telegram, was intended only to assure the Commission that he would specifically provide in the charter parties as to who would be responsible for service charges and that such assurance was implemented by insertion of the clause "all charges applicable to vessel-[are] for owner's account" into the charters. We believe this to be a logical and legally supportable interpretation of the intent of the telegram dated December 26, 1956, and we are unable to construe the advice contained therein as an offer, or to construe the erroneous interpretation of such advice by the Commission and its subsequent action in refraining from the collection of service charges from the vessels in advance of, or at the time of loading, as creating any actual or implied obligation on the United States to pay such charges. It is therefore our opinion that your Administration is without authority to make payment to the Commission for service charges assessed against the chartered vessels.

Concerning your question as to whether the General Services Administration should reimburse the charter carriers for port service charges paid or to be paid by them to the Commission, the Government's obligation for such payments must be determined solely under the contracts executed with the carriers. Thus, in paragraph 1 of the charter parties it was specifically agreed that the freight rate would include all port charges and that all charges applicable to the vessel would be chargeable to the owner's account. Full responsibility for payment of port service charges assessable against the chartered vessels was thereby placed upon the owners of the vessels and, in the absence of a contract provision under which the United States would be obligated to reimburse the owners for such expenditures, there would appear to be no legal basis upon which payments, representing port service charges which the charter carriers have already paid or may be required to pay to the Commission, may be made.

However, with respect to the berth carriers, the confirmation agreements on such movements indicate that rate of freight was to be determined in accordance with tariffs of the Pacific Westbound Conference. Item 210 of Local Tariff No. 1-X, Pacific Westbound Conference covering "Coal, In Bulk, Account U. S. Government Agencies-to Korea" provides that terminal service charges, if any, are for the account of the cargo as per Rule 17. Rule 17 of Local Tariff No. 1-X reads as follows:

RULE NO. 17.-Rates include the on-shore or on-lighter cost of hooking sling load to ship's gear, and the cost of loading the cargo on board vessel, but do not include state toll, wharfage, truck tonnage charge, handling charge, car unloading charges or any other Terminal charges.

It is therefore apparent that computation of the freight rates applicable to the berth movements did not include provision for paynont of port service charges by the carriers, and that the carriers

were specifically excluded from liability for payment of such charges. Accordingly, port services charges on the berth movements are properly chargeable to the United States and may be paid either directly to the Commission of Public Docks or by reimbursement to the carrier in the event the carrier has already paid such charges.

Contracts

[B-135587]

Specifications-Conformability of Equipment,

Etc., Offered-Samples Deviating From Specifications

Under an invitation for bids which requires submission of samples of cloth for heat protection suits, a bid accompanied by a sample which does not meet the specification requirements must be considered as qualified by the sample and is required to be rejected as nonresponsive, and, even though there is only one available source of supply for cloth meeting the specifications, this fact could not necessarily preclude the possibility of a bidder attempting to use noncomplying material.

To Ralph J. Schwarz, Jr., May 12, 1958:

Further reference is made to your letter of March 20, 1958, concerning a protest made by Albert Turner & Company, Inc., New York, New York, against the award of a contract other than to that company under Invitation for Bids No. 33-602-58-103, issued February 10, 1958, by the Middletown Air Materiel Area, Olmsted Air Force Base, Middletown, Pennsylvania.

A report in the matter has been received from the Department of the Air Force, which shows that Invitation for Bids No. 33-602-58103 called for furnishing 5,000 safety, heat protective suits, of various sizes, to be made out of asbestos, aluminized, safety, heat protective cloth, conforming to Specification MIL-C-8240A (USAF) dated January 22, 1958. The coats were to be made in accordance with the provisions of Specification MIL-C-4632B (USAF) dated July 30, 1957, and the trousers in accordance with Specification MIL-T-4633B (USAF) dated June 14, 1957.

Paragraph AA. of the Schedule in the invitation, which specified the type of asbestos cloth to be used, provided as follows:

Submission of samples:

A sample of Cloth, Asbestos, Glass, Cotton, Aluminized (bidder proposes to furnish) conforming to Specification MIL-C-8240A (USAF) dated 22 Jan 1958 shall be furnished by all bidders and forwarded along with the bid for test and evaluation. Sample will be subjected to test in accordance with inspection and test requirements of specification referenced above.

Any sample failing in any portion of the tests will be deemed sufficient basis for rejection of the bid.

Samples submitted shall conform in every respect with the requirements of the IFB.

Since samples are required for evaluating bids, nonconforming samples shall result in rejection of the bids. In the event of failure of the sample to meet

all requirements of the IFB, a second resubmission of samples will not be acceptable. Samples must be submitted prior to bid opening.

Size of sample required approximately 1⁄2 square yard in one piece. Bidders shall furnish the name of the supplier that produced the samples. Failure of the bidder to comply with any of the above requirements, will be cause for rejection of the bid.

Eight bids were received in response to the invitation. The two lowest bids were submitted by Albert Turner & Company, Inc., and Plaikins, Inc., New York, New York. On the basis of consideration of discounts offered and award for both items of the invitation to one bidder (5,000 coats and 5,000 pairs of trousers), the bid of Albert Turner & Company, Inc., was evaluated at $67.716 per suit and the bid of Plaikins, Inc., was evaluated at $68.174 per suit.

All bidders submitted samples and they were subjected to laboratory tests in accordance with the inspection and test requirements of Specification MIL-C-8240A. The sample submitted by Albert Turner & Company, Inc., failed to meet the requirement of the Specification in that the material did not fulfill the reflectivity provisions set forth in paragraph 3.4.6 of Specification MIL-C-8240A. The samples of other bidders passed the laboratory tests, showing that they fulfilled all specification requirements.

Award of a contract has not yet been made but we are advised that the Air Force proposes to reject the bid of Albert Turner & Company, Inc., and award the contract to the next lowest bidder, Plaikins, Inc.

Consideration is given in the departmental report to the various contentions made in your letter of March 20, 1958. It is admitted that the sample furnished by the low bidder was an old fabric produced by the Minnesota Mining and Manufacturing Company. However, it is denied that the advance of the opening date from March 11 to March 3, 1958, was unreasonable or discriminatory, and stated that at no time prior to the opening of bids did Albert Turner & Company, Inc., or any of the other bidders indicate that the required samples could not be secured by the amended opening date of March 3, 1958, or that opening of bids on that date would in any way result in a hardship. Further, it is pointed out that the Albert Turner Company failed to name the supplier of the cloth which it proposed to use in the manufacture of the suits.

The departmental insistence upon the submission of proper samples is stated to have been necessary in the light of a recent prior experience of the Air Force in procuring identical protective suits. After award was made in that case, the contractor submitted several samples which were all rejected as not conforming to specifications and, in view of the contractor's inability to furnish cloth meeting the specifications, it was necessary to terminate the contract for default.

The specific requirement that samples be submitted was inserted the express purpose of determining that the bidders did in fact

offer to supply material meeting the specifications. Even if it be true, as alleged in your letter of March 20, 1958, that there was only one available source of supply for cloth meeting the requirements of Specification MIL-C-8240A, that fact would not necessarily preclude the possibility of a bidder attempting to use a noncomplying cloth. Your client's bid could not have been considered responsive to the invitation if no sample at all had been furnished, and the submission of a sample not meeting the specification requirements must be taken as a qualification of the bid, requiring its rejection. 34 Comp. Gen. 180. Accordingly, you are advised that it has been determined that we would not be warranted in taking exception to the proposed award of a contract to Plaikins, Inc., as the firm which submitted the lowest responsive bid under Invitation No. 33-602-58-103.

[B-135968]

Military Personnel-Service Credits-Navy Officers-Staff Corps Service-Line Service

The adoption of the well-established administrative interpretation of section 202 (d) (1) of the Officer Personnel Act of 1947, that only staff corps service was for consideration in determining eligibility of Navy officers for continuation on the active list or for involuntary retirement, by the Congress when it enacted into positive law 10 U. S. C. 6388 and substituted the words "any staff corps of the Navy" for the words "Regular Navy" precludes the Department from disregarding the plain language of the section and reversing the former interpretation to include line service as well as staff corps service.

To the Secretary of the Navy, May 12, 1958:

Reference is made to letter of April 25, 1958, from the Assistant Secretary of the Navy (Personnel and Reserve Forces)-assigned submission No. 340 by the Military Pay and Allowance Committee, Department of Defense-requesting decision on certain questions relating to the proper interpretation of subsections (a) and (b) of 10 U.S. C. 6388 as enacted by the act of August 10, 1956, 70A Stat. 409. The questions are based on a proposed Memorandum of Law by the Judge Advocate General of the Navy in which it is concluded that certain specific language used in those subsections which is based on section 202 (d) of the Officer Personnel Act of 1947, 61 Stat. 816, 34 U. S. C. 3b (d), as interpreted in a 1949 opinion of his office, may be disregarded in applying the current law because he now considers that the 1949 opinion did not correctly interpret section 202 (d). Section 49 (a) of the act of August 10, 1956, 70A Stat. 640, is cited in support of that conclusion and the questions presented are based on the assumption that such conclusion is correct.

Section 202 (d) (1), 34 U. S. C. 3b (d) (1), of the 1947 act provides as follows:

For the purposes of this tile in respect to eligibility for continuation on the active list and in respect to separation from the active list, the total commissioned service of an officer originally appointed in the grade or rank of lieutenant (junior grade) or ensign in the Regular Navy, who has served continuously on the active list shall be computed from June 30 of the fiscal year in which be accepted such appointment, except for officers appointed pursuant to the Act of April 18, 1946 (Public Law 347, Seventy-ninth Congress). Each other officer shall be deemed to have for these purposes as much total commissioned service as any officer described above in this subsection who shall not have lost numbers or precedence and who is, or shall have been, junior to such other officer in his corps for the purpose of eligibility for promotion or selection for promotion since the date of the latter's first appointment to permanent commissioned rank in the Regular Navy above the grade of commissioned warrant officer following which he shall have served continuously on the active list of the Regular Navy. Subsections (a) and (b), 10 U. S. C. 6388, are as follows:

(a) For the purpose of the preceding sections of this chapter, the total commissioned service of each officer originally appointed in the grade of lieutenant (Junior grade) or ensign in any staff corps of the Navy, who has since that appointment served continuously on the active list of the Navy, is computed from June 30 of the fiscal year in which he accepted that appointment. However, this subsection does not apply to officers appointed under the Act of April 18, 1946, ch. 141 (60 Stat. 92).

(b) Each other commissioned officer on the active list of the Navy in any staff corps is considered to have the same total commissioned service for the purpose of the preceding sections of this chapter as the officer in his corps described in subsection (a) having the maximum total commissioned service who(1) has not lost numbers or precedence; and

(2) is, or at any time has been, Junior to the other officer for the purposes of eligibility for promotion and selection for promotion during that other officer's latest period of continuous service on the active list.

It is reported that based on the 1949 opinion of the Judge Advocate General of the Navy (JAG: II: GSS: 1h, 13, January 1949), the Bureau of Naval Personnel has been counting years of commissioned service beginning on June 30 of the year in which the officer was originally commissioned in a staff corps of the Regular Navy, with a permanent commission, for the purpose of determining a staff corps officer's eligibility for continuation on the active list and separation from the active list under applicable provisions of the 1947 act and Chapter 573, 10 U. S. Code. All prior periods of commissioned service were ignored, including periods of service as a line officer. The proposed Memorandum of Law by the Judge Advocate General of the Navy would overrule the 1949 opinion and require, among other things, the inclusion of time served as a line officer, prior to being commissioned in a staff corps of the Regular Navy, for the purpose of determining eligibility for continuation on the active list and separation from such list. If such interpretation should be adopted, it appears that the status of at least nine staff corps officers would be brought into question since it would follow that they should have been retired for years of service before this time, the combined line service and staff corps service in each case having exceeded the statutory