B-151008, MAY 29, 1963

B-151008, MAY 29, 1963

TO MR. PAUL M. WADE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1963, WITH ENCLOSURES, REQUESTING ON BEHALF OF YOUR CLIENT, ICKES-BRAUN GREENHOUSE MFG. COMPANY, RECONSIDERATION OF OUR DECISION OF MARCH 27, 1963, B-151008, COPY ENCLOSED, WHEREIN THE SECRETARY OF AGRICULTURE WAS INFORMED THAT WE WOULD NOT BE WARRANTED IN RECOMMENDING OR APPROVING A MODIFICATION OF CONTRACT NO. 12-14-100-6950/33) WHICH WOULD INCREASE THE CONTRACT AMOUNT BY $2,600, BASED UPON A TELEGRAPHIC MODIFICATION WHICH WAS TIMELY SENT BY YOUR CLIENT BUT WHICH WAS NOT RECEIVED BY THE DESIGNATED OFFICE PRIOR TO AWARD.

YOU CONTEND THAT THE AGRICULTURAL RESEARCH SERVICE, THE PROCUREMENT ACTIVITY, DID ACTUALLY RECEIVE YOUR CLIENT'S TELEGRAM OF JANUARY 31, 1963, PRIOR TO THE BID OPENING AND IN SUPPORT THEREOF YOU SUBMIT A PHOTOSTATIC COPY OF WESTERN UNION FORM 87--- ROUTE-CALL RECORD, WHICH SHOWS THE SIGNATURE OF A PERSON WHO, YOU STATE, RECEIVED THE TELEGRAM ON BEHALF OF THE SERVICE. IN VIEW OF YOUR CONTENTION AND THE EVIDENCE SUBMITTED BY YOU, WE REQUESTED THE WESTERN UNION TELEGRAPH COMPANY, WASHINGTON, D.C., TO SUBMIT TO US A REPORT ON THE MATTER. BY LETTER DATED APRIL 30, 1963, THE DISTRICT MANAGER, WESTERN UNION TELEGRAPH COMPANY, WASHINGTON, D.C., ADVISED US AS FOLLOWS:

"THE AGRICULTURE RESEARCH SERVICE IS LOCATED IN THE GENERAL SERVICE BUILDING (G.S.A.) LOCATED AT 7TH AND D STREETS, S.W. HOWEVER, ACCORDING TO INSTRUCTIONS FOR THE ABOVE MESSAGES ARE DELIVERED BY TIELINE TO THE DEPT. OF AGRICULTURE TELEGRAPH OFFICE WHICH IS LOCATED AT A DIFFERENT ADDRESS. THE G.S.A. BUILDING IS SERVED BY A SEPARATE TIELINE WHICH SERVES THE VARIOUS DEPARTMENTS OF THE GENERAL SERVICE ADMINISTRATION LOCATED IN THE G.S.A. BUILDING. AS PREVIOUSLY REPORTED NEITHER TIELINE HAD A RECORD OF RECEIVING THE MESSAGE IN QUESTION.

"A FURTHER INVESTIGATION DISCLOSES THAT THE MESSAGE WAS ROUTED OUT ON THE EMD ROUTE ON FEBRUARY 1ST AND RETURNED AS UNDELIVERED. THE DELIVERY RECORD IS NOT ENDORSED WITH THE REASON BUT IT IS LOGICAL TO CONCLUDE THAT THE OFFICE WAS CLOSED WHEN DELIVERY WAS ATTEMPTED. THE MESSAGE WAS SENT OUT AGAIN AT 10:54 A.M. BY MESSENGER. HE RETURNED AT 11:11 A.M. WITH AN UNDECIPHERABLE SIGNATURE WRITTEN IN INK AS A RECEIPT. THE FORM 87 IS ATTACHED.

"IN LOOKING INTO THE RECORD OF THE MESSENGER WHO HANDLED THIS DELIVERY WE FIND THAT HE WAS DISCHARGED ON FEBRUARY 5TH BECAUSE OF FRAUDULENT SIGNATURES ON DELIVERY RECORDS INVOLVING OTHER CASES OF NON DELIVERY WHICH WERE UNDER INVESTIGATION AT THAT TIME.

"THE EXAMINATION OF THE SIGNATURE ON THE ATTACHED FORM 87 AS COMPARED WITH SIGNATURES FOR OTHER MESSAGES ON WHICH NON-DELIVERY WAS CLAIMED, IN OUR OPINION, LEADS US TO BELIEVE THAT THE MESSENGER SIGNED THE FORM 87 WITH A FICTITIOUS SIGNATURE WITHOUT MAKING DELIVERY.'

SINCE THE REPORT OF THE WESTERN UNION TELEGRAPH COMPANY INDICATES THAT ONE OF ITS MESSENGERS INSERTED A FICTITIOUS SIGNATURE ON THE FORM 87 WITHOUT MAKING DELIVERY OF THE TELEGRAM COVERED BY THE SIGNATURE RECEIPT, SUCH RECEIPT MAY NOT BE ACCEPTED BY OUR OFFICE AS PROOF OF DELIVERY OF THE TELEGRAM IN QUESTION TO AN EMPLOYEE OF THE CONTRACTING OFFICE PRIOR TO AWARD OF THE CONTRACT TO THE ICKES-BRAUN GREENHOUSE MFG. COMPANY.

IN REGARD TO YOUR STATEMENT THAT YOUR CLIENT IS PREPARED TO SUBMIT AN AFFIDAVIT BY THE SECRETARY OF THE PRESIDENT OF THE COMPANY TO THE EFFECT THAT IN RESPONSE TO HER INQUIRY SHE WAS FURNISHED BY THE AWARDING OFFICE WITH A SUMMARY OF THE BIDS AND THAT SUCH SUMMARY INCLUDED THE MODIFIED BID OF THE COMPANY, THE FURNISHING OF SUCH AN AFFIDAVIT WOULD SERVE NO USEFUL PURPOSE BECAUSE SUCH AFFIDAVIT WOULD BE CONTRA TO THE STATEMENT OF THE CONTRACTING OFFICER WHO HAS STATED THAT AT THE TIME WHEN THE COMPANY ASKED FOR A TABULATION OF BIDS, HE DID NOT GIVE THE COMPANY THE FIGURES IN ITS BID, BUT RATHER READ ALL THE OTHER PRICES RECEIVED FROM THE OTHER BIDDERS. WHEN THERE IS A DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED IN THE ABSENCE OF EVIDENCE SUBMITTED BY THE CLAIMANT LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. 40 COMP. GEN. 178, 180.

ACCORDINGLY, IN THE ABSENCE OF EVIDENCE ESTABLISHING THE RECEIPT OF THE TELEGRAM OF JANUARY 31, 1963, BY THE CONTRACTING OFFICE PRIOR TO AWARD, THE DECISION OF MARCH 27, 1963, MUST BE AFFIRMED.