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In the matter of Richard L. Young-relocation expenses-withholding of income tax, September 30, 1976:

This matter arises from a request for an advance decision dated August 3, 1976, from Ms. Orris C. Huet, an authorized certifying officer of the United States Department of Agriculture, regarding a claim from Mr. Richard L. Young for repayment of income taxes withheld from reimbursed relocation expenses in 1975.

Mr. Young contends that the decision in Allstate Insurance Co. v. United States, 530 F. 2d 378 (Ct. Cl. 1976), precludes the withholding of Federal income taxes from reimbursement of "moving expenses" paid to Federal employees. Allstate sued in the Court of Claims to recover money it had withheld, for the years 1965 to 1969, from reimbursement of transferred employees' indirect moving costs. The Court held that reimbursement of moving expenses was not compensation for services within the meaning of 26 U.S. Code § 3401 (1964). There were extensive changes in the tax treatment of moving expenses included in the Tax Reform Act of 1969, Public Law 91-172, 83 Stat. 487, 577-580, December 30, 1969. Among other things, section 82 was added to the Internal Revenue Code (26 U.S.C. § 82 (1970)). That section provides that:

There shall be included in gross income (as compensation for services) any amount received or accrued, directly or indirectly, by an individual as a payment for or reimbursement of expenses of moving from one residence to another residence which is attributable to employment or self-employment.

This section applies to taxable years beginning after December 31,

1969.

In light of section 82, which specifically defines reimbursement of moving expenses as compensation for services, we do not believe that Allstate Insurance Co. v. United States, supra, has any applicability to 1970 and following tax years. It is based upon a statute that has been amended, specifically dealing with the point covered by the Court. Accordingly, Mr. Young's voucher is returned and may not be certified for payment.

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In view of certifying officers' statutory right to request and receive
advance decision from the Comptroller General on matters of law,
certifying officers are not "bound" by conclusion of law rendered by
agency's general counsel. 31 U.S.C. 82d__.

ADMINISTRATIVE ERRORS

297

Correction

Promotions

Failure to carry out agency policy

Supervisors of wage board employees

Supervisor, whose salary was less than that of wage board employee
whom he supervised, was not identified as eligible for pay adjustment.
Since prompt identification was required by nondiscretionary agency
regulation, noncompliance constitutes administrative error which may
be rectified by the granting of backpay under 5 U.S.C. 5596.
Leaves of absence

Annual

Accrual

Maximum limitation

Forfeiture due to administrative error. (See LEAVES OF AB-
SENCE, Annual, Accrual, Maximum limitation, Forfeiture
due to administrative error)

Promotions

Subsequent correction

Two Bureau of Mines employees were detailed to higher grade posi-
tions in excess of 120 days and no prior approval of extension beyond
120 days was sought from CSC. Employees are entitled to retroactive
temporary promotions for period beyond 120 days until details were
terminated because Board of Appeals and Review, CSC, has interpreted
regulations to require temporary promotions in such circumstances.
Amplified by 55 Comp. Gen. 785---

1507

1443

539

ADMINISTRATIVE PROCEDURES
Contract advertising v. negotiation

Recommendation is made that options in questioned negotiated
janitorial services contract, and similar outstanding janitorial services
contracts, not be exercised and that GSA immediately commence
study of appropriate methods and clauses for improving formal advertis-
ing procurement method for future needs of janitorial services_

Grant of extraordinary contractual relief under Public Law 85-804—
which has effect of making exercise of contract option viable possibility
and leads agency to compare contract option price with prices of pro-
posals received under RFP-does not constitute improper use of Public
Law 85-804 authority to negotiate contract. Proscription in act is that
extraordinary authority cannot be used to negotiate contracts for
supplies or services which are required to be procured by formal ad-
vertising, which is not what occurred in this case..
Contract exclusion

Although contractual matters are statutorily exempted from rule
making provisions of 5 U.S.C. 553, Secretary of Labor has waived
reliance on that exemption for rule making by his Department, thereby
necessitating Department of Labor compliance with statutory provi-
sions ____

ADVERTISING

Advertising v. negotiation

Advertising when feasible and practicable

Notwithstanding desired use of negotiated award method for given
procurement or range of procurements, negotiation must be objectively
justified in view of statutory preference (41 U.S.C. 252(c)) for formal
advertising...

Janitorial services

None of the exceptions to formal advertising (as set forth in 41 U.S.C.
252 (c) (1)–(15)) expressly authorizes use of negotiations only to secure
desired level of quality of janitorial services or to obtain incentive-type
contract. Moreover, analysis of legislative history of Federal Property
and Administrative Services Act (40 U.S. C. 471), under which questioned
negotiated award of services was made, shows that Congress specifically
rejected proposal to permit negotiation to secure desired level of quality
of supplies or services...

Since negotiating rationale employed by GSA is same as was cited in
Nationwide Building Maintenance, Inc., 55 Comp. Gen. 693, where it
was found that GSA had no legal basis to negotiate janitorial services
procurements, and since award has been made, option should not be
exercised and any future requirement for services should be formally
advertised.

Negotiation propriety

Conduct of negotiations with only firm considered to be in competitive
range does not require additional D&F to support sole source award where
procurement was negotiated pursuant to D&F justifying use of negotia-
tion authority under FPR 1-3.210(a) (8) relating to procurement of
studies and surveys--.

Grant of extraordinary contractual relief under Public Law 85–804—
which has effect of making exercise of contract option viable possibility
and leads agency to compare contract option price with prices of pro-

Page

693

1479

1160

693

693

864

787

ADVERTISING-Continued

Advertising v. negotiation-Continued

Negotiation propriety-Continued

posals received under RFP-does not constitute improper use of Public
Law 85-804 authority to negotiate contract. Proscription in act is that
extraordinary authority cannot be used to negotiate contracts for
supplies or services which are required to be procured by formal ad-
vertising, which is not what occurred in this case..

Specifications availability

Impossibility of drafting adequate specifications is criterion for au-
thorizing negotiation under 10 U.S.C. 2304(a)(10); Armed Services
Procurement Regulation 3-210.2(xiii). Where record does not show
reasonable grounds to support conclusion of "impossibility," neither
difficulty of drafting adequate specification for radio sets nor desire for
negotiations in order to enhance or assure offerors' understanding of
requirements justifies negotiation in lieu of advertised procurement.
General Accounting Office (GAO) recommends that if Army cannot
find other basis to authorize current ongoing negotiated procurement,
RFP should be canceled...
Services

Procurement

Delivery type contract

Use of indefinite delivery type of contract to procure advertising
services is not improper since applicable regulations provide only that
agencies may use basic ordering agreement for obtaining advertising
services but do not preclude use of other contractual vehicles and since
advertising services are a "commercial item"

AGENCY

Overtime policies. (See REGULATIONS, Overtime policies)

Promotion procedures. (See REGULATIONS, Promotion procedures)
AGENTS

Government

Authority

Responsibility of persons dealing with agents

Since persons who enter contractual relationships with the Govt.
are charged with responsibility of accurately ascertaining extent of a
limited agent's authority, Govt. is not bound by damage clause signed by
employee beyond scope of his authority...

Government liability for negligent or erroneous acts

Fact that bidder alleges it was told by procuring agency personnel
to include cover letter with bid which conditioned bid upon possession
of local license, resulting in rejection of bid, does not alter nonrespon-
siveness of bid as Govt. is not responsible for negligence of employee
absent specific statutory provision---

Of private parties

Authority
Contracts

Page

1479

1479

1111

356

597

Bid bond

Evidence required to establish authority of particular person to bind
corporation is for determination of contracting officer, and record
provides no basis for concluding that contracting officer incorrectly
determined that agent was authorized to sign bid bond_-_-

422

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