ment under an invitation which would leave no doubt as to the acceptability or nonacceptability of "all or none" bids would be in the best interests of the

Government.

To the Public Printer, U.S. Government Printing Office, August 27, 1959:

Reference is made to your letter of August 14, 1959, with enclosures, requesting our decision as to whether an award to The Whitaker Paper Company under invitation to bid dated July 22, 1959, may be sustained in view of the protest against such award by the R. P. Andrews Paper Company.

The invitation requested bids on five different items of paper; however, the protest involves only the bids received in response to items 1 and 2. Bids were opened on August 5, 1959, and six bidders responded to items 1 and 2 as follows:

The bids of Walker Goulard Plehn Company, Inc., and The Whitaker Paper Company included a statement that their bids were tendered on an "all or none" basis. The other four bidders did not bid on a combination or aggregate basis. Upon evaluation of the bids, the contracting officer determined that the total aggregate bid of Whitaker on items 1 and 2 was lower than all of the other bids received. Accordingly, that bidder was advised by telephone that award of items 1 and 2 would be made to them. However, no purchase order or any written notice confirming the oral notice of award has been issued to Whitaker presumably pending our decision in the matter. The protest of Andrews is directed to the fact that award is proposed to be made to the lowest aggregate bidder whereas the invitation provided that awards will be made by individual items.

The invitation to bids incorporated all conditions and stipulations of the Paper Proposal dated June 22, 1959, to the extent they do not conflict with the requirements of the invitation. It was specifically provided in the invitation that:

Awards will be made by individual items. Bids on the basis of an award in the aggregate may be rejected.

Paragraph 10 of the Paper Proposal provides:

10. LOTS SEPARATELY CONSIDERED.-Bidders may bid for one or more of the lots of paper, and each lot will be considered separately. Bids based on combination of lots will be rejected.

It is noted that the only important difference between the abovequoted provisions is the use of the words "may" and "will" in the sentences relating to rejection of bids. You, therefore, conclude that the two provisions are in conflict so as to require application of the invitation provision in its permissive sense. In that connection, you advise that it was intended that aggregate bids may or may not be rejected and that a low "all or none" bid may be accepted in the best interests of the Government.

We do not believe, however, that the two quoted provisions are clearly in conflict solely because the word "may" was used in the invitation instead of "will" with respect to the consideration of aggregate bids. On the contrary, the invitation provision must be construed as precluding the consideration of aggregate bids, and requiring the rejection of bids submitted on an "all or none" basis as being qualified and nonresponsive to the invitation. The first sentence of the invitation provision requires, in mandatory language, that awards be made by individual items. While the following sentence does not specify that aggregate bids will be rejected but that they may be rejected, we do not ascribe the usual permissive character to the word "may." See 26 Words and Phrases 389, et seq. Since the Government clearly advised all bidders that awards would be made by individual items only, it would be meaningless to ascribe a permissive character to the word "may" in the sentence immediately following that directive so as to effectively thwart its purpose and intent. Under such circumstances, the word "may" must be construed as a word of command to give it effect and meaning. See 57 C.J.S. page 456, et seq.; 15 Comp. Gen. 510; B-73549, April 23, 1948. Such being the case, those bids submitted on an "all or none" basis were qualified and should have been rejected as nonresponsive to the invitation. However, it is apparent that the invitation, standing alone, was at least ambiguous and misleading as to the basis upon which award was to be made. In view thereof, we believe that it would be in the best interests of the Government to reject all bids and readvertise under specifications which would leave no doubt as to the acceptability or nonacceptability of "all or none” bids.

The papers furnished with your letter are returned as requested.

[B-139805]

Civilian Personnel-Sick Leave-Credit and Use at Beginning of Pay Period

A departmental or agency policy which permits the crediting and using of sick leave at the beginning of the full biweekly pay period in which the leave is accrued is not prohibited under the Annual and Sick Leave Act of 1951, 5 U.S.C. 2061 et seq.; however, in case employees are separated prior to completion of the full biweekly pay period, any unearned sick leave is for refund in accordance with section 30.206 of the Uniform Annual and Sick Leave Regulations. To the Secretary of Agriculture, September 2, 1959:

On June 3, 1959, your Administrative Assistant Secretary requested our decision whether your Department may continue to follow the policy it has adopted of permitting employees-including new employees to be credited with sick leave at the beginning of the full biweekly pay period, and to use such sick leave during the pay period. The question has arisen because of our unpublished decision of June 26, 1958, B-136235.

Based upon the facts and administrative action there involved, and under section 204 (a) of the Annual and Sick Leave Act of 1951, 65 Stat. 681, 5 U.S.C. 2063 (a), we held in B-136235 that since the statute provides officers and employees "shall be entitled to sick leave with pay, which shall accrue on the basis of one-half day for each full biweekly pay period," a full biweekly pay period must be completed before the accrual may be credited and used by the employee.

The Administrative Assistant Secretary points out that "It does not appear from the decision (B-136235, supra) that the agency there involved had adopted a policy of crediting sick leave in advance." In that regard, the record in that case shows the sick leave in question was not credited to the employee's account until completion of the full 80-hour biweekly pay period. We held, in effect, that such action was consistent with section 204 (a) of the leave act. The conclusion reached therein was on the factual situation there present and was not intended to answer the question now before us.

We understand that the Administrative Regulations, Department of Agriculture, 7 AR 501b, provide:

All full time employees-permanent and temporary-except those exempt employees listed in 7 AR 499d will accrue sick leave from the time of employment at the rate of 4 hours for each full pay period. Credit shall be given at the beginning of each pay period.

6 GAO 9070.40, quoted in part in your Administrative Assistant Secretary's letter, provides:

9070.40 LEAVE ACCRUALS. In an agency where the leave policy precludes the use of "leave accrued during this reporting period" until earned, the leave accrual for the period is not posted on Stock Form 1130 or 1137 until the close of the pay period. In an agency where the leave policy permits the granting of leave before it is earned, the leave accrual is posted at the beginning of the

pay period, thus making available at any time during the period the balance brought forward, plus leave accrued during the period. If the leave policy permits crediting employees with leave for all of the leave year, such leave is added (at the beginning of the leave year) to any leave balances brought forward from the prior leave year, thus making the total available at any time during the year.

The Administrative Assistant Secretary says that "We believe the practice of crediting and granting sick leave prior to accrual has been considered proper since 1936," citing 15 Comp. Gen. 1058. That decision held at page 1063 (answer to question 6) that sick leave accruing during any month under the 1936 sick leave statute, 5 U.S.C. 30g, was available to the employee at any time on or after the first of the month in which the leave accrued. While the language of the current sick leave statute is somewhat different from that appearing in the 1936 act we do not consider that it need be regarded as prohibiting your department from continuing the policy of permitting employees to be credited with sick leave at the beginning of the full biweekly pay period and its use during the same pay period. In the event of separation prior to completion of the full biweekly pay period sick leave credited for that period and used would be for recovering in accordance with section 30.206 of the leave regulations promulgated by the Civil Service Commission.

Concerning the last sentence in 6 GAO 9070.40, above, that provision relates only to annual leave, which leave under section 203 (h) of the 1951 leave act, 5 U.S.C. 2063 (h), may be credited for the entire leave year as of the beginning of the leave year. Advance sick leave may be allowed, of course, in accordance with section 204 (c) of the statute, 5 U.S.C. 2063 (c).

[B-131700]

Military Personnel — Retired — Re-retirement — Inactive Service Credits

The re-retirement concept as applied to retired members of the uniformed services by the Court of Claims in Bailey v. United States, 134 C. Cls. 471, Travis v. United States, 137 C. Cls. 148, and Seliga v. United States, 137 C. Cls. 710, to permit additional retired pay rights based on inactive time on a retired list or in the Fleet Reserve under section 402 (d) of the Career Compensation-Act of 1949, will be followed in similar cases involving re-retirements before October 1, 1949 the effective date of the Career Compensation Act of 1949-where the members have elected to qualify for retired pay under section 411 of the 1949 act. 37 Comp. Gen. 31, modified.

To the Secretary of Defense, September 3, 1959:

Reference is made to our decision to you dated July 17, 1957, B131700, 37 Comp. Gen. 31, wherein we considered a series of questions involving the computation of retired pay of members of the uniformed services. In answering such questions we considered whether we

would follow the rule applied by the Court of Claims in the case of Travis v. United States, decided December 5, 1956, 137 C. Cls. 148, to the effect that a retired member released from a period of active duty performed subsequent to retirement is "re-retired" on the date of such release so as to acquire additional retired pay rights under section 402 (d) of the Career Compensation Act of 1949, 63 Stat. 818, 37 U.S.C. 272. In the light of decisions which the Court of Claims has made since July 1957, and other developments since that time, a reconsideration of the position of this Office with respect to the court's "re-retirement" concept seems indicated.

In the case of Danielson v. United States, 121 C. Cls. 533, the plaintiff, an officer who had military service prior to November 12, 1918, was retired for disability on July 31, 1935. He was recalled to active duty as a retired officer on July 17, 1941, and relieved from such duty on June 30, 1946. The court held that in the computation of his retired pay after the latter date, he was entitled to include for longevity credit his inactive retired time from August 1, 1935, to June 16, 1941. This holding was on the theory that he was "re-retired" on June 30, 1946, and thus was an officer "hereafter retired" within the contemplation of the fourth paragraph of section 15 of the Pay Readjustment Act of 1942, 56 Stat. 368, 37 U.S.C. 115, and was entitled to 75 percent of his active-duty pay at the time of his "re-retirement," which pay included longevity credit for inactive time on the retired list. The Career Compensation Act of 1949, 63 Stat. 802, 37 U.S.C. 231 note, providing increased rates of active-duty pay effective October 1, 1949, did not enter into the consideration of the Danielson

case.

In Bailey v. United States, 134 C. Cls. 471, and Travis v. United States, 137 C. Cls. 148, the court broadened the Danielson concept to include, in cases of retirement for disability and subsequent active duty, both prior to October 1, 1949, entitlement to longevity credit for inactive retired time in computations of retired pay on and after October 1, 1949, on the active-duty pay rates prescribed in the Career Compensation Act, the plaintiff in each case having elected to have his retired pay computed under method (A), section 411 of that act. In Seliga v. United States, 137 C. Cls. 710, the Danielson concept was further extended so as to include credit for inactive time in the Fleet Reserve in establishing the active-duty pay factor under a section 411 (A) election to receive disability retired pay under the Career Compensation Act.

In our decision to you, dated July 17, 1957, in answer to question 1(a), we stated that we were following the Danielson case but were not following the Travis case. On June 3, 1959, in Phelan v. United