A-36067, APRIL 17, 1931, 10 COMP. GEN. 480

A-36067: Apr 17, 1931

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REQUESTS PROSPECTIVE BIDDERS TO SUBMIT THEIR OWN DESIGNS FOR THE INSTALLATION OR ERECTION OF INCINERATORS IS NOT AN ADVERTISEMENT WITH "FULL SPECIFICATIONS" AS REQUIRED BY THE TERMS OF THE ACT OF JUNE 11. TO THE EFFECT THAT IT WAS PROPOSED TO ACCEPT A HIGHER PROPOSAL OF THE MORSE BOULGER DESTRUCTOR CO. WHO WAS EMPLOYED UNDER CONTRACT OF JUNE 13. YOUR ATTENTION IS AGAIN INVITED TO THE ACT OF JUNE 11. AS FOLLOWS: * * * THE LAW IS WELL SETTLED THAT WHERE AS IN THIS CASE. NOT INCLUDED IN OR CONTEMPLATED IN THE TERMS AND SPECIFICATIONS UPON WHICH BIDS WERE INVITED. IF THE LOWEST BIDDER MAY BY AN ARRANGEMENT WITH THE MUNICIPAL AUTHORITIES HAVE INCORPORATED INTO HIS FORMAL CONTRACT NEW PROVISIONS BENEFICIAL TO HIM.

A-36067, APRIL 17, 1931, 10 COMP. GEN. 480

ADVERTISING - SPECIFICATIONS AN ADVERTISEMENT WHICH, IN EFFECT, REQUESTS PROSPECTIVE BIDDERS TO SUBMIT THEIR OWN DESIGNS FOR THE INSTALLATION OR ERECTION OF INCINERATORS IS NOT AN ADVERTISEMENT WITH "FULL SPECIFICATIONS" AS REQUIRED BY THE TERMS OF THE ACT OF JUNE 11, 1878, 20 STAT. 105, FOR IT AFFORDS NO BASIS WITH WHICH TO MEASURE THE PROPOSALS AND TO DETERMINE THE LOWEST RESPONSIBLE PROPOSAL WHICH THE LAW REQUIRES TO BE ACCEPTED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, APRIL 17, 1931:

THERE HAS BEEN RECEIVED IN REPLY TO OFFICE LETTER OF MARCH 4, 1931, CONCERNING A PROTEST OF THE SUPERIOR INCINERATOR CO. OF TEXAS AGAINST THE PROPOSED ACTION OF REJECTING ITS PROPOSAL OPENED MARCH 17, 1931, FOR THE ERECTION OF TWO INCINERATORS IN THE DISTRICT OF COLUMBIA, FOR AN AGGREGATE SUM OF $574,000, YOUR REPORT OF APRIL 10, 1931, TO THE EFFECT THAT IT WAS PROPOSED TO ACCEPT A HIGHER PROPOSAL OF THE MORSE BOULGER DESTRUCTOR CO. FOR THE O STREET PLANT, IN THE SUM OF $401,636, AND THE HIGHER PROPOSAL OF C. O. BARTLETT AND SNOW CO. FOR THE GEORGETOWN PLANT, IN THE SUM OF $236,043, OR THE AGGREGATE BID OF $594,317, SUBMITTED BY THE MORSE BOULGER DESTRUCTOR CO. FOR THE TWO PLANTS, BASED ON RECOMMENDATIONS OF HARRISON P. EDDY, WHO WAS EMPLOYED UNDER CONTRACT OF JUNE 13, 1930, TO DRAFT SPECIFICATIONS, ETC., IN CONNECTION WITH THE ERECTION OF TWO INCINERATORS.

PRELIMINARY TO THE DISCUSSION OF THE TERMS OF THE ADVERTISEMENT AND YOUR REPORT IN CONNECTION THEREWITH, YOUR ATTENTION IS AGAIN INVITED TO THE ACT OF JUNE 11, 1878, 20 STAT. 105, WHICH REQUIRES THAT PUBLIC WORK FOR, AND WITHIN THE DISTRICT OF COLUMBIA, SHALL BE ADVERTISED "WITH FULL SPECIFICATIONS AS TO MATERIAL FOR THE WHOLE OR ANY PORTION OF THE WORK PROPOSED TO BE DONE; AND THE LOWEST RESPONSIBLE PROPOSAL FOR THE KIND AND CHARACTER OF PAVEMENTS OR OTHER WORK WHICH THE COMMISSIONERS SHALL DETERMINE UPON SHALL IN ALL CASES BE ACCEPTED.' ALSO, TO A PERTINENT EXTRACT FROM THE DECISION OF THE SUPREME COURT OF MINNESOTA, IN DIAMOND V. CITY OF MANKATO, 61 L.R.A. 448, 452, AT P. 451, AS FOLLOWS:

* * * THE LAW IS WELL SETTLED THAT WHERE AS IN THIS CASE, MUNICIPAL AUTHORITIES CAN ONLY LET A CONTRACT FOR PUBLIC WORK TO THE LOWEST RESPONSIBLE BIDDER, THE PROPOSALS AND SPECIFICATIONS THEREFOR MUST BE SO FRAMED AS TO PERMIT FREE AND FULL COMPETITION. NOR CAN THEY ENTER INTO A CONTRACT WITH THE BEST BIDDER CONTAINING SUBSTANTIAL PROVISIONS BENEFICIAL TO HIM, NOT INCLUDED IN OR CONTEMPLATED IN THE TERMS AND SPECIFICATIONS UPON WHICH BIDS WERE INVITED. THE CONTRACT MUST BE THE CONTRACT OFFERED TO THE LOWEST RESPONSIBLE BIDDER BY ADVERTISEMENT. NASH V. PAUL, 11 MINN. 174, GIL. 110; SCHIFFMAN V. ST. PAUL (MINN) 92 N.W. 503; WICKWIRE V. ELKHART, 144 IND. 305, 43 N.E. 216; DICKINSON V. POUGHKEEPSIE, 75 N.Y. 65; 20 AM. AND ENG. ENC. LAW, PP. 1165-1169. THIS RULE SHOULD BE STRICTLY ENFORCED BY THE COURTS, FOR, IF THE LOWEST BIDDER MAY BY AN ARRANGEMENT WITH THE MUNICIPAL AUTHORITIES HAVE INCORPORATED INTO HIS FORMAL CONTRACT NEW PROVISIONS BENEFICIAL TO HIM, OR HAVE ONEROUS ONES EXCLUDED THEREFROM WHICH WERE IN THE SPECIFICATIONS UPON WHICH BIDS WERE INVITED, IT WOULD EMASCULATE THE WHOLE SYSTEM OF COMPETITIVE BIDDING. IT WOULD ALSO LEAD TO ABUSES BY OPENING WIDE THE DOOR OF OPPORTUNITY TO AWARD THE CONTRACT TO A FAVORITE OR GENEROUS CONTRACTOR,--- GENEROUS AT THE COST OF THE TAXPAYER. TO SECURE SUCH A RESULT IT WOULD ONLY BE NECESSARY TO MAKE THE TERMS AND SPECIFICATIONS UPON WHICH BIDS WERE INVITED BURDENSOME FOR BIDDERS, AND FOR THE FAVORED ONE TO MAKE HIS BID UPON THE SECRET UNDERSTANDING THAT SUCH TERMS WOULD BE MODIFIED IN MAKING THE FORMAL CONTRACT. IN THIS CASE THE EVIDENCE DOES NOT JUSTIFY THE CONCLUSION THAT THERE WAS ANY SUCH SECRET UNDERSTANDING, OR THAT THE MUNICIPAL AUTHORITIES ACTING CORRUPTLY IN THE PREMISES. IF, HOWEVER, THE FORBIDDEN ACT WAS IN FACT DONE, THE CONTRACT IS VOID WITHOUT REFERENCE TO THE INTENT WITH WHICH IT WAS DONE, FOR THE PURPOSE OF THE RULE IS TO SECURE FAIR COMPETITION UPON EQUAL TERMS TO ALL BIDDERS, AND TO REMOVE ALL TEMPTATION FOR COLLUSION, AND OPPORTUNITY FOR GAIN AT THE EXPENSE OF THE PROPERTY OWNERS BY THE MUNICIPAL AUTHORITIES.

THE LAW CONSIDERED BY THE SUPREME COURT OF MINNESOTA IN THE ABOVE ENTITLED CASE DOES NOT APPEAR TO HAVE PROVIDED, AS HERE, THAT THE ADVERTISEMENT SHOULD BE "THE FULL SPECIFICATIONS" AS TO THE WORK TO BE PERFORMED, BUT THE COURT HELD THE CONTRACT TO BE VOID. THE SPECIFICATIONS HERE PROVIDED "THAT THE BUILDING SHALL BE OF PLEASING ARCHITECTURAL TREATMENT," AND HARRISON P. EDDY OBJECTED TO THE PROPOSAL SUBMITTED BY THE SUPERIOR INCINERATOR CO. ON THE GROUND THAT THE DESIGN OF THEIR BUILDING WAS NOT OF A PLEASING ARCHITECTURAL TREATMENT, AND YOU HAVE STATED IN YOUR REPORT OF APRIL 10, 1931, THAT:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA NOT ONLY SUPPORT THE OPINION OF MR. EDDY IN REGARD TO THE ARCHITECTURAL TREATMENT OF THE BUILDING BUT GO FURTHER IN STATING THAT THEY CONSIDER THE DESIGN AND ARCHITECTURAL TREATMENT OF THE BUILDING TO BE SO UNSATISFACTORY AS TO CONSTITUTE A SERIOUS DEPARTURE FROM THE SPECIFICATIONS OF THE DISTRICT OF COLUMBIA WHICH REQUIRE A "PLEASING ARCHITECTURAL TREATMENT.' IN ORDER TO AFFORD A COMPARISON, THERE IS SUBMITTED HEREWITH AS EXHIBIT "H," A PHOTOSTAT OF THE FRONT ELEVATION OF THE BUILDING OFFERED FOR THE "O" STREET PLANT BY THE MORSE BOULGER DESTRUCTOR COMPANY.

AN ADVERTISEMENT FOR INCINERATOR BUILDINGS MERELY STATING THAT THEY SHALL BE "OF PLEASING ARCHITECTURAL TREATMENT" IS NOT AN ADVERTISEMENT WITH "FULL SPECIFICATIONS," AS REQUIRED BY THE ACT OF JUNE 11, 1878, 20 STAT. 105, AND IS OPEN TO ALL OF THE OBJECTIONS COGENTLY STATED IN THE ABOVE- QUOTED EXTRACT FROM THE OPINION OF THE SUPREME COURT OF MINNESOTA IN THE CITY OF MANKATO CASE. THE SPECIFICATIONS DO NOT EVEN STATE WHO SHALL BE THE JUDGE OF WHETHER THE BUILDINGS ARE OF PLEASING ARCHITECTURAL TREATMENT, NOR ATTEMPT TO PRESCRIBE ANY STANDARD FOR JUDGING THEIR PLEASING ARCHITECTURAL TREATMENT. SUCH AN ADVERTISEMENT IS NOT IN ACCORDANCE WITH THE LAW, AND NO CONTRACT INVOLVING THE EXPENDITURE OF PUBLIC MONEY MAY BE ENTERED INTO PURSUANT THERETO.

THE SPECIFICATIONS PROVIDE THAT TWO SETS OF DRAWINGS SHALL BE SUBMITTED SHOWING IN DETAIL THE DESIGN OF THE PRINCIPAL PARTS OF THE EQUIPMENT AND ALL IMPORTANT APPURTENANCES, IN ORDER THAT A CLEAR UNDERSTANDING MAY BE GAINED OF THE GENERAL DESIGN, CHARACTER OF THE MATERIALS USED, AND THE DURABILITY AND SUITABILITY OF THE EQUIPMENT OFFERED. ANOTHER REASON ASSIGNED FOR THE PROPOSED REJECTION OF THE LOW BID IN THIS INSTANCE IS THAT THE LOW BIDDER DID NOT SUBMIT DETAILED CHIMNEY DRAWINGS, BUT NO ANSWER HAS BEEN MADE TO THE STATEMENT OF THE LOW BIDDER THAT A CHIMNEY WAS A MANUFACTURED ARTICLE, BUILT BY A CONTRACTOR COMPLETE AND IN PLACE. ALSO, THAT IN ITS BID IT SPECIFIED A LIST OF THREE OF THE LEADING MANUFACTURERS OF CHIMNEYS IN THE UNITED STATES AND THAT ANY ONE OF THE THREE CHIMNEYS PROPOSED TO BE FURNISHED COMPLIED WITH THE SPECIFICATIONS IN EVERY RESPECT. THESE MEN, WHO APPEAR TO HAVE BEEN LONG ENGAGED TO FURNISH CHIMNEY DESIGNS THAN IT IS TO FURNISH DESIGNS OF CRANES, MOTORS COMPRESSES, OR ANY OTHER PIECE OF MANUFACTURED EQUIPMENT. HARRISON P. EDDY HAS STATED THAT THE CHIMNEY IS ONE OF THE MOST IMPORTANT ITEMS OF EQUIPMENT IN THE PLANT, AND THAT IT DID NOT SEEM WISE TO AWARD THE CONTRACT WITHOUT SATISFACTORY EVIDENCE AS TO THE TYPE OF CHIMNEY AND AS TO THE DESIGN OF CHIMNEY LINING WHICH WOULD BE FURNISHED. WHETHER A CHIMNEY IS OR IS NOT ONE OF THE MOST IMPORTANT ITEMS OF EQUIPMENT IN AN INCINERATOR PLANT MAY BE OPEN TO DISPUTE, BUT AN ADVERTISEMENT NOT SPECIFYING IN A GENERAL WAY THE DESIGN OF CHIMNEY REQUIRED IS NOT AN ADVERTISEMENT "WITH FULL SPECIFICATIONS" WITHIN THE REQUIREMENTS OF THE ACT OF JUNE 11, 1878.

THERE ARE A NUMBER OF OTHER OBJECTIONS STATED BY HARRISON P. EDDY TO THE LOW PROPOSAL OF THE SUPERIOR INCINERATOR CO. FOR THE ERECTION OF THESE TWO INCINERATORS, BUT IT WOULD UNDULY EXTEND THIS DECISION TO RECITE ALL OF THEM. THEY ARE GENERALLY OF THE SAME CHARACTER AS THE OBJECTIONS TO THE BUILDING AND TO THE CHIMNEYS WHICH HAVE BEEN CONSIDERED HEREIN IN SOME DETAIL. FOR INSTANCE, IT IS STATED IN THE SPECIFICATIONS THAT THE CONTRACTOR SHALL PROVIDE ADEQUATE CLEARANCES FOR THE REASONABLE AND EFFICIENT OPERATION OF THE PLANTS, WHICH CLEARANCES SHALL BE NOT LESS THAN 15 FEET FREE FROM ANY OBSTRUCTION OR UNCOVERED FLOOR OPENINGS BETWEEN THE OUTSIDE OF ANY STOKING OPENING OF A FURNACE AND A BUILDING WALL. IT IS STATED THAT THE STOKING PLACE IS NOT MERELY IN FRONT OF THE STOKING DOOR, BUT MUST INCLUDE ALSOAMPLE SPACE FOR HANDLING AND SWINGING TOOLS TO THE RIGHT AND THE LEFT OF THIS DOOR IN ORDER TO REACH EFFECTIVELY ALL PARTS OF THE INTERIOR OF THE FURNACES. WHAT IS AMPLE SPACE IS A SUBJECT OF DISPUTE UNLESS STATED IN THE SPECIFICATIONS, AND THE LOW BIDDER HAS STATED THAT ITS INTERPRETATION OF THE STOKING SPACE IS THE FLOOR AREA IN FRONT OF THE FURNACE FROM WHICH THE STOCKING IS DONE. IT IS STATED, ALSO, THAT THE SPECIFICATIONS SUBMITTED BY THE LOW BIDDER AS TO ASH BINS DID NOT SHOW THE BINS TREATED ARCHITECTURALLY TO CONFORM TO THE REMAINDER OF THE BUILDING, AND THE LOW BIDDER HAS REPLIED THAT THE ASH BIN WAS A PIECE OF MANUFACTURED EQUIPMENT AND THAT IT WOULD BE IMPOSSIBLE PROPERLY TO DETAIL THE ARCHITECTURAL TREATMENT UNTIL THE BIDDER HAD MADE A DEFINITE PURCHASE OF AN APPROVED SKIPBOARD AND BIN AND HAD RECEIVED FROM THE MANUFACTURER A DETAILED EQUIPMENT DRAWING.

THERE HAS BEEN NOTED A STATEMENT THAT SOME OF THE HIGHER PROPOSALS COMPLIED WITH THE SPECIFICATIONS, BUT IT MUST BE OBVIOUS THAT NO PROPOSAL COULD COMPLY WITH THE SPECIFICATIONS ISSUED IN THIS CASE. THE SPECIFICATIONS WERE NOT "FULL SPECIFICATIONS" AS SPECIFICALLY REQUIRED BY THE ACT OF JUNE 11, 1878, AND IF IT WERE NOT FOR THE EXPRESS TERMS OF THE LAW IN THIS CASE, IT WOULD DEPEND UPON THE WHIM OR CAPRICE OF THE PARTICULAR INDIVIDUAL CHARGED WITH THE ACCEPTANCE OF THE PROPOSAL FOR THE ERECTION OF INCINERATORS WHETHER ANY PROPOSAL DID OR DID NOT COMPLY WITH THE SPECIFICATIONS, FOR, AS STATED, THESE SPECIFICATIONS FAILED TO ESTABLISH ANY YARDSTICK FOR THE GUIDANCE OF COMPETITIVE BIDDERS. THIS ELEMENTAL RULE HAS BEEN STATED IN NUMEROUS DECISIONS OF THIS OFFICE AND WAS SUMMARIZED IN WAIT ON ENGINEERING AND ARCHITECTURAL JURISPRUDENCE, SECTION 153, PAGE 149, AS FOLLOWS:

AN ACT OR A CHARTER WHICH REQUIRES A CONTRACT "TO BE GIVEN TO THE LOWEST RESPONSIBLE BIDDER" HAS THEREFORE BEEN HELD TO RENDER ILLEGAL AND VOID A CONTRACT AWARDED ON PLANS AND SPECIFICATIONS PREPARED BY EACH OF THE DIFFERENT BIDDERS. THE COURT SAYS THE TERM LOWEST BID NECESSARILY IMPLIES A COMMON STANDARD BY WHICH TO MEASURE THE RESPECTIVE BIDS, AND THAT A COMMON STANDARD MUST NECESSARILY HAVE BEEN PREVIOUSLY PREPARED OF THE WORK TO BE DONE. SUCH A LETTING NOT ONLY PREVENTS THE COMPETITION WHICH IT IS THE OBJECT OF THE STATUTE TO SECURE, BUT FURNISHES NO STANDARD BY WHICH THE BOARD CAN DETERMINE THE LOWEST BID, AND GIVES AN OPPORTUNITY FOR FAVORITISM IN AWARDING THE CONTRACT.

AFTER FULL CONSIDERATION OF THE MATTER, I HAVE TO ADVISE THAT ALL PROPOSALS IN THIS CASE SHOULD BE REJECTED AND FULL SPECIFICATIONS SHOULD BE DRAFTED AND ADVERTISED IN ACCORDANCE WITH LAW FOR PROPOSALS TO ERECT THE TWO INCINERATOR PLANTS IN QUESTION INSTEAD OF REQUESTING THE BIDDERS, IN EFFECT, AS HERE, TO DRAFT THEIR OWN SPECIFICATIONS WITHOUT ANY STANDARD AS THEIR GUIDE OR BY WHICH TO MEASURE THE BIDS WHEN RECEIVED.