gram received under an invitation for bids opened on January 7, 1958, from a bidder located in New Orleans, Louisiana. In that case, the telegram was filed in the New Orleans office of Western Union at 12:35 o'clock P. M. CST and was received in the Philadelphia Quartermaster Depot at 1:51 o'clock P. M. EST, an elapsed transmission time of 16 minutes. In view thereof, and since the bids of Bay Garment Corporation and the J. H. Rutter-Rex Manufacturing Company would have been received prior to the bid opening if they had been transmitted to the Quartermaster Depot in 23 minutes and 32 minutes, respectively, from the time they were filed in the office of Western Union in New Orleans, the Contracting Officer determined that the bids were received after time of bid opening because of delay in transmission and through no fault of the bidders. Therefore, the three telegraphic bids were accepted for consideration on January 10, 1958. The bid of Linwood Outerwear, Inc., is not in line for award so that the protest against consideration of this bid may be disregarded. On January 13, 1958, a telegram was received from Reliance Manufacturing Company, New York, New York, protesting the acceptance of the late bids. Bid analysis and evaluation furnished by the Cost and Price Analysis Section on January 15, 1958, established that pricewise, J. H. Rutter-Rex Manufacturing Company is in line for award of 620,620 units at a total contract price of $1,431,991.40, Bay Garment Corporation is in line for award of 200,000 units at a total contract price of $473,000, and Reliance Manufacturing Company is in line for award of the balance of 262,440 units at a total contract price of $623,557.44. If the late telegraphic bids are not considered, Reliance Manufacturing Company will be in line, provided it establishes capacity, for the entire award at a gross cost of approximately $2,574,000. On January 24, 1958, there was received an affidavit from J. H. Rutter, president of both J. H. Rutter-Rex Manufacturing Company, Inc., and Bay Garment Corporation, dated January 22, 1958. Mr. Rutter avers that on the basis of information furnished to him by representatives of Western Union he had reason to believe that the telegrams would be received at the Philadelphia Quartermaster Depot prior to 2:00 o'clock P. M. EST. There was attached to the affidavit a statement by the District Manager, Western Union, New Orleans, Louisiana, dated January 22, 1958, that the transmission was completed to Philadelphia at 12:34 o'clock P. M. CST of the J. H. RutterRex Manufacturing Company message and at 12:44 o'clock P. M. CST of the Bay Garment Corporation message. It was stated that no time of delivery is guaranteed by Western Union and that delivery is dependent on "operating condition on the Quartermaster Depot tieline and our Philadelphia Central Office." In this respect the messages were marked for delivery by 1:45 o'clock P. M. EST.

A letter dated January 24, 1958, from the Manager, Customer Service, Western Union, Philadelphia, Pennsylvania, corroborates the statement by the District Manager, New Orleans, Louisiana, that the messages of J. H. Rutter-Rex Mauufacturing Company and Bay Garment Corporation were filed in the New Orleans office at 12:28 o'clock P. M. CST and 12: 37 o'clock P. M. CST, respectively, and that transmission was completed to the Central Office of Western Union, Philadelphia, Pennsylvania, at 12:34 o'clock P. M. CST and 12:44 o'clock P. M. CST, respectively.

The protest of the Reliance Manufacturing Company is on the basis that: (a) The telegraphic bid clause provides by its terms that such bids must be received in the office prior to the time specified for the opening of bids, (b) If the late bid clause of Standard Forms 30 and 33 is applicable, it permits consideration of late bids only when "failure to arrive on time was due solely to delay in the mails." [Italics supplied.] (c) In any event the facts of this case do not support a conclusion that the telegrams exceeded normal transmission time, and in the absence of proof of unusual delay the late telegraphic bids cannot be considered.

We have in a number of cases held that telegraphic modifications of bids received after bid opening could properly be considered where it clearly appeared that the telegrams were filed a sufficient time before the scheduled opening to be delivered on time in the normal course of the telegraph company's business; that the delay was solely the fault of the telegraph company and without any fault or negligence on the part of the bidder; and that there was no possibility of prior knowledge by the bidder of other bids. In most, if not all, of those cases the pertinent invitation or instructions stipulated that telegraphic modifications of bids would be considered if received prior to the time set for bid opening. That stipulation was not considered as tantamount to an express prohibition against the consideration of such telegraphic modifications if not received on time, where the delay was not chargeable to the bidder.

The specific authorization of telegraphic bids in the present invitation, however, is most explicit in stating that "telegraphic bids must be received in this Office prior to the time specified for the opening of bids." [Italics supplied.] Since the authorization of the submission of telegraphic bids is in itself an exception to the general provision of paragraph 2 that telegraphic bids will not be considered unless authorized by the invitation, we feel that the terms of the authorization should be strictly construed, and under a strict construction there can be little room for doubt that the risk of nondelivery on time was imposed on the bidders who chose to use telegraphic rather than postal facilities for the submission of their bids. In these circumstances, and considering that the three late bids

gram received under an invitation for bids opened on January 7, 1958, from a bidder located in New Orleans, Louisiana. In that case, the telegram was filed in the New Orleans office of Western Union at 12:35 o'clock P. M. CST and was received in the Philadelphia Quartermaster Depot at 1:51 o'clock P. M. EST, an elapsed transmission time of 16 minutes. In view thereof, and since the bids of Bay Garment Corporation and the J. H. Rutter-Rex Manufacturing Company would have been received prior to the bid opening if they had been transmitted to the Quartermaster Depot in 23 minutes and 32 minutes, respectively, from the time they were filed in the office of Western Union in New Orleans, the Contracting Officer determined that the bids were received after time of bid opening because of delay in transmission and through no fault of the bidders. Therefore, the three telegraphic bids were accepted for consideration on January 10, 1958. The bid of Linwood Outerwear, Inc., is not in line for award so that the protest against consideration of this bid may be disregarded. On January 13, 1958, a telegram was received from Reliance Manufacturing Company, New York, New York, protesting the acceptance of the late bids. Bid analysis and evaluation furnished by the Cost and Price Analysis Section on January 15, 1958, established that pricewise, J. H. Rutter-Rex Manufacturing Company is in line for award of 620,620 units at a total contract price of $1,431,991.40, Bay Garment Corporation is in line for award of 200,000 units at a total contract price of $473,000, and Reliance Manufacturing Company is in line for award of the balance of 262,440 units at a total contract price of $623,557.44. If the late telegraphic bids are not considered, Reliance Manufacturing Company will be in line, provided it establishes capacity, for the entire award at a gross cost of approximately $2,574,000. On January 24, 1958, there was received an affidavit from J. H. Rutter, president of both J. H. Rutter-Rex Manufacturing Company, Inc., and Bay Garment Corporation, dated January 22, 1958. Mr. Rutter avers that on the basis of information furnished to him by representatives of Western Union he had reason to believe that the telegrams would be received at the Philadelphia Quartermaster Depot prior to 2:00 o'clock P. M. EST. There was attached to the affidavit a statement by the District Manager, Western Union, New Orleans, Louisiana, dated January 22, 1958, that the transmission was completed to Philadelphia at 12: 34 o'clock P. M. CST of the J. H. RutterRex Manufacturing Company message and at 12:44 o'clock P. M. CST of the Bay Garment Corporation message. It was stated that no time of delivery is guaranteed by Western Union and that delivery is dependent on "operating condition on the Quartermaster Depot tieline and our Philadelphia Central Office." In this respect the messages were marked for delivery by 1:45 o'clock P. M. EST.

quantity of the same item to be purchased overseas at far lower prices and to be brought into the United States.

The request for permission to withdraw the bid on item 1 was referred to higher authority for consideration in accordance with applicable Army directives and, upon its review of the case, the Department of the Army decided that such request should be denied. Your bid was accepted by notice of award dated December 27, 1957, showing a net balance of $6,410.01 as being due the Government after deduction of your bid deposit of $1,749.75 from the total sale price of $8,159.76. In the meantime, the Department had advised the Honorable William F. Knowland, United States Senator, in a letter dated December 19, 1957, that the contracting officer was being informed that the contract for item 1 of Invitation No. AVI-04-197S-58-8 should be awarded to your company.

It was stated in the letter to Senator Knowland that there is no evidence that would indicate that it would be in the Government's best interests to reject all bids and readvertise the property concerned. The opinion was expressed that to allow a bidder relief because of a change in market conditions, when occasioned by an action over which the Army has no control, would establish a precedent which could be detrimental to future disposals of Government property. Furthermore, it was pointed out that, as required by section 402 of the Federal Property and Administrative Services Act of 1949, 40 U. S. C. 512, the authority to import foreign excess property must be obtained by the buyer from the Department of Agriculture in the case of any agricultural commodity, food, cotton or woolen goods, or from the Department of Commerce in the case of any other property; and that the Department of the Army is not involved and in no way responsible for the consummation of such transactions.

With respect to the information furnished to Senator Knowland, it was contended in your letter of January 2, 1958, that a withdrawal from sale of the 1,619 steel folding cots would definitely be in the interest of the Government because, if your request for relief should be denied, the Government can expect to receive generally and substantially lower returns for a great variety of items offered for disposal as surplus. However, the Department of the Army has not changed its position in this matter and it appears that the Department was correct in assuming that the granting of permission to withdraw the bid in this case solely on account of changed market conditions would not be in the best interests of the United States, particularly in view of the obvious purposes of the general rule that proposals submitted in response to a Government advertisement for bids may not be withdrawn after opening, even before award is made, and the bidder is bound to accept the award. In the present case,

the General Sale Terms and Conditions provide that the bidder agrees that "the bid will not be withdrawn within the time specified for acceptance after the opening of bids (60 calendar days if no period be specified by the bidder), and will during that time remain firm and irrevocable." Your bid did not specify a time for acceptance and the award was made within 60 days after opening of bids.

With reference to your further contention that the Department of the Army could not properly evade responsibility for the importation of the surplus Army cots from Japan, since the Department of Commerce, which allowed the re-entry of the cots, "is but another branch of the same Government," it is well settled that the United States as a contractor "cannot be held liable for the obstruction to the performance of the particular contract resulting from its public and general acts as a sovereign." Horowitz v. United States, 267 U. S. 458; Maxwell v. United States, 3 F. 2d 906, affirmed 271 U. S. 647. We are of the opinion that the acceptance of your bid on item 1 of Invitation No. AVI-04-197-S-58-8 resulted in a binding contract and you are advised that we have consistently followed the rule that agents and officers of the Government have no authority to give away the money or property of the United States, or to waive contractual rights which have accrued to the United States, or to modify existing contracts without a compensating benefit to the Government. See United States v. American Sales Company, 27 F. 2d 389, affirmed 32 F. 2d 141, certiorari denied, 280 U. S. 574; Pacific Hardware Company v. United States, 49 C. Cls. 327; and Bausch & Lomb Optical Co. v. United States, 78 C. Cls. 584.

Accordingly, in the absence of an election on your part to pay the balance of the sale price and remove the property within a reasonable time, it is apparent that the Department of the Army will have no alternative but to pursue the remedies provided in paragraphs 4, 5 and 7 of the General Sale Terms and Conditions for breach of the contract of sale.

[B-134866]

Transportation-Freight Forwarders-Free or Reduced Rates for Services

The acceptance by a Government agency as a shipper of the services of foreign freight forwarders free of charge or at reduced rates on the basis that reimbursement for such services would be included in the ocean freight brokerage fee paid by the water carrier to the forwarder for securing cargo for the ship constitutes a discriminatory act under section 16 of the Shipping Act, 1916, 46 U. S. C. 815, which makes it unlawful for forwarders to obtain by any unfair device or means transportation by water at less than the rates or charges otherwise applicable; therefore, if an agency determines that foreign freight services are needed, they must be paid for from agency funds.