B-11383, MAY 31, 1941, 20 COMP. GEN. 836

B-11383, MAY 31, 1941, 20 COMP. GEN. 836

CONTRACTS - RESTRICTIVE MOTOR TRUCK SPECIFICATIONS - GUARANTY PROVISIONS WHERE AN APPARENTLY RESTRICTIVE, PRICE INCREASING, OR OTHERWISE UNAUTHORIZED CONTRACT SPECIFICATION REQUIREMENT IS QUESTIONED BY THE GENERAL ACCOUNTING OFFICE, IT IS NOT FOR THE OFFICE TO "SUBMIT REASONS" REQUIRING THE EXCLUSION OF THE PROVISION, BUT RATHER FOR THE PURCHASING AGENCY TO SUBMIT FACTS JUSTIFYING ITS INCLUSION IN ANY PARTICULAR CASE. CONTRACT SPECIFICATIONS FOR MOTOR TRUCKS MAY NOT INCLUDE A MORE DRASTIC AND EXACTING PERFORMANCE GUARANTY PROVISION THAN THAT SPECIFIED IN THE APPLICABLE FEDERAL SPECIFICATIONS FOR SUCH TRUCKS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MAY 31, 1941:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT I-1-P-12670, DATED APRIL 22, 1940, WITH THE AUTOCAR SALES AND SERVICE CO., COVERING PURCHASE OF ONE OIL-TANK TRUCK FOR THE NATIONAL PARK SERVICE, IN THE AMOUNT OF $5,620, F.O.B. ASHFORD, WASH., LESS ALLOWANCE OF $125 FOR A USED OIL-TANK TRUCK TRADED IN ON THE TRANSACTION.

THE INVITATION FOR BIDS LEADING TO THE CONTRACT DESCRIBED THE TRUCK TO BE PURCHASED AS FOLLOWS:

TRUCK, 6 WHEEL, 4-REAR-WHEEL DRIVE, CLOSED CAB, EQUIPPED WITH 2,000 GALLON FUEL-OIL TANK BODY, RATED G.V.W. NOT LESS THAN 30,000 LBS., D.C.W. NOT LESS THAN 10,500 LBS., WHEEL BASE FOR PROPER MOUNTING OF BODY SPECIFIED UNDER B-19, IN ACCORDANCE WITH FEDERAL SPECIFICATION KKK-T-701A, AS AMPLIFIED IN ATTACHED TENTATIVE STANDARD SPECIFICATION, * * *

THERE WERE ATTACHED CERTAIN " SPECIAL BID CONDITIONS" IN RELEVANT PART AS FOLLOWS:

PERFORMANCE GUARANTY.--- THE BIDDER GUARANTEES THAT THE MACHINE OR MACHINES BID ON WILL DO THE WORK REQUIRED AS SET FORTH IN " SERVICE REQUIREMENTS" WITHOUT UNDUE STRESS OR DELAY AND IN A SATISFACTORY MANNER, FOR A PERIOD OF AT LEAST ONE YEAR AFTER DATE OF ACCEPTANCE OF THE MACHINE OR MACHINES BY THE GOVERNMENT. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO. IF IT IS DECIDED THAT THE MACHINE OR MACHINES FURNISHED BY THE CONTRACTOR ARE NOT PERFORMING SATISFACTORILY:

(1) THE CONTRACTOR WILL BE NOTIFIED OF ANY DEFICIENCY IN THE PERFORMANCE OF THE MACHINE AND WILL BE ALLOWED 15 DAYS TO CORRECT SUCH DEFICIENCY.

(2) IF THE DEFICIENCIES NOTED ARE NOT, OR CANNOT BE, CORRECTED BY THE CONTRACTOR IN THE 15 DAYS, HE SHALL BE ALLOWED 15 DAYS ADDITIONAL IN WHICH TO FURNISH AN ENTIRELY NEW MACHINE.

(3) AS A LAST RESORT, THE GOVERNMENT RESERVES THE RIGHT TO PURCHASE AGAINST THE ACCOUNT OF THE CONTRACTOR, IN THE OPEN MARKET, A MACHINE WHICH WILL MEET THESE SERVICE REQUIREMENTS.

PERFORMANCE BOND.--- CONTRACTOR WILL BE REQUIRED TO POST A BOND EQUAL TO 100 PERCENT OF THE AMOUNT OF THE CONTRACT AS A GUARANTEE THAT THE EQUIPMENT DELIVERED UNDER THE CONTRACT WILL BE IN ACCORDANCE WITH THE SPECIFICATIONS AND WILL PERFORM TO THE SATISFACTION OF THE GOVERNMENT FOR A PERIOD OF ONE YEAR FROM DATE OF DELIVERY.

SO FAR AS HERE MATERIAL THE TENTATIVE STANDARD SPECIFICATIONS MENTIONED PROVIDED THAT---

A-1. THE FOLLOWING FEDERAL SPECIFICATIONS * * * ARE APPLICABLE AND BECOME A PART OF THIS SPECIFICATION:

KKK-T-701A--- TRUCKS, 4 WHEEL, 2 REAR WHEEL DRIVE, AS AMPLIFIED BELOW.

B-3. A GUARANTEE AS TO MATERIALS AND WORKMANSHIP IS REQUIRED AND SHALL BE NAMED OR DESCRIBED BY THE BIDDER IN SECTION F," QUESTIONNAIRE.' THE STANDARD GUARANTEE OF THE AUTOMOBILE MANUFACTURERS ASSOCIATION IS ACCEPTABLE.

WHEN THE CONTRACT WAS RECEIVED IN THIS OFFICE FOR EXAMINATION AND FILING PURSUANT TO LAW, IT APPEARED FROM STANDARD FORM NO. 1036, STATEMENT AND CERTIFICATE OF AWARD, ATTACHED THERETO, THAT BIDS WERE SOLICITED BY CIRCULAR LETTER SENT TO 51 DEALERS AND BY NOTICES POSTED IN PUBLIC PLACES; THAT THREE BIDS WERE RECEIVED AND THAT TWO LOWER BIDS WERE REJECTED AND AWARD MADE TO THE HIGHEST BIDDER, THE SOLE REASON ASSIGNED FOR REJECTION OF THE LOW BID BEING THAT:

THE BID OF INTERNATIONAL HARVESTER CO., INC., AT $4,753, F.O.B. KANSAS CITY, MO., WAS ELIMINATED BECAUSE THIS BIDDER DOES NOT MEET THE SPECIAL CONDITIONS OF THE ADVERTISEMENT REQUIRING PERFORMANCE GUARANTEE APPEARING ON PAGE 4 OF THE ADVERTISEMENT.

UNDER DATE OF OCTOBER 7, 1940, THE AUDIT DIVISION OF THIS OFFICE ADDRESSED A LETTER TO THE DIRECTOR, NATIONAL PARK SERVICE, IN PERTINENT PART AS FOLLOWS:

IT IS NOTED THAT A LOWER BID OF INTERNATIONAL HARVESTER CO., INC., WAS REJECTED BECAUSE THE BIDDER DID NOT MEET THE SPECIAL CONDITIONS OF THE ADVERTISEMENT REQUIRING PERFORMANCE GUARANTEE SET OUT ON PAGE FOUR OF THE ADVERTISEMENT.

IT APPEARS THAT THE CONTRACT AND PERFORMANCE GUARANTY REQUIREMENTS WERE BASED ON FEDERAL SPECIFICATION KKK-T-701A, EFFECTIVE FEBRUARY 15, 1934. SEE PARAGRAPH B-3 THEREOF. HOWEVER, FEDERAL SPECIFICATION KKK T-716, APPROVED BY THE DIRECTOR OF PROCUREMENT, PROCUREMENT DIVISION, TREASURY DEPARTMENT, UNDER DATE OF OCTOBER 14, 1937, AND MADE EFFECTIVE NOT LATER THAN AUGUST 15, 1938, EXPRESSLY PROVIDED THAT IT SUPERSEDED PART OF FEDERAL SPECIFICATION KKK-T-701A, AND IT IS MANIFEST THAT INSOFAR AS THE EARLIER SPECIFICATION HAD BEEN SUPERSEDED BY THE LATER, IT WAS NOT IN EFFECT AT THE TIME THE PRESENT PURCHASE WAS MADE. PARAGRAPH B-3 OF THE FORMER SPECIFICATION WAS OMITTED IN FEDERAL SPECIFICATION KKK-T-716, AND THEREAFTER NO LONGER WAS AND IS NO LONGER CURRENT, HAVING BEEN SUPERSEDED BY PARAGRAPHS B-2, B-3, B 3A, AND B-3B IN THE LATER SPECIFICATION.

THE ONLY AUTHORITY FOR REQUIRING A CONTRACTOR TO "FURNISH A 100 PERCENT SERVICE BOND FOR A PERIOD OF 1 YEAR" APPEARS IN PARAGRAPH B-2 AND IS THERE LIMITED TO CASES WHERE ANY OF THE ,CONDITIONS" SPECIFIED IN SAID PARAGRAPH DO NOT APPLY. THE GUARANTEES--- AND THE ONLY GUARANTEES--- REQUIRED OF A CONTRACTOR ARE ENUMERATED IN PARAGRAPHS B 3A AND B-3B, MORE PARTICULARLY, SO FAR AS HERE CONCERNED, IN THE LATTER.

THE SPECIFICATION, WHICH IS MANDATORY FOR ALL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT, DOES NOT AUTHORIZE OR PERMIT ANY SUCH DEPARTMENT OR ESTABLISHMENT TO REQUIRE ANY OTHER OR ADDITIONAL GUARANTY THAN THOSE SPECIFICALLY PRESCRIBED AND REQUIRED IN SAID FEDERAL SPECIFICATION. HENCE, THE PROVISION IN THE PRESENT INVITATION FOR BIDS REQUIRING GUARANTEES EFFECTIVE FOR ONE YEAR WITHOUT LIMITATION AND/OR SIMILAR REQUIREMENTS SEEKING TO IMPOSE UPON CONTRACTORS GREATER MEASURES OF RESPONSIBILITY THAN THOSE REQUIRED BY THE FEDERAL SPECIFICATIONS INVOLVED ARE IN CONTRAVENTION OF SUCH MANDATORY SPECIFICATIONS, AND ARE UNAUTHORIZED.

WHILE THE SUBJECT AND SIMILAR CONTRACTS HERETOFORE ENTERED INTO WILL NOT BE FURTHER QUESTIONED BY REASON OF THE INCLUSION OF THEIR RESTRICTIVE AND UNWARRANTED PROVISIONS, PENDING INVITATIONS SHOULD BE AMENDED SO AS TO ELIMINATE SUCH PROVISIONS, WHICH SHOULD BE OMITTED FROM FUTURE INVITATIONS COVERING THE PURCHASE OF MOTOR EQUIPMENT OF THE TYPE HERE INVOLVED.

REPLY OF NOVEMBER 22, 1940, WAS IN RELEVANT PART AS FOLLOWS:

YOUR LETTER WAS REFERRED TO THE PURCHASING OFFICE FOR COMMENT AND REPLY, READING IN PART AS FOLLOWS, WAS RECEIVED:

"REFERENCE IS MADE TO THE ENCLOSED LETTER, DATED OCTOBER 7 FROM THE GENERAL ACCOUNTING OFFICE--- FILE A-OBC-CE--- ADDRESSED TO YOU AND REFERRED TO THIS OFFICE FOR COMMENT.

"THESE SPECIAL BID CONDITIONS INCLUDED IN THIS CONTRACT ON PAGE 4 TO WHICH THE GENERAL ACCOUNTING OFFICE HAS OBJECTED HAVE BEEN CONSIDERED NECESSARY AND HAVE BEEN INCLUDED IN ALL BID INVITATIONS FOR SUCH SPECIAL TRUCKS AS 4-WHEEL--- 4-WHEEL DRIVE; 6-WHEEL--- 6-WHEEL DRIVE; 6-WHEEL--- 4 REAR WHEEL DRIVE AND 6-WHEEL--- 4 REAR WHEELS, TWO OF WHICH ARE POWERED; BECAUSE THERE ARE CERTAIN BIDDERS WHO HAVE FURNISHED TRUCKS OF THESE TYPES WHICH, THOUGH COMPLYING WITH THE SPECIFICATIONS HAVE PROVEN UNSATISFACTORY IN MANY WAYS WITHIN 12 MONTHS OF OPERATION.

"THE INTERNATIONAL HARVESTER COMPANY, WHOSE TRUCKS WHEN PURCHASED GENERALLY HAVE BEEN SATISFACTORY, OR WHO HAS ALWAYS CORRECTED ANY DEFICIENCY THAT HAS DEVELOPED, IS THE ONLY BIDDER WHO HAS OBJECTED TO THE SUBJECT BID CONDITIONS. THE REASONS FOR THE INCLUSION OF THESE CONDITIONS IN SUCH BID INVITATIONS HAVE BEEN THOROUGHLY EXPLAINED TO THE WASHINGTON REPRESENTATIVE OF THAT COMPANY.

"IT IS APPARENT THE GENERAL ACCOUNTING OFFICE DOES NOT REALIZE THAT THERE IS NO FEDERAL SPECIFICATION WHICH APPLIES DIRECTLY TO TRUCKS EITHER 6- WHEEL--- 4 REAR WHEEL DRIVE OR 6-WHEEL--- 4 REAR WHEELS, TWO OF WHICH ARE POWERED. FEDERAL SPECIFICATION KKK-T-701A APPLIES TO TRUCKS WITH 4 WHEELS --- 2 REAR WHEEL DRIVE; FEDERAL SPECIFICATION KKK T-706 APPLIES TO TRUCKS WITH EITHER 4 WHEELS--- 4-WHEEL DRIVE OR 6 WHEELS--- 6-WHEEL DRIVE; I.E., TRUCKS WITH ALL THE WHEELS POWERED; AND FEDERAL SPECIFICATION KKK-T-716 APPLIES TO TRUCKS WITH 4 WHEELS--- 2 REAR WHEEL DRIVE, PARTICULARLY LIMITED TO A PAY LOAD OF 1,000 POUNDS, NO MORE OR LESS. THERE IS NO DOUBT THAT THIS LAST FEDERAL SPECIFICATION DOES NOT SUPERSEDE ANY PART OF FEDERAL SPECIFICATION KKK T-701A EXCEPT FOR TRUCKS LIMITED TO A PAY LOAD OF 1,000 POUNDS.

"FROM THE ABOVE IT IS EVIDENT THAT FEDERAL SPECIFICATION KKK-T-716 WOULD NOT HAVE APPLIED TO CONTRACT I-1-P-12670, BECAUSE THIS CONTRACT WAS FOR A 6-WHEEL TRUCK CHASSIS OF RATED GROSS VEHICLE WEIGHT NOT LESS THAN 30,000 LBS. THE PAY LOAD CAPACITY OF THE TRUCK OFFERED IS 19,250 LBS., LESS THE WEIGHT OF THE BODY TO BE MOUNTED ON THE CHASSIS.

"THIS OFFICE DOES NOT BASE ANY OF THE DEPARTMENTAL SPECIFICATIONS ON FEDERAL SPECIFICATION KKK-T-716, FOR IT RECEIVES NO REQUESTS FOR TRUCKS WITH A PAY LOAD CAPACITY OF EXACTLY 1,000 LBS., INCLUDING DRIVER, AND THAT FEDERAL SPECIFICATION PERMITS OF NO MODIFICATION WHATEVER.

"THE DEPARTMENTAL SPECIFICATIONS FOR THE SPECIAL 6-WHEEL DRIVE TRUCKS OR CHASSIS WITH EITHER 4 REAR WHEEL DRIVE OR 4 WHEELS, TWO OF WHICH ARE POWERED, HAVE BEEN BASED ON FEDERAL SPECIFICATION KKK-T-701A, MODIFIED TO REQUIRE 4 REAR WHEELS INSTEAD OF TWO, BECAUSE SUCH TRUCKS ARE GENERALLY MANUFACTURED AND OFFERED BY THE MANUFACTURERS OF TRUCKS WITH 4 WHEELS, TWO REAR WHEEL DRIVE, AND ARE MORE SIMILAR TO THE 4 WHEEL TWO REAR WHEEL DRIVE TRUCKS THAN TO THE ALL-WHEEL DRIVE TRUCKS. ACCORDING TO TREASURY DEPARTMENT, PROCUREMENT DIVISION, BRANCH OF SUPPLY CIRCULAR LETTER 319, ANY FEDERAL SPECIFICATION MAY BE ALTERED WHEN NECESSARY FOR ANY PARTICULAR SERVICE, PROVIDED NOTIFICATION OF SUCH CHANGE IS FORWARDED TO THE PROCUREMENT DIVISION. SUCH A NOTIFICATION TO THE PROCUREMENT DIVISION WAS NOT NECESSARY IN THIS INSTANCE BECAUSE THE FEDERAL SPECIFICATION EMPLOYED PROVIDED FOR ALL THE MODIFICATIONS WHICH WERE INSERTED IN THE DEPARTMENTAL SPECIFICATION OF THAT CONTRACT.

"FROM THE ABOVE IT IS EVIDENT THIS OFFICE PROPERLY HAS INSERTED THE SPECIAL BID CONDITIONS IN THE BID INVITATIONS FOR SPECIAL TRUCKS WHICH IN THIS INSTANCE, WAS FOR YOUR PROTECTION TO INSURE, IN CASE OF FAILURE, THAT THIS TRUCK WOULD BE PROPERLY PLACED IN OPERATING CONDITION BY THE CONTRACTOR, AND IF THE TRUCK SHOULD PROVE ENTIRELY UNSATISFACTORY WITHIN THE GUARANTEE PERIOD, YOU WOULD BE ABLE TO REPLACE THE TRUCK PROMPTLY ACCORDING TO THE TERMS OF THE REQUIRED GUARANTEE. IT IS NOT UNDERSTOOD WHY THE GENERAL ACCOUNTING OFFICE ACCORDING TO THE LAST PARAGRAPH OF ITS LETTER, CONSIDERS THE SUBJECT PROVISIONS AS "RESTRICTIVE AND UNWARRANTED PROVISION.' THE PROVISIONS CERTAINLY ARE NOT RESTRICTIVE SINCE ONLY ONE OF MANY BIDDERS HAS OBJECTED TO THE PROVISIONS. THE PROVISIONS CERTAINLY ARE NOT UNWARRANTED BECAUSE THIS OFFICE SEVERAL TIMES HAS BEEN COMPELLED TO REQUIRE THE CONTRACTOR TO REPLACE UNSATISFACTORY EQUIPMENT, AND HAS BEEN COMPELLED IN CERTAIN INSTANCES TO PURCHASE AGAINST THE ACCOUNT OF OTHER CONTRACTORS OWING TO EQUIPMENT BEING ENTIRELY UNSATISFACTORY FOR THE SERVICE REQUIRED. UNLESS THE GENERAL ACCOUNTING OFFICE CAN SUBMIT OTHER REASONS FOR REQUIRING THE ELIMINATION OF THE PERFORMANCE GUARANTEE REQUIREMENT, THIS OFFICE WILL CONTINUE THE USE OF THESE REQUIREMENTS WHENEVER IT IS CONSIDERED NECESSARY FOR THE TYPE OF EQUIPMENT TO BE PURCHASED.'

THIS SERVICE CONCURS IN THE COMMENTS MADE BY THE PURCHASING OFFICE REGARDING THIS MATTER.

IT HAS BEEN HELD CONSISTENTLY THAT THE QUESTION AS TO WHETHER SPECIFICATIONS ARE UNDULY RESTRICTIVE OF COMPETITION OR OTHERWISE OBJECTIONABLE IS ONE THAT GOES TO THE LEGALITY OF THE CONTRACT AND THE USES OF APPROPRIATED MONEYS AND IS FOR DETERMINATION BY THIS OFFICE. HENCE, WHEN AN APPARENTLY RESTRICTIVE, PRICE INCREASING, OR OTHERWISE UNAUTHORIZED SPECIFICATION REQUIREMENT IS QUESTIONED HERE, IT IS NOT FOR THIS OFFICE TO "SUBMIT REASONS" REQUIRING ITS EXCLUSION, BUT RATHER FOR THE PURCHASING AGENCY TO SUBMIT FACTS JUSTIFYING ITS INCLUSION IN THE SPECIFICATIONS IN ANY CASE. IN THE ABSENCE OF SUCH JUSTIFICATION AN OBJECTIONABLE SPECIFICATION IS NOT FOR APPLICATION.

THE SOLE QUESTION INVOLVED AT THIS TIME IS THE AUTHORITY FOR AND PROPRIETY OF INCLUDING THE " SPECIAL BID CONDITIONS" QUOTED ABOVE IN THE SPECIFICATIONS FOR THE PURCHASE OF TRUCKS AND SIMILAR EQUIPMENT FOR THE NATIONAL PARK SERVICE, OR ANY DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, AND THAT QUESTION REMAINS WHETHER SUCH PURCHASES PURPORT TO BE MADE UNDER FEDERAL SPECIFICATION KKK-T-701A OR FEDERAL SPECIFICATION KKK-T -716 (WHICH HEREAFTER FOR BREVITY WILL BE REFERRED TO BY THEIR NUMERICAL DESIGNATION ONLY). IN AN UNPUBLISHED DECISION OF JULY 29, 1931, A-36939, TO THE THEN SECRETARY OF THE INTERIOR, THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES WITHHELD OBJECTION TO THE INCLUSION IN SPECIFICATIONS COVERING PURCHASE OF TRACTORS AND SIMILAR EQUIPMENT FOR USE IN THE NATIONAL PARKS OF A PARAGRAPH REQUIRING SUCCESSFUL BIDDERS TO GIVE BOND IN APPROPRIATE AMOUNT GUARANTEEING PERFORMANCE AND DURABILITY OF SUCH EQUIPMENT. AT THE SAME TIME, THERE WAS SUGGESTED FOR ADMINISTRATIVE CONSIDERATION WHETHER IT WOULD NOT BE MORE SATISFACTORY TO HAVE THE GUARANTY "COVER A FIXED NUMBER OF MILES OR HOURS OF PERFORMANCE RATHER THAN A PERIOD OF TIME AS RECKONED BY THE CALENDAR.' APPARENTLY, THAT SUGGESTION WAS NOT CONSIDERED BY OR DID NOT FIND FAVOR WITH THE DEPARTMENT OF THE INTERIOR AT THAT TIME, FOR THE GUARANTY AND BOND EXACTED BY THE DEPARTMENT TOOK THE FORM OF AN UNQUALIFIED GUARANTY OF SATISFACTORY PERFORMANCE AND SERVICE OVER A PERIOD OF 1 YEAR AS "RECKONED BY THE CALENDAR," TOGETHER WITH A BOND IN THE AMOUNT OF 50 TO 100 PERCENT OF THE CONTRACT PRICE TO SUPPORT THE GUARANTY.

AT THE TIME THE ABOVE-MENTIONED DECISION WAS RENDERED FEDERAL SPECIFICATION KKK-T-701, DECEMBER 13, 1932--- WHICH WAS SUPERSEDED BY 701A ON SEPTEMBER 8, 1933--- HAD NOT BEEN ISSUED, AND SO FAR AS IS NOW KNOWN THERE WAS THEN EXTANT NO FEDERAL SPECIFICATION REQUIRING FROM A CONTRACTOR ANY SPECIFIC GUARANTY OF SERVICE, PERFORMANCE, OR DURABILITY OF TRUCKS OR SIMILAR EQUIPMENT PURCHASED BY THE GOVERNMENT, WHILE THE "UNIFORM WARRANTY" OF THE NATIONAL AUTOMOBILE CHAMBER OF COMMERCE (NOW THE AUTOMOBILE MANUFACTURERS ASSOCIATION) HAD NOT YET BEEN ADOPTED, IT APPEARING THAT SUCH WARRANTY, OR ITS PASSENGER CAR COUNTERPART, WHICH IS UNDERSTOOD TO BE IDENTICAL, WAS FIRST RECOMMENDED BY THE DIRECTORS OF THAT ORGANIZATION FOR ADOPTION BY THE ENTIRE INDUSTRY UNDER DATE OF NOVEMBER 14, 1931. THUS, THE GOVERNMENT WAS AT THAT TIME IN LARGE MEASURE WITHOUT SPECIFIC PROTECTION AGAINST UNSCRUPULOUS CONTRACTORS FURNISHING INFERIOR AND UNRELIABLE EQUIPMENT OF THE KIND INVOLVED. THE RECORDS OF THIS OFFICE WOULD APPEAR TO INDICATE THAT SUCH CONDITIONS, TOGETHER WITH CERTAIN REPRESENTATIONS OF THE DEPARTMENT OF THE INTERIOR RELATIVE TO DIFFICULTY EXPERIENCED IN OBTAINING DURABLE TRACTORS AND SIMILAR EQUIPMENT FOR USE IN THE NATIONAL PARK SERVICE MAY HAVE INFLUENCED MATERIALLY THAT DECISION OF THE FORMER COMPTROLLER GENERAL.

AS STATED ABOVE, THE " UNIFORM WARRANTY" OF THE NATIONAL AUTOMOBILE CHAMBER OF COMMERCE WAS DATED NOVEMBER 14, 1931, UNDER WHICH VEHICLE MANUFACTURERS WARRANTED THEIR PRODUCTS TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP "UNDER NORMAL USE AND SERVICE" AND OBLIGATED THEMSELVES, SUBJECT TO CERTAIN CONDITIONS, TO MAKE GOOD ANY PART OR PARTS FAILING WITHIN 90 DAYS AFTER DELIVERY OR BEFORE THE VEHICLE HAD BEEN OPERATED 4,000 MILES, WHICHEVER EVENT SHOULD FIRST OCCUR. FEDERAL SPECIFICATION KKK-T-701A WAS APPROVED AND PROMULGATED BY THE FEDERAL SPECIFICATIONS BOARD ON SEPTEMBER 8, 1933, AND MADE MANDATORY FOR ALL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS NOT LATER THAN FEBRUARY 15, 1934. UNDER ITS " GENERAL" PROVISIONS, PARAGRAPH B-3 WAS AS FOLLOWS:

IN ADDITION TO STANDARD GUARANTY OF THE NATIONAL AUTOMOBILE CHAMBER OF COMMERCE, IN THE EVENT THE BIDDERS ARE MEMBERS OF THE NATIONAL AUTOMOBILE CHAMBER OF COMMERCE, OR SUBSCRIBERS TO THE STANDARD GUARANTY, THE RIGHT IS RESERVED TO REQUIRE BIDDERS TO FURNISH A STATEMENT IN WRITING BY THE MANUFACTURERS OF THE UNITS THAT THEY ARE SUITABLE FOR THE WORK TO BE PERFORMED. IF ANY OTHER GUARANTY IS DESIRED THE DEPARTMENT SHALL SO STATE IN LIEU OF THIS PARAGRAPH.

SO, A PURCHASING AGENCY OF THE GOVERNMENT WAS AUTHORIZED TO SUBSTITUTE "ANY OTHER GUARANTY" DESIRED IN LIEU OF THE STANDARD GUARANTY OF THE NATIONAL AUTOMOBILE CHAMBER OF COMMERCE AND THE OPTIONAL REQUIREMENT OF A STATEMENT OF SUITABILITY FROM THE MANUFACTURERS OF THE EQUIPMENT PURCHASED. PRESUMABLY, IT WAS UPON SUCH AUTHORIZATION THAT THE DEPARTMENT OF THE INTERIOR HAS REQUIRED, HERETOFORE, THE UNCONDITIONAL GUARANTY AND BOND HERE UNDER CONSIDERATION.

UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 6166, JUNE 10, 1933, AND REGULATIONS ISSUED PURSUANT THERETO BY THE SECRETARY OF THE TREASURY WITH THE APPROVAL OF THE PRESIDENT, THE FUNCTIONS THERETOFORE EXERCISED BY THE FEDERAL COORDINATING SERVICE, INCLUDING THOSE OF THE FEDERAL SPECIFICATIONS BOARD WHICH, EO NOMINE, CONTINUED TO FUNCTION AS A BRANCH OF THE PROCUREMENT DIVISION, WERE TRANSFERRED TO THE PROCUREMENT DIVISION, TREASURY DEPARTMENT. SEE " REGULATIONS GOVERNING THE OPERATION OF THE PROCUREMENT DIVISION, BRANCH OF SUPPLY," FEBRUARY 12, 1934. THE CITED REGULATIONS UNDER THE HEADING " FEDERAL SPECIFICATIONS BOARD" PROVIDED IN RELEVANT PART AS FOLLOWS:

4. THE SPECIFICATIONS THAT ARE APPROVED BY THE DIRECTOR OF PROCUREMENT WILL BE KNOWN AS " FEDERAL SPECIFICATIONS" AND AFTER PROMULGATION SHALL BE BINDING UPON AND GOVERN ALL EXECUTIVE DEPARTMENTS EXCEPT AS NOTED IN PARAGRAPH 5. * * *

5.IF ANY EXECUTIVE DEPARTMENT FINDS THAT FOR ADMINISTRATIVE REASONS A FEDERAL SPECIFICATION CANNOT BE USED TO MEET ITS PARTICULAR OR ESSENTIAL NEEDS, IT IS AUTHORIZED TO USE ITS OWN PURCHASE SPECIFICATION, BUT SUCH SPECIFICATION SHALL INCLUDE ALL APPLICABLE PROVISIONS OF THE FEDERAL SPECIFICATION, AND IN THOSE CASES WHERE THE PURCHASE EXCEEDS $1,000 A REPORT SHALL BE MADE TO THE PROCUREMENT DIVISION, BRANCH OF SUPPLY, SHOWING THE NECESSITY FOR DEVIATION FROM THE FEDERAL SPECIFICATION. PROCUREMENT DIVISION CIRCULAR LETTER NO. 319, AUGUST 6, 1938, MENTIONED BY YOUR PURCHASING OFFICER, MERELY RESTATED AND EMPHASIZED THE SUBSTANCE OF THOSE TWO PARAGRAPHS. FEDERAL SPECIFICATION KKK-T-716 WAS APPROVED BY THE DIRECTOR OF PROCUREMENT UNDER DATE OF OCTOBER 14, 1937, ISSUED AS OF THAT DATE AND MADE EFFECTIVE FOR THE USE OF ALL DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT NOT LATER THAN AUGUST 15, 1938. IT WAS EXPRESSLY DESIGNATED AS " SUPERSEDING PART OF FED. SPEC. KKK-T-701A SEPTEMBER 8, 1933.' WHILE THIS SPECIFICATION, INSOFAR AS PHYSICAL REQUIREMENTS, DIMENSIONS, EQUIPMENT, AND DETAIL SPECIFICATIONS ARE CONCERNED, HAS PARTICULAR REFERENCE TO VARIOUS TYPES OF VEHICLES IN THE 1,000-POUND PAY- LOAD CLASS SUCH AS MENTIONED IN PARAGRAPHS D-21 TO D-21H, INCLUSIVE, THEREOF, COMPARATIVE CONSIDERATION OF THIS LATER SPECIFICATION AS A WHOLE WITH 701A LEADS TO THE CONCLUSION THAT IT DOES NOT HAVE EXCLUSIVE REFERENCE TO TRUCKS IN THAT CLASS, AND DOES NOT SUPPORT THE VIEW EXPRESSED BY YOUR PURCHASING OFFICER THAT: " THERE IS NO DOUBT THAT THIS LAST FEDERAL SPECIFICATION DOES NOT SUPERSEDE ANY PART OF FEDERAL SPECIFICATION KKK-T-701A EXCEPT TRUCKS LIMITED TO A PAY LOAD OF 1,000 POUNDS.' BOTH THE EARLIER AND THE LATER SPECIFICATIONS COVER TRUCKS, MOTOR, GASOLINE, FOUR WHEELS, TWO REAR-WHEEL DRIVE. BOTH INCLUDE UNDER THE HEADING "B. GENERAL" CERTAIN GENERAL PROVISIONS AND CONDITIONS AUTHORIZED AND REQUIRED FOR INCLUSION IN SPECIFICATIONS COVERING PURCHASES OF SUCH TRUCKS. PARAGRAPH B-3 AS IT APPEARED IN 701A HAS BEEN QUOTED ABOVE. THAT PROVISION DOES NOT APPEAR IN 716 WHICH INCLUDES THE FOLLOWING:

B-2. BIDS WILL NOT BE CONSIDERED UNLESS THE ACTUAL TRUCK MANUFACTURERIS ENGAGED AT THE TIME IN THE PRODUCTION OF MOTOR TRUCKS, AND AS CONSIDERATION OF PERFORMANCE UNDER SERVICE CONDITIONS IS AN IMPORTANT FACTOR IN THE CASE OF TRUCKS OF THIS TYPE AND CLASS, IT IS REQUIRED THAT THE BIDDER SHALL FURNISH PROOF THAT THE MANUFACTURER OF THE TRUCK OFFERED UNDER HIS BID HAS BEEN CONTINUOUSLY ENGAGED IN THE PRODUCTION OF MOTOR TRUCKS FOR A PERIOD OF AT LEAST 2 YEARS PREVIOUS TO THE OPENING DATE OF THE INVITATION FOR BIDS OR HAS THE ABILITY AND FACILITIES TO PRODUCE TRUCKS OFFERED UNDER HIS BID, OR IF ANY OF THESE CONDITIONS DO NOT APPLY HE SHALL FURNISH A 100 PERCENT SERVICE BOND FOR A PERIOD OF 1 YEAR. IT IS REQUIRED THAT THE TRUCK, INCLUDING ALL UNITS AND COMPONENT PARTS THEREOF, BE OF THE LATEST DESIGN, CONFORMING TO THE MANUFACTURER'S LATEST CURRENT PRODUCTION MANUFACTURING PRACTICES AND THAT CURRENT PRODUCTION PRACTICE SHALL NOT BE DEVIATED FROM EXCEPT WHERE DEVIATION IS DEFINITELY REQUIRED TO COMPLY WITH THE REQUIREMENTS OF THIS SPECIFICATION. REJECTED PARTS OR UNITS WILL NOT BE PERMITTED IN THE ASSEMBLY OF THE TRUCKS.

B-3. THE FOLLOWING GUARANTEES ARE REQUIRED.

B-3A. IT IS GUARANTEED THAT THE TRUCK, COMPONENT UNITS AND PARTS WILL BE SUITABLE FOR THE WORK TO BE PERFORMED; WILL BE CONSTRUCTED TO DEFINITE STANDARD DIMENSIONS, WITH PROPER CLEARANCES AND FITS, THAT PREVIOUSLY PUBLISHED OR SET RATINGS WILL NOT ARBITRARILY BE RAISED WITHOUT PRIOR APPROVAL OF THE ACTUAL UNIT MANUFACTURER; AND FURTHER, THAT THE TRUCK OFFERED WILL COMPLY IN EVERY RESPECT WITH THE TERMS OF THIS SPECIFICATION. IN ADDITION TO HIS ANSWERS TO THE QUESTIONNAIRE, IN THE EVENT THAT THE TRUCK OFFERED DOES NOT FULLY COMPLY WITH THIS SPECIFICATION, THE BIDDER SHALL STATE DEFINITELY, REFERRING TO THE PROPER PARAGRAPH OF THE SPECIFICATIONS, WHEREIN THE TRUCK HE PROPOSES TO FURNISH DOES NOT COMPLY. THE QUESTIONNAIRE MUST BE COMPLETELY FILLED OUT BY THE BIDDER.

B-3B. THE SUCCESSFUL BIDDER SHALL GUARANTEE THE TRUCK AGAINST DEFECTIVE MATERIAL AND WORKMANSHIP: EXCESSIVE FRONT WHEEL SHIMMY AND TRAMP; EXCESSIVE SPRING SET; GEAR HOPPING AND OBJECTIONABLE GEAR NOISES; LEAKAGE OF LUBRICANTS; CRACKING AND SAGGING OF FRAME MEMBERS; LOOSENING AND BREAKING OF RIVETS; TEARING AND CRACKING OF SHEET METAL STOCK AND WELDS; AND CRACKING, SPLITTING, WARPING, AND DRY ROTTING OF WOOD STRUCTURE. THIS GUARANTEE SHALL BE EFFECTIVE FOR A PERIOD OF NINETY (90) DAYS, EXCLUSIVE OF TIME IN TRANSIT OF TRUCKS SHIPPED TO STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, OR FOR FOUR THOUSAND (4,000) MILES OF ROAD TRAVEL, WHICHEVER CONDITION SHALL FIRST OCCUR, EXCEPT THAT IN THE CASE OF DRY ROT, THE MILEAGE CONDITION SHALL NOT APPLY. HE SHALL FURTHER GUARANTEE THE TRUCK AGAINST FAULTY DESIGN DEVELOPING DURING A PERIOD OF ONE (1) YEAR OR EIGHT THOUSAND (8,000) MILES ROAD TRAVEL, WHICHEVER CONDITION SHALL FIRST OCCUR THAT RESULTS IN RECURRING MAINTENANCE AND PART OR UNIT REPLACEMENT BEING REQUIRED. IT IS READILY APPARENT THAT THE " GENERAL" PROVISIONS OF THE LATER SPECIFICATION AMPLIFY AND VERY MATERIALLY ADD TO THE SAFEGUARDS AND GUARANTIES TO BE EXACTED FROM A CONTRACTOR FOR THE PROTECTION OF THE GOVERNMENT AGAINST DEFECTIVE WORKMANSHIP AND FAULTY DESIGN RESULTING IN RECURRING MAINTENANCE AND PART OR UNIT REPLACEMENT. THE MORE REASONABLE CONCLUSION APPEARS TO BE THAT THE " GENERAL" PROVISIONS OF 716 ARE INTENDED, AS THEY ARE DESIGNED, FOR USE IN LIEU OF THE " GENERAL" PROVISIONS OF 701A IN THE PURCHASE OF ALL FOUR-WHEEL, TWO- REAR WHEEL/DRIVE TRUCKS OF WHATEVER CAPACITY, CLASS, WEIGHT, ETC., AND TO SUPERSEDE, INSOFAR AS THEY DIFFER FROM, THE GENERAL PROVISIONS OF THE EARLIER SPECIFICATION. TO ARGUE OTHERWISE WOULD LEAD TO THE ABSURD CONSEQUENCE THAT THE GOVERNMENT WOULD HAVE THE BENEFIT OF THE INCREASED SAFEGUARDS FOR ITS PROTECTION AFFORDED BY THE LATER SPECIFICATION ONLY WHEN PURCHASING TRUCKS OF 1,000-POUND PAY-LOAD CAPACITY, WHILE BEING DEPRIVED OF THEIR ADDED BENEFIT IN THE PURCHASE OF TRUCKS OF ALL OTHER CLASSES. SUCH A CONCLUSION WOULD REFLECT A SHORT-SIGHTED POLICY NOT LIGHTLY TO BE LAID TO THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT, WHICH BY LAW NOW IS ENTRUSTED WITH THE RESPONSIBILITY OF FORMULATING SPECIFICATIONS FOR GOVERNMENT REQUIREMENTS IN ALL DEPARTMENTS AND ESTABLISHMENTS AND IS PRESUMED TO EXERCISE ITS FUNCTIONS IN THE BEST INTERESTS OF THE UNITED STATES.

MOREOVER, THE DETAIL SPECIFICATIONS FOR TRUCKS OF THE 1,000-POUND PAY- LOAD CAPACITY AS SET FORTH IN 716 HARDLY CAN BE CONSIDERED AS "SUPERSEDING" 701A IN ANY MATERIAL RESPECT, FOR TRUCKS IN THAT CLASSIFICATION COULD BE AND NO DOUBT WERE PURCHASED UNDER THE EARLIER SPECIFICATION PRIOR TO THE ISSUANCE OF 716. THE LATER SPECIFICATION MERELY SET FORTH IN MORE DETAIL THE PHYSICAL DIMENSIONS, CHARACTERISTICS AND EQUIPMENT TO BE REQUIRED IN THE VARIOUS TYPES OF TRUCKS IN THE 1,000- POUND PAY-LOAD CLASS GENERALLY PURCHASED BY THE FEDERAL GOVERNMENT, THUS ELIMINATING THE NECESSITY FOR ADMINISTRATIVE DETERMINATION OF SUCH DETAILS FOR TRUCKS IN THAT PARTICULAR CLASS. IT WOULD APPEAR TO FOLLOW THAT 716 SUPERSEDED 701A SO FAR AS THE " GENERAL" PROVISIONS OF TRUCK SPECIFICATIONS ARE CONCERNED, AND THAT TRUCKS OF WHATEVER SIZE ACQUIRED AFTER THE PROMULGATION OF THE LATER SPECIFICATION, OTHER THAN TRUCKS SPECIFICALLY COVERED BY FEDERAL SPECIFICATION KKK-T-706, NOT HERE IN QUESTION, SHOULD HAVE BEEN AND SHOULD BE PURCHASED UNDER THE GENERAL PROVISION OF 716, WITH DETAIL SPECIFICATIONS OF PHYSICAL CHARACTERISTICS TO MEET THE PARTICULAR NEED FOR THE PURPOSE TO BE SERVED.

THE LATER SPECIFICATION SETS OUT IN SO MANY WORDS THE GUARANTY TO BE REQUIRED FROM A CONTRACTOR AND DOES NOT AUTHORIZE ADMINISTRATIVE ELIMINATION THEREOF OR THE SUBSTITUTION OF ANY ADDITIONAL OR OTHER FORM OF GUARANTY THEREFOR. HENCE, THE ONLY GUARANTY NOW AUTHORIZED FOR INCLUSION IN SPECIFICATIONS FOR SUCH TRUCK PURCHASES IS THAT APPEARING IN KKK-T-716, AND THE SUBJECT " SPECIAL BID CONDITIONS" ARE NO LONGER AUTHORIZED UNDER SUCH SPECIFICATIONS AND SHOULD BE ELIMINATED.

PROCUREMENT DIVISION, BRANCH OF SUPPLY, CIRCULAR LETTER NO. 319, AUGUST 16, 1938, REFERRED TO ABOVE, AS WELL AS THE ORIGINAL REGULATION OF THE PROCUREMENT DIVISION, PROVIDED THAT IF ANY GOVERNMENT AGENCY FINDS THAT FOR ADMINISTRATIVE REASONS A FEDERAL SPECIFICATION CANNOT BE USED TO MEET ITS PARTICULAR OR ESSENTIAL NEEDS, IT MAY USE ITS OWN PURCHASE SPECIFICATION, BUT SUCH SPECIFICATION SHALL INCLUDE ALL APPLICABLE PROVISIONS OF THE FEDERAL SPECIFICATION. THERE IS, OF COURSE, NO PERCEIVABLE REASON WHY THE GENERAL GUARANTY PROVISIONS OF FEDERAL SPECIFICATION KKK-T-716 CANNOT BE USED TO MEET EVERY PARTICULAR AND ESSENTIAL NEED OF THE NATIONAL PARK SERVICE IN THE PURCHASE OF TRUCKS, OR WHY THEY SHOULD NOT BE INCLUDED IN SPECIFICATIONS COVERING SUCH PURCHASES TO THE EXCLUSION OF ANY OTHER MORE DRASTIC AND EXACTING AND UNAUTHORIZED GUARANTY REQUIREMENT. THAT SUCH " SPECIAL BID CONDITIONS" SERVE TO LIMIT AND RESTRICT COMPETITION WOULD APPEAR TO BE DEFINITELY INDICATED IN THIS CASE BY THE FACT THAT WHILE ADVERTISING WAS HAD BY CIRCULAR LETTERS SENT TO 51 DEALERS, PRESUMABLY ALL QUALIFIED TO BID, AND BY NOTICES POSTED IN PUBLIC PLACES, ONLY THREE BIDS WERE RECEIVED, OF WHICH ONLY ONE--- THE HIGHEST--- MET THESE SPECIFICATIONS IN EVERY RESPECT. THAT SUCH " SPECIAL BID CONDITIONS" RESULT IN EXCESS COST TO THE GOVERNMENT IS CONCLUSIVELY ESTABLISHED BY THE FACT THAT THE LOW BID--- THAT OF A MANUFACTURER ,WHOSE TRUCKS WHEN PURCHASED GENERALLY HAVE BEEN SATISFACTORY, OR WHO HAS ALWAYS CORRECTED ANY DEFICIENCY THAT HAS DEVELOPED"--- WAS REJECTED SOLELY FOR THE REASON THAT THIS ADMITTEDLY OTHERWISE SATISFACTORY AND RELIABLE MANUFACTURER REFUSED TO SUBSCRIBE TO THE SPECIAL BID CONDITION, AND AWARD WAS MADE TO THE HIGHEST BIDDER AT AN EXCESS COST TO THE GOVERNMENT OF APPROXIMATELY 12 PERCENT, WITHOUT REFERENCE TO THE SATISFACTORY QUALITY OF THE EQUIPMENT OFFERED BY THE LOW BIDDER. MOREOVER, THE VERY MATERIAL DISCREPANCY OF THE PRICES OFFERED BY THE LOW BIDDER AND THE HIGHEST BIDDER SUGGESTS THE PROBABILITY THAT THE HIGHEST PRICE--- WHICH WAS ACCEPTED--- INCLUDED A SUBSTANTIAL AMOUNT, NOT ONLY TO COVER THE COST OF THE BOND REQUIRED, BUT TO SAVE THE CONTRACTOR WHOLE IN THE EVENT IT SHOULD BE CALLED UPON TO MAKE GOOD UNDER THE PROVISIONS OF THE ALL-INCLUSIVE GUARANTY. IT IS ESTABLISHED THAT CONTRACT STIPULATIONS TENDING TO RESTRICT COMPETITION AND TO INCREASE THE COST OF PERFORMANCE--- AND THEREBY THE CHARGE AGAINST APPROPRIATED MONEYS--- ARE UNAUTHORIZED UNLESS REASONABLY REQUISITE TO THE ACCOMPLISHMENT OF THE PURPOSE OF THE APPROPRIATION, OR UNLESS SUCH STIPULATIONS ARE EXPRESSLY AUTHORIZED BY STATUTE. 18 COMP. GEN. 285, 295; 20 ID. 18, 22.

THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT THAT THE PROVISION HERE IN QUESTION IS WITHIN THE RULE, FOR IT NOT ONLY IS RESTRICTIVE OF COMPETITION BUT IT ENHANCES THE PRICE EXACTED OF THE GOVERNMENT FOR TRUCKS PURCHASED SUBJECT THERETO, AND IT APPEARS TO BE NEITHER REASONABLY REQUISITE TO THE ACCOMPLISHMENT OF THE PURPOSE OF THE APPROPRIATION NOR TO BE AUTHORIZED BY STATUTE. FURTHERMORE, THE SERVICE AND PERFORMANCE AND MATERIAL AND WORKMANSHIP GUARANTIES REQUIRED UNDER THE GENERAL PROVISIONS OF FEDERAL SPECIFICATION KKK-T 716 WOULD APPEAR SUFFICIENT TO AFFORD THE GOVERNMENT ALL PROTECTION AGAINST FAILURE OF PERFORMANCE WHICH CAN WITH REASON BE REQUIRED OF AN ESTABLISHED AND REPUTABLE CONTRACTOR, AND THAT, SINCE THE PROMULGATION OF THAT SPECIFICATION, SUCH ALL-INCLUSIVE CONDITION IS NEITHER NECESSARY NOR AUTHORIZED. THUS THE LATER FEDERAL SPECIFICATION WOULD APPEAR TO RENDER THE ABOVE-CITED DECISION OF THE FORMER COMPTROLLER GENERAL NO LONGER FOR APPLICATION IN THE PURCHASE OF TRUCKS.

ACCORDINGLY, YOU ARE INFORMED THAT THE " SPECIAL BID CONDITIONS" IN QUESTION SHOULD BE OMITTED FROM FUTURE INVITATIONS FOR BIDS COVERING THE PURCHASE OF TRUCKS FOR YOUR DEPARTMENT, AND ANY PENDING INVITATIONS INCLUDING SUCH CONDITIONS SHOULD BE AMENDED TO ELIMINATE THEM. OTHERWISE, APPROPRIATED MONEYS WILL NOT BE AVAILABLE FOR PAYMENT UNDER ANY CONTRACT AWARDED ON OTHER THAN A LOW BID FOR THE SOLE REASON THAT AN OTHERWISE ACCEPTABLE LOW BIDDER TAKES EXCEPTION TO AND REFUSES TO BE BOUND BY SUCH " SPECIAL BID CONDITIONS," SO LONG AS SUCH BIDDER SUBSCRIBES TO THE GUARANTY REQUIREMENT OF KKK-T-716.