interpreting the statutory language requiring such children to have lived with the member in a regular parent-child relationship. Additionally, we are asked if the fact that the member's assignments prevented him from living with the child has any bearing on entitlement to an annuity. For the reasons presented below, annuities may not be paid to these children. Background The record submitted to us indicates that the first child, who was born September 25, 1983, is the illegitimate daughter of a deceased retired member of the Air Force. The member entered on active duty in 1979. He was retired with a disability on April 5, 1988, and died soon thereafter. He designated the child to receive as his daughter the arrears of his pay, but on his SBP election form he indicated that he had no spouse or children and declined SBP coverage. However, the SBP form was executed after he became entitled to retired pay and therefore any eligible beneficiaries would be covered as soon as he retired. The child is receiving both Social Security benefits and benefits from the Department of Veterans Affairs. The mother of the child maintains that the member would have elected coverage for the child if he had believed that he could and claims an annuity on her behalf. The mother of the child has submitted statements by the deceased member's relatives indicating that the member had acknowledged that he was the father of the child. However, the mother indicates in a letter that the child had not lived with the member and only visited him briefly while he was in the hospital. She also points out that following the birth of the child his various military assignments prevented him from seeing the child. The second case involves a child who was born January 24, 1978, and is the illegitimate daughter of another deceased retired Air Force member. When the member retired from the Air Force in 1977, he elected "child only" coverage for another daughter who was the only one of his children then eligible for coverage. He named his illegitimate child, who was born after he retired, as his daughter in his will. After he died in 1986, the child's mother obtained a court order adjudicating him to be the father. Additionally, many statements have been submitted by individuals indicating that the member acknowledged paternity of the child, that a parental relationship existed between the member and child, and that the member and child spent occasional weekends at his home and spent vacations together. It appears, however, that the child regularly resided with her mother. The mother claims an SBP annuity on the child's behalf. Analysis Congress enacted the SBP in 1972 as an income maintenance program for the surviving dependents of retired service members. See Pub. L. No. 92-425, 86 Stat. 706, 10 U.S.C. §§ 1447-1455. Section 1450(a) of title 10 provides for the payment of an SBP annuity to a "dependent child" in appropriate circumstances. Section 1447(5) defines a "dependent child" as one who is: (A) unmarried; (B)(i) under 18 years of age,... and (C) the child of a person to whom the plan applies, including (i) an adopted child, and (ii) a stepchild, foster child or recognized natural child who lived with that person in a regular parent-child relationship. Our decision involves subsection (C)(ii), supra. For the purpose of the statute, both children in this case are "natural children," and it appears from the record that both were "recognized" by their fathers. The requirement that each child must have lived with her father in a regular parent-child relationship is the point at issue here. In this regard the submission points out that at the time the SBP was enacted, the definition of a "child" in the civilian employees' survivor annuity system was similar to the SBP's definition-i.e., a recognized natural child had to have lived with the employee or member in a regular parent-child relationship. See 5 U.S.C. § 8341(a)(4) (1976). In January 1980, after several court rulings concluding that the "lived with" requirement was unconstitutional, Congress removed that requirement from the civilian survivor annuity program but has not removed the requirement from the SBP. See Pub. L. No. 96-179, 93 Stat. 1299 (1980). It has long been the position of this Office that whether a law is constitutional is a question for the courts. Intra-Con Security Systems Inc., B-186437, B-185495, March 7, 1977. While several lower courts found the "lived with" requirement in title 5 unconstitutional, the Supreme Court expressly refused to address that issue, United States v. Clark, 445 U.S. 23 (1980), and we are aware of no decision holding the title 10 provision unconstitutional. Under these circumstances we must view 10 U.S.C. § 1447 as the applicable law in this case. The submission also questions the meaning of the phrase "lived with in a regular parent-child relationship" as used in 10 U.S.C. § 1447(5), since quite often a member's assignments prevent him from living with his family. We view this phrase as contemplating that the child live in the household of the member as part of the family unit. The parent-child relationship requirement is met if the child lives in that household even when the member is away from the household as a result of his or her military assignment. However, in the two situations before us, we find no indication that the children ever lived with their fathers or in their households. The record reveals that the first child visited her father for a few days while he was in the hospital, but there is no indication that they had ever lived together in a parent-child relationship. The second child apparently had frequent contact with her father and spent brief periods of time in his residence or with him on vacation. However, the statements in the record indicate they lived in separate households. Accordingly, we must deny the claims of the children for SBP annuities. B-240156, October 16, 1990 Contractor Qualification Responsibility ■■Contracting officer findings Negative determination Criteria Procurement Contractor Qualification ■Responsibility ■Financial capacity Contractors Where processing bank declined to accept high bidder's credit card for the amount of his bid deposit, protest that contracting officer improperly rejected bid as nonresponsive is sustained since (1) deficiency in credit balance pertains solely to bidder's responsibility and can therefore be cured any time prior to award; (2) despite credit deficiency, government's interests were never at risk since as part of its bid, the bidder had submitted a pre-approved bid bond which insured the government against all default by the bidder, even where the bidder's instrument of payment was in a non-guaranteed form such as a credit card; and (3) prior to award, the bidder promptly cured credit deficiency with cash. Procurement Sealed Bidding Modification ■■■■ Intent Since property sales contemplate award being made on an item-by-item basis, where bidder sets forth in his bid deposit statement that his total contract price is "$1,602" and that the amount of his bid deposit is "20% of Bid," subsequent facsimile modifications which contain the solicitation number, the word "modification," the date, the signature of the bidder, and a clear itemized list of new bids and corresponding bid prices reasonably can be construed to mean that the initial contract price of $1,602 has been modified; under these circumstances, the $1,602 figure does not limit the amount of bidder's deposit and contractor is entitled to award on all items for which he was high bidder. Matter of: N.G. Simonowich N.G. Simonowich for the protester. John Avril for G.A. Avril Company, an interested party. Bruce W. Baird, Esq., Defense Logistics Agency, for the agency. Behn Miller and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. N.G. Simonowich protests the award of items 26, 99, 103, 144, 146, 151, 152, 154, 157, 158, 180, 181, 182, and 183 under invitation for bids (IFB) No. 31-0133, issued by the Defense Logistics Agency (DLA), Defense Reutilization and Marketing Region (DRMR), for the sale of various kinds of scrap metal. Specifically, Simonowich protests that its bid was improperly rejected as nonresponsive. We sustain the protest. Background The IFB set bid opening for June 12, 1990, and required each bidder to provide a bid deposit in an amount equal to 20 percent of the total bid price; under the terms of the IFB, the bid deposit could be made by cash, cashier's check, certified check, traveler's check, bank draft, money order, or by charge to a VISA or MasterCard credit card account. Bidders with letters of credit or bid bonds could make their bid deposits by uncertified company checks. At section B01, the IFB also provided: If a credit card is used as a bid deposit and acceptance is declined by the processing bank the bid will be declared nonresponsive. The IFB also provided that bidders could modify their initial bids by telegraph or facsimile; in the event of such a modification, the IFB stated that: [A]ny modification which increases the amount of a bid already submitted ... must provide for an increased bid deposit.1 The record shows that Simonowich submitted an initial bid followed by two bid modifications on successive dates. On June 8, using the agency's standard bid form 114, Simonowich submitted a bid for items 147 and 151. On the cover page of the bid form, each bidder was required to complete a bid deposit statement; Simonowich's statement read as follows: The total amount of my bid is $1,602.00 and attached is the bid deposit, when required by the Invitation, in the form of Bid Bond 90-188 and VISA, in the amount of 20% of Bid. The dollar figure Simonowich inserted-$1,602-represented the total price of Simonowich's bids for items 147 and 151; Bid Bond 90-188 referenced Simonowich's $50,000 annual deposit bond for the period November 3, 1989, through September 30, 1990.2 With his bid, Simonowich also included a credit card information sheet which the agency required from any bidder who intended to pay either the bid deposit or final contract price by means of a credit card. The credit card information sheet advised bidders that if they were successful, the agency would automatically debit the bidder's credit card for "20% of the contract price"; Si 1 This requirement appears in DRMR's instructions on surplus sales, which the IFB incorporated by reference. 'The bond guarantees any individual bid not exceeding $250,000 submitted by Simonowich for a sale of surplus property for the fiscal year ending September 30, 1990, up to the penal amount of the bond ($50,000). monowich's completed sheet contained all the credit card information required by the agency to access Simonowich's VISA account. The IFB also advised bidders that the agency would accept facsimile bids or bid modifications. On June 11, by facsimile, Simonowich submitted a hand-written modification in which he restated his bid price for items 147 and 151 and offered bids on 25 other IFB items. On June 12, again by facsimile, Simonowich submitted a second hand-written modification in which he increased his prior bids on 6 items and offered bids on 50 more items. As a result of the modifications, the number of items for which Simonowich offered bids increased to 77; however, despite this bid increase, Simonowich did not re-execute or modify his initial June 8 bid deposit statement to reflect the increase in his total bid price. At the June 12 bid opening, Simonowich was determined to be the high bidder on 14 of the 77 items on which he had bid. Apparently because items 180, 181, and 182 required a preaward survey, the agency delayed processing Simonowich's bid until the survey was completed. On the morning of June 20, Simonowich's secretary contacted the contracting officer and inquired about the bidding results. The contracting officer informed the secretary that while Simonowich was high bidder on several items, final award could not be determined or processed until the results of the pre-award survey were received. Later that day, at 1:15 p.m., Simonowich's secretary again called the contracting officer to check the status of the award. The contracting officer informed the secretary that based on the survey's results, Simonowich would be awarded all the items for which he was high bidder. The contracting officer further advised the secretary that she would contact Simonowich with the final contract price as soon as the award paperwork was ready for signature. At 2 p.m., the contracting officer telephoned Simonowich's office and informed Simonowich's secretary that the total contract price for Simonowich's bid was $119,927.17, and accordingly, the 20 percent bid deposit, which would be charged to Simonowich's VISA account, amounted to $23,985.43. The contracting officer also advised Simonowich's secretary that no award could be made until the bid deposit was charged to the VISA account. Simonowich's secretary then asked the contracting officer to charge the bid deposit to Simonowich's MasterCard account instead of the VISA account since as of that date, the charge limit on his VISA account was full. The contracting officer refused. Simonowich's secretary then requested time to get the VISA account in order; the contracting officer also denied this request. A few minutes later the agency's cashier advised the contracting officer that the processing bank had just declined Simonowich's credit card for the amount of the bid deposit. When Simonowich's secretary called the contracting officer a few minutes later, the contracting officer advised her that because the bank had declined Simonowich's VISA credit card for the amount of the $23,985.43 bid deposit, Simonowich's bid was nonresponsive. |