July 1, 1972-June 30, 1973
Leaves of absence. (See LEAVES OF ABSENCE)
ACCOUNTABLE OFFICERS
Certifying officers. (See CERTIFYING OFFICERS)
Liability
Errors in judgment or neglect of duty
Although pecuniary liability for errors that led to request for space-
required rather than space-available Military Airlift Command services
to move commissary goods outside U.S. would seem to rest on com-
missary personnel making erroneous request, there is no basis for assess-
ing charges for services on commissary officer since his custodial relation-
ship with the Govt. as an accountable officer relates to property and
funds, and there is no general authority for assessment of charges for
losses sustained by Govt. as result of errors in judgment or neglect of
duty by Govt. personnel. Moreover, interagency reimbursement for cost
of services performed by billing agency pursuant to lawful authority can-
not be viewed as a "loss" to Govt. in usual sense of the word..
ADMINISTRATIVE DETERMINATIONS
Amendments and modifications
Determination of Secretary of Agriculture to uphold denial by Regional
Forester of claim for additional road construction costs under timber
sales contract-denial reversed and restored administratively and then
appealed to Secretary by contractor-was in conformance with 36 CFR
221.16(a), which provides for modification of timber sales contracts only
when modification will apply to unexecuted portions of contract and will
not be injurious to U.S., is final administrative determination within
purview of 36 CFR 211.28(b), and Supreme Court ruling in S. & E.
Contractors, Inc. v. U.S., 406 U.S. 1, concerning finality of administra-
tive determinations and, therefore, Secretary's decision is final and con-
clusive insofar as other agencies of Govt. are concerned, and it is not
subject to review by GAO...
ADMINISTRATIVE DETERMINATIONS-Continued
Conclusiveness-Continued
Contracts-Continued
Determination that it was proper to negotiate sole source replacement
contract with contractor who had diverted aircraft production to satisfy
requirements of foreign military sale pursuant to modification of Army
contract that had been accepted by contractor with understanding it
would receive separate negotiated replacement contract at price that
would constitute foreign sale price was not erroneous conclusion of law
for had change order procedure been used, contractor's refusal to accept
equitable price adjustment would not have constituted question of fact
under disputes clause since diversion was cardinal change beyond scope
of contract placing contractor in position to institute action for breach
of contract damages under "cardinal change" doctrine.
Weight accorded indisputes
Procurement by Corps of Engineers on behalf of U.S. Postal Service
pursuant to Memorandum of Understanding is not subject to small
business set-aside in absence of approval of set-aside by Postal Service
as required by Memorandum. According to Dept. of Defense, Postal
Service funds are not appropriated funds to require application of ASPR
which governs all purchases and contracts by DOD for supplies and
services, including set-aside procedures-view entitled to great weight.
However, it is immaterial whether or not funds are considered appropri-
ated funds since 39 U.S.C. 410(a) exempts Postal Service procurements
from Small Business Act, as well as all other Federal laws dealing with
Federal contracts, and 39 U.S.C. 411 permits executive agencies to
furnish services to Postal Service on such terms and conditions as agreed
upon---
ADMINISTRATIVE ERRORS
Military matters
Record correction
Not a ministerial duty
Although the Secretaries of military depts. concerned may delegate
performance of certain ministerial duties to correct administrative errors
in members' records, changes that involve material fact or create new
record require a Board for Correction of Military Records action pursuant
to 10 U.S.C. 1552. Therefore, in absence of such proceeding, Adjutant
General of the Army may not correct record of member retired as an
Army Sergeant who received bad conduct discharge in 1949 from Navy
and shortly thereafter used papers and name of a Marine to enlist in
Regular Army, from which he was retired in 1960, under 10 U.S.C. 3914,
recalled in 1965, and retired again in 1972, also under sec. 3914, to evi-
dence continued service under his own name until effective date of
second retirement, as such an action would be ineffective to authorize
pay and allowances, including retired pay, for retirement periods- - - - - -
Advertising v. negotiation
Negotiation propriety
Procurement of idler pulleys by negotiation rather than by formal
advertising and use of brand name or equal purchase description, solici-
tation of offers from approved sources only, and restriction of procure-
ment to named-part number was in absence of adequate specification
data in accord with 10 U.S.C. 2304(a)(10) and par. 3-210.2(xv), Armed
Services Procurement Reg. (ASPR), which authorizes negotiation for
replacement parts or components in support of specially designed
equipment, with ASPR 1-313(c), which provides for procurement of
replacement parts from sources that satisfactorily manufactured or
furnished parts in past, and with ASPR 1-1206.2(b), which requires
salient characteristics to be listed when brand name or equal provision
is used, and procurement did not restrict competition since proposals
from. unapproved sources were not prohibited, and offers on other than
named part were considered_____
Negotiation procedures pursuant to determinations and findings for
restoration of National Monument historical structure on basis it was
impracticable to secure competition by formal advertising within meaning
of 41 U.S.C. 252(c) (10), as implemented by sec. 1-3.210 of the Federal
Procurement Regs., having been used to prequalify firms since procure-
ment otherwise was treated as formally advertised, any award under
solicitation would be improper, and if resolicited, procurement should be
formally advertised. The preselection method of qualifying firms and the
failure to synopsize procurement in Commerce Business Daily was
restrictive of full and free competition contemplated by advertising
statutes. Furthermore, even under negotiation procedures, prequalifi-
cation of offerors would be inconsistent with requirement that negotiated
procurements be on competitive basis to maximum practical extent____
Although failure to inquire why incumbent contractor furnishing
security watchman services, whose proposal was administratively lost,
had not submitted proposal was not sound procurement practice, con-
tract negotiated pursuant to sec. 1-3.210 of the Federal Procurement
Regs. (FPR) on the basis of a determination and findings (D&F) that
it was impracticable to secure competition because only three sources
had top security clearance need not be terminated for that reason as
lost proposal could only be established by self-serving statements. How-
ever, termination of award nevertheless is recommended in view of fact
negotiation procedures were used to convert successful contractor's
secret clearance to top secret, and the D & F did not satisfy criteria in
FPR sec. 1-3.305(b), but rather prequalified the three firms thus re-
stricting competition. Any resolicitation should consider using formal
advertising and should treat top security clearance as matter of bidder
responsibility..
ADVERTISING-Continued
Advertising v. negotiations-Continued
Specifications availability
Use of formal advertising procedures by the Naval Facilities Engineer-
ing Command to procure 2,000 KW gas turbine engine driven power
plants and related data packages was proper since adequate specifica-
tions were available and use of the two-step formal advertising procedure
is authorized pursuant to par. 2-501 of the Armed Services Procurement
Regulation (ASPR) only when there are no adequate specifications to
permit formal advertising. Moreover, record does not indicate that
negotiation of procurement should have been authorized under the
circumstances spelled out in ASPR 3-200 et seq. and ASPR 3–102(b) (1) __
AGRICULTURE DEPARTMENT
Commodity Credit Corporation. (See COMMODITY CREDIT
CORPORATION)
Indemnity payments
Contamination of cheese
Removal from commercial market
Cheese that contained dieldrin which was removed from commercial
market at direction of State of Wisconsin Dept. of Agriculture under 14-
day hold orders beginning Apr. 11, 1967, but final determination that
cheese was adulturated pursuant to both State and Federal law and
should not move in interstate or foreign commerce was not made until
May 14, 1971, is considered to have been removed from commercial
market after Nov. 30, 1970, thus permitting indemnity payments under
sec. 204(b) of Agricultural Act of 1970, approved Nov. 30, 1970, in view
of fact legal effectiveness of hold orders to remove cheese from commercial
market prior to May 14, 1971, is doubtful. However, before making
indemnity payment action should be taken to insure claimant will not
also collect or benefit under its judgment against farmer responsible for
contamination_____
Contaminant registration and approval requirement
Fact that the only statute requiring registration of chemicals is
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135–135k)
does not imply waiver of registration and approval requirement in 7
U.S.C. 450j to permit indemnity payments to dairy farmers who were
directed to remove their milk from commercial market because it con-
tained residues of chemical which was not registered and approved for
use by Federal Govt. at time of use since, under express language of the
statutes pertaining to Milk Indemnity Program, use of contaminant
must have been registered with and affirmatively endorsed or recom-
mended by Govt. Therefore, indemnity claims for milk contaminated
from consumption by dairy cattle of ensilage stored in silo coated with
paint containing "Arcolor 1254," compound not required to be registered
and approved, may not be allowed..
AGRICULTURE DEPARTMENT-Continued
Losses sustained by producers, etc.
Turkey growers
Indemnification
Losses sustained by five turkey growers in connection with Dept. of
Agriculture's quarantine program for control and eradication of exotic
Newcastle disease-highly virulent communicable disease of poultry-
which was imposed under Dept.'s authority to prevent interstate dis-
semination of disease, may not be indemnified under terms of 21 U.S.C.
114a or pursuant to authority in 7 U.S.C. 612c. 21 U.S.C. 114a authorizes
indemnity payments for destruction of animals, including poultry, when
performed under supervision of Dept., whereas growers sold their flocks
and eggs upon their own initiative, disposition that is not considered
"constructive destruction" that resulted from quarantine. 7 U.S.C. 612c
is intended for application only when entire commodity is in distress and,
furthermore, indemnity payments have been founded upon specific
legislation
AIRPORTS
Government use of municipal airports
"Reasonable share" of costs determination
Since it is impossible that reasonable share of extraordinary mainte-
nance costs, proportionate to Federal Govt.'s disproportionate use of
taxiway and runway at airport transferred to Joint Board of Texarkana
Municipal Airport Authority can be determined under indenture agree-
ment executed between General Services Administration and Board or
from authorizing statute, 50 U.S.C. App. 1622, as no objective standard is
provided to give concrete meaning to what is considered "reasonable
share," proportional to use, of cost of operating and maintaining facili-
ties, use and maintenance charges that are abnormally burdensome as
result of Govt.'s damaging use of runway may be negotiated with Board..
ALASKA
As natives of Alaska-ultimate beneficiaries of Alaska Native Fund
established by Alaska Native Claims Settlement Act, Pub. L. 92-203,
approved Dec. 18, 1971, for distribution to regional corporations-are
aboriginal groups, legal position of individual Alaskan native is assimi-
lated to that of other Indians in U.S. Therefore, lack of formal tribal
organization of natives is not determinative of status of fund, and it may
be properly classified as Indian tribal trust fund that is eligible for inter-
est payments under 25 U.S.C. 161a, and for investment pursuant to 25
U.S.C. 162a, pending enrollment of natives and distribution of fund to
regional corporations established by act
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