administrative expense and interest which might be involved in making progress payments as against a lump-sum payment upon final delivery, is too indefinite and perlative to be made an evaluation factor and that for the administrative ce, in this instance, to have evaluated the bids on the basis of the bidder's election to take progress payments would not have been justified. As we held in & Comp. Gen. 108 with regard to the element of prospective depreciation on antomotive equipment, to introduce such indefinite and speculative factors into bid evaluations "would eventually lead to all kinds of confusion and uncertainties in the administration of the advertising for bids statutes and is not contemplated or authorized under the law."

While we realize that 35 Comp. Gen. 252 involved a procurement accomplished by formal advertising procedures, we perceive no reason why the rationale there set forth is not equally applicable to procurement by negotiation, since the need for definiteness and certainty in the evaluation process is just as great in the latter type of procurement as in the former.

Moreover, even if we were to assume, for the sake of argument, that income tax benefits and interest costs to the Government can be ascertained in advance of award with the precision and certainty required by the evaluation process, which you contend can be done and the Air Force denies, we do not think that Government procurement procedure is the proper vehicle by which to equalize a competitive situation created by legislation unrelated to procurement law. There is no legal basis either for denying an award to a cooperative like Chelco, or for taking into consideration in the evaluation of offers factors not normally considered, simply because of financial advantages granted to a particular type of business entity by the Congress. There are many existing unequal competitive situations of which the procurement laws take no notice. For example, procurement procedures do not attempt to equalize the natural competitive advantage enjoyed by a concern with respect to lower transportation costs resulting from close proximity of a plant to the required delivery point of the goods being purchased by the Government. Nor do these procedures attempt to equalize possible financial disadvantages with respect to income tax rates and tax treatment under which private individuals doing business with the Government must operate as opposed to the rates and treatment under which corporations operate. Such examples may be multiplied. If these factors, and factors of like nature, were to be given weight in the bid evaluation process so as to equalize the competitive position of bidders, that process would be fraught with speculation, confusion and suspicion. We believe that if indirect benefits to the Government, which in most cases are incapable of advance and accurate measurement, are to be introduced into the evalution process that result should be accomplished by legislation.

As to whether the Rural Electrification Administration (REA) in making a loan to Chelco, acted beyond the authority granted it by

section 4 of the Rural Electrification Act of 1936, as amended (RE Act), 7 U.S.C. 904, this section provides, in pertinent part, as follows:

The Administrator is authorized and empowered, from the sums hereinbefore authorized, to make loans for rural electrification to persons, corporations, States, Territories, and subdivisions and agencies thereof, municipalities, peoples' utility districts and cooperative, nonprofit, or limited-dividend associations, organized under the laws of any State or Territory of the United States, for the purpose of financing the construction and operation of generating plants, electric transmission and distribution lines or systems for the furnishing of electric energy to persons in rural areas who are not receiving central station service. * [Italics supplied.]

You contend in effect, that the loan in question is in violation of the "central station service" limitation in section 4 because (1) Eglin Air Force Base is receiving "central station service" from Gulf Power and (2) the loan is to finance facilities which will be in competition with, or duplicate the facilities of, Gulf Power. Your letter contains a number of excerpts from the legislative history of the RE Act in support of the proposition that the "central station service" limitation is designed to prevent duplication of facilities and competition with private utility companies.

The record discloses that the SPADAT radar site in question is to be located on Range 63, Eglin Air Force Base; that Range 63 has no electric distribution facilities and is approximately 4 miles from the reservation 12 kv. distribution system; and that during the years 195761 Chelco served facilities on this range but upon deactivation of the range and contract termination distribution facilities were removed. The record further discloses that Chelco has served the eastern part of Eglin Air Force Base (the SPADAT area) for 20 years and that the nearest 115 kv. Gulf Power lines are about 15 miles from the SPADAT area. The record also discloses that Chelco's existing 44 kv. subtransmission system is incapable of handling the additional 7,500 kv-a. capacity required by the Air Force for the SPADAT site; and that Gulf Power refused to negotiate or furnish Chelco an additional supply of power to serve the SPADAT load.

It is clear from the foregoing that although both Chelco and Gulf Power serve certain areas of Eglin Air Force Base, neither is now serving the area known as Range 63, the SPADAT radar site, that such site has no electric distribution facilities and apparently is approximately 4 miles from the nearest distribution facilities and that these facilities are owned by Chelco. It is also clear from the facts set forth above that Gulf Power would have to extend its line approximately 15 miles to serve the SPADAT radar site. Therefore, it would not be unreasonable to conclude that Range 63 of Eglin Air Force Base is not receiving central station service.

In view of the foregoing, we would not hold that the use of REA loan funds for the purpose of serving the SPADAT radar site on

758-984 O-65-7

Range 63, Eglin Air Force Base, would violate the "central station service" limitation provisions of the Rural Electrification Act of 1936, as amended.

[B-151286]

Pay-Retired-"Officer" Status

A Navy member who had active service prior to November 12, 1918, and who after another period of active service was placed on the temporary disability retired list on January 1, 1956, in his permanent rank of chief warrant officer comes within the term "officer" in section 102 (c) of the Career Compensation Act of 1949, which includes commissioned warrant officer in the definition of "officer" and under the ruling in Zur-Linden v. United States, Ct. Cl. No. 207–58, decided July 18, 1962, the member may be regarded as an "officer-hereafter retired" within the meaning of the fourth paragraph of section 15 of the Pay Readjustment Act of 1942 for entitlement to increased retired pay.

Pay-Retired-Disability-Re-Retirement

Although a Navy member who, after active service prior to November 12, 1918, was placed on the disability retired list in 1923 in his permanent warrant officer rank of pay clerk and later, after recall to active duty, was released in 1946 and advanced on the retired list to chief pay clerk must be regarded as a retired warrant officer rather than a retired commissioned warrant officer, the language of section 1 of the Pay Readjustment Act of 1942 relating to warrant officers being similar to that applicable to commissioned warrant officers on which the Court of Claims relied in Zur-Linden v. United States, Ct. Cl. No. 207-58, decided July 18, 1962, to hold that such members were "officers hereafter retired" affords a basis for concluding that the retired Navy warrant officer is an "officer hereafter retired" under the fourth paragraph of section 15 of the 1942 act for increased retired pay.

To Commander M. M. Alexander, Department of the Navy, July 17, 1963:

By second indorsement dated April 4, 1963, the Comptroller of the Navy forwarded your letter of February 14, 1963, requesting a decision whether the rule applied by the Court of Claims in the case of Zur-Linden v. United States, Ct. Cl. No. 207-58, decided July 18, 1962, may be followed in the cases of Chief Warrant Officer (W-3) Ernest T. Fleming, USNR, retired, 207008, and Chief Warrant Officer Joseph A. Farrell, USN, retired, 21639. This request for advance decision was assigned submission No. DO-N-699 by the Department of Defense Military Pay and Allowance Committee.

The members seek the difference between the retired pay they have received and retired pay computed on the basis of the fourth paragraph of section 15 of the Pay Readjustment Act of 1942, approved June 16, 1942, Ch. 413, 56 Stat. 368, as amended, 37 U.S.C. 115 (1958 Ed.), which provides as follows (quoting from 37 U.S.C. 115):

The retired pay of any officer of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, or Public Health Service who served in any capacity as a member of the military or naval forces of the United States prior to November 12, 1918, hereafter retired under any provision of law, shall, unless such officer is entitled to retired pay of a higher grade, be 75 per centum of his active duty at the time of his retirement.

Both members are reported to have served on active duty in the military or naval forces of the United States prior to November 12, 1918. The question involved is whether the members may be considered as "officers" hereafter retired within the meaning of the abovequoted statute under the rule applied by the court in the Zur-Linden

case.

You report that Mr. Fleming was placed on the Temporary Disability Retired List on January 1, 1956, in his permanent rank of chief warrant officer (W-3), with a physical disability rating of 30 percent under the provisions of 37 U.S.C. 272 (1952 Ed.). Effective October 1, 1960, he was transferred to the Permanent Disability Retired List with a disability rating of 70 percent under the provisions of 10 U.S.C. 1210. The member's retired pay has been computed at the rate of 50 percent and 70 percent of the basic pay of his rank effective January 1, 1956, and October 1, 1960, respectively.

It is further reported that on February 16, 1923, Mr. Farrell was placed on the retired list in his permanent warrant officer rank of pay clerk by reason of physical disability under the provisions of section 1453, Revised Statutes. He was recalled to active duty on April 13, 1942, and released therefrom on January 14, 1946. By letter dated August 22, 1946, from the Secretary of the Navy, he was advanced on the retired list to the rank of chief pay clerk under the provisions of section 8(a) of the act of February 21, 1946, Ch. 34, 60 Stat. 28, 34 U.S.C. 350i (1952 Ed.). Mr. Farrell has completed a total of 14 years, 7 months and 7 days of active service. He has been receiving retired pay since January 15, 1946, computed at the rate of 75 percent of the base and longevity pay provided by the Pay Readjustment Act of 1942 for a chief warrant officer with over 12 but less than 15 years' service. He has received percentage increases in his retired pay effective May 1, 1952, April 1, 1955, and June 1, 1958, as provided by law for members entitled to retired pay under laws in effect prior to October 1, 1949. If he is considered to be an "officer hereafter retired" within the meaning of the fourth paragraph of section 15 of the 1942 act, he will be entitled to the difference between the retired pay received and retired pay computed on the basis of over 30 years' service for longevity credit, which includes credit for over 19 years' inactive service on the retired list, subject to the provisions of the act of October 9, 1940, Ch. 788, 54 Stat. 1061, 31 U.S.C. 71a.

The court held in the Zur-Linden case that the plaintiff who was "re-retired" and transferred to the retired list for physical disability after his release from active duty on March 15, 1945, as a commissioned warrant officer of the Navy-was an "officer *** hereafter retired" within the meaning of the fourth paragraph of section 15 of the

1942 act. The court's opinion was based on the language of the fourth and fifth paragraphs of section 8 of the 1942 act, 37 U.S.C. 108 (1946 Ed.), which equates the remuneration for active duty applicable to commissioned warrant officers of the Navy with over 10 years' commissioned service to that applicable to other commissioned officers as established by section 1 of that act, 37 U.S.C. 101 (1946 Ed.). Specifically, the court held that "If this is so for active pay purposes it would seem logical for retired pay purposes also since the amount of retirement benefits are directly related to an officer's base pay."

The Zur-Linden case is not squarely in point in Mr. Fleming's situation, since the court's conclusion that the plaintiff was an "officer hereafter retired" was based on language contained in section 8 of the 1942 act which had been repealed before Mr. Fleming was retired. However, section 102(c) of the Career Compensation Act of 1949, Ch. 681, 63 Stat. 804, 37 U.S.C. 231 (c), defined the term "officer" as including a commissioned warrant officer. Since such language is much clearer as to the point involved than that relied on by the court in the Zur-Linden case, and in view of the court's holding in that case, we find no basis for a conclusion that upon his retirement Mr. Fleming was not an "officer hereafter retired" within the meaning of the fourth paragraph of section 15 of the 1942 act.

By reason of the decision of the court in the Jones case, 151 Ct. Cl. 119, Mr. Farrell must be regarded as a retired warrant officer rather than a retired commissioned warrant officer. However, the language in the fourth and fifth paragraphs of section 8 of the 1942 act on which the court relied in the Zur-Linden case, is practically the same as that contained in the first paragraph of that section relating to warrant officers. In such circumstances, the Zur-Linden case furnishes adequate basis for a conclusion that Mr. Farrell was "re-retired" as an "officer" in 1946 within the meaning of the fourth paragraph of section 15 of the 1942 act.

Your question is answered accordingly.

[B-151453]

Quarters Allowance-Travel Status

An Air Force Reserve officer without dependents who, pursuant to orders to active duty requiring several weeks of temporary duty at a base en route to his permanent duty station, maintained his civilian housing while he was at the temporary duty station until he received notification of the approval of his medical examination must be regarded as in a travel status from the day he departed from his home to proceed to the temporary duty station until arrival at the permanent duty station, regardless of whether or not the member maintained his permanent civilian housing until the successful completion of the physical examination and, therefore, under 37 U.S.C. 320 prohibiting payment of a quarters allowance during periods of travel, the member is not entitled to quarters allowance while in a travel status, including the period of delay en route to the permanent station.