655. Retirement in such case is accomplished in the Reserve grade held on the date of retirement. 10 U.S.C. 3961. Clearly, an officer so retired while serving on active duty in a temporary grade under the Officer Personnel Act which was lower than, or the same as, his Reserve commissioned grade, is exempt from the dual compensation restriction of the Economy Act under section 1(b) of the act of July 1, 1947, and section 29 (c) of the act of August 10, 1956, since he is entitled to retired pay because of his Reserve status and under laws relating to Reserve components of the armed services.

A Reserve officer serving on active duty in a higher temporary grade under the Officer Personnel Act at the time of retirement pursuant to section 202 of the act of June 29, 1948, is entitled (10 U.S.C. 3963 (a)) to a retired grade equal to such temporary grade if that is the highest temporary grade in which he served satisfactorily for a period of not less than 6 months. 10 U.S.C. 3963 (a) recognizes that retirement is accomplished in a Reserve status and implies that the officer concerned is carried on the retired list as a retired Reserve officer with a retired grade equal to that of the highest temporary grade in which he served satisfactorily. Such statutory provision is consistent with section 203 (a) of the act of June 29, 1948, 10 U.S.C. 1002 (1952 Ed.), from which it was derived, and expresses the legislative intent with respect thereto. See section 49 (a) of the act of August 10, 1956, 70A Stat. 640. It is our view that section 203 (a) is a law relating to Reserve components insofar as the matter here involved is concerned (see answer to question 1(c) below) and that such officer is exempt from the restriction of the Economy Act.

Reserve officers serving on active duty as temporary officers, who were retired for disability under section 5 of the act of April 3, 1939, as amended, 10 U.S.C. 456 (1952 Ed.), or Title IV of the Career Compensation Act of 1949, 63 Stat. 816 (now Chapter 61, 10 U.S. Code), were entitled to retired pay computed on the higher Reserve grade held by them under the Tracy, 136 Ct. Cl. 211, Neri, 145 Ct. Cl. 537, and other similar cases. It appears proper to regard such officers as being entitled to retired pay because of their Reserve status and under laws relating to Reserve components and thus exempt from the restriction of the Economy Act. Hence, the conclusion appears warranted that an officer who was serving on active duty in a temporary grade under the Officer Personnel Act which was lower than that held under his Reserve commission may be said to receive his retired pay under laws relating to Reserve components and thus is exempt from the restriction of the Economy Act. However, if the temporary grade under the Officer Personnel Act was higher than the Reserve grade, retirement actually was effected in the temporary grade. See in this connection section 409 of the Career Compensation Act, 37 U.S.C. 279

(1952 Ed.), and Jakway v. United States, 146 Ct. Cl. 482. While it is proper to view the 1939 and 1949 acts as laws relating to Reserve components (Clyde B. Cox v. United States, 155 Ct. Cl. 698), they cover other personnel as well. Retirement for disability in such a case is not dependent in any way on the existence of a Reserve officer status and if a person holding a Reserve commission actually is retired for disability in his higher temporary officer grade held under the Officer Personnel Act, we find no basis for concluding that he is exempt from the restrictions of the Economy Act.

While it may be argued that the rationale of the Tracy case is that a Reserve officer is entitled to be retired in his permanent Reserve grade unless retirement is authorized in a higher temporary grade and thus that an officer serving in a temporary grade which is the same as his Reserve commissioned grade should be regarded as retired in his status as a Reserve officer, that argument may not serve as a basis for granting him exemption from the restriction of the Economy Act, since the court in the Watman case clearly stated that the officer's commission in the Officers' Reserve Corps in such circumstance is irrelevant. The court's statement in the Cox case that in the Watman case it finally was decided that the act of July 1, 1947, applied to Reserve officers retired for disability, as well as for longevity, furnishes no basis for a conclusion that the court regarded Watman as entitled to the exemption benefits of that act in his Reserve status. The conclusion that the act of July 1, 1947, applied to Reserve officers retired for disability was merely a necessary preliminary to the decision that Watman, as a temporary officer, was entitled to the same benefits as a Reserve officer, which included exemption benefits if retired for disability. It is our view that an officer serving on active duty in a temporary grade under the Officer Personnel Act which is the same as his Reserve commissioned grade and who is retired for disability is retired as a temporary officer and is not exempt from the restriction of the Economy Act.

Questions 1a (1), (2) and (3) are answered accordingly.

If question 1b, as it relates to retirements under Title III of the act of June 29, 1948, refers to an enlisted man or warrant officer who is believed to have met the retirement eligibility qualifications of such title at the termination of his duty status as a regular, attention is invited to the fact that section 302 (a) of the act of June 29, 1948, 10 U.S.C. 1036a (a), required that the last 8 years of qualifying service for retirement under Title III of that act, must be service in a Reserve component. The second proviso of that section provided that simultaneous service as a member of a Reserve component and as a member of the Regular Army could not be deemed to be service in a Reserve component. Under such provisions of law, it appears that the member

mentioned in question 1b may not have met the 8-year Reserve service qualification in order to qualify for retired pay under Title III. However, if he did complete 20 years of satisfactory Federal service prior to his period of service in the Regular Army or Air Force and was granted retired pay upon termination of such regular service, computed on the pay of his Reserve commissioned grade by reason of having served satisfactorily on active duty in that grade, he is exempt from the restrictions of the Economy Act. Question 1b (1) is answered accordingly. See answer to question 1a (1).

If a person serving on active duty as a Regular warrant officer or a Regular enlisted man met the eligibility qualifications of section 202 of the act of June 29, 1948, and was retired in his Reserve commissioned grade, it appears that his retired pay would be paid under laws relating to Reserve components and thus would be covered by the exemption provisions of section 1(b) of the act of July 1, 1947. Question 1b (2), therefore, is answered in the affirmative.

With respect to retirements for physical disability, it appears that prior to enactment of Title IV of the Career Compensation Act of 1949, an enlisted man was not entitled to retirement for disability unless he had at least 20 years of service in the military forces. 10 U.S.C. 939 (1946 Ed.). A member's right to retirement for disability is not based on his status as a member of a Regular or a Reserve component and if an enlisted man had less than 20 years' service at the time he became disabled for further active duty prior to October 1, 1949, he would not have been retired for disability merely because he was a member of the Officers' Reserve Corps. If he had more than 20 years' service, he would have been retired in his enlisted grade and his pay would have been computed on the pay of that grade. See 10 U.S.C. 982a (1946 Ed.). We find nothing in that statutory provision or in 10 U.S.C. 939 (1946 Ed.), which would require application of the rule of the Tracy case.

Section 402 (d) of the Career Compensation Act of 1949, 37 U.S.C. 272(d) (1952 Ed.), effective October 1, 1949, provided for the payment of retired pay to members retired for disability, computed on the pay of the rank, grade or rating held at the time of retirement. While the "pay" there mentioned at one time was believed to be the pay being received at the time of retirement, including situations where the member concerned was serving on active duty in a temporary officer grade at time of retirement, the court, in the Tracy and other related cases, held that it was the pay of the higher permanent Reserve grade if the person concerned held such grade, even though he may never have served on active duty in that grade. The same rule has been held to be applicable in situations where the person concerned was serving on active duty as a warrant officer or enlisted member of a

Regular component at the time of retirement but held a higher Reserve commissioned grade. 38 Comp. Gen. 268, answer to question 1a. A person so retired receives his retired pay under laws relating to Reserve components and hence is exempt from restriction of the Economy Act.

Question 1b(3) is answered accordingly.

With respect to question 1(c), it appears clear that a temporary commissioned officer of the Army of the United States or the Air Force of the United States who was retired in his Reserve commissioned grade under laws authorizing or directing retirement of Reserve officers under the circumstances prescribed in such laws was retired under a law relating to Reserve components. Section 203 (a) of the act of June 29, 1948, affected the retired pay of some of such retired Reserve officers by directing their advancement on the retired list if they met certain eligibility qualifications. To that extent section 203(a) was a law relating to Reserve components and Reserve officers so advanced on the retired list appear to be covered by the dual compensation exemption provisions of the act of July 1, 1947, and section 29(c) of the act of August 10, 1956. Question 1(c) is answered in the affirmative.

It is believed that comparatively few people will be affected by the negative answers to parts of question la (3) in situations where they were serving on active duty in a temporary grade under the Officer Personnel Act at the time of retirement for disability, which grade was higher than, or the same as, the Reserve commissioned grade then held. Also, we find nothing in Title IV of the Career Compensation Act or in the Tracy case which should have induced a belief that persons so situated were exempt from the restriction of the Economy Act. As of this date it appears that the proposal to amend the dual compensation provisions mentioned in your letter has not been introduced in the Congress and, hence, it seems unlikely that any major change will be made in those provisions during the current session. Accordingly, we see no basis for applying the conclusions reached herein prospectively only or for delaying implementation thereof. Question 2 is answered in the negative.

Contracts

[B-148265]

Specifications-Definiteness Requirement

A request for proposals using drawings, diagrams and specifications which are deficient and inadequate but which are to be explained to the lowest offeror selected for negotiation and if there is any increase in the cost then other bidders will be given an opportunity to submit revised proposals is a procurement procedure which is indefinite, will result in unrealistically low bids, and does not afford all bidders equal opportunity and, therefore, such a request for proposals is invalid.

722-809 O-64-4

To the Secretary of the Army, July 9, 1962:

Further reference is made to the objections raised by Sentinel Electronics, Incorporated, against the use of a proposed method of procurement made a part of the terms and conditions of Request for Proposals No. SC-36-039-62-11128-A3, and to the corporation's protest against the use of deficient specifications and drawings, as to which your Department furnished us a report with covering letter dated April 30, 1962.

With respect to the question as to the propriety of those terms of the solicitation which afford possible preference to labor surplus area firms, such procurement procedure was considered and approved in our decision of June 1, 1962, B-148512, 41 Comp. Gen. 787, involving another purchase. Since the present protest presents no new and material evidence in that regard, or any contentions not considered in the cited decision, the protesting firm has been advised that our concurrence with such procedure will not be disturbed. A copy of such decision is enclosed.

The second objection relates to the use of questionable specifications and drawings which the protesting bidder feels are prejudicial because of the possibility that firms unsuspecting and uninformed as to actual production costs may submit unrealistic offers. We believe there is merit to such protest. Admittedly, many of the drawings, diagrams and specifications are either erroneous, deficient or nonexistent. Attempt is made to overcome the lack of adequate and informative specifications in the solicitation by the following provision:

Note #2: The contractor agrees to thoroughly check the furnished Government drawings covered by SC-DL-338011 (Oscilloscope AN/USM-50) and SC-DL-338064 (Cover Assembly) against Government Furnished model, exceptions to model listed in the contract, and applicable specifications. Conflicts in design, construction, and characteristics between specifications, model (with exceptions), and drawings shall be resolved, and resulting changes incorporated into the drawings, as follows: The requirements of the applicable specifications govern over the exceptions, model, and drawings; the exceptions govern over the model, and the model governs over the drawings. Any discrepancies which arise between the drawings and the model (with exceptions) will be resolved in consultation with Field Engineering Division, U.S. Army Signal Materiel Support Agency.

In letter of January 16, 1962, to the procurement agency, the protesting bidder cites specific examples of serious technical deficiencies in the specifications for certain components which would materially affect the projected price of an uninformed bidder in the computation of his ultimate offer. While it may be that the best information available to describe the desired end product was furnished to the industry with the Request for Proposals, we are of the opinion that the indefiniteness of the solicitation renders it fatally defective, particularly in view of the contemplated procedure to be followed in the selection of a contractor. Note No. 5 of the request provides in