to furnish the Government since it offered to supply both the nonset-aside and the set-aside quantities and that, therefore, pursuant to the regulations, he must negotiate first with that company for the set-aside portion. In the telegram of May 13, 1959, to our Office you protested this interpretation placed on the provisions of Note B by the contracting officer.

In a letter dated May 22, 1959, you stated that the first paragraph of section (d) of Note B provided that "The prices offered shall apply only to the non-set-aside portion" and that bids on the set-aside portion were not requested.

Your protest appears to be based primarily on the parenthetical phrase “* * * “*** (which have not been awarded under the non-set-aside portion the full quantity which they proposed to furnish)" appearing in the last half of the second paragraph of section (d) of Note B of the invitation. In its report the administrative office states that the referred-to parenthetical phrase must be read together with that portion of section (c) of the clause which provides that there should be offered "*** the total quantity of each item (including both non-setaside and set-aside quantities) * *

While the language of the second paragraph of section (d) of Note B of the invitation standing alone might be subject to the interpretation contended for by you, we agree with the administrative office that the intent and meaning of the invitation are not to be determined by the consideration of an isolated section or provision thereof by itself, but that the invitation must be considered in its entirety and each provision must be construed in its relationship to other provisions and in the light of the general purpose intended to be accomplished. We think, therefore, that the invitation properly construed would require that eligible bidders specify the maximan quantity of the total procurement, comprised of the non-set-aside and set-aside quantities, which they would be willing to furnish; that negotiations be conducted first with that eligible bidder whose price was the lowest in the non-set-aside award; and that no set-aside contract be entered into with a bidder for a quantity, when added to the non-set-aside quantity awarded to him, is in excess of the total amount the bidder signified he would be willing to furnish. Applying this construction, it is our view that since the Ozark Box and Crating Company indicated its willingness to furnish the total procurement and, since it was the low bidder on the non-set-aside portion and qualified as a small business concern located in a labor surplus area, the Government must negotiate first with that company for the set-aside portion.

[B-135771]

Military Personnel-Fleet Reservists-Record Correction— Ten-Year Statute of Limitations

When the record of a member of the naval service transferred to the Fleet Reserve or the Fleet Marine Corps Reserve is corrected to reflect additional service credits. pursuant to 10 U.S.C. 6332, the ten-year limitation period in the act of October 9, 1940, 31 U.S.C. 71a, commences to run from the date of the correction of the member's records rather than from the date of transfer of the member to the Fleet Reserve or the Fleet Marine Corps Reserve, and upon such correction, the member is entitled to retainer pay from the date of transfer in accordance with his grade and number of years of creditable service, as corrected.

To the Secretary of the Navy, July 14, 1959:

Reference is made to letter of May 27, 1959, from the Assistant Secretary of the Navy (Department of Defense Military Pay and Allowance Committee submission No. SS-N-419), requesting a decision as to the proper application of the act of October 9, 1940, 54 Stat. 1061, 31 U.S.C. 71a, to those cases where a member's record has been corrected under the provisions of 10 U.S.C. 6332 to reflect additional service credits.

Section 6332, Title 10, U.S. Code, provides:

When a member of the naval service is transferred by the Secretary of the Navy

(1) to the Fleet Reserve;

(2) to the Fleet Marine Corps Reserve;

(3) from the Fleet Reserve to the retired list of the Regular Navy or the Retired Reserve; or

(4) from the Fleet Marine Corps Reserve to the retired list of the Regular Marine Corps or the Retired Reserve;

the transfer is conclusive for all purposes. Each member so transferred is entitled, when not on active duty, to retainer pay or retired pay from the date of transfer in accordance with his grade and number of years of creditable service as determined by the Secretary. The Secretary may correct any error or omission in his determination as to a member's grade and years of creditable service. When such a correction is made, the member is entitled, when not on active duty, to retainer pay or retired pay in accordance with his grade and number of years of creditable service, as corrected, from the date of transfer.

The act of October 9, 1940, 54 Stat. 1061, 31 U.S.C. 71a, 237, provides that every claim or demand (with certain exceptions not material here) against the United States cognizable by the General Accounting Office "shall be forever barred unless such claim, bearing the signature and address of the claimant or of an authorized agent or attorney, shall be received in said office within ten full years after the date such claim first accrued."

It is stated that a decision concerning the proper application of the act of October 9, 1940, will assist the Navy in implementing our decision dated August 5, 1958, B-135771, 38 Comp. Gen. 110, in those cases where the member transferred to the retired list or to the Fleet Reserve more than 10 years ago. It is further stated that of primary

concern in applying the said decision is the question of when the 10-year limitation commences to run, that is, "Is it the date of transfer to the Fleet Reserve or the date of correction of the records?"

In our decision of August 5, 1958, 38 Comp. Gen. 110, we considered the effect of the correction of a member's records under authority of 10 U.S.C. 6332. We concluded that a member who on transfer to the Fleet Reserve on July 1, 1950, had retainer pay computed on the basis of 21 years of service for percentage multiple purposes under section 204 of the Naval Reserve Act of 1938, 34 U.S.C. 854c, may, if the records are corrected under 10 U.S.C. 6332 to show completion of 21 years, 6 months, and 3 days active Federal service, have 22 years of service used as a percentage multiplier factor for determination of his retainer pay.

In our decision of September 14, 1956, 36 Comp. Gen. 210, we stated that the right to disability retirement pay pursuant to the provisions of the act of April 3, 1939, 53 Stat. 557, 10 U.S.C. 369a, depended on a competent determination of the essential facts bringing the member within the stipulated conditions involved. In other words, it was stated to be our view that a claim for retirement pay did not accrue under the 1939 act unless and until there has been an administrative determination by proper authority that the facts in the case in question are such as to bring the member within the pertinent conditions of the statute for which the pay is authorized. Also, it consistently has been held that, upon correction of records pursuant to section 207 of the Legislative Reorganization Act of 1946, as amended, 65 Stat. 655, 10 U.S.C. 1552, a serviceman's status becomes fixed by the records as corrected and he becomes entitled to pay and allowances due upon application of the pay statutes to the facts in his case as shown by the corrected records. Cf. 32 Comp. Gen. 242, at 247-248; 32 Comp. Gen. 372. Hence the 10-year limitation period of the act of October 9, 1940, is considered as commencing to run from the date of the requisite administrative determination in such cases.

Applying that principle here, the 10-year limitation period of the act of October 9, 1940, is considered as commencing to run from the date of correction of the member's records as authorized by 10 U.S.C. 6332, rather than from the date of transfer of the member to the Fleet Reserve. Upon such correction, however, the member is entitled, under the terms of said section, to retainer pay from the date of transfer in accordance with his grade and number of years of creditable service, as corrected. See, in this connection, Timothy A. Dugan v. United States, 100 C. Cls. 7.

The question is answered by saying that the 10-year period of limitation begins to run from the date of correction of the record.

[B-139220]

Contracts Subcontracts-Failure to Furnish Required Information-Procurement Procedure Compliance

A contractor who, pursuant to a prime contract with the Government, is required to employ procurement procedures compatible with those the Government agency must follow in direct procurements properly rejected the bid of a subcontractor for failure to submit data required by the invitation. A low bidder who fails to comply with the information requirements of a solicitation, whether under an advertised or a negotiated procurement, does not acquire any right to further negotiation by the procurement agency on the basis of the low proposal.

To the Lombard Corporation, July 14, 1959:

We refer again to your letter of April 1, 1959, with enclosures, protesting the rejection by the operating contractor for the Atomic Energy Commission's Hanford Works of your low quotation for an extrusion press.

The operating contractor, General Electric Company, issued on October 22, 1958, a "Request for Quotation" designated as Inquiry No. G-355931-K, soliciting bids for an extrusion press in accordance with General Electric Company Specification No. HWS-6461, Revision No. 1, dated October 13, 1958. Quotations were required to be submitted by December 1, 1958. The Request provided in part at page 2:

QUALIFICATION:

In order that the proposals of the prospective sellers may be properly evaluated, the proposals must be accompanied by:

A) proof that the prospective seller has built one (or more) currently and successfully operating press(es) of description and tonnage substantially as specified in HWS-6461, Rev. 1.

B) proof that such existing press(es) can extrude copper or brass tubes under conditions essentially as described in Section II G, and to concentricity equal to or better than that specified in Section II F of Specification HWS-6461, Rev. 1.

C) assembly, sub-assembly, lay-out, and detail drawings or sketches which will convey clearly to the buyer the description, principles of operation, features, and adjustments of the press which the prospective seller is proposing.

D) specific statements in response to the specific requests for information which are contained throughout the specification HWS-6461, Rev. 1. Each such statement shall be identified with the location of the question in the Specification-for example, IV F(h).

The prospective seller's proposals will be deemed to be qualified by the information requested above and if that information does not conform to the requirements of this invitation for proposals, the proposals of the prospective sellers shall be deemed to be non-responsive. This information is an integral part of the prospective sellers' proposals and failure to submit the information prior to the closing date for receival of proposals will be cause for rejection of the proposals.

Revision No. 2 to the Inquiry, issued November 21, 1958, amended the Request for Quotation by the addition of the following:

IMPORTANT NOTICE: FAILURE TO ACCEPT THE TERMS AND CONDITIONS CONTAINED IN OUR PURCHASE ORDER SUPPLEMENT #658

ATTACHED TO OUR REQUEST FOR QUOTATION, INQUIRY G-355931, REV. 2, WILL RESULT IN REJECTION OF YOUR BID.

Five bids were received, including yours which was low at $343,100. It is reported that the bids were evaluated by technical personnel of the prime contractor and the Commission, who determined that all bids were nonconforming. By letter of January 9, 1959, bidders were notified of the determination and given an opportunity to amend or affirm their bids by January 26, 1959. That letter provided a partial list of reasons for holding the bids nonresponsive and stated in part: This is to inform you that all bids submitted in reply to the above inquiry were held to be nonresponsive and consequently are hereby rejected. ***

The above list of reasons *** shall in no way relieve bidders from responsibility to comply with all requirements of the Request for Quotation, and all bidders are to review their bids for such compliance.

It is reported by the AEC that during the time permitted for affirming or amending the bids each bidder requested a point by point list of those aspects of his proposal, which resulted in the determination that his bid was nonconforming. In each case the request was denied and the bidder was informed that the preparation of a conforming bid was his own responsibility.

Your price of $343,100 was low on the rebid; the second low price of $401,010 was submitted by Loewy Hydropress Division of BaldwinLima-Hamilton Corporation. Upon a determination that your bid remained nonconforming, award was approved by the Commission to Loewy Hydropress as the lowest responsive bidder.

The administrative report on the matter from the Commission provides the following explanation for determining your proposal to be nonresponsive:

There is set forth in the following paragraphs a detailed analysis of the points wherein the Lombard Corporation bid as amended does not conform to the invitation:

1. The following paragraph appears on page 4 of Lombard's original bid dated November 28, 1958, and was not altered or deleted by its amended bid of January 22, 1959:

"Minor construction details are subject to change at any time, without notice, when in the opinion of our engineers said change (or changes) is necessary or advisable in the best interest of design, quality, production improvement, procurement, or delivery."

In our opinion the quoted paragraph affects both price and quality and constitutes a material deviation from the terms of the Request for Quotation. The original quotation dated November 28, 1958, contained the following additional exception:

Page 1, paragraph 1, a qualified exception was taken to the GE Terms and Conditions as follows:

"Subject to the conditions of the Sale printed on the reverse side of this sheet (except where such conditions are in conflict with your terms and conditions outlined on your purchase order, Supplement No. 658, in which case your terms and conditions shall apply, or as otherwise specifically stated herein)." Lombard, in its amended bid of January 22, 1959, inserted the following provision: