A-65189, JANUARY 21, 1936, 15 COMP. GEN. 640

A-65189: Jan 21, 1936

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WAS NOT SATISFACTORY FOR THE PARTICULAR USE CONTEMPLATED. IS UNAUTHORIZED WHERE THE ADVERTISED TRUCK SPECIFICATIONS FAILED TO SET FORTH ANY EXTRAORDINARY SERVICE NEEDS. 1936: REFERENCE IS HAD TO YOUR LETTER OF OCTOBER 10. THE SPECIFICATIONS ACCOMPANYING THE INVITATION FOR BIDS WERE FOR 25 HEAVY -DUTY DUMP TRUCKS. THE DESIGN AND CONSTRUCTION SHALL INDICATE THAT THE TRUCK WILL BE RUGGED ENOUGH TO GIVE SATISFACTORY SERVICE WITH MINIMUM OF REPAIR AND REPLACEMENT OVER A SATISFACTORY WORKING PERIOD. OTHER PERTINENT PROVISIONS OF THE SPECIFICATIONS WERE AS FOLLOWS: MOTOR. TIRES AND WHEELS: TRUCK IS TO BE EQUIPPED WITH STANDARD. SINGLE FRONT AND DUAL REAR TIRES AND TUBES. * * * FOUR BIDS WERE RECEIVED AS FOLLOWS: FARGO MOTOR CORPORATION .

A-65189, JANUARY 21, 1936, 15 COMP. GEN. 640

CONTRACTS - TRUCK SPECIFICATIONS - NECESSITY FOR STATEMENT OF SERVICE REQUIREMENTS AWARD TO OTHER THAN THE LOW BIDDER ON THE BASIS THAT THE PRODUCT OF THE LOW BIDDER, THOUGH MEETING THE SPECIFICATIONS AS TO WEIGHT, POWER, SPEED, LOAD, AND PERFORMANCE CAPACITY, WAS NOT SATISFACTORY FOR THE PARTICULAR USE CONTEMPLATED, IS UNAUTHORIZED WHERE THE ADVERTISED TRUCK SPECIFICATIONS FAILED TO SET FORTH ANY EXTRAORDINARY SERVICE NEEDS, AND PAYMENTS MAY NOT BE MADE UNDER SAID AWARD IN EXCESS OF THE LOW BID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JANUARY 21, 1936:

REFERENCE IS HAD TO YOUR LETTER OF OCTOBER 10, 1935, QUOTED IN MY LETTER OF OCTOBER 31, TO YOU, AND TO YOUR LETTER OF NOVEMBER 18, 1935, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF THE GENERAL MOTORS TRUCK CO. AGAINST AWARD OF CONTRACT TO OTHER THAN THAT COMPANY FOR FURNISHING 25 TRUCKS UNDER BIDS OPENED AUGUST 8, 1935, IN RESPONSE TO CIRCULAR PROPOSAL NO. 36-26-ECW, ISSUED BY THE UNITED STATES DISTRICT ENGINEER, FIRST DISTRICT, NEW YORK CITY, NEW YORK.

THE SPECIFICATIONS ACCOMPANYING THE INVITATION FOR BIDS WERE FOR 25 HEAVY -DUTY DUMP TRUCKS, 1 1/2 CUBIC YARDS CAPACITY, F.O.B. WATERBURY, VT. THE SPECIFICATIONS DISCLOSED NOTHING RELATIVE TO THE SERVICE REQUIREMENTS (WORK TO BE DONE BY THE TRUCKS), OTHER THAN THAT STATED IN PARAGRAPH 1 AS FOLLOWS:

1. WORK TO BE DONE: THE WORK TO BE DONE UNDER THESE SPECIFICATIONS CONSISTS OF FURNISHING TWENTY-FIVE (25) HEAVY DUTY DUMP TRUCKS, IN ACCORDANCE WITH FEDERAL SPECIFICATIONS KKK-T-701A. RATED CAPACITY 1 1/2 CUBIC YARDS (WATER LEVEL) GROSS WEIGHT CAPACITY NOT LESS THAN 11,500 POUNDS. THE DESIGN AND CONSTRUCTION SHALL INDICATE THAT THE TRUCK WILL BE RUGGED ENOUGH TO GIVE SATISFACTORY SERVICE WITH MINIMUM OF REPAIR AND REPLACEMENT OVER A SATISFACTORY WORKING PERIOD.

OTHER PERTINENT PROVISIONS OF THE SPECIFICATIONS WERE AS FOLLOWS:

MOTOR.--- GASOLINE, 4 CYCLE, NOT LESS THAN 6 CYLINDERS. APPROXIMATELY AS FOLLOWS:

NOT LESS THAN 65 H.P. AT GOVERNED SPEED, AND THIS SPEED SHALL NOT BE GREATER THAN 80 PERCENT OF THE MAXIMUM ALLOWABLE AND IN NO CASE EXCEED 2,400 R.P.M.

PISTON DISPLACEMENT: AT LEAST 240 CUBIC INCHES.

MAXIMUM TORQUE, NET: NOT LESS THAN 150 POUND FEET.

CRANK SHAFT: 4 OR 7 BEARING TYPE.

3. OPERATING FEATURES: EQUIPPED WITH SUFFICIENT NUMBER OF OPTIONAL GEAR RATIOS TO GIVE SPEEDS UP TO 45 MILES PER HOUR AND A GRADE ABILITY CAPABLE OF CLIMBING CONTINUOUSLY UP TO 20 PERCENT WITH GROSS LOADING.

4. TIRES AND WHEELS: TRUCK IS TO BE EQUIPPED WITH STANDARD, CAST STEEL WHEELS WITH BALLOON TIRES 7.50 BY 20, 10 PLY, SINGLE FRONT AND DUAL REAR TIRES AND TUBES. * * *

FOUR BIDS WERE RECEIVED AS FOLLOWS:

FARGO MOTOR CORPORATION --------------------------------- $34,281.25

BROCKWAY MOTOR COMPANY, INC. ---------------------------- 34,750.00

THE WHITE COMPANY --------------------------------------- 29,576.25

GENERAL MOTORS TRUCK COMPANY ---------------------------- 25,909.35

THE FARGO MOTOR CORPORATION OFFERED THE DODGE K-46-V (PISTON DISPLACEMENT DOES NOT APPEAR); THE BROCKWAY MOTOR CO., INC., BID ON THE BROCKWAY MODEL- 87 (PISTON DISPLACEMENT 248 CUBIC INCHES); THE WHITE CO. OFFERED THE INDIANA MODEL-86 (PISTON DISPLACEMENT 263 INCHES), AND THE GENERAL MOTORS TRUCK CO. BID ON THE GENERAL MOTORS TRUCK MODEL-T 18-A (PISTON DISPLACEMENT 221.4 CUBIC INCHES). THE LAST-NAMED TRUCK HAD A TOP SPEED OF 43.5 MILES RATHER THAN 45 MILES PER HOUR AS REQUIRED BY THE SPECIFICATIONS. THE GENERAL MOTORS TRUCK CO. PROPOSED TO FURNISH THE TRUCKS EQUIPPED WITH 8-PLY TIRES INSTEAD OF THE 10-PLY TIRES REQUIRED. ITS BID WAS ACCOMPANIED BY A LETTER OF AUGUST 8, 1935, STATING WITH REFERENCE TO THIS VARIANCE; "SPECIFICATIONS CALLED FOR 7.50/20 10-PLY TIRES. TEN PLY TIRES ARE NOT MANUFACTURED IN THIS SIZE AND WE ARE ACCORDINGLY FURNISHING 7.50/20 8-PLY TIRES.'

UNDER DATE OF AUGUST 12, 1935, THE GENERAL MOTORS TRUCK CO. WROTE THE UNITED STATES ENGINEER'S OFFICE, NEW YORK CITY, IN PART AS FOLLOWS:

VARIOUS OF THE TIRE COMPANIES INFORMED US THAT 7/50.20 TIRES WERE NOT MANUFACTURED IN A 10-PLY. WE ACCORDINGLY STATED IN THE LETTER ACCOMPANYING OUR BID THAT THESE TIRES WERE NOT AVAILABLE AND OUR TRUCK WOULD BE EQUIPPED WITH 8-PLY TIRES.

WE HAVE SUBSEQUENTLY LEARNED THAT THE FIRESTONE COMPANY MAKE FOR THE UNITED STATES GOVERNMENT, ON SPECIAL ORDER, 7/50.20 10-PLY TIRES. WE CAN FURNISH THESE AT A NET ADDITIONAL COST PER TRUCK OF $32.00.

RELATIVE TO THE DEFICIENCY IN PISTON DISPLACEMENT AND TOP SPEED OF THE TRUCK OFFERED, THE LETTER OF AUGUST 8, 1935, ACCOMPANYING THE BID OF THE GENERAL MOTORS TRUCK CO., STATED:

1. OUR MOTOR HAS A DISPLACEMENT OF 221.4 CU. IN. INSTEAD OF 240 CU. IN. AS CALLED FOR. HOWEVER, OUR MOTOR HAS A TORQUE OF 161 FT. LBS. FROM 1,000 TO 1,600 R.P.M. AND A HORSEPOWER OF 68 AT 2,400 R.P.M., WHICH IS IN EXCESS OF THE TORQUE AND HORSEPOWER CALLED FOR. THE OBVIOUS INTENT IN SPECIFYING A CUBIC INCH DISPLACEMENT IS TO OBTAIN A CERTAIN AMOUNT OF POWER AND INASMUCH AS THE POWER OF OUR ENGINE IS IN EXCESS OF THE POWER CALLED FOR WE RESPECTFULLY SUBMIT THAT WE MEET THE SPECIFICATIONS.

2. A TOP SPEED OF 45 M.P.H. IS CALLED FOR. WITH A GEAR RATIO AS FURNISHED IN THE VEHICLE WE ARE BIDDING ON, OUR TOP SPEED IS 43.5 M.P.H. IF THE DEPARTMENT INSISTS ON 45 M.P.H., WE CAN FURNISH IT BY SUBSTITUTING A HIGHER REAR AXLE RATIO AND SACRIFICING SOME SLIGHT PERFORMANCE.

ON THE ABSTRACT OF BIDS ACCOMPANYING YOUR LETTER OF NOVEMBER 18, 1935, APPEARS THE FOLLOWING NOTATION OVER THE NAME OF W. C. HENNETT, JR., CAPTAIN CORPS OF ENGINEERS, ASSISTANT TO THE DISTRICT ENGINEER, FIRST DISTRICT, NEW YORK.

RECOMMEND BID NO. 4, BE REJECTED AS NOT MEETING THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS WITH REGARD TO PISTON DISPLACEMENT, NUMBER OF PLIES OF TIRES, GOVERNED OPERATING SPEED AND ROAD SPEED AND THAT AWARD BE MADE TO BID NO. 3, THE LOW BIDDER MEETING THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS.

AUGUST 14, 1935, THE ABSTRACT OF BIDS WAS FORWARDED TO THE CHIEF OF ENGINEERS THROUGH THE DIVISION ENGINEER, NORTH ATLANTIC DIVISION, WITH A LETTER IN PART AS FOLLOWS:

2. THE LOWEST BID, THAT OF THE GENERAL MOTORS TRUCK COMPANY, DOES NOT COMPLY WITH THE SPECIFICATIONS IN THE FOLLOWING RESPECTS:

CHART

ITEM GENERAL WHITE

MOTORS COMPANY GOVERNED OPERATING SPEED NOT TO EXCEED

2,400 R.P.M. -------------------------- 2,500 2,240 PISTON DISPLACEMENT, AT LEAST 240 CUBIC

INCHES* ------------------------------- 221.4 263 10-PLY TIRES* --------- ------------------- 8 10 SPEEDS UP TO 45 MILES PER HOUR -----------

43.5 45

3. THERE IS ALSO INCLOSED HEREWITH A LETTER FROM THE GENERAL MOTORS TRUCK COMPANY, DATED AUGUST 12, 1935, ADVISING THAT THEY CAN FURNISH 10-PLY TIRES AT AN ADDITIONAL COST OF $32.00 PER TRUCK. THIS ADVICE WAS RECEIVED FOUR DAYS AFTER THE OPENING OF BIDS.

4. THE SECOND AND THIRD ITEMS INDICATED BY (*) ARE ESSENTIAL REQUIREMENTS. THE PISTON DISPLACEMENT DETERMINES THE CLASS OF HEAVY DUTY TRUCK REQUIRED TO GIVE SATISFACTORY SERVICE ON THE CONSTRUCTION OF AN EARTH FILL DAM OVER A THREE-YEAR PERIOD. IN ADDITION TO LONGER SERVICE, A 10-PLY TIRE DESIGNED FOR THIS CLASS OF WORK ELIMINATES THE NECESSITY FOR USING CHAINS THROUGHOUT THE YEAR.

5. IT IS THEREFORE RECOMMENDED THAT BID NO. 4 BE REJECTED AND AWARD MADE TO BID NO. 3, THE WHITE COMPANY, THE LOWEST BIDDER COMPLYING WITH THE SPECIFICATIONS.

AUGUST 15 THE DIVISION ENGINEER, NORTH ATLANTIC DIVISION, TRANSMITTED THE LETTER BY FIRST ENDORSEMENT IN PART AS FOLLOWS:

1. THE MINIMUM PISTON DISPLACEMENT ESTABLISHED IN THE SPECIFICATIONS IS AN ESSENTIAL REQUIREMENT FOR THE TYPE AND DURATION OF WORK FOR WHICH THESE TRUCKS ARE REQUIRED. SO ALSO IS THE REQUIREMENT FOR 10 PLY TIRES, ALTHOUGH THE GENERAL MOTORS COMPANY LATER OFFERED TO SUPPLY 10 PLY TIRES AT A FIGURE WHICH WOULD STILL LEAVE ITS BID LOW. IT IS THEREFORE RECOMMENDED THAT THE BID OF GENERAL MOTORS TRUCK COMPANY, NEW YORK, N.Y., THE LOW BIDDER, BE REJECTED AS NOT MEETING THE REQUIREMENTS OF THE SPECIFICATIONS, AND THAT AUTHORITY BE GRANTED TO ACCEPT THE BID OF THE WHITE COMPANY, NEW YORK, N.Y., THE NEXT LOW BIDDER MEETING SUCH REQUIREMENTS, AS RECOMMENDED IN PARAGRAPH 5 OF THE BASIC LETTER, AND TO ENTER INTO CONTRACT ACCORDINGLY.

AUGUST 24, 1935, THE CHIEF OF ENGINEERS RETURNED THE LETTER BY SECOND ENDORSEMENT IN PART AS FOLLOWS:

1. CONFIRMING TELEGRAM OF AUGUST 24 TO THE DISTRICT ENGINEER, AUTHORITY IS HEREBY GIVEN TO REJECT THE LOW BID OF THE GENERAL MOTORS TRUCK COMPANY AS NOT MEETING THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS AND TO ACCEPT THE PROPOSAL OF THE WHITE COMPANY, THE LOW BIDDER MEETING THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS, AS RECOMMENDED IN PARAGRAPH 5 OF THE BASIC LETTER AND 1ST INDORSEMENT THEREON, AND TO ENTER INTO CONTRACT COVERING THE PURCHASE.

CONTRACT NO. W-5215-ENG-ECW-81, AUGUST 26, 1935, WAS AWARDED TO THE WHITE COMPANY AT AN EXCESS COST OF $3,666.90, OR, IF THERE BE TAKEN INTO CONSIDERATION THE DIFFERENCE OF $800 BETWEEN THE COST OF 8-PLY AND 10-PLY TIRES FOR THE 25 TRUCKS, AN EXCESS COST OF $2,866.90.

WITHOUT INDULGING IN A DETAILED COMPARISON OF THE SPECIFICATIONS OF THE GENERAL MOTORS TRUCKS AND THE INDIANA TRUCKS APPEARING IN "F" QUESTIONNAIRE ATTACHED TO THE RESPECTIVE BIDS, IT MAY BE SAID THAT WITH THE EXCEPTION OF THE DIFFERENCES NOTED AND OTHER OF A MINOR CHARACTER THE MECHANICAL SPECIFICATIONS FOR THE TWO TRUCKS APPEAR UNUSUALLY SIMILAR.

YOUR LETTER OF OCTOBER 10, 1935, STATES IN PART AS FOLLOWS:

THE LOW BIDDER OFFERED TRUCKS EQUIPPED WITH MOTORS HAVING A PISTON DISPLACEMENT OF ONLY 221.4 CUBIC INCHES, WHEREAS THE ADVERTISED SPECIFICATIONS PRESCRIBED A MINIMUM OF 240 CUBIC INCHES. IT IS ALLEGED BY THE GENERAL MOTORS TRUCK COMPANY THAT THE TRUCKS OFFERED WILL DEVELOP THE REQUIRED 68 HORSEPOWER AT 2,400 R.P.M. AFTER A THOROUGH CONSIDERATION OF THE BID SUBMITTED BY THE GENERAL MOTORS TRUCK COMPANY, IT WAS DETERMINED THAT IF THE MACHINES WHICH THAT BIDDER PROPOSED TO FURNISH WOULD, IN FACT, DEVELOP THE REQUIRED HORSEPOWER AT THE GOVERNED R.P.M., THE ENGINES WERE NECESSARILY OF THE HIGH COMPRESSION TYPE.

TRUCKS OF BOTH THE HIGH AND LOW COMPRESSION TYPE ENGINES MEET REAL NEEDS IN THE CONSTRUCTION INDUSTRY BUT ARE NOT EQUALLY EFFICIENT IN ALL CLASSES OF HAULING. THESE TRUCKS ARE BEING PURCHASED FOR USE IN THE CONSTRUCTION OF A ROLLED FILL DAM IN NORTHERN VERMONT. AT LEAST 40 PERCENT OF THE TRUCKING DONE WILL BE UNDER CAPACITY LOADS OVER SOFT EARTH FILL, TEMPORARILY CONSTRUCTED ROADS, OR IN ROUGH BORROW PITS. EXPERIENCE HAS DEMONSTRATED THAT TRUCKS EQUIPPED WITH LOW COMPRESSION MOTORS PERFORM MUCH MORE SATISFACTORILY AND AT LOWER MAINTENANCE COST THAN THOSE OF A HIGH COMPRESSION TYPE UNDER THESE CONDITIONS.

A 10-PLY TIRE WAS SPECIFIED FOR THE REASON THAT IT GREATLY FACILITATES THE HANDLING OF TRUCKS IN SOFT MATERIAL AND ELIMINATES THE USE OF CHAINS. THIS TYPE OF TIRE IS MANUFACTURED AND AVAILABLE, AND ALL OTHER BIDDERS PROPOSED TO FURNISH SUCH A TIRE.

THE FACT THAT THE TRUCKS PROPOSED TO BE FURNISHED BY GENERAL MOTORS TRUCK COMPANY DEVELOPED A SPEED IN HIGH GEAR OF 43.5 MILES PER HOUR AT A GOVERNED ENGINE SPEED OF 2,400 R.P.M., INSTEAD OF A SPEED OF 45 MILES PER HOUR AS REQUIRED BY THE SPECIFICATIONS, WAS NOT TAKEN INTO CONSIDERATION IN MAKING THE AWARD, AS THIS DISCREPANCY IN THE SPEED RANGE SPECIFIED WAS NOT SUFFICIENT TO CONSTITUTE A MATERIAL DEVIATION IN THE MECHANICAL DESIGN OF THE TRUCKS FROM THAT CALLED FOR BY THE SPECIFICATIONS.

ASIDE FROM YOUR STATEMENT THAT IT WAS DETERMINED AFTER A THOROUGH INVESTIGATION THAT THE ENGINE OF THE GENERAL MOTORS TRUCKS WAS "NECESSARILY OF THE HIGH-COMPRESSION TYPE," THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE REJECTION OF THE LOW BID WAS BASED UPON THE CONCLUSION (EVEN IF SUCH CONCLUSION SHOULD BE ESTABLISHED AS CORRECT) THAT THE ENGINE OFFERED BY THE LOW BIDDER WAS A HIGH-COMPRESSION RATHER THAN A LOW-COMPRESSION ENGINE. THE STATEMENT IN THE LETTER OF AUGUST 14, IS THAT "THE PISTON DISPLACEMENT DETERMINES THE CLASS OF HEAVY-DUTY TRUCK REQUIRED TO GIVE SATISFACTORY SERVICE ON THE CONSTRUCTION OF AN EARTH-FILLED DAM OVER A 3-YEAR PERIOD.' THE FIRST ENDORSEMENT OF AUGUST 15, IS THAT "THE MINIMUM PISTON DISPLACEMENT ESTABLISHED IN THE SPECIFICATIONS IS AN ESSENTIAL REQUIREMENT FOR THE TYPE AND DURATION OF WORK FOR WHICH THESE TRUCKS ARE REQUIRED.' THERE IS NO INTIMATION THAT THE QUESTION AS TO THE HIGH- OR LOW-COMPRESSION TYPE OF ENGINE WAS GIVEN CONSIDERATION, OR THAT REJECTION OF THE LOW BID WAS BASED UPON SUCH FACT, IF ESTABLISHED. IT WAS MERELY STATED THAT THE MINIMUM PISTON DISPLACEMENT WAS AN ESSENTIAL SPECIFICATION IN DETERMINING THE CLASS OF HEAVY-DUTY TRUCKS FOR THE TYPE AND DURATION OF THE WORK AND THE BID OF THE LOW BIDDER WAS REJECTED.

CONCEDING THAT THE ENGINE OFFERED BY THE GENERAL MOTORS TRUCK CO. WAS A HIGH-COMPRESSION TYPE AND FURTHER THAT LOW-COMPRESSION MOTORS PERFORM MORE SATISFACTORILY AND AT LOWER MAINTENANCE COST UNDER THE CONDITIONS OUTLINED IN YOUR LETTER, THE FACT AFFORDED NO JUSTIFICATION FOR REJECTION OF THE LOW BID IN THIS INSTANCE. SPECIFICATIONS WERE SILENT AS TO SERVICE REQUIREMENTS AND BIDDERS WERE GIVEN NO INFORMATION AS TO THE WORK TO BE PERFORMED, THE ONLY REQUIREMENT WAS FOR HEAVY-DUTY DUMP TRUCKS OF A GIVEN CAPACITY AND A MINIMUM GROSS WEIGHT, OF A DESIGN AND CONSTRUCTION TO INDICATE THAT THE TRUCKS WOULD BE RUGGED ENOUGH TO GIVE SATISFACTORY SERVICE WITH A MINIMUM OF REPAIR AND REPLACEMENT OVER A SATISFACTORY WORKING PERIOD. THERE WAS NOT EVEN A SUGGESTION AS TO WHAT WAS OR WOULD BE CONSIDERED A SATISFACTORY WORKING PERIOD. IN OTHER WORDS, IN THE PREPARATION OF THE SPECIFICATIONS THERE WAS AN APPARENT OVERSIGHT OF ONE OF THE FUNDAMENTAL RULES OF ADVERTISING FOR GOVERNMENT PURCHASES, TO WIT:THAT THE NEEDS OF THE GOVERNMENT SHOULD BE STATED WITH COMPLETENESS AND CLARITY. 14 COMP. GEN. 491; 13 ID. 284.

BASED UPON THE ADVERTISED SPECIFICATIONS, WHICH DID NOT INDICATE ANY SPECIAL OR UNUSUAL SERVICE TO BE PERFORMED, THE GENERAL MOTORS TRUCK CO. OFFERED TRUCKS COMPLYING WITH EVERY ESSENTIAL REQUIREMENT OF THE SPECIFICATIONS AS TO WEIGHT, POWER, SPEED, LOAD, AND PERFORMANCE CAPACITY. THE ONLY RESPECT IN WHICH THE TRUCK FELL MATERIALLY BELOW THE SPECIFICATIONS WAS THAT OF CUBIC INCHES PISTON DISPLACEMENT. THIS OFFICE HAS HELD IN NUMEROUS DECISIONS TO YOU AND TO THE HEADS OF OTHER DEPARTMENTS THAT THE ACCEPTANCE OR REJECTION OF AN OTHERWISE ACCEPTABLE BID MAY NOT BE MADE TO REST UPON THE FACT OF PISTON DISPLACEMENT ALONE, FOR THE REASON, AS SHOWN IN SAID DECISIONS, THAT PISTON DISPLACEMENT, EXCEPT WITHIN BROAD LIMITS, AFFORDS NO INDEX TO THE PERFORMANCE CAPACITY OF THE VEHICLE. 13 COMP. GEN. 284; 14 COMP. GEN. 832. WHAT WAS SAID IN THE DECISION OF 14 COMP. GEN. 832, WITH REFERENCE TO CUBIC-INCH DISPLACEMENT, AS APPLIED TO ENGINES OF THE SMALLER TYPE, IS, OF COURSE, EQUALLY APPLICABLE TO VEHICLES IN OTHER CLASSES. PARTICULARLY IS THIS TRUE WHEN A TRUCK OFFERED BY THE LOW BIDDER MEETS THE SPECIFICATIONS WITH RESPECT TO WEIGHT, POWER, LOAD CAPACITY, GRADE ABILITY, AND NECESSARY SPEED AND COMPARES FAVORABLY WITH THOSE OF OTHER BIDDERS IN THESE RESPECTS.

IT APPEARS FROM THE RECORD IN THIS CASE THAT NOT ONLY WERE THE SPECIFICATIONS SO DRAWN THE REJECTION OF A BID MIGHT HINGE UPON THE QUESTION OF PISTON DISPLACEMENT, BUT THAT THE REJECTION OF THE BID OF THE GENERAL MOTORS CO. ACTUALLY RESTS UPON THAT FACT, FOR IT IS NOT TO BE CONCEIVED OR IMAGINED THAT YOUR DEPARTMENT WOULD HAVE AWARDED THE CONTRACT TO THE WHITE CO. AT AN EXCESS COST OF $3,666.90, MERELY BY REASON OF THE DIFFERENCE IN THE TIRES OFFERED BY THE TWO COMPANIES.

AS TO THE REQUIREMENT FOR 10-PLY TIRES, WHICH WAS RATED AS AN ESSENTIAL REQUIREMENT OF THE SPECIFICATIONS, YOUR LETTER OF OCTOBER 10, 1935, STATED,"A 10-PLY TIRE WAS SPECIFIED FOR THE REASON THAT IT GREATLY FACILITATES THE HANDLING OF TRUCKS IN SOFT MATERIAL AND ELIMINATES THE USE OF CHAINS. THIS TYPE OF TIRE IS MANUFACTURED AND AVAILABLE AND ALL OTHER BIDDERS PROPOSE TO FURNISH SUCH A TIRE.'

THE STATEMENT MAY BE ACCEPTED, BUT DOES NOT ESTABLISH THE ESSENTIAL CHARACTER OF THE 10-PLY TIRES TO THE OPERATION OF THE TRUCKS. "ESSENTIAL" MEANS INDISPENSABLY NECESSARY; IMPORTANT IN THE HIGHEST DEGREE; REQUISITE.' WORDS AND PHRASES, THIRD SERIES, VOLUME 3, PAGE 328 CITING 236 FED. 756-7. THE EVIDENCE BEFORE THIS OFFICE IS TO THE EFFECT THAT THE 8-PLY TIRE IS THE HEAVIEST ORDINARILY MANUFACTURED IN THE SIZE SPECIFIED, THAT IT IS THE HEAVIEST ORDINARILY USED ON SUCH TRUCKS, AND THAT THE 10-PLY TIRE IS MANUFACTURED BY ONLY ONE COMPANY AND THEN ONLY "FOR THE UNITED STATES GOVERNMENT ON SPECIAL ORDER.' IT MAY BE TRUE THAT THE 10-PLY TIRES ARE MORE DURABLE, FACILITATE THE OPERATION OF THE TRUCKS AND ELIMINATE THE USE OF CHAINS, BUT IT HARDLY CAN BE SERIOUSLY CONTENDED THAT SUCH TIRES ARE "INDISPENSABLY NECESSARY" TO THE REASONABLY SATISFACTORY OPERATION OF THE TRUCKS. IN THIS CONNECTION ATTENTION IS INVITED TO THE FIGURES APPEARING IN LETTER OF AUGUST 31, 1935, FROM THE GENERAL MOTORS TRUCK CO. QUOTED IN MY LETTER OF SEPTEMBER 11, INDICATING THAT THE TOTAL RATED CARRYING CAPACITY OF SIX TIRES SIZE 7.50/20 EIGHT-PLY IS 13,200 POUNDS OR AN EXCESS CAPACITY OF 1,700 POUNDS OVER THE GROSS LOAD WEIGHT CAPACITY OF 11,500 POUNDS REQUIRED IN THE SPECIFICATIONS.

THE MATTER OF MINIMUM SPEED NEED NOT BE DISCUSSED SINCE YOU STATE THE SLIGHT DEFICIENCY OF THE GENERAL MOTORS TRUCK IN THAT RESPECT WAS NOT CONSIDERED IN THE REJECTION OF THE BID. IT MAY BE OBSERVED, HOWEVER, THAT IF, AS YOU SAY, THE TRUCKS ARE FOR USE IN HAULING CAPACITY LOADS OVER SOFT EARTH FILL, TEMPORARY ROADS, AND IN ROUGH BORROW PITS, A REQUIRED SPEED OF 45 MILES PER HOUR WOULD APPEAR TO BE NONESSENTIAL IN ANY EVENT.

IT HAS BEEN HELD CONSISTENTLY THAT WHERE THE SPECIFICATIONS DO NOT SET FORTH ANY EXTRAORDINARY NEEDS OF THE GOVERNMENT IN THE ACQUISITION OF AUTOMOBILES, THERE IS NO LEGAL AUTHORITY FOR THE REJECTION OF AN OTHERWISE ACCEPTABLE LOW BID UPON THE ADMINISTRATIVE CONCLUSION THAT THE VEHICLES OFFERED ARE NOT AS DESIRABLE FOR THE WORK TO BE PERFORMED AS THOSE OFFERED BY ANOTHER BIDDER. 14 COMP. GEN. 491. SINCE IT APPEARS IN THIS INSTANCE THAT THE SPECIFICATIONS FAILED TO DISCLOSE ANY SUCH SPECIAL NEEDS, AND SINCE THE TRUCK OFFERED BY THE GENERAL MOTORS TRUCK CO. COMPLIED IN EVERY ESSENTIAL RESPECT WITH THE SPECIFICATIONS THERE WAS NO LEGAL AUTHORITY FOR AWARDING THE CONTRACT TO HIGHER BIDDER MERELY BY REASON OF THE DIFFERENCE IN CUBIC INCH PISTON DISPLACEMENT, OR WEIGHT OF TIRE.

IT FOLLOWS THAT AWARD OF THE CONTRACT TO OTHER THAN THE LOW BIDDER UNDER THE ADVERTISED SPECIFICATIONS WAS UNAUTHORIZED, AND UPON THE FACTS PRESENTED THE APPROPRIATION SOUGHT TO BE CHARGED WILL NOT BE AVAILABLE FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THAT OF THE LOWEST BIDDER, PLUS THE $800 DIFFERENCE BETWEEN THE 8-PLY TIRE OFFERED BY SAID LOW BIDDER AND THE 10-PLY TIRE OFFERED BY THE WHITE CO. IN THIS CONNECTION THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE GENERAL MOTORS TRUCK WITH 221.4 CUBIC INCH PISTON DISPLACEMENT ENGINE HAS EVER BEEN USED BY YOUR DEPARTMENT UPON WORK OF SIMILAR CHARACTER TO THAT INVOLVED IN THE PRESENT INSTANCE, OR THAT THERE HAS BEEN ANY EXPERIENCE BY YOUR DEPARTMENT JUSTIFYING AN ADMINISTRATIVE DETERMINATION THAT SUCH TRUCKS WOULD NOT BE ADEQUATE FOR THE PERFORMANCE OF THE WORK INVOLVED.