[B-141710]

Contracts-Awards-Tie Bids-Labor Surplus Area Concerns-Location Determination

An award, as the result of drawing lots, to a bidder whose tie bid was submitted by its representative and only employee in a labor surplus area, but whose main place of business from which the item was to be invoiced was located elsewhere, may not be considered improper under General Services Administration General Regulation No. 18 which recognizes that the location of the bidding firm in a labor surplus area controls in the event of tie bids; however, a contemplated revision of the regulation which will give priority with respect to the labor area concern, in the event of tie bids, only if the items are to be delivered from a plant or warehouse in a labor surplus area at which the items are produced or regularly stocked and sold would be desirable to correct the present inequities resulting from the mere submission of bids addressed from a labor surplus area. To Arthur S. LaPine & Company, March 1, 1960:

We refer to your letter of January 14, 1960, with enclosures, questioning the manner of award of a contract under invitation for bids No. 3020-60 issued November 5, 1959, by the National Bureau of Standards for a recording spectrophotometer with accessories.

Bids were opened on November 17, 1959. Of the eight bids received, seven contained the identical bid price of $8,825. Each of the tied bidders offered the item as manufactured by Beckman Instruments, Inc., of Fullerton, California. On the basis of the address of each bidder shown on his bid, the contracting officer found that two of the tied bidders were located in areas of substantial labor surplus as determined by the Secretary of Labor pursuant to 32A CFR DMP 4A1. Under General Services Administration General Regulation No. 18 issued January 27, 1958, a concern located in a labor surplus area is granted priority with respect to the award of a contract in the event of tie bids. Lots, therefore, were drawn to determine which of the two bidders located in labor surplus areas should receive the award. As a result, award was made on November 24, 1959, to Schaar & Company which offered delivery in 15 to 30 days.

In an enclosure to your letter of January 14, it is pointed out that although the address shown on the successful bid was 1339 Yorkshire Road, Detroit, Michigan, the Schaar main office is in Chicago, and the sale would be invoiced from the latter location. You also note that the instrument is manufactured in California and under customary procedures would be installed and serviced by Washington area employees.

Investigation conducted with respect to the matter has revealed that the invitation for bids was furnished by the National Bureau of Standards to Schaar & Company at a Silver Spring, Maryland, address. The bid of the successful firm was submitted by its District Manager and only employee in the Detroit, Michigan, area. The address used in the bid is the home of the District Manager who indi

cated that his function is limited to sales while the delivery function is performed by the firm's main office in Chicago. The Manager could not explain why the invitation was furnished to him for completion and submission other than the fact that he was the senior area manager for Schaar & Company.

The policy followed in giving precedence to bidders in areas of substantial labor surplus derives from Defense Manpower Policy No. 4, 32A CFR DMP 4B4 which provides that all procurement agencies shall:

In the event of tie bids or offers on any procurement, award the contract to the firm located in a labor surplus area, other things being equal.

We have held that such policy is not inconsistent with the statutes generally covering procurement by the Government under competitive bid procedures. 34 Comp. Gen. 451; B-88826, August 29, 1949. In our decision, B-136269, July 11, 1958, we considered whether under the cited policy, where the place of manufacture is the same in the case of each eligible bid, location of the bidding concern should control. We adopted the view of the Director of Defense Mobilization that the location of the bidding concern should be considered since the policy was designed to bring work to workers in surplus labor areas and while the work involved in the performance of shelf item procurement is minimal, it is more than no work at all.

Priority under GSA General Regulation No. 18 depends, as in the case of the policy from which it is derived, on where the bidding concern is located. Whether the successful concern in the procurement under consideration can be regarded as "located" in Detroit appears questionable. It may, however, be argued that work of some kind will be carried out in a surplus labor area even if it is limited to the mailing of a bid and the forwarding of a purchase order. In any case, it does not appear that the procedure followed in this instance is so wrong as to render the award void.

It is noteworthy, however, that many firms in the kind of business in which you and your competitors for the procurement are engaged have representatives covering substantially the entire country so that all or most of them could submit bids from areas of substantial labor surplus on the same basis that the successful bidder did. Every bidder would thus be entitled to a priority with the result that the priority would become meaningless. More significantly, an award to a firm which would actually perform the ordering, shipping, billing, and related functions in an area of substantial labor surplus would provide more work for workers in such area than would the award to a firm which would simply submit the bid and forward the purchase order from the labor surplus area. Nevertheless, under the procedure

followed in the instant case, the former firm would be considered for a priority only if the address shown on the bid was in a labor surplus area, and even in that case it would receive no more consideration than would the latter type of firm. The result in such instance would appear to be inconsistent with the stated purpose of the Defense Manpower Policy.

We have been advised that General Regulation No. 18, and other General Services Administration regulations to the same effect, will be replaced by regulations giving priority with respect to the labor area in the event of tie bids in situations of this kind only if the items will be delivered to the Government from a plant or warehouse in a labor surplus area at which the end items are either produced or regularly kept in stock and sold in the usual course of business. The adoption of such policy should, we believe, correct the situation.

A copy of this letter is being forwarded to the Administrator, General Services Administration, as an indication of the desirability of the regulatory change now being considered and of the need for its prompt implementation.

[B-141969]

Civilian Personnel-Travel Expenses-Leaves of AbsenceReturn for Official Duty

Although generally employees who are away from their permanent duty stations in an annual leave status and who are ordered to return to headquarters for official duty are not entitled to reimbursement for travel expenses for return to headquarters, there may be cases where the return travel because of urgent and unforeseen official circumstances would justify reimbursement to the employee for return travel.

An administrative regulation which would permit reimbursement for travel expenses when employees who are authorized annual leave for five days or more are recalled to their permanent duty station within 24 hours after departure because of an urgent unforeseen circumstance would be proper, provided that the travel order clearly indicates that an administrative determination has been made that it would be unreasonable to require the employee to assume the additional travel expense in compliance with the recall order.

An employee whose authorized leave of absence away from his permanent duty station is temporarily interrupted because he is recalled to duty, or because he is ordered to perform temporary duty at another place, and the employee wishes to resume the leave status immediately after the completion of official duty, travel expenses not to exceed the cost of travel from the place where the leave was interrupted to the place where the duty was performed and return may be authorized, provided that a statement is included in the travel order that an administrative determination was made that it would be unreasonable to require the employee to assume the additional travel expense in compliance with the temporary duty.

Since the use of annual leave is no longer a privilege but an absolute right, subject to the authority of the head of the department or establishment concerned to fix the time at which the leave may be taken, the holding in 3 Comp. Gen. 760, that an employee who is required to interrupt his annual leave status to return to headquarters for official duty is not entitled to reimbursement for the travel expenses for return to headquarters or for return to place of leave, should he elect to resume the leave status, is no longer for application.

To the Secretary of the Air Force, March 1, 1960:

On February 9, 1960, the Special Assistant for Manpower, Personnel and Reserve Forces, enclosed for our consideration as to its propriety a copy of a proposed instruction to clarify the conditions relating to travel of Department of Air Force employees at Government expense in various situations involving temporary duty and leave status, including return to official duty station.

The proposed regulation is as follows:

If, because of an urgent unforeseen circumstance, it is necessary to cancel or temporarily interrupt an employee's authorized leave status and recall him to duty at his official duty station very shortly after arrival at the place of beginning leave, the return travel may be authorized at Government expense. Also, if the employee wishes to resume his leave status at the place from which he was recalled, or another place not more distant, travel from his official duty station to such place, may be authorized at Government expense. The above one-way, or round-trip, travel will not be allowed at Government expense unless, by an appropriate statement in the travel order, it is clearly indicated that, because of the personal expense incurred by the employee in traveling to the place of taking leave an administrative determination was made that it would be unreasonable to require the employee to assume the additional travel expense to comply with the recall order.

The Special Assistant for Manpower, Personnel and Reserve Forces says that your Department would like to incorporate in Air Force Manual 40-10, Department of the Air Force Civilian Travel Manual, the instructions quoted above in order to cover an infrequent situation when it is necessary, for management reasons, to recall an employee to his official duty station almost immediately after arriving at a place of vacation for which leave had been officially authorized. Doubt in the matter arises because of the ruling in 3 Comp. Gen. 760. The rule laid down in that decision was to the effect that if an employee is away. from his headquarters upon leave of absence and it becomes necessary for him to interrupt his leave and return to his headquarters for the purpose of performing official duty, he is not entitled to reimbursement of the traveling expenses incurred in returning to his headquarters or in going back to the place where he was on leave, should he elect to do so, when the leave status is resumed.

That decision was rendered prior to the passage of the leave act of March 14, 1936. Prior to January 1, 1936, leave of absence was granted to officers and employees of the Government as a privilege and not as a right. By the act of March 14, 1936, 49 Stat. 1161, effective January 1, 1936, 5 U.S.C. 30b, since repealed, and the Annual and Sick Leave Act of 1951, 65 Stat. 679, 5 U.S.C. 2061 note, leave of absence is a right. The principle laid down in 3 Comp. Gen. 760 covering travel expenses between leave point and headquarters incident to an interruption of leave for official duty is no longer followed by our Office since the taking of leave is an absolute right of the employee subject to the right of the head of the department or estab

lishment concerned to fix the time at which the leave may be taken. See 16 Comp Gen. 481 to that effect.

The general rule is that when an employee proceeds to a point away from his official duty station on annual leave he assumes the obligation of returning himself thereto at his own expense. Also, it repeatedly has been held that if, during such leave or at the expiration thereof, the employee is required to perform temporary duty either at his leave point or some other point prior to his returning to headquarters, the Government is chargeable only with the difference between the cost attributable to the temporary duty and what it would have cost the employee to return to his headquarters direct from the place where he was on leave. 16 Comp. Gen. 481; 19 id. 977; 30 id. 443.

We are inclined to agree with the Special Assistant for Manpower, Personnel and Reserve Forces that in some instances when an employee has been granted authorized leave of absence and shortly after his arrival at his vacation point his leave is canceled and he is ordered to report to his headquarters because of an emergency that he should be reimbursed for the travel involved in reporting. However, the wording of the first part of the proposed regulation concerning the phrase "very shortly after arrival at the place of leave" is subject to various interpretations.

In lieu of the proposed regulation we suggest for your consideration language along the lines of the following:

In instances when an employee departs from his official duty station for the purpose of taking authorized leave of absence for 5 days or more and because of an urgent unforeseen circumstance, it is necessary to cancel the employee's authorized leave status and recall him to duty at his official duty station within 24 hours after his departure therefrom, the return travel may be authorized at Government expense. Also, if an employee's authorized leave of absence away from his official duty station is temporarily interrupted because he is recalled to duty at his official duty station or is ordered to perform temporary duty at another place and the employee wishes to resume his leave, immediately after the completion of his duty, at the place from which his leave of absence was interrupted or at another place, travel expenses not to exceed the cost of travel from the place where his leave of absence was interrupted to the place where the duty was performed and return may be authorized at Government expense. The one-way, or round-trip will not be allowed at Government expense unless, by an appropriate statement in the travel order, it is clearly indicated that, because of the personal expense incurred by the employee in traveling to the place of his taking leave, an administrative determination was made that it would be unreasonable to require the employee to assume