B-144371, DEC. 9, 1960

B-144371, DEC. 9, 1960

TO L. JOHNSON CALLAS, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1960, REQUESTING RECONSIDERATION OF OUR DECISION OF NOVEMBER 16, 1960, TO MR. B. J. KATZ, CONTRACTING OFFICER, BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, WHEREIN IT WAS HELD THAT THE LATE TELEGRAPHIC BID MODIFICATION OF FRANCHI CONSTRUCTION COMPANY WAS NOT PROPER FOR CONSIDERATION BECAUSE THE DELAY WAS NOT AN ABNORMAL DELAY BY THE TELEGRAPH COMPANY WITHOUT FAULT OR NEGLECT ON THE PART OF THE BIDDER. IN THE DECISION IT WAS STATED:

"THE "NORMAL, USUAL AND FORESEEABLE DELAYS" ARE THOSE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK. IT IS UNDERSTOOD THAT THE TELEGRAPH COMPANY WILL STATE THAT UNDER NORMAL CONDITIONS A TELEGRAM SHOULD BE DELIVERED IN A CERTAIN PERIOD OF TIME AND THAT RX MESSAGES HAVE PREFERENCE OVER REGULAR TELEGRAMS, ETC. IN THIS CONNECTION, HOWEVER, WE UNDERSTAND THAT CERTAIN WESTERN UNION OFFICIALS CONTACTED WITH REFERENCE TO THIS PARTICULAR CASE WOULD NOT CONSIDER THAT THE TRANSMISSION TIME INVOLVED WAS UNUSUAL OR ABNORMAL. DELIVERY OF THE TELEGRAM WITHIN 40 MINUTES WOULD BE PREVENTED ONLY SENDING AND RECEIVING OFFICE. THERE ARE ALSO FOR CONSIDERATION THE QUESTION OF WHETHER THE ADDRESSEE HAS TIE-IN FACILITIES AND OTHER FACTORS AFFECTING DELIVERY TO HIM.

"IN OUR OPINION, IT WAS NOT REASONABLE FOR FRANCHI TO BELIEVE THAT DELIVERY OF THE TELEGRAM WITHIN 40 MINUTES WOULD BE PREVENTED ONLY BY ABNORMAL, UNUSUAL, OR UNFORESEEABLE DELAYS BY THE TELEGRAPH COMPANY. THE MOST THAT THE EVIDENCE SUBMITTED SHOWS IS THAT THE TELEGRAM COULD HAVE BEEN DELIVERED WITHIN THE 40 MINUTES ALLOWED UNDER FAVORABLE CONDITIONS.'

RECONSIDERATION IS REQUESTED ON THE BASIS OF A LETTER DATED NOVEMBER 21, 1960, FROM THE DISTRICT MANAGER OF THE WESTERN UNION TELEGRAPH COMPANY, BOSTON, MASSACHUSETTS, AS FOLLOWS:

"THIS IS IN REFERENCE TO THE TELEGRAM WHICH YOU GAVE TO US BY TELEPHONE AT NEWTON, MASS. ON OCTOBER 20, 1960 AT 2:20 P.M. E.D.T. ADDRESSED TO AREA PUBLIC WORKS OFFICE, ROOM 633, FEDERAL OFFICE BUILDING, 90 CHURCH STREET, NEW YORK, NEW YORK. OUR RECORDS DISCLOSE THAT THE TELEGRAM WAS TRANSMITTED FROM NEWTON TO NEW YORK AT 2:28 P.M. AND RECEIVED AT THE DELIVERY BRANCH OFFICE AT APPROXIMATELY 2:55 P.M. IT WAS THEN DISPATCHED BY MESSENGER TO THE CHURCH STREET ADDRESS, WHERE IT WAS DELIVERED ABOUT 3:10 P.M.

"WESTERN UNION CANNOT AND DOES NOT GUARANTEE A SPECIFIC TIME OF DELIVERY. HOWEVER, WE DO GIVE PRIORITY IN HANDLING TO CERTAIN TYPES OF MESSAGES AND THE TEXT OF YOUR MESSAGE WAS SUCH THAT IT WAS GIVEN THE RX CLASSIFICATION, INDICATING RECOGNITION OF THE PRIORITY GROUP IN WHICH IT BELONGED. WE WOULD EXPECT THAT DELIVERY OF A MESSAGE IN THAT PRIORITY CLASSIFICATION WOULD ORDINARILY HAVE BEEN EFFECTED BEFORE 3:00 P.M. INASMUCH AS IT WAS NOT, IT CAN BE SAID THAT ABNORMAL DELAY DID OCCUR.'

IF THE CONCLUSION REACHED IN THE ABOVE-QUOTED LETTER IS TO BE INTERPRETED AS MEANING THAT THE DELAY WAS ABNORMAL WE CANNOT AGREE. THE REQUIREMENT IS THAT TELEGRAPHIC BIDS OR MODIFICATIONS THEREOF MUST HAVE BEEN FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY "NORMAL TRANSMISSION PROCEDURE," SO AS NOT TO HAVE BEEN LATE.

THE WORD "NORMAL" IS USED IN ITS DICTIONARY SENSE IMPLYING THE USUAL, THE ORDINARY, AS DISTINGUISHED FROM THE EXTRAORDINARY, THE ABNORMAL. IT IS DEFINED IN WEBSTER'S NEW INTERNATIONAL DICTIONARY, SECOND EDITION, 1937, AS "THE ORDINARY, USUAL CONDITION, DEGREE, QUANTITY, OR THE LIKE; AVERAGE; MEAN.'

THE LEGAL MEANING OF THE WORD "NORMAL" IS IN ACCORDANCE WITH THE ABOVE DEFINITION AND IS DEFINED IN RESTATEMENT OF THE LAW, TORTS, SECTION 302D AS FOLLOWS:

"D. MEANING OF "NORMAL.' THE ACTOR AS A REASONABLE MAN IS REQUIRED TO ANTICIPATE AND PROVIDE AGAINST THE NORMAL OPERATION OF NATURAL FORCES. AND HERE THE WORD "NORMAL" IS USED TO DESCRIBE NOT ONLY THOSE FORCES WHICH ARE CONSTANTLY AND HABITUALLY OPERATING BUT ALSO THOSE FORCES WHICH OPERATE PERIODICALLY OR WITH A CERTAIN DEGREE OF FREQUENCY.

"ILLUSTRATION:

"3. A ERECTS A SWINGING SIGN OVER THE HIGHWAY. HE IS REQUIRED TO KEEP IT IN SUCH CONDITION THAT IT WILL NOT BE BLOWN DOWN, NOT ONLY BY THE ORDINARY BREEZES WHICH ARE OF EVERYDAY OCCURRENCE, BUT ALSO BY THE GALES WHICH EXPERIENCE SHOWS ARE LIKELY TO OCCUR FROM TIME TO TIME.'

UNDER THE FACTS HERE INVOLVED WE DO NOT QUESTION THAT IT WAS POSSIBLE THAT THE TELEGRAM COULD HAVE BEEN DELIVERED ON TIME. HOWEVER, WE CANNOT AGREE THAT, BECAUSE IT WAS NOT, THE DELAY INVOLVED WAS THEREFORE EXTRAORDINARY OR ABNORMAL. IT WAS THE RESPONSIBILITY OF FRANCHI TO HAVE HIS BID IN FOR THE OPENING OF THE BIDS BY 3 P.M., AND, IN CONNECTION WITH TELEGRAPHIC MODIFICATIONS OF BIDS, HE WAS REQUIRED TO EXERCISE REASONABLE CARE AND DILIGENCE TO SEE THAT THE TELEGRAM WAS SENT IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK.

WE ARE INFORMED BY WESTERN UNION THAT STATISTICS CONCERNING THE TIME REQUIRED FOR THE TRANSMISSION OF MESSAGES ARE COLLECTED AND FILED MONTHLY WITH THE FEDERAL COMMUNICATIONS COMMISSION; THAT THE AVERAGE TRANSMISSION TIME FOR A FULL RATE TELEGRAM FROM ANY WESTERN UNION OFFICE TO ANY OTHER WESTERN UNION OFFICE IS 35 TO 40 MINUTES; AND THAT TO THIS MUST BE ADDED TIME FOR MESSENGER DELIVERY IN THE CASE OF MESSAGES SO DELIVERED. IN THE PRESENT CASE, THE TELEGRAM IN QUESTION WAS NOT RECEIVED FOR TRANSMISSION BY A WESTERN UNION OFFICE UNTIL 40 MINUTES BEFORE BID OPENING. WE ARE ALSO INFORMED THAT THE DESIGNATION OF THE TELEGRAM AS OF RX PRIORITY DOES NOT GUARANTEE QUICKER DELIVERY THAN A REGULAR FULL RATE TELEGRAM. FOR EXAMPLE, AN RX TELEGRAM IS NOT PERMITTED TO BREAK INTO A MESSAGE GOING THROUGH A SWITCHING CENTER. WHILE AN RX TELEGRAM MAY HAVE A BETTER CHANCE OF GETTING THROUGH MORE QUICKLY THAN A REGULAR FULL RATE TELEGRAM, WE UNDERSTAND THAT NO STATISTICS ARE KEPT TO SHOW WHETHER RX TELEGRAMS DO IN FACT TAKE LESS TIME FOR TRANSMISSION AND DELIVERY AND NO ESTIMATE OF ANY USUAL OR NORMAL TIME SAVING HAS BEEN MADE BY WESTERN UNION.

IT IS CLEAR IN OUR OPINION ON THE BASIS OF THE FOREGOING ANALYSIS OF THE PRESENT CASE, THAT THERE WAS NO ABNORMAL, UNUSUAL, OR EXTRAORDINARY DELAY IN THE DELIVERY OF THE TELEGRAM. RATHER, WE MUST CONCLUDE THAT THE BASIC REASON FOR NON-RECEIPT OF THE TELEGRAM BY 3 P.M., WAS FRANCHI'S FAILURE TO EXERCISE REASONABLE CARE IN SENDING IT EARLIER.

ACCORDINGLY, WE FIND NO BASIS TO MODIFY THE CONCLUSION REACHED IN THE DECISION OF NOVEMBER 16, 1960.