information relative to furnishing samples was provided formally to prospective bidders; but the purchasing activity has advised that the subject of samples was discussed over the telephone with at least one prospective bidder, Memorex Corporation, at which time it was learned that the company was having difficulty obtaining literature due to the newness of the Lexan collar. The purchasing activity further reports that the representative of Memorex mentioned that the submission of a sample was contemplated and that he was cautioned that if such submission were to be part of his firm's bid, it should be mailed in a manner to insure its arrival prior to the time set for opening of bids, and if received late its consideration would be governed by the late bid provision in the invitation. The bids were opened on May 18, 1965. Seven bids were received, four from large business concerns and three from small business concerns. The lowest bidder, Computron, Inc., a large business concern, which bid a unit price of $17.75, did not furnish descriptive literature as required by the invitation. It was discovered shortly after bid opening on May 18, 1965, that Computron had furnished samples of a Lexan collar it intended to furnish through personal delivery by its representatives to the requirements organization on May 13, 1965, these samples having been in addition to samples previously furnished by Computron, on the basis of which the decision to buy the reels with collars had apparently been reached. The administrative report states that these samples were not marked as applying to the procurement covered by the invitation nor were they referenced in the bid, although at the time they were delivered it was stated verbally that they were "for the bid." Examination of Computron's samples showed them to be in accordance with the requirements. The other six bidders submitted bids as follows: Memorex Corp. $21 Small Business... Submitted sample of per unit. collar as part of bid. Ampex Corp. $21.40 Large Business... Submitted descriptive $21.75 per unit. literature. Small Business... Submitted literature on tape and tape reels, but not on collars. Reeves Soundcraft $23 per unit. Submitted samples of collar. Small Business... Submitted literature but was non-responsive with respect to delivery of preprod samples. MAC Panel Co. $26.50 per unit. IBM $36.75_ - - - . Large Business... Submitted literature. Large Business... Submitted literature. The report from the Acting Assistant Chief for Purchasing includes the following statement: It is recognized that the requirements of ASPR 2-202-5 [sic] relative to descriptive literature have not been complied with in that the invitation fails to describe the specific characteristics of the collar for which literature was required. However, the purchasing activity has advised that all firms have bid on furnishing the Lexan collars desired. In addition IBM submitted an alternate bid on an IBM collar. While it appears that this procurement should have been initiated on the basis of "Brand Name or Equal", to cancel and readvertise now that the bid prices have been exposed would in all likelihood result in the receipt of bids from these same bidders for the same product they have offered in this solicitation. Our decision is requested as to "whether in this instance the requirements for descriptive literature may be disregarded and award be made to Computron, Inc., the low bidder for the non-set-aside portion or must the IFB be cancelled because of the inadequacies." With respect to the question whether the requirements for descriptive literature may be disregarded, it is our view that where, as here, the language of the invitation requires the submission of descriptive literature with the bid, providing that failure to submit such literature will require rejection of the bid, with no provision for waiver, any failure to comply with such invitation requirements must be regarded as a material deviation which requires the bid to be rejected. See B-156539, June 9, 1965, and decisions cited therein. We are unable to accept the argument that a sample is an "illustration" within the meaning of the definition of "Descriptive Literature" contained in paragraph 2-205.5, Armed Services Procurement Regulation, although it appears that in this case a sample might have better served the purposes of the procuring agency than the descriptive literature called for. At the same time, since the bidders, or at least one of them, were apparently misled by verbal statements of procurement personnel, and since it is the conclusion of the agency that all bidders were undoubtedly offering collars fully complying with the specifications, it would be unduly prejudicial to the bidders who submitted samples instead of drawings, and contrary to the best interests of the Government, to reject their bids and consider only the others. In these circumstances, and in view of the failure of the record to show proper compliance with ASPR 2-202.5, which requires both that the requirement for descriptive literature be justified in the contract file and that the specific purpose for which it is required must be stated in the invitation, we conclude that the invitation in question is defective and should be canceled. B-150868, April 29, 1963. [B-156643] Subsistence-Per Diem-Fractional Days-Less Than Ten Hours Under a travel order authorizing per diem to an employee while traveling to and from a place of temporary duty for training, payment of per diem for less than 6 hours travel each way on different days is not precluded by the 10-hour travel period restriction on continuous travel of 24 hours, or less, in section 6.11 of the Standardized Travel Regulations, revised effective March 1, 1965, the per diem for the fractional days of the travel time involved being for computation under the rule for continuous travel exceeding 24 hours, even though because of administrative restriction the per diem payable is for less than a continuous period of 24 hours, and the employee having been away from his official station for a period of temporary duty in excess of 24 hours, the fractional parts of a day at the beginning and end of the "continuous travel" constitute a travel period entitling the employee to one-fourth of the authorized per diem rate for each period of 6 hours or fraction thereof. To the Administrator, Veterans Administration, June 30, 1965: On April 26, 1965, you presented for our decision certain questions, hereinafter quoted, relating to the entitlement of an employee to per diem in lieu of subsistence while traveling to and from a place of temporary duty for training. The employee's travel order authorized per diem while traveling but no per diem while at the temporary duty station. The going trip required slightly over 3 hours (9:30 a.m., C.S.T., to 1:37 p.m., E.S.T.), and the return trip required 4 hours (9:15 a.m., E.S.T., to 12:15 p.m., C.S.T.). Your questions and comments thereon are as follows: Under these circumstances would the proviso in 6.11 of the Standard Government Travel Regulations preclude the payment of per diem allowance because the travel was less than 10 hours although the departure from the official duty station and return to official duty station were performed on widely separated days? If your answer is in the affirmative would the per diem in question be proper for payment had the order authorized per diem while at temporary duty station as well as when traveling to and from such point? The use of the term "official travel" in section 6.9a of the travel regulations clearly covers that period between departure from and arrival at an employee's official station. Paragraph 6.9c holds, in effect, that official travel begins when an employee departs and ends with the "conclusion" of a trip. It isn't readily apparent whether the terms "continuous travel" and "travel period" as used in Section 6.11 of the cited regulations are synonymous with a period of temporary duty or should be literally interpreted as applying to the physical act of traveling irrespective of the overall period of temporary duty covered by the travel authorization. Section 6.11 of the Standardized Government Travel Regulations (revised effective March 1, 1965) provides in pertinent part as follows: Day defined.—In computing the per diem in lieu of subsistence for continuous travel of more than 24 hours, the calendar day (midnight to midnight) will be the unit, and for fractional parts of a day at the commencement or ending of such continuous travel, constituting a travel period, one-fourth of the rate for a calendar day will be allowed for each period of 6 hours or fraction thereof. *** For continuous travel of 24 hours or less, the travel period will be regarded as commencing with the beginning of the travel and ending with its completion, and for each 6-hour portion of the period, or fraction of such portion, one-fourth of the per diem rate for a calendar day will be allowed: Provided, That no per diem will be allowed when the travel period is 10 hours or less during the same calendar day For purposes of comparison we quote also the proviso to the last paragraph of section 6.11 as worded prior to August 1, 1959 (also designated paragraph 51 of certain prior editions of the regulations), as follows: *** Provided, That no per diem will be allowed when the departure is at or after 8 a.m., and the return on the same day is at or prior to 6 p.m. The expression "travel period" appearing in the proviso to the last paragraph of section 6.11 of the regulations as recently amended has appeared for many years in said section (or in its predecessor-paragraph 51) in prescribing the rules for computing per diem for fractional days at the beginning or end of "continuous travel" of more or less than 24 hours, respectively. In cases in which the employee was away from his official station for an extended period of temporary duty in excess of 24 hours, we have held that the rule for continuous travel of more than 24 hours was applicable even though, because of certain administrative restrictions, per diem was payable for less than a continuous period of 24 hours. 21 Comp. Gen. 4; B-37904, November 30, 1943. Furthermore, the former "8 a.m. to 6 p.m." rule appearing in the proviso quoted immediately above has not been viewed as precluding payment of per diem for absences from headquarters under similar circumstances. B-110984, August 20, 1952. In line with such prior construction, we hold that the 10-hour travel period restriction of section 6.11 of the current regulations does not prohibit the payment of per diem for the fractional days of actual travel time involved in the case you present, such fractional days' per diem being for computation under the rule for continuous travel exceeding 24 hours. Your first question is answered in the negative, making it unnecessary to answer the second question. In reaching our conclusion herein, we have assumed that your agency was not relieved from the payment of per diem while the employee was at the place of training, because of contributions by a nonGovernment entity under authority of section 19 of the Government Employees Training Act, 72 Stat. 336, 5 U.S.C. 2318, as implemented by Bureau of the Budget Circular No. A-48, February 13, 1959, and Part 410, subpart G, of the Civil Service Commission's Regulations. Otherwise, there would be for consideration the applicability of the rule set forth in 18 Comp. Gen. 701. INDEX DIGEST July 1, 1964-June 30, 1965 ABSENCES (See Leaves of Absence) ACCOUNTABLE OFFICERS Interagency disbursements Liability When employees of Dept. of State in overseas areas as part of regular Relief Disbursing officers. (See Disbursing Officers, relief) Although accountable officer of Post Office Dept. who refunded errone- Prohibition in sec. 5 of act of Aug. 20, 1964, that members of uniformed Page 818 154 839 |