A-32080, OCTOBER 13, 1930, 10 COMP. GEN. 160

A-32080: Oct 13, 1930

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ADVERTISING - BIDS - SPECIFICATIONS SECTION 3709 OF THE REVISED STATUTES REQUIRES THAT THE NEEDS OF THE GOVERNMENT BE STATED IN SPECIFICATIONS SO THAT THERE MAY BE FULL AND FREE COMPETITION THEREON AND THERE IS NO AUTHORITY FOR CONTRACTS ENTERED INTO WITH A HIGHER BIDDER MEETING THE SPECIFICATIONS WHEN THE ACTUAL NEEDS OF THE GOVERNMENT HAVE NOT BEEN STATED IN THE SPECIFICATIONS AND LOW BIDDER'S OFFERING WOULD HAVE MET THE NEEDS HAD THEY BEEN PROPERLY STATED IN THE SPECIFICATIONS. WHICH IS QUOTED IN 7 COMP. " AND THAT PROPOSALS WERE TO BE "BASED UPON EQUIPMENT DESCRIBED IN SPECIFICATIONS INCLUDING ONE (1) EXTRA GRASS CUTTING UNIT FOR LAWN MOWER AS A SEPARATE PART.'. THE AIR CORPS SPECIFICATION REFERRED TO IN THE ADVERTISEMENT IS AS FOLLOWS: CHART SPECIFICATIONS FOR TRACTOR-DRAWN FIVE-SECTION LAWN MOWER CIRCULAR 30316.

A-32080, OCTOBER 13, 1930, 10 COMP. GEN. 160

ADVERTISING - BIDS - SPECIFICATIONS SECTION 3709 OF THE REVISED STATUTES REQUIRES THAT THE NEEDS OF THE GOVERNMENT BE STATED IN SPECIFICATIONS SO THAT THERE MAY BE FULL AND FREE COMPETITION THEREON AND THERE IS NO AUTHORITY FOR CONTRACTS ENTERED INTO WITH A HIGHER BIDDER MEETING THE SPECIFICATIONS WHEN THE ACTUAL NEEDS OF THE GOVERNMENT HAVE NOT BEEN STATED IN THE SPECIFICATIONS AND LOW BIDDER'S OFFERING WOULD HAVE MET THE NEEDS HAD THEY BEEN PROPERLY STATED IN THE SPECIFICATIONS. IN SUCH CASES, THERE SHOULD BE READVERTISEMENT IN ACCORDANCE WITH THE LAW.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, OCTOBER 13, 1930:

THERE HAS BEEN CONSIDERED YOUR REPORT OF SEPTEMBER 9, 1930, AND INCLOSURES, CONCERNING A PROTEST OF THE PENNSYLVANIA LAWN MOWER WORKS, PHILADELPHIA, PA., AGAINST THE REJECTION OF ITS LOW PROPOSAL OF $952.75 EACH, IN FAVOR OF A HIGHER PROPOSAL OF THE WORTHINGTON MOWER CO. IN THE SUM OF $966 EACH, FOR DELIVERING TO THE UNITED STATES 15 TRACTOR DRAWN LAWN MOWERS FOR USE IN MOWING AVIATION FIELDS.

THE RECORDS DISCLOSE THAT THE CONTRACTING OFFICER AT WRIGHT FIELD, DAYTON, OHIO, BY THE USE OF STANDARD FORM NO. 33, STANDARD GOVERNMENT SHORT FORM OF SUPPLY CONTRACT, WHICH IS QUOTED IN 7 COMP. GEN. 144,146, ADVERTISED MARCH 19, 1930, FOR PROPOSALS TO BE OPENED APRIL 15, 1930, FOR FURNISHING TRACTOR-DRAWN LAWN MOWERS IN LOTS OF 1 TO 18, AS MIGHT BE ACCEPTED. THE ADVERTISEMENT NOTIFIED PROSPECTIVE CONTRACTORS THAT THE TRACTOR-DRAWN LAWN MOWERS SHOULD BE "IN ACCORDANCE WITH AIR CORPS SPECIFICATIONS ENTITLED "SPECIFICATIONS FOR TRACTOR-DRAWN FIVE-SECTION LAWN MOWER.' DATED MARCH 7, 1930," AND THAT PROPOSALS WERE TO BE "BASED UPON EQUIPMENT DESCRIBED IN SPECIFICATIONS INCLUDING ONE (1) EXTRA GRASS CUTTING UNIT FOR LAWN MOWER AS A SEPARATE PART.' THE AIR CORPS SPECIFICATION REFERRED TO IN THE ADVERTISEMENT IS AS FOLLOWS:

CHART SPECIFICATIONS FOR TRACTOR-DRAWN FIVE-SECTION LAWN MOWER

CIRCULAR 30316--- WORTHINGTON LAWN MOWER AND TRACTOR OR EQUIVALENT

1. ENGINE.--- APPROX. 25 H.P., S.A.E., 4 CYLINDERS, PISTON DISPLACEMENT APPROX. 200 CU. IN.

2. FUEL.--- GASOLINE. TANK CAPACITY TEN GALLONS.

3. COOLING SYSTEM.--- FAN AND WATER PUMP CIRCULATION.

4. CLUTCH.--- SINGLE PLATE.

5. TRANSMISSION.--- SELECTIVE TYPE, THREE SPEEDS FORWARD, ONE REVERSE.

6. DRIVE.--- THROUGH REDUCTION GEAR ON MAIN DRIVE SHAFT. GEARS TO BE STEEL, MACHINE CUT, OPERATING ON BALL AND ROLLER BEARING.

7. SELF STARTER.--- TO BE INCLUDED.

8. DRAW BAR.--- SPRING TYPE.

9. BRAKES.--- FOOT AND HAND EMERGENCY ON BOTH REAR WHEELS.

10. WHEELS.--- 27 INCHES DIAMETER, FLANGE STEEL RIMS.

11. TREAD.--REAR WHEELS 10 INCHES. FRONT WHEELS 4 INCHES. FITTED WITH CALKS OR SOD PUNCHES.

12. TURNING RADIUS.--- NOT TO EXCEED 6 FEET INSIDE DIAMETER CIRCLE. STEER BY FRONT WHEELS.

13. SPEED.--- 8 TO 10 MILES PER HOUR AT 1,350 REVOLUTIONS PER MINUTE MAXIMUM 15 MILES PER HOUR AT 2,200 REVOLUTIONS PER MINUTE.

14. WEIGHT.--- NOT TO EXCEED 1,200 POUNDS.

15. WHEEL BASE.--- 61 INCHES.

16. WIDTH.--- 68 INCHES. FIVE-UNIT GANG LAWN MOWER

1. SWATH.--- NOT LESS THAN ELEVEN FEET.

2. ARRANGEMENT.--- THE FIVE CUTTING UNITS TO BE ARRANGED IN THREE ROWS, IN THE FOLLOWING ORDER, ONE, TWO, AND TWO, WITH COMPLETE FLEXIBILITY AT EACH OF THE THREE JOINTS.

3. FRAMES.--- TO BE DESIGNED SO THAT THE LAST TWO UNITS AND FRAME MAY BE REMOVED READILY, AND THE REMAINING THREE UNITS AND FRAMES TO BE USED AS A TRIPLE GANG MOWER ONLY. THE FRAMES OF THE 5-UNIT GANG MOWER TO BE PROVIDED WITH MEANS FOR LIFTING THE REAR OF EACH INDIVIDUAL CUTTING UNIT NOT LESS THAN FOUR INCHES FROM THE GROUND.

4. DRIVE.--- SEPARATE CHAIN OF GEARS FOR EACH GROUND WHEEL.

5. GEARS.--- MACHINE CUT.

6. CLUTCH.--- SEPARATE CLUTCHES FOR THROWING REVOLVING KNIVES IN AND OUT OF GEAR.

7. REVOLVING KNIVES.--- SUPPORTED BY FIVE STEEL DISC SPIDERS, ALL PARTS BEING ELECTRICALLY WELDED TOGETHER.

8. BED KNIVES.--- STEEL LIP EDGE. ADJUSTABLE BY FINGER MEANS.

9. ROLLER.--- STEEL. STEEL SLEDS, OR SKIDS OF APPROVED DESIGN, MUST ALSO BE FURNISHED FOR EACH CUTTER UNIT AS ADDITIONAL EQUIPMENT.

10. CLEATS.--- LOOSE WIRE CLEATS ON UNIT WHEELS.

11. CUP COLLARS.--- CUP COLLARS TO BE FURNISHED ON END REVOLVING CUTLER DISCS AND ALSO ON SIDE PLATES.

IT IS REPORTED THAT COPIES OF THIS ADVERTISEMENT WERE MAILED TO SOME 36 NAMED MANUFACTURES OR DEALERS IN LAWN-MOWER EQUIPMENT, AND THAT 10 PROPOSALS ONLY WERE RECEIVED. NO EXPLANATION HAS BEEN SUBMITTED OR SUGGESTED WHY NO PROPOSALS WERE RECEIVED FROM THE OTHER 26 CONCERNS BUT MAY BE BECAUSE OF THE FACTS HEREINAFTER STATED.

THE LOW MONEY PROPOSAL WAS THAT OF THE PENNSYLVANIA LAWN MOWER WORKS AT $952.75 EACH AND THE NEXT LOWEST PROPOSAL WAS THAT OF THE WORTHINGTON MOWER CO. AT $966 EACH. THE CONTRACTING OFFICER ON MAY 13, 1930,ACCEPTED THE PROPOSAL OF THE WORTHINGTON MOWER CO. AND REJECTED THE LOW PROPOSAL OF THE PENNSYLVANIA LAWN MOWER WORKS FOR REASONS STATED AS FOLLOWS:

EQUIPMENT OFFERED DOES NOT MEET THE REQUIREMENTS OF THE SPECIFICATION FOR THE FOLLOWING EASONS:

(A) THE WORTHINGTON MOWER CO. TRACTOR IS IN ACCORDANCE WITH THE SPECIFICATIONS. THE CHEVROLET TRACTOR OFFERED BY THE PENNSYLVANIA LAWN MOWER CO. IS NOT CONSIDERED TO BE AS STRONG AND AS RUGGED AS THE MODEL "A" FORD.

(B) SPECIFICATIONS REQUIRE THAT THE CUTTERS SHALL BE ARRANGED IN THE FOLLOWING ORDER, ONE, TWO, AND TWO. THE PENNSYLVANIA LAWN MOWER WORKS HAVE A THREE-TWO ARRANGEMENT WHICH DOES NOT COMPLY WITH THE GOVERNMENT'S REQUIREMENTS. THE ONE, TWO ARRANGEMENT PERMITS REMOVAL OF TWO REAR UNITS TO ALLOW MOWER TO BE USED IN NARROW PLACES AND DECREASE THE PULL ON THE TRACTOR.

(C) THE WORTHINGTON UNIT IS ADJUSTABLE TO CUT FROM VERY CLOSE TO FOUR INCHES HIGH. THERE IS NO INDICATION FROM DATA FURNISHED BY THE PENNSYLVANIA LAWN MOWER WORKS WITH THEIR BID THAT THEY PROVIDE THIS FEATURE, AND, JUDGING FROM PHOTOGRAPHS IN THEIR CATALOGUE, THEIR CUTTING UNIT IS PRACTICALLY UNADJUSTABLE FOR HEIGHT OF CUT.

(D) IN ADDITION TO THE ABOVE, PURCHASING THE WORTHINGTON EQUIPMENT THE SAME AS THAT PURCHASED PREVIOUSLY WILL SAVE THE NECESSITY OF PROVIDING A NEW SET OF SPARE PARTS.

NOTWITHSTANDING THE PROTEST OF THE LOW BIDDER, THE CONTRACTING OFFICER, ACTING APPARENTLY UNDER INSTRUCTIONS OF THE CHIEF OF AIR CORPS, EXECUTED CONTRACT W-535-AC3326, DATED MAY 29, 1930, WITH THE WORTHINGTON MOWER CO. FOR THE DELIVERY OF 15 LAWN MOWERS AT $966 EACH, OR FOR A TOTAL OF $14,490, AND THE LOW BIDDER CARRIED HIS PROTEST TO SENATOR JAMES E. WATSON, WHO TRANSMITTED SAME TO BOTH THIS OFFICE AND THE SECRETARY OF WAR- -- ALSO COMMUNICATING WITH A NUMBER OF LAWN-MOWER MANUFACTURES OR DEALERS THROUGHOUT THE COUNTRY AS TO THE TREATMENT AND CONSIDERATION ACCORDED THEIR PRODUCTS BY THE WAR DEPARTMENT. COPIES OF THE PROTEST, ETC., WERE FORWARDED BY THIS OFFICE TO THE SECRETARY OF WAR FOR HIS REPORT AS TO THE FACTS, TOGETHER WITH HIS RECOMMENDATIONS WHICH WERE RECEIVED IN LETTER DATED SEPTEMBER 9, 1930. THE SUBSTANCE OF THE FACTS SO REPORTED HAVE BEEN ANSWERED BY THE PROTESTING BIDDER IN A LETTER DATED SEPTEMBER 24, 1930. IN THE MEANTIME, DELIVERIES UNDER THE CONTRACT OF MAY 29, 1930, WERE REPORTED TO HAVE BEEN SUSPENDED AND THE MOWING SEASON HAS PASSED WITHOUT THE DELIVERY AND USE OF THE LAWN MOWERS.

THE SITUATION HAS BEEN BROUGHT ABOUT THROUGH THE ACTION OF THE WAR DEPARTMENT IN SO DRAFTING THE SPECIFICATIONS AS TO EXCLUDE, IT IS CHARGED, ALL MANUFACTURERS OF LAWN MOWERS FROM COMPETING IN THE DELIVERY OF THIS EQUIPMENT EXCEPT THE WORTHINGTON MOWER CO. DUE TO THE FACT THAT NONE OF THE OTHER MANUFACTURERS HAVE ON THEIR LAWN MOWERS OR MAY PLACE THEREON SOME OF THE DETAILED EQUIPMENT REQUIRED BY THE SPECIFICATIONS. OF COURSE, IF THIS BE TRUE, SUCH ADVERTISING IS FARCICAL AND WAS UNNECESSARY--- IT BEING WELL SETTLED THAT THERE IS NO REQUIREMENT IN SECTION 3709, REVISED STATUTES, TO ADVERTISE FOR EQUIPMENT WHEN THE ONLY EQUIPMENT WHICH WILL MEET THE NEEDS OF THE GOVERNMENT IS A PATENTED OR PROPRIETARY PRODUCT CONTROLLED BY A SINGLE CONCERN. HOWEVER, BEFORE ADVERTISING MAY BE SO ELIMINATED, IT MUST BE SHOWN AS A FACT THAT NEEDS OF THE GOVERNMENT ARE SUCH THAT THEY CAN NOT REASONABLY BE MET EXCEPT BY THE SINGLE PATENTED OR PROPRIETARY PRODUCT. OBVIOUSLY, THE SAME RULE APPLIES TO ANY ADVERTISED SPECIFICATIONS SO DRAFTED THAT THE PRODUCT OF ONLY ONE MANUFACTURER CAN MEET THE SPECIFICATIONS AND THE EXPERIENCE OF THIS OFFICE HAS BEEN THAT COMPETING BIDDERS BECOME DISSATISFIED--- AND RIGHTLY SO--- WITH ANY ATTEMPT ON THE PART OF PURCHASING OFFICERS OF THE GOVERNMENT TO DRAFT SPECIFICATIONS SO AS TO EXCLUDE THEM FROM CONTRACTING WITH THE UNITED STATES UNLESS THERE IS A REASONABLE AND WELL DEFINED NEED, WHICH CAN BE MET BY ONLY ONE PATENTED OR PROPRIETARY PRODUCT. AS CITIZENS AND TAXPAYERS INTERESTED IN EXCLUDING FAVORITISM AND EXTRAVAGANCE--- WHETHER INTENTIONAL OR NOT--- IN THE CONDUCT OF THE GOVERNMENT AS WELL AS MANUFACTURERS AND DEALERS PROUD OF THEIR PRODUCTS, THEY ARE INCLINED TO PROTEST SUCH ATTEMPTS IN THE SPECIFICATIONS TO ELIMINATE THEIR PRODUCT EVEN BEFORE THE BIDS ARE SUBMITTED, THROUGH NOT IN ALL CASES ARE SUCH ATTEMPTS WELL GROUNDED.

THE DUTY AND RESPONSIBILITY OF DRAFTING SPECIFICATIONS TO MEET THE NEEDS OF THE WAR DEPARTMENT FOR LAWN MOWERS IS UPON THE ADMINISTRATIVE OFFICIALS OF THAT DEPARTMENT. THE NEEDS MUST BE SOMETHING MORE THAN A PERSONAL PREFERENCE FOR SOME PATENTED OR PROPRIETARY PRODUCT AND MUST BE SO DESCRIBED IN THE SPECIFICATIONS AS TO PERMIT FULL AND FREE COMPETITION THEREON--- EXCEPTING, OF COURSE, THOSE LIMITED NEEDS OF THE GOVERNMENT WHICH MAY BE MET BY A SINGLE PATENTED OR PROPRIETARY PRODUCT.

IT SEEMS THAT LONG AFTER THE PROPOSALS WERE OPENED AND ON JULY 15, 1930, THE CONTRACTING OFFICER AT WRIGHT FIELD, ACTING UNDER INSTRUCTIONS OF THE CHIEF OF AIR CORPS, REQUESTED THE WORTHINGTON MOWER CO. TO SUBMIT A PROPOSAL FOR FURNISHING SKIDS SEPARATE FROM THE MOWER AND ALSO A PROPOSAL FOR FURNISHING COLLARS. THE WORTHINGTON MOWER CO. SUBMITTED A PROPOSAL DATED JULY 17, 1930, OF $9.75 EACH FOR FURNISHING SKIDS IN LOTS OF 15 AND A PRICE OF 15 CENTS EACH FOR FURNISHING COLLARS, AND THE SECRETARY OF WAR SUGGESTED IN HIS REPORT OF SEPTEMBER 9, 1930, TO THIS OFFICE THAT THE WORTHINGTON MOWER CO. PROPOSAL WAS IN FACT THE LOWEST. THE CONCLUSION APPEARS TO HAVE BEEN REACHED ON THE ASSUMPTION THAT THE PENNSYLVANIA LAWN MOWER WORKS DID NOT PROPOSE TO FURNISH SKIDS AND COLLARS IN ACCORDANCE WITH THE SPECIFICATIONS AND THAT IF THERE BE DEDUCTED FROM THE PROPOSAL OF THE WORTHINGTON MOWER CO. THE COST OF THE SKIDS AND COLLARS FOR EACH UNIT, THE PRICE OF THE WORTHINGTON CO. WAS LOWER THAN THAT OF THE PENNSYLVANIA CO. STATED IN LETTER DATED SEPTEMBER 24, 1930, THAT:

THE FIRST POINT CLAIMED IS THAT THE PENNSYLVANIA LAWN MOWER CO. WAS NOT LOW BIDDER, AS THE SPECIFICATIONS AS FURNISHED BY US WERE NOT AS COMPLETE AS THOSE FURNISHED BY THE WORTHINGTON CO., AND MENTION IS MADE THAT OUR BID WAS HIGHER IF WE TOOK INTO CONSIDERATION THE FACT THAT ALL THE SPECIFICATIONS WERE NOT MET, NAMELY, ADJUSTABLE SKIDS TO REPLACE THE GROUND ROLLERS, ALSO COLLARS TO PROTECT THE ROTATING CUTTER FROM COLLECTING LOOSE GRASS.

IF WE INTERPRET THE GOVERNMENT REGULATIONS CORRECTLY, IT IS OUR UNDERSTANDING THAT WHEN A BID IS SUBMITTED BY A CONTRACTING COMPANY TO MEET CERTAIN GOVERNMENT SPECIFICATIONS, IT IS UNDERSTOOD THAT THE FIGURES SUBMITTED COMPLETELY COVER ALL THESE SPECIFICATIONS.

WE ARE NOT QUITE CLEAR WHY THE POINT SHOULD BE MADE THAT THIS COMPANY DID NOT INCLUDE ALL THE PARTS REQUESTED IN THESE SPECIFICATIONS, AND WE UNDERSTOOD THAT THE GOVERNMENT ALSO HAS THE RIGHT TO HOLD ALL BIDDERS IN STRICT ACCOUNT FOR NOT COMPLYING WITH THESE SPECIFICATIONS. OUR BID, THEREFORE, WAS MEANT TO COMPLETELY COVER THESE POINTS AND WE BELIEVE THAT WE COMPLIED WITH THE LAW.

WHEN A CONTRACTOR HAS AGREED TO MEET GOVERNMENT SPECIFICATIONS AND HAS FURNISHED A PERFORMANCE BOND FOR THAT PURPOSE, SUCH CONTRACTOR MUST MEET THE SPECIFICATIONS IN THE PRODUCTS MANUFACTURED AND DELIVERED OR ELSE THE GOVERNMENT MAY CANCEL THE CONTRACT, PURCHASING MATERIAL MEETING THE SPECIFICATIONS IN THE OPEN MARKET AND COLLECT FROM THE DEFAULTING CONTRACTOR OR HIS SURETY ANY EXCESS COST OCCASIONED THE GOVERNMENT. THIS IS SETTLED LAW AND APPEARS TO BE UNDERSTOOD BY ALL CONCERNED. THE FACT THAT A BIDDER'S COMMERCIAL PRODUCT DOES NOT MEET THE GOVERNMENT SPECIFICATIONS IS NO REASON FOR REJECTING ITS LOW BID WHEN SUCH BIDDER PROPOSES TO MEET THE GOVERNMENT SPECIFICATIONS--- THROUGH SUCH CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT OR AS THE BIDDER MAY BE ABLE OTHERWISE TO DO. IF ITS BID IS ACCEPTED, ITS OBLIGATION IS TO MEET THE SPECIFICATIONS IN THE DELIVERIES MADE AND IT IS OF NO CONTROLLING CONCERN TO THE UNITED STATES THAT THE BIDDER MAY OR MAY NOT BE REQUIRED TO MAKE CHANGES OR ADAPTATIONS IN ITS COMMERCIAL PRODUCT. THERE IS NEITHER LEGAL NOR EQUITABLE BASIS FOR REJECTING A LOW BID PROPOSING TO MEET THE SPECIFICATIONS SIMPLY BECAUSE THE BIDDER'S COMMERCIAL PRODUCT DOES NOT MEET THE SPECIFICATIONS--- IN THIS CASE, APPARENTLY DOES NOT HAVE COLLARS AND SKIDS. THIS WOULD SEEM TO BE SELF-EVIDENT FOR SUCH BIDDER WAS NOT OFFERING ITS COMMERCIAL PRODUCT BUT A PRODUCT MEETING THE SPECIFICATIONS.

IT HAS BEEN SUGGESTED THAT THE PRODUCT OF THE LOW BIDDER IN THIS CASE COULD NOT BE ADJUSTED SO AS TO CUT GRASS AT VARYING HEIGHTS. THIS MAY OR MAY NOT BE TRUE OF THE COMMERCIAL PRODUCT OF THE LOW BIDDER, AND IT MAY OR MAY NOT BE SHOWN IN ITS LITERATURE. HOWEVER, THE LOW BID NOT SPECIFYING ANYTHING TO THE CONTRARY MUST BE INTERPRETED AS PROPOSING TO MEET THE SPECIFICATIONS IN THIS RESPECT, AND IN A LETTER DATED JULY 22, 1930, THE CHIEF OF AIR CORPS WAS DEFINITELY INFORMED BY THE LOW BIDDER THAT "EACH UNIT IS ADJUSTABLE FOR VARIOUS HEIGHTS OR CUTS DESIRED, AND ON MANY GOLF COURSES THESE MOWERS ARE USED FOR FAIRWAYS AND ROUGH.' THE SPECIFICATIONS REQUIRED THE FIVE CUTTING UNITS TO BE ARRANGED IN THREE ROWS, IN THE FOLLOWING ORDER OF ONE, TWO, AND TWO, WITH COMPLETE FLEXIBILITY AT EACH OF THE THREE JOINTS. THE SECRETARY OF WAR REPORTED SEPTEMBER 9, 1930, THAT:

THE PENNSYLVANIA LAWN MOWER COMPANY HAS MADE THEIR BIG POINT NOT ON THE FACT THAT THEY DID NOT PUT THEIR CASE UP TO YOU COMPLETELY BY NOT INFORMING YOU THAT THEY FAILED TO OFFER THE EQUIPMENT REQUIRED BUT ON THE BASIS THAT THE GOVERNMENT HAD NO RIGHT TO INDICATE ITS WISHES AS TO HOOK- UP ARRANGEMENT OF CUTTERS. IN THE OPINION OF THIS OFFICE, THIS QUESTION IS ENTIRELY OF MINOR IMPORTANCE, AND I WISH TO DEFINITELY INFORM YOU THAT IF THE PENNSYLVANIA LAWN MOWER COMPANY HAD OTHERWISE COMPLIED WITH THE SPECIFICATIONS EXCEPT AS TO CUTTER ARRANGEMENT, THE GOVERNMENT WOULD HAVE ACCEPTED THEIR BID EVEN WHEN IT KNEW THAT THE PENNSYLVANIA LAWN MOWER COMPANY'S TYPE OF HOOK-UP WAS NOT AS SATISFACTORY AS THE TYPE SPECIFIED.

WHAT IS THUS SUGGESTED COULD NOT BE DONE LEGALLY. THERE IS NO LEGAL RIGHT TO ACCEPT A BID NOT MEETING THE SPECIFICATIONS TO THE PREJUDICE OF OTHER BIDDERS AND THE GOVERNMENT. IF THE SPECIFICATIONS FAIRLY AND ACCURATELY STATE THE NEEDS OF THE GOVERNMENT, A BID NOT MEETING THE SPECIFICATIONS MAY NOT BE ACCEPTED UNLESS THERE HAS BEEN PRIOR NOTIFICATION TO ALL CONCERNED THAT ALTERNATIVE PROPOSALS WILL BE CONSIDERED. THERE WAS NO SUCH NOTIFICATION HERE, AND BY THE QUOTED ADMISSIONS THERE WAS NO SOUND REASON FOR SO SPECIFYING THE CUTTING ARRANGEMENTS IF THE BID OTHERWISE MEETING THE SPECIFICATIONS WOULD HAVE BEEN ACCEPTED. THAT IS TO SAY, THE SPECIFICATIONS IN THIS RESPECT WERE UNDULY RESTRICTIVE OF COMPETITION TO THE PREJUDICE OF BOTH THE GOVERNMENT AND COMPETING BIDDERS.

IT DOES NOT APPEAR WHY PROPOSALS WERE NOT REQUESTED SEPARATELY FOR FURNISHING TRACTORS AND LAWN MOWERS. HOWEVER THIS MAY BE, PARAGRAPH (A) OF THE ABOVE-QUOTED REASON OF THE CONTRACTING OFFICER FOR REJECTING THE PROPOSAL OF THE LOW BIDDER BECAUSE THE CHEVROLET TRACTOR PROPOSED TO BE FURNISHED WAS NOT AS RUGGED NOR AS STRONG AS THE FORD TRACTOR CAN NOT BE ACCEPTED. IT FURNISHES NO FACTS THAT ONE TRACTOR IS SUPERIOR TO THE OTHER, AND IT HAS BEEN REPEATEDLY STATED THAT FACTS, NOT CONCLUSIONS, MUST BE STATED FOR THE REJECTING OF A LOW PROPOSAL, AND PRESUMABLY SO FAR AS RUGGEDNESS IS A SPECIFICATION, THE LOW BIDDER WOULD HAVE BEEN REQUIRED TO MEET IT. SEE 5 COMP. GEN. 835. THE QUOTED EXTRACT FROM THE REPORT OF THE SECRETARY OF WAR COMPLETELY ANSWERS PARAGRAPHS (B) AND (C) IN THE QUOTED STATEMENT OF THE CONTRACTING OFFICER'S REASONS FOR REJECTING ANY BID, AS HAS BEEN REPEATEDLY HELD BY THIS OFFICE. SEE 2 COMP. GEN. 304.

THIS OFFICE REGRETS IN THIS MATTER THAT THE WORTHINGTON MOWER CO. SHOULD BE AFFECTED IN ANY MANNER THROUGH THE NECESSARY CANCELLATION OF ITS CONTRACT FOR DELIVERY OF THE LAWN MOWERS, BUT THE CONCLUSION IS INESCAPABLE THAT THE SPECIFICATIONS WERE RESTRICTIVE OF COMPETITION. THE CONGRESS HAS LONG PRESCRIBED IN SECTION 3709, REVISED STATUTES, THAT ALL PURCHASES SHALL BE MADE AFTER ADVERTISING AND THE DECISIONS OF BOTH THIS OFFICE AND THE COURTS HAVE LONG BEEN THAT ADVERTISED SPECIFICATIONS MUST FULLY AND FAIRLY STATE THE PUBLIC NEEDS SO THAT THERE MAY BE FULL AND FREE COMPETITION THEREON AND SO THAT THERE MAY BE ACCEPTED THE LOWEST PROPOSAL MEETING THE SPECIFICATIONS. THAT LAW WAS NOT COMPLIED WITH IN THIS CASE AND THERE WAS NO AUTHORITY OF LAW FOR THE ACCEPTANCE OF THE HIGHER PROPOSAL. SO ALSO, THE PROPOSAL OF THE PENNSYLVANIA LAWN MOWER WORKS MAY NOT BE ACCEPTED BECAUSE SPECIFICATIONS NOT COMPLYING WITH THE LAW MAY NOT BE ADJUSTED AFTER THE PROPOSALS HAVE BEEN RECEIVED BY DISREGARDING NONESSENTIAL OR RESTRICTIVE PROVISIONS THEREOF. SUCH A PROCEDURE WOULD LIKEWISE LEAD TO DISSATISFACTION AND FAVORITISM IN PUBLIC CONTRACTING.

ACCORDINGLY, YOU ARE ADVISED THAT THE CONTRACT IN THIS CASE WITH THE WORTHINGTON MOWER CO. SHOULD BE CANCELED BECAUSE OF THE IRREGULARITY OF THE ADVERTISING AND ANY NEED OF THE GOVERNMENT FOR LAWN MOWERS SHOULD BE FULLY AND FAIRLY STATED IN SPECIFICATIONS AND READVERTISED SO AS TO PERMIT FULL AND FREE COMPETITION THEREON.