B-161204, MAY 3, 1967, 46 COMP. GEN. 771

B-161204: May 3, 1967

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WHICH WERE RECEIVED AFTER THE OPENING OF BIDS FOR THE CONSTRUCTION OF A NURSING HOME UNIT AT A VETERANS ADMINISTRATION HOSPITAL MAY BE CONSIDERED. THE BIDDER HAVING FORWARDED THE MODIFICATIONS SUFFICIENTLY EARLY TO HAVE BEEN TIMELY DELIVERED. ALTHOUGH THE OBSERVANCE OF A LUNCH HOUR AT THE WESTERN UNION OFFICE THAT DELAYED DELIVERY IS A CONDITION OF SERVICE THE BIDDER SHOULD HAVE ANTICIPATED. THE FACT THAT THE TELEGRAMS RECEIVED AT THE HOSPITAL OVER A TELETYPE MACHINE APPROXIMATELY 15 MINUTES BEFORE THE SCHEDULED BID OPENING TIME WERE NOT COMMUNICATED IMMEDIATELY TO THE BID OFFICE BUT WERE DELIVERED VIA ROUTINE MAIL FACILITIES CONSTITUTES MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF SECTION 1-2.303-2 OF THE FEDERAL PROCUREMENT REGULATIONS.

B-161204, MAY 3, 1967, 46 COMP. GEN. 771

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - MISHANDLING BY GOVERNMENT TELEGRAPHIC BID PRICE MODIFICATIONS DISPLACING THE LOW BID, WHICH WERE RECEIVED AFTER THE OPENING OF BIDS FOR THE CONSTRUCTION OF A NURSING HOME UNIT AT A VETERANS ADMINISTRATION HOSPITAL MAY BE CONSIDERED, THE BIDDER HAVING FORWARDED THE MODIFICATIONS SUFFICIENTLY EARLY TO HAVE BEEN TIMELY DELIVERED, AND ALTHOUGH THE OBSERVANCE OF A LUNCH HOUR AT THE WESTERN UNION OFFICE THAT DELAYED DELIVERY IS A CONDITION OF SERVICE THE BIDDER SHOULD HAVE ANTICIPATED, THE FACT THAT THE TELEGRAMS RECEIVED AT THE HOSPITAL OVER A TELETYPE MACHINE APPROXIMATELY 15 MINUTES BEFORE THE SCHEDULED BID OPENING TIME WERE NOT COMMUNICATED IMMEDIATELY TO THE BID OFFICE BUT WERE DELIVERED VIA ROUTINE MAIL FACILITIES CONSTITUTES MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF SECTION 1-2.303-2 OF THE FEDERAL PROCUREMENT REGULATIONS.

TO R. S. ARMSTRONG, VETERANS ADMINISTRATION HOSPITAL, MAY 3, 1967:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 3, 1967, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE, REQUESTING A DECISION WHETHER TWO TELEGRAPHIC MODIFICATIONS RECEIVED AFTER THE OPENING OF BIDS FROM GEORGE E. JENSEN, CONTRACTOR, INC., SHOULD BE CONSIDERED IN THE EVALUATION OF BIDS SUBMITTED IN RESPONSE TO AN INVITATION FOR PROJECT NO. 01-5180, COVERING THE CONSTRUCTION OF A NURSING HOME CARE UNIT AT THE VETERANS ADMINISTRATION HOSPITAL, TUSKEGEE, ALABAMA.

THE INVITATION, ISSUED ON FEBRUARY 9, 1967, REQUESTED BIDS TO BE SUBMITTED TO THE HOSPITAL DIRECTOR, VETERANS ADMINISTRATION HOSPITAL, TUSKEGEE, ALABAMA, FOR PUBLIC OPENING AT 1:30 P.M., C.S.T., ON MARCH 28, 1967. AT THE SCHEDULED TIME FIVE BIDS WERE RECEIVED, OPENED IN THE OFFICE OF THE CHIEF, SUPPLY DIVISION, AND RECORDED, AS FOLLOWS: W. CHESTER WILLIAMS, CONTRACTOR

$118,771 F.B. BEAR CONSTRUCTION COMPANY 127,321 GEORGE E. JENSEN, CONTRACTOR, INC. 150,000 GUIN AND HUNT, INC.

152,430 W. A. BARROW

158,000 AT APPROXIMATELY 2:10 P.M. AN EMPLOYEE OF THE HOSPITAL COMMUNICATIONS SECTION CALLED THE SUPPLY DIVISION AND AT ABOUT 2:15 P.M. HE DELIVERED TO THE CONTRACTING OFFICER THE TWO TELEGRAPHIC BID MODIFICATIONS FROM GEORGE E. JENSEN, WHICH, IF CONSIDERED, WILL DISPLACE THE LOW BID OF W. CHESTER WILLIAMS. THE RECORD INDICATES THAT THE WIRES WERE REMOVED FROM THE TELETYPE MACHINE AND TIME STAMPED AT 2:07 P.M.

THE FIRST TELEGRAM, MARKED "RUSH" AND STATING THAT ITS DELIVERY MUST BE COMPLETED BEFORE 1 .M., REDUCED JENSEN'S BID BY $31,750; THE SECOND TELEGRAM FURTHER REDUCED THE BID BY $2,500. SUBSEQUENT VERIFICATION BY THE CONTRACTING OFFICER WITH WESTERN UNION INDICATED THAT BOTH MESSAGES WERE FILED IN THE MOBILE, ALABAMA, WESTERN UNION OFFICE. THE FIRST TELEGRAM WAS FILED AT 11:33 A.M., C.S.T., TRANSMITTED FROM MOBILE INTO THE SELECTIVE SWITCHING SYSTEM AT 11:39 A.M., AND WAS TIME STAMPED AT THE TUSKEGEE WESTERN UNION OFFICE AT 1:12 P.M. THE SECOND TELEGRAM WAS FILED AT 12:02 P.M., TRANSMITTED AT 12:07 P.M., AND WAS TIME STAMPED AT TUSKEGEE AT 1:13 P.M. THE MESSAGES WERE THEN TRANSMITTED VIA TIELINE TO THE COMMUNICATIONS SECTION OF THE HOSPITAL. TRANSMISSION WAS COMPLETED AT 1:15 P.M. AND 1:16 P.M., RESPECTIVELY, ACCORDING TO THE TIME SHOWN BY WESTERN UNION AT THE END OF EACH MESSAGE. BY LETTER DATED APRIL 11, 1967, TO THE CONTRACTING OFFICER, THE MANAGER OF THE TUSKEGEE WESTERN UNION OFFICE ADVISED THAT A LUNCH HOUR IS OBSERVED AT THAT OFFICE FROM 12 NOON TO 1 P.M., DURING WHICH TIME THE OFFICE IS CLOSED.

THE DELIVERY PROCEDURE FOR WESTERN UNION TELEGRAMS AFTER THEIR RECEIPT AT THE HOSPITAL IS GENERALLY INDICATED IN A MEMORANDUM DATED APRIL 3, 1967, FROM THE CHIEF, MEDICAL ADMINISTRATION DIVISION, AS FOLLOWS:

1. THE WESTERN UNION MACHINE IS LOCATED IN THE OFFICE OF THE CHIEF, OFFICE SERVICE SECTION AND IS UTILIZED PRIMARILY FOR THE BENEFIT AND CONVENIENCE OF PATIENTS AND EMPLOYEES RESIDING ON THE STATION. VERY FEW MESSAGES OF AN OFFICIAL NATURE ARE OVER RECEIVED ON THIS MACHINE. THERE IS NO WRITTEN STATION POLICY COVERING PROCEDURES FOR THE DELIVERY OF MESSAGES RECEIVED BY WESTERN UNION.

2. DELIVERY OF MESSAGES ARRIVING ON THE WESTERN UNION MACHINE IS GENERALLY ACCOMPLISHED THROUGH NORMAL MESSENGER SERVICE CHANNELS. OUR SCHEDULED DELIVERY FROM THE MAIL ROOM MESSAGE CENTER DEPARTS AS FOLLOWS:

LEAVES MAIL ROOM 9:10 A.M.--- ARRIVES IN SUPPLY DIVISION, 10:25 A.M.

LEAVES MAIL ROOM 1:40 P.M.--- ARRIVES IN SUPPLY DIVISION, 3:00 P.M.THERE ARE FIFTEEN MESSENGER STOPS EN ROUTE, AS THE SUPPLY DIVISION IS LOCATED A CONSIDERABLE DISTANCE FROM THE MAIL ROOM.

IN THIS REGARD IT APPEARS THAT DURING THE LAST 3 MONTHS THE AVERAGE NUMBER OF WESTERN UNION MESSAGES RECEIVED WAS TWO PER DAY AND THE AVERAGE NUMBER OF GOVERNMENT TELETYPE MESSAGES RECEIVED WAS SIX PER DAY. WE ARE FURTHER ADVISED THAT THIS PROCEDURE FOR HANDLING ORDINARY MESSAGES IS DEPARTED FROM ON CERTAIN OCCASIONS WITH RESPECT TO OFFICIAL TELEGRAMS, IN WHICH CASE THE TELETYPE OPERATOR IMMEDIATELY UPON RECEIPT CALLS OR HAND- DELIVERS THE MESSAGE TO THE ADDRESSEE. SUCH ACTION IS, HOWEVER, LEFT TO THE DISCRETION OF THE EMPLOYEES CHARGED WITH THE OPERATION OF THE COMMUNICATIONS SECTION. FURTHER, THE RECORD INDICATES THAT ON MARCH 28, 1967, THE POSITION OF CHIEF, OFFICE SERVICES SECTION, WAS VACANT, AND THAT THE REGULAR TELETYPE OPERATOR, WHO ALSO DISTRIBUTES PUBLICATIONS, WAS ON SICK LEAVE. ONE OF THE TELEPHONE OPERATORS HAD BEEN DESIGNATED ACTING CHIEF OF THE SECTION ON THAT DAY AND AT APPROXIMATELY 1:10 P.M. WENT TO LUNCH. UPON RETURN, HE WENT DIRECTLY TO THE MAILROOM TO CHECK ON OPERATIONS SINCE THERE WAS ALSO A SHORTAGE OF PERSONNEL IN THAT AREA. ARE INFORMALLY ADVISED THAT IT IS THE GENERAL PRACTICE OF THE STATION TO COVER THE TELETYPE MACHINES AT ALL TIMES. ON THOSE OCCASIONS WHEN BOTH THE CHIEF OF THE SECTION AND THE TELETYPE OPERATOR ARE AWAY FROM THE OFFICE, THE TELEPHONE OPERATOR, WHO OCCUPIES A PHYSICALLY ADJOINING ROOM, CHECKS THE MACHINES DURING A LULL ON THE SWITCHBOARD. IT APPEARS THAT THE SWITCHBOARD OPERATOR ON DUTY WHEN THE TELEGRAMS WERE RECEIVED ON MARCH 28 MERELY ACKNOWLEDGED THEIR RECEIPT SOME TIME BETWEEN 1:25 P.M. AND 1:30 P.M. AND THEN RETURNED TO HER REGULAR DUTIES.

IN A LETTER, WITH ENCLOSURES, DATED APRIL 21, 1967, SUBMITTED TO THIS OFFICE BY THE ATTORNEY FOR GEORGE E. JENSEN, IT IS MAINTAINED THAT THE FAILURE OF THE MODIFICATIONS TO BE TIMELY RECEIVED WAS ATTRIBUTABLE EITHER TO AN ABNORMAL DELAY BY WESTERN UNION, WHICH COULD NOT HAVE BEEN ANTICIPATED BY THE BIDDER, OR TO MISHANDLING BY THE GOVERNMENT. SUPPORT OF THE FIRST CONTENTION, A LETTER DATED APRIL 21, 1967, FROM THE DISTRICT MANAGER, THE WESTERN UNION TELEGRAPH COMPANY, MOBILE, ALABAMA, INDICATES THAT THE NORMAL TRANSMISSION TIME FOR TELEGRAMS FROM MOBILE TO THE HOSPITAL IS APPROXIMATELY 40 MINUTES; THAT THE NORMAL HANDLING OF TELEGRAMS ADDRESSED TO THE HOSPITAL DIRECTOR IS OVER THE HOSPITAL'S TIELINE RATHER THAN BY TELEPHONIC COMMUNICATION OF THE MESSAGE; AND THAT IT WOULD NOT GENERALLY BE KNOWN AT ALL WESTERN UNION OFFICES THAT THE TUSKEGEE BRANCH OFFICE IS CLOSED FOR LUNCH BETWEEN 12 NOON AND 1 P.M.

SECTION 1-2.305 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) DEFINES "LATE MODIFICATIONS" AND PROVIDES THAT SUCH MODIFICATIONS SHALL BE TREATED IN ACCORDANCE WITH THE RULES AND PROCEDURES GOVERNING LATE BIDS CONTAINED IN FPR SEC. 1-2.303. FPR SEC. 1-2.303-2 PROVIDES, IN RELAVANT PART, AS FOLLOWS:

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(A)IT IS RECEIVED BEFORE AWARD; AND EITHER

(B) IT WAS SENT BY * * * TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY * * * BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(C) IF SUBMITTED BY * * * TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

IT IS WELL ESTABLISHED THAT THE BIDDER MUST BEAR THE RESPONSIBILITY OF THE LATE ARRIVAL OF A TELEGRAPHIC BID MODIFICATION. IN THIS CONNECTION, IT IS PRESUMED THAT A MODIFICATION WAS NOT TIMELY FILED UNLESS IT IS DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT SUFFICIENT TIME REMAINED TO ACCOMPLISH DELIVERY BY "NORMAL TRANSMISSION PROCEDURE.' FPR SEC. 1-2.303-4. MOREOVER, EVEN WHEN THERE IS A SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY, SUCH DELAY, ALTHOUGH NOT ATTRIBUTABLE TO ANY ACTION OF THE BIDDER, MUST BE "ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE.' 39 COMP. GEN. 586, 589-590. IN 40 COMP. GEN. 290, 293-294, WE DISTINGUISHED BETWEEN NORMAL AND ABNORMAL DELAY AS FOLLOWS:

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. * * * DELIVERY IS ALWAYS CONDITIONED ON VOLUME AND OTHER CONDITIONS AT THE SENDING AND RECEIVING OFFICE. * * *

WE MAY AGREE THAT THE RECORD INDICATES THE TELEGRAMS TRANSMITTED FROM MOBILE AT 11:39 A.M. AND 12:07 P.M. WOULD HAVE BEEN DELIVERED AT THE HOSPITAL OFFICE SERVICES SECTION IN APPROXIMATELY 40 MINUTES BUT FOR THE CLOSING OF THE TUSKEGEE WESTERN UNION OFFICE FOR THE LUNCHEON PERIOD. HOWEVER, IT IS OUR OPINION THAT THE ACCEPTED PRACTICE OF CLOSING THE TUKEGEE TELEGRAPH OFFICE EACH DAY FOR THE LUNCHEON PERIOD IS A CONDITION OF THE SERVICE RENDERED BY WESTERN UNION WHICH SHOULD BE ANTICIPATED BY THE BIDDER. SEE WESTERN UNION TELEGRAPH COMPANY TARIFF, FEDERAL COMMUNICATIONS COMMISSION NO. 247, ORIGINAL, PAGE5, PARAGRAPH 8, WHICH RECOGNIZES THAT DURING THE SPREAD OF OPEN HOURS FOR EACH OFFICE INDICATED IN THE TARIFF, CERTAIN OFFICES ARE CLOSED FOR LUNCH. SEE ALSO 52 AM. JUR., TELEGRAPHS AND TELEPHONES, SECTION 18; 86 C.J.S., TELEGRAPHS AND TELEPHONES, RADIO AND TELEVISION, SECTIONS 67, 135. FURTHERMORE, WITH RESPECT TO THE LACK OF ACTUAL KNOWLEDGE OF THE PREVAILING CONDITIONS OF SERVICE AT THE TUSKEGEE OFFICE, IT HAS BEEN THE POSITION OF OUR OFFICE THAT THE BIDDER IS CHARGED WITH FORESEEABILITY AND MUST ANTICIPATE THE DELAYS INCIDENT TO A NORMAL CONDITION OF SERVICE. B-160600, MARCH 30, 1967; 46 COMP. GEN. 13; B 154451, JUNE 25, 1964; B-150705, FEBRUARY 28, 1963.

WE NOTE THAT EVEN WITH THE DELAY INCIDENT TO THE CLOSING OF THE TUSKEGEE BRANCH OFFICE, THE TELEGRAMS WERE RECEIVED IN THE OFFICE SERVICES SECTION OF THE HOSPITAL 15 AND 14 MINUTES, RESPECTIVELY, BEFORE BID OPENING. THIS RESPECT, IT IS ALLEGED BY THE ATTORNEY FOR JENSEN THAT NO ONE COULD ANTICIPATE THE CAUSES FOR THE DELAY WHICH PREVENTED THE ACTUAL PHYSICAL DELIVERY OF THE TELEGRAPHIC BID MODIFICATIONS, AND THAT "ANY GOVERNMENT INSTALLATION IN ANTICIPATION OF A BID OPENING * * * SHOULD ASCERTAIN THAT ITS TELEGRAPHIC TIE LINE EQUIPMENT WAS IN OPERATION AND PROPERLY ATTENDED.'

INITIALLY, THERE SEEMS TO BE SOME QUESTION AS TO WHAT IS THE NORMAL PROCEDURE FOR HANDLING OFFICIAL TELEGRAMS AT THE HOSPITAL. IN THIS REGARD, WE NOTE THAT THE CONTENTION OF MR. WILLIAMS--- THE OSTENSIBLE LOW BIDDER--- IN A LETTER WITH ENCLOSURES, DATED APRIL 17, 1967, TO OUR OFFICE, THAT DELIVERY COULD NOT HAVE BEEN EFFECTED BEFORE OPENING BY "NORMAL PROCEDURES" APPARENTLY HAS REFERENCE TO THE NORMAL MAIL HANDLING FACILITIES. ON THE RECORD, DELIVERY BY THIS METHOD WOULD HAVE REQUIRED THAT THE TELEGRAMS BE RECEIVED IN THE MAILROOM BEFORE 9:10 A.M. TO ACCOMPLISH TIMELY RECEIPT SINCE THE FINAL DELIVERY OF THE DAY DID NOT COMMENCE UNTIL 1:40 P.M., 10 MINUTES AFTER BID OPENING. THE ATTORNEY FOR JENSEN, ON THE OTHER HAND, MAINTAINS THAT THE "NORMAL PROCEDURE" FOR HANDLING OFFICIAL TELEGRAMS WOULD HAVE REQUIRED THAT THE CONTENTS OF THE TWO TELEGRAMS BE COMMUNICATED IMMEDIATELY TO THE CONTRACTING OFFICER.

WE HAVE BEEN INFORMALLY ADVISED BY THE CENTRAL OFFICE, VETERANS ADMINISTRATION, WASHINGTON, C., THAT NO FORMAL HANDLING PROCEDURES FOR TELEGRAMS HAVE BEEN ADOPTED AND THAT THE SELECTION OF A PARTICULAR PROCEDURE IS DETERMINED BY THE INDIVIDUAL INSTALLATION. INSOFAR AS THE TUSKEGEE HOSPITAL'S PROCEDURE IS CONCERNED, IT APPEARS THAT THE DETERMINATION OF WHETHER A TELEGRAPHIC MESSAGE IS TO BE COMMUNICATED IMMEDIATELY, OR DELIVERED BY ROUTINE MAIL, DEPENDS UPON THE CONTENTS OF THE MESSAGE, AND IT IS EXPECTED THAT "OFFICIAL MESSAGES" WILL RECEIVE EXPEDITED TREATMENT.

THE ROLE OF OUR OFFICE IN EVALUATING THE DELIVERY PROCEDURES ADOPTED BY THE GOVERNMENT PROCURING AGENCIES IN HANDLING TELEGRAMS WAS STATED IN 43 COMP. GEN. 317, 320, AS FOLLOWS:

* * * VARIOUS MEANS OF TRANSMITTAL ARE PRESENTLY BEING USED * * * AND IN THIS REGARD IT IS NOT THE FUNCTION OF THIS OFFICE TO SUGGEST WHICH OF THESE MEANS IS BEST SUITED FOR ANY PARTICULAR INSTALLATION. HOWEVER, THE GOVERNMENT MUST USE A FACILITY OF TRANSMITTAL WHICH WILL PERMIT A TELEGRAPHIC MODIFICATION TO BE DELIVERED WITHIN A REASONABLE TIME AFTER ITS RECEIPT AT AN INSTALLATION. * * *

IN THAT DECISION, WE AGREED WITH THE ADMINISTRATIVE DETERMINATION THAT THE DELIVERY OF A TELEGRAM VIA ROUTINE MAIL FACILITIES CONSTITUTED MISHANDLING PER SE ON THE PART OF THE GOVERNMENT. HERE THE RECORD SUPPORTS THE CONCLUSION THAT THE INFORMAL PROCEDURES UTILIZED AT THE HOSPITAL WOULD REQUIRE THAT A TELEGRAPHIC BID MODIFICATION BE TRANSMITTED IMMEDIATELY TO THE ADDRESSEE. INDEED, THE ACTING CHIEF OF THE OFFICE SERVICES SECTION DID IN FACT CALL THE SUPPLY DIVISION AT ABOUT 2:10 P.M. AND EFFECTED DELIVERY OF THE TELEGRAPHIC MODIFICATIONS APPROXIMATELY 5 MINUTES THEREAFTER. FURTHER, THERE IS NO REASON TO ASSUME THAT SIMILAR STEPS COULD NOT HAVE BEEN TAKEN AT THE TIME THE TELEGRAMS WERE RECEIVED IN THE OFFICE SERVICES SECTION AT 1:15 P.M. AND 1:16 P.M. HAD THE TELETYPE OPERATOR BEEN PRESENT, OR THAT DELIVERY COULD NOT HAVE BEEN ACCOMPLISHED WITHIN THE SAME TIME FRAME. SEE B-148370, APRIL 2, 1962; B-155247, DECEMBER 21, 1964; B-155061, OCTOBER 9, 1964. IN THIS REGARD, IT IS OUR OPINION THAT THE ACTION OF THE TELEPHONE OPERATOR IN MERELY ACKNOWLEDGING THE TELEGRAMS (ESTIMATED AT SOME TIME BETWEEN 1:25 P.M. AND 1:30 P.M.), RATHER THAN TELEPHONING THE CONTRACTING OFFICER AND ADVISING HIM OF THE RECEIPT OF THE TELEGRAMS, CONSTITUTED MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF FPR SEC. 1-2.303-2. ALTHOUGH THERE IS A SERIOUS QUESTION WHETHER IT MAY BE SAID THAT THE TELETYPE MACHINES WERE ADEQUATELY MONITORED BY IMPOSING AN ADDITIONAL RESPONSIBILITY ON AN EMPLOYEE WHO IS ALREADY CHARGED WITH A PRIMARY DUTY AS A TELEPHONE OPERATOR, WE RECOGNIZE THAT THE EXISTING PERSONNEL SITUATION AT THE HOSPITAL DID NOT PERMIT IN THIS INSTANCE FULL TIME COVERAGE OF THE TELETYPE MACHINE. HOWEVER, HAVING BEEN CHARGED WITH THAT ADDITIONAL RESPONSIBILITY OF CHECKING THE WESTERN UNION TELETYPE MACHINE, THE TELEPHONE OPERATOR SHOULD HAVE FOLLOWED THE SAME INFORMAL PROCEDURES ESTABLISHED FOR THE TREATMENT OF OFFICIAL TELEGRAMS, AND THE DEPARTURE FROM THAT PROCEDURE MAY NOT BE EXPLAINED EITHER BY THE NECESSITY OF REMAINING AT, OR RETURNING TO, HER SWITCHBOARD. SEE B 148264, APRIL 10, 1962, WHEREIN WE APPROVED AN ADMINISTRATIVE DETERMINATION THAT THE FAILURE TO NOTIFY THE CONTRACTING OFFICER BY TELEPHONE OF THE RECEIPT OF A TELEGRAPHIC MODIFICATION AT A BASE WHICH RECEIVES TWO OR THREE TELEGRAMS A DAY CONSTITUTED MISHANDLING. CF. B 144419, JANUARY 12, 1961.

ACCORDINGLY, THE TELEGRAPHIC MODIFICATIONS ARE PROPERLY FOR CONSIDERATION IN THE EVALUATION OF BIDS.