Service in Little Rock, Arkansas, who as members of the National Guard of the United States and the Air National Guard of the United States have been ordered into the active military service of the United States to prevent obstruction of the enforcement of orders of the United States District Court of the Eastern District of Arkansas. He says his understanding is that the present Federal status of the Arkansas National Guard may cause the employees in this case to be affected by the dual compensation statutes.

The following information concerning the employees was furnished by the Acting Secretary:

I have been advised that three employees in the office of the District Director, Internal Revenue Service, in Little Rock, answer roll calls at 6:30 a. m. and 5:30 p. m. daily, as members of the National Guard. Although they will receive full military pay for each such day, no military duties are required of them, so that they are able to perform in full their usual duties for the District Director.

The request for advice has been summarized into two main questions. The first question is whether the employees may be continued in a normal duty status and, if the receipt of military pay places them in a status in which they are not entitled to their civilian compensation, whether they may continue in a normal pay status on the basis of a waiver of their military pay.

The employees were ordered into the active military service of the United States pursuant to section one of Executive Order No. 10730 dated September 24, 1957. That section reads as follows:

I hereby authorize and direct the Secretary of Defense to order into the active military service of the United States as he may deem appropriate to carry out the purposes of this Order, any or all of the units of the National Guard of the United States and of the Air National Guard of the United States within the State of Arkansas to serve in the active military service of the United States for an indefinite period and until relieved by appropriate orders.

The men ordered into the active military service of the United States pursuant to Executive Order No. 10730 are entitled to the pay and allowances of their respective grades in the military service. In that connection the accounting officers of the Government have held consistently that it is incompatible for a person to be employed on active duty in a civilian position under the Government and, also, to be carried on the active rolls of the military service in the absence of a specific statutory authority providing otherwise. See 5 Comp. Dec. 916; 10 id. 767; 18 id. 224; 22 id. 259; 26 id. 568; 3 Comp. Gen. 40; 17 id. 1049; 18 id. 213; 20 id. 257; 22 id. 127; 25 id. 866; 27 id. 510; and Army Regulations, AR-35-2340. In 18 Comp. Gen. 213, 216, we held:

The fact that during hours of relaxation or relief from the actual performance of duties the individual has time to devote to his personal affairs and that normally such time is available for the performance of other duties is not the test. Compatilibity is determined by the individual's freedom to perform both services, the one without interference from the other. The superior-the

controlling-obligation to render military service thus makes impossible the acceptance without qualification of another obligation to the Government to render service in a civilian capacity at the same time. The time of one in the military service is not his own, however, limited the duties of the particular assignment may be, and any agreement or arrangement for the rendition of services to the Government in another position or employment is incompatible with his military duties actual or potential.

As an example of a specific statutory authority providing for such employment see the act of November 21, 1945, 59 Stat. 584, 5 U. S. C. 61a-1, which permitted members of the armed forces, while on terminal leave pending separation from or release from active duty, to enter or reenter employment with the Government and, in addition to compensation for such employment, to receive pay and allowances from the armed forces for the unexpired portion of terminal leave at the same rates and to the same extent as if they had not entered or reentered such employment. Therefore, our view is that the employees who were ordered into the active military service of the United States with the pay and allowances of their grades, pursuant to Executive Order No. 10730, may not during the period of such service be employed in an active civilian capacity under the Government and receive pay therefor in the absence of specific statutory authority.

In answer to the second part of the first question, there is no right of election to receive the compensation of a civilian position where there is dual employment in a civilian office or position and active military service of the United States during the same period of time, as the obligation under the military service is paramount. See 18 Comp. Gen. 213; A-51041, September 25, 1933; B-17183, June 5, 1941, 20 Comp. Gen. 860; and B-82335, February 21, 1949.

The second question is whether the employees may be carried in a military leave status (if available), on annual leave, on leave without pay, or military furlough. In our decision of June 1, 1955, B-122020, to the Secretary of the Army, we said that sections 714 (b) and 804 (a) of the Armed Forces Reserve Act of 1952 (50 U. S. C. 1124 (b) and 10 U. S. C. 371) [Now 10 U. S. C. 3686, 8686; 37 U. S. C. 31a (a); and 5 U. S. C. 30r] have changed the military leave rights of members of the National Guard, and that since January 1, 1953 (the effective date of the 1952 act), such members who are officers or employees of the United States or of the District of Columbia are entitled to military leave of absence from their civilian duties "on all days during which they shall be ordered to active duty for training, or active duty, or to duty with troops or at field exercises, or for instruction, for periods not to exceed fifteen days in any one calendar year." Therefore, our view is that the employees ordered into the active military service of the United States pursuant to Executive Order No. 10730 may be carried in a military leave status for fifteen calendar days, provided such leave has not been used previously during the

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current calendar year. Also, the employees may be carried in an annual leave status to the extent of their accrued annual leave during the period of their active military service. See 22 Comp. Gen. 127; 30 id. 241.

Concerning that part of question two as to whether the employees may be carried in a leave without pay or military furlough status, Chapter L-1-7 of the Federal Personnel Manual defines leave without pay as "a temporary nonpay status and absence from duty, granted upon employee's request. Does not include time spent in the military service***." Chapter R-6-4 of the Manual provides for the following action when an employee enters the active military service:

When an employee leaves a position in the executive branch of the Federal Government or the District of Columbia Government to enter on active military duty, the agency he leaves will either furlough or separate him, at the option of the agency. Whether the employee is furloughed or separated, he shall be considered as having been on military furlough at the time he returns to duty.

In view of these instructions, it appears that the employees should be placed on military furlough or separated at the option of the agency, rather than placing them in a leave-without-pay status. See also 24 Comp. Gen. 729, and 28 id. 159.

Since our view is that the employees may not during the period of their military service be employed in active civilian capacity under the Government and receive compensation therefor except to the extent of the authorized annual or military leave as discussed above, we have not discussed the dual compensation and employment statutes which might otherwise be for application in certain of the situations involved.

[B-131228]

Contracts-Offer and Acceptance-Purchase Order Issuance-Oral Quotations or Request for Quotation FormsMistakes

Although the question of whether the issuance of a purchase order in response to an oral quotation or the use of a request for quotation form (DD Form 747) creates a valid, effectively binding contract or is merely an offer which must be accepted either by express consent of the offeror or by performance is matter for determination from not merely the words used but from the intent of the parties and the circumstances surrounding the transaction, no objection will be made in several cases to the correction of mistakes in price quotations submitted on the request for quotation form (DD Form 747) prior to the formal acceptance of the purchase order, provided procurement personnel are given explicit instructions in the future that the use of the request for quotation form and the issuance of a purchase order will not constitute an effective acceptance of an offer.

To the Secretary of the Army, October 18, 1957:

Reference is made to letter dated March 21, 1957, from the Assistant Secretary (Logistics), requesting a decision in connection with claims asserted by five firms as a result of alleged mistakes in price

quotations submitted in response to oral requests for quotations or DD Form 747 (Request for Quotations).

The submission presents for consideration the question whether the issuance of a purchase order, based on a price quotation made orally or through the use of DD Form 747, constitutes a valid acceptance effectively binding the seller, or whether it. constitutes only an offer by the Government which must be accepted by the vendor before a valid and binding contract is consummated.

It is stated to be the view of your department, as set forth in a memorandum by the Judge Advocate General, that such a purchase order is merely an offer, which must be accepted either by express consent or by performance; and that therefore upon an allegation of error prior to acceptance the contracting officer may either cancel or correct the order.

It is pointed out in the memorandum that "price quotations" have a definite status and meaning in both legal and commercial practice, and that a mere quotation of price must be distinguished from an offer. Strictly speaking, "a 'quotation of price' is not an offer to sell in the sense that a complete contract will arise out of the mere acceptance of the rate offered or the giving of an order for the merchandise in accordance with the proposed terms. It requires the acceptance by the one naming the price of the order so made to complete the transaction. Until thus completed, there is no mutuality of obligation." (35 Words and Phrases, 676, quoting Buckberg v. Washburn-Crosby Company, 92 S. W. 733, 734, 115 Mo. App. 701).

The courts have frequently held that price quotations by suppliers, even where communicated to only one person, do not constitute an offer, although the general rule appears to be that where the property sold is accurately defined and an amount is stated as the price in a communication to one person independently, there is an offer to sell the property described at the price stated (1 Williston on Contracts 27). It is argued, however, that even though a particular communication naming a price may be considered an offer, when such a price quotation is received in response to a solicitation made orally or through the use of DD Form 747 (Request for Quotation) and neither the solicitation nor the quotation makes any reference to the contract clauses contained on the various Government purchase order forms, the issuance of such a purchase order may not be considered as an acceptance, since the purchase order introduces new terms not included in the proposal made on Form 747, which terms must be accepted by the person who gave the quotation, either formally or by rendering performance, before a valid and binding contract is consummated.

It is stated by the Judge Advocate General that the primary cause of the difficulty appears to be the failure of contracting personnel to

realize the distinction between the intended uses of the various forms. DD Form 747 and instructions relative to its use as set forth in ASPR 16-201 are said to have been designed only to obtain price, cost, delivery, or other information from suppliers, which information is then to be used as the basis for negotiating a contract; in those cases where it is desired to obtain offers from suppliers which upon acceptance by the Government would create a valid and binding contract without further action, Forms DD 746 and 746-2, Request for Proposals, Proposal and Acceptance, should be utilized (ASPR 16-203). We have no question as to the soundness of the general legal propositions stated in the Judge Advocate General's memorandum. It is equally well settled, however, that the determination of whether a communication by one party to another is an operative offer creating a power of acceptance, or merely a preliminary negotiation, is a matter of interpretation in the light of all the surrounding circumstances. Such interpretation involves not merely the words used, but the meaning intended by the party using them, and the meaning which he knew or had reason to anticipate would be placed on them by the other party. 1 Corbin, Contracts, Sec. 23. The language of DD Form 747 is by no means so clear as to preclude its use or interpretation as a binding offer; the party submitting or signing it is referred to in two places as the "Offeror"; it contains a box for the representations as to small business status and contingent fees required in formal bids; and while it states that it is a request for price, cost, delivery, or other information, and that it does not commit the Government to procure or contract for the supplies or services, this rather tends to emphasize the lack of any corresponding statement that it does not commit the offeror. Also, as used in the cases included in this submission, it contains additional wording reserving to the Government the right to "make an award" on all or none or on any combination of items. All these features furnish support for an understanding on the part of the party receiving a request for a quotation on this form that by executing and returning it he is submitting a binding offer which confers upon the Government a power to bind him by acceptance.

While the sections of ASPR referred to indicate that Forms 746 and 746 (1) should be used for the solicitation of offers which will effect binding contracts upon acceptance, they do not clearly and unequivocally state that Form 747 may not be so used. Section 16-201 authorizes the use of Form 747 "when it appears reasonably certain that the procurement will be consummated by (1) a purchase order ***" and we find no statement that a purchase order so issued may not be considered a binding acceptance. There appears to be no question but that many contracting and purchasing officers in fact operate