A-80230, SEPTEMBER 30, 1936, 16 COMP. GEN. 320

A-80230: Sep 30, 1936

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IS NOT A PASSENGER CARRYING VEHICLE WITHIN THE PURCHASE PROHIBITION OF THE ACT OF JULY 16. 1936: THERE IS BEFORE THIS OFFICE FOR PREAUDIT ACTION. THE FACTS ARE AS FOLLOWS: THE INVITATIONS FOR BIDS COVERED TWO ITEMS: CHART ITEM NO. EACH BIDDER HEREBY AGREES TO COMPLETE DELIVERY WITHIN 15 CALENDAR DAYS IF ACCEPTANCE IS MADE F.O.B. AND/OR WITHIN 30 CALENDAR DAYS IF ACCEPTANCE IS MADE F.O.B. PARAGRAPH 2: AN ADEQUATE STOCK OF REPAIR PARTS MUST BE MAINTAINED LOCALLY WITH DEALERS OR OTHER AGENCY WHO ARE WITHIN 24 HOURS DELIVERY TIME (VIA U.S. CALIFORNIA. * * * NO BID WILL BE CONSIDERED FROM A BIDDER WHO DOES NOT MAINTAIN. OR HAVE MAINTAINED. "AN ADEQUATE STOCK OF REPAIR PARTS" WILL BE INTERPRETED AS A STOCK WHICH INCLUDES ANY AND ALL PARTS INCORPORATED IN THE MACHINE THAT ARE SUBJECT TO BREAKAGE AND/OR WEAR.

A-80230, SEPTEMBER 30, 1936, 16 COMP. GEN. 320

VEHICLES - AUTOMOBILES, PRIMARILY TRUCKS - PASSENGER-CARRYING PURCHASE PROHIBITION A STANDARD ONE-FOURTH-TON TRUCK, COUPE CAB, WITH SPECIAL ONE-FOURTH TON PICK-UP BODY, PURCHASED UNDER SPECIFICATIONS DESCRIPTIVE OF A BODY PRIMARILY AND PERMANENTLY CONSTRUCTED AND ADAPTED AS A TRUCK, FOR USE IN THE TRANSPORTATION OF VARIOUS TYPES OF EQUIPMENT, MATERIAL AND SUPPLIES NECESSARY TO THE PURCHASING SERVICE, AND SPECIALLY DESIGNED BY THEM TO MEET THE SPECIAL TYPE OF SERVICE INVOLVED, IS NOT A PASSENGER CARRYING VEHICLE WITHIN THE PURCHASE PROHIBITION OF THE ACT OF JULY 16, 1914, 38 STAT. 508.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 30, 1936:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT ACTION, BUREAU VOUCHER NO. 41732, ACCOUNTS OF G. F. ALLEN, IN THE NET AMOUNT OF $366.46, COVERING PROPOSED PAYMENT TO GUY F. DAVIS, RED BLUFF, CALIF., FOR ONE-HALF-TON, CLOSED CAB, PICK-UP BODY TRUCK, UNDER CONTRACT NO. I-9-P-152, MARCH 18, 1935.

THE FACTS ARE AS FOLLOWS: THE INVITATIONS FOR BIDS COVERED TWO ITEMS:

CHART

ITEM

NO. ARTICLES OR SERVICES QUANTITY

1 NEW AND LATEST IMPROVED MODEL STANDARD TRUCK, 1/2

TON, CLOSED CAB, PICKUP BODY, IN ACCORDANCE WITH

FEDERAL SPECIFICATIONS KKK-T-701-A, AS NOTED ON THE

ATTACHED SPECIFICATION SHEETS --------------------- 2

2 NEW AND LATEST IMPROVED MODEL STANDARD TRUCK, 1/4

TON, COUPE CAB, WITH SPECIAL 1/4 TON PICKUP BODY IN

ACCORDANCE WITH FEDERAL SPECIFICATIONS KKK-T-701-A,

AS NOTED ON ATTACHED SPECIFICATION SHEETS, AND WITH

THE FOLLOWING DESCRIPTIONS ------------------------ 1

THE SPECIFICATIONS INCLUDED THE FOLLOWING OBJECTIONABLE AND UNAUTHORIZED PROVISIONS:

D-4 NOT LESS THAN 206 CU.IN. PISTON DISPLACEMENT AND NOT LESS THAN 6 CYLINDERS.

SEE 14 COMP. GEN. 491 AND 832; 15 ID. 365.

D-14 FIVE FIRST LINE, HEAVY DUTY TIRES TO BE PROVIDED WITH SPARE MOUNTED IN FRONT FENDER WELL. * * *

14 COMP. GEN. 518.

GENERAL PROVISIONS, PARAGRAPH 3:

* * * FURTHERMORE, EACH BIDDER HEREBY AGREES TO COMPLETE DELIVERY WITHIN 15 CALENDAR DAYS IF ACCEPTANCE IS MADE F.O.B. FACTORY, AND/OR WITHIN 30 CALENDAR DAYS IF ACCEPTANCE IS MADE F.O.B. RED BLUFF, CALIFORNIA.

SEE A-59777, MARCH 21, 1935; A-68755, DECEMBER 30, 1935.

WARRANTY AND SERVICE PROVISIONS, PARAGRAPH 2:

AN ADEQUATE STOCK OF REPAIR PARTS MUST BE MAINTAINED LOCALLY WITH DEALERS OR OTHER AGENCY WHO ARE WITHIN 24 HOURS DELIVERY TIME (VIA U.S. MAIL) OF LASSEN VOLCANIC NATIONAL PARK HEADQUARTERS, MINERAL, CALIFORNIA. * * *

NO BID WILL BE CONSIDERED FROM A BIDDER WHO DOES NOT MAINTAIN, OR HAVE MAINTAINED, AN ADEQUATE STOCK OF REPAIR PARTS WITHIN 24 HOURS (BY U.S. MAIL) DELIVERY TIME OF LASSEN VOLCANIC NATIONAL PARK HEADQUARTERS, MINERAL, CALIFORNIA. "AN ADEQUATE STOCK OF REPAIR PARTS" WILL BE INTERPRETED AS A STOCK WHICH INCLUDES ANY AND ALL PARTS INCORPORATED IN THE MACHINE THAT ARE SUBJECT TO BREAKAGE AND/OR WEAR.

SEE A-57281, SEPTEMBER 26, 1934; A-65236, NOVEMBER 29, 1935; A 73600, MAY 5, 1936.

IT APPEARS THAT THE VEHICLES INVOLVED WERE DELIVERED TO AND ACCEPTED BY THE GOVERNMENT SOME TIME PRIOR TO THE TIME WHEN THE SPECIFICATIONS WERE BROUGHT TO THE ATTENTION OF THIS OFFICE, AND APPROVAL OF OTHERWISE PROPER PAYMENTS UNDER THE CONTRACT WILL NOT BE WITHHELD IN THIS INSTANCE SOLELY BY REASON OF THE RESTRICTIVE PROVISIONS OF THE SPECIFICATIONS. IT IS TO BE UNDERSTOOD, HOWEVER, THAT SPECIFICATIONS FOR FUTURE PURCHASE OF MOTOR EQUIPMENT FOR YOUR DEPARTMENT SHOULD BE DRAWN WITH DUE REGARD TO STATUTORY REQUIREMENTS THAT THERE BE FREE AND UNRESTRICTED COMPETITION, OTHERWISE APPROPRIATIONS SOUGHT TO BE CHARGED MAY NOT BECOME LEGALLY OBLIGATED UNDER CONTRACTS CONSUMMATED PURSUANT THERETO.

PAYMENT WAS MADE TO THE CONTRACTOR FOR ONE OF THE 1/2-TON TRUCKS AND THE 1/4-TON "COUPE TYPE CAB" TRUCK ON VOUCHER NO. 11 IN THE JULY 1935 ACCOUNTS OF L. W. COLLINS, AND CREDIT THEREFOR WAS SUSPENDED IN THE AUDIT PENDING DETERMINATION OF THE MATTER HEREIN CONSIDERED.

THE QUESTION PRESENTED IS WHETHER THE 1/4-TON COUPE TYPE CAB TRUCK WAS, IN FACT, A PASSENGER-CARRYING VEHICLE WITHIN THE PURVIEW OF THE ACT OF JULY 16, 1914, STAT. 508, WHICH PROHIBITS THE PURCHASE OF PASSENGER- CARRYING VEHICLES UNDER APPROPRIATIONS NOT SPECIFICALLY PROVIDING THEREFOR. THE DETAILED SPECIFICATIONS FOR THE 1/4-TON VEHICLE WERE AS FOLLOWS:

NEW AND LATEST IMPROVED MODEL, CLOSED COUPE TYPE CAB, LIGHT WEIGHT TRUCK, WEIGHT NOT LESS THAN 2,000 POUNDS, WITH "PICKUP" OR "LIGHT DELIVERY" OPEN BODY MOUNTED IN REAR, HAVING CAPACITY OF AT LEAST 10 CU.FT.'STRUCK MEASURE," BODY TO BE OF ALL-STEEL PERMANENTLY ATTACHED TO CHASSIS WITH RIVETS OR SPOT WELDS (BOLTS NOT ACCEPTABLE), AND PROVIDED WITH FLARE BOARDS AT EACH SIDE AND A DOWN-SWINGING END GATE, WITH TURTLE DECK ARRANGED TO HINGE AT TOP AND SWING DOWNWARD AND LOCK TO THE FLOOR; TO BE COMPLETE WITH SUITABLE LOCK AND STURDY BRACES TO HOLD TURTLE DECK UPRIGHT WHEN REQUIRED FOR FULL LOAD IN THE BODY, IN ACCORDANCE WITH ATTACHED BLUE PRINT; * * *

IT WAS REQUIRED THAT THE VEHICLE HAVE A "CLOSED COUPE TYPE CAB.' WHILE THE TERM "COUPE" IS ORDINARILY APPLIED TO A RECOGNIZED TYPE OF PASSENGER- CARRYING VEHICLE, THE TERM, IN THE PRESENT SPECIFICATIONS, APPEARS TO HAVE BEEN USED TO INDICATE THE KIND OF CAB REQUIRED, WITHOUT REFERENCE TO THE CHARACTER OF THE VEHICLE AS A WHOLE. THE DESCRIPTION OF THE BODY--- LIGHTWEIGHT TRUCK WITH PICK-UP OR LIGHT DELIVERY OPEN BODY MOUNTED IN REAR, HAVING A CAPACITY OF AT LEAST 10 CUBIC FEET STRUCK MEASURE, BODY TO BE ALL-STEEL PERMANENTLY ATTACHED TO CHASSIS WITH RIVETS OR SPOT WELDS (BOLTS NOT ACCEPTABLE), AND PROVIDED WITH FLARE BOARDS AT EACH SIDE, AND A DOWN-SWINGING END GATE, WITH TURTLE DECK ARRANGED TO HINGE AT TOP AND SWING DOWNWARD AND LOCK TO THE FLOOR; TO BE COMPLETE WITH SUITABLE LOCK AND STURDY BRACES TO HOLD TURTLE DECK UPRIGHT WHEN REQUIRED FOR FULL LOAD- -- IS DESCRIPTIVE OF A BODY PRIMARILY AND PERMANENTLY CONSTRUCTED AND ADAPTED AS A TRUCK, FOR USE IN THE TRANSPORTATION OF A "PAY-LOAD" OF FREIGHT, EQUIPMENT, OR OTHER MATERIAL. ALSO, IT IS STATED IN A LETTER OF JUNE 22, 1936, FROM THE PRESENT SUPERINTENDENT OF THE LASSEN VOLCANIC NATIONAL PARK, THAT---

THESE LIGHT PICKUP TRUCKS ARE USED, LARGELY, BY EMPLOYEES WHO ARE REQUIRED TO DRIVE LONG DISTANCES EVERY DAY OVER THE ROADS THAT HAVE BEEN DESCRIBED IN THE SPECIFICATIONS, IN ALL KINDS OF WEATHER: BOILING SUN, SUB -ZERO WEATHER, HEAVY WINDS, TORRENTIAL RAINS, SNOWSTORMS, AND BLIZZARDS, CARRYING LOADS OF FIRE-FIGHTING TOOLS, SURVEYING INSTRUMENTS, FOOD SUPPLIES, GASOLINE AND OIL, EXPRESS, BAGGAGE, OR FREIGHT, ETC., WHICH OFTEN IS BULKY BUT NOT HEAVY, AND WHICH IS ENTIRELY UNSUITABLE FOR TRANSPORTATION IN A PASSENGER CARRYING CAR. * * *

WHILE THE WRITER OF THAT LETTER WAS IN NO WAY CONNECTED WITH THE PURCHASE HERE INVOLVED, IT MAY BE PRESUMED THAT HE KNOWS AND HAS CORRECTLY STATED THE TYPE OF WORK IN WHICH THE TRUCKS ARE BEING USED. IT APPEARS, THEREFORE, THAT THE VEHICLES NOT ONLY ARE EQUIPPED WITH TRUCK TYPE BODIES PERMANENTLY ATTACHED TO THE CHASSIS, BUT THAT THEY ARE USED FOR THE TRANSPORTATION OF VARIOUS TYPES OF EQUIPMENT, MATERIAL, AND SUPPLIES NECESSARY FOR USE IN THE NATIONAL PARK SERVICE. MOREOVER, IT APPEARS THAT THIS SPECIAL TYPE OF BODY CONSTRUCTION WAS DESIGNED BY THE BRANCH OF ENGINEERING, NATIONAL PARK SERVICE, SAN FRANCISCO, CALIF., TO MEET THE SPECIAL TYPE OF SERVICE IN WHICH SUCH VEHICLES ARE EMPLOYED.

IN VIEW OF THE FACTS DISCLOSED BY THE PRESENT RECORD, I FIND THAT THE VEHICLE IN QUESTION IS PROPERLY TO BE REGARDED AS A TRUCK AND NOT AS A PASSENGER-CARRYING VEHICLE.

IN REACHING THE CONCLUSION HERE STATED, THERE HAS NOT BEEN OVER LOOKED A DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, A-59737, MARCH 18, 1935, HOLDING THAT A VEHICLE SIMILAR TO THAT DESCRIBED IN THE PRESENT SPECIFICATIONS WAS A PASSENGER-CARRYING VEHICLE WITHIN THE MEANING OF THE ACT OF JULY 16, 1914. WITH THAT VIEW, HOWEVER, I FIND MYSELF UNABLE TO AGREE IN THE PRESENT MATTER.

IN VIEW OF THE FOREGOING CONCLUSION, THE VOUCHER IN FAVOR OF GUY F. DAVIS IN THE NET AMOUNT OF $366.40, COVERING PAYMENT FOR THE 1/2-TON TRUCK, WILL BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT, AND CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF L. W. COLLINS FOR OTHERWISE PROPER PAYMENTS HERETOFORE MADE UNDER THE CONTRACT.