A-55100, A-55166, MAY 16, 1934, 13 COMP. GEN. 364

A-55100,A-55166: May 16, 1934

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SHOWING THAT THE BIDDER IS COMPLYING WITH. WILL CONTINUE TO COMPLY WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY CONCERNED. THE BID IS NOT FOR REJECTION SOLELY BECAUSE OF THE BELIEF OR ASSUMPTION THAT THE PRICE SUBMITTED IS IN VIOLATION OF A CODE. ARE NOT APPLICABLE TO THE SALE OF SURPLUS. A NUMBER OF USED VEHICLES WERE OFFERED BY THE DEPARTMENT IN PART PAYMENT. PROPOSALS WERE RECEIVED FROM THE NORTHWEST MOTOR COMPANY. ALL OF THESE BIDS ARE HEREWITH. THE LETTER REFERRED TO IS A TWO- PAGE COMMUNICATION DATED APRIL 10. AS TO THE OTHER ITEMS AND THEIR SUBDIVISIONS SUBMITS SINGLE PRICES WHICH ARE LESS THAN FACTORY LIST. THE FOLLOWING QUESTIONS ARE SUBMITTED: (1) IS THE AMENDMENT OF THE NORTHWEST MOTOR COMPANY OF THE STANDARD CERTIFICATE OF COMPLIANCE OF SUCH A CHARACTER AS TO RENDER THE BID OF SAID COMPANY NOT FOR CONSIDERATION? (2) IF YOU DECIDE THAT THE BID OF THE NORTHWEST MOTOR COMPANY IS NOT SUBJECT TO REJECTION THROUGH DEFECTIVE CERTIFICATION.

A-55100, A-55166, MAY 16, 1934, 13 COMP. GEN. 364

ADVERTISING - SPECIFICATIONS - CONDITIONAL BIDS WHERE A BIDDER FURNISHES THE CERTIFICATES REQUIRED BY EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934, AND MADE A PART OF ADVERTISED SPECIFICATIONS, SHOWING THAT THE BIDDER IS COMPLYING WITH, AND WILL CONTINUE TO COMPLY WITH THE APPLICABLE APPROVED CODE OF FAIR COMPETITION FOR THE TRADE OR INDUSTRY CONCERNED, ETC., THE BID IS NOT FOR REJECTION SOLELY BECAUSE OF THE BELIEF OR ASSUMPTION THAT THE PRICE SUBMITTED IS IN VIOLATION OF A CODE. THE TERMS OF EXECUTIVE ORDER NO. 6646, DATED MARCH 14, 1934, ARE NOT APPLICABLE TO THE SALE OF SURPLUS, OBSOLETE, ETC., MATERIAL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MAY 16, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 19, 1934, AS FOLLOWS:

UNDER DATE OF MARCH 29, 1934, THE DEPARTMENT ADVERTISED FOR PROPOSALS ON 512 AUTOMOBILE TRUCKS OF SEVERAL DIFFERENT TYPES FOR VARIOUS DELIVERIES, BIDS TO BE OPENED AT 2 P.M., APRIL 10, 1934. A NUMBER OF USED VEHICLES WERE OFFERED BY THE DEPARTMENT IN PART PAYMENT, AND THE SPECIFICATIONS INCLUDED THE CUSTOMARY REQUEST FOR INDEPENDENT CASH OFFERS ON THE USED EQUIPMENT. PROPOSALS WERE RECEIVED FROM THE NORTHWEST MOTOR COMPANY, OF CHEVY CHASE, MARYLAND; HERPEL-GILLESPIE, OF SAN ANTONIO, TEXAS; THE CHEVROLET MOTOR COMPANY, OF DETROIT, MICHIGAN; THE INTERNATIONAL HARVESTER COMPANY OF AMERICA, WASHINGTON, D.C., BRANCH; AND GRAMM, INCORPORATED, OF DELPHOS, OHIO. ALL OF THESE BIDS ARE HEREWITH.

THE SPECIFICATIONS INCLUDED ALL TEXTUAL MATTER REQUIRED UNDER EXECUTIVE ORDER NO. 6646 OF MARCH 14, 1934, INCLUDING THE STANDARD CERTIFICATE OF COMPLIANCE. THE CHEVROLET MOTOR COMPANY, THE INTERNATIONAL HARVESTER COMPANY OF AMERICA, AND GRAMM, INCORPORATED, RETURNED WITH THEIR PROPOSALS EXECUTED CERTIFICATES OF COMPLIANCE. NO EXECUTED CERTIFICATE OF COMPLIANCE ACCOMPANIED THE BID OF HERPEL GILLESPIE. THE CERTIFICATE OF COMPLIANCE SUBMITTED BY THE NORTHWEST MOTOR COMPANY CARRIED IN ITS LOWER LEFT-HAND CORNER THE FOLLOWING ADDITIONAL LANGUAGE: "SUBJECT TO AND AMENDED BY THE ATTACHED LETTER. R.P.S.' THE LETTER REFERRED TO IS A TWO- PAGE COMMUNICATION DATED APRIL 10, 1934, ADDRESSED TO THE CHIEF, DIVISION OF PURCHASE, SALES AND TRAFFIC, UNITED STATES DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C., AND SIGNED,"THE NORTHWEST MOTOR COMPANY, BY R. P. SABINE, PRESIDENT.'

THE BIDS OF HERPEL-GILLESPIE AND OF THE NORTHWEST MOTOR COMPANY OFFER EQUIPMENT MANUFACTURED IN WHOLE OR IN PART BY THE FORD MOTOR COMPANY. THE NORTHWEST MOTOR COMPANY, AS TO SOME OF THE ITEMS (1, 2, AND 8 AND THEIR SUBDIVISIONS) SUBMITS TWO DIFFERENT PRICES, THE PRIMARY PRICE IN EACH INSTANCE BEING THE FACTORY LIST PRICE AND THE ALTERNATE PRICE BEING CONSIDERABLY LOWER; AND AS TO THE OTHER ITEMS AND THEIR SUBDIVISIONS SUBMITS SINGLE PRICES WHICH ARE LESS THAN FACTORY LIST, THESE PRICES COVERING EQUIPMENT OF A SIZE ( 1/2-TON CAPACITY) TO WHICH THE MARKETING RULES OF THE RETAIL MOTOR CODE APPARENTLY DO NOT APPLY. (SEE CODE OF FAIR COMPETITION FOR THE MOTOR VEHICLE RETAILING TRADE, AS APPROVED ON OCTOBER 3, 1933, ARTICLE 4, INTRODUCTORY PARAGRAPH.)

IN CONNECTION WITH THIS MATTER AND FOR THE GUIDANCE OF THE DEPARTMENT IN DETERMINING THE PROPER AWARDS, THE FOLLOWING QUESTIONS ARE SUBMITTED:

(1) IS THE AMENDMENT OF THE NORTHWEST MOTOR COMPANY OF THE STANDARD CERTIFICATE OF COMPLIANCE OF SUCH A CHARACTER AS TO RENDER THE BID OF SAID COMPANY NOT FOR CONSIDERATION?

(2) IF YOU DECIDE THAT THE BID OF THE NORTHWEST MOTOR COMPANY IS NOT SUBJECT TO REJECTION THROUGH DEFECTIVE CERTIFICATION, (A) ARE THEIR OFFERS AT LESS THAN FACTORY LIST FOR CONSIDERATION WHERE THE VEHICLES ( 1/2-TON TRUCKS) ARE COVERED BY THE MARKETING RULES OF THE APPROVED CODE; (B) ARE THEIR OFFERS AT LESS THAN FACTORY LIST FOR CONSIDERATION WHERE THE VEHICLES ( 1-1/2-TON TRUCKS) ARE NOT COVERED BY THE MARKETING RULES OF THE APPROVED CODE?

(3) ARE THE OFFERS OF ANY MANUFACTURER BIDDERS FOR CONSIDERATION AT PRICES LESS THAN FACTORY LIST? (SEE NORTHWEST MOTOR COMPANY'S LETTER OF APRIL 10, 1934, INITIAL PARAGRAPH OF PAGE 2, AND ,MARKETING RULES" UNDER THE MOTOR VEHICLE RETAILING TRADE CODE TO WHICH REFERENCE HAS ALREADY BEEN MADE.)

(4) ARE THE INDEPENDENT CASH OFFERS OF HERPEL-GILLESPIE FOR CERTAIN USED EQUIPMENT FOR CONSIDERATION, SAID OFFERS, AS HAS BEEN POINTED OUT, NOT HAVING BEEN ACCOMPANIED BY A CERTIFICATE OF COMPLIANCE?

YOUR EARLY RESPONSE IN THE PREMISES, WITH THE RETURN OF THE FILE, WILL BE GREATLY APPRECIATED, AS THE CASE HEREIN PRESENTED IS ONE OF A NUMBER UNDER PRESENT CONSIDERATION, AND THE EQUIPMENT INVOLVED IS, IN LARGE PART, URGENTLY NEEDED.

THERE IS MY DECISION OF TODAY TO THE SECRETARY OF COMMERCE, 13 COMP. GEN. 359, CONCERNING A SIMILAR SITUATION ARISING IN THE PURCHASE OF TWO LIGHT TRUCKS FOR THAT DEPARTMENT, AND IT APPEARS UNNECESSARY TO REPEAT HEREIN THE STATEMENTS CONTAINED IN THAT DECISION.

THE REFERRED TO AMENDED CERTIFICATE OF THE NORTHWEST MOTOR CO. CONTAINED IN ITS LETTER OF APRIL 10, 1934, IS IN LANGUAGE SIMILAR TO ITS LETTER OF APRIL 6, 1934, TO THE DEPARTMENT OF COMMERCE QUOTED IN THE DECISION.

BASED ON THE STATUTES AND REGULATIONS QUOTED OR REFERRED TO THEREIN, YOU ARE ADVISED THAT YOUR QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE; THAT IS, THAT SUCH BID IS NOT FOR CONSIDERATION AS NOT RESPONSIVE TO THE TERMS OF THE SPECIFICATIONS. WHILE IT IS UNNECESSARY TO ANSWER QUESTION (2) WITH RESPECT TO THE BID SUBMITTED BY THE NORTHWEST MOTOR CO., YOU ARE ADVISED, GENERALLY, IN ANSWER TO QUESTIONS (2) AND (3) THAT WHERE THE REQUIRED CERTIFICATE IS FURNISHED, NO BID IS FOR REJECTION BECAUSE OF A BELIEF OR ASSUMPTION THAT THE PRICE SUBMITTED IS IN VIOLATION OF A CODE. UNDER THE PROVISIONS OF SECTION 3709, REVISED STATUTES, THERE IS FOR ACCEPTANCE THE BID OF THE LOWEST RESPONSIBLE BIDDER MEETING THE REQUIREMENTS OF THE SPECIFICATIONS. THE RESPONSIBILITY WITH RESPECT TO COMPLIANCE WITH THE APPLICABLE CODES IS THAT OF THE BIDDER. AND IT IS NOT FOR A CONTRACTING OFFICER TO DETERMINE WHAT CONSTITUTES COMPLIANCE WITH OR VIOLATION OF A CODE.

AS TO YOUR QUESTION (4), YOU ARE ADVISED THAT THE EXECUTIVE ORDER OF MARCH 14, 1934, DOES NOT APPLY TO THE SALE OF SURPLUS, OBSOLETE, ETC., MATERIAL; CONSEQUENTLY A BIDDER FOR THE PURCHASE FROM THE UNITED STATES OF USED MOTOR VEHICLES IS NOT REQUIRED TO SUBMIT A CERTIFICATE OF COMPLIANCE WITH ANY APPROVED CODE OF FAIR COMPETITION.