A-59752, MARCH 1, 1935, 14 COMP. GEN. 671

A-59752: Mar 1, 1935

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROTESTS OF BIDDERS - ILLEGAL SPECIFICATIONS FOR MOTOR TRUCKS WHERE THERE HAVE BEEN ILLEGALLY INCLUDED IN THE ADVERTISED SPECIFICATIONS FOR MOTOR TRUCKS CERTAIN MECHANICAL DETAILS. AS DISTINGUISHED FROM THE ACTUAL NEEDS OF THE SERVICE FOR WHICH THE TRUCKS ARE REQUIRED. A BIDDER WHOSE PRODUCTS ARE NORMALLY OFFERED IN COMPETITION WITH PRODUCTS ADMITTED UNDER THE SPECIFICATIONS. AS FOLLOWS: THE COMMISSIONERS ARE IN RECEIPT OF YOUR LETTER OF JANUARY 23. FOR FURNISHING TEN DUMP TRUCKS FOR USE OF THE HIGHWAY DEPARTMENT FOR THE REASON THAT IT BELIEVES THE SPECIFICATIONS AS DRAWN ARE RESTRICTIVE. IN THAT THEY PROHIBIT THE CHEVROLET MOTOR COMPANY FROM BIDDING ON ITS MODEL USUALLY ENTERED IN COMPETITION WITH OTHER TRUCKS THAT ARE PERMITTED TO BID.

A-59752, MARCH 1, 1935, 14 COMP. GEN. 671

PROTESTS OF BIDDERS - ILLEGAL SPECIFICATIONS FOR MOTOR TRUCKS WHERE THERE HAVE BEEN ILLEGALLY INCLUDED IN THE ADVERTISED SPECIFICATIONS FOR MOTOR TRUCKS CERTAIN MECHANICAL DETAILS, AS DISTINGUISHED FROM THE ACTUAL NEEDS OF THE SERVICE FOR WHICH THE TRUCKS ARE REQUIRED, A BIDDER WHOSE PRODUCTS ARE NORMALLY OFFERED IN COMPETITION WITH PRODUCTS ADMITTED UNDER THE SPECIFICATIONS, HAS SUFFICIENT BASIS FOR PROTEST EVEN THOUGH HE HAS REFUSED TO SUBMIT A BID.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, MARCH 1, 1935:

THERE HAS BEEN RECEIVED YOUR REPORT OF FEBRUARY 6, 1935, AS FOLLOWS:

THE COMMISSIONERS ARE IN RECEIPT OF YOUR LETTER OF JANUARY 23, 1935 (A- 59752), QUOTING A LETTER OF PROTEST RECEIVED FROM THE GENERAL MOTORS FLEET SALES CORPORATION DATED JANUARY 14, 1935, TO THE AWARD BEING MADE ON BIDS OPENED JANUARY 10, 1935, FOR FURNISHING TEN DUMP TRUCKS FOR USE OF THE HIGHWAY DEPARTMENT FOR THE REASON THAT IT BELIEVES THE SPECIFICATIONS AS DRAWN ARE RESTRICTIVE, IN THAT THEY PROHIBIT THE CHEVROLET MOTOR COMPANY FROM BIDDING ON ITS MODEL USUALLY ENTERED IN COMPETITION WITH OTHER TRUCKS THAT ARE PERMITTED TO BID, IN VIEW OF WHICH YOU REQUEST AN ADMINISTRATIVE REPORT.

YOU ARE ADVISED THAT SIX BIDS WERE RECEIVED, AS FOLLOWS:

TABLE

BIDDER MODEL NINE DUMP ONE FLAT

AND HYDRAULIC BODY NORTHWEST MOTOR CO. ------ FORD 1935 V8 ----- $6,524.28 $746.56 FARGO MOTOR CORP-N. ------ DODGE K 32 -------

7,110.00 847.00 AUTOCAR SALES AND

SERVICE CO. ------------- STUDEBAKER T 241 - 8,100.00 1,063.00 FEDERAL MOTOR TRUCK CO. -- FEDERAL 15X ------ 8,146.80 998.30 CALL AN MOTORS, INC. ------ REO MODEL 1 B4 --- 9,204.03 1,196.91 THE CORBITT CO. ---------- CORBITT 1146 ----- 10,067.05 1,118.56

THE AUTOMOBILE BOARD HAS RECOMMENDED TO THE COMMISSIONERS THAT AWARD BE MADE TO THE NORTHWEST MOTOR COMPANY, THE LOWEST BIDDER AS TO PRICE RECEIVED, FOR FURNISHING 1935 V8 MODEL FORDS, WITH A 5.14 TO 1 GEAR RATIO, AND TWO SPARE WHEEL TIRES AND TUBES, AT $734.92, ONE SPARE TIRE AND TUBE $24.00, FOR THE DUMP TRUCKS, AND $756.56 FOR THE FLAT BODY TRUCKS, PLUS $48.00 FOR TWO WHEELS, TIRES AND TUBES, LESS A TRADE ALLOWANCE OF $10.00 EACH. THIS BID CARRIES THE USUAL FORM OF CERTIFICATE OF COMPLIANCE, WHICH, IF ACCEPTED, WILL BE INCLUDED IN THE FORMAL CONTRACT WITH THE COMPANY, AND SINCE IT IS PART OF THE BID, THE SIGNATURE NECESSARILY CARRIES WITH IT THE APPROVAL OF THE CERTIFICATE. SEE IN THIS CONNECTION YOUR DECISION OF APRIL 2, 1934 (13 COMP. GEN. 255).

IN DRAWING THE SPECIFICATIONS FOR THE TRUCKS IN QUESTION (A COPY OF WHICH IS ATTACHED), IT WAS THE INTENTION OF THE DISTRICT AUTHORITIES TO SPECIFY A LIGHT TWO-TON TRUCK WITH A LIMITED BODY CAPACITY SO AS TO PREVENT OVERLOADING IN THE HANDLING OF EXCESSIVELY HEAVY MATERIALS. THEY WERE OF THE OPINION THAT A POWER PLANT OF ADEQUATE SIZE TO HANDLE THESE TRUCKS FOR UNUSUALLY HEAVY AND ROUGH WORK WAS NECESSARY, AND THE COMMISSIONERS ARE ADVISED THAT THE AUTOMOBILE BOARD, WHICH IS AUTHORIZED TO DRAW AND PASS UPON SPECIFICATIONS, FIXED THE GROSS WEIGHT OF THE VEHICLE AT 10,000 POUNDS, AND A MINIMUM POWER PLANT FIXED AT 217 CUBIC INCH PISTON DISPLACEMENT. IT WAS THEIR BELIEF, FOR THE SERVICE REQUIREMENTS, THAT THESE TWO LIMITING FACTORS SHOULD GOVERN, AND WERE THE VERY MINIMUM NECESSARY TO SECURE THE TYPE OF TRUCKS DESIRED. THE GROSS VEHICLE WEIGHT WAS FIXED AT 10,000 POUNDS SO AS NOT TO UNDULY RESTRICT THE FIELD OF COMPETITION. IF IT HAD BEEN FIXED AT 10,500 POUNDS, WHICH THE HEAVIER TYPE OF TWO-TON TRUCKS START AT, IT WOULD HAVE PREVENTED FOUR OR FIVE MANUFACTURERS FROM BIDDING.

THE PROTEST OF THE GENERAL MOTORS COMPANY DOES NOT APPEAR TO BE VERY WELL FOUNDED IN THAT THEY FAILED TO SUBMIT A BID OF ANY KIND OR DESCRIPTION, ALTHOUGH IT HAD BEEN DEFINITELY ADVISED THAT ITS GMC NO. 18 FULLY COMPLIED WITH THE SPECIFICATIONS. FURTHER, ITS GMC NO. 16 IS IDENTICAL IN CAPACITY WITH ITS CHEVROLET MODEL.

IT IS FELT THAT THE LINE MUST BE DRAWN AT SOME POINT IN ORDER THAT THE DISTRICT MAY SECURE TRUCKS OF SUFFICIENT CAPACITY, WEIGHT, ETC., FOR THE WORK INVOLVED. IF, FOR EXAMPLE, THE DISTRICT HAD INTENTIONALLY DRAWN THE SPECIFICATIONS FOR A STANDARD 1 1/2-TON TRUCK, SUCH AS THE CHEVROLET, THE OTHER MANUFACTURERS BELOW THIS STANDARD MIGHT HAVE FILED PROTEST, AND IN FACT THEY DID IN FORMER BIDS, IT HAVING BEEN WRITTEN OUT OF THE SPECIFICATIONS.

AS A MATTER OF FACT, THE DODGE COMPANY DID NOT BID UPON THEIR K-30 AS INDICATED BY THE GENERAL MOTORS COMPANY, BUT ON THEIR K-32 WHICH HAS A GROSS WEIGHT OF 10,500 POUNDS.

THE DIRECTORS OF HIGHWAYS HAS INDICATED THAT THE GENERAL MOTORS COMPANY, IN VIEW OF THE CONDITIONS OF THE OPEN SPECIFICATIONS, IS WITHOUT GROUNDS FOR PROTEST, ESPECIALLY IN VIEW OF THE FACT THAT IT DID NOT SUBMIT A BID, ITS SOLE COMPLAINT BEING THAT THE DISTRICT HAS DRAWN SPECIFICATIONS FOR A LIGHT TWO-TON TRUCK WHICH PRECLUDES THE CHEVROLET MOTOR COMPANY FROM COMPLYING WITH THE SPECIFICATIONS, ALTHOUGH IT HAS IN ITS LINE OF TRUCKS OTHER MODELS WHICH DO COMPLY.

AWARD FOR THESE TRUCKS WILL BE WITHHELD PENDING CONSIDERATION OF THIS MATTER BY YOUR OFFICE.

ALL OF THE BIDS RECEIVED SHOULD BE REJECTED, THE SPECIFICATIONS REVISED IN ACCORDANCE WITH LAW, AND BIDS REQUESTED ON THE BASIS OF THE REVISED SPECIFICATIONS FOR THE PURCHASE OF THE TRUCKS IN QUESTION. IT HAS BEEN HELD IN NUMEROUS DECISIONS OF THIS OFFICE THAT SPECIFICATIONS FOR THE PURCHASE OF MOTOR TRUCKS MAY NOT BE BASED UPON MECHANICAL DETAILS--- AS DISTINGUISHED FROM ACTUAL NEEDS OF THE SERVICE--- SO AS TO INCLUDE OR EXCLUDE CERTAIN TRUCKS. SEE 13 COMP. GEN. 284, 14 ID. 368; ID. 491. THE LATTER DECISION OF DECEMBER 29, 1934, TO THE SECRETARY OF COMMERCE, IT WAS STATED THAT IT HAD BEEN REPEATEDLY HELD PROSPECTIVE BIDDERS ARE ENTITLED TO KNOW THE JOB TO BE PERFORMED AND THE NEEDS OF THE UNITED STATES--- SO THAT THEY MAY MAKE PROFFERS ACCORDINGLY. ALSO, THAT IT WAS A FACT WHICH COULD BE VERIFIED BY ANY EQUIPPED AUTOMOTIVE ENGINEER OR STANDARD WORK ON AUTOMOBILE ENGINEERING THAT THE POWER OF A TRUCK CANNOT BE MEASURED WITH ANY DEGREE OF ACCURACY ON THE BASIS OF PISTON DISPLACEMENT ALONE. THE POWER OF A TRUCK DEPENDS ON MANY OTHER FACTORS IN ADDITION TO PISTON DISPLACEMENT, AND IF SUCH FACTORS ARE ABSENT OR IMPERFECTLY APPLIED, THE TRUCK WITH THE LARGER PISTON DISPLACEMENT MAY TRANSMIT LESS POWER TO THE DRIVING MECHANISM THAN A TRUCK WITH LESSER PISTON DISPLACEMENT PROPERLY EQUIPPED FOR THE TRANSMISSION OF POWER TO THE DRIVING MECHANISM. THE SPECIFICATIONS IN THIS CASE, AS IN THE CASE CONSIDERED IN THE DECISION OF DECEMBER 29, 1934, ATTEMPTED TO EXCLUDE ALL TRUCKS NOT HAVING CERTAIN MINIMUM PISTON DISPLACEMENT, AND THE SPECIFICATIONS LIKEWISE FAILED TO INFORM PROSPECTIVE BIDDERS OF THE JOB OR WORK TO BE PERFORMED. MOREOVER, IT WAS HELD IN THE DECISION OF NOVEMBER 8, 1934, 14 COMP. GEN. 368, THAT THE WEIGHT OF AN AUTOMOBILE--- AND THE SAME RULE APPLIES TO TRUCKS--- STATED IN THE SPECIFICATIONS WAS NOT A SUFFICIENT STATEMENT OF THE NEEDS FOR THE PURPOSE OF SECURING PROPER COMPETITION.

IT MAY BE ADDED THAT THERE IS NO LEGAL BASIS FOR THE CONCLUSION THAT THE PROTEST OF THE GENERAL MOTORS FLEET SALES CORPORATION IS NOT PROPERLY FOR CONSIDERATION BECAUSE IT FAILED TO SUBMIT A BID. THE COMPANY ALLEGED IN ITS LETTER OF JANUARY 14, 1935, WHICH WAS QUOTED IN MY LETTER OF JANUARY 23, 1935, TO YOU, THAT IT PROTESTED TO THE PURCHASING OFFICER OF THE DISTRICT OF COLUMBIA AGAINST THE INCLUSION IN THE SPECIFICATIONS OF ARBITRARY WEIGHT AND PISTON DISPLACEMENT FACTORS AND THAT THE PURCHASING OFFICER FAILED AND REFUSED TO CANCEL THE ADVERTISED SPECIFICATIONS AND REVISE THEM IN ACCORDANCE WITH LAW. THE DETERMINATION OF ILLEGALITY OF ADVERTISED SPECIFICATIONS DOES NOT NECESSARILY HAVE TO BE BASED ON PROTESTS OF A BIDDER; SUCH ILLEGALITY MAY BE DETERMINED IN THE ABSENCE OF ANY PROTEST AND A BIDDER WHOSE PRODUCTS ARE NORMALLY OFFERED IN COMPETITION WITH PRODUCTS ADMITTED UNDER THE SPECIFICATIONS HAS SUFFICIENT BASIS FOR PROTEST.