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B-126309, JANUARY 26, 1956, 35 COMP. GEN. 426

B-126309 Jan 26, 1956
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A BIDDER MUST PROVE THAT THE TELEGRAM WAS DEPOSITED IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE. THAT THE SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY WAS AN ABNORMAL DELAY. WHO IS UNABLE TO PROVE THAT 5 MINUTES IS THE NORMAL TRANSMISSION TIME FOR THE SERVICE REQUESTED. MAY NOT HAVE THE MODIFICATION CONSIDERED. 1956: REFERENCE IS MADE TO A LETTER OF JANUARY 3. BIDDERS WERE REQUESTED TO QUOTE PRICES ON 79 ITEMS IN THE BID SCHEDULE. SOME OF WHICH WERE DESIGNED TO OBTAIN LUMP-SUM PRICES FOR SPECIFIED MATERIAL OR WORK. THE OTHERS WERE DESIGNED TO OBTAIN UNIT PRICES ON THE BASIS OF ESTIMATED QUANTITIES OF WORK OR MATERIAL. THE INVITATION WAS ACCOMPANIED BY INSTRUCTIONS TO BIDDERS ON STANDARD FORM 22.

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B-126309, JANUARY 26, 1956, 35 COMP. GEN. 426

BIDS - ACCEPTANCE OR REJECTION - LATE BIDS - TELEGRAPHIC MODIFICATION UNDER AN INVITATION WHICH SPECIFIES THE CONDITIONS FOR ACCEPTANCE OF LATE BIDS TRANSMITTED BY TELEGRAPH, A BIDDER MUST PROVE THAT THE TELEGRAM WAS DEPOSITED IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE, AND THAT THE SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY WAS AN ABNORMAL DELAY, OR DELAY BEYOND THE TIME USUALLY REQUIRED, AND, THEREFORE, A BIDDER WHO, 5 MINUTES BEFORE THE SCHEDULED OPENING OF BIDS IN ANOTHER CITY, DEPOSITED A BID MODIFICATION WITH A TELEGRAPH COMPANY AND REQUESTED RUSH SERVICE, AND WHO IS UNABLE TO PROVE THAT 5 MINUTES IS THE NORMAL TRANSMISSION TIME FOR THE SERVICE REQUESTED, MAY NOT HAVE THE MODIFICATION CONSIDERED.

TO THE SECRETARY OF THE INTERIOR, JANUARY 26, 1956:

REFERENCE IS MADE TO A LETTER OF JANUARY 3, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY FORWARDING THE REPORT REQUESTED BY OUR OFFICE CONCERNING THE PROTEST BY ELI BAER, ESQUIRE, IN BEHALF OF UKROPINA-1POLICH -1KRAL AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER FOR EARTHWORK, CONCRETE LINING, AND STRUCTURES IN RALPH'S MILL AREA, MOHAWK LATERALS, WELLTON-MOHAWK DIVISION, GILA PROJECT, ARIZONA.

IT APPEARS THAT UNDER DATE OF OCTOBER 6, 1955, THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER, BUREAU OF RECLAMATION, DENVER, COLORADO, INVITED SEALED BIDS--- TO BE PUBLICLY OPENED AT 10 A.M. MST, NOVEMBER 15, 1955--- FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING THE WORK DESCRIBED IN THE ADVERTISED CONDITIONS, SPECIFICATIONS, AND DRAWINGS. BIDDERS WERE REQUESTED TO QUOTE PRICES ON 79 ITEMS IN THE BID SCHEDULE, SOME OF WHICH WERE DESIGNED TO OBTAIN LUMP-SUM PRICES FOR SPECIFIED MATERIAL OR WORK, AND THE OTHERS WERE DESIGNED TO OBTAIN UNIT PRICES ON THE BASIS OF ESTIMATED QUANTITIES OF WORK OR MATERIAL. THE INVITATION WAS ACCOMPANIED BY INSTRUCTIONS TO BIDDERS ON STANDARD FORM 22, REVISED MARCH, 1953. SUBPARAGRAPHS 5 (D) AND 7 (B) OF THESE INSTRUCTIONS EXPRESSLY ADVISED ALL BIDDERS AS FOLLOWS:

(D) UNLESS SPECIFICALLY CALLED FOR, TELEGRAPHIC BIDS WILL NOT BE CONSIDERED. MODIFICATION BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS. TELEGRAPHIC MODIFICATIONS SHALL NOT REVEAL THE AMOUNT OF THE ORIGINAL OR REVISED BID.

(B) SUBJECT TO THE PROVISIONS OF PARAGRAPH 5 (D) OF THESE INSTRUCTIONS, BIDS OR BID MODIFICATIONS WHICH WERE DEPOSITED FOR TRANSMISSION BY TELEGRAPH IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS AND SUBSEQUENTLY DELAYED BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, WILL BE CONSIDERED IF RECEIVED PRIOR TO THE AWARD OF THE CONTRACT. THE BURDEN OF PROOF OF SUCH ABNORMAL DELAY WILL BE UPON THE BIDDER AND THE DECISION AS TO WHETHER OR NOT THE DELAY WAS SO CAUSED WILL REST WITH THE OFFICER AWARDING THE CONTRACT.

THE ABSTRACT OF BIDS SHOWS THAT THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT MORRISON-1KNUDSEN COMPANY, INC., SUBMITTED THE LOWEST BID AS TO PRICE. IT IS REPORTED BY THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER THAT THE BIDS RECEIVED WERE OPENED AT 10 A.M. MST ON NOVEMBER 15, 1955, AS SCHEDULED AND THAT NO AWARD HAS AS YET BEEN MADE. IT IS REPORTED FURTHER THAT AT APPROXIMATELY 9:58 A.M. MST, PRIOR TO THE OPENING OF BIDS, THERE WAS RECEIVED FROM UKROPINA A TELEPHONE CALL TO THE EFFECT THAT IT WAS REDUCING ITS BID BY THE AMOUNT OF $30,000 AND THAT IT HAD THERETOFORE DISPATCHED TO THE BUREAU OF RECLAMATION AT YUMA, ARIZONA, A TELEGRAM TO THAT EFFECT; THAT THE TELEGRAM WAS DELIVERED BY WESTERN UNION BY TELEPHONE TO THE BUREAU OF RECLAMATION AT 10:50 A.M. MST; AND THAT THE TELEGRAM INDICATED "THAT ITS DISPATCH WAS BEGUN AT 9:55 A.M. MST, BY WESTERN UNION'S SAN GABRIEL OFFICE.' IT IS REPORTED ALSO THAT THE PROFFERED REDUCTION IN THE BID PRICE APPLIED TO ITEM 50 OF THE BID SCHEDULE AS TO WHICH UKROPINA QUOTED A PRICE OF $110,369.64 AND THAT, IN THE EVENT THE LATE TELEGRAM BE ACCEPTED AS MODIFYING THE BID, SUCH BID WOULD BECOME THE LOWEST RECEIVED BY SOME $18,922.48.

HAVING REGARD FOR THE PROVISIONS OF SUBPARAGRAPH 7 (B) OF THE INSTRUCTIONS TO BIDDERS THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER, THE CONTRACTING OFFICER, REQUESTED UKROPINA-1POLICH-1KRAL TO FURNISH EVIDENCE ESTABLISHING THAT THE LATE TELEGRAM WAS DEPOSITED SUFFICIENTLY AHEAD OF THE TIME FIXED FOR BID OPENING TO HAVE BEEN DELIVERED TO THE OPENING OFFICE ,BY NORMAL TRANSMISSION PROCEDURE" PRIOR TO THE BID OPENING TIME. IN RESPONSE, THERE WAS FURNISHED A LETTER DATED NOVEMBER 22, 1955, FROM THE SUPERINTENDENT, WESTERN UNION TELEGRAPH COMPANY, LOS ANGELES, CALIFORNIA, TO UKROPINA-1POLICH-1KRAL, STATING THAT THE MESSAGE WAS ACCEPTED FOR RUSH HANDLING AND ORDINARILY WOULD HAVE BEEN HANDLED PRIOR TO THE TIME IT WAS RECEIVED IN YUMA. IT WAS STATED FURTHER THAT, WHILE THE WESTERN UNION TELEGRAPH COMPANY DOES NOT GUARANTEE SUCH RUSH SERVICE "IT IS NOT AT ALL UNCOMMON FOR SUCH A MESSAGE TO BE TRANSMITTED TO THE DESTINATION AND TELEPHONED TO THE ADDRESSEE WITHIN FIVE OR TEN MINUTES FROM THE TIME FILED.' IN ADDITION THERE WAS FURNISHED AN AFFIDAVIT BY MARGARET R. DONNELLY, SECRETARY OF UKROPINA-1POLICH-1KRAL, WHO STATED UNDER OATH THAT AT 8:48 A.M., CALIFORNIA TIME (9:48 MST), SHE GAVE THE WESTERN UNION TELEGRAPH COMPANY A RUSH TELEGRAM TO BE SENT TO THE BUREAU OF RECLAMATION, YUMA, PROJECT OFFICE, ATTENTION H. W. VAN LOO, PHONE SUNSET 33325, YUMA, ARIZONA, REFERRING TO THE ADVERTISED SPECIFICATIONS IN THIS CASE AND REQUESTING THAT THE PRICE QUOTED FOR ITEM NO. 50 IN THE BID SCHEDULE BE REDUCED BY $30,000. SHE STATED ALSO THAT PRIOR TO 9 A.M. CALIFORNIA TIME (10 A.M. MST) SHE TELEPHONED THIS MESSAGE TO MR. VAN LOO IN THE OFFICE OF THE BUREAU OF RECLAMATION AT YUMA, ARIZONA, ADVISING HIM OF THE REDUCTION IN THE PRICE QUOTED ON ITEM NO. 50 AND THAT THE TELEGRAM WAS ON ITS WAY. THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER TELEGRAPHED THE SUPERINTENDENT OF THE WESTERN UNION'S LOS ANGELES OFFICE AND REQUESTED INFORMATION AS TO THE NORMAL EXPECTED TIME UNDER RUSH HANDLING REQUIRED FOR TRANSMISSION OF SUCH A MESSAGE TO THE BUREAU OF RECLAMATION AT YUMA AND IN REPLY THE SUPERINTENDENT STATED THAT SUCH A MESSAGE NORMALLY WOULD BE TRANSMITTED DIRECTLY WITHIN 5 MINUTES FROM THE TIME FILED AND THAT THE YUMA OFFICE WOULD TELEPHONE THE MESSAGE IMMEDIATELY ON RECEIPT.

THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER REPORTS THAT ON THE BASIS OF THE RECORD BEFORE HIM AND EXERCISING THE RESPONSIBILITY PLACED IN HIM BY THE LAST SENTENCE OF SUBPARAGRAPH 7 (B) SUPRA HE DETERMINED THAT THE LATE TELEGRAM COULD NOT HAVE BEEN DELIVERED UNDER NORMAL TRANSMISSION PROCEDURE TO THE BID OPENING OFFICE PRIOR TO THE BID OPENING TIME AND THAT, ACCORDINGLY, THE MODIFICATION COULD NOT BE CONSIDERED. THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER ALSO RAISED A QUESTION AS TO WHETHER "RUSH HANDLING" UNDER WHICH PROCEDURE THE TELEGRAPH COMPANY ACCEPTED THE LATE TELEGRAM FOR DISPATCH CONSTITUTED TRANSMISSION "BY NORMAL TRANSMISSION PROCEDURE" WITHIN THE CONTEMPLATION OF SUBPARAGRAPH 7 (B) OF THE INVITATION TO BIDDERS.

THE ATTORNEY FOR THE PROTESTING BIDDER FURNISHED THIS OFFICE A COPY OF A TELEGRAM FILED AT ALHAMBRA, CALIFORNIA, WHICH PURPORTS TO HAVE BEEN RECEIVED AT YUMA, ARIZONA, WITHIN 5 MINUTES. THE MATTER WAS THEN BROUGHT TO THE ATTENTION OF THE WESTERN UNION TELEGRAPH COMPANY IN WASHINGTON, .C., AND THAT COMPANY SENT A TELEGRAM TO THE SUPERINTENDENT IN LOS ANGELES CALLING ATTENTION TO THE LETTER OF NOVEMBER 22, 1955, TO THE CHIEF ENGINEER, BUREAU OF RECLAMATION, IN DENVER, AND TO THE AFFIDAVIT OF MARGARET R. DONNELLY WHICH STATED THAT THIS LATE TELEGRAM WAS GIVEN TO WESTERN UNION AT 8:48 AMP FOR " RUSH" HANDLING, AND AT THE SAME TIME POINTED OUT THAT THE MESSAGE SHOWED FILING TIME AS 8:55 A.M. PST AND A DIGIT TIME OF .03 BUT DID NOT SHOW AN " RX" SYMBOL. THE SUPERINTENDENT WAS ADVISED THAT AN EXPRESSION OF AN OPINION WAS DESIRED AS TO WHETHER THE LATE TELEGRAM COULD HAVE BEEN DELIVERED BY 10 A.M. MST UNDER NORMAL TRANSMISSION PROCEDURE. THE SUPERINTENDENT REPLIED BY STATING THAT THE MESSAGE WAS TELEPHONED TO WESTERN UNION; THAT THE FILING TIME OF 8:55 AMP WAS AFTER DICTATION OF THE MESSAGE AND SOME CONSIDERATION REGARDING IT, AND THAT THE RECORDER ENDORSED THE MESSAGE FOR RUSH HANDLING BUT APPARENTLY THE RX SYMBOL WAS NOT TRANSMITTED. IT WAS STATED FURTHER THAT NORMALLY SUCH A MESSAGE WOULD BE TRANSMITTED WITHIN 5 MINUTES FROM THE TIME FILED AND THAT THIS MESSAGE COULD HAVE BEEN RECEIVED AT DESTINATION BEFORE 10 A.M. MST. IN RESPONSE TO A LATER MESSAGE THE SUPERINTENDENT IN LOS ANGELES STATED IN A TELEGRAM RECEIVED IN WASHINGTON ON JANUARY 16, 1956, THAT " AS WE WORK DIRECT WITH YUMA AND AS TELEPHONE NUMBER SHOWN IN ADDRESS FIVE MINUTES WOULD HAVE BEEN AMPLE TIME FOR AN RX MSG TO HAVE BEEN TRANSMITTED AND TELEPHONED TO ADDRESSEE.'

THE MATTER WAS REFERRED BY THE SUPERINTENDENT, WASHINGTON, D.C., OFFICE OF THE WESTERN UNION TO ITS NEW YORK OFFICE FOR THEIR REVIEW AND COMMENT AND THE FOLLOWING REPLY DATED JANUARY 19, 1956, WAS RECEIVED.

MR. INWOOD, OUR SUPERINTENDENT AT LOS ANGELES, IN HIS MESSAGE OF JANUARY 16, STATES THAT DELIVERY IN FIVE MINUTES IS AMPLE TIME IN VIEW OF THE DIRECT CIRCUIT TO YUMA; HOWEVER, THE RECEIVED COPY SHOWS A DIGIT OF (03), PRESUMABLY 903 AMP, WHICH IS EIGHT MINUTES AFTER FILING, BEFORE TRANSMISSION WAS COMPLETED FROM LOS ANGELES.

WE CANNOT, EVEN THOUGH WE ARE INFORMED BY THE SENDER THAT THE MESSAGE IS OF AN URGENT NATURE, GUARANTEE TIME OF TRANSMISSION OR DELIVERY BUT WE ARE OBLIGATED TO FURNISH THE BEST SERVICE WE CAN, DEPENDENT UPON CIRCUMSTANCES AT THE TIME.

IT SHOULD BE POINTED OUT THAT WE CANNOT MAKE ANY GUARANTEE AND, WHILE IT IS TRUE THAT SOME TELEGRAMS ARE TRANSMITTED AND DELIVERED WITHIN FIVE OR TWELVE MINUTES, IT IS NOT ALWAYS POSSIBLE TO FURNISH THIS TYPE OF SERVICE.

ON THE OTHER HAND, THERE HAVE ALSO BEEN PRESENTED ON BEHALF OF MORRISON- 1KNUDSEN COMPANY, INC., THE LOWEST BIDDER PROVIDED THE LATE TELEGRAM IS TO BE DISREGARDED, EVIDENCE WHICH SHOWS THAT THE SAID COMPANY SENT TWO TEST WIRES TO YUMA, ARIZONA, AT ABOUT THE SAME TIME ON THE MORNING OF JANUARY 13, 1956, ONE BY TELEPRINT TO THE WESTERN UNION OFFICE IN LOS ANGELES AND ONE BY TELEPHONING THE MESSAGE AND IN BOTH INSTANCES REQUESTING AND RECEIVING A CLASSIFICATION OF " RX RUSH.' IN ONE CASE IT REQUIRED 28 MINUTES FOR DELIVERY IN YUMA AND IN THE OTHER 27 MINUTES. IN ADDITION MORRISON-1KNUDSEN COMPANY, INC., HAS FURNISHED AN AFFIDAVIT NOTARIZED JANUARY 16, 1956, WHEREIN AN OFFICIAL OF THAT CONCERN STATED THAT HE TELEPHONED A MESSAGE TO THE WESTERN UNION IN ALHAMBRA, CALIFORNIA, AND REQUESTED THAT IT BE TRANSMITTED TO MORRISON 1KNUDSEN COMPANY, INC., ATTENTION C. D. JOHNSON, YUMA, ARIZONA, PHONE SUNSET 2-2529 AS AN URGENT MESSAGE; THAT THE MESSAGE WAS TELEPHONED TO THE WESTERN UNION IN ALHAMBRA AT 9:15 A.M. MST; THAT THE MESSAGE WAS RECEIVED BY THE WESTERN UNION AT YUMA AT 10:32 A.M. MST; AND THAT WESTERN UNION TELEPHONED THE MESSAGE TO THE MORRISON-1KNUDSEN COMPANY IN YUMA AT 10:36 A.M. MST.

IN ORDER THAT WE MIGHT HAVE THE BENEFIT OF ALL POSSIBLE AVAILABLE PERTINENT INFORMATION WE DISCUSSED WITH A REPRESENTATIVE OF THE FEDERAL COMMUNICATIONS COMMISSION THE QUESTION AS TO WHETHER 5 MINUTES WOULD BE A NORMAL TRANSMISSION TIME FOR THE MESSAGE HERE INVOLVED AND WE WERE ADVISED THAT ABOUT 10 MINUTES IS CONSIDERED BY THEM TO BE THE MINIMUM TIME WITHIN WHICH SUCH A TELEGRAM COULD USUALLY BE DELIVERED; AND, WHILE 5 MINUTES IS POSSIBLE FOR SUCH SERVICE, IT IS EXTREMELY RARE AND IT WOULD BE UNREASONABLE TO EXPECT SUCH A MESSAGE TO BE DELIVERED IN 5 MINUTES. WERE INFORMED ALSO THAT " RX" PRIORITY RANKS FOURTH IN THE LIST OF PRIORITIES PROVIDED AND DOES NOT OPERATE TO GIVE UNLIMITED PRECEDENCE OVER OTHER MESSAGES IN THE COURSE OF TRANSMISSION.

THE QUESTION FOR DETERMINATION IS WHETHER THE FACTS AND EVIDENCE OF RECORD ESTABLISH THAT THE LATE TELEGRAM WOULD HAVE BEEN RECEIVED IN TIME FOR BID OPENING UNDER NORMAL TRANSMISSION PROCEDURE AND THAT ITS LATE ARRIVAL WAS NOT DUE TO ANY FAULT OR NEGLIGENCE ON THE PART OF THE BIDDER. WHILE THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER REPORTS THAT, UNDER THE AUTHORITY OF SUBPARAGRAPH 7 (B) OF THE INSTRUCTIONS TO BIDDERS HE DETERMINED THAT THE LATE TELEGRAM COULD NOT HAVE BEEN DELIVERED UNDER NORMAL TRANSMISSION PROCEDURE, WE FEEL THAT HE MAY HAVE BEEN INFLUENCED BY DOUBT AS TO WHETHER RUSH HANDLING WAS NORMAL TRANSMISSION PROCEDURE. IS OUR VIEW THAT "NORMAL TRANSMISSION PROCEDURE" AS USED IN AN INSTANT SUCH AS THIS CONTEMPLATES NORMAL TRANSMISSION FOR THE TYPE OF SERVICE REQUESTED BY THE SENDER. RUSH HANDLING WAS REQUESTED AND WESTERN UNION ACKNOWLEDGES THAT IT ACCEPTED THE MESSAGE FOR SUCH SERVICE ALTHOUGH ITS SYMBOL " RX" WAS NOT TRANSMITTED. THE TELEPHONE CALL FROM UKROPINA WHICH WAS RECEIVED AT DESTINATION PRIOR TO THE TIME FIXED FOR THE OPENING OF BIDS, WAS NOT AN AUTHORIZED MEANS OF MODIFYING THE BID UNDER THE ADVERTISED CONDITIONS AND, THEREFORE, MAY NOT BE ACCEPTED AS SUFFICIENT IN ITSELF TO ACCOMPLISH THAT PURPOSE. 17 COMP. GEN. 961.

IF THE SOLE REQUIREMENT FOR THE CONSIDERATION OF A LATE BID OR MODIFICATION WERE THAT THE BIDDER SUBMIT IT WITHOUT PRIOR KNOWLEDGE OF OTHER BIDS ALREADY OPENED, THEN THERE WOULD BE NO DISPUTE THAT THIS BID MODIFICATION WOULD MEET SUCH A TEST. BUT THE ADVERTISED REQUIREMENTS, ON WHICH ALL BIDDERS ARE ENTITLED TO RELY, HAVE STATED SPECIFICALLY THE CONDITIONS UNDER WHICH LATE BIDS ARE ACCEPTABLE; AND, WHILE THOSE CONDITIONS SHOULD BE INTERPRETED IN THE LIGHT OF THEIR PURPOSE, THE LANGUAGE OF THE CONDITIONS MAY NOT BE DISREGARDED IN SO DOING. THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS; AND WHEN THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF WHICH IS PLACED UPON THE BIDDER BY THE TERMS OF THE INVITATION. THERE HAS BEEN MADE AVAILABLE TO THIS OFFICE INFORMATION NOT CONSIDERED BY THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER WHEN HE MADE HIS DECISION. MUCH OF THIS INFORMATION IS IN THE FORM OF OPINIONS, AND SOME OF IT IS EITHER AMBIGUOUS OR CONTRADICTORY. FOR EXAMPLE, THE AFFIDAVIT OF MISS DONELLY IS THAT SHE GAVE WESTERN UNION THE MESSAGE AT 8:48 AMP. HOWEVER, THE FILING TIME, CONFIRMED AND EXPLAINED BY WESTERN UNION, IS RECORDED AT 5 AMP. THE LOS ANGELES SUPERINTENDENT OF WESTERN UNION HAS SAID AT VARIOUS TIMES THAT (1) IT IS NOT UNCOMMON FOR SUCH A MESSAGE TO BE TRANSMITTED TO DESTINATION AND PHONED TO ADDRESSEE WITHIN 5 TO 10 MINUTES FROM THE TIME FILED, THAT (2) NORMALLY SUCH A MESSAGE WOULD BE TRANSMITTED WITHIN 5 MINUTES FROM TIME FILED AND ORDINARILY YUMA WOULD TELEPHONE THE MESSAGE IMMEDIATELY ON RECEIPT; AND THAT (3) THIS MESSAGE NORMALLY SHOULD HAVE REACHED ADDRESSEE BEFORE 10:00 A.M. MST. ONLY THE LAST VERSION CLEARLY SUPPORTS ACCEPTANCE OF THE LATE BID.

THE NEW YORK OFFICE OF WESTERN UNION AFTER REVIEW OF THE MATTER, SAID THAT, WHILE SOME TELEGRAMS ARE TRANSMITTED AND RECEIVED IN 5 OR 12 MINUTES, IT IS NOT ALWAYS POSSIBLE TO FURNISH THIS TYPE OF SERVICE. FEDERAL COMMUNICATIONS COMMISSION REPRESENTATIVE EXPRESSED THE OPINION THAT 10 MINUTES IS ABOUT THE BEST TIME THAT COULD USUALLY BE EXPECTED FOR DELIVERY OF SUCH A MESSAGE; AND THAT 5 MINUTES WAS POSSIBLE, BUT EXTREMELY RARE AND UNREASONABLE TO EXPECT.

THE TEST TELEGRAM FILED BY UKROPINA SHOWS THAT IT WAS TELEPHONED TO THE ADDRESSEE 5 MINUTES AFTER FILING TIME; BUT IT ALSO SHOWS THAT IT WAS TAPED AT YUMA AND PHONED FROM THERE TO THE ADDRESSEE AT PRECISELY THE SAME TIME, 9:50 A.M. MST. THERE IS SOME QUESTION WHETHER, UNDER NORMAL TRANSMISSION PROCEDURES, TAPING AND TELEPHONING OF A MESSAGE WOULD BE COMPLETED SIMULTANEOUSLY. OTHER MESSAGES ALLEGED TO HAVE BEEN SENT " RUSH" SHOW A CONSIDERABLY LONGER TIME THAN 5 MINUTES BETWEEN FILING AND TELEPHONING TO ADDRESSEE.

ACCORDINGLY, THIS OFFICE IS UNABLE TO CONCLUDE THAT THE LATE BIDDER HAS SUSTAINED THE BURDEN OF PROOF PLACED ON HIM BY PARAGRAPH 7 (B) OF INSTRUCTIONS TO BIDDERS. NEVERTHELESS, IN VIEW OF THE CONFLICTING INFORMATION, AND SINCE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT IS SUGGESTED THAT CONSIDERATION BE GIVEN WHETHER, IN FAIRNESS TO BOTH BIDDERS AND IN THE INTEREST OF THE GOVERNMENT, ALL BIDS SHOULD BE REJECTED AND THE GOVERNMENT'S REQUIREMENTS READVERTISED.

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