A-89274, OCTOBER 18, 1937, 17 COMP. GEN. 345

A-89274: Oct 18, 1937

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ARE OBVIOUSLY RESTRICTIVE OF COMPETITION. WHERE THE SERVICE NEED IS ONLY SUCH THAT A CAR OF LESS WEIGHT AND WHEELBASE THAN THAT SPECIFIED. WAS ADMINISTRATIVELY DETERMINED TO BE ACCEPTABLE EXCEPT AS TO PRICE. REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER IN FAVOR OF PONTIAC MOTOR DIVISION. PARAGRAPH 1 (A) (B) OF THE SPECIFICATIONS WAS IN PERTINENT PART AS FOLLOWS: * * * THE AUTOMOBILES SHALL HAVE THE NECESSARY STRENGTH AND STABILITY TO MEET THE NEEDS OF THE SERVICE REQUIRED. MANUFACTURED IN THE YEAR IN WHICH DELIVERY IS MADE. EMBODYING ENGINEERING FEATURES WHICH BY TEST HAVE PROVED SATISFACTORY FOR SEVERE USE UNDER THE CONDITIONS STATED ABOVE. THE COMPONENT PARTS OF THE AUTOMOBILE SHALL BE OF SUCH MATERIALS AND DESIGNED WITHIN SUCH LIMITATIONS AS HAVE BEEN PROVED BY ACTUAL TEST TO BE CAPABLE OF SUSTAINED HIGH-SPEED SERVICE AND.

A-89274, OCTOBER 18, 1937, 17 COMP. GEN. 345

CONTRACTS - SPECIFICATIONS - RESTRICTIVE - AUTOMOBILES - WEIGHT AND WHEELBASE REQUIREMENTS AUTOMOBILE SPECIFICATIONS SO DRAWN WITH REGARD TO WEIGHT AND WHEELBASE REQUIREMENTS AS NOT ONLY TO EXCLUDE CARS IN THE LIGHT WEIGHT CLASS BUT DISCOURAGE BIDDING ON CARS OF THE MIDDLE WEIGHT CLASS, AND RESULTING IN RECEIPT OF ONLY THREE BIDS IN RESPONSE TO INVITATIONS SENT TO FOURTEEN DEALERS AND NOTICES PLACED IN PUBLIC PLACES, ARE OBVIOUSLY RESTRICTIVE OF COMPETITION, AND UNAUTHORIZED, WHERE THE SERVICE NEED IS ONLY SUCH THAT A CAR OF LESS WEIGHT AND WHEELBASE THAN THAT SPECIFIED, OFFERED BY ONE OF THE BIDDERS, WAS ADMINISTRATIVELY DETERMINED TO BE ACCEPTABLE EXCEPT AS TO PRICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, OCTOBER 18, 1937:

THERE HAS BEEN RECEIVED BY THIRD ENDORSEMENT OF SEPTEMBER 25, 1937, FROM THE CHIEF OF ENGINEERS, A LETTER OF SEPTEMBER 14, 1937, WITH ENCLOSURES, FROM JAMES L. GREEN, FIRST LIEUTENANT, CORPS OF ENGINEERS, DISBURSING OFFICER, UNITED STATES ENGINEER OFFICE, ST. LOUIS, MO., REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER IN FAVOR OF PONTIAC MOTOR DIVISION, ST. LOUIS, MO., IN THE AMOUNT OF $1,499.48, REPRESENTING THE PURCHASE PRICE OF TWO FIVE-PASSENGER, FOUR DOOR PONTIAC EIGHT-CYLINDER SEDAN AUTOMOBILES FOR THE USE OF THE UNITED STATES ENGINEER OFFICE, ST. LOUIS, MO.

PARAGRAPH 1 (A) (B) OF THE SPECIFICATIONS WAS IN PERTINENT PART AS FOLLOWS:

* * * THE AUTOMOBILES SHALL HAVE THE NECESSARY STRENGTH AND STABILITY TO MEET THE NEEDS OF THE SERVICE REQUIRED, WHICH CONTEMPLATES OPERATION APPROXIMATELY 40 PERCENT OF THE RUNNING TIME OVER ROUGH, AND OFTEN DEEPLY RUTTED, UNPAVED COUNTRY ROADS.

(B) THE AUTOMOBILES SHALL BE THE MANUFACTURER'S CURRENT STANDARD MODEL, MANUFACTURED IN THE YEAR IN WHICH DELIVERY IS MADE, OF RUGGED CONSTRUCTION THROUGHOUT, POSSESSING EASY-RIDING QUALITIES, AND EMBODYING ENGINEERING FEATURES WHICH BY TEST HAVE PROVED SATISFACTORY FOR SEVERE USE UNDER THE CONDITIONS STATED ABOVE. THE COMPONENT PARTS OF THE AUTOMOBILE SHALL BE OF SUCH MATERIALS AND DESIGNED WITHIN SUCH LIMITATIONS AS HAVE BEEN PROVED BY ACTUAL TEST TO BE CAPABLE OF SUSTAINED HIGH-SPEED SERVICE AND, AT TIMES, OPERATION OVER MUDDY, ROUGH, AND RUTTED ROADS NECESSITATING CONTINUED LOW SPEED, ALL AT LOW COST FOR MAINTENANCE AND OPERATION.

PARAGRAPH 12 OF THE SPECIFICATIONS WAS AS FOLLOWS:

CAPACITY, WEIGHT, AND DIMENSIONS.--- EACH AUTOMOBILE SHALL PROVIDE ADEQUATE INCLOSED SEATING CAPACITY FOR 5 ADULT PASSENGERS AND A COMPARTMENT FOR STORING HAND LUGGAGE. IT SHALL BE CAPABLE OF TRANSPORTING A COMBINED PASSENGER LOAD OF NOT LESS THAN 5 ADULT PERSONS AND A LUGGAGE LOAD OF APPROXIMATELY 300 POUNDS, AT SUSTAINED HIGH SPEEDS WITHOUT UNDUE STRESS IN BODY, SPRINGS, CHASSIS, OR ENGINE. THE AUTOMOBILES TO BE PURCHASED WILL BE USED FOR INSPECTION TRIPS INVOLVING CONTINUOUS DRIVING FOR LONG DISTANCES AT HIGH SPEEDS, FREQUENTLY OVER UNIMPROVED ROADS. MEDIUM WEIGHT CAR OF RUGGED CONSTRUCTION IS DESIRED UNDER THESE CONDITIONS TO PROVIDE THE NECESSARY STEADINESS IN DRIVING AND THE STRUCTURAL STRENGTH OF FRAME AND BODY TO WITHSTAND, WITHOUT UNDUE REPAIRS AND REPLACEMENTS, THE SEVERE SERVICE REQUIRED, AND TO OPERATE SUCCESSFULLY UNDER SUCH SERVICE FOR A PERIOD OF AT LEAST 3 YEARS. ANY STANDARD MAKE OF AUTOMOBILE HAVING A MINIMUM WEIGHT IN SERVICE OF APPROXIMATELY 3,400 POUNDS AND A MINIMUM WHEEL BASE OF APPROXIMATELY 120 INCHES SHOULD MEET THE ABOVE REQUIREMENTS.

IT IS STATED THAT INVITATIONS WERE SENT TO 14 DEALERS AND POSTED IN PUBLIC PLACES. ONLY THREE BIDS WERE RECEIVED, TWO OFFERING PONTIAC EIGHT- CYLINDER AUTOMOBILES WITH WHEEL BASE OF 122 INCHES AND WEIGHT OF 3,400 POUNDS, AND ONE OFFERING GRAHAM CAVALIER AUTOMOBILES WITH 116 INCH WHEEL BASE AND WEIGHING 2,945 POUNDS. PRICES BID ON THE PONTIAC AUTOMOBILES WERE $749.74 EACH BY THE PONTIAC MOTOR DIVISION, AND $750 EACH BY DOWNTOWN PONTIAC CO. AND THE PRICE BID ON THE GRAHAM CAVALIER WAS $750 EACH BY ARCHER-MANN MOTOR CO. NAMES OF OTHER DEALERS TO WHOM INVITATIONS WERE SENT, AND THE MAKES OF VEHICLES THEY HANDLED ARE NOT GIVEN. AS TO THE LAST-MENTIONED BID RECEIVED IT WAS STATED IN FIRST ENDORSEMENT OF SEPTEMBER 14, 1937, OF THE ACTING DISTRICT ENGINEER, ST. LOUIS, O., THAT:

* * * OF THE BIDS RECEIVED, ONE WAS OF LIGHTER WEIGHT AND SHORTER WHEELBASE THAN THE APPROXIMATE FIGURES SPECIFIED, BUT THE BID IS CONSIDERED AS MEETING THE SPECIFICATIONS AND IS ACCEPTABLE EXCEPT FOR PRICE.

AWARD OF CONTRACT WAS TO THE PONTIAC MOTOR DIVISION FOR TWO PONTIAC EIGHT -CYLINDER SEDANS, $749.74 EACH, DELIVERED ST. LOUIS, MO.

THE DECISIONS OF THIS OFFICE HAVE BEEN TO THE EFFECT THAT THE STATUTES LIMITING THE PRICE WHICH MAY BE PAID FOR PASSENGER-CARRYING AUTOMOBILES TO $750 EACH, WHEN READ IN CONJUNCTION WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES, CLEARLY CONTEMPLATE THAT IN THE ACQUISITION OF PASSENGER -CARRYING AUTOMOBILES FOR GOVERNMENT USE THERE SHALL BE AFFORDED AN OPPORTUNITY FOR FREE AND OPEN COMPETITION AMONG THE VARIOUS MAKES OF AUTOMOBILES WITHIN THE RECOGNIZED $750 PRICE LIMIT CLASS, AND THAT NO ARBITRARY SPECIFICATIONS AS TO MINIMUM WEIGHT, MINIMUM WHEEL BASE, OR OTHER NONESSENTIAL MECHANICAL OR DIMENSIONAL DEVICE ORDINARILY MAY BE USED FOR THE PURPOSE OF EXCLUDING FROM COMPETITION ANY MAKE OF VEHICLE WITHIN THAT CLASS. IT HAS BEEN RECOGNIZED, HOWEVER, THAT SERVICE REQUIREMENTS IN SOME INSTANCES MAY BE SUCH THAT THE RECOGNIZED "LIGHTWEIGHT" VEHICLES WOULD NOT ADEQUATELY SERVICE THE NEEDS OF THE GOVERNMENT, AND FOR THAT REASON THIS OFFICE HAS WITHHELD OBJECTION TO THE USE OF SPECIFICATIONS REQUIRING APPROXIMATE MINIMUM WEIGHT OF 3,100 POUNDS AND MINIMUM WHEEL BASE OF 114 INCHES, WHEN THE ACTUAL SERVICE NEEDS, CLEARLY STATED IN THE SPECIFICATIONS ARE SUCH AS TO JUSTIFY THE REQUIREMENT OF VEHICLES OF A SOMEWHAT HEAVIER AND STURDIER TYPE THAN THOSE IN THE SO-CALLED LIGHTWEIGHT CLASS. THE USE OF SUCH MINIMUM SPECIFICATIONS AT ONCE PUTS PROSPECTIVE BIDDERS ON NOTICE THAT STURDIER VEHICLES ARE REQUIRED AND ADMITS TO COMPETITION ALL MAKES OF AUTOMOBILES REASONABLY WITHIN THE STURDIER MEDIUM WEIGHT CLASS. 15 COMP. GEN. 974; ID. 1085; ID. 1103; 16 COMP. GEN. 178; ID. 207; ID. 354; ID. 448.

INSTEAD OF FOLLOWING THE CITED DECISIONS, THE SPECIFICATIONS IN THIS INSTANCE REQUIRED AN APPROXIMATE MINIMUM WEIGHT OF 3,400 POUNDS AND THE APPROXIMATE MINIMUM WHEEL BASE OF 120 INCHES. IF THE USE OF SUCH SPECIFICATIONS DID NOT PRECLUDE SUBMISSION OF BIDS OFFERING LIGHTER WEIGHT AUTOMOBILES WITH SHORTER WHEEL BASE, IT ASSUREDLY WOULD AND DID DISCOURAGE DEALERS IN SUCH VEHICLES FROM COMPETING, KNOWING, AS THEY WOULD, THAT DEFICIENCY IN EITHER RESPECT MIGHT BE ASSIGNED AS THE REASON FOR REJECTION OF AN OTHERWISE ACCEPTABLE LOW BID OFFERING AN AUTOMOBILE ENTIRELY ADEQUATE TO THE ACTUAL SERVICE NEEDS OF THE GOVERNMENT. AS SUGGESTED BY YOU IN A LETTER TO THIS OFFICE OF MAY 15, 1937, OTHERWISE PROSPECTIVE BIDDERS WHO KNOW THAT THEIR PRODUCTS DO NOT COMPLY WITH ADVERTISED SPECIFICATIONS FREQUENTLY DO NOT SUBMIT BIDS FOR THAT REASON NOTWITHSTANDING SUCH PRODUCTS MIGHT AS WELL OR BETTER SERVE THE NEEDS OF THE GOVERNMENT. 15 COMP. GEN. 365. ALSO, IT IS OBVIOUS THAT THERE WAS NO NECESSITY FOR PLACING THE APPROXIMATE MINIMUM-WEIGHT AND WHEEL-BASE REQUIREMENTS SO HIGH IN THE PRESENT INSTANCE, SINCE IT IS STATED THAT THE CAVALIER AUTOMOBILE WITH 116-INCH WHEEL BASE AND WEIGHING 2,945 POUNDS WAS ACCEPTABLE FOR THE WORK TO BE DONE.

IT APPEARS FROM MOTOR MAGAZINE FOR SEPTEMBER 1937 THAT THE WEIGHT AND WHEEL-BASE REQUIREMENTS HERE USED WERE SUCH THAT APPROXIMATELY 10 OR 12 MAKES AND MODELS OF AUTOMOBILES--- EXCLUSIVE OF THOSE VEHICLES IN THE SO- CALLED LIGHTWEIGHT CLASS--- COULD NOT MEET THE SPECIFICATIONS, WHEREAS, IF THERE HAD BEEN USED THE APPROXIMATELY MINIMUM WEIGHT OF 3,100 POUNDS AND MINIMUM WHEEL BASE OF 114 INCHES HERETOFORE SUGGESTED IN THE DECISIONS OF THIS OFFICE, ALL AUTOMOBILES WITHIN THE MEDIUM WEIGHT CLASS WOULD HAVE BEEN ADMITTED TO COMPETITION ON EQUAL FOOTING. THERE IS NO EVIDENCE WHATSOEVER THAT ANY ONE OF SAID VARIOUS MAKES OF AUTOMOBILES WAS NOT SUFFICIENTLY STURDY AND SUFFICIENTLY ROOMY TO SERVE EVERY NEED OF THE GOVERNMENT.

FROM WHAT HAS BEEN SAID IT IS MANIFEST THAT THE SPECIFICATIONS IN THIS INSTANCE WERE UNDULY RESTRICTIVE, WERE CALCULATED TO DISCOURAGE RATHER THAN PROMOTE COMPETITION, WERE WITHOUT REGARD TO DECISIONS OF THIS OFFICE, AND WERE UNAUTHORIZED. ADMINISTRATIVE STEPS SHOULD BE TAKEN TO THE END THAT THE SAME OR SIMILAR RESTRICTIVE SPECIFICATIONS ARE NOT USED IN FUTURE PURCHASES OF PASSENGER-CARRYING AUTOMOBILES FOR SERVICES UNDER YOUR DEPARTMENT.

IT APPEARS FROM THE CORRESPONDENCE THAT THE TWO VEHICLES PURCHASED WERE DELIVERED SOME TIME AGO, THOUGH IT IS STATED THAT THEY HAVE BEEN HELD OUT OF SERVICE PENDING DECISION OF THIS OFFICE IN THE SUBMITTED MATTER. APPEARS FURTHER THAT THE PRICE OF $749.74 EACH FOR THE TWO AUTOMOBILES IS A DELIVERED PRICE AND THAT THE GOVERNMENT WILL BE PUT TO NO EXPENSE FOR TRANSPORTATION IN ADDITION TO THE CONTRACT PRICE. ALSO, IT APPEARS THAT THE CONTRACT PRICE WAS TAX INCLUSIVE, AND THAT NO TAX EXEMPTION CERTIFICATE WILL BE FURNISHED THE CONTRACTOR FOR THE PURPOSE OF OBTAINING REFUND OF OR EXEMPTION FROM ANY APPLICABLE EXCISE TAXES. UNDER ALL THE CIRCUMSTANCES, AND WITH THAT UNDERSTANDING, THIS OFFICE WILL NOT WITHHOLD APPROVAL OF OTHERWISE PROPER PAYMENT UNDER THE CONTRACT IN THIS INSTANCE AND LIEUTENANT GREEN MAY BE SO INFORMED.