Page images

(ii) it was sent by mail (or telegram if authorized) and it is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the Government installation.

(b) Any modification or withdrawal of bid is subject to the same conditions as in (a) above * * *

(c) The only acceptable evidence to establish : * * *

[ocr errors]

(ii) the time of receipt at the Government installation is the time/date stamp of such installation on the bid wrapper or other documentary evidence of receipt maintained by the installation.

The protest here is similar to those involved in two recent decisions of our Office dealing with a timely telegraphic bid and modification not received at Government installations allegedly due to mishandling in the process of, as opposed to after, receipt at the Government installation. Hydro Fitting Mfg. Corp., 54 Comp. Gen. 999 (1975), 75–1 CPD 331, and IdéE Construction Company Incorporated, 55 Comp. Gen. 1340 (1976), 76–2 CPD 139. In the former decision, which involved the nonreceipt of a telegraphic bid due to a malfunction in a Government telex receiver, we discussed this general situation as follows:

In the past, our Office has construed ASPR § 7–2002.2 (formerly ASPR § 2–303.2) as authorizing the consideration of a late bid which arrived at a Government installation in sufficient time prior to bid opening to have been timely delivered to the place designated in the invitation. However, in the cases considered, bids did not reach the designated bid opening office until after bid opening due to mishandling on the part of the installation. See 46 Comp. Gen. 771 (1967) : 43 id. 317 (1963); B–165474, January 8, 1969; B–163760, May 16, 1968; and B–148264, April 10, 1962. In these cases, the time/date stamp on each bid wrapper was used to establish timely receipt at the Government installation. In the instant situation, there is neither the bid nor a time/date stamp or other documentary evidence of receipt maintained at the installation to establish receipt. Therefore, argues DSA, the test of ASPR § 7–2002.2(c)(ii) has not been met and Hydro’s “late” bid cannot be considered.

We agree with DSA in that a reading of the regulation as implemented in the invitation would correctly appear to authorize not considering the confirming telegraphic bid of Hydro submitted after bid opening. Not only is the requisite acceptable evidence of time of receipt nonexistent but, despite DSA's statement that the original telegraphic bid was received and acknowledged. we believe that whether there was “receipt” in the context of the regulation is questionable. In this regard, consideration of a late telegraphic bid is permitted only if late receipt was due to mishandling by the Government after receipt at the Government installation. That mishandling by the Government occurred here is, we believe, clear. But, in our view, the regulation contemplates, and our decisions thereon have involved, instances where a tangible bid was mishandled after physical receipt.

While this may be the case, we believe that strict and literal application of the regulation should not be utilized to reject a bid where to do so would contravene the intent and spirit of the late bid regulation. The regulation insures that late bids will not be considered if there exists any possibility thot the late bidder would gain an unfair advantage over other bidders. In addition, “* * * The purpose of the rules governing consideration of late bids is to insure for the Government the benefits of the maximum of legitimate competition, not to give one bidder a wholly unmerited advantage over another by over-technical application of the rules.” 42 Comp. Gen. 508, 514 (1963) ; and R-1571.76. August 30. 1966. This belief is particularly proper here because in our view, the current regulation did not contemplate the instant circumstances, i.e. mishandling in the transcription of a telegraphic bid and the resultant failure of a Government installation to have actual control over the bid or evidence of time of receipt.

We believe that, in unusual circumstances like these, mishandling by the Government must be paramount in the failure of a bid or modification to be received. To this same effect, the standard late bid clause in the IFB provides that late receipt must be due “solely” to Government mishandling. In the above-cited cases, the Government was completely at fault, from which we concluded that the bidding documents should be considered. In Hydro there was a failure to monitor a Government telex machine, with the result that an absence of paper to accept messages and a jamming of tape went undetected. In IdêE a Government building was closed. Furthermore, in both cases, Western Union did not contribute to the nonreceipt, either because Western Union had no knowledge of the nonreceipt (Hydro) or could have taken no steps to counter the Government's prevention of receipt (IdêE). We have no specific information on responsibility for maintaining the receiver in question other than counsel for NAVFAC's referring to “the Western Union receiver”; therefore, we cannot ascertain who was at fault, if anyone, for the malfunctioning of the machine. However, we believe the record adequately demonstrates distinguishing features from the above cases and supports the Navy's conclusion that the modification should not have been considered. While it might be argued that the “running out” of forms alone exhibited some degree of negligence on the part of the Government in contributing to the nonreceipt of the modification, we do not find that such negligence would have even approximated the requisite level as demonstrated by Hydro and Ido. Rather, we find the substantial cause for the nonreceipt to have been Western Union. The above-quoted statement from the Communications Watch Officer shows that the Navy apparently ordered, but Western Union did not deliver, a new supply of forms for receiving telegrams sufficiently in advance for timely delivery prior to “running out.” Also, Western Union was immediately apprised of the inability of the receiver to accept telegrams on the evening before bid opening. Notwithstanding this, Western Union failed to deliver the telegram clearly marked for delivery prior to bid opening by other means such as a messenger. In our opinion, the Navy had no obligation to send a messenger to Western Union or accept the modification by telephone. Parenthetically, we note that permissible telephonic receipt of telegraphic modifications was specifically deleted from the ASPR in Defense Procurement Circular No. 110, May 30, 1973. Contrast Federal Procurement Regulations § 1–2.304(a) (1964 ed., amend. 118). In view of the above, the protest is denied.


Arbitration—Award—Collective Bargaining Agreement—Violation—Agency Implementation of Award

Navy installation, in separate grievances, was ordered by two arbitrators to pay environmental differential to certain employees, which the installation began to pay. Navy Headquarters, however, concluded the awards were inconsistent with applicable regulations and directed installation to terminate payments. Navy received an unfair labor practice citation and seeks a ruling on legality of the terminated awards. General Accounting Office (GAO) holds that arbitrators' findings and conclusions satisfied the regulatory criteria and that awards may be implemented with backpay for period of termination.

Arbitration—Award—Consistent With Law, Regulations and GAO Decisions

Navy installation terminated two arbitration awards for environmental differential for certain employees on basis payments were improper. Assistant Secretary for Labor-Management Relations cited the naval installation for an unfair labor practice and ordered awards be reinstated with backpay. To preclude ordering payments that may be illegal, GAO recommends that Assistant Secretary state in orders that pavments shall be made “consistent with laws, regu

lations, and decisions of the Comptroller General.” This would permit agency to obtain decision from this Office.

In the matter of Naval Air Rework Facility, Pensacola, Florida— arbitration awards for environmental differential, October 7, 1976:

This decision was requested by letter of August 15, 1975, from Joseph T. McCullen, Jr., Assistant Secretary of the Navy for Manpower and Reserve Affairs, concerning the legality of implementing two arbitration awards of environmental differential pay involving the Naval Air Rework Facility, Pensacola, Florida, and the American Federation of Government Employees (AFGE), Local 1960. Mr. McCullen states that, in the Navy's view, the arbitrator's awards are illegal because they are inconsistent with applicable regulations. Because of its grave doubts as to whether the awards may properly be implemented, the Navy seeks our decision pursuant to 54 Comp. Gen. 312, 320 (1974).

The question submitted is whether the Navy may legally pay the two awards of environmental differential under Federal Personnel Manual Supplement 532–1 and Appendix J thereto.

The Naval Air Rework Facility (NORF), Pensacola, is one of six subordinate field activities of the Naval Air Systems Command engaged in the maintenance and repair of naval aircraft. Local 1960, AFGE, represents an exclusive unit of nonsupervisory employees of the facility. In early 1972, two employees of the facility, A. C. Pereira, an aircraft oxygen equipment repairman, and John W. Melton, an aircraft surface treatment worker, filed separate “class action” grievances under the negotiated grievance procedure, contending that they, and all other employees similarly situated, were entitled to the differential under Federal Personnel Manual (FPM) Supplement 532–1, Appendix J, because of the hazardous nature of the work they were performing. Both the agency and the union agree that the collective bargaining agreement, in effect at the time, between the facility and the union authorized additional pay for employees engaged in hazardous work. The parties were unable to adjust the grievances among themselves, and the issues in dispute were submitted to binding arbitration. The Pereira grievance resulted in an arbitration award issued October 4, 1972, by Edmund W. Schedler, Jr., Arbitrator. It sustained the grievance of Mr. Pereira, brought on behalf of himself and other similarly situated aircraft oxygen equipment repairmen in the facility’s Oxygen Shop, for a 4 percent environmental differential authorized under FPM Supplement 532–1, Appendix J, for employees working in close proximity to explosive and incendiary materials. In his decision, the arbitrator summarized evidence presented during the hearing of several potentially serious accidents that had occurred in the Oxygen Shop involving the explosion of oxygen cylinders and containers. On the basis of this evidence he concluded that employees in the Oxygen Shop are exposed to potentially dangerous accidents, even if they follow prescribed safety procedures, because many materials burn in an incendiary manner when the atmosphere is enriched with oxygen. The Melton grievance resulted in an arbitration award issued October 25, 1972, by Herbert A. Lynch, Arbitrator. It sustained the grievance of Mr. Melton, brought on behalf of himself and other similarly situated aircraft surface treatment workers at the facility, for a 4 percent environmental differential authorized under FPM Supplement 532–1, Appendix J, for employees working with or in close proximity to poisons or toxic chemicals. On the basis of evidence produced during the hearing, the arbitrator concluded that there was a definite possibility of aircraft surface treatment workers inhaling dangerous quantities of toxic fumes. He pointed out that some of the chemicals employed by these workers, even in low concentrations, can cause unpleasant reactions and in strong concentrations are quite dangerous. The Commanding Officer of the Naval Air Rework Facility accepted the awards and began paying the approximately 50 employees affected by the awards a 4 percent environmental differential. However, the two arbitration awards were later reviewed by the Office of Civilian Manpower Management (OCMM), Department of the Navy, which reached the conclusion that its interpretation of Appendix J of the environmental pay regulations was in conflict with the standards applied by the two arbitrators. In an effort to resolve this conflict, OCMM decided to write a letter requesting a technical opinion from the Civil Service Commission (CSC) as to whether or not it would be proper for an agency to pay employees an environmental differential under the “explosives and incendiary materials” and “poisons (toxic chemicals)” categories of Appendix J, where employees work with oxygen in one situation and with caustics in the other. The OCMM letter, dated May 22, 1973, summarized the findings, conclusions and rationale of the two arbitration awards and indicated how the OCMM interpretation of the environmental pay regulations was at variance with that of the arbitrators, and invited the Commission to express its views on the correctness of OCMM’s interpretations. The OCMM letter, however, did not provide copies of the arbitration awards, nor did it request the Commission to review the awards or the specific cases involved. In a letter dated August 20, 1973, the Commission's Pay Policy Division, Bureau of Policies and Standards, expressed its agreement with the OCMM interpretation of the environmental differential pay regulations as follows: We agree with your position regarding the application of the categories covering explosives and incendiary material, and poisons (toxic chemicals), to the Navy situations described in your letter. Your interpretations of subchapter S8–7 of FPM Supplement 532–1, and of Appendix J of the Supplement, with respect to the propriety of differential payments by your department are, in

our opinion, fully in accord with the intent and the requirements as delineated in the FPM Supplement concerning the payment of environmental differentials.

Although the Commission's letter expressed agreement with the Navy's interpretation of the regulations, it did not purport to address the specific factual issues raised in the two arbitration awards. On the basis of the Commission's reply, OCMM decided that the arbitrators had misinterpreted and misapplied the FPM Supplement governing environmental differential pay. However, the arbitration awards had already been implemented by Naval Air Rework Facility, Pensacola; and, under the regulations of the Federal Labor Relations Council, it was too late to seek that agency's review of the awards. Therefore, OCMM forwarded a letter dated October 26, 1973 to the facility, directing that it discontinue environmental differential payments to the aircraft surface treatment workers and the aircraft oxygen repairmen in the Oxygen Shop, except when the former class of employees worked with phenol, if the hazards associated with its use had not been practically eliminated. Upon receipt of the letter, the Commanding Officer of the facility notified the local union president of the directive to terminate payments and offered to consult on the matter prior to time he had set for the payments to cease. No written reply was received from the union, and, on December 8, 1973,

« PreviousContinue »