be" cause for rejection. However, we believe the clause would be more precise and more informative to bidders if it stated that failure to furnish the bond will require rejection of the bid in all cases except those listed in FPR 1-10.103-4 and may be cause for rejection even then.

It should be noted that the sections of the regulations mentioned above were promulgated by the Administrator of General Services in implementation of the Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 471 note; were published in the Federal Register; and may be considered to have the force and effect of law. It may also be noted that no such bid bond regulations were in effect at the time the Adelhardt case was decided.

It is clear that under the regulations applicable to the present invitation your failure to furnish a bid bond cannot be waived and requires rejection of your bid. Consequently, we are compelled to deny your protest.

[B-159529]

Bids-Late-Telegraphic Modifications-Normal v. Abnormal

Delay

A second telegraphic modification increasing a bid price, as did the first telegraphic modification, the bid remaining the low bid, which was delayed by a “jam up" of Western Union lines and delivered after bids were opened, the low bidder confirming the bid price, as increased by both telegrams, may not be considered under the rule that a bidder must anticipate business volume and bear the responsibility for late arrival when unable to establish the handling of a message was other than routine; therefore, the second increase in price disregarded, the confirmation of the bid price as increased by both telegrams may not be considered, and a mistake appearing to have been made by the bidder, section 1-2.406 of the Federal Procurement Regulations dealing with mistakes in bid should be followed and the bidder requested to verify the bid price as increased by the first telegraphic modification, and any allegation of error made by the bidder processed in accordance with the regulation. To R. M. Farrar, Veterans Administration, July 6, 1966:

Reference is made to your letter 086D of June 22, 1966, requesting a decision as to the disposition which should be made of the bid submitted by National Construction Company under invitation for bids for project 20-5255, specification 6611, as a result of the late receipt of a telegraphic bid modification.

The bidder submitted two telegraphic modifications of its $2,000,000 bid. The first, increasing the bid price by $135,497, was filed with Western Union, Boston, Massachusetts, at 11:53 a.m., e.d.t., on June 14, 1966, and was received by the Veterans Administration in Washington, D.C., well in advance of the 2:30 p.m., e.d.t., bid opening on

that date. The second, increasing the bid price by an additional $50,000, was filed with Western Union, Boston, at 12:59 p.m., e.d.t., and, although filed more than an hour and a half before bid opening, was not received in the Veterans Administration teletype room in Washington until 2:37 p.m., e.d.t., 7 minutes after the scheduled opening.

The bidder was notified by letter of the late receipt of the second telegram and was provided an opportunity to submit evidence establishing that it should be considered. Further, on the same day, by separate telegraphic communication, it was advised that its bid was somewhat lower than the others received and it was requested to verify its bid price. The latter request, although unstated in the communication, was based upon the fact that the low bid of $2,135,497, as modified by the first telegram, was 16 percent lower than the next low bid in the amount of $2,483,000.

The bidder explained that on the bid opening day it inquired of Western Union personnel in Boston how long it would take to send a telegram to the Veterans Administration in Washington; that it was advised that it would take less than an hour; and that relying upon that advice it sent the telegrams. The bidder stated further that a Western Union employee advised that service on the second telegram was abnormal and that the lines were "jammed up." Although the bidder refers to the advice received from the employee, the bidder has not furnished any substantiation from an authorized official of the telegraph company as required by the Federal Procurement Regulations (FPR) and as requested in the letter advising of the late receipt of the telegram. With respect to the request for confirmation of its bid price, the bidder, by separate letter, stated "we verify and confirm our bidding price in the amount of $2,185,497.00, which includes both telegraphic modifications."

The FPR (sections 1-2.305, 1-2.303-2 and 1-2.030-4) authorize consideration of a late telegraphic bid modification if the lateness was due to a delay by the telegraph company for which the bidder was not responsible and the bidder shows by clear and convincing evidence that the telegram was filed with the telegraph company in sufficient time to have been delivered by normal transmission procedure so as not to have been late.

In 39 Comp. Gen. 586 and 40 Comp. Gen. 290, it was held that the bidder must bear the responsibility of late arrival of a telegraphic modification. In such cases, the late modification is unacceptable unless the bidder sustains the burden of proving that the telegram was late because of unusual or abnormal delays in transmission. Under the principles established by these decisions, it is not enough for a bidder to show that the telegram could have been delivered

timely under favorable conditions. The bidder must go further and demonstrate that the arrival of the telegram was not due to normal, usual and foreseeable delays which might be expected or anticipated in the normal routine by which the telegraphic company accomplishes its work. In that connection, it was observed in the decision in 40 Comp. Gen. 290 that delivery by telegraph is dependent upon operating conditions and volume of business which varies from hourto-hour and day-to-day. In B-144206, December 29, 1960, referring to the foregoing decisions, it was stated:

We think these decisions clearly establish the principle that it is not enough to merely show that the telegraphic message was delayed beyond the "optimum" conditions the telegraph company may endeavor to maintain. Rather it is necessary that the bidder establish that the handling his message received was other than routine. * * *

It is represented that the second telegram was delayed because the lines were "jammed up." We take this to mean that the volume of business was so heavy that messages could not move with the ordinary dispatch. Therefore, even if this were substantiated by an official of the telegraph company, it remains, as indicated above, that the volume of business is a condition which the bidder must anticipate and for which it must bear the responsibility. Accordingly, in the circumstances, the second telegraphic bid modification should be disregarded.

Regarding the verification of the bid, it is clear that the bidder confirmed the price as increased by both telegrams. This confirmation, of course, cannot be considered as a confirmation of the price as increased by the first telegram only. Since, aside from the attempted $50,000 modification, procurement personnel seem to think that a mistake may have been made in the $2,135,497 bid, the FPR section 1-2.406 dealing with mistakes in bids should be followed and the bidder requested to verify its $2,135,497 bid. If any allegation of error is made it should be processed pursuant to the cited regulation.

The enclosures furnished our Office with the June 22 letter and subsequent correspondence are returned as requested.

[B-159429]

Military Personnel-Reserve Officers' Training Corps-Prior Military Training-Excused Service

A member of the Senior Reserve Officers' Training Corps (ROTC) awarded a scholarship under 10 U.S.C. 2107 who is excused by the appropriate Secretary pursuant to section 2108 (c) from a portion of the required 4-year course of military training for a previous period of equivalent training or instruction does not lose his right to continue to receive the financial assistance of the

scholarship, the law not excluding from enrollment in the Senior ROTC program students who have had some previous military training and authorizing the appropriate Secretary to excuse a student found qualified on the basis of previous training "from a portion of the prescribed" ROTC course, an excused student who otherwise completes the prescribed 4-year enrollment period is considered to have met his obligation as a member of the program and to be entitled to its benefits.

To the Secretary of Defense, July 7, 1966:

Reference is made to letter of June 11, 1966, from the Assistant Secretary of Defense (Comptroller), requesting a decision whether a member of the Reserve Officers' Training Corps awarded a scholarship under 10 U.S.C. 2107 may continue to receive the financial assistance of the scholarship if excused by the Secretary of the military department concerned from a portion of the prescribed course of military instruction under authority of the provisions of 10 U.S.C. 2108 (c). A discussion relating to the question is contained in Committee Action No. 378 of the Department of Defense Military Pay and Allowance Committee.

The Reserve Officers' Training Corps Vitalization Act of 1964, approved October 13, 1964, Public Law 88-647, 78 Stat. 1063, 10 U.S.C. 2031 note, provides for two different types of programs for the Senior ROTC training. It continued in effect (1) the prior program under which students receive advanced training in the last 2 years of college (see section 2104) along with a subsistence allowance of not less than $40 a month and not more than $50 a month for a maximum of 20 months, and (2) extended to all of the military departments the 4-year program with scholarship assistance established for the Navy in 1946 under which students receive a subsistence allowance of $50 a month as well as tuition, fees, books, and laboratory expenses estimated at $800 to $850 a year per student. See section 2107 and 42 Comp. Gen. 669, 671. Under both programs the students must become members of the armed services with an obligation to accept an appointment as a commissioned officer and serve on active duty in an armed service for a period prescribed by law. The basic purpose of the latter program is to obtain careertype officers with long-term service obligations, a minimum of 4 years on active duty.

Section 2108 (c) provides:

The Secretary of the military department concerned may excuse from a portion of the prescribed course of military instruction, including field training and practice cruises, any person found qualified on the basis of his previous education, military experience, or both.

The 1964 law prescribes certain conditions to appointment as a cadet or midshipman and receipt of scholarship financial assistance. One of those conditions is that his enrollment in the Senior ROTC

program must contemplate not less than 4 years of participation in the program. The question presented is whether a student who enrolls for a period of 4 years in the Senior ROTC program but who may be excused from part of the prescribed training because of previous equivalent training or instruction may be considered as meeting the requirement of the law for not less than 4 years participation in the program so as to be eligible for the benefits of the scholarship program.

It seems clear that the law does not exclude from enrollment in the Senior ROTC program students who have had some previous military training; subparagraph (c), section 2108, Title 10, U.S. Code, expressly grants authority to the appropriate Secretary to excuse a student found qualified on the basis of that training "from a portion of the prescribed" ROTC course. It seems to follow that a student so excused but who otherwise completes the prescribed 4-year enrollment period should be considered to have met his obligation as a member of the Senior ROTC program and be entitled to all the benefits flowing therefrom. It seems unlikely, in the absence of more explicit statutory provision, that the Congress intended a more restrictive interpretation in applying the condition with respect to participation in the Senior ROTC program to qualify for appointment as a cadet or midshipman and receive scholarship financial assistance. Hence, it is our view that a person awarded a scholarship under 10 U.S.C. 2107 would not lose his right to continue to receive the financial assistance of that scholarship merely because he is excused by the appropriate Secretary "from a portion of the prescribed course of military instruction" under authority of 10 U.S.C. 2108 (c).

[B-149487]

Pay-Retired-Disability-Members Who Served in Higher Rank Than at Retirement-Permanent v. Temporary Rank

The Court of Claims in Friestedt v. United States, 173 Ct. Cl. 447, having determined that the plantiff retired as an enlisted man for physical disability should have been advanced to the rank of first lieutenant, although he had held a "permanent" and not a "temporary" grade, and that he was entitled to the pay benefits of 10 U.S.C. 1372 (2) providing that any member of the Armed Forces retired for physical disability under section 1201 or 1204, or whose name is placed on the temporary disability retired list under section 1202 or 1205, is entitled to a grade equivalent to the "highest temporary grade or rank" in which satisfactory service was performed, as determined by the Secretary of the armed force from which retired, the rule of the case may be applied to all disability retirements under 10 U.S.C. 1372 (2) in view of the fact certiorari will not be requested, although the court disregarded the explicit language restricting the benefits of section 1372 (2) to the "highest temporary grade or rank."