Members and former members of the uniformed services who are entitled to receive retired pay, retirement pay, retainer pay, or equivalent pay under laws in effect prior to October 1, 1949, shall be entitled to an increase of 6 per centum of the retired pay, retirement pay, retainer pay, or equivalent pay, to which they are now entitled. [Italics supplied.]

The increase in retired pay authorized in such provisions of law are clearly based on the retired pay which was being paid to retired members at the time of enactment of that act. See in this connection the discussion of sections 5 and 6 appearing on page 19, Senate Report No. 125, to accompany H. R. 4720, where reference is made to an increase in the retired pay to which a member "presently" is entitled (section 5) and to a 6 percent increase in "present" retired pay (section 6). Question 5 is answered accordingly.

[B-132318]

Bids-Late-Mailed to the Wrong Government Agency A bid which was not received by the procurement agency prior to the time scheduled for opening, because it was missent by an employee of the bidder to another Government agency, may not be regarded as a bid delayed in the mails, which was the only excusable delay provided in the invitation, even though the bid remained in the Government's possession at all times after mailing, and, therefore, the late bid may not be considered for award.

To the Secretary of the Interior, July 17, 1957:

Reference is made to a letter dated July 9, 1957, with enclosures, from the Acting Secretary, furnishing the report informally requested by our Office and requesting a decision as to whether there may be considered for award a bid submitted by Geo. F. Muth Company, Inc., Washington, D. C., in response to invitation No. 2363, issued by the Purchasing Section, Geological Survey, Washington, D. C.

The invitation requested bids for furnishing estimated quantities of scribing sheets and pencil and ink surface sheets as ordered during the period beginning with the date of award of contract and ending June 30, 1958. It also provided that bids would be received at the Purchasing Section, Geological Survey, Washington, D. C., and opened at 3 p. m., E. D. S. T., June 10, 1957. Ten bids were received and opened at the designated time.

The facts concerning the transmittal and receipt of the bid of Geo. F. Muth Company, Inc., are reported in the letter of July 9, 1957, as follows:

On June 11, 1957, a phone call was received by the officer in charge of bidding procedures, Mr. C. C. Schade, Procurement Officer, Geological Survey, in which Mr. Joseph V. Copley, Vice President of Geo. F. Muth Company, Inc., stated that he had received a phone call from the Naval Ordnance Laboratory and was advised that a bid, presumably for the Geological Survey, had turned up in their files. Mr. Copley wanted the Geological Survey to send someone to pick up the bid at the Naval Ordnance Laboratory. This was not done in view of the fact that the time for opening bids had passed. Thereupon, Mr. Copley stated that he would arrange to have the Naval Ordnance Laboratory forward the bid to the Geological Survey Purchasing Section.

On Wednesday, June 12, 1957, an envelope was received in the Geological Survey Purchasing Section which indicated on the outside that it concerned the bid opening of June 10, 1957. In accordance with the prevailing procurement practice, the envelope was returned unopened to Geo. F. Muth Company, Inc., as being a late bid which could not be considered.

At the request of Mr. Copley, a conference was held by the Contracting Officer, Mr. Glendon J. Mowitt, Procurement Officer Schade and other Interior officials listed in the attached minutes of the conference. Mr. Copley presented the envelope which was returned to him. With his approval, the envelope was opened and contained a yellow envelope addressed to the Supply Officer, U. S. Naval Ordnance Laboratory, White Oak, Silver Spring, Maryland, and marked as referring to RFQ No. 60921-28-57 for a bid opening on June 10, 1957, at 4:40 p. m. On the envelope appeared a stamp that it had been received on June 10, 1957, at 9:35 a. m. and appended to it a note reading as follows: "Received by the Naval Ordnance Laboratory at 9:35 a. m. June 10, 1957, in error. Mrs. Irene Langdon, Purchasing Agent."

The yellow envelope was opened and contained a bid by the Geo. F. Muth Company, Inc., signed by Joseph V. Copley, Vice President, and dated June 7, 1957.

As it appeared that the bidder had improperly addressed the envelope containing his bid, the Contracting Officer held that the bidder was responsible for the improper addressing; that the bid was a late bid, and that it could not be considered for award under Invitation No. 2363.

In a letter dated June 21, 1957, addressed to our Office, Mr. Joseph V. Copley, Vice-President of the corporation, stated that the corporation's bid intended for the Geological Survey was erroneously placed by one of its employees in an envelope addressed to the Naval Ordnance Laboratory and that such agency received the Geological Survey bid prior to the time set for its opening. Mr. Copley contended that the Geological Survey bid of the corporation should be considered for award for the reasons that such bid remained in the Government's hands at all times after its mailing by the corporation and that the Geological Survey had received samples of the items it was offering prior to the bid opening.

Paragraph 4 (Late Bids) of the Terms and Conditions of the Invitation for Bids provides:

Bids and modifications or withdrawals thereof received after the time set for opening will not be considered, unless they are received before the award is made, and it is determined by the Government that failure to arrive on time was due solely to delay in the mails for which the bidder was not responsible.

All bidders were on notice that, in order to receive consideration, bids would have to be received in the office specified prior to the opening time. The only exception to this is where a bid arrives by mail after the time fixed for the opening, but before award is made, and it is shown to the satisfaction of the Government that the nonarrival on time was due solely to delay in the mails for which the bidder was not responsible. Since, in the instant case, the bid intended for the Geological Survey was erroneously placed by an employee of the corporation in an envelope addressed to the Naval Ordnance Laboratory, it is clear that the sole cause of the delay in arrival of the bid was the negligence of the corporation. Although the Geological Survey bid of the corporation was in the hands of the Naval Ordnance Laboratory prior to the time set for its opening, it was the responsibility of the corpora

tion to see that it reached the designated office before the time fixed for the opening of the bids and such responsibility may not be shifted by the bidder to the Government. See 35 Comp. Gen. 432.

Accordingly, since the late arrival was not due to the one excusable cause expressly provided for by the invitation, we would not be warranted in authorizing the consideration of the bid of Geo. F. Muth Company, Inc.

The papers submitted with the letter of July 9, 1957, are returned.

[B-132536]

Bids-Deviation in Method of Submission-Offer and Acceptance-Validity

The submission of a low bid by placing it on a table in front of the bid opening board, without explanation, rather than in a sealed envelope appropriately marked and addressed as required by the invitation does not require rejection of the bid.

A low bidder who, after submitting a bid bond and a letter indicating the total prices in a sealed envelope as required by the invitation, placed on a table before the bid opening board, without explanation, a completely executed bid may be regarded as having communicated a valid offer and, inasmuch as there is not apparent any possible advantage which the low bidder could have obtained by the manner of submission of the bid, it may be considered for award. To William H. Tuller, Bureau of Reclamation, July 18, 1957:

Your letter of July 12, 1957, with enclosures, requests a decision as to whether the bid of the Electric Pump & Equipment Co., Inc., submitted pursuant to invitation for bids identified as specifications No. 100C-299 may be considered for award under the circumstances described below.

The invitation solicited bids for completion of work on 57 wells in the Minidoka Project, Idaho. By the terms of supplemental notice No. 1 to the invitation, dated June 7, 1957, bids were to be received at the office of the Bureau of Reclamation, Rupert, Idaho, until 10 a. m., MST, June 20, 1957. On the second page of the invitation, bidders were advised that "Envelopes containing bids, guarantee, etc., must be sealed, marked, and addressed to the BUREAU OF RECLAMATION office indicated on the cover of the specifications as the office for receiving bids."

Prior to bid opening, a sealed envelope was submitted in accordance with the provisions of the invitation by the Electric Pump & Equipment Co., Inc. In addition, just prior to bid opening time the president of the Company laid a copy of the specifications on the table in front of the bid opening board there assembled. The specifications were not in a sealed envelope and in placing them on the table no statement was made which would indicate the nature of the data or the purpose for which they were placed there. As his

Company's bid was being opened, the president of Electric stated that the schedule containing the unit prices of his bid was in the specifications. The sealed envelope submitted by Electric contained only a letter indicating total prices bid for each schedule and a bid bond as required by the invitation. The specifications placed on the table, however, contained a properly executed bid complete in all respects. Upon an examination of all of the bids it was determined that the Electric Company's bid was low. The next low bidder immediately protested consideration of the low bid because of the manner in which it had been submitted.

There is some dispute between the Electric Company representatives and the next low bidder as to the true state of the facts. The facts stated above are those presented by the contracting agency whose statements of such facts are accepted by our Office in disputes of this nature. 16 Comp. Gen. 325.

There are two matters for consideration in deciding the case. The first of these is whether, in view of the requirement quoted above that the bid be submitted in a sealed envelope appropriately marked and addressed, the low bid should be rejected since it clearly did not conform to such provision. We have held that the failure to enclose the bid in a sealed envelope as provided by the terms of the invitation is a technicality which may be waived. B-35944, September 4, 1943. Therefore, we must conclude in this instance that the manner of submitting a bid not enclosed in an envelope is insufficient to require rejection.

The second matter presented is whether a bid placed on a table before the opening board without further explanation but within the time permitted for submission of bids may be accepted. It is well recognized that a bid is an offer which upon proper acceptance ripens into a contract. An offer to be the basis of a contract must be communicated to the offeree. Farrell v. Neilson, 263 P. 2d 264. An offeror who signs a proposed agreement and tenders it to a party with whom he proposes to contract makes an offer to such party. Fire Association of Philadelphia v. Allis Chalmers Mfg. Co., 129 F. Supp. 335, 344. Therefore, no offer was made by the low bidder in this instance unless it can be said that such offer was communicated to the appropriate agent of the Government.

In regard to the type of communication necessary under such circumstances, it is stated in 1 Williston on Contracts (Revised Edition) section 89:

If actual communication were necessary for the formation of a contract, or actual communication of the revocation of an offer necessary for its withdrawal, it would not suffice that a letter of acceptance or revocation come into the possession of the person addressed; it would be necessary for the letter to be read. But the law in regard to this matter, as in regard to other matters in the formation of contracts, takes as its requirement an outward situation which would ordinarily connote the existence of the state of mind which would

be necessary were mutual assent required by law, a matter of actual as distinguished from apparent assent. Accordingly, if a letter comes into the possession of the person addressed, or of one authorized to receive it for him, or in a place which he has designated as the place for this or similar communications to be deposited for him, the letter has reached its destination and is as effectual though unread as if it were read.

See also Levy v. Massachusetts Accident Co., 2 A. 2d 341; Holmes v. Myles, 37 S. 588. The rule is not limited to acceptances sent through the mails. In the latter case cited, an acceptance left at the home of the offeror was held effectual even though the offeror was not at home and received no actual notice of acceptance in the time prescribed by the offer.

While in the foregoing instances acceptances and revocations of offers were under consideration, we deem a communication sufficient for such purpose also to be sufficient for the making of an offer. Thus, the placing of the bid on the table before the board may be regarded as an adequate tender to constitute a valid offer. Accordingly, and since there is not apparent any possible advantage which the low bidder could have obtained by the somewhat unusual manner of submitting his bid, we conclude that the low bid under the circumstances may be considered for award if otherwise proper.

[B-131514]

Military Personnel-Dual Employment Prohibition—Retired Regular Army Officer Appointed as Reserve Officer A retired Regular Army officer who is appointed as a Reserve officer in an assigned status is regarded as holding two offices within the meaning of the dual office prohibition in section 2 of the act of July 31, 1894, 5 U. S. C. 62, and the exemption in 5 U. S. C. 30r, refers only to Federal civilian employment of a Reservist and is not applicable to a dual military status.

To the Secretary of Defense, July 22, 1957:

The two questions presented for decision in Military Pay and Allowance Committee Actior. No. 180, forwarded here with transmittal letter dated April 15, 1957, by the Assistant Secretary of Defense (Comptroller), are as follows:

1. May a retired Regular Army officer become a member of a Reserve component and serve with a Reserve unit in an assigned status without prejudice to his Regular Army status?

2. In the event such a dual status is authorized may the officer perform active duty for training or inactive duty training and receive active duty basic pay or inactive duty compensation, as appropriate, assuming that retired pay for the pertinent period is waived?

It is indicated in the discussion set forth on this matter in Committee Action No. 180 that present regulations and practices governing appointments in the Reserve Forces of the United States prohibit the appointment of members of the Regular components, including active and retired members. However, it is pointed out that the Army Judge Advocate General has rendered an opinion based on the provisions of