ment that intention through appropriate procurement management techniques, and we note that ECOM is now confronted with the very situation that the Magnavox contract was designed to alleviate. If, as ECOM asserts, it doubted the ability of CCC/CMC to deliver the data package in accordance with contract No. DAAB07-69-C0141-a requirement to forestall its previous disinclination to furnish a procurement data package-appropriate remedies are available under the contract to enforce timely delivery of the procurement data package.

The absence of engineering production drawings suitable for competitive procurement and the urgency of the requirement constitute the major bases for the proposed noncompetitive award. Engineering data and drawings for the bands II and III heads are line requirements of CCC/CMC contract DAAB07-69-C-0141 at a cost of $642,362. Under the contract, delivery of the running set of drawings was required to be concurrent with delivery of the first production model in December 1970. However, to reflect slippages on both the Army's and CCC/CMC's part, the drawing schedule was revised to reflect a March 31, 1971, delivery date. The first of two increments of the running set of drawings was delivered April 6, 1971, and the second increment was delivered May 18, 1971.

The final set of drawings was required to be delivered concurrent with submission of the final production lot on June 30, 1971. Even though the delivery schedule had already slipped 3 months, we have been advised that the contract was not modified because CCC/CMC advised that it could rectify the delays and still deliver the production units and final drawings on schedule. On June 30, 1971, after it became apparent that the drawing schedule would not be met, the Army advised CCC/CMC that it would accept a 1-month further delay without formal modification of the contract.

It is further reported that CCC/CMC offered to supply the final set of drawings by July 12, 1971. However, the final set of drawings had to reflect changes and revisions occasioned by ECOM's review of the running set of drawings. Inasmuch as the drawing package consists of approximately 3,500 drawings, it was determined that the final set of drawings could not be delivered until ECOM reviewed and corrected the running set and thereafter submitted revisions to CCC/CMC. At the time of submission of the drawings, the ECOM review time was estimated at 6 months. The running set of drawings was reviewed and finally approved on April 6, 1972, or approximately 11 months after delivery by CCC/CMC. We have been informally advised that the 5-month delay in reviewing the drawings is attributable to the fact that the drawings were reviewed by one individual.

However, partial delivery of the final set of drawings was accomplished on June 22, 1972, and we are advised that the remainder will be delivered by August 1, 1972.

The Army asserts that regardless of all other considerations, procurement type data in the hands of the Government are insufficient for purposes of competitive procurement, and that CCC/CMC is the only firm which can meet its urgent time requirements. In rebuttal, Magnavox points to its past performance with the radio and bands I, II and III as evidence of its technical qualifications. However, it is agreed that Magnavox's technical capability to perform is not here in question. Rather, the critical inquiry here is Magnavox's ability to perform within the stringent timeframe.

In this regard, the D&F cited 10 U.S.C. 2304 (a) (2) as authority to negotiate the contemplated contract. The provisions of 10 U.S.C. 2310(b) make the findings of the D&F final; therefore, we are precluded from questioning the legal sufficiency of the findings. In our decision 51 Comp. Gen. 658 (1972), our Office concluded that we are not precluded from questioning whether the determination, based upon the findings, is proper. We recognize that while reliance upon the "public exigency" exception to formal advertising does not per se authorize a sole-source award, it does clothe the contracting officer with considerable latitude to determine the method best suited to satisfy the urgent needs of the Government. 46 Comp. Gen. 606 (1967).

In the circumstances, we are compelled to conclude that no legal basis exists to question an award, albeit noncompetitively, to CCC/ CMC. However, we also feel compelled to observe that the procurement decisions made in connection with the band III head program contributed largely to the undesirable choice of a sole-source award. We feel that had the Government reaped the benefits of the prior Magnavox award the likelihood of a noncompetitive award might have been avoided. Further, we believe that the preservation of a domestic procurement base for the end items is an important goal that should not be minimized because of the exigencies now apparent. We trust that future procurement actions will reflect the competition which is the keystone of the statutory procurement system.

Finally, Magnavox contends that it could satisfy the urgent requirements if afforded the use of engineering data the Army now possesses and is furnished a model for reverse engineering. The time estimates necessary to accomplish this effort (the securing of necessary production material; the reverse engineering of the item; preproduction testing and production) work to the disadvantage of Magnavox, and we find no basis to question the position of the procurement activity. But

we iterate our recommendation that the sole-source decision be reexamined.

Accordingly, we have no alternative but to deny the Magnavox

protest.

[B-158458]

Contracts-Disputes-Contract Appeals Board Decision-Review by the General Accounting Office-S&E Contractors, Inc., Case Effect

In view of the holding by the United States Supreme Court in S&E Contrac tors, Inc. v. United States, No. 70-88, April 24, 1972, that decisions rendered pursuant to the disputes clause of a contract in favor of a contractor are final and conclusive and not subject to review by the United States General Accounting Office (GAO) absent fraud or bad faith, GAO no longer will object to the payment of a claim for refund of the amount withheld from a contractor on the basis a Maryland State sales tax determined to be inapplicable had been included in the contract price and paid, a refund approved by the Board of Contract Appeals but not returned to the contractor because the GAO in 49 Comp. Gen. 782 held the Board was wrong as a matter of law.

To John H. Bransby, Department of the Army, August 2, 1972:

This is in reference to your letter of July 5, 1972, requesting an advance decision as to whether the claim of John C. Grimberg Company, Incorporated (Grimberg), against the United States Army Corps of Engineers under construction contract DA-18-020-ENG-3098 may be paid.

The claim arose out of a dispute as to whether the contract price included an amount for a Maryland State sales tax that was subsequently determined to be inapplicable to the contract. The contracting officer, believing that $13,926.30 of the contract price was included for payment of the sales tax, set off that amount against other funds owed to the company. On appeal under the disputes clause, the Board of Contract Appeals decided that the sales tax in question was not included in the contract price. ASBCA No. 12783, January 22, 1970. However, we subsequently held that the Board was wrong as a matter of law and advised you that the claim should not be paid. 49 Comp. Gen. 782 (1970).

Your request is prompted by the assertion of counsel for Grimberg that a recent decision of the United States Supreme Court, S&E Contractors, Inc. v. United States, No. 70-88, April 24, 1972, requires that the claim be paid. In that case, the Supreme Court held that decisions rendered pursuant to the disputes clause of a contract in favor of a contractor are final and conclusive and not subject to review by this Office absent fraud or bad faith. Accordingly, since there is no indication of fraud or bad faith in this case, we will no longer interpose an objection to payment of Grimberg's claim.

[B-174478]

Quarters-Government Furnished-Assignment More Costly Than Payment of an Allowance

Commanding officers who in the assignment or nonassignment of public quarters to members of the uniformed services have the duty to accomplish the maximum practicable occupancy of Government quarters and to issue a written statement or certificate to members upon the assignment or nonassignment of quarters— and a member's personal desire provides no basis for the nonassignment of available quarters may be granted some latitude in circumstances requiring that judgment be used as to whether the assignment of quarters would be more costly to the Government than the payment of the allowance prescribed by 37 U.S.C. 403, since there is no requirement that all available quarters must be occupied. However, determinations should be made on an individual basis and an approved allowance supported by a written certificate or statement.

Military Personnel-Dislocation Allowance-Members Without Dependents Quarters Not Assigned

A member of the uniformed services without dependents who is transferred to a permanent station and furnished a certificate of nonavailability of Government quarters on the basis that it would be economically advantageous to the United States not to require the member to occupy available quarters is entitled to a dislocation allowance pursuant to paragraph M9003–1 of the Joint Travel Regulations, implementing 37 U.S.C. 407(a), which authorizes the payment of a dislocation allowance to a member that is not assigned to Government quarters and is furnished a certificate of nonavailability of quarters.

To the Secretary of the Navy, August 4, 1972:

By letter dated November 3, 1971, the Assistant Secretary of the Navy (Financial Management) requests a decision whether the commanding officer at a permanent duty station may certify, for the purpose of entitlement to basic allowance for quarters, that adequate Government quarters are not available for assignment to a member transferred to his activity when for personal reasons the member requests that he be permitted to reside in private quarters and when in the judgment of the commanding officer such nonassignment would be economically advantageous to the Government. A further question pertains to the entitlement of a member without dependents, not assigned quarters under such conditions, to a dislocation allowance under the provisions of 37 U.S. Code 407 (a). The request has been assigned Control No. SS-N-1135 by the Military Pay and Allowance Committee, Department of Defense.

The Assistant Secretary suggests that there is an apparent conflict between two decisions of our Office, 39 Comp. Gen. 561 (1960) and 48 Comp. Gen. 216 (1968), with respect to the availability and/or assignment of Government quarters as they pertain to the entitlement of

members of the uniformed service to basic allowance for quarters, if otherwise entitled. He says that in 39 Comp. Gen. 561 we held that a certificate of nonavailability of quarters was not conclusive when the facts in the case are contrary to such certification.

Apparently in conflict, he says, is 48 Comp. Gen. 216 in which we stated (citing several Court of Claims rulings) that the mere availability of quarters which could have been assigned to a member with or without dependents at a permanent station does not defeat the right of such member to basic allowance for quarters when not assigned to such quarters and that quarters are not "furnished" to a member merely because there are quarters available for assignment-they must be assigned to him.

In view of the apparent conflict between these decisions, the Assistant Secretary questions whether the availability of Government quarters should be the sole criterion governing the assignment or nonassignment of such quarters and therefore determinative of whether entitlement exists to basic allowance for quarters. He suggests that it is desirable for reasons of economy that a commanding officer have a certain amount of flexibility when it would be more advantageous to the Government not to assign adequate Government quarters. For example, he says it may cost more to store a member's household effects and maintain him in Government quarters than to pay a basic allowance for quarters.

Also, he states that it would be prudent for the commanding officer to keep some adequate quarters available for assignment to temporary duty personnel when it is known that such personnel will normally be there, which would result in a savings in per diem costs exceeding amounts expended for basic allowance for quarters. Finally, he indicates that when the Government is leasing quarters on a "when occupied" basis, it may cost more to assign a member to such quarters if the lease cost is greater than the basic allowance for quarters.

With respect to whether a member without dependents not assigned adequate quarters at his permanent station under conditions described. above would be entitled to a dislocation allowance, the Assistant Secretary cites in support thereof the provisions of 37 U.S.C. 407(a), which authorizes the payment of a dislocation allowance to a member without dependents who is transferred to a permanent station where he is not assigned to quarters of the United States.

Section 403 (a) of Title 37, U.S. Code, provides in pertinent part that, except as otherwise provided by law, a member of a uniformed service who is entitled to basic pay is entitled to a basic allowance for quarters. Subsection (b) thereof provides that a member who is assigned to quarters of the United States or a housing facility under the