A-64994, NOVEMBER 1, 1935, 15 COMP. GEN. 365

A-64994: Nov 1, 1935

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SHOWS THAT THE SPECIFICATIONS WERE TOO RESTRICTIVE. AS FOLLOWS: REFERENCE IS HAD TO YOUR LETTER (A-64994) DATED SEPTEMBER 9. BIDS UNDER WHICH WERE OPENED AUGUST 9. A COPY OF THE ABOVE-MENTIONED SCHEDULE IS TRANSMITTED HEREWITH FOR YOUR INFORMATION. BIDS UNDER SAID SCHEDULE WERE RECEIVED AND OPENED. 040.14 AS THE LOW BID IN EACH INSTANCE WAS THAT SUBMITTED BY THE FLEXIBLE COMPANY. THE BID OF THE HENNEY MOTOR COMPANY WAS ENTITLED TO CONSIDERATION ONLY AFTER IT WAS DETERMINED THAT THE LOW BID WAS NOT RESPONSIVE TO THE ADVERTISEMENT AND THAT THE AMBULANCES OFFERED WOULD NOT BE SATISFACTORY FOR THE PURPOSES FOR WHICH INTENDED. ALTERNATE BIDS WERE INVITED UNDER THE FOLLOWING CONDITIONS. FOUND ON PAGE 6 OF SAID SCHEDULE: "BIDS ON ARTICLES DIFFERING FROM THE SPECIFIED DETAILS WILL BE CONSIDERED.

A-64994, NOVEMBER 1, 1935, 15 COMP. GEN. 365

CONTRACTS - SPECIFICATIONS - RESTRICTIVE THE ACCEPTANCE OF A BID OFFERING TO FURNISH AMBULANCES POWERED WITH ENGINES OF LESS CUBIC INCH PISTON DISPLACEMENT THAN THAT STATED IN THE ADVERTISED SPECIFICATIONS AS BEING ADEQUATE FOR THE PURPOSE TO BE SERVED, WITH AN ALTERNATE SUBORDINATE PROVISION FOR AMBULANCES ADEQUATE FOR THE NEEDS OF THE GOVERNMENT, SHOWS THAT THE SPECIFICATIONS WERE TOO RESTRICTIVE, DETERRING PROSPECTIVE BIDDERS FROM SUBMITTING BIDS TO THE DISADVANTAGE OF THE GOVERNMENT, AND ADMINISTRATIVE MEASURES SHOULD BE TAKEN TO CORRECT SUCH SITUATIONS IN FUTURE SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, NOVEMBER 1, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 17, 1935, WITH INCLOSURES, AS FOLLOWS:

REFERENCE IS HAD TO YOUR LETTER (A-64994) DATED SEPTEMBER 9, 1935, RELATIVE TO THE COMPLAINT OF THE HENNEY MOTOR COMPANY AGAINST THE AWARD OF CONTRACT FOR FURNISHING MOTOR AMBULANCES UNDER SCHEDULE 5630, BIDS UNDER WHICH WERE OPENED AUGUST 9, 1935.

A COPY OF THE ABOVE-MENTIONED SCHEDULE IS TRANSMITTED HEREWITH FOR YOUR INFORMATION.

BIDS UNDER SAID SCHEDULE WERE RECEIVED AND OPENED, AS FOLLOWS:

CHART

LOT 485

THE FLEXIBLE COMPANY ------------------------------ $2,629.11

HENNEY MOTOR COMPANY ------------------------------ 3,956.00

LOT 486

THE FLEXIBLE COMPANY ------------------------------ 12,067.94

HENNEY MOTOR COMPANY ------------------------------ 16,467.28

LOT 487

THE FLEXIBLE COMPANY, BID A ----------------------- 2,620.55

HENNEY MOTOR COMPANY, BID A ----------------------- 4,040.14

THE FLEXIBLE COMPANY, BID C ----------------------- 3,014.31

HENNEY MOTOR COMPANY, BID C ----------------------- 4,040.14

AS THE LOW BID IN EACH INSTANCE WAS THAT SUBMITTED BY THE FLEXIBLE COMPANY, THE BID OF THE HENNEY MOTOR COMPANY WAS ENTITLED TO CONSIDERATION ONLY AFTER IT WAS DETERMINED THAT THE LOW BID WAS NOT RESPONSIVE TO THE ADVERTISEMENT AND THAT THE AMBULANCES OFFERED WOULD NOT BE SATISFACTORY FOR THE PURPOSES FOR WHICH INTENDED.

THE SPECIFICATIONS EMBODIED IN THE SCHEDULE STATED THE CONSTRUCTION AND ALL OPERATING REQUIREMENTS IN ALL DETAILS DEEMED NECESSARY TO CLEARLY APPRISE BIDDERS AS TO THE PERFORMANCE REQUIRED OF THE AMBULANCES. AS A MEANS OF ADMITTING THE WIDEST POSSIBLE COMPETITION, ALTERNATE BIDS WERE INVITED UNDER THE FOLLOWING CONDITIONS, FOUND ON PAGE 6 OF SAID SCHEDULE:

"BIDS ON ARTICLES DIFFERING FROM THE SPECIFIED DETAILS WILL BE CONSIDERED, PROVIDED SUCH DIFFERENCES ARE CLEARLY NOTED AND DESCRIBED BY THE BIDDER, AND PROVIDED FURTHER THAT THE ARTICLES OFFERED UNDER THESE CONDITIONS WILL GIVE EQUAL SERVICE TO THOSE SPECIFIED.

"IF THE ARTICLES PROPOSED VARY IN ANY PART FROM THE SPECIFICATIONS, SPECIAL MENTION MUST BE MADE OF SUCH POINTS APART FROM THE GENERAL DESCRIPTION OR CUTS SUBMITTED. WHEN VARIATIONS ARE NOT STATED CLEARLY AND IN DETAIL, IT WILL BE UNDERSTOOD THAT THE BIDDER PROPOSES TO FURNISH ARTICLES MEETING ALL DETAILS OF THE ORIGINAL SPECIFICATIONS, AND THE CONTRACTOR WILL BE HELD TO STRICT COMPLIANCE THEREWITH.'

THE PROTEST OF THE HENNEY MOTOR COMPANY IS PREDICATED UPON THE GROUNDS THAT THE AMBULANCES OFFERED BY THE FLEXIBLE COMPANY ARE POWERED WITH A MOTOR HAVING LESS THAN 320 CUBIC INCHES OF PISTON DISPLACEMENT AND TIRES BELOW THE MANUFACTURER'S RATED CAPACITY.

THE FLEXIBLE COMPANY OFFERED AMBULANCES POWERED WITH A BUICK 1936, SIXTY SERIES, EIGHT-CYLINDER MOTOR, HAVING A BORE STROKE OF 3 3/32 INCHES BY 4 5/8 INCHES, WITH A PISTON DISPLACEMENT OF 278.1 CUBIC INCHES. THE FLEXIBLE COMPANY PROPOSED THE USE OF GOODYEAR SUPER BALLOON TIRES, 16 BY 7.50, SIX-PLY.

THE CONSTRUCTION OF THE BUICK CHASSIS AND THE PERFORMANCE OF THE BUICK MOTOR ARE WELL KNOWN, AND AS THE CONSTRUCTION DETAILS AND OPERATING PERFORMANCES MET THE SPECIFICATIONS IN ALL OTHER RESPECTS DEEMED ESSENTIAL TO PROVIDE SATISFACTORY PERFORMANCE, THE AMBULANCES OFFERED BY THE FLEXIBLE COMPANY WERE BELIEVED TO "GIVE EQUAL SERVICE TO THOSE SPECIFIED," AND THE BID WAS ACCEPTED AS COMING WITHIN THE ALTERNATE BID PROVISION OF THE ADVERTISED SPECIFICATIONS. THE OVERWEIGHT ON THE TIRES OCCURS IN THE MANUFACTURER'S CALCULATIONS. HOWEVER, AN OVERWEIGHT LIKEWISE OCCURRED IN THE BID OF THE HENNEY MOTOR COMPANY, WHEREIN THE MAXIMUM RATING OF THE 17 BY 7.50 TIRES OFFERED IS BELOW THE RATING REQUIRED FOR THE WEIGHT OF THE AMBULANCES OFFERED BY IT.

THE AWARD WAS MADE TO THE FLEXIBLE COMPANY ON SEPTEMBER 4, 1935, AND IS COVERED BY CONTRACT NO. NOS-44150, DATED SEPTEMBER 9, 1935. SAID CONTRACT, TOGETHER WITH A STATEMENT AND CERTIFICATE OF AWARD, STANDARD FORM NO. 1036, WAS TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE, AUDIT DIVISION, VIA THE TREASURY DEPARTMENT, SECTION OF SURETY BONDS, ON SEPTEMBER 23, 1935.

SINCE IT APPEARS THAT AWARD WAS MADE TO THE LOW BIDDER UNDER THE ALTERNATE PROVISION OF THE SPECIFICATIONS FOR AMBULANCES ADEQUATE FOR THE NEEDS OF THE GOVERNMENT, THIS OFFICE WILL NOT FURTHER QUESTION THE ADMINISTRATIVE ACTION IN THIS INSTANCE, AND THE HENNEY CO. HAS BEEN SO ADVISED.

HOWEVER, THE SITUATION HERE INVOLVED IS ILLUSTRATIVE OF THE EVILS OF SO FRAMING SPECIFICATIONS AS TO PRESCRIBE CUBIC-INCH PISTON DISPLACEMENT, THE OBJECTIONS TO WHICH HAVE BEEN POINTED OUT IN SEVERAL DECISIONS OF THIS OFFICE. WHAT MAY BE TERMED THE MAIN SPECIFICATION REQUIRED A PISTON DISPLACEMENT OF NOT LESS THAN 320 CUBIC INCHES, WHEREAS IT IS MANIFEST FROM THE ADMINISTRATIVE ACTION TAKEN THAT THE ENGINE WITH 278.1 CUBIC-INCH PISTON DISPLACEMENT WAS ADEQUATE FOR THE PURPOSE TO BE SERVED AND THE AMBULANCE OFFERED WAS SATISFACTORY IN ALL OTHER RESPECTS. THERE IS FOR CONSIDERATION, ALSO, THE POSSIBILITY THAT OTHER PROSPECTIVE BIDDERS WHO WERE IN A POSITION TO OFFER AMBULANCES IN EVERY WAY AS SATISFACTORY AS THE ONES ACCEPTED, AND AT A BETTER PRICE, WERE DETERRED FROM SUBMITTING BIDS BY THE REQUIREMENT FOR A MINIMUM PISTON DISPLACEMENT OF 320 CUBIC INCHES. ON THE OTHER HAND, WHEN THE ENGINES WITH 278.1-CUBIC-INCH PISTON DISPLACEMENT WERE ACCEPTED, A MATERIALLY HIGHER BIDDER IMMEDIATELY PROTESTED, AND CERTAINLY WITH SOME SHOW OF JUSTIFICATION, THAT SINCE THE SPECIFICATIONS HAD REQUIRED AN ENGINE OF 320 CUBIC INCHES MINIMUM PISTON DISPLACEMENT, NO BID SHOULD BE CONSIDERED OFFERING AN ENGINE WITH A LESSER DISPLACEMENT.

FURTHERMORE, SINCE THE NEEDS OF THE GOVERNMENT WERE KNOWN, IT WOULD APPEAR THAT IT WOULD HAVE BEEN AN EASY MATTER TO DETERMINE IN ADVANCE OF ADVERTISEMENT THAT THE RESTRICTIVE SPECIFICATIONS INVOLVED WERE WHOLLY UNNECESSARY. AS POINTED OUT IN A DECISION TO THE SECRETARY OF WAR, A- 59493, MARCH 6, 1935, OFFICERS CHARGED WITH THE RESPONSIBILITY OF DRAWING SPECIFICATIONS, ADVERTISING, AND CONTRACTING FOR GOVERNMENT NEEDS ARE PRESUMED TO HAVE NOT ONLY AN UNDERSTANDING OF THE REQUIREMENTS OF THE GOVERNMENT, BUT SOME KNOWLEDGE OF WHAT THE MARKET AFFORDS. IT IS UNDERSTOOD THAT VARIOUS TRADE JOURNALS DEVOTED TO THE INTEREST OF THE AUTOMOTIVE INDUSTRIES SET FORTH THE EQUIPMENT, ENGINE DIMENSIONS, WEIGHT AND PERFORMANCE CAPACITY OF ALL THE LEADING MAKES OF AUTOMOBILES AND A CAREFUL STUDY OF SUCH TRADE JOURNALS DOUBTLESS WOULD HAVE DISCLOSED THE FACT THAT AMBULANCES WERE OBTAINABLE WHICH WOULD MEET THE GOVERNMENT'S REQUIREMENTS WITH A MUCH LOWER PISTON DISPLACEMENT THAN THAT SPECIFIED.

WHILE THE PROCEDURE FOLLOWED WILL NOT BE FURTHER QUESTIONED IN THIS INSTANCE, ADMINISTRATIVE MEASURES SHOULD BE TAKEN TO PREVENT RECURRENCE OF THE SITUATION HERE PRESENTED.