A-80821, NOVEMBER 13, 1936, 16 COMP. GEN. 485

A-80821: Nov 13, 1936

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ARE UNAUTHORIZED. IS NOT SUCH ADVERTISING AS CONTEMPLATED BY THIS SECTION IN THE ABSENCE OF A PUBLIC EXIGENCY. THE RECORD SHOWS THAT INVITATION FOR BIDS NO. 1165 WAS ISSUED MAY 27. ATTACHED TO THE CONTRACT IS AS FOLLOWS: ONLY ONE BID RECEIVED. THERE WAS A MISUNDERSTANDING OF SPECIFICATION ON SCHEDULE NO. 1165 WHICH CALLED FOR FIVE-SPEED TRANSMISSION. IT WAS NECESSARY TO ADVERTISE BY WIRE. TELEGRAMS WERE SENT TO EACH OF THE FOUR FACTORIES BIDDING ON SCHEDULE 1165 AND ALSO AN EXPLANATORY LETTER ACCOMPANIED BY FORMS FOR CONFIRMING THE BID BY MAIL. WERE MAILED TO THE LOCAL REPRESENTATIVES OF EACH FIRM. THERE IS WITH THE CONTRACT A CARBON COPY OF TELEGRAM TO THE GENERAL MOTORS TRUCK CORPORATION OVER THE NAME OF W.

A-80821, NOVEMBER 13, 1936, 16 COMP. GEN. 485

PURCHASE OF AUTOMOBILES - RESTRICTIVE SPECIFICATIONS AND INSUFFICIENCY OF TIME FOR SUBMISSION OF BIDS SPECIFICATIONS SETTING FORTH DEFINITE REQUIREMENTS AS TO WEIGHT, WHEEL BASE, PISTON DISPLACEMENT, ETC., WITHOUT PROVISION FOR VARIATION THEREFROM, ARE UNAUTHORIZED, PARTICULARLY WHERE USED TO EXCLUDE VEHICLES IN A RECOGNIZED COMPETITIVE GROUP. SECTION 3709, REVISED STATUTES, CONTEMPLATES THE WIDEST COMPETITION POSSIBLE IN THE PURCHASE OF GOVERNMENT NEEDS, AND TELEGRAPHIC INVITATIONS NECESSITATED BY REASON OF A CONFUSING PRIOR INVITATION, AFFORDING BIDDERS ONLY A MAXIMUM OF APPROXIMATELY 48 HOURS FOR THE SUBMISSION OF BIDS, SENT ONLY TO THE FOUR DEALERS SUBMITTING BIDS UNDER THE PRIOR INVITATION, AND RESULTING IN ONLY ONE BID, IS NOT SUCH ADVERTISING AS CONTEMPLATED BY THIS SECTION IN THE ABSENCE OF A PUBLIC EXIGENCY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, NOVEMBER 13, 1936:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT NO. J-1C-4376, JUNE 30, 1936, WITH THE GENERAL MOTORS TRUCK CO., PONTIAC, MICH., COVERING THE PURCHASE OF TWO TRUCKS FOR THE UNITED STATES PENITENTIARY, MCNEIL ISLAND, WASH., AT $1,841.79 EACH, F.O.B. PONTIAC, MICH.

THE RECORD SHOWS THAT INVITATION FOR BIDS NO. 1165 WAS ISSUED MAY 27, 1936, TO BE OPENED JUNE 19, 1936. STANDARD FORM NO. 1036, STATEMENT AND CERTIFICATE OF AWARD, ATTACHED TO THE CONTRACT IS AS FOLLOWS:

ONLY ONE BID RECEIVED. INVITATION SENT TO FOUR DEALERS SUBMITTING BIDS ON SCHEDULE 1165. THERE WAS A MISUNDERSTANDING OF SPECIFICATION ON SCHEDULE NO. 1165 WHICH CALLED FOR FIVE-SPEED TRANSMISSION. IN ORDER THAT ALL BIDDERS MIGHT QUOTE ON THE SAME BASIS AND THE GOVERNMENT RECEIVE THE ADVANTAGE OF THE LOW BID ON A TRUCK WHICH WOULD MEET SERVICE REQUIREMENTS, IT WAS NECESSARY TO ADVERTISE BY WIRE. TELEGRAMS WERE SENT TO EACH OF THE FOUR FACTORIES BIDDING ON SCHEDULE 1165 AND ALSO AN EXPLANATORY LETTER ACCOMPANIED BY FORMS FOR CONFIRMING THE BID BY MAIL. COPIES OF THE TELEGRAMS AND LETTERS, INCLUDING FORMS, WERE MAILED TO THE LOCAL REPRESENTATIVES OF EACH FIRM.

THERE IS WITH THE CONTRACT A CARBON COPY OF TELEGRAM TO THE GENERAL MOTORS TRUCK CORPORATION OVER THE NAME OF W. T. HAMMACK, ASSISTANT DIRECTOR. THIS TELEGRAM BEARS THE NOTATION,"RHA:NH 6-27-36," INDICATING THAT IT WAS DICTATED ON JUNE 27, 1936, THOUGH WHEN IT WAS SENT IS NOT SHOWN. THIS TELEGRAM REQUESTED THAT TELEGRAPHIC BID ON TRUCKS COMPLYING WITH SPECIFICATIONS NAMED THEREIN BE IN THE RECEIVING OFFICE NOT LATER THAN 2 P.M. JUNE 29. THE TELEGRAPHIC BID OF THE GENERAL MOTORS TRUCK CORPORATION WAS RECEIVED JUNE 29, AND ACCEPTED JUNE 30, 1936.

THE SPECIFICATIONS REQUIRED DUMP TRUCKS OF 2 1/2 CUBIC YARDS CAPACITY, WITH A DRY CHASSIS WEIGHT OF 5,700 POUNDS, GROSS VEHICLE WEIGHT OF NOT LESS THAN 16,500 POUNDS, WHEEL BASE OF NOT MORE THAN 151 INCHES, AND A PISTON DISPLACEMENT OF NOT LESS THAN 298 CUBIC INCHES, WITH THE PROVISION THAT IF AN ENGINE OF LESS DISPLACEMENT WAS FURNISHED MAXIMUM TORQUE SHOULD NOT BE LESS THAN 200 POUNDS-FEET.

IN REPLY TO A LETTER OF AUGUST 7, 1936, REQUESTING AN EXPLANATION AS TO THE NECESSITY FOR THE SPECIFICATIONS USED AND WHY PROVISION WAS NOT MADE FOR VARIATION FROM THE ARBITRARY REQUIREMENTS, PROVIDED THE NEEDS OF THE SERVICE WERE MET, A LETTER OF AUGUST 18, WAS RECEIVED FROM MR. HAMMACK TO THE EFFECT THAT THE SPECIFICATIONS WERE USED FOR THE PURPOSE OF OBTAINING UNUSUALLY STURDY TRUCKS WHICH WOULD GIVE ECONOMICAL AND SATISFACTORY SERVICE ON A CONSTRUCTION JOB WHICH WOULD REQUIRE THAT THE TRUCKS BE USED OVER ROUGH GROUNDS AND FOR HEAVY HAULING, AND TO EXCLUDE FROM COMPETITION TRUCKS OF A LIGHTER AND CHEAPER TYPE WHICH HAD BEEN PROVEN BY EXPERIENCE TO BE UNSUITABLE FOR THE CHARACTER OF SERVICE TO BE RENDERED. ALSO, IT WAS STATED THAT PRACTICALLY ALL MANUFACTURERS OF THE PARTICULAR CLASS OF TRUCKS DESIRED USED A CHASSIS OF THE MINIMUM WEIGHT DESCRIBED, AND THAT THE SPECIFICATIONS AS DRAWN PERMITTED ALL MANUFACTURERS OF TRUCKS OF THE CLASS REQUIRED TO QUALIFY. DATA GIVEN IN AUTOMOBILE TRADE JOURNALS IN THIS OFFICE APPEARS TO SUPPORT THESE STATEMENTS, AND IN VIEW OF THE SERVICE REQUIREMENTS AND PREVIOUS EXPERIENCE WITH LIGHTER TRUCKS OUTLINED IN THE LETTER, THIS OFFICE WILL NOT QUESTION THE CONTRACT FURTHER IN THIS INSTANCE BY REASON OF THE SPECIFICATION REQUIREMENTS. IT IS TO BE UNDERSTOOD, HOWEVER, THAT ARBITRARY SPECIFICATIONS IN ANY RESPECT MAY NOT LEGALLY BE USED AS A MEANS OF EXCLUDING FROM COMPETITION A VEHICLE OR VEHICLES IN A RECOGNIZED COMPETITIVE GROUP, AND THE SERVICE CONDITIONS STATED IN THE SPECIFICATIONS MUST IN EVERY CASE JUSTIFY ANY MECHANICAL REQUIREMENTS.

IT IS STATED THAT ONLY FOUR BIDS WERE RECEIVED ON INVITATION NO. 1165, SUPRA, AND IT IS NOT SHOWN HOW MANY MANUFACTURERS OR DEALERS WERE CIRCULARIZED OR INVITED TO BID ON THAT INVITATION. A NUMBER OF MANUFACTURERS PRODUCE TRUCKS WHICH COMPLY WITH THE SPECIFICATIONS, AND IT WOULD APPEAR THAT PROPER CIRCULATION OF THE INVITATION WOULD HAVE RESULTED IN A LARGER NUMBER OF BIDS, WITH CORRESPONDING INCREASE IN COMPETITION. SECTION 3709, REVISED STATUTES, CONTEMPLATES THAT IN PURCHASING FOR GOVERNMENT NEEDS THE WIDEST COMPETITION POSSIBLE BE HAD, AND THAT ALL QUALIFIED PERSONS BE GIVEN OPPORTUNITY TO COMPETE. TO CONFINE INVITATIONS TO BID TO A COMPARATIVE FEW OF THOSE IN POSITION TO SUPPLY THE NEEDS OF THE GOVERNMENT IS NOT A COMPLIANCE WITH THE STATUTE.

THE TELEGRAPHIC INVITATION WAS SENT ONLY TO THE FOUR DEALERS SUBMITTING BIDS ON THE FIRST INVITATION, ONLY ONE OF WHOM REPLIED, AND THE CONTRACT WAS LET WITHOUT COMPETITION. SECTION 3709, REVISED STATUTES, SPECIFICALLY PROVIDES THAT PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES SHALL BE MADE BY ADVERTISING A SUFFICIENT TIME PREVIOUS, WHEN THE PUBLIC EXIGENCIES DO NOT REQUIRE IMMEDIATE DELIVERY. THOSE QUALIFIED TO BID SHOULD BE GIVEN A REASONABLE TIME TO CONSIDER THE SPECIFICATIONS AND SUBMIT THEIR BIDS. TELEGRAPHIC INVITATION FOR BIDS AFFORDING PROSPECTIVE BIDDERS NOT MORE THAN A MAXIMUM OF APPROXIMATELY 48 HOURS TO PREPARE AND TRANSMIT BIDS IS NOT A COMPLIANCE WITH STATUTORY PROVISIONS, IN THE ABSENCE OF A PUBLIC EXIGENCY. NO SUCH EXIGENCY EXISTED IN THE PRESENT INSTANCE. 14 COMP. GEN. 875; A-71029, MAY 5, 1936; A-61955, MAY 16, 1935. WHAT INFLUENCED THE OTHER THREE DEALERS NOT TO BID UNDER THE TELEGRAPHIC INVITATION DOES NOT APPEAR, AND IT MAY BE POSSIBLE THAT THEY WERE NOT IN POSITION TO SUBMIT BIDS ON SUCH SHORT NOTICE. WHATEVER THE CAUSE, THE RESULT WAS THAT THE GOVERNMENT WAS DEPRIVED OF WHATEVER BENEFIT MIGHT HAVE BEEN DERIVED FROM THE COMPETITION OF THE MARKET. THE WIDEST PUBLICITY POSSIBLE SHOULD BE GIVEN TO INVITATIONS FOR BIDS, ALL QUALIFIED PERSONS SHOULD BE AFFORDED OPPORTUNITY TO COMPETE, AND GIVEN A REASONABLE TIME WITHIN WHICH TO PREPARE AND SUBMIT THEIR BIDS. WHAT IS A REASONABLE TIME IS IN SOME MEASURE DEPENDENT UPON THE CIRCUMSTANCES OF A PARTICULAR CASE, BUT WHATEVER MIGHT OTHERWISE JUSTIFY SO BRIEF AN ADVERTISEMENT AS HERE, NO SUCH FACTS ARE DISCLOSED BY THE PRESENT RECORD. THE PROPER PROCEDURE REQUIRED REJECTION OF THE LONE BID AND READVERTISEMENT GIVING NOT ONLY WIDER PUBLICITY TO THE INVITATION BUT AMPLE TIME FOR SUBMISSION OF BIDS.

WHILE, UNDER ALL THE CIRCUMSTANCES OF THIS CASE, THIS OFFICE WILL NOT WITHHOLD APPROVAL OF OTHERWISE PROPER PAYMENT UNDER THE INSTANT CONTRACT, ADMINISTRATIVE MEASURES SHOULD BE TAKEN TO AVOID REPETITION OF THE UNAUTHORIZED PRACTICE HERE DISCLOSED, IN FUTURE PURCHASES OF AUTOMOBILE EQUIPMENT FOR YOUR DEPARTMENT.