decision from his employing department on a classification appeal provided by Section 209-4 of this Part, is from an action lowering the grade or pay level of the employee's position, and the decision of the Canal Zone Board of Appeals raises the grade or pay level of the position, the effective date shall be retroactive to the date of the action which lowered the grade or pay level. However, when the decision of the Canal Zone Board of Appeals raises the grade or pay level of the position above the grade or pay level in effect immediately preceding the lowering thereof, retroactivity will apply only to the extent of restoration to the grade or pay level in effect immediately preceding the lowering thereof. Retroactivity may be based only on duties and responsibilities existing at the time of the lowering of the grade or pay level and not on the basis of duties and responsibilities later assigned. The right to a retroactive effective date under this subparagraph may be preserved in the discretion of the Canal Zone Board of Appeals upon a showing by the employee that reasons beyond his control prevented him from appealing within the thirty-day period referred to in this subparagraph and that he did appeal as promptly as circumstances permitted.

(2) When the appeal to the Canal Zone Board of Appeals is made within thirty (30) calendar days from the date of an employee's receipt of an adverse decision from his employing department on a classification appeal provided by Section 209.4 of this Part, no action lowering the grade or pay level of the employee's position is involved, and the decision of the Canal Zone Board of Appeals raises the grade or pay level of the position, the effective date shall be either the date of the decision of the Canal Zone Board of Appeals or the sixtieth (60) calendar day following the employee's receipt of the adverse decision from his employing department, whichever is earlier.

The legal basis upon which the proposed revision is predicated is the act of July 25, 1958, 72 Stat. 405, Public Law 85-550, as implemented by Executive Order No. 10794, December 10, 1958.

Section 3 (b) (2) of the act, 72 Stat. 406, is in part as follows:

(b) The President is authorized, to the extent he deems appropriate

(2) to extend to any employee, whether or not such employee is a citizen of the United States, the same rights and privileges as are provided by applicable laws and regulations for citizens of the United States employed in the competitive civil service of the Government of the United States.

Section 15 of the act, 72 Stat. 411, is as follows:

(a) The President shall coordinate the policies and activities of the respective departments under this Act.

(b) The President is authorized to promulgate such regulations as may be necessary and appropriate to carry out the provisions and accomplish the purposes of this Act.

(c) The President is authorized to delegate any authority vested in him by this Act and to provide for the redelegation of any such authority.

The President, under section 2(a) of Executive Order No. 10794, delegated to the Secretary of the Army-with power to redelegate— much of the authority granted him under the act, including authority:

(2) To extend to any employee, whether or not such employee is a citizen of the United States, the same rights and privileges as are provided by applicable laws and regulations for citizens of the United States employed in the com; petitive civil service of the Government of the United States.

(3) To coordinate the policies and activities of the respective departments under the act.

(4) To promulgate such regulations as may be necessary and appropriate to carry out the provisions and accomplish the purposes of the act.

The other sections of the act cited in your department's letter, namely, sections 5(c) and (10), 72 Stat. 407 and 408, lend support to the view expressed therein that the general intent of the legislation

is to provide substantially equal employment and compensation benefits to all employees in the Canal Zone regardless of citizenship and that, in general, the personnel system in the Canal Zone should, so far as practicable, be comparable with the Federal personnel system within the United States. To that end Executive Order No. 10794, in implementing the act, establishes (1) a Canal Zone merit system under which employees in the Canal Zone would be granted benefits similar to those of employees in the competitive civil service, and (2) the Canal Zone Board of Appeals which would hear and determine appeals involving position classification matters.

Paragraph (1) of subsection 209.5 (d) of the proposed regulations appears substantially the same as the applicable position classification appeal regulations of the Civil Service Commission, so far as concerns the effective date of a classification action correcting a previous erroneous downgrading. We see no legal basis for objecting to that paragraph.

On the other hand, we have serious doubt concerning the legal propriety of paragraph (2) of the proposed new subsection. Paragraph (2) establishes the effective date of an upward reclassification-in a case not involving the correction of an erroneous downgrading-as "either the date of the decision of the Canal Zone Board of Appeals or the sixtieth (60) calendar day following the employee's receipt of the adverse decision from his employing department, whichever is earlier." Under that provision, if the sixtieth day occurs prior to the decision of the Board of Appeals, retroactive payment would be required. Furthermore, if the decision of the Board of Appeals occurs prior to the expiration of the sixtieth calendar day but such decision is not communicated to the administrative office on the date that it is rendered, a retroactive payment also would be required. We have held—in a case not involving correction of an erroneous downgrading—that when a position classification is raised there is involved not only a change in the classification of the position but a promotion of the incumbent of the position if he otherwise is qualified for promotion to the higher grade and continues to occupy the position. However, in such a case the promotion may be made effective only from the date of administrative action. See 35 Comp. Gen. 153. While paragraph (1) of the proposed new subsection recognizes and applies the principle enunciated in 35 Comp. Gen. 153, this paragraph paragraph (2) of the proposed new subsectionappears to disregard that principle.

We appreciate that it may be difficult for the Canal Zone Board of Appeals to meet at sufficiently frequent intervals to provide an appeals service to Canal Zone employees comparable with that presently provided classification act employees by the Civil Service Com

mission, but we do not view such fact as sufficient to overcome the prohibition against retroactive promotions. Therefore, in the absence of an express statutory provision authorizing the retroactive promotion of Canal Zone employees under the circumstances described in paragraph (2) of the proposed revision of subsection 209.5(d)— and we know of no such statutory authority either in the act of July 25, 1958, or elsewhere we would not be warranted in approving the proposed revision embodied in that paragraph.

[B-141603]

Bids-Late-Telegraphic Modifications-Evidence of Delay Notification by telephone to a property disposal officer that a bid modification has been telegraphed in response to a surplus property invitation, which does not provide that bids by telephone are acceptable, is not a factor to be considered in determining whether a telegraphic modification which is not received until after the time set for opening is effective.

In the determination of whether a late telegraphic modification to a bid for the purchase of surplus Government property may be considered for award, the late bidder has the burden of proving that the message was deposited sufficiently ahead of bid opening time to allow for any normal, usual, or foreseeable delays and that the failure of the bid to arrive before bid opening time was due solely to abnormal delay in transmission; a mere showing that the message could have been transmitted and received under normal conditions is not sufficient proof.

A telegraphic bid modification which was deposited with the telegraph company 30 minutes prior to the time set for bid opening, but which was not received at the administrative office until 35 minutes later, is not considered to have been delivered on time in view of the evidence which indicates that normal transmission time between the transmitting office and receiving telegraph office is approximately 30 minutes and that an additional 5 minutes is required to forward the message from there to the Government installation, and this evidence is not overcome by a showing that it was normal procedure for the telegraph office to transmit messages immediately or in any period less than the 15 minutes the message was delayed.

To the Chemical Service Corporation, February 12, 1960:

Reference is made to your letter dated December 30, 1959, protesting against the refusal of the Department of the Army to consider a telegraphic modification to your bid under IFB No. 03-029-S-60-8. The invitation in question requested bids on various items of surplus property to be sold by the Property Disposal Officer, Pine Bluff Arsenal, Arkansas. Bids were to be opened at 10:00 A.M., Central Standard Time, on November 12, 1959, and paragraph 3(d) of the Additional Sale Terms and Conditions provided as follows:

d. MODIFICATIONS TO BIDS: If received by the Contracting Officer prior to time and date of bid opening, modifications to bids shall be considered. Such modifications shall be made by letter or telegraphic message and shall be addressed and identified by IFB No., same as original bid. Telegraphic modifications shall not divulge the amount of the original bid, nor the amount of the revised bid after modification. Modifications made by letter shall be sealed.

The record before us indicates that at about 9:10 A.M., Central Standard Time, your Mr. Stebel contacted the Property Disposal Officer by telephone and asked if your bid might be modified by telegraph. Mr. Stebel was advised that telegraphic bid modifications were permissible if received in the office of the Property Disposal Officer no later than 10:00 A.M., Central Standard Time, and pointed out that it was then only about 40 minutes until that time. No modification to your bid was received by the Property Disposal Officer prior to 10:00 A.M., and opening of the bids disclosed that Iritox Chemical Company was high bidder on Item 3 (58,220 pounds of powdered titanium) with a bid of $0.16 per pound, while your bid, at $0.1226 per pound, was second high on this Item.

At 11:37 A.M., Central Standard Time, on the date of bid opening, the Property Disposal Officer received a telephone call from the Mail and Records Section of the Arsenal advising that telegram had been received from your company which asked modification of your bid on Item 3 by increasing the unit bid price 9 cents per pound. It does not appear to be disputed that this message was given to the telegraph company in New York City by your company at 10:30 A.M., Eastern Standard Time, on November 12 and arrived at the message center at Pine Bluff Arsenal at 10:05 A.M., Central Standard Time. Actual transmission time between these points was therefore 35 minutes.

On November 13 the Property Disposal Officer advised you that your modification was received at the Arsenal after the time specified for bid opening and, therefore, would not be considered for award unless clear and convincing evidence was submitted, including substantiation by an authorized official of the telegraph company, showing that the modification was filed with the telegraph company in sufficient time to have been delivered at the Arsenal on time by normal transmission procedure, and that late receipt was due solely to delay in transmission for which you were not responsible. In response to this request, you advised the Property Disposal Officer on November 19 that the telegraph company had received your bid modification at 10:30 A.M. on November 12 but did not transmit it until 10:45, and that the modification would have arrived before bid opening if it had not been so delayed by the telegraph company.

By letter dated November 18 (apparently received November 19), the Iritox Company forwarded a copy of a telegram from the Manager of the New York City Customer Service Division of the telegraph company which stated that normal transmission time from New York City to Pine Bluff was about one-half hour, and that time required for local delivery must be added thereto. Also on November 19 the Property Disposal Officer notified you that the transmission time on five telegrams received by the Arsenal between November 12 and 19

had been 35, 40, 52, 25, and 35 minutes, and that the Pine Bluff office of the telegraph company had advised that normal transmission time from New York City was approximately 30 minutes. This message also advised you that unless the Customer Service Division of the telegraph company established a normal transmission time and advised that transmission of your bid modification was delayed, the modification could not be considered. On November 20, one O. W. Boehme (whose position with the telegraph company does not appear to have been established) advised the Property Disposal Officer by telegram that your bid modification was filed with the telegraph company at 10:30 A.M. and transmitted by the New York office at 10:45 A.M. On that same date a telegram from John H. Waters, General Attorney for the telegraph company, confirmed Mr. Boehme's advice and stated that the delay in transmission of your bid modification "was approximately 15 minutes longer than normal time for transmission." No further evidence appears to have been submitted in your behalf.

On November 20, in an effort to clear up the apparent discrepancy between Mr. Waters' advice and the information from the New York City Customer Service Division, the Property Disposal Officer called Mr. Waters' office and, in Mr. Waters' absence, was referred to a Mr. O'Connell in Mr. Waters' office as the sender of the telegram over Mr. Waters' signature. Upon being advised of the advice from the Customer Service Division, Mr. O'Connell stated that the manager of that division was in a position to know about the subject matter of its telegram and that he [Mr. O'Connell] could only confirm the fact that the delay between time of filing and time of transmission was 15 minutes. On the question of normal transmission time, he referred the Property Disposal Officer to Mr. Malnatti of the company's Operations Office, who also advised that the normal transmission time required from New York City to Pine Bluff was about 30 minutes.

There would appear to be no dispute that normal transmission time from the Pine Bluff office of the telegraph company to the Arsenal Message Center is about 5 minutes, and the Property Disposal Officer had made a Finding of Fact that at least 20 minutes, and normally 25 to 30 minutes are required to process a telegram at the Arsenal Message Center and transmit it to the office of the Property Disposal Officer.

Based upon this record, the Department of the Army has refused to consider your bid, as amended by your telegram of November 12, for award. Your protest against such refusal appears to be based upon the following grounds:

1. You notified the Property Disposal Officer prior to bid opening time that you were transmitting a telegraphic modification to your bid.