[Protest of DFSC Solicitation for Fuel]
Highlights
A firm protested a Defense Fuel Supply Center (DFSC) solicitation for fuel, contending that: (1) the solicitation's small disadvantaged business evaluation preference was inconsistent with the 1995 Department of Defense appropriation act; and (2) DFSC failed to fully resolicit the previous solicitation. GAO held that: (1) the appropriation act provision was not applicable, since it pertained to only 1995 solicitations; (2) DFSC properly included the solicitation requirement, since the instant contracts were not replacement contracts; and (3) the protester was not sufficiently interested to protest DFSC failure to resolicit the items, since it would not be in line for award even if its protest was sustained. Accordingly, the protest was denied.
B-125274, SEP. 8, 1955
TO MR. ANDREW J. DAVIS:
REFERENCE IS MADE TO A LETTER DATED JUNE 17, 1955, RECENTLY RECEIVED FROM MR. LESLIE W. BARNES, ATTORNEY AT LAW, IN YOUR BEHALF, CONCERNING AN AMOUNT BELIEVED DUE YOU AS PAY AND ALLOWANCES INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE UNITED STATES ARMY DURING WORLD WAR II. SUCH AMOUNT WAS THE SUBJECT OF AN ARMY GENERAL COURT-MARTIAL SENTENCE OF FORFEITURE ADJUDGED IN SEPTEMBER 1945.
IN THE PROSECUTION OF A CLAIM AGAINST THE UNITED STATES A PROPER POWER OF ATTORNEY IS REQUIRED TO BE FILED BEFORE AN ATTORNEY OR AGENT MAY BE RECOGNIZED BY THE GENERAL ACCOUNTING OFFICE. SEE PARAGRAPH 6, COMPTROLLER GENERAL'S SPECIAL REGULATION NO. 1, DATED NOVEMBER 13, 1950 (30 COMP. GEN. 591), PROMULGATED PURSUANT TO THE PROVISIONS OF 31 U.S.C. 52/F), GOVERNING THE RECOGNITION OF ATTORNEYS, AGENTS, AND OTHER PERSONS REPRESENTING CLAIMANTS BEFORE THE GENERAL ACCOUNTING OFFICE. NO POWER OF ATTORNEY HAS BEEN FILED EVIDENCING MR. BARNES' AUTHORITY TO ACT FOR YOU. HOWEVER, SINCE IT SEEMS CLEAR, ON THE RECORD BEFORE THIS OFFICE, THAT YOU ARE NOT ENTITLED TO THE AMOUNT INVOLVED, NO USEFUL PURPOSE WOULD BE SERVED BY DELAYING A CONSIDERATION OF THE MATTER ON ITS MERITS. ACCORDINGLY, THIS LETTER IS ADDRESSED TO YOU IN CARE OF MR. BARNES.
THE SPECIFIC ARGUMENT PRESENTED IS THAT THE PART OF THE ARMY GENERAL COURT-MARTIAL SENTENCE IN YOUR CASE WHICH IMPOSED A FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE YOU OPERATED ONLY WITH RESPECT "TO THE CURRENT (SEPTEMBER 1945) PAY PERIOD" AND THAT ANY MONEY DUE YOU "FOR ANY MONTH PRIOR TO THE MONTH OF THE TRIAL OR OFFENSE, COULD NOT BE CONSIDERED WHEN ESTABLISHING A FORFEITURE.'
A PHOTOSTATIC COPY OF CORRECTED GENERAL COURT-MARTIAL ORDERS NUMBER 119, HEADQUARTERS 82D AIRBORNE DIVISION, OFFICE OF THE DIVISION COMMANDER, A.P.O. 469, U.S. ARMY, DATED SEPTEMBER 27, 1945, DISCLOSES THAT YOU WERE ARRAIGNED AND TRIED ON A CHARGE OF VIOLATING THE 93D ARTICLE OF WAR (10 U.S.C. (1940 ED.) 1565). YOU WERE FOUND GUILTY OF THE CHARGE AND SENTENCED AS FOLLOWS:
"TO BE DISHONORABLY DISCHARGED THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT FOR A PERIOD OF SIX (6) YEARS. (NO PREVIOUS CONVICTIONS CONSIDERED.)" THE SENTENCE, AS ADJUDGED ON SEPTEMBER 22, 1945, WAS APPROVED ON SEPTEMBER 27, 1945, AND THE GENERAL COURT-MARTIAL ORDERS BEAR AN ENDORSEMENT THAT THE RECORD OF TRIAL WAS EXAMINED BY THE MILITARY JUSTICE DIVISION, BRANCH OFFICE OF THE JUDGE ADVOCATE GENERAL WITH THE EUROPEAN THEATRE OF OPERATIONS, AND FOUND LEGALLY SUFFICIENT TO SUPPORT THE SENTENCE.
UNDER THE STATUTORY PROVISIONS AND THE PERTINENT REGULATIONS WHICH WERE IN EFFECT IN 1945 (10 U.S.C. (1940 ED.) 1565; PARAGRAPH 104, MANUAL FOR COURTS-MARTIAL, U.S. ARMY, 1928) A VALID AND APPROVED SENTENCE OF A LEGALLY CONSTITUTED GENERAL COURT-MARTIAL TO "FORFEIT ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE" REACHED NOT ONLY ALL THE PAY AND ALLOWANCES TO BECOME DUE IN THE REMAINING PORTION OF THE SOLDIER'S THEN CURRENT ENLISTMENT BUT ALSO FORFEITED TO THE UNITED STATES ALL PAY AND ALLOWANCES THAT WERE THEN DUE AND UNPAID TO THE SOLDIER IN THE SAME PERIOD OF ENLISTMENT AT THE DATE OF APPROVAL OF THE SENTENCE. ALSO, IN SECTION 1394, DIGEST OF OPINIONS OF THE JUDGE- - ADVOCATES GENERAL OF THE ARMY (REVISED EDITION, 1901), THERE IS STATED THE RULE THAT:
"IN A CASE OF A FORFEITURE, BY SENTENCE, OF "PAY DUE" (OR "PAY DUE AND TO BECOME DUE"), THE AMOUNT OF PAY DUE AND PAYABLE TO THE PARTY AT THE DATE OF THE APPROVAL OF THE SENTENCE IS, IN CONTEMPLATION OF LAW, RETURNED FROM THE APPROPRIATION FOR THE ARMY TO THE GENERAL TREASURY AND BECOMES PUBLIC MONEY, AND, BEING IN THE TREASURY, CANNOT, WITHOUT A VIOLATION OF ART. I, SEC. 9, PAR. 7, OF THE CONSTITUTION, BE WITHDRAWN AND RESTORED TO THE PARTY, EXCEPT BY THE AUTHORITY OF CONGRESS.'
THE RECORD INDICATES THAT THE NET AMOUNT WHICH YOU FORFEITED UNDER THE SENTENCE OF GENERAL COURT-MARTIAL APPROVED ON SEPTEMBER 27, 1945, WAS APPROXIMATELY $299.24. IN ANY EVENT, WHETHER THE NET AMOUNT OF PAY AND ALLOWANCES DUE YOU WAS GREATER OR LESS THAN THAT AMOUNT, IT IS CLEAR THAT UNDER THE TERMS OF THE FORFEITURE IMPOSED ON YOU BY THE GENERAL COURT- MARTIAL SENTENCE AS APPROVED IN YOUR CASE, THERE WAS FORFEITED TO THE UNITED STATES ALL PAY AND ALLOWANCES THEN DUE OR TO BECOME DUE YOU.
ACCORDINGLY, NO PART OF THE PAY AND ALLOWANCES WHICH WERE FORFEITED BY YOU UNDER THE APPROVED GENERAL COURT-MARTIAL SENTENCE IS PAYABLE TO YOU.