In 53 Comp. Gen. 393 (1973), as modified by 55 Comp. Gen. 158 (1975), it was held that once a pre-SBP effective rate retiree had positively elected into the SBP, such election was irrevocable, but that a positive statement of nonparticipation could be revoked and that such a member would have the remainder of the 18-month option period to elect to receive the coverage or coverages authorized but previously declined.
In B-187179, dated November 30, 1976, we considered the effect of a pre-SBP effective date retiree's failure to elect into the Plan within the prescribed time limit during which time he could have elected, where he thereafter changed his mind and desired to participate. We stated in that decision that since the law assimilated pre-SBP effective date retirees with a spouse or dependent children into the Plan on the same general basis as post-SBP effective date retirees, the rules regarding basic entry into the Plan are to be consistently applied. We concluded therein that a member, who could have participated in the Plan and failed to timely elect coverage otherwise available, is precluded from participating thereafter in the absence of additional legislation to reopen the Plan to him.
In the present case, the member elected into the Plan during the 18month period permitted him. In spite of the fact that he had a spouse and dependent children at the time, he chose to reject dependent children coverage. The clear language of section 3(b) quoted above is clearly not applicable to him because he was married and did have a dependent child for purposes of election of SBP benefits. Therefore, since the member had the opportunity to elect for dependent children during the 18-month period authorized by subsection 3(b), and failed to do so before March 21, 1974, when his election period for the Plan closed, he is precluded from thereafter amending his coverage to include dependent children. Accordingly, the second question is answered in the negative.
(OCTOBER 1, 1976-SEPTEMBER 30, 1977)
ABSENCES (See LEAVES OF ABSENCE)
Leaves of absence. (See LEAVES OF ABSENCE)
ACCOUNTABLE OFFICERS
Certifying officers. (See CERTIFYING OFFICERS)
ADMINISTRATIVE DETERMINATIONS
Discretionary v. mandatory
Agreement between Federal Aviation Administration and union
(PATCO) provided that discrimination would not be used in the agency's
awaids program. Arbitrator found that employee had been discriminated
against by supervisor in violation of agreement and directed that cash
performance award be given to employee. Payment of cash award
ordered by arbitrator would be improper since granting of awards is
discretionary with agency, agency regulations require at least two
levels of approval, and labor agreement did not change granting of
awards to nondiscretionary agency policy-- -- -
Reasonableness of discretionary exercise of authority
Cancellation of RFP due to unavailability of funds is reasonable exer-
cise of discretion because Anti-Deficiency Statute, 31 U.S.C. 665(a),
prohibits the obligation of funds in excess of amount appropriated from
one program to another___
ADVERTISING
Advertising v. negotiation
Advertising when feasible and practicable
Problems with preaward surveys and performance difficulties that
Air Force has encountered in obtaining adequate hospital cleaning service
do not constitute reasons, in themselves, to authorize negotiation in lieu
of advertised procurement method, which is preferred by statute. Modi-
fied by 56 Comp. Gen. 649___
Formal advertising "wherever possible"
Procurement regulations have recognized that, even though a set-aside
procurement was technically a negotiated procurement because com-
petition was justifiably restricted to one class of bidders under "exception
one" negotiation authority, procurement should otherwise be conducted
under rules of formal advertising "wherever possible".
No clear abuse of agency discretion as to whether to invoke authority
to negotiate a contract without competition with an Indian concern
under "Buy Indian Act" (25 U.S.C. 47) is found where agency relied on
Tribal resolution recommending procurement by formal advertising-- --
1027
ADVERTISING-Continued
Advertising v. negotiation-Continued
Maintenance and repair services
Agency's determination that it was unable to locate qualified sources
to perform elevator, escalator, and dumbwaiter maintenance and repair
services other than manufacturers of the equipment does not constitute
rational basis for sole source procurement from manufacturers where
agency did not make its requirements known to the public and where
agency's determination does not appear to have a factual basis...
Negotiation propriety
Waiver of formal advertising procedures
Since Administrator, General Services Administration, has waived
regulation requiring use of formal advertising procedures whenever
possible under small business set-aside procurements and because
statute containing "exception one" negotiating authority contains no
indication of any limit on negotiation procedures that can be used in
"exception one" set-aside procurements, use of negotiation procedures
under questioned procurements is lawful and not in violation of prior
decision.
Although statutory requirement that contracts be let after competitive
bidding is not applicable to reprocurements, when contracting officer
conducts new competition for reprocurement, defaulted contractor may
not automatically be excluded from competition since such exclusion
would constitute an improper premature determination of nonresponsi-
bility. B-175482, May 10, 1972, overruled; 54 Comp. Gen. 161 and prior
inconsistent decisions, modified..
Specifications availability
Assuming that impossibility of drafting specifications for management
services related to furnishing immediate product or service is considera-
tion which might otherwise justify negotiation even though specifica-
tions for furnishing basic product or service are known, fact remains
that Air Force admits it could develop specification for management
services thereby negating any claim that it is impossible to draft
specifications. Modified by 56 Comp. Gen. 649---
Prior decision holding Air Force to be without authority to negotiate
contracts for "desired" high level of hospital aseptic management
services is modified in view of record reasonably establishing that Air
Force's minimum needs can be satisfied only by best service available,
and that Air Force cannot prepare adequate specification describing
that service so as to permit competition under formal advertising pro-
cedures. 56 Comp. Gen. 115, modified__.
Commerce Business Daily
Procurement not properly categorized
Bid opening date omitted
While protest concerning failure to solicit bid from previous supplier
was filed after bid opening, protest is considered timely because pro-
curement was not properly categorized in Commerce Business Daily
and it would not be fair to impose burden of discovering that fact
within time constraints of General Accounting Office Bid Protest
Procedures___.
Contention of protester concerning fact that synopsis of procurement
in Commerce Business Daily (CBD) did not include bid opening date
is academic because protester did not rely on CBD synopsis_-_-
ADVERTISING Continued
Commerce Business Daily-Continued
Publication requirement
Prior to ordering under basic ordering agreement
Publication of synopsis in Commercial Business Daily must precede
ordering under Basic Ordering Agreement so as to allow potential bidders
an opportunity to compete. Armed Services Procurement Regulation
1-1003.2...
AGENTS
Government
Authority
Department of Justice appropriations are available to pay legal ex-
penses, including private attorneys' fees, incurred by Government
officers or employees in defending suit filed under section 7217, I.R.C.
(1954), when the Department determines that officer or employee was
acting within the scope of his employment; that United States has an
interest in defending the officer or employee; and that representation by
the Department is unavailable for some valid reason. 40 Comp. Gen. 95
and other similar decisions, overruled___
Government liability for acts beyond authority
Erroneous information
Although agency official indicated to an employee that his request to
use POV as advantageous to the Government for temporary duty travel
would be approved, such statement does not bind Government since
official had no authority to approve POV use and Government is not
estopped from repudiating advice given by one of its officials if that
advice is erroneous_
Government liability for negligent or erroneous acts
Relocation allowances paid to employee transferred for training pur-
poses are strictly limited by 5 U.S.C. 4109. Fact that cognizant agency
officials erroneously authorized reimbursement of expenses beyond
those permitted by statute will not form basis for estoppel against
Government. Although estoppel has been found in some cases where
there is contractual relationship between Government and citizen, same
doctrine is not applicable here because relationship between Govern-
ment and its employees is not contractual, but appointive, in strict
accordance with statutes and regulations.
Erroneous information regarding pay
The receipt of information, later established to be erroneous, by one
dealing with a Government official which was relied upon by the recipient
to his detriment does not afford a legal basis for a payment from appro-
priated funds since it has long been held that in the absence of specific
statutory authority the United States is not liable for the negligent or
erroneous acts of its officers, agents, or employees, even though com-
mitted in the performance of their official duties......-
AGREEMENTS
Basic ordering agreements
Negotiated contracts. (See CONTRACTS, Negotiation, Basic ordering
agreements)
Contracts
Negotiated
Master agreements
Department of Agriculture's proposed use of master agreements for
prequalifying firms to compete for agency consulting requirements is
tentatively approved, since it is not unduly restrictive of competition
but may actually enhance competition in situations where small firms
otherwise might not be able to compete - -
Farmers Home Administration
Guaranteed loan programs
Small business investment companies
Small business investment companies (SBICs) are not eligible to
participate as guaranteed lenders in either Small Business Administra-
tion's (SBA) or Farmers Home Administration's (FmHA) loan programs.
As stated in 49 Comp. Gen. 32, legislative history of Small Business
Investment Act demonstrates congressional intent that SBICs operate
independently of other Government loan programs. Nothing in SBIC
Act or Consolidated Farm and Rural Development Act, which estab-
lished FmHA's authority to guarantee loans, or legislative history of
either, supports SBA's position that SBICs should now be permitted to
participate as guaranteed lenders in these loan programs.
Fly America Act
Applicability
Employee's liability under 49 U.S.C. 1517 and the Fly America guide-
lines should be determined on the basis of loss of revenues by certificated
U.S. air carriers as a result of the employee's improper use of, or indirect
travel by, noncertificated air carriers. To the extent that State Depart-
ment's formulas at 6 FAM 134.5 impose liability based on gain in
revenues by "unauthorized” carriers where traveler's actions merely
shift Government revenues between noncertified air carriers, those
formulas unnecessarily penalize Government travelers____
In the absence of agency instructions adopting a fare proration formula
for determining traveler's liability for scheduling of travel in violation of
the Fly America guidelines, this Office will apply a milege proration
formula calculating the traveler's liability based on certificated U.S.
air carriers' loss of revenues..
Under State Department instructions, alternate rest and recupera-
tion (R&R) point is to be regarded as the employee's primary R&R
point for purposes of 49 U.S.C. 1517. Since certificated U.S. air carrier
service is unavailable between the employee's duty station, Kinshasa,
and his alternate R&R point, Amsterdam, employee's action in extend-
ing his ticket to include personal round-trip travel aboard a foreign air
carrier to Los Angeles at a reduced through fare was not improper since
his additional travel did not diminsh receipt of Government revenues
by certificated U.S. air carriers...... –
In view of State Department's instruction that alternate R&R point
is to be regarded as employee's primary R&R point for purposes of 49
U.S.C. 1517 and application of the Fly America guidelines, employee's
choice of alternate R&R location not serviced by certificated U.S. air
carriers will be scrutinized to assure that it meets the purpose of rest and
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