member belongs has been alerted for movement to a restricted station outside the United States contemplated to commence within 90 days. The member is not required to move from his permanent station until he or his unit receives permanent change-of-station orders, and his dependents may remain at that station indefinitely. If the member relocates his dependents upon receipt of the "alert" notice he does so of his own choice. Hence, there is no enforced separation prior to the effective date of the permanent change-of-station orders.

As indicated above, in answer to question 18 in 43 Comp. Gen. 332, we held that if dependents are returned from overseas under paragraph M7105 of the regulations for reasons of national interest prior to return of the sponsor, family separation allowance would be authorized. While the decision did not specifically so state, the answer was predicated on a determination by the Secretary of the service concerned, or by higher authority, under which the dependents are required to leave the overseas area for reasons of national interest rather than on their own volition. That the movement of dependents from the station concerned under paragraph M7105 is required, rather than elective, is clearly indicated by subparagraph 2 thereof which provides that when the authority which made the original determination subsequently determines that the "national interest no longer requires the absence" of the dependents from the overseas area, transportation of the dependents from the designated place to the member's current unrestricted duty station is authorized as there provided. Thus, that decision does not afford a basis for the proposed action.

Since the "alert" notice is not a permanent change-of-station order and as the dependents are free to reside with the member until he is required to move, there is not an enforced separation of the member from his family by reason of such notice. Therefore, family separation allowance, type II, is not authorized under section 427(b) (1) prior to the effective date of the permanent change of station when dependents are moved from the member's station under paragraph M7108 of the Joint Travel Regulations incident to an "alert" notice. Accordingly, the question is answered in the negative.

[B-158880]

Transportation-Dependents-Overseas Employees-Home
Leave Return Prior to Employee

When the renewal agreement travel of an overseas employee is deferred because of the exigencies of the service, he may not waive his right to the travel in exchange for the unauthorized monetary benefit of the round-trip transportation of his dependents for the purpose of vacationing in the United States, and 5 U.S.C. 73b-3 prescribing the periodic return of overseas employees, adherence to the rule in 35 Comp. Gen. 101 is required. However, although paragraph C7004-2

of the Joint Travel Regulations may not be amended to authorize the round-trip home leave travel at Government expense of dependents traveling to the United States unaccompanied by the employee, at a later date when the employee signs a new employment agreement and performs the round-trip home leave, he may be reimbursed for the expense of returning his family to the overseas station.

To the Secretary of the Air Force, August 22, 1966:

This is in reply to your Under Secretary's letter of July 27, 1966, requesting an advance decision concerning round-trip transportation of the immediate families of overseas employees when the employees defer or purport to waive their home leave travel due to the exigencies of the service.

In the letter it was pointed out that due to the currently imposed workload stemming from the necessary movement of many Department of Defense activities from France to other countries in Europe, it has been necessary to defer granting renewal agreement travel to the United States to many otherwise eligible employees. It appears that many employees do not object to waiving renewal agreement travel but desire that their dependents now be authorized round-trip home leave travel at Government expense for the purpose of a vacation in the United States.

The letter suggests that the situation here is distinguishable from that considered in 35 Comp. Gen. 101 where the employee's home leave travel was delayed 1 year after return of his family.

Therefore, our decision is requested on the following questions.

a. Is it permissible to change JTR, par. C7004-2, to provide that where it is necessary because of the exigencies of the service to deny an eligible employee round-trip renewal agreement travel for a period in excess of 90 days, members of his immediate family may be authorized such travel with the employee to per form the renewal agreement travel as soon as his services can be spared?

b. Is it permissible to change JTR, par. C7004-2, to provide that where it is necessary because of the exigencies of the service to deny an eligible employee round-trip renewal agreement travel for a period in excess of 90 days, members of his immediate family may be authorized such travel provided the employee waives his right to renewal travel and prior to his immediate family's departure signs a new transportation agreement to be effective upon the date of the immediate family's return to the employee's overseas post of duty?

The questions raised require consideration of two provisos contained in section 7 of the Administrative Expenses Act of 1946, as amended, 5 U.S.C. 73b-3 (5 U.S.C. 5728, 5729). Those provisos read in part as follows:

** Provided further, That expenses of round trip travel of employee and transportation of immediate family but excluding household effects, from their posts of duty outside the continental United States to the places of actual resi dence at time of appointment or transfer to such overseas posts of duty, shall be allowed in the case of persons who have satisfactorily completed an agreed period of service overseas and are returning to their actual place of residence for the purpose of taking leave prior to serving another tour of duty at the same or some other overseas post, under a new written agreement entered into before departing from the overseas post: * * * Provided further, That expenses of transportation of the immediate family and shipment of household effects of any

employee from the post of duty of such employee outside continental United States to place of actual residence shall be allowed, not in excess of one time, prior to the return of such employee to the United States, including its Territories and possessions, when the employee has acquired eligibility for such transportation *** [Italic supplied.]

The first proviso in the above statute does not authorize payment of the transportation expenses of the immediate family of an employee from the overseas post of duty to the actual place of residence in the continental United States and return unless the employee himself returns to the continental United States for the purpose of taking leave. 36 Comp. Gen. 10; B-137605, March 17, 1961. However, an employee's dependents may travel to the continental United States under the second proviso, above, at Government expense at the time he has attained eligibility for return transportation by reason of his completion of an agreed period of service. 35 Comp. Gen. 101; see also JTR C7003-3b (1) (2). The second proviso, however, is limited solely to return transportation for the immediate family and household effects from the overseas post in advance of the employee's

return.

We believe, however, that the situation is covered by the rule stated in 35 Comp. Gen. 101 which, quoting from the syllabus, reads in part as follows:

An employee who has completed an agreed period of service at an overseas post is entitled, under the home leave act of August 31, 1954, to one-way transportation for members of his immediate family who travel to his residence in United States unaccompanied by him, and where the employee performs roundtrip home leave travel at a later date expenses of returning family to his overseas post at an earlier date would then be reimbursable, provided that prior to his departure from overseas he signs a new agreement for service to begin on return.

Also, see B-158513, March 1, 1966.

Furthermore, since a primary purpose of the governing statute, as evidenced by its legislative history, is to bring the employees to the United States periodically for what has been termed re-Americanization leave it is doubtful whether an employee lawfully might permanently waive such a right as it accrues solely in exchange for an unauthorized monetary benefit such as round-trip travel at Government expense of his immediate family.

In the light of what has been said our opinion is that affirmative answers to the questions presented would require not only a reinterpretation of the statute but a substantive change in its language.

Therefore, while we are aware that adherence to the rule stated in 35 Comp. Gen. 101 might place upon an employee the temporary financial burden of returning his family to Europe, we are unable to find in the law a basis for answering the questions in the affirmative.

[B-159697]

Contracts Subcontracts-Bid Shopping-Bidder Listed as Sub

contractor

The low bidder on a proposed construction contract listing itself, permitted by the invitation, as a subcontractor to perform the "Architectural Cast Stone" category of work has not met the requirements of the invitation that the fabrication and setting of the stone "shall be performed by Specialty Subcontractor (s)," a material defect in the bid precluding its consideration for award. The low bidder not a qualified fabricator of the stone if awarded a contract would be in position to bid shop among fabricators of architectural stone, a practice the listing of subcontractors requirement was aimed at, and future invitations for bids involving architectural cast stone or any other material that is to be fabricated and installed by specialty subcontractors should require bidders to list both the fabricator and installer.

To the Administrator, General Services Administration, August 22, 1966:

Reference is made to a letter of July 18, 1966, with enclosures, from Norair Engineering Corporation, protesting award to any other bidder under Invitation for Bids dated April 19, 1966, issued by the Public Buildings Service, project No. 18116.

Bids were requested for construction of an extension to General Office (Building 31), National Institutes of Health, Bethesda, Maryland. Bids were received from Norair and from The George Hyman Construction Company (Hyman), the latter of which was low. Norair protests any award to Hyman on the ground that Hyman's bid was nonresponsive for failure to list the proposed subcontractor who would fabricate the architectural cast stone.

Paragraph 2-08(a) of the Special Conditions of the invitation, as revised by amendment No. 1, requires that for each of certain listed categories of work the bidder shall submit the name and address of the firm to whom he proposes to subcontract the work and provides that failure to submit the list by the time set for bid opening shall cause the bid to be considered nonresponsive. Paragraph 2-08(c) of the Special Conditions provides that the bidder shall list himself if it is his intention to perform one or more of the listed categories of work. One of the listed categories was "Architectural Cast Stone" and Hyman listed itself under this category.

Other portions of the invitation provide, in pertinent part, as follows:

2-08 LISTING OF SUBCONTRACTORS

b. The term "subcontractor" for the purposes of this requirement shall mean an individual or firm with whom the bidder proposes to enter into a subcontract for a listed category of work or material. If subcontracts are to be made with more than one subcontractor for a category of work or material each proposed subcontractor shall be listed with a statement of the service to be furnished by each.

2-15 SPECIALTY SUBCONTRACTOR

a. The term "Specialty Subcontractor" as used in the specifications shall mean a firm of established reputation (or, if newly organized, a firm whose personnel have previously established a reputation in the same field), which is regularly engaged in, and which maintains a regular force of workmen skilled in, installing the items required by the contract. Such firm must either be the manufacturer of such items, be licensed by the manufacturer, or work under the manufacturer's direct supervision.

17-01

b. Architectural cast stone shall be product of established plant having capacity and facilities for producing material of specified quality and finish, and indicated quantity without delay to progress of work. It shall have the trade name of a producer recognized by the industry as a manufacturer of this type material and who can show successful completion of similar and comparable work.

d. Fabrication and setting of architectural cast stone shall be performed by Specialty Subcontractor(s).

In explanation of its action in listing itself as the "subcontractor" under the category "Architectural Cast Stone," Hyman advised GSA by letter of July 18, 1966, that this was done in accordance with the instruction on the bid form which states "I understand that by listing myself I agree to furnish all labor, plant and material required for the category so listed on my own payrolls and expense accounts,” and that it was their intention to purchase the material from Earley Studio, Inc., Manassas, Virginia, and perform the setting with their own forces.

The language of 17-01 (d), quoted above, makes it clear that both fabrication and setting of the architectural cast stone must be performed by a specialty subcontractor, and 2-08 (b), also quoted above, provides that if more than one subcontractor is to be engaged for a category of work or material, each proposed subcontractor shall be listed with a statement of the service to be performed by each.

The requirement for listing subcontractors is aimed at the practice of bid shopping and is considered to be a material requirement of the invitation, failure to comply with which renders the bid nonresponsive and properly for rejection. 43 Comp. Gen. 206; 44 id. 526. Since fabrication of the architectural cast stone was an integral part of this category of work and was specifically required to be performed by a specialty subcontractor in accordance with detailed specifications, it is our opinion that the fabrication was subject to the listing requirement, and that any failure to list a fabrication subcontractor must be considered a material defect in the bid. Since The George Hyman Construction Company does not have the required qualifications for a fabricator and it would appear that acceptance of its bid as submitted would permit it to bid shop among fabricators of architectural stone, contrary to the intent of the subcontractor listing