A-66914, JULY 18, 1936, 16 COMP. GEN. 38

A-66914: Jul 18, 1936

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THE DRAWING OF SPECIFICATIONS CALLING FOR VEHICLES IN A RECOGNIZED COMPETITIVE GROUP OR CLASS WILL NOT BE OBJECTED TO WHERE ACTUAL NEED IS SHOWN. IT IS NOTED THAT WHILE YOUR OFFICE WILL NOT WITHHOLD APPROVAL OF THE USE OF APPROPRIATED MONEYS FOR OTHERWISE PROPER PAYMENTS UNDER CONTRACTS AWARDED TO THE LOW BIDDERS IN THE TWO INSTANCES INVOLVED. THE DEPARTMENT WISHES TO ASSURE YOU THAT IT INTENDS TO ELIMINATE FROM FUTURE SPECIFICATIONS COVERING MOTOR EQUIPMENT THE FEATURES TO WHICH OBJECTION IS MADE IN YOUR DECISION. IN SO FAR AS THIS IS POSSIBLE CONSISTENT WITH THE ACTUAL REQUIREMENTS OF THE FIELD PROJECTS ON WHICH SUCH EQUIPMENT IS TO BE USED. WITH WHICH THE DEPARTMENT IS IN COMPLETE AGREEMENT.

A-66914, JULY 18, 1936, 16 COMP. GEN. 38

CONTRACTS - AUTOMOBILE SPECIFICATIONS - SERVICE NEEDS THE GOVERNMENT HAVING NEED FOR VARIOUS TYPES OF AUTOMOBILES, THE DRAWING OF SPECIFICATIONS CALLING FOR VEHICLES IN A RECOGNIZED COMPETITIVE GROUP OR CLASS WILL NOT BE OBJECTED TO WHERE ACTUAL NEED IS SHOWN, BUT SPECIFICATIONS MAY NOT BE SO DRAWN AS TO REFLECT ADMINISTRATIVE PREFERENCE NOT BASED ON ACTUAL NEEDS. THE GOVERNMENT MAY NOT BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS REQUIREMENTS BUT SPECIFICATIONS RESTRICTIVE OF COMPETITION WITHIN THE REASONABLE REQUIREMENTS OF THE STATUTES MUST NECESSARILY BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, JULY 18, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 6, 1936, AS FOLLOWS:

YOUR DECISION OF APRIL 13, 1936 (A-66914), IN CONNECTION WITH A PROTEST OF THE MARMON-HERRINGTON COMPANY, INC., OF INDIANAPOLIS, INDIANA, AGAINST THE PURCHASE OF FOUR-WHEEL DRIVE TRUCKS FOR THE FOREST SERVICE UNDER SPECIFICATIONS SIMILAR TO THOSE EMPLOYED IN ADVERTISING UNDER THE DEPARTMENT'S BID TRANSACTION U.S.D.A. NO. 2299, HAS BEEN RECEIVED AND CAREFULLY CONSIDERED. IT IS NOTED THAT WHILE YOUR OFFICE WILL NOT WITHHOLD APPROVAL OF THE USE OF APPROPRIATED MONEYS FOR OTHERWISE PROPER PAYMENTS UNDER CONTRACTS AWARDED TO THE LOW BIDDERS IN THE TWO INSTANCES INVOLVED, U.S.D.A. NO. 2299 AND U.S.D.A. NO. 2307, YOU EXPECT THE DEPARTMENT TO TAKE ADMINISTRATIVE ACTION TO THE END THAT SPECIFICATIONS ISSUED BY IT FOR MOTOR EQUIPMENT SHALL IN FUTURE BE FREE FROM THE VARIOUS OBJECTIONABLE FEATURES, BOTH AS TO DELIVERY REQUIREMENTS AND RESTRICTIVE OR NONESSENTIAL MECHANICAL STIPULATIONS, CONSIDERED IN YOUR DECISION.

THE DEPARTMENT WISHES TO ASSURE YOU THAT IT INTENDS TO ELIMINATE FROM FUTURE SPECIFICATIONS COVERING MOTOR EQUIPMENT THE FEATURES TO WHICH OBJECTION IS MADE IN YOUR DECISION, IN SO FAR AS THIS IS POSSIBLE CONSISTENT WITH THE ACTUAL REQUIREMENTS OF THE FIELD PROJECTS ON WHICH SUCH EQUIPMENT IS TO BE USED. HAVING IN MIND YOUR REQUIREMENT, WITH WHICH THE DEPARTMENT IS IN COMPLETE AGREEMENT, THAT SPECIFICATIONS MUST ALWAYS BE BASED "UPON THE CHARACTER OF THE JOB TO BE DONE," EVERY EFFORT WILL BE MADE TO HAVE FUTURE PROPOSALS FOR MECHANICAL EQUIPMENT SOLICITED UNDER SPECIFICATIONS WHICH WILL INCLUDE SERVICE REQUIREMENTS ADEQUATELY OUTLINING THE WORK TO BE DONE AND THE CONDITIONS OF USE, IN ORDER THAT THE NEED FOR SPECIFIC REQUIREMENTS COVERING SIZE, WEIGHT, POWER, BRAKES, ETC., WILL BE MADE ENTIRELY CLEAR TO PROSPECTIVE BIDDERS. IN THIS CONNECTION, HOWEVER, IT IS FELT THAT IN ORDER TO CONVINCE YOUR OFFICE OF THE SINCERITY AND ADEQUACY OF THE DEPARTMENT'S REACTION TO YOUR DECISION, IT WILL BE NECESSARY TO PURSUE FURTHER A DISCUSSION OF CERTAIN OF THE POINTS RAISED.

IN REGARD TO CHASSIS WEIGHT, WHICH IS DISCUSSED ON PAGES 6 AND 7 OF YOUR DECISION, IT IS NOT THE DEPARTMENT'S PRACTICE TO DETERMINE THE REQUIREMENTS BY AVERAGING THE WEIGHTS OF VARIOUS MAKES AND MODELS. THIS AVERAGE WEIGHT, TO WHICH YOU REFER, WAS POINTED OUT MERELY TO INDICATE THAT SEVERAL MANUFACTURERS ARE IN A POSITION TO OFFER TRUCKS OF CURRENT MODEL MEETING THE DEPARTMENT'S REQUIREMENTS. THERE IS NO OBJECTION TO THE ALLOWANCE OF A REASONABLE TOLERANCE IN THE WEIGHT SPECIFICATIONS; HOWEVER, THERE IS, IN EVERY CASE, A MINIMUM WEIGHT BELOW WHICH THE DEPARTMENT CANNOT GO WITHOUT MATERIALLY AND ADVERSELY AFFECTING THE EFFICIENCY OF THE EQUIPMENT ON THE FIELD WORK, AND THIS MINIMUM AS TRULY EXISTS REGARDLESS OF WHETHER IT IS EXPRESSED AS A FIGURE FROM WHICH A CERTAIN PERCENTAGE OF TOLERANCE WILL BE ALLOWED OR WHETHER A DEFINITE MINIMUM WEIGHT IS INDICATED. IT IS OBVIOUS THAT THE DETERMINATION OF A MINIMUM WEIGHT IS TO SOME EXTENT A MATTER OF JUDGMENT, BUT THAT THE OFFICERS IN CHARGE OF THE PROJECTS MUST BE GUIDED, IN THEIR RECOMMENDATIONS, BY THE CLASSES OF EQUIPMENT AVAILABLE ON THE MARKET AS WELL AS BY THEIR KNOWLEDGE OF THE SUCCESSES AND FAILURES OF VARIOUS UNITS ON PAST WORK. THE JUDGMENT OF THE FIELD OFFICERS AND OF THE DEPARTMENT'S ENGINEERS THOROUGHLY FAMILIAR WITH THE CONDITIONS UNDER WHICH THE EQUIPMENT IS TO BE USED MUST NECESSARILY BE RELIED UPON IN THE FRAMING OF THE SPECIFICATIONS; OTHERWISE THERE WOULD BE LITTLE NEED TO MENTION MORE THAN A SERVICE REQUIREMENT, WHICH WOULD LEAD TO ENDLESS ARGUMENT WITH SELF-SEEKING BIDDERS AND HENCE BE A VERY INEFFECTIVE WAY OF PURCHASING ANY KIND OF EQUIPMENT. IN THE CASE INVOLVED IN THE INSTANT DECISION THE VARIATION BETWEEN THE WEIGHT OF THE EQUIPMENT OFFERED BY THE MARMON-HERRINGTON COMPANY, 5,155 POUNDS, IS SO MUCH BELOW THE MINIMUM REQUIREMENT OF 6,900 POUNDS INDICATED IN THE SPECIFICATIONS THAT OBVIOUSLY THE OFFER COULD NOT BE CONSIDERED EVEN IF A REASONABLE PERCENTAGE TOLERANCE HAD BEEN USED IN THE SPECIFICATIONS IN LIEU THEREOF.

THE DEPARTMENT ALSO DESIRES TO POINT OUT THAT IT HAS MADE AN EARNEST EFFORT IN THE PAST TO SECURE EQUIPMENT TO MEET THE MINIMUM REQUIREMENTS OF THE SERVICE TO BE PERFORMED, AND IT MUST BE ADMITTED THAT THESE EFFORTS HAVE NOT ALWAYS BEEN ENTIRELY SUCCESSFUL. THERE IS NO INTENTION HERE TO IMPLY THAT MANUFACTURERS AS A RULE ARE UNSCRUPULOUS AND KNOWINGLY ATTEMPT TO DEFRAUD THE GOVERNMENT BY FURNISHING POORLY FABRICATED EQUIPMENT WHICH IT IS KNOWN WILL NOT RENDER REASONABLE SERVICE UNDER THE INDICATED CONDITIONS OF USE. HOWEVER, SUCH PRACTICES ARE NOT OUTSIDE THE REALM OF POSSIBILITY AND OCCASIONAL OCCURRENCE, AND FOR THIS REASON THE DEPARTMENT FEELS THAT THIS FULLY JUSTIFIES ITS STIPULATION OF CERTAIN MECHANICAL SPECIFICATIONS REGARDED AS ESSENTIAL TO GOOD PURCHASE PRACTICES. UNLESS DETAILED MECHANICAL SPECIFICATIONS ARE EMPLOYED, THERE IS BOUND TO BE A WIDE VARIANCE OF EX PARTE OPINION AMONG MANUFACTURERS AS TO THE TYPE OF EQUIPMENT ACCEPTABLE, WITH THE RESULT THAT ONE MANUFACTURER WILL, WITH HONEST INTENTION OR OTHERWISE, BASE HIS BID ON FURNISHING WHAT HE DEEMS SUFFICIENT TO PERFORM THE WORK, ALTHOUGH THE DEPARTMENT, UNDER ITS EXPERIENCE, WILL KNOW TO BE UNACCEPTABLE, WHILE OTHERS MAY OFFER EVEN MORE THAN IS REQUIRED. IN THIS RESPECT IT IS THE BELIEF OF THIS DEPARTMENT THAT GOVERNMENT ENGINEERS ARE BETTER QUALIFIED TO DETERMINE WHAT IS NEEDED TO HANDLE THE WORK THAN THE SALESMAN OF SOME COMPANY THAT NEVER SAW THE JOB AND IN SOME INSTANCES HAS NEVER SEEN HIS OWN EQUIPMENT IN OPERATION ON PROJECTS SUCH AS ARE ENCOUNTERED IN SOME OF THE GOVERNMENT PROJECTS.

YOUR COMMENTS ON BRAKES ARE NOTED AND WHENEVER IT IS DETERMINED THAT FULL AIR BRAKES ARE NECESSARY, AS THEY OFTEN ARE, THE NEED THEREFOR WILL BE FULLY COVERED IN SERVICE REQUIREMENTS BASED ON THE ACTUAL FIELD CONDITIONS.

THE PRINCIPLES SET FORTH IN YOUR DECISION, UNDER THE REASONABLE MODIFICATIONS INDICATED IN THE FOREGOING STATEMENT, CAN AND WILL GLADLY BE OBSERVED BY THE DEPARTMENT IN ITS FUTURE ADVERTISING, AND IT IS SINCERELY HOPED THAT THE SPECIFICATIONS THUS DEVELOPED WILL PROVE ENTIRELY ACCEPTABLE TO YOUR OFFICE.

THIS OFFICE RECOGNIZES, OF COURSE, THAT THE GOVERNMENT IN ITS MANY FIELDS OF ACTIVITY HAS NEED OF VARIOUS TYPES OF VEHICLES; THAT A MACHINE ADEQUATE IN ONE INSTANCE WILL NOT SERVE THE NEEDS OF THE SERVICE TO BE PERFORMED IN ANOTHER; AND THE SPECIFICATIONS WHICH MAY BE RESTRICTIVE IN ONE CASE MAY NOT BE RESTRICTIVE IN ANOTHER. LIKEWISE, IT IS RECOGNIZED THAT APPROXIMATE WEIGHT WHEN COUPLED WITH SUITABLE CONSTRUCTION AND COMPARABLE POWER HAS A DEFINITE RELATION TO PAYLOAD AND PERFORMANCE CAPACITY OF A MOTOR VEHICLE, WHETHER OF THE PASSENGER OR TRUCK TYPE. AND WHERE SERVICE REQUIREMENTS, PROPERLY STATED, HAVE REFLECTED AN ACTUAL NEED OF A VEHICLE IN A RECOGNIZED COMPETITIVE GROUP OR CLASS, AND SPECIFICATIONS HAVE BEEN SO DRAWN AS TO ADMIT TO COMPETITION ALL VEHICLES WITHIN SUCH CLASS WITHOUT NECESSITY FOR UNDUE, NONESSENTIAL, AND POSSIBLY EXPENSIVE DEPARTURE FROM THE STANDARD EQUIPMENT OF ANY MANUFACTURER, SUCH SPECIFICATIONS HAVE BEEN RECOGNIZED HERE. IT HAS BEEN THE PURPOSE OF THIS OFFICE, INSOFAR AS POSSIBLE, TO COOPERATE WITH THE PURCHASING AGENCIES OF THE GOVERNMENT TO THE END THAT THE BEST INTERESTS OF THE UNITED STATES MAY BE SERVED WITHIN THE LAW.

THERE HAS APPEARED, HOWEVER, AN UNFORTUNATE AND APPARENTLY INCREASING TENDENCY ON THE PART OF SOME PURCHASING AGENCIES TO DRAW SPECIFICATIONS FOR EQUIPMENT TO BE PURCHASED TO REFLECT ADMINISTRATIVE PREFERENCE NOT BASED ON ACTUAL NEEDS, AND, IN SOME INSTANCES, TO EXAGGERATE THE RIGOR OF SERVICE REQUIREMENTS IN THE EFFORT TO JUSTIFY RESTRICTIVE SPECIFICATIONS. SUCH PRACTICES ARE IN CONTRAVENTION OF THE LAW, SUBVERSIVE OF THE INTERESTS OF THE GOVERNMENT, AND IN DEROGATION OF THE RIGHTS OF OTHERWISE ELIGIBLE BIDDERS, AND ARE NECESSARILY QUESTIONED HERE.

IT WAS RECOGNIZED IN THE DECISION OF APRIL 13, 1936, THAT WHILE THE SERVICE REQUIREMENTS WERE INADEQUATELY STATED IN THE SPECIFICATIONS, THEY INDICATED THE NEED FOR A MATERIALLY HEAVIER TRUCK THAN FOR ORDINARY SERVICE, AND THAT THE MARKED DEFICIENCY IN WEIGHT OF THE TRUCK WHICH THE PROTESTING BIDDER DESIRED TO OFFER WOULD JUSTIFY ITS EXCLUSION FROM COMPETITION IN THAT INSTANCE. ON THE OTHER HAND, IT WOULD HARDLY SEEM THAT A REASONABLE DEFICIENCY IN WEIGHT WOULD SERIOUSLY AFFECT THE UTILITY OF A TRUCK OF THE WEIGHT INVOLVED, CONSTRUCTION AND POWER BEING SUFFICIENT; AND IT WOULD APPEAR THAT THE PERCENTAGE OF ALLOWABLE TOLERANCE IN WEIGHT WOULD BE GREATER IN THE HEAVIER THAN IN THE LIGHTER TYPE OF TRUCKS. YET AN ABSOLUTE MINIMUM OF 6,900 POUNDS DRY WEIGHT WAS REQUIRED, WITH NO PROVISION FOR TOLERANCE, OTHER THAN THE ALTERNATIVE PARAGRAPH OF THE SPECIFICATIONS. IT WAS POSSIBLY WITHOUT SIGNIFICANCE THAT THE MINIMUM WEIGHT PRESCRIBED WAS EXACTLY THAT GIVEN BY YOU AS THE WEIGHT OF THE F.W.D. TRUCK, BUT, AS WAS SUGGESTED, ALL OTHER TRUCKS ADMITTED TO COMPETITION UNDER THE SPECIFICATIONS WERE HEAVIER AND HIGHER IN LIST PRICE THAN THE F.W.D. ALL OTHER COMPETING MANUFACTURERS, THEREFORE, WOULD NECESSARILY HAVE TO SELL AT A MATERIALLY GREATER DISCOUNT IN ORDER TO BID WITH ANY HOPE OF SUCCESS, AND, UNLESS THEY DID SO, THE F.W.D. COMPANY WOULD BE ASSURED OF THE AWARD.

IT IS HARDLY OPEN TO QUESTION THAT THE GOVERNMENT ENGINEERS AND FIELD OFFICERS FAMILIAR WITH THE CONDITIONS UNDER WHICH EQUIPMENT IS TO BE USED AND WITH RESULTS PREVIOUSLY OBTAINED IN THE USE OF SIMILAR EQUIPMENT ARE, OR SHOULD BE, BETTER QUALIFIED TO DETERMINE WHAT IS NEEDED THAN ANY REPRESENTATIVE OF A PARTICULAR MANUFACTURER WHOSE ONLY INTEREST IS TO SELL HIS PRODUCT TO THE GOVERNMENT. THE DECISIONS OF THIS OFFICE ARE, WITHOUT EXCEPTION, TO THE EFFECT THAT THE UNITED STATES IS NOT TO BE PLACED IN THE POSITION OF HAVING A BIDDER DICTATE AS TO ITS REQUIREMENTS, OR DEMAND THAT HIS PRODUCT BE ACCEPTED WITHOUT REGARD TO ACTUAL CONDITIONS. IT IS ONLY WHERE IT HAS DEVELOPED THAT SPECIFICATIONS APPEARED IN FACT RESTRICTIVE OF COMPETITION WITHIN THE REASONABLE REQUIREMENTS OF THE STATUTES THAT ADMINISTRATIVE ACTION IN STATING THE REQUIREMENTS OF THE GOVERNMENT HAS BEEN QUESTIONED.

IT DOUBTLESS IS TRUE THAT THERE HAVE BEEN AND WILL CONTINUE TO BE INSTANCES IN WHICH UNSCRUPULOUS MANUFACTURERS HAVE ATTEMPTED AND WILL ATTEMPT TO DEFRAUD THE GOVERNMENT BY FURNISHING POORLY FABRICATED AND INADEQUATE EQUIPMENT. IT WOULD APPEAR THE PROPER COURSE TO REQUIRE GUARANTIES AND, IF NEED BE, TESTS, SUFFICIENT TO SAFEGUARD THE GOVERNMENT FROM LOSS BY REASON OF SUCH PRACTICES, WHICH PROBABLY ARE THE EXCEPTION RATHER THAN THE RULE.

THE STATUTORY REQUIREMENTS AS TO ADVERTISING AND PURCHASING FOR THE NEEDS OF THE GOVERNMENT ARE OR SHOULD BE WELL KNOWN TO EVERY PURCHASING AGENCY AND NEED NOT BE RESTATED HERE. THAT AN OBSERVANCE OF THOSE REQUIREMENTS MAY NOT ALWAYS RESULT IN OBTAINING FOR THE GOVERNMENT THE VERY BEST THE MARKET AFFORDS IS NOT A MATTER OF ADMINISTRATIVE CONCERN. THE PROVISIONS OF SECTION 3709, REVISED STATUTES, CONTEMPLATE THAT THERE SHALL BE OPPORTUNITY FOR FREE AND UNRESTRICTED COMPETITION AMONG ALL QUALIFIED PERSONS--- THAT IS, ALL BIDDERS WHO ARE QUALIFIED, ABLE, AND READY TO FURNISH EQUIPMENT SUFFICIENT FOR THE ACTUAL NEEDS OF THE SERVICE TO BE PERFORMED--- WITHOUT REFERENCE TO THE PERSONAL PREFERENCE OF ADMINISTRATIVE OFFICERS OR EMPLOYEES FOR A PARTICULAR PRODUCT, OR PREJUDICE AGAINST ANOTHER. WHEN SPECIFICATIONS ARE DRAWN AND PURCHASES UNDERTAKEN IN CONFORMITY WITH THE REQUIREMENT OF THE STATUTE, THE PURCHASING AGENCIES MAY BE ASSURED OF THE COOPERATION OF THIS OFFICE.

YOUR ASSURANCES OF COOPERATION IN THIS BEHALF ARE GRATIFYING, AND IT IS TO BE HOPED THAT FUTURE SPECIFICATIONS ISSUED BY ALL BUREAUS OF YOUR DEPARTMENT WILL REFLECT YOUR PURPOSE TO COMPLY WITH STATUTORY REQUIREMENTS AND ESTABLISHED PRINCIPLES RELATIVE TO GOVERNMENT PURCHASES.