL AIR ACCOMMODATION.
ON THE BASIS OF THE FACTS PRESENTED AND THE APPLICABLE REGULATIONS CITED THE FOLLOWING QUESTIONS ARE RAISED:
"A. IS CAPTAIN MANNING ENTITLED TO REIMBURSEMENT OF THE AMOUNT EXPENDED BY HIM TO PROCURE COMMERCIAL TRANSPORTATION FOR HIS DEPENDENTS FROM SAN FRANCISCO, CALIFORNIA TO HAWAII?
"B. IF THE ANSWER TO QUESTION A IS NEGATIVE, IS CAPTAIN MANNING ENTITLED TO REIMBURSEMENT OF THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY ON THE BASIS THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE?
REGARDING THE TRAVEL OF CAPTAIN MANNING FROM SAN FRANCISCO, CALIFORNIA, TO HAWAII, YOU RAISE THE FOLLOWING QUESTIONS:
"A. IS CAPTAIN MANNING ENTITLED TO REIMBURSEMENT OF THE AMOUNT EXPENDED BY HIM TO PROCURE COMMERCIAL TRANSPORTATION FOR HIMSELF FROM SAN FRANCISCO, CALIFORNIA TO HAWAII?
"B. IF THE ANSWER TO QUESTION A IS NEGATIVE, IS CAPTAIN MANNING ENTITLED TO REIMBURSEMENT OF THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY ON THE BASIS THAT GOVERNMENT TRANSPORTATION WAS NOT MADE AVAILABLE TO HIM?
YOU SAY THAT CAPTAIN MANNING WAS REIMBURSED FOR THE OVERLAND TRAVEL OF HIS DEPENDENTS AND PER DIEM FOR HIS CONSTRUCTIVE TRAVEL TO HAWAII (PRESUMABLY FROM THE OLD DUTY STATION OVERSEAS).
THE TRANSPORTATION OF MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO 37 U.S.C. 404 AND 406. PARAGRAPH M3050-1 OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, ONLY WHILE ACTUALLY IN A "TRAVEL STATUS," AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS. PARAGRAPH M6454 OF THE REGULATIONS PROVIDES FURTHER THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT.
IT HAS CONSISTENTLY BEEN HELD THAT ALLOWANCES ARE NOT PAYABLE FOR TRAVEL PERFORMED SOLELY FOR LEAVE PURPOSES, EVEN THOUGH PERFORMED IN A DUTY STATUS UNDER COMPETENT ORDERS, THE TRAVEL BEING CONSIDERED AS MADE FOR PERSONAL REASONS AND NOT AS HAVING BEEN PERFORMED ON PUBLIC BUSINESS. PERRIMOND V UNITED STATES, 19 CT. CL. 509; DAY V UNITED STATES, 123 CT.CL. 10, 18; 30 COMP. GEN. 226.
INSOFAR AS PERTAINING TO PUBLIC BUSINESS, CAPTAIN MANNING'S ORDERS OF SEPTEMBER 26, 1965, SERVED ONLY TO DIRECT A PERMANENT CHANGE OF STATION. THE AUTHORITY THERE CONTAINED FOR DELAY IN EITHER HAWAII OR CONTINENTAL UNITED STATES WAS PROVIDED FOR THE PURPOSE OF PERMITTING HIM TO TAKE LEAVE OF ABSENCE IN EITHER OF THOSE AREAS PRIOR TO REPORTING TO THE NEW DUTY STATION. THE FIRST ENDORSEMENT OF NOVEMBER 27, 1965, DIRECTED NO ADDITIONAL TRAVEL ON PUBLIC BUSINESS, IT BEING CONCERNED ONLY WITH TRAVEL INSTRUCTIONS FOR THE USE OF THE OFFICER IN AVAILING HIMSELF OF THE LEAVE OF ABSENCE AUTHORIZED BY THE BASIC ORDERS.
CONSEQUENTLY, ANY TRAVEL OR DELAY UNDER THE ORDERS EXCEEDING THAT NECESSARY TO PROCEED DIRECTLY FROM THE OLD TO THE NEW DUTY STATION LACKED THE ELEMENT OF PUBLIC BUSINESS TO SERVE AS AUTHORITY FOR THE PAYMENT OF TRAVEL ALLOWANCES. ACCORDINGLY, CAPTAIN MANNING IS NOT ENTITLED TO ANY REIMBURSEMENT FOR HIS PERSONAL TRAVEL FROM SAN FRANCISCO TO HAWAII.
PARAGRAPH M7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO, FROM, OR BETWEEN AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE, WITH CERTAIN EXCEPTIONS INCLUDING WHEN IT WOULD SEPARATE A FAMILY WHO WOULD OTHERWISE TRAVEL TOGETHER, AND WHEN IT IS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED THAT THE USE OF GOVERNMENT TRANSPORTATION FACILITIES WOULD INVOLVE A DELAY OF MORE THAN 30 DAYS.
THE EXCEPTION IN PARAGRAPH M7002-1B TO THE REQUIREMENT FOR THE USE BY DEPENDENTS OF GOVERNMENT AIRCRAFT OR VESSELS FOR TRANSOCEANIC TRAVEL WHERE ITS USE "WOULD SEPARATE A FAMILY WHICH WOULD OTHERWISE TRAVEL TOGETHER," HAS REFERENCE TO THE CIRCUMSTANCE WHERE THE DEPENDENTS, IF NOT OTHERWISE RESTRICTED, WOULD ACCOMPANY THE MEMBER IN HIS ACCOMPLISHMENT OF THE TRAVEL ON PUBLIC BUSINESS REQUIRED BY HIS TRAVEL ORDERS. THE MEMBER'S TRAVEL IN THIS CASE FROM SAN FRANCISCO TO HAWAII WAS PERFORMED FOR PERSONAL REASONS BY VIRTUE OF THE AUTHORITY EXTENDED TO HIM TO AVAIL HIMSELF OF LEAVE IN THE CONTINENTAL UNITED STATES RATHER THAN AS A MATTER OF PUBLIC BUSINESS REQUIRED BY HIS ORDERS AND, CONSEQUENTLY, HIS DEPENDENTS' TRAVEL WAS NOT OF THE NATURE EXCEPTED BY PARAGRAPH M7002-1B FROM THE REQUIREMENT THAT GOVERNMENT TRANSPORTATION BE USED IF AVAILABLE. HOWEVER, WE HAVE RECOGNIZED THAT IN CASES WHERE DEPENDENTS ARE AUTHORIZED AS DISTINGUISHED FROM SPECIFICALLY DIRECTED TO TRAVEL BY GOVERNMENT CONVEYANCE WHICH IS AVAILABLE, BUT USE COMMERCIAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL AT PERSONAL EXPENSE, THE MEMBER MAY BE REIMBURSED FOR THE COST OF SUCH TRAVEL NOT TO EXCEED THE APPLICABLE TARIFF CHARGE THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION. SEE 40 COMP. GEN. 482; DECISION OF DECEMBER 13, 1968, B-165073, 48 COMP. GEN.--- .
WHILE CAPTAIN MANNING SAID HE WAS INFORMED THAT THERE WOULD NOT BE ANY SPACE AVAILABLE FOR HIS DEPENDENTS ON GOVERNMENT AIR TRANSPORTATION FOR A CONSIDERABLE LENGTH OF TIME, THE RECORD DOES NOT SHOW THAT THERE WOULD HAVE BEEN INVOLVED A DELAY OF MORE THAN 30 DAYS FOLLOWING A TIMELY APPLICATION THEREFOR AS REQUIRED BY PARAGRAPH M7002-1B OF THE JOINT TRAVEL REGULATIONS TO PROVIDE THE BASIS FOR A DETERMINATION THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE TO THEM.
ON THE PRESENT RECORD, CAPTAIN MANNING IS NOT ENTITLED TO REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRANSPORTATION FOR HIS DEPENDENTS FROM SAN FRANCISCO, CALIFORNIA, TO HAWAII. HOWEVER, ON THE BASIS AS EXPLAINED ABOVE THAT HE IS OTHERWISE ENTITLED TO REIMBURSEMENT FOR HIS DEPENDENTS' TRANSPORTATION FROM SAN FRANCISCO TO HAWAII, HE MAY BE ALLOWED THE AMOUNT THE MARINE CORPS WOULD HAVE HAD TO PAY FOR GOVERNMENT AIR TRANSPORTATION FOR THEM BETWEEN SUCH POINTS.