[Protest of Navy Contract Award for Aircraft Engine Maintenance]

B-18193, JULY 21, 1941, 21 COMP. GEN. 51

TRANSPORTATION - DEPENDENTS AND HOUSEHOLD EFFECTS - SCOPE OF TERM "PERSONNEL OF THE NAVAL ESTABLISHMENT" THE TERM "PERSONNEL OF THE NAVAL ESTABLISHMENT" APPEARING IN THE ACTS OF APRIL 5, 1941, AND MAY 6, 1941, AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF SUCH PERSONNEL, ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, PRIOR TO THE ISSUANCE OF ORDERS RELIEVING THEM FROM THEIR STATIONS, INCLUDES NAVY CIVILIAN EMPLOYEES AS WELL AS OFFICERS AND ENLISTED MEN OF THE NAVY ITSELF.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JULY 21, 1941:

I HAVE YOUR LETTER OF JUNE 23, 1941, REFERENCE LL/L20-4 (410614) K, AS FOLLOWS:

THE " FIFTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941," APPROVED APRIL 5, 1941 ( PUB. LAW 29, 77TH CONG.), PROVIDES IN PART:

"DURING THE FISCAL YEAR 1941 THE DEPENDENTS AND HOUSEHOLD EFFECTS OF SUCH PERSONNEL OF THE NAVAL ESTABLISHMENT ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AND IN ALASKA, AS MAY BE DETERMINED UPON BY THE SECRETARY OF THE NAVY, MAY, PRIOR TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH PERSONNEL FROM THEIR STATIONS, BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO SUCH LOCATIONS IN CONTINENTAL UNITED STATES AS MAY BE SELECTED BY THE SECRETARY OF THE NAVY, BY THE USE OF EITHER GOVERNMENT OR COMMERCIAL MEANS OF TRANSPORTATION, AND LATER FROM SUCH LOCATIONS TO THE DUTY STATIONS TO WHICH SUCH PERSONNEL MAY BE ORDERED, AND CURRENT APPROPRIATIONS OF THE NAVAL ESTABLISHMENT AVAILABLE FOR TRAVEL AND TRANSPORTATION MAY BE USED FOR THIS PURPOSE: * * *.'

IN CONNECTION WITH THE ABOVE-QUOTED PROVISION, THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION, A LETTER FROM THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, DATED JUNE 14, 1941, WITH ACCOMPANYING NAVY DEPARTMENT DESPATCH, REQUESTING YOUR DECISION ON THE QUESTION THEREIN PRESENTED, RELATIVE TO WHETHER THE TERM "PERSONNEL OF THE NAVAL ESTABLISHMENT" AS SET FORTH IN THE ABOVE ACT, INCLUDES NAVY CIVILIAN EMPLOYEES OR WHETHER SUCH TERM IS APPLICABLE ONLY TO ALL NAVAL MILITARY PERSONNEL.

AS THE FISCAL YEAR MENTIONED IN THE STATUTE QUOTED IN YOUR LETTER IS NOW CLOSED, IT IS ASSUMED ANY QUESTION BEFORE THE DEPARTMENT OF INCURRING EXPENSES OF THE CHARACTER IN QUESTION PERTAINS PRIMARILY TO THE LIKE PROVISION IN THE NAVAL APPROPRIATION ACT, 1942, APPROVED MAY 6, 1941, PUBLIC LAW 48.

THE TERM EMPLOYED,"PERSONNEL OF THE NAVAL ESTABLISHMENT," WAS NOT DEFINED IN THE STATUTE, AND, AS YOUR QUESTION ITSELF INDICATES, THERE IS REASONABLE DOUBT AS TO ITS INTENDED MEANING, SUCH DOUBT AS TO JUSTIFY REFERENCE TO THE LEGISLATIVE HISTORY OF THE ENACTMENT IN ORDER TO ASCERTAIN THE FACTUAL BACKGROUND PRESENTED TO THE CONGRESS AS A BASIS FOR THE LEGISLATION, AND THE PARTICULAR RESULT WHICH WAS SOUGHT TO BE ACHIEVED BY THE LANGUAGE USED. 19 COMP. GEN. 227; 20 ID. 81, 84; AND CASES THERE CITED. IN THE PUBLISHED HEARINGS ON THE BILL, BEFORE THE SUBCOMMITTEE OF THE HOUSE APPROPRIATIONS COMMITTEE, APPEARS THE FOLLOWING DISCUSSION OF THE NEW PROVISION (P. 305):

MR. WOODRUM. THE FOLLOWING SUGGESTED CHANGE IN LANGUAGE IS MADE: (QUOTING THE PROPOSED SECTION, AS ABOVE).

COMMANDER, WILL YOU TELL US ABOUT THAT?

COMMANDER LEFFLER. THIS CHANGE OF LANGUAGE HAS BEEN REQUESTED BECAUSE OF THE NECESSITY FOR EVACUATING DEPENDENTS FROM OVERSEAS STATIONS.

MR. WOODRUM. THE SAME THING HAS BEEN REQUESTED FOR THE ARMY?

COMMANDER LEFFLER. YES, SIR.

MR. TABER. THIS IS FOR GETTING THE FAMILIES HOME?

COMMANDER LEFFLER. THAT IS CORRECT. AT PRESENT WE CAN ONLY BRING THEM TO THE PORT OF ENTRY AND THE GOVERNMENT DROPS THEM. AT PRESENT IT IS ONLY A MATTER OF DEPENDENTS RETURNING FROM ASIA, AND THERE IS NOT A LARGE NUMBER.

MR. WOODRUM. FROM WHAT PLACES ARE THEY BEING BROUGHT?

COMMANDER LEFFLER. WE NOW HAVE BROUGHT THEM BACK OR ARE IN THE PROCESS OF BRINGING THEM BACK FROM THE ASIATIC STATION.

MR. WOODRUM. THIS ALSO PROVIDES FOR REIMBURSEMENT FOR THOSE WHO COME BACK ON THEIR OWN XPENSE?

COMMANDER LEFFLER. YES, SIR. BUT THIS WILL NOT BE A REIMBURSEMENT; THAT IS, IN SOME CASES IT IS A MATTER OF AN ADVANCE MADE THE PERSONNEL.

MAY I TAKE A CASE AS AN ILLUSTRATION, OF A FAMILY THAT CAME BACK FROM ASIA, WHOSE RELATIVES LIVE IN CHICAGO. NOW, IF THE OFFICER, WHEN HE FINALLY RETURNS TO THE UNITED STATES FOR DUTY, CAME ON TO WASHINGTON, THE GOVERNMENT WOULD ONLY PAY FROM CHICAGO TO WASHINGTON, BUT IN THE MEANTIME THIS LANGUAGE PERMITS THE GOVERNMENT TO REIMBURSE HIM FOR TRAVEL AS FAR AS CHICAGO. IT IS A MATTER OF THE GOVERNMENT FINANCING THAT PART OF THE TRIP INSTEAD OF ASKING THE PERSONNEL TO DO IT.

THE LIKE PROVISION FOR THE "PERSONNEL OF THE MILITARY ESTABLISHMENT" WAS EXPLAINED BY THE CHIEF OF STAFF AS FOLLOWS (PP. 11-12 OF THE SAME HEARINGS):

THERE ARE CERTAIN RESTRICTIONS IN THE LANGUAGE OF CURRENT MILITARY APPROPRIATION ACTS WHICH ARE HAMPERING THE DEVELOPMENT OF THE ENLARGED ARMY OF THE UNITED STATES. AMENDED LANGUAGE IS PROPOSED WHICH WILL CORRECT THE FOLLOWING:

THE SECRETARY OF WAR HAS DIRECTED THE COMMANDING GENERAL, PHILIPPINE DEPARTMENT, TO GRADUALLY EVACUATE THE DEPENDENTS OF PERSONNEL OF THE MILITARY ESTABLISHMENT ON DUTY IN THE PHILIPPINE COMMONWEALTH. THE PERSONNEL WHOSE DEPENDENTS ARE BEING THUS MOVED WITHOUT THEIR VOLITION ARE REMAINING ON DUTY IN THE PHILIPPINE COMMONWEALTH. THAT IS, THE OFFICER REMAINS THERE; THE FAMILY COMES HOME.

NO AUTHORITY OF LAW EXISTS FOR THE TRAVEL OF THESE DEPENDENTS WITHOUT THE OFFICER CHANGING STATION AT THE SAME TIME, NOR, FOR THE TRANSPORTATION OF THEIR HOUSEHOLD EQUIPMENT TO SUCH PLACE AS MAY BE SELECTED FOR THEIR SOJOURN PENDING THE RELIEF OF THE PERSONNEL AND ASSIGNMENT THEREOF TO STATION IN THE UNITED STATES.

YOU SEE, THE OFFICER HIMSELF HAS TO BE ORDERED TO MOVE BEFORE TRANSPORTATION FOR DEPENDENTS CAN BE PROVIDED.

LANGUAGE IS ACCORDINGLY BEING PROPOSED WHICH WILL AUTHORIZE THE SECRETARY OF WAR UNTIL JUNE 30, 1942, TO MOVE SUCH DEPENDENTS OF PERSONNEL ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND IN ALASKA TO SUCH LOCATIONS AS MAY BE SELECTED BY THE SECRETARY OF WAR, AND TO UTILIZE FOR THIS PURPOSE EITHER GOVERNMENT OR COMMERCIAL MEANS OF TRANSPORTATION. THE URGENCY OF THIS MATTER IS INDICATED BY THE FACT THAT TWO ARMY TRANSPORTS EACH CARRYING SOME DEPENDENTS OF PERSONNEL BEING RETAINED IN THE PHILIPPINES ARE NOW UNDER WAY FROM MANILA TO SAN FRANCISCO. AUTHORITY SHOULD EXIST TO EVACUATE THESE DEPENDENTS BEYOND SAN FRANCISCO AT THE TIME OF THEIR ARRIVAL THEREAT.

FOR EXAMPLE, WE HAVE WIVES OF SOLDIERS IN THE FIRST THREE GRADES WHO ARE ENTITLED TO GET TRANSPORTATION, AND THOSE FELLOWS DO NOT HAVE ANY EXTRA MONEY. THEIR WIVES ARE COMING INTO SAN FRANCISCO AND WE HAVE NO AUTHORITY TO TAKE CARE OF ANY OF THEM.

WITHIN DEFINITELY PRESCRIBED LIMITATIONS, THE STATUTES OTHERWISE HAVE PROVIDED FUNDS FOR THE TRANSPORTATION OF THE DEPENDENTS AND THE HOUSEHOLD EFFECTS OF THE CIVILIAN PERSONNEL AS WELL AS THOSE OF CERTAIN GRADES OF THE NAVAL (ENLISTED AND COMMISSIONED) PERSONNEL. PUBLIC LAW 13, APPROVED MARCH 17, 1941, AT PAGE 3, 55 STAT. 34; PUBLIC LAW 48, APPROVED MAY 6, 1941, PP. 1, 12, 55 STAT. 161; 34 U.S.C. 896. AS A GENERAL RULE, THAT AUTHORITY DID NOT EXTEND TO PERMIT EITHER (1) TRANSPORTATION IN ADVANCE OF THE ORDER TRANSFERRING THE OFFICER, ENLISTED MAN, OR EMPLOYEE, OR (2) PAYMENT OF MORE THAN THE COST BY THE DIRECT ROUTE FROM THE LAST OFFICIAL STATION TO THE NEW. EXECUTIVE ORDER NO. 8588, NOVEMBER 7, 1940, SECTIONS 11 AND 12; 20 COMP. GEN. 568; DECISION OF AUGUST 28, 1937, A-88570; FEBRUARY 11, 1939, A-99846; NOVEMBER 1, 1940, B-13187; FEBRUARY 8, 1941, A -88570, B-13187. AS WILL APPEAR FROM THE FOREGOING STATEMENTS, THE OBJECT OF THE NEW PROVISION QUOTED IN YOUR LETTER WAS TO EMPOWER THE SECRETARY OF THE NAVY IN PROPER CIRCUMSTANCES TO MAKE EXCEPTIONS TO THOSE TWO LIMITATIONS, SO AS TO PERMIT THE DEPENDENTS AND THE EFFECTS TO PRECEDE THE TRANSFER OF THE PERSONNEL, TO BE BROUGHT TO PLACE OF "SOJOURN" IN THIS COUNTRY NOT NECESSARILY IN THE VICINITY OF THE DESTINATION OF THE EVENTUAL TRANSFER, AND THEREAFTER TO BE RETRANSPORTED TO SUCH DESTINATION.

THE TERM "PERSONNEL" MAY INCLUDE THOSE COMMISSIONED OR ENLISTED IN THE NAVAL SERVICE (CF. THE " NAVY PERSONNEL ACT," MARCH 3, 1899, 30 STAT. 1004), WHILE, ALSO, IT IS A COMMON GENERIC TERM FOR THE CIVILIAN OFFICERS AND EMPLOYEES OF AN EXECUTIVE ESTABLISHMENT (19 COMP. GEN. 383). LIKEWISE, THE " NAVAL ESTABLISHMENT" MAY COMPREHEND THE FIELD CIVILIAN SERVICE OF THE NAVY DEPARTMENT (10 COMP. GEN. 216), AS WELL AS, A FORTIORI, THE NAVY ITSELF. THE PROVISION IN QUESTION SUGGESTS NO DIFFERENTIATION BETWEEN SERVICE AND CIVILIAN PERSONNEL, NOR DOES ITS LEGISLATIVE BACKGROUND AS SET OUT ABOVE. ITS EVIDENT PURPOSE RELATES TO BOTH CLASSIFICATIONS EQUALLY. THUS, IN ANSWER TO YOUR SPECIFIC QUESTION, IT IS PROPER TO CONCLUDE THAT THE TERM,"PERSONNEL OF THE NAVAL ESTABLISHMENT," APPEARING IN THE CITED ACT, INCLUDES NAVY CIVILIAN, AS WELL AS MILITARY, PERSONNEL.

HOWEVER, IT IS THOUGHT PROPER TO POINT OUT THAT THE STATUTE DOES NOT APPEAR TO GRANT ANY NEW RIGHTS TO ANY OF THE CLASSES OF NAVAL OR CIVILIAN PERSONNEL WHO MAY NOT OTHERWISE BE ENTITLED TO THE TRANSPORTATION OF THEIR DEPENDENTS OR EFFECTS UPON TRANSFER OF STATION, OR TO REMOVE THE SEVERAL LIMITATIONS WITH WHICH THE LAW CIRCUMSCRIBES THOSE RIGHTS, OTHER THAN THE RESTRICTIONS AS TO TIME AND ROUTE ABOVE POINTED OUT. IN OTHER WORDS, APPROPRIATIONS FOR THE FISCAL YEARS 1941 AND 1942 OTHERWISE AVAILABLE, UPON CHANGE OF STATION,"FOR TRAVEL (OF DEPENDENTS) AND TRANSPORTATION (OF EFFECTS) MAY BE USED" WITHIN THE CIRCUMSTANCES SPECIFIED IN THE NEW STATUTE, WITHOUT REFERENCE TO THOSE TWO RESTRICTIONS. SINCE THE AUTHORITY FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF NAVY CIVILIAN EMPLOYEES WAS FIRST PROVIDED ON MARCH 17, 1941 ( PUBLIC LAW 13, SUPRA; 20 COMP. GEN. 421; ID. 702), AND FOR THEIR DEPENDENTS EFFECTIVE JULY 1, 1941 ( PUBLIC LAW 48, SUPRA), NO PAYMENTS WOULD APPEAR TO BE AUTHORIZED FOR SUCH EXPENSES INCURRED PRIOR TO THOSE RESPECTIVE DATES.