A-89734, NOVEMBER 19, 1937, 17 COMP. GEN. 409

A-89734, NOVEMBER 19, 1937, 17 COMP. GEN. 409

CONTRACTS - SPECIFICATIONS - NECESSITY FOR DEFINITENESS, AND AWARDS BASED ON ADVERTISED REQUIREMENTS THE PUBLIC WELFARE, AS WELL AS THE PROTECTION OF PUBLIC AGENCIES AND OFFICERS AGAINST TEMPTATION AND OPPORTUNITY FOR FRAUD, UNFAIRNESS, AND FAVORITISM, REQUIRES THAT THE PURCHASE OF SUPPLIES, TC., BE ON THE BASIS OF DEFINITE SPECIFICATIONS, AND, THAT AWARDS BE MADE ON THE BASIS OF THE ADVERTISED SPECIFICATIONS AND NOT TO A BIDDER FAILING TO MEET THE SPECIFICATIONS MERELY BECAUSE HIS BID IS LOW AND IT IS ADMINISTRATIVELY THOUGHT THE ARTICLE OFFERED WOULD SUFFICE. WHERE THE ADVERTISED SPECIFICATIONS SET OUT A DEFINITE REQUIREMENT WHICH IT IS VARIOUSLY CONTENDED IS NOT MET BY THE ARTICLES OFFERED BY RESPECTIVE BIDDERS, AND IT IS DETERMINED THAT WHILE THE ARTICLE OFFERED BY THE LOW BIDDER DOES NOT MEET THE SPECIFICATIONS, IT MAY SUFFICE TO MEET THE ACTUAL NEED, IT IS FOR ADMINISTRATIVE CONSIDERATION WHETHER THE ARTICLE OF ANOTHER BIDDER DOES MEET THE SPECIFICATIONS AND, IF SO, WHETHER IT SHOULD BE ACCEPTED, OR WHETHER THERE SHOULD BE REJECTION OF ALL BIDS AND READVERTISEMENT OF THE SPECIFICATIONS SO REVISED AS TO MORE CLEARLY STATE THE ACTUAL NEED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONS, DISTRICT OF COLUMBIA, NOVEMBER 19, 1937:

THERE HAS BEEN RECEIVED YOUR REPORT OF NOVEMBER 3, 1937, IN CONNECTION WITH THE PROTEST OF THE BADGER METER MANUFACTURING CO. AGAINST ACCEPTANCE OF A BID LOWER THAN ITS BID UPON CERTAIN WATER METERS.

THE PROTEST APPEARS TO HAVE BEEN BASED UPON THAT PARAGRAPH 16 OF THE SPECIFICATIONS REQUIRED.

REGISTER BOXES.--- ALL REGISTER BOXES SHALL BE PROVIDED WITH A COVER OR LID, SAID COVER TO BE RECESSED AND LAP OVER THE BOX TO PREVENT THE ACCUMULATION OF DIRT ON THE GLASS. THE GLASS SHALL BE INSERTED IN THE BOX FROM THE INSIDE AND SECURELY HELD IN PLACE WITHOUT THE USE OF PUTTY OR PINS. ALL REGISTER BOXES SHALL BE PROVIDED WITH A WATER ESCAPE HOLE 1/8- INCH IN DIAMETER, SAID HOLE TO BE SO PLACED THAT THE CHANGE GEARS OR REGISTER MECHANISM CANNOT BE TAMPERED WITH. ALL REGISTER BOX SCREWS SHALL BE PROVIDED WITH A SEAL-WIRE HOLE, SAID HOLE TO BE NOT LESS THAN 3/32 INCH IN DIAMETER.

AND IT IS ASSERTED THAT THE WATER ESCAPE HOLE OF THE SAMPLE METER OF THE LOW BIDDER DOES NOT PREVENT TAMPERING.

YOU REPORT UPON THE PROTEST AS FOLLOWS:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 22, 1937, QUOTING A LETTER OF PROTEST RECEIVED BY YOU DATED OCTOBER 18, 1937, FROM THE BADGER METER MANUFACTURING COMPANY, 2357 NORTH 30TH STREET, MILWAUKEE, WISCONSIN, TO THE AWARD OF A CONTRACT TO THE LOWEST BIDDER FOR FURNISHING APPROXIMATELY 8,000 5/8-INCH WATER METERS UNDER PROPOSALS RECEIVED SEPTEMBER 27, 1937.

IN RESPONSE TO THESE PROPOSALS SEVEN BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS THE WORTHINGTON-GAMON METER COMPANY, WHICH WAS $5.70 EACH, OR A GROSS BID OF $45,600, WHEREAS THE SECOND LOW BIDDER, THE BADGER METER MANUFACTURING COMPANY, PROPOSED TO FURNISH METERS AT $6.14 EACH, OR $49,120, LESS 2 PERCENT--- 20 DAYS (NET $6.02 EACH, OR $48,137.60) OR $3,537.60 NET HIGHER THAN ITS COMPETITOR BASED UPON THE ESTIMATED QUANTITY. THE AWARD WAS MADE TO THE WORTHINGTON-GAMON METER COMPANY, OCTOBER 15, 1937, BUT THE EXECUTION OF A FORMAL CONTRACT AWAITS YOUR DECISION IN THIS MATTER.

THE CONTENTION OF THE PROTESTANT IS THAT THE LOW BID DOES NOT COMPLY WITH PARAGRAPH 12 OF THE INSTRUCTIONS TO BIDDERS AND PARAGRAPHS 16 AND 23 OF THE SPECIFICATIONS, NEITHER OF WHICH IS QUOTED IN FULL BY THE BADGER METER MANUFACTURING COMPANY. FOR EXAMPLE, PARAGRAPH 12 OF THE INSTRUCTIONS TO BIDDERS GIVES THE COMMISSIONERS THE RIGHT TO REJECT ANY AND ALL PROPOSALS OR PARTS OF PROPOSALS, AND TO WAIVE ANY INFORMALITY, DEFECT, OR IRREGULARITY IN THE PROPOSAL NOT IN VIOLATION OF LAW WHENEVER SUCH REJECTION OR WAIVER IS TO THE INTEREST OF THE DISTRICT OF COLUMBIA. HOWEVER, THE COMMISSIONERS FEEL THAT THE LOW BIDDER LITERALLY COMPLIED IN EVERY DETAIL WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THE PRINCIPAL CONTENTION OF THE BADGER METER MANUFACTURING COMPANY IS THAT THE METER OFFERED BY THE LOW BIDDER DOES NOT COMPLY WITH THE REQUIREMENTS OF PARAGRAPH 16 OF THE SPECIFICATIONS IN THAT THE CHANGE GEARS OR REGISTER MECHANISM CAN BE TAMPERED WITH. THE PROTESTANT CLAIMS THAT TESTS DISCLOSE "THAT BY INSERTING A WIRE OR SMALL SCREW DRIVER, ETC., THE CHANGE GEARS CAN BE TAMPERED WITH TO THE EXTENT OF MUTILATING THE SPEED OF THE CHANGE GEARS, AND FURTHER, THE CHANGE GEARS CAN BE FORCED OUT OF MESH, THEREBY CAUSING THE METER TO CEASE REGISTERING, * * * WHEREAS IT IS IMPOSSIBLE TO TAMPER WITH THE CHANGE GEARS OF THE BADGER METER BECAUSE OF THE PROTECTIVE PLATE.'

IN ITS MEMORANDUM OF OCTOBER 21, 1937, IT IS POINTED OUT THAT "THE SAMPLE METER WE SUBMITTED WITH OUR BID PROVIDES A 1/8-INCH WATER ESCAPE HOLE IN THE REGISTER BOX. IT WAS ALSO PLACED SO THAT IT WAS IMPOSSIBLE TO TAMPER WITH THE CHANGE GEAR OR REGISTRATION MECHANISM. TO COMPLY WITH THESE SPECIFICATIONS IT WAS NECESSARY FOR US TO CONSTRUCT OUR SAMPLE METER AS WE DID. HAD WE KNOWN THAT CERTAIN PARTS OF THESE SPECIFICATIONS WOULD NOT BE ENFORCED, WE COULD HAVE SUBMITTED A LOWER PRICE ON THESE METERS.' IT IS ALSO INDICATED THAT "AT A CONFERENCE WITH MR. CARL ROBBARD OF THE WATER DIVISION PUMPING STATION, BRYANT STREET, HE AGREED WITH US THAT YOU COULD TAMPER WITH THE CHANGE GEAR AND REGISTER MECHANISM OF THE LOW BIDDER'S METER, AND FURTHER STATED THAT IT WAS ALSO POSSIBLE TO TAMPER WITH THE GEARS OF THE REGISTERING MECHANISM OF OUR METER THROUGH THE 1/8-INCH WATER ESCAPE HOLE IN THE REGISTER BOX BY TAKING A SHARP INSTRUMENT AND A HAMMER AND DRIVING THE SHARP INSTRUMENT THROUGH THE PROTECTIVE PLATE. THIS METHOD WE DO NOT BELIEVE COULD BE CALLED TAMPERING, BUT WILFULLY DESTROYING.'

THE COMMISSIONERS DO NOT BELIEVE THAT THE LANGUAGE EMPLOYED HERE WAS INTENDED TO PREVENT THE WILFUL DESTRUCTION OF GOVERNMENTAL PROPERTY AS NO MEANS CAN BE DEVISED WHEREBY CRIMINALS CAN BE PREVENTED FROM WILFULLY DESTROYING PROPERTY. IT IS NECESSARY, OF COURSE, THAT THE REGISTER BOX HAVE AN ESCAPE HOLE, AND WHEN IT IS PLACED UNDER THE BOX, IT IS DIFFICULT, IF NOT IMPOSSIBLE, ESPECIALLY WHEN THE METER IS INSTALLED IN A TRENCH OR BELOW THE SURFACE, FOR ANYONE TO TAMPER WITH IT. OF COURSE WHEN THEY ARE INSTALLED IN A HOME OR A PUBLIC PLACE, THE FACT THAT THE HOLE IS PLACED UNDER THE REGISTER BOX MAKES IT DIFFICULT TO LOCATE AND TAMPER WITH. THIS WAS THE PURPOSE OF REQUIRING THAT THE HOLE BE PLACED WHERE IT WOULD BE INACCESSIBLE AND DIFFICULT TO REACH THE MECHANISM.

THE PARTICULAR LANGUAGE EMPLOYED IN THE SPECIFICATIONS IS TAKEN FROM PAGE 2 OF THE STANDARD SPECIFICATIONS FOR COLD WATER METERS ADOPTED BY THE AMERICAN WATER WORKS ASSOCIATION AND THE NEW ENGLAND WATER WORKS ASSOCIATION IN 1921. IT IS AS FOLLOWS:

"* * * ALL REGISTER BOXES SHALL BE PROVIDED WITH A WATER ESCAPE HOLE 1/8 INCH IN DIAMETER, SAID HOLE TO BE SO PLACED THAT THE CHANGE GEARS OR REGISTER MECHANISM CANNOT BE TAMPERED WITH. * * *"

THE PHRASE "TO TAMPER WITH" IS DEFINED BY WEBSTER AS,"TO MEDDLE, TO BUSY ONE'S SELF RASHLY; TO TRY TRIFLING OR FOOLISH EXPERIMENTS; TO MEDDLE SO FAR AS TO ALTER A THING; TO MAKE CHANGES WITHOUT RIGHT.'

THE DRAIN HOLE IN THE SAMPLE METER SUBMITTED BY THE BADGER METER MANUFACTURING COMPANY IS PLACED RELATIVELY IN THE SAME POSITION AS THAT OF THE METER OFFERED BY THE LOW BIDDER, WITH A THIN METAL GUARD WHICH WOULD NOT PREVENT TAMPERING WITH THE CHANGE GEARS AS A HOLE MAY BE PUNCHED THROUGH THE GUARD, IT MAY BE BENT AWAY FROM THE DRAIN HOLE, OR PACKED WITH COTTON OR OTHER SUBSTANCE, OR THE GEARS MAY BE REACHED WITH A BENT WIRE.

IT IS IMPORTANT TO NOTE THAT THE LITERATURE SUBMITTED BY THE BADGER METER MANUFACTURING COMPANY FAILS TO DISCLOSE ANY EVIDENCE OF THE REGISTER CONTAINING A METAL DISC. IN FACT IT IS THE SAME TYPE OF METER WHICH THE COMPANY HAS SUBMITTED IN COMPETITION WITH OTHER METERS FOR SIMILAR SERVICE IN THE PAST, AND IN THIS CONNECTION THE PROTESTANT HAS REFERRED TO THE FACT THAT IN SEPTEMBER 1931 THE COMPANY SUBMITTED A QUOTATION ON 6,000 WATER METERS ON WHICH THEY ALLEGED THAT THEY WERE LOW BIDDERS, AND THAT THE AWARD WAS "REJECTED ON THE GROUND THAT IT DID NOT COMPLY WITH THE SPECIFICATIONS IN THAT THE UPPER BEARING OF THE LOWER DRIVE SPINDLE IN THE INTERMEDIATE GEAR TRAIN WAS NOT BUSHED THROUGH THE ENTIRE LENGTH OF THE BEARING SURFACE.' THIS QUESTION WAS THE SUBJECT OF A LETTER TO YOU DATED NOVEMBER 17, 1931, WHICH RESULTED IN YOUR OFFICE ADVISING THE BADGER METER MANUFACTURING COMPANY, UNDER DATE OF NOVEMBER 20, 1931, THAT "NO FURTHER ACTION BY THIS OFFICE IN THE MATTER SEEMS REQUIRED," AND THE COMMISSIONERS WERE SO ADVISED UNDER THE SAME DATE (A-39342).

THE SPECIFICATIONS IN THIS PARTICULAR CASE ALSO CONTAINED THE LANGUAGE "ALL REGISTER COMPARTMENTS SHALL BE PROVIDED WITH WATER ESCAPE HOLES, 1/8 INCH IN DIAMETER, SO PLACED THAT THE CHANGE GEAR OR REGISTER MECHANISM CANNOT BE TAMPERED WITH.' THE BADGER MANUFACTURING COMPANY DID NOT DIRECT ITS PROTEST TO THIS LANGUAGE. THE SAME IS TRUE WITH RESPECT TO THE 900 WATER METERS DELIVERED UNDER PROPOSALS RECEIVED MAY 28, 1937, REFERRED TO BY THE PROTESTANT. ITS BID IN THAT CASE WAS REJECTED ON THE GROUND THAT THE FIRST AND SECOND GEARS OF THE INTERMEDIATE GEAR TRAIN HAD LESS THAN 3/16 OF AN INCH SPACE, OR WIDTH, AND THAT THE METER FAILED TO MEET THE REQUIREMENTS OF THE REGISTRY TESTS AT THE RATE OF FLOW OF TWO GALLONS PER MINUTE. HERE AGAIN NO POINT WAS RAISED BY THE BADGER METER MANUFACTURING COMPANY THAT A GUARD SHOULD BE PROVIDED TO PREVENT THE METER BOXES FROM BEING TAMPERED WITH.

MANY OF THE MUNICIPALITIES HAVE ACCEPTED WORTHINGTON-GAMON METERS AS COMPLYING WITH THIS ,TAMPER-PROOF" CLAUSE, AS HAS THE DISTRICT OF COLUMBIA ON ALL PREVIOUS OCCASIONS.

THE "TAMPER-PROOF" CHARACTERISTICS OF ANY METER ARE RELATIVE. IT IS OF COURSE ENTIRELY POSSIBLE, THOUGH NOT PROBABLE, THAT EITHER THE WORTHINGTON -GAMON OR THE BADGER COULD BE TAMPERED WITH TO THE EXTENT OF INJURY TO A PART. IN THE CASE OF THE BADGER METER THIS COULD BE EFFECTED BY FORCING INTO THE REGISTER BOX MELTED PARAFFIN, COTTON WASTE, SMALL BENT WIRES, OR BY FORCING A SHARP INSTRUMENT AGAINST THE BELL SO AS TO EITHER PENETRATE IT OR PUSH IT ASIDE. ON PRIOR BIDDING AND BEFORE THE BADGER METER MANUFACTURING COMPANY INCLUDED THE "PROTECTIVE BELL" THE ,TAMPER-PROOF" CHARACTERISTICS OF THE BADGER METER WERE NOT QUESTIONED BY THE DISTRICT.

THERE IS LITTLE PROBABILITY THAT THE DISTRICT OF COLUMBIA COULD JUSTIFY THE AWARD TO OTHER THAN THE LOW BIDDER EVEN IT IF UNDERTOOK TO DO SO, BASED ON THE TECHNICALITY AS TO "TAMPER-PROOF" CHARACTERISTICS. THE DISTRICT'S ENGINEER AIDE IN CHARGE OF METERS REPORTS THAT FROM HIS EXPERIENCE THERE IS NO RECORD OF TAMPERING WITH DISTRICT-OWNED METERS HAVING SIMILAR PHYSICAL CHARACTERISTICS TO THAT OFFERED BY THE WORTHINGTON -GAMON COMPANY. THE DISTRICT'S EXPERIENCE IN THIS REGARD COVERS APPROXIMATELY 86,000 METERS IN USE OVER A LONG PERIOD OF TIME.

WE THINK THAT THE FACTS IN THIS CASE ARE SOMEWHAT SIMILAR TO THOSE RELATED IN YOUR LETTER TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA UNDER DATE OF MAY 5, 1936 (A-70697). YOU WILL RECALL IN THAT CASE AWARD WAS MADE TO THE LOW BIDDER, FAIRBANKS, MORSE AND COMPANY, FOR THE FURNISHING OF TWO 25-MILLION-GALLON PUMPING UNITS TO THE BRYANT STREET PUMPING STATION. YOU CONCLUDED THAT "IF A PARTICULAR METER-DRIVEN CENTRIFUGAL PUMP WILL ANSWER THE NEEDS OF THE SERVICE BY SATISFACTORILY PERFORMING THE SERVICE REQUIRED, IT WOULD NOT APPEAR ESSENTIAL WHETHER THE METERS ARE OF THE WELDED STEEL OR CAST IRON OR BOX SECTION DESIGN, OR OF SOME OTHER DESIGN.'

WITHOUT ATTEMPTING TO PLACE AN ESTIMATE AS TO THE COST OF THE PARTICULAR GUARD DISCLOSED BY THE SAMPLE SUBMITTED, WE FEEL THAT IT IS SAFE TO SAY THAT ITS COST, OR ITS VALUE FOR THAT MATTER, WOULD NOT ANYWHERE NEAR JUSTIFY AN EXPENDITURE OF 32 CENTS EACH MORE THAN THE LOW BID PRICE, AND WHILE ITS BID MEETS ALL THE REQUIREMENTS OF THE SPECIFICATIONS, AS DID ALL OTHER BIDDERS, NONE OF WHICH EXCEPT THE BADGER METER MANUFACTURING COMPANY SUPPLYING THE GUARD, IN OUR OPINION THERE APPEARS TO BE NO LEGAL JUSTIFICATION FOR THE REJECTION OF THE LOW BID.

AS REQUESTED BY YOU, THERE ARE ENCLOSED THE ORIGINAL BID OF THE BADGER METER MANUFACTURING COMPANY, THE ORIGINAL BID OF THE WORTHINGTON-GAMON METER COMPANY, ACCOMPANIED BY SAMPLES OF METERS OF THE BADGER METER MANUFACTURING COMPANY AND THE WORTHINGTON-GAMON METER COMPANY, AND IN ORDER THAT A FORMAL CONTRACT MAY BE ENTERED INTO, IT IS REQUESTED THAT THE BIDS BE RETURNED WITH YOUR DECISION IN THE MATTER. THERE IS ALSO ENCLOSED A TRANSCRIPT OF A HEARING HELD IN THE MATTER ON OCTOBER 27, 1937, BEFORE A COMMITTEE OF DISTRICT OFFICIALS.

THE IMMEDIATE ISSUE IS UPON THE STIPULATION OF PARAGRAPH 16 OF THE SPECIFICATIONS THAT THE WATER-ESCAPE HOLE SHALL BE SO PLACED "THAT THE CHANGE GEARS OR REGISTER MECHANISM CANNOT BE TAMPERED WITH.' YOUR REPORT STATES THAT "THE LOW BIDDER LITERALLY COMPLIED IN EVERY DETAIL WITH THE REQUIREMENTS OF THE SPECIFICATIONS" AND ALSO THAT THE BID OF THE PROTESTANT "MEETS ALL THE REQUIREMENTS OF THE SPECIFICATIONS, AS DID ALL OTHER BIDDERS.' IT MAY BE OBSERVED HERE, HOWEVER, THAT BEYOND THE STIPULATION AS TO PLACING THE ESCAPE HOLE THAT IT SHALL BE "SO PLACED THAT THE CHANGE GEARS OR REGISTER MECHANISM CANNOT BE TAMPERED WITH" THERE IS NO DETAIL IN THE SPECIFICATION HOW OR WHERE THE HOLE SHALL BE PLACED TO ACCOMPLISH NONTAMPERING. IT LEAVES TO THE BIDDER HOW AND WHERE TO PLACE THE ESCAPE HOLE AND IN THAT CONNECTION IT IS PROPER TO QUOTE FROM WHAT WAS SAID BY THIS OFFICE IN 11 COMP. GEN. 220, AT PAGE 222:

ATTENTION IN THIS CONNECTION IS INVITED TO HANNAN V. BOARD OF EDUCATION, 30 L.R.A., N.S. 214, 231, WHERE THE COURT DECLARED INVALID A CONTRACT WHICH HAD BEEN LET ON THE BASIS OF THE PRINCIPAL DESIGNS BEING SUBMITTED BY THE BIDDERS. THE COURT IN THE COURSE OF ITS OPINION REFERRED TO A NUMBER OF CASES AND THERE HAS BEEN COLLECTED IN A NOTE TO THE DECISION A NUMBER OF OTHER CASES WHICH ARE GENERALLY TO THE EFFECT THAT UNDER A LAW REQUIRING ADVERTISEMENT FOR BIDS AND THE LETTING OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS, THERE MUST BE OFFERED TO ALL BIDDERS A DEFINITE BASIS FOR COMPETITION. THE COURT REFERRED TO A CITED WISCONSIN CASE WHERE THE SUPREME COURT OF THAT STATE HAD HELD THAT SUCH SPECIFICATIONS REQUIRED "A PLUNGER IN THE DARK" AND IT WAS STATED IN THE HANNAN CASE THE PUBLIC CONTRACTING MUST BE ON THE BASIS OF DEFINITE SPECIFICATIONS OFFERED TO ALL BIDDERS, THE CONTRACT AWARDED TO THE LOWEST RESPONSIBLE BIDDER, AND THAT: "* * * THE BOARD AND PUBLIC AGENCIES INTRUSTED WITH THE IMPORTANT AND RESPONSIBLE DUTIES OF SELECTING THE MATERIALS, DECIDING UPON THE CHARACTER OF THE WORK, LETTING THE CONTRACTS, AND SPENDING THIS MONEY, SHOULD BE SURROUNDED BY EVERY REASONABLE SAFEGUARD POSSIBLE. THIS SHOULD BE DONE NOT ONLY FOR THE SAFETY OF THE FUNDS AND THE PUBLIC WELFARE, BUT FOR THEIR OWN PROTECTION. THEY ARE SELDOM ENGAGED BECAUSE OF ANY PECULIAR TRAINING OR FITNESS THEY POSSESS OVER THAT COMMON TO ALL, AND THEIR COMPENSATION IS FREQUENTLY WHOLLY INADEQUATE TO COVER THE TIME AND ENERGY THEY ARE REQUIRED TO BRING TO THEIR LABOR. UNDER THESE CIRCUMSTANCES A REQUIREMENT THAT SHALL FIX IN ADVANCE UPON CERTAIN DEFINITE PLANS AND SPECIFICATIONS OR PROPOSITIONS TO BE CONSIDERED, AND THEN SUBMIT THOSE FOR OPEN COMPETITION UPON SEALED PROPOSALS, THE CONTRACT THEN TO BE AWARDED IN AN IMPARTIAL WAY TO THE LOWEST RESPONSIBLE BIDDER, WILL TEND TO REMOVE THEM FROM TEMPTATION AND OPPORTUNITY FOR FRAUD OR FAVORITISM. IT WILL DO MORE; IT WILL MATERIALLY ASSIST IN REMOVING SUSPICION OF UNFAIRNESS AND FAVORITISM, AND RELIEVE HONEST MEN UPON WHOM THESE DUTIES DEVOLVE OF UNJUST CHARGES.'

APPARENTLY IN THE INSTANT MATTER THE SPECIFICATION DRAWN FOR THE DISTRICT EXPRESSED NOTHING DEFINITE TO ACCOMPLISH THE NEED IN THIS PARTICULAR AND CAN BE SAID TO HAVE LEFT THE PLACING OF THE ESCAPE HOLE TO THE BIDDER. THE OUTCOME IS APPARENT--- A QUESTIONING BY THE BIDDERS OF WHAT IS ACCOMPLISHED BY THE RESPECTIVE METERS AS IN THE MATTER BEFORE US.

MERELY PUTTING THE ESCAPE HOLE IN THE REGISTER BOX SUGGESTS IN ITSELF IT WOULD EXPOSE TO TAMPERING THE CHANGE GEARS OR REGISTER MECHANISM; AND HENCE ONE WOULD ORDINARILY UNDERSTAND FROM THE REQUIREMENT OF PLACING THE ESCAPE HOLE, THAT SOMETHING ELSE MAY BE NECESSARY TO OVERCOME TAMPERING AND NOT MERELY FINDING A PLACE FOR THE ESCAPE HOLE. NECESSARILY THERE CANNOT BE CONTROLLING WHAT HAS BEEN DONE OR ACCEPTED IN THE PAST AS A COMPLIANCE WITH THE SPECIFICATION IN HERETOFORE PURCHASING METERS. LACK OF ENFORCEMENT OF A SPECIFICATION DOES NOT PRECLUDE INQUIRING INTO WHAT IS THE REQUIREMENT WHEN BROUGHT INTO QUESTION AND BE IN ISSUE AS IN THE INSTANT MATTER HERE. SO ALSO, THE REPORTED FACT THAT THERE HAVE BEEN NO KNOWN TAMPERINGS DOES NOT ARGUE FOR SUCH A METER AS IS NOW IN QUESTION BEING A COMPLIANCE WITH THE SPECIFICATION.

SIMPLY STATED, THE LOW BIDDER HAS AN ESCAPE HOLE IN THE REGISTER BOX WHICH IT IS QUESTIONED WILL REASONABLY OVERCOME TAMPERING--- AND THAT IT CAN BE TAMPERED WITH THROUGH INSERTING A WIRE OR SLIM SCREW DRIVER SO AS TO AFFECT THE SPEED OF THE CHANGE GEARS OR FORCE THEM OUT OF MESH SO AS TO CEASE REGISTERING. THIS SEEMS TO BE CONCEDED AND WE MAY PROPERLY CONCLUDE THAT THE PLACING OF THE ESCAPE HOLE ON THE LOW BIDDER'S METER DOES NOT IN ITSELF PRECLUDE TAMPERING.

THE PROTESTING BIDDER HAS SIMILARLY PLACED THE ESCAPE HOLE IN THE REGISTER BOX AND HAS WITHIN THE REGISTER BOX A METAL GUARD TO PREVENT TAMPERING THROUGH THE ESCAPE HOLE, BUT THIS IT IS CLAIMED CAN BE TAMPERED WITH BY TAKING A SHARP INSTRUMENT AND HAMMER AND DRIVING THE INSTRUMENT THROUGH THE PROTECTIVE PLATE; AND ALSO BESIDES PUNCHING THROUGH THAT GUARD IT CAN BE BENT AWAY FROM THE HOLE OR PACKED WITH COTTON OR OTHER SUBSTANCE, OR THE GEARS MAY BE REACHED WITH A BENT WIRE. THIS, HOWEVER, IS VERY PROPERLY CLASSED AS A DESTRUCTIVE ACT AND ONE CAN READILY SEE THAT IF THAT DESTRUCTIVE EXTREME IS NECESSARY TO ACCOMPLISH SO-CALLED TAMPERING THEN MORE IMMEDIATE TAMPERING ACTION ON THE METER COULD BE TAKEN BY DIRECTLY STRIKING THE METER AND BY FORCE DESTROY IT.IT CAN BE SEEN THAT THE STATED PARALLELS OF TAMPERING SOUGHT TO BE DRAWN ARE NOT EQUAL OR APPLICABLE AS TO THESE RESPECTIVE METERS.

IT MUST FOLLOW FROM WHAT HAS BEEN SAID THAT THE SPECIFICATION UPON WHICH BIDS WERE ASKED MUST BE CONSIDERED AS STATING A NEED, AND UNLESS THE INVOLVED SPECIFICATION IS TO BE CONSIDERED A MERE GESTURE, A CONTRACT WITH THE SO-CALLED LOW BIDDER WOULD NOT BE PROPER AND MUST BE QUESTIONED.

THE SAMPLE METER OF THE SECOND LOW BIDDER SUGGESTS FOR THE CONSIDERATION OF THE COMMISSIONERS WHETHER IT PRESENTS A METER WITH SUCH A SHOWING OF CONTROL OVER TAMPERING THAT ALL BIDS SHOULD BE REJECTED AND NEW BIDS ASKED ON A METER IN WHICH THE SPECIFICATIONS WILL BE ADMINISTRATIVELY CLEARLY STATED SETTING FORTH THE PLACE OF THE WATER ESCAPE HOLE AND THE PREVENTATIVES OF AMPERING; OR THAT THERE BE ACCEPTED THE SAID SECOND LOW BID; AS TO EITHER OF WHICH ACTION AFFIRMATIVELY TAKEN, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT.

YOU ARE ADVISED ACCORDINGLY. THERE ARE RETURNED THE ORIGINAL BID OF THE BADGER METER MANUFACTURING CO., THE ORIGINAL BID OF THE WORTHINGTON-GAMON METER CO., ACCOMPANIED BY SAMPLES OF METERS OF THE BADGER METER MANUFACTURING CO. AND THE WORTHINGTON-GAMON METER CO. ..END :