A-77145, AUGUST 25, 1936, 16 COMP. GEN. 178

A-77145: Aug 25, 1936

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DE LUXE MODELS APPROPRIATED MONEYS ARE NOT AVAILABLE FOR PAYMENTS IN CONNECTION WITH CONTRACTS AWARDED TO OTHER THAN THE LOWEST BIDDER UNDER ADVERTISED SPECIFICATIONS FOR AUTOMOBILES FOR USE IN RURAL OR CROSS COUNTRY HILLY SECTIONS OF THE UNITED STATES. WILL NOT BE ACCEPTABLE. 1936: THERE HAVE COME TO MY ATTENTION THE FOLLOWING CONTRACTS. AS FOLLOWS: THE VEHICLES TO BE PURCHASED UNDER THIS ADVERTISEMENT WILL BE USED IN PUBLIC WORKS ADMINISTRATION BY THE ENGINEER INSPECTORS. WILL TRAVEL OVER ROADS OF LOW GRADE AND OFTEN OVER ROUGH TRAILS IN HILLY AND SOMETIMES MOUNTAINOUS COUNTRY WHERE MANY DANGEROUS CURVES IN THE ROADS WILL BE TRAVERSED. THE VEHICLES WILL BE SUBJECTED TO A MOST SEVERE SERVICE AND MAY BE TRANSFERRED FROM ONE PROJECT TO ANOTHER.

A-77145, AUGUST 25, 1936, 16 COMP. GEN. 178

CONTRACTS - RESTRICTIVE SPECIFICATIONS - AUTOMOBILES - LIGHTER TYPES VS. DE LUXE MODELS APPROPRIATED MONEYS ARE NOT AVAILABLE FOR PAYMENTS IN CONNECTION WITH CONTRACTS AWARDED TO OTHER THAN THE LOWEST BIDDER UNDER ADVERTISED SPECIFICATIONS FOR AUTOMOBILES FOR USE IN RURAL OR CROSS COUNTRY HILLY SECTIONS OF THE UNITED STATES, PLAINLY REFLECTING AN ADMINISTRATIVE PREFERENCE FOR THE MORE COMFORTABLE DE LUXE MODELS RATHER THAN STANDARD TYPES, AND PROVIDING THAT WHERE A MANUFACTURER OFFERS MORE THAN ONE MODEL OF THE SAME MAKE AND TYPE, THE LIGHTER ONE, SELLING AT A SLIGHTLY LOWER PRICE, WILL NOT BE ACCEPTABLE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 25, 1936:

THERE HAVE COME TO MY ATTENTION THE FOLLOWING CONTRACTS, ENTERED INTO BY YOUR DEPARTMENT, COVERING THE PURCHASE OF PASSENGER AUTOMOBILES FOR THE PUBLIC WORKS ADMINISTRATION:

CHART PW 490.113, APRIL 4, 1936, THE NORTHWEST MOTOR COMPANY. 490.122, APRIL 16, 1936, GENERAL MOTORS CORP. (CHEVROLET DIVISION). 490.123, APRIL 16, 1936, " " " "

" PW 490.125, APRIL 25, 1936, " " " " " PW 490.126, APRIL 27, 1936, "

THE SPECIFICATIONS ACCOMPANYING THE SEVERAL INVITATIONS FOR BIDS LEADING TO THESE CONTRACTS INCLUDED IDENTICAL PROVISIONS, AS FOLLOWS:

THE VEHICLES TO BE PURCHASED UNDER THIS ADVERTISEMENT WILL BE USED IN PUBLIC WORKS ADMINISTRATION BY THE ENGINEER INSPECTORS, AND WILL TRAVEL OVER ROADS OF LOW GRADE AND OFTEN OVER ROUGH TRAILS IN HILLY AND SOMETIMES MOUNTAINOUS COUNTRY WHERE MANY DANGEROUS CURVES IN THE ROADS WILL BE TRAVERSED. THE VEHICLES WILL BE SUBJECTED TO A MOST SEVERE SERVICE AND MAY BE TRANSFERRED FROM ONE PROJECT TO ANOTHER.

WHERE MANUFACTURERS OFFER MORE THAN ONE MODEL OF THE SAME MAKE AND TYPE OF SEDAN (COUPE), ONE LIGHTER AND AT A SLIGHTLY LOWER SELLING PRICE, IT WILL BE CONSIDERED THAT THAT MODEL HAS BEEN DEVELOPED PRIMARILY FOR THE BETTER GRADE OF ROADS IN THE MORE POPULOUS SECTIONS OF THE COUNTRY, AND THAT THE HEAVIER AND SLIGHTLY MORE COSTLY MODEL HAS BEEN DESIGNED FOR BETTER STABILITY, LONGER SERVICE, AND WHERE THERE IS A DIFFERENCE IN COMPONENT PARTS, THE COMPONENT PARTS ON THE SLIGHTLY MORE COSTLY MODEL ARE BETTER ADAPTED TO SEVERE SERVICE.

FROM THE EXPERIENCE OF THE DEPARTMENT OF THE INTERIOR IN OPERATING AUTOMOBILES IT HAS BEEN DETERMINED THAT THESE LIGHTER AND LESS EXPENSIVE MODELS WILL NOT BE ACCEPTABLE SINCE THEY ARE NOT AS STABLE, PARTICULARLY AROUND SHARP CURVES ON GRAVEL ROADS, WILL NOT RENDER AS LONG SERVICE, ARE MORE TIRING TO DRIVE, AND THEREFORE WOULD NOT BE THE MORE ADVANTAGEOUS PURCHASE FOR THE GOVERNMENT.

CONTRACT NO. 490.113 WAS AWARDED TO OTHER THAN THE LOW BIDDER, THE REASON ASSIGNED FOR REJECTING THE LOW BID OF THE GENERAL MOTORS CORPORATION, CHEVROLET DIVISION, OFFERING CHEVROLET STANDARD COACH BEING:

109 INCH WHEELBASE--- DOES NOT MEET SPECIFICATIONS UNDER SERVICE REQUIREMENTS (C-2) WHERE MFTR HAVE MORE THAN ONE MODEL OF SAME MAKE AND TYPE, THE LIGHTER TYPE CANNOT BE CONSIDERED.

THE OTHER FOUR CONTRACTS WERE AWARDED FOR CHEVROLET "MASTER" MODELS. THE LOWER ALTERNATIVE BIDS OF THAT COMPANY OFFERING STANDARD MODELS WERE REJECTED IN EACH INSTANCE, THE SAME REASON BEING ASSIGNED AS ABOVE.

IT HAS BEEN POINTED OUT REPEATEDLY IN DECISIONS OF THIS OFFICE THAT THE PROVISIONS OF SECTION 3709, REVISED STATUTES, CONTEMPLATE THAT PURCHASES FOR THE GOVERNMENT SHALL BE MADE AT THE LOWEST PRICE OBTAINABLE, CONSISTENT WITH THE ACTUAL NEEDS DISCLOSED, AND THAT APPROPRIATED MONEYS ARE AVAILABLE FOR PURCHASE ONLY OF WHAT IS NEEDED AS DISTINGUISHED FROM WHAT MAY BE DESIRED. 13 COMP. GEN. 284, 15 COMP. GEN. 974. SPECIFICATIONS MAY NOT BE DRAWN ARBITRARILY TO EXCLUDE FROM COMPETITION AUTOMOBILES WHICH WOULD SERVE THE NEEDS OF THE GOVERNMENT, MERELY TO GRATIFY AN ADMINISTRATIVE PREFERENCE FOR A MORE SHOWY, A MORE "COMFORTABLE," OR EVEN A SUPERIOR VEHICLE, AT THE EXPENSE OF THE GOVERNMENT. THE STATEMENT IN THE SPECIFICATIONS QUOTED ABOVE THAT WHERE MANUFACTURERS OFFER MORE THAN ONE MODEL OF THE SAME MAKE AND TYPE, ONE LIGHTER AND AT A SLIGHTLY LOWER SELLING PRICE,"IT WILL BE CONSIDERED THAT THAT MODEL HAS BEEN DEVELOPED PRIMARILY FOR THE BETTER GRADE OF ROADS IN THE MORE POPULOUS SECTIONS OF THE COUNTRY," ETC., MANIFESTLY WAS INSERTED FOR THE PURPOSE OF EXCLUDING FROM COMPETITION THE STANDARD MODELS OF AUTOMOBILES WITHIN THE STATUTORY PRICE LIMIT AND RESTRICT COMPETITION TO THE DE LUXE MODELS OF SUCH VEHICLES, AT A HIGHER PRICE. NOT ONLY WOULD SUCH "CONSIDERATION" BE AN ARBITRARY ASSUMPTION, APPARENTLY WITHOUT FACTS TO SUPPORT IT, BUT IT WOULD APPEAR TO BE DIRECTLY IN CONFLICT WITH THE CLAIMS OF THE MANUFACTURERS THEMSELVES. THERE IS OF RECORD IN THIS OFFICE A DETAILED COMPARISON MADE BY ONE MANUFACTURER BETWEEN THE STANDARD AND DE LUXE MODELS OF AUTOMOBILES OF THE SAME MAKE AND TYPE OFFERED BY THAT MANUFACTURER TO THE GOVERNMENT, IN WHICH THE STATEMENT IS MADE, AND APPARENTLY SUPPORTED BY THE COMPARISON, THAT THERE IS PRACTICALLY NO DIFFERENCE MECHANICALLY BETWEEN THE TWO MODELS, AND THAT THE STANDARD "IS EVERY BIT AS STURDY IN CONSTRUCTION AND AS DEPENDABLE IN OPERATION AS THE MORE EXPENSIVE MODEL WITH ITS ADDED ATTRACTIVE APPOINTMENTS WHICH MAKE UP THE LIST PRICE DIFFERENCE.' IT IS TRUE, ALSO, THAT THE WASHINGTON REPRESENTATIVE OF THE GENERAL MOTORS CORPORATION, CHEVROLET DIVISION, HAS CONSISTENTLY INSISTED THAT THE CHEVROLET "STANDARD" AUTOMOBILE IS AMPLY ADEQUATE TO SERVICE REQUIREMENTS SUCH AS STATED IN THESE SPECIFICATIONS, AND THAT ITS SHORTER WHEELBASE DETRACTS NOTHING FROM ITS STURDINESS OF CONSTRUCTION OR PERFORMANCE CAPACITY, AND HAS PROTESTED SPECIFICATIONS WHICH ADMITTED THE MASTER MODEL TO COMPETITION WHILE EXCLUDING THE STANDARD.

THE SERVICE CONDITIONS DESCRIBED DO NOT APPEAR MORE SEVERE THAN THOSE TO WHICH PRACTICALLY EVERY AUTOMOBILE OPERATED IN THE RURAL OR CROSS COUNTRY HILLY SECTIONS OF THE UNITED STATES ARE SUBJECTED DAY AFTER DAY. IT IS SAFE TO SAY THAT IN ALL SUCH TRAVEL LOW-GRADE ROADS AND ROUGH TRAILS, GRAVEL ROADS AND SHARP CURVES ARE OCCASIONALLY ENCOUNTERED. YET IT IS PROBABLE THAT THE NUMBER OF STANDARD-MODEL AUTOMOBILES USED IN SUCH TRAVEL BY THE GENERAL-BUSINESS PUBLIC, AS DISTINGUISHED FROM THE PLEASURE PUBLIC, FAR EXCEEDS THAT OF THE VARIOUS DE LUXE MODELS.

AS TO THE SUGGESTION THAT THE STANDARD VEHICLES ARE "MORE TIRING TO DRIVE," IT IS ASSUMED THAT THE ENGINEER INSPECTORS OF THE PUBLIC WORKS ADMINISTRATION ARE SUFFICIENTLY ROBUST TO WITHSTAND THE HARDSHIPS ENTAILED IN THE DRIVING OF AUTOMOBILES PURCHASED AND MAINTAINED FOR THEIR USE AT GOVERNMENT EXPENSE, WITHOUT UNDUE EXHAUSTION. IN ANY EVENT, THERE APPEARS NO VALID REASON WHY THE GOVERNMENT, AT AN EXCESS EXPENSE OF APPROXIMATELY $50 PER VEHICLE SHOULD AFFORD SUCH EMPLOYEES THE ADDITIONAL LUXURY AND EASE OF A DE LUXE MODEL AUTOMOBILE, WHEN A STANDARD MODEL WOULD ACCEPTABLY SERVE EVERY NEED OF THE GOVERNMENT.

NUMEROUS DECISIONS OF THIS OFFICE ARE TO THE EFFECT THAT NO ARBITRARY SPECIFICATIONS AS TO WEIGHT, WHEELBASE, OR OTHER NONESSENTIAL REQUIREMENTS MAY BE USED FOR THE PURPOSE OF EXCLUDING FROM COMPETITION A PARTICULAR AUTOMOBILE OR AUTOMOBILES IN A RECOGNIZED COMPETITIVE CLASS. IT HAS BEEN POINTED OUT, ALSO, THAT THE VARIOUS STATUTES FIXING A MAXIMUM EXPENDITURE OF $750 FOR PASSENGER CARRYING AUTOMOBILES DO NOT AUTHORIZE THE PURCHASE OF CARS AT A HIGHER PRICE EVEN WITHIN THAT PRICE LIMIT WHEN THOSE OFFERED AT A LOWER PRICE WILL ADEQUATELY PERFORM THE WORK TO BE DONE. 15 COMP. GEN. 974. THE PRESENT SPECIFICATIONS WOULD APPEAR TO BE AN UNDERTAKING TO AVOID THE EFFECT OF THOSE DECISIONS AS WELL AS EVADE THE PROVISIONS OF THE STATUTES; FOR BY EXCLUDING THE STANDARD MODELS THE REJECTION OF THE LOW BIDS WAS MADE TO HINGE UPON WEIGHT, WHEELBASE, AND PRICE, ANY ONE OF WHICH COULD BE ASSIGNED AS AN EXCUSE, RATHER THAN A REASON, FOR REJECTING THE LOW BIDS.

IN A RECENT DECISION OF THIS OFFICE, A-66914, JULY 18, 1936, 16 COMP.GEN. 38, IT WAS OBSERVED THAT THERE IS AN UNFORTUNATE AND APPARENTLY INCREASING TENDENCY ON THE PART OF SOME PURCHASING AGENCIES OF THE GOVERNMENT TO DRAW SPECIFICATIONS SO AS TO REFLECT ADMINISTRATIVE PREFERENCE NOT BASED ON ACTUAL NEEDS, AND TO EXAGGERATE THE RIGORS OF SERVICE REQUIREMENTS IN AN ATTEMPT TO JUSTIFY RESTRICTIVE SPECIFICATIONS. THE PRESENT CASE SEEMS TO BE PECULIARLY IN POINT, FOR THE SPECIFICATIONS PLAINLY REFLECT AN ADMINISTRATIVE PREFERENCE FOR THE DE LUXE MODEL AUTOMOBILES AND EXCLUDE STANDARD MODELS FROM COMPETITION UPON THE MERE ASSUMPTION, UNSUPPORTED BY FACTS, AND CONTRADICTED BY THE CLAIMS OF THE MANUFACTURERS, THAT SUCH MODELS HAVE BEEN DEVELOPED PRIMARILY FOR THE BETTER GRADE OF ROADS IN THE MORE POPULOUS SECTIONS OF THE COUNTRY. IT IS TO BE OBSERVED, MOREOVER, THAT IN THE CASE OF CONTRACT NO. 490.113 THE LOW BID WAS REJECTED FOR NO OTHER ASSIGNED REASON THAN THE SHORTER WHEELBASE OF THE STANDARD CHEVROLET, WHILE THE FORD STANDARD WAS ACCEPTED IN PREFERENCE THERETO.

THE SPECIFICATIONS ARE OPEN TO THE FURTHER OBJECTION THAT THEY REQUIRED SAFETY OR SHATTERPROOF GLASS IN WINDSHIELDS, WINDOWS, AND DOORS. SEE 15 COMP. GEN. 974, AND DECISIONS THERE CITED. THERE ARE DISCLOSED HERE NO SUCH HAZARDOUS CONDITIONS OF OPERATION AS TO JUSTIFY THE REQUIREMENT FOR NONSHATTER GLASS AND THE SPECIFICATION WITH RESPECT THERETO WAS UNAUTHORIZED.

SINCE IT IS APPARENT THAT THE SPECIFICATIONS UNDER DISCUSSION WERE UNDULY RESTRICTIVE, AND THAT THE LOW BIDS WERE REJECTED IN EACH INSTANCE WITHOUT SUPPORTING FACTS TO JUSTIFY SUCH ACTION, I HAVE TO ADVISE THAT UPON THE FACTS PRESENTED, APPROPRIATED MONEYS OF THE UNITED STATES ARE NOT AVAILABLE FOR PAYMENTS UNDER THE CONTRACTS INVOLVED.