of an appropriation act, provided certain conditions were met. One of the specific conditions which we mentioned was that the contract must provide by its terms that the Government's liability thereunder be contingent upon the "availability of appropriated moneys with which to make payment for the contract purposes." In terms of the usual annual appropriation act this condition means simply that the contract must preclude any liability on the part of the Government to make payment thereunder at least until after June 30.

In view of the statement in the submission of April 21, 1960, that the contractor could, hypothetically, become entitled to payments in less than 60 days after receipt of notice of award, it seems doubtful that the contract has been so drafted as to preclude any obligation on the part of the Government to make payment to the contractor prior to July 1, 1960, if notice of award should be given 60 days before that time. It is not enough that the contracting officer refuse to give his approval to an allocation of the contract price for a period sufficient to insure that payment will not be made prior to July 1, 1960. His approval of such allocation must be given within the time reasonably necessary for its approval, and any deliberate delay on his part beyond that time in giving his approval would not, in our view, be effective as against the contractor.

Accordingly, it is our opinion that no action may be taken under the proposed contract which could impose an obligation upon the Government to make any payment to the contractor prior to July 1, 1960, regardless of administrative intention to disregard that obligation. Of course, if the contractor and the Virgin Islands Corporation should enter into an agreement providing for commencement of the work prior to June 1, 1960, upon condition that the Government would be under no obligation to make the first contract payment prior to the time the 1961 appropriation shall be available for expenditure, there would be no basis for objection thereto.

[B-142796]

Bids-Qualified-Acceptance Time Difference—Separable or Aggregate Items

A low bid which, notwithstanding the statement that the bid remains open for acceptance for 90 days as required in the invitation, conditions the price upon receipt of notice of award in a much shorter period of time is a bid which contains a material deviation from the requirements and must be rejected as nonresponsive to the invitation.

Under an invitation which provides for award of a two-item procurement to one bidder but reserves to the Government the right to make an award on one item alone, a bid which is responsive to one item, but which contains exceptions to the second item specifications, may be accepted on the basis of the one item, if it is administratively determined to be in the best interests of the Government to procure only one item; however, the bid on the basis of both items must be considered nonresponsive.

To Admiral H. Arnold Karo, May 17, 1960:

We refer to a letter of May 4, 1960, No. 10-crg. signed by the Administrative Officer, requesting our views pursuant to 36 Comp. Gen. 513, as to the proper disposition of bids submitted pursuant to an invitation issued by the Coast and Geodetic Survey on March 31, 1960, soliciting bids for a lithographic offset five-color press and accessory equipment.

Item 1 of the invitation calls for the press itself, item 2(a) for a double delivery and item 2(b) for a continuous pile feeder. Other significant provisions of the invitation are as follows:

AWARD: Award will be to one bidder. The Government reserves the right to make an award on Item 1 alone or on Item 1 and Item 2(a) (b). BID ACCEPTANCE PERIOD: Bids, offering less than 90 calendar days for acceptance by the Government from date of the public opening specified on page 1 of this Invitation, will be considered nonresponsive and will be rejected.

Another provision appearing on page 4 of the Invitation advised that the Government desired delivery in the shortest possible time. Pursuant to the "BID ACCEPTANCE PERIOD" paragraph, bids were required to remain open for acceptance 90 or more calendar days from April 21, 1960, or until July 20, 1960.

It is reported that bids were received from two firms. The Miehle Company, Chicago, Illinois, submitted a bid in the net amount of $290,784 including a trade-in allowance for an old press. It is stated that the Miehle bid is responsive as to item No. 1 but that the firm noted exceptions to the specifications for item No. 2(a) and (b) of so substantial a nature as to render that portion of the bid nonresponsive.

The Harris-Seybold Company, the other bidder, took no exception to the specifications in any of three alternatives contained in its bid. However, while the Harris-Seybold bid contained the notation below the "BID ACCEPTANCE PERIOD" that, "This bid remains open for acceptance for 90 days," alternatives 1 and 2 in the net amount of $284,812 including trade-in allowance were conditioned upon receipt of notice of award before May 5, 1960. The third Harris-Seybold alternative, offered without condition or qualification, was in the net amount of $301,412, including trade-in allowance.

It is axiomatic that a bid may be considered for award only if it complies in all material respects with the terms of the invitation. See 17 Comp. Gen. 554. A provision in an invitation requiring that a bid to be considered for award must remain available for acceptance for a designated period is a material requirement and failure to conform therewith renders the bid nonresponsive. B-140978, October 29, 1959, and B-136528, August 6, 1958. It is clear that the first two alternatives in the Harris-Seybold bid, notwithstanding the statement in the bid that it remains open for acceptance for 90 days, are conditioned upon acceptance within a period materially less than provided by the

terms of the invitation. Therefore, in accordance with the foregoing, the first two alternatives in the Harris-Seybold bid may not be considered for award.

Whether the next low bid, that of the Miehle Company, may be considered for award is dependent upon whether it is administratively determined to be in the best interest of the Government to procure item No. 1 alone or to purchase both items Nos. 1 and 2. If the former, award may be made to the Miehle Company as the low responsive bidder; if the latter, however, the exceptions noted to the specifications applicable to item No. 2 become significant and render that bid nonresponsive. Accordingly, if it is determined administratively in the best interest of the Government to procure both items, the low acceptable bid becomes the third alternative bid offered by Harris-Seybold at the net price of $301,412. Should Harris-Seybold thereby become eligible for consideration, there would, of course, be no objection to a voluntary reduction in price by that firm. See Leitman v. United States, 104 C. Cls. 324.

[B-141833]

Military Personnel-Expiration of Authorized AbsencesCivil Arrest-Reparation or Restitution For Offenses-Unavoidable

Although the question of whether sufficient grounds exist for excusing absences of members of the uniformed services as unavoidable under section 4 (b) of the Armed Forces Leave Act, 37 U.S.C. 33(b), is primarily for administrative deternation based on the individual facts, there may be cases where absences after expiration of authorized leave of members who, following detention by civil authorities, are released without trial upon agreement to make reparation for the civil offense are not due to any misconduct on the part of the member but result from events beyond the member's control which would justify excusing the absence as unavoidable so that forfeiture of pay and allowances would not be necessary.

The basis for excusing as unavoidable absences of members of the uniformed services, who are detained by civil authorities beyond authorized leave periods and then released upon agreement to make reparation for the offense, should be an absence of misconduct on the part of the member rather than a lack of criminal culpability.

To the Secretary of Defense, May 18, 1960:

Reference is made to letter of January 23, 1960, with enclosure, from the Assistant Secretary of Defense (Comptroller), requesting a decision on a question discussed in Committee Action No. 253 of the Military Pay and Allowance Committee, Department of Defense. The question is as follows:

An officer or enlisted member detained by civil authorities, his authorized leave having expired subsequent to arrest, forefeits pay and allowances, and the enlisted member also longevity credit, for the period (exceeding 24 hours) fol

lowing such expiration until his return to full duty if he is released without trial upon his agreement to make reparation for the alleged civil offense. May there be an exception to the foregoing if his commanding officer excuses the absence as unavoidable concluding, after examination of all the facts, that the member in agreeing to make reparation was not motivated by a sense of guilt but was motivated by a desire to obtain his release from jail and return to his duty station as soon as possible and that the facts do not prove misconduct of the member?

It is stated in Committee Action No. 253 that:

The current Army, Navy and Air Force regulations dealing with the situation of a member released from arrest by civil authorities without trial upon his agreement to make reparation are based on a decision of the Comptroller General of February 18, 1928, 7 Comp. Gen. 496. In that case, there was no question that the member had caused his arrest by his misconduct. The regulations adopted the ruling and now provide for forfeiture of pay without the possibility of an exception in a situation in which the member's commanding officer would excuse the absence as unavoidable when investigation indicates that the member was not guilty of misconduct.

An agreement to make reparation does not necessarily prove guilt; it is not necessarily a confession or admission of guilt. The member may desire to obtain his release from jail and return to his duty station as soon as possible and be willing to agree to make reparation for the alleged offense without being guilty of actual misconduct. In one or the other case there may be involved a liability to pay for merchandise or on other grounds, but that liability may be quite different from misconduct.

*

*

*

In his decision of October 20, 1958, 38 Comp. Gen. 320, the Comptroller General dealt with the following question:

1. May an enlisted member detained by civil authorities, his authorized leave having expired subsequent to arrest, be properly denied leave credit for the period (in excess of 24 consecutive hours) following such expiration until his return to full duty:

"a. if released without trial by civil authorities;

"b. if tried and convicted by civil authorities; or

"c. if released without trial upon his agreement to make reparation for the civil offense?"

After discussion, the Comptroller General decided the question as follows: "Question 1. All parts to this question are answered in the affirmative unless the absence is excused as unavoidable as provided in section 4(b) of the Armed Forces Leave Act, as amended, 37 U.S.C. 33(b). There would appear to be little reason for excusing the absence in the situations presented under questions 1(b) and 1(c), since the absence presumably was induced by the member and is distinguishable from the situation in 1(a), where the absence might be caused by events beyond the member's control."

The two situations in which the Comptroller General observed there would appear to be little reason for excusing the absence are those in which a member is tried and convicted and those in which he is "released without trial upon his agreement to make reparation for the civil offense." It should be noted that Question 1c referred to the civil offense as a fact; but this is not necessarily so in all situations; the civil offense may be alleged but denied by the member. A member is not considered guilty of misconduct because he is charged with misconduct. His reason for agreeing to pay may be his desire to obtain his release from jail or return to his duty station as soon as possible. Further, the payment may be for an alleged liability unrelated to misconduct.

Section 4(b) of the Armed Forces Leave Act of 1946, as amended by the act of August 4, 1947, 37 U.S.C. 33(b), provides in pertinent part that:

*** When absent without leave or absent over leave, they [members of the armed forces] shall forfeit all pay and allowances during such absence, unless such absence is excused as unavoidable. * *

The phrase "unless such absence is excused as unavoidable" used in the above statutory provision must be construed as meaning that if the absence is excused as unavoidable the member involved would not forfeit pay and allowances to which he is otherwise entitled for the period of his absence. Under the statute, the question of whether there exists sufficient grounds for excusing a member's absence as unavoidable is, at least in the first instance, an administrative matter to be determined on the basis of the facts and circumstances involved. If the absence of a member is caused by his misconduct, no reason is apparent for excusing the absence as unavoidable. On the other hand, as suggested in Committee Action No. 253, situations may arise where a member's absence is caused by events beyond his control. In such a case and if an administrative finding is made that the absence in fact resulted from events beyond the member's control and not due to his misconduct, there would appear to be sufficient reason for his commanding officer to excuse the absence as unavoidable, even though the member is released without trial upon his agreement to make reparation for an alleged civil offense. This is not inconsistent with the ruling in 38 Comp. Gen. 320, it being assumed in that case that the absence of the member was in fact caused by his misconduct rather than caused by events beyond his control. Also compare 36 Comp. Gen. 173.

Accordingly, the question is answered in the affirmative.

It is noted that the proposed revision to paragraph 044253-1 of the Navy Comptroller Manual reads, in pertinent part, as follows:

If he has been released upon his agreement to make restitution or reparation for the alleged offense for which he was committed, pay and allowances for the time of such absence may be returned only if the commanding officer personally signs the pay voucher authorization, based upon examination of all data available to him, that the conduct of the member which occasioned his detention is excused as unavoidable because of lack of criminal culpability.

The question presented for decision relates to the authority for excusing the absence of a member who is released upon his agreement to make restitution or reparation for the alleged offense for which he was committed based on a determination by proper authority, after examination of all of the facts, that the absence was unavoidable and not the result of the member's misconduct. It well may be that in some cases there may be found a "lack of criminal culpability" even though the absence resulted from the member's misconduct. It is our view that the basis for excusing absences should be an absence of misconduct rather than a lack of criminal culpability.