A-89858, OCTOBER 29, 1937, 17 COMP. GEN. 372

A-89858: Oct 29, 1937

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WERE NOT QUALIFIED ON AN ALL OR NONE ACCEPTANCE BASIS. FOR USE IN SNOW REMOVAL SERVICE ON ALASKAN HIGHWAYS DURING WINTER MONTHS AND FOR MAINTENANCE SERVICE DURING THE PERIOD WHEN SNOW REMOVAL IS NOT REQUIRED. THE SPECIFICATIONS INCIDENT TO THESE BIDS WERE IDENTICAL FOR THE THREE UNITS AND THE SINGLE DESTINATION INDICATED WAS PIER 2. THE ENTIRE NEED WAS ADVERTISED FOR UNDER A SINGLE SPECIFICATION ITEM TO INSURE THE BENEFIT OF QUANTITY DISCOUNTS. AS IT WAS KNOWN THAT THIS WOULD DEVELOP A CONTRACT IN EXCESS OF $10. WERE INCLUDED IN THE INVITATION. IS THE BID OF THE AUTOCAR SALES AND SERVICE COMPANY A "QUALIFIED" BID WITHIN THE PURVIEW OF 16 COMPTROLLER GENERAL 583. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE AND AN AWARD BE MADE TO THE AUTOCAR SALES AND SERVICE COMPANY ON TWO UNITS.

A-89858, OCTOBER 29, 1937, 17 COMP. GEN. 372

ADVERTISING - BIDS - ALTERNATE QUANTITIES - MOTOR VEHICLE PURCHASES - WALSH-HEALEY ACT REQUIREMENTS WHERE ADVERTISED SPECIFICATIONS FOR THE DELIVERY OF THREE TRUCKS CONTAINING STIPULATIONS REQUIRED BY THE WALSH-HEALEY ACT OF JUNE 30, 1936, 49 STAT. 2036, FOR CONTRACTS IN EXCESS OF $10,000, RESERVED THE RIGHT TO ACCEPT ANY ITEM OF A BID, AND WERE NOT QUALIFIED ON AN ALL OR NONE ACCEPTANCE BASIS, THE SUBSTITUTION OF THE NUMBER "2" FOR THE QUANTITY "3" STATED IN THE SPECIFICATIONS, BY THE LOWEST AND NEXT LOWEST BIDDERS, DOES NOT CONSTITUTE THE SUBMISSION OF ALTERNATE BIDS REQUIRING REJECTION UNDER THE RULE IN 16 COMP. GEN. 583, AS NEITHER THE WALSH-HEALEY ACT NOR SECTION 3709, REVISED STATUTES, REQUIRES THAT BIDS COVER ENTIRE QUANTITIES SPECIFIED IN INVITATIONS, AND THE LOW BID SHOULD BE ACCEPTED, THE ADDITIONAL TRUCK TO BE OBTAINED FROM THE NEXT LOWEST BIDDER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, OCTOBER 29, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 23, 1937, AS FOLLOWS:

ON SEPTEMBER 24, 1937, THE DEPARTMENT ADVERTISED FOR BIDS, INVITATION USDA-636, FOR THREE FOUR-WHEEL-DRIVE TRUCKS, EQUIPPED WITH DUMP BODIES AND ADAPTABLE FOR USE WITH FRONT-MOUNTED, COMBINATION BLADE-AND-ROTARY SNOW PLOWS, FOR USE IN SNOW REMOVAL SERVICE ON ALASKAN HIGHWAYS DURING WINTER MONTHS AND FOR MAINTENANCE SERVICE DURING THE PERIOD WHEN SNOW REMOVAL IS NOT REQUIRED. THE SPECIFICATIONS INCIDENT TO THESE BIDS WERE IDENTICAL FOR THE THREE UNITS AND THE SINGLE DESTINATION INDICATED WAS PIER 2, SEATTLE, WASHINGTON; HENCE, THE ENTIRE NEED WAS ADVERTISED FOR UNDER A SINGLE SPECIFICATION ITEM TO INSURE THE BENEFIT OF QUANTITY DISCOUNTS, IF ANY.

AS IT WAS KNOWN THAT THIS WOULD DEVELOP A CONTRACT IN EXCESS OF $10,000.00 IN AMOUNT, THE CONTRACT STIPULATIONS REQUIRED BY PUBLIC ACT NO. 846, 74TH CONGRESS, WERE INCLUDED IN THE INVITATION.

OPENING OF BIDS ON OCTOBER 12 REVEALED THE FACT THAT SIX BIDDERS RESPONDED TO THE INVITATION, QUOTING VARYING PRICES AS SHOWN ON ATTACHED ABSTRACT OF BIDS RECEIVED. THE LOWEST BIDDER AT UNIT PRICE, THE AUTOCAR SALES AND SERVICE COMPANY, BID ON TWO UNITS ONLY, STRIKING OUT THE FIGURE "3" UNDER THE HEADING "QUANTITY" IN BID FORM AND SUBSTITUTING IN INK THE WORDS "2 UNITS.' IN VIEW OF THIS THE FOLLOWING QUESTIONS ARISE:

1. IS THE BID OF THE AUTOCAR SALES AND SERVICE COMPANY A "QUALIFIED" BID WITHIN THE PURVIEW OF 16 COMPTROLLER GENERAL 583, AND PARAGRAPH 2A, SECTION 11,"RULINGS AND REGULATIONS OF THE UNITED STATES DEPARTMENT OF LABOR UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT" BASED THEREON, AND THEREFORE SUBJECT TO REJECTION?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE AND AN AWARD BE MADE TO THE AUTOCAR SALES AND SERVICE COMPANY ON TWO UNITS, WHAT SHOULD BE THE PROCEDURE FOR PROCUREMENT OF THE THIRD UNIT?

3. IF THE ANSWER TO QUESTION 2 IS THAT READVERTISEMENT IN SUCH CASES SHOULD NORMALLY BE RESORTED TO, BUT THE DEPARTMENT DETERMINES ADMINISTRATIVELY THAT IN THE INSTANT CASE READVERTISEMENT, DUE TO THE URGENCY OF NEED AND THE LATENESS OF THE SEASON, WOULD SERIOUSLY INTERFERE WITH THE DISCHARGE OF NECESSARY FUNCTIONS, WHAT THEN SHOULD BE THE PROCEDURE FOR PROCURING THE ADDITIONAL UNIT?

COPIES OF ABSTRACT OF ALL BIDS RECEIVED AND OF THE BIDS INVOLVED ARE FORWARDED HEREWITH. IT IS ASSUMED THAT YOUR DECISION IN THE PREMISES WILL ALSO BE FOR APPLICATION TO THE CASE OF THE NEXT LOWEST BIDDER, OSHKOSH MOTOR TRUCK INCORPORATED, OSHKOSH, WISCONSIN, THIS COMPANY HAVING ALSO SUBMITTED A BID ON ONLY TWO TRUCKS INSTEAD OF ON THE THREE REQUIRED.

IT IS REQUESTED THAT ALL BIDS AND PAPERS SUBMITTED BE RETURNED WITH YOUR DECISION.

THERE IS NOTHING IN SECTION 3709, REVISED STATUTES, OR IN THE ACT OF JUNE 30, 1936, 49 STAT. 2036, WHICH REQUIRES THAT A BIDDER SHALL SUBMIT BIDS FOR THE DELIVERY OF THE ENTIRE QUANTITY FOR WHICH BIDS ARE REQUESTED IN THE ADVERTISED SPECIFICATIONS, AND WHILE BIDS WERE REQUESTED IN THIS INSTANCE FOR THE DELIVERY OF THREE TRUCKS IN ACCORDANCE WITH THE SPECIFICATIONS, THE BIDDERS HAD THE RIGHT TO SUBMIT BIDS FOR THE DELIVERY OF ONE OR MORE OF THE TRUCKS. IN OTHER WORDS, THE BIDS SUBMITTED IN THIS CASE BY THE AUTOCAR SALES AND SERVICE COMPANY AND BY THE OSHKOSH MOTOR TRUCK INCORPORATED, EACH FOR THE DELIVERY OF TWO OF THE TRUCKS, DO NOT CONSTITUTE ALTERNATE BIDS.

IF OTHERWISE CORRECT, THERE MAY BE ACCEPTED THE LOW BID OF THE AUTOCAR SALES AND SERVICE COMPANY FOR THE DELIVERY OF TWO TRUCKS AND THE BID OF THE OSHKOSH MOTOR TRUCK INCORPORATED FOR THE DELIVERY OF ONE TRUCK, THE UNIT PRICE HAVING BEEN STATED IN THE LATTER BID AND THE UNITED STATES HAVING RESERVED THE RIGHT IN THE STANDARD INSTRUCTIONS TO BIDDERS TO ACCEPT ANY ITEM OF THE BID AND THE BID BEING FOR DELIVERY F.O.B. FACTORY AND NOT BEING QUALIFIED ON THE BASIS OF ALL OR NONE. SEE 16 COMP. GEN. 744.