A-80016, SEPTEMBER 17, 1936, 16 COMP. GEN. 260

A-80016: Sep 17, 1936

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IT WAS REQUIRED THAT THE BODY SHOULD BE OF THE "CARRY ALL SUBURBAN" TYPE. ARRANGED FOR QUICK EASY REMOVAL IN CASE OTHER MATERIAL WAS TO BE CARRIED. IT WAS FURTHER SPECIFIED THAT THE VEHICLE SHOULD HAVE A MINIMUM WHEEL BASE OF 112 INCHES AND A MINIMUM PISTON DISPLACEMENT OF 200 CUBIC INCHES. THERE WAS RECEIVED FROM THE ACTING SECRETARY OF THE FEDERAL COMMUNICATIONS COMMISSION A LETTER OF JULY 21. TO THE EFFECT THAT THE AUTOMOBILE PURCHASED WAS NOT OF THE PASSENGER-CARRYING TYPE. THAT THE SPECIFICATION THAT THE AUTOMOBILE BE EQUIPPED WITH FOUR UPHOLSTERED SEATS FOR CARRYING EIGHT PASSENGERS WAS MERELY TO OBTAIN SUFFICIENT CAPACITY TO ENABLE THE INSTALLATION OF ADDITIONAL RADIO APPARATUS IF NECESSARY AND TO ALLOW ROOM FOR THE RADIO INSPECTORS TO MOVE ABOUT WHILE WORKING IN THE CAR.

A-80016, SEPTEMBER 17, 1936, 16 COMP. GEN. 260

CONTRACTS - AUTOMOBILES PRIMARILY PASSENGER-CARRYING - FEDERAL COMMUNICATIONS COMMISSION THE PURCHASE OF A MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE BEING PROHIBITED BY SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, UNLESS SPECIFICALLY AUTHORIZED BY LAW, PAYMENT MAY NOT BE MADE IN CONNECTION WITH THE PURCHASE BY THE FEDERAL COMMUNICATIONS COMMISSION OF AN AUTOMOBILE PRIMARILY OFFERED FOR SALE AND INTENDED FOR USE AS A PASSENGER-CARRYING VEHICLE, NOTWITHSTANDING THE REMOVAL OF THE EXTRA BODY SEATS PERMITS ITS USE FOR OTHER PURPOSES, PARTICULARLY WHERE THE SPECIFICATIONS INVOLVED INCLUDE NUMEROUS OBJECTIONABLE FEATURES IN CONTRAVENTION OF THE DECISIONS OF THE GENERAL ACCOUNTING OFFICER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL COMMUNICATIONS COMMISSION, SEPTEMBER 17, 1936:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT NUMBERED RC-368, DATED MAY 18, 1936, WITH THE OURISMAN CHEVROLET SALES CO., INC., COVERING THE PURCHASE OF ONE AUTOMOBILE FOR THE USE OF THE FEDERAL COMMUNICATIONS COMMISSION AT A PRICE OF $798.85.

THE SPECIFICATIONS ACCOMPANYING THE INVITATION FOR BIDS STATED THAT THEY COVERED AN AUTOMOBILE TRUCK WHICH WOULD BE USED FOR FIELD INVESTIGATION BY ENGINEERS OF THE FEDERAL COMMUNICATIONS COMMISSION, AND THAT CONSIDERABLE RADIO APPARATUS WOULD BE INSTALLED AND OPERATED IN THE REAR PORTION OF THE CAR. IT WAS REQUIRED THAT THE BODY SHOULD BE OF THE "CARRY ALL SUBURBAN" TYPE, COMPLETELY WEATHER PROOF WHEN CLOSED; THAT THERE BE TWO WINDOW OPENINGS ON EACH SIDE OF THE CAR BESIDES THOSE IN SIDE AND REAR DOOR PANELS; THAT SIDE PANELS AND SIDE WINDOW FRAMES BE OF STEEL; THAT SAFETY GLASS BE USED THROUGHOUT; THAT FOUR UPHOLSTERED SEATS BE PROVIDED SUCH AS WOULD BE USED FOR CARRYING EIGHT PASSENGERS, ARRANGED FOR QUICK EASY REMOVAL IN CASE OTHER MATERIAL WAS TO BE CARRIED; THAT THERE BE AT LEAST 75 INCHES FROM THE REAR OF THE DRIVER'S SEAT TO THE REAR DOOR OF THE CAR, 51 INCHES HEAD ROOM FROM THE FLOOR BOARDS TO THE ROOF OF THE CAR IN THE REAR COMPARTMENT, AND AT LEAST 68 INCHES AT THE MAXIMUM WIDTH OF THE AUTOMOBILE. IT WAS FURTHER SPECIFIED THAT THE VEHICLE SHOULD HAVE A MINIMUM WHEEL BASE OF 112 INCHES AND A MINIMUM PISTON DISPLACEMENT OF 200 CUBIC INCHES.

IN REPLY TO A LETTER FROM THIS OFFICE REQUESTING INFORMATION AS TO THE AUTHORITY OF LAW FOR THE PURCHASE OF THIS VEHICLE AND AT A PRICE OF $798.85, THERE WAS RECEIVED FROM THE ACTING SECRETARY OF THE FEDERAL COMMUNICATIONS COMMISSION A LETTER OF JULY 21, 1936, TO THE EFFECT THAT THE AUTOMOBILE PURCHASED WAS NOT OF THE PASSENGER-CARRYING TYPE, BUT IN THE NATURE OF A RADIO LABORATORY EQUIPPED WITH RECEIVING EQUIPMENT, SIGNAL INTENSITY MEASURING APPARATUS, AND A PORTABLE RADIO DIRECTION FINDER; THAT THE SPECIFICATION THAT THE AUTOMOBILE BE EQUIPPED WITH FOUR UPHOLSTERED SEATS FOR CARRYING EIGHT PASSENGERS WAS MERELY TO OBTAIN SUFFICIENT CAPACITY TO ENABLE THE INSTALLATION OF ADDITIONAL RADIO APPARATUS IF NECESSARY AND TO ALLOW ROOM FOR THE RADIO INSPECTORS TO MOVE ABOUT WHILE WORKING IN THE CAR; THAT THE PROVISIONS OTHER THAN THOSE REGARDING SEATING EIGHT PASSENGERS COULD HAVE BEEN MET BY THE STOCK CARS OF MOST MANUFACTURERS OF AUTOMOBILES OF THIS CLASS; AND THAT ANY OTHER CAR WITH THE AMOUNT OF ROOM WOULD HAVE BEEN SUITABLE FOR THE COMMISSION IF THE BODY CAPACITY COULD HAVE BEEN MET, WHETHER OUT OF STOCK OR SPECIALLY BUILT.

SECTION 5 OF THE ACT OF JULY 16, 1914, 38 STAT. 508, IS AS FOLLOWS:

NO APPROPRIATION MADE IN THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR THE PURCHASE OF ANY MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER CARRYING VEHICLE FOR THE SERVICE OF ANY OF THE EXECUTIVE DEPARTMENTS OR OTHER GOVERNMENT ESTABLISHMENTS, OR ANY BRANCH OF THE GOVERNMENT SERVICE, UNLESS SPECIFIC AUTHORITY IS GIVEN THEREFOR, AND AFTER THE CLOSE OF THE FISCAL YEAR NINETEEN HUNDRED AND FIFTEEN THERE SHALL NOT BE EXPENDED OUT OF ANY APPROPRIATION MADE BY CONGRESS ANY SUM FOR PURCHASE, MAINTENANCE, REPAIR, OR OPERATION OF MOTOR-PROPELLED OR HORSE-DRAWN PASSENGER-CARRYING VEHICLES FOR ANY BRANCH OF THE PUBLIC SERVICE OF THE UNITED STATES UNLESS THE SAME IS SPECIFICALLY AUTHORIZED BY LAW, * * *.

THE APPLICABILITY OF THE PROVISIONS OF THIS ACT HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, AND IT HAS BEEN HELD THAT THE QUESTION WHETHER A VEHICLE IS "PASSENGER-CARRYING" MUST BE DETERMINED FROM THE CHARACTER OF THE VEHICLE AS SHOWN BY ITS CONSTRUCTION AND DESIGN, AND NOT FROM ITS INTENDED USE, AND WHERE IT APPEARS THAT THE AUTOMOBILE IS IN FACT A PASSENGER-CARRYING VEHICLE, THE PROHIBITION OF THE ACT APPLIES IRRESPECTIVE OF THE PURPOSE OF THE GOVERNMENT DEPARTMENT OR AGENCY INVOLVED TO CONVERT IT TO OTHER USAGES. 21 COMP. DEC. 14; ID. 116; 14 COMP. GEN. 367. A-59737, MARCH 18, 1935. THAT IS TO SAY, THE PROVISIONS OF THE ACT MAY NOT BE EVADED UPON THE PLEA THAT A PASSENGER CARRYING AUTOMOBILE, ONCE ACQUIRED, WILL BE USED OTHERWISE THAN FOR THE TRANSPORTATION OF PASSENGERS. THE AUTOMOBILE PURCHASED IN THE PRESENT INSTANCE IS DESIGNATED BY ITS MANUFACTURERS AS A "CARRY ALL SUBURBAN, EIGHT PASSENGER CAPACITY, 112-INCH WHEEL BASE," AND IS DESCRIBED IN PART AS FOLLOWS:

THIS ALL-PURPOSE VEHICLE COMBINES THE ADVANTAGES OF A PASSENGER CAR AND A LIGHT DELIVERY UNIT. THERE ARE FOUR SEATS, PROVIDING FOR EIGHT PASSENGERS. BY QUICK, EASY REMOVAL OF SEATS IT BECOMES A LARGE CAPACITY UNIT FOR LOADS OF MERCHANDISE, PRODUCE, OR LUGGAGE. ITS UTILITY IS PROVED BY ITS WIDE DEMAND BY PRIVATE ESTATES, COUNTRY CLUBS, HOTELS, BUS, AND TRANSFER COMPANIES, AIRPORTS, AS WELL AS OPERATORS WHO USE IT FOR BUSINESS AND PLEASURE. * * *

NOT ONLY THAT, BUT THE SPECIFICATIONS STIPULATED THAT THERE MUST BE FURNISHED FOUR UPHOLSTERED SEATS SUCH AS WOULD BE USED FOR CARRYING EIGHT PASSENGERS, AND STATED THAT BIDDERS MIGHT BE REQUIRED TO FURNISH PROOF THAT THE MANUFACTURER HAD BEEN ENGAGED IN THE PRODUCTION OF PASSENGER AUTOMOBILES FOR AT LEAST FIVE YEARS.

THERE APPEARS NO QUESTION THAT THE AUTOMOBILE IS PRIMARILY OFFERED FOR SALE AND INTENDED FOR USE AS A PASSENGER-CARRYING VEHICLE, AND THE FACT THAT BY REMOVING EXTRA SEATS IT MAY BE USED FOR OTHER PURPOSES DOES NOT RELIEVE IT OF SUCH IDENTITY, OR REMOVE IT FROM THE PROHIBITION OF THE STATUTE. SUCH BEING THE CASE, AND THERE APPEARING NO SPECIFIC AUTHORITY FOR THE FEDERAL COMMUNICATIONS COMMISSION TO PURCHASE ANY MOTOR-PROPELLED PASSENGER-CARRYING VEHICLE, IT MUST BE HELD, PURSUANT TO THE PROVISIONS OF THE SAID STATUTE, THAT APPROPRIATED MONEYS OF THE UNITED STATES ARE NOT AVAILABLE FOR PAYMENT UNDER THE CONTRACT AS AWARDED.

THE CONCLUSION REACHED RENDERS UNNECESSARY ANY EXTENDED DISCUSSIONS OF CERTAIN OBJECTIONABLE FEATURES OF THE SPECIFICATIONS WHICH ARE IN CONTRAVENTION OF NUMEROUS DECISIONS OF THIS OFFICE. THEY MAY BE BRIEFLY LISTED AS FOLLOWS:

MINIMUM WHEEL BASE OF 112 INCHES. SEE 14 COMP. GEN. 368.

MINIMUM PISTON DISPLACEMENT OF 200 CU.IN. SEE 14 COMP. GEN. 491, AND 832; 15 COMP. GEN. 365 AND 640. A-60763, DECEMBER 10, 1935.

SAFETY OR NON-SHATTER GLASS. SEE 15 COMP. GEN. 974 AND CASES CITED.

REQUIREMENT THAT BIDDERS FURNISH A LIST OF ESTABLISHED DEALERS, AGENCIES, OR FACTORY BRANCH OFFICES WITHIN A RADIUS OF 50 MILES OF THE FINAL DESTINATION, WHERE COMPLETE STOCK OF REPAIR PARTS ARE MAINTAINED. SEE A- 49613, AUGUST 15, 1933; A-50717, SEPTEMBER 21, 1935; A-65236, NOVEMBER 29, 1935; A-73600, MAY 5, 1936.

REQUIREMENT THAT BIDDERS FURNISH PROOF THAT THE MANUFACTURER HAD BEEN ENGAGED IN THE PRODUCTION OF PASSENGER AUTOMOBILES FOR AT LEAST FIVE YEARS. SEE A-53806, NOVEMBER 28, 1934; A-72237, MAY 28, 1936.

THE SPECIFICATIONS FOR THE PURCHASE OF THE AUTOMOBILE HERE INVOLVED FOLLOW VERY CLOSELY THE DIMENSIONS OF THE CHEVROLET CARRY ALL SUBURBAN AS SHOWN IN THE ADVERTISING LITERATURE OF THE CHEVROLET MOTOR CO., AND THE LETTER FROM THE ACTING SECRETARY OF THE COMMISSION SUGGESTS THE POSSIBILITY THAT MANUFACTURERS OF OTHER CARS IN THE COMPETITIVE CLASS INVOLVED WERE NOT IN POSITION TO FURNISH AUTOMOBILES MEETING THE REQUIRED BODY DIMENSIONS WITHOUT RESORT TO SPECIAL CONSTRUCTION. IT IS TO BE OBSERVED, MOREOVER, THAT WHILE INVITATIONS TO BID WERE SENT TO TEN DEALERS, THE ONLY PROPOSALS RECEIVED WERE THOSE OF THE SUCCESSFUL BIDDER AND THE CHEVROLET MOTOR CO., DETROIT, BOTH OFFERING CHEVROLET AUTOMOBILES, AND THAT THE LOW BID OF THE MANUFACTURER OF THE CHEVROLET WAS REJECTED UPON THE STATEMENT THAT IT WAS BASED ON THE OMISSION OF TWO ESSENTIAL ITEMS OF THE SPECIFICATIONS AND WAS, THEREFORE, UNSATISFACTORY. THE RULE THAT SPECIFICATIONS MAY NOT BE DRAWN SO AS TO EXCLUDE FROM COMPETITION AUTOMOBILES REASONABLY WITHIN THE SAME COMPETITIVE GROUP IS TOO WELL ESTABLISHED TO REQUIRE DISCUSSION.