The $3,722.40 was discounted at 2 percent, to arrive at a bid price of $3,703.79 for Hydralink Corp. on this item. Anchor Coupling Co., Inc. Church and Fourth Street, Libertyville, Illinois, submitted a bid of $2,424.84 for the 363 units of item 2 based on a unit price of $6.68. Imperial-Eastman Corp., the protesting bidder, submitted a bid of $3,621.20 for the 440 units in item 1 based on a unit price of $8.23 and a bid of $2,453.88 for the 363 units in item 2 based on a unit price of $6.76. On page 3 of the bid submitted by Imperial-Eastman Corp., immediately below the provisions on this page relating to the number of units of each item involved in the procurement, the description of the items and the provision relating to f.o.b. destination, appeared a qualification which was inserted by the bidder, "NOTE: Quoting on an ‘all or none' basis."

The contracting officer determined that the "all or none" qualification rendered the bid of the Imperial-Eastman Corp. nonresponsive and award of item 1 was made to Hydralink Corp., while item 2 was awarded to Anchor Coupling Co., Inc. It should be noted that the aggregate bid submitted by Imperial-Eastman Corp. on items 1 and 2 totaled $6,075.08, which was some $53 less than the combined bids of Hydralink Corp. on item 1 and Anchor Coupling Co., on item 2.

The record indicates that after award the contracting officer redetermined his position that the bid of Imperial-Eastman was nonresponsive and was prepared to cancel the contract awarded to Hydralink Inc. on item 1, and make award of this item to Imperial-Eastman Corp. The contracting officer refused to cancel the contract awarded to Anchor Coupling Co., Inc. on item 2 since on this item ImperialEastman was not the low bidder. In this regard the contracting officer determined that the "all or none" qualification inserted in the bid submitted by Imperial-Eastman Corp. applied only to item 2. On May 13, 1963, Imperial-Eastman Corp. directed a letter to the United States Tank-Automotive Center protesting the action taken by the contracting officer.

The first question presented is whether the Imperial-Eastman Corp. qualification of "all or none" inserted in its bid rendered such bid nonresponsive. The rule is well established that in the absence of a provision in the invitation to the contrary, an "all or none" bid is responsive and must be accepted if it offers the lowest aggregate price. 35 Comp. Gen. 383, 37 id. 814; 38 id. 550. We have also held that where the acceptance of a bid submitted on an "all or none basis" will result in a lower cost to the Government than would a combination of bids without such qualification, the "all or none" bid should be

accepted even though a partial award could be made at a lower unit cost. 35 Comp. Gen. 383; B-127916, July 18, 1956; B-122521, April 21, 1955. In this case we find that the invitation did not contain a provision that would prohibit the submission of an "all or none" bid; therefore, the bid submitted by Imperial-Eastman Corp. could not be considered nonresponsive because of the insertion of the above qualification. The question is also presented whether the bid of Imperial-Eastman Corp. was the low bid in the aggregate. The determination of this question depends on whether the "all or none" qualification inserted by Imperial-Eastman Corp. applies only to item 2 as the contracting officer contends or whether the qualification applies to both items 1 and 2. In this regard it appears that the construction now proposed by the contracting officer is inconsistent with his initial conclusion, that the bid of Imperial-Eastman Corp. was nonresponsive, even as to item 1. No cogent reasons have been offered by the contracting officer to support the construction proposed by him. From a review of the entire bid submitted by the Imperial-Eastman Corp., it is apparent that the bidder by inserting the "all or none" qualification was stating that unless it received an award of both items 1 and 2, the bid should not be considered. In these circumstances the "all or none" qualification should properly be construed to apply to both items 1 and 2.

Accordingly, we find that the bid of Imperial-Eastman Corp. should have been considered for award as the low aggregate bidder pursuant to our decisions and the requirements of 10 U.S.C. 2305 (c).

As administratively recommended, the awards made should be canceled, and award made to Imperial-Eastman Corp.

[B-151568]

Pay-Promotions-Temporary-Saved Pay-Items for Inclusion

or Exclusion

A Navy chief warrant officer who, when given a temporary appointment as lieutenant, was occupying public quarters so that his monthly take-home pay, without the quarters allowance, is greater than the pay and allowances of the temporary grade is entitled to have the actual conditions of the service considered in determining the amount of total compensation under the savings provisions of 10 U.S.C. 5596 (f) as well as under the temporary appointment, and, therefore, he may continue to receive the greater take-home pay under his permanent grade until such time as public quarters are no longer available and it is to his advantage to elect the pay and allowances of a lieutenant.

To Lieutenant (jg) D. E. Stone, Department of the Navy, June 28, 1963:

Reference is made to your letter of April 8, 1963, with enclosure including a copy of your letter of February 20, 1963, forwarded by

second indorsement dated May 16, 1963, of the Comptroller of the Navy under Department of Defense Military Pay and Allowance Committee Submission No. DO-N-704, requesting an advance decision as to the legality of crediting the pay account of Lieutenant Robert S. Stone, 203281, USN, with saved pay of his former rank, CWO (W-4) or with the pay and allowances of a lieutenant.

In the second indorsement it is reported that Lieutenant Stone was formerly a chief warrant officer, W-4, by permanent appointment and that under authority of 10 U.S.C. 5596 he received a temporary appointment as lieutenant, U.S. Navy, effective December 27, 1960.

In your letter it is stated that in accordance with paragraph 044022-2c (2) of the Navy Comptroller Manual when the pay and allowances of a member's rank exceed those of his saved pay, he is to be credited with the rates of pay for his present rank. Further, it is stated that when Lieutenant Stone was promoted from CWO (W-4) to the rank of lieutenant he elected saved pay; that at that time his basic pay as a CWO (W-4) was $543; that basic allowance for quarters was $119.70 and subsistence allowance was $47.88. At that time his pay and allowances as a lieutenant would have been less than as a chief warrant officer. Also, it is shown that a comparison of saved pay for Lieutenant Stone and the present pay of a lieutenant is as follows:

It is pointed out that the member's saved pay is now $2.35 less than the pay and allowances to which he is entitled as a lieutenant but that since the member is currently residing in navy public quarters with his dependents his basic allowance for quarters is checked and, therefore, excluding the basic allowance for quarters, his take-home pay is greater if computed on the saved pay of a chief warrant officer rather than as a lieutenant. Your question is whether under these circumstances Lieutenant Stone may elect to continue drawing saved pay as long as he is residing in public quarters or must he be credited with a lieutenant's pay.

Section 5596 (f) of Title 10, U.S. Code, provides as follows:

(f) Temporary appointments under this section do not change the permanent, probationary, or acting status of members so appointed, prejudice them in regard to promotion or appointment, or abridge their rights or benefits. A person receiving a temporary appointment under this section may not suffer any reduction in the pay and allowances to which he was entitled because of his permanent status at the time of his temporary appointment or any reduction in the pay and

allowances to which he was entitled under a prior temporary appointment in a lower grade.

In our decision of April 12, 1962, B-148145 (41 Comp. Gen. 663), copy enclosed, the third question concerned a commissioned warrant officer (W-4) who received a temporary appointment as lieutenant (O-3E). As a CWO (W-4) he was entitled to basic pay at $528, subsistence allowance at $47.88 and basic allowance for quarters at $119.70, a total of $695.58. As a lieutenant (O-3E) he was entitled to basic pay at $535, subsistence allowance at $47.88 and basic allowance for quarters at $102.60, a total of $685.48. On such basis the member was entitled to the saved pay and allowances of a CWO (W-4). If at the time of his temporary appointment, however, he was assigned public quarters, the amount of saved pay and allowances as a CWO (W-4) for credit to his account would have been $575.88 ($528 basic pay and $47.88 subsistence allowance) or $7 less a month than the pay and allowances of $582.88 ($535 basic pay and $47.88 subsistence allowance) for credit to his account as a lieutenant. In these circumstances we concluded that the savings provisions of the statute under which the officer was temporarily promoted did not deprive him, while occupying Government quarters, from receiving the pay and allowances of the temporary grade since the actual amount payable to him or for credit to his account on that basis would exceed the amount he would receive on a saved pay basis. This was so even though the pay and allowances of the permanent grade would have exceeded those of the temporary grade if the quarters allowance had been payable.

The circumstances in Lieutenant Stone's case present the reverse of the situation considered in the above decision. That is, while Lieutenant Stone occupies public quarters the monthly amount of his takehome pay and allowances based on the permanent grade of CWO (W-4) is $590.88 ($543 basic pay and $47.88 subsistence allowance) or $8 more than the pay and allowance of $582.88 ($535 basic pay and $47.88 subsistence allowance) he would receive on the basis of his temporary grade. Since quarters allowance is not payable when quarters in kind are furnished and since the actual conditions of service must be considered in determining the amount of total compensation under the savings provisions as well as under the temporary appointment, the officer may continue to receive the greater take-home pay until such time as conditions change at which time he may make another election.

Based on the foregoing, Lieutenant Stone may continue to receive saved pay until such time as public quarters are no longer available, and it is to his advantage to elect to take the pay and allowances of a lieutenant.

Your question is answered accordingly.

INDEX DIGEST

July 1, 1962-June 30, 1963

Page

493

69