A-78315, AUGUST 21, 1936, 16 COMP. GEN. 168

A-78315, AUGUST 21, 1936, 16 COMP. GEN. 168

CONTRACTS - SPECIFICATIONS - AUTOMOBILE THE FACT THAT A GOVERNMENT AUTOMOBILE IS NOT USABLE IN ITS PRESENT CONDITION WOULD NOT JUSTIFY TRADING IT IN ON THE PURCHASE OF A NEW AUTOMOBILE WITHOUT ALSO OFFERING IT FOR SALE INDEPENDENTLY OF TRADE-IN IN CONNECTION WITH THE NEW CAR. REQUIRED, WHERE THE NECESSITY FOR A PARTICULAR GRADE OF AUTOMOBILE IS ESTABLISHED, THAT THE SPECIFICATIONS BE SUCH AS TO INVITE COMPETITION BETWEEN ALL DEALERS OF WHATEVER MAKE IN THAT OR A SUPERIOR GRADE. WHEN THE CONGRESS SPECIFICALLY AUTHORIZES THE PURCHASE OF AN AUTOMOBILE AT NOT TO EXCEED A FIXED PRICE, THERE IS NO AUTHORITY FOR SPECIFICATIONS DRAWN ON THE BASIS OF PRICE LIMITATION ALONE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 21, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 5, 1936, WITH ENCLOSURE, AS FOLLOWS:

IN YOUR LETTER OF JULY 18TH, IN REPLY TO MINE OF JULY 11, 1936, REQUESTING INFORMATION AS TO WHETHER AN ORDER MIGHT BE PLACED FOR THE PURCHASE OF AN AUTOMOBILE FOR THE DIRECTOR, EMERGENCY CONSERVATION WORK, USED LASALLE SEDAN OFFERED FOR TRADE-IN ON THE PURCHASE OF A NEW CAR WAS ACQUIRED.' THE DIRECTOR, EMERGENCY CONSERVATION WORK, INFORMS ME THAT UNITED STATES SHIPPING BOARD, MERCHANT FLEET CORPORATION, BY AUTHORITY OF THE CHIEF COORDINATOR (COPY OF AUTHORITY HEREWITH).

YOU ALSO STATE THAT "SINCE IT APPEARS THAT THE SPECIFICATIONS UNDER ADVISED THAT UPON THE FACTS NOW PRESENTED, APPROPRIATED MONIES WILL NOT BE UNDER THE INVITATION.'

IT SHOULD BE STATED THAT IT HAS BEEN THE POLICY OF THIS DEPARTMENT IN PLACING PURCHASE ORDERS OR ISSUING SPECIFICATIONS TO COMPLY WITH ALL PROCEDURE, TO REFER THE CASE TO YOUR OFFICE FOR A DECISION. IN THE PRESENT CASE, WHILE IT WAS THOUGHT ALL PROVISIONS OF LAW HAD BEEN COMPLIED

PRICES WERE NOT SOLICITED FOR DELIVERY "F.O.B. WASHINGTON," AS IT WOULD HAVE BEEN MORE ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT TO HAVE ACCEPTED DELIVERY OF THE CAR AT ,MANUFACTURER'S PLANT" BY A REPRESENTATIVE OF THE DIRECTOR AND THEN DRIVEN TO SUCH PROJECT UNDER CONSTRUCTION AS MIGHT BE DESIGNATED.

WHILE THE SPECIFICATIONS CALLED FOR A CAR WITH A PASSENGER LOADING CAPACITY OF APPROXIMATELY 1,500 POUNDS; AN APPROXIMATE DRY VEHICLE WEIGHT OF 4,000 POUNDS AND A WHEEL BASE OF APPROXIMATELY 136 INCHES, THEY COVERED, IN THE OPINION OF THE DEPARTMENT, SUCH CARS AS THE "BUICK" AND ,CHRYSLER" AND IT WAS THOUGHT OTHER MAKES. IT WAS FULLY EXPECTED AS THE SPECIFICATIONS WERE NOT CONSIDERED RESTRICTIVE AND AFFORDED AN OPPORTUNITY FOR MORE THAN ONE MANUFACTURER TO SUBMIT PROPOSALS, THAT CERTAINLY MORE THAN ONE BID WOULD BE RECEIVED. IN FACT, IT WAS UNDERSTOOD THAT THE "CHRYSLER" WOULD SUBMIT A BID.

AN EIGHT CYLINDER CAR WITH THE APPROXIMATE WEIGHT AND WHEEL BASE AWARE THAT ANY SIX CYLINDER CAR WAS MADE WITH THE WEIGHT, WHEEL BASE, AND PASSENGER CARRYING CAPACITY THAT WOULD MEET THE REQUIREMENTS OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK. THE TYPE OF CAR REQUIRED NOT ONLY MUST BE OF STURDY CONSTRUCTION WITH ADEQUATE AND FLEXIBLE POWER CAPABLE OF CONTINUOUS AND LONG DISTANCE TRAVEL BETWEEN PROJECTS, OVER ROUTES WHICH WILL INCLUDE ALL KINDS AND CONDITIONS OF ROADWAYS, BUT SHOULD ALSO BE OF THE SEVEN-PASSENGER TYPE WITH SUFFICIENT PASSENGER SPACE TO CARRY SIX PASSENGERS AND CHAUFFEUR, UNDER THE CONDITIONS MENTIONED. IF A CAR OF THIS TYPE IS NOT USED, AN ADDITIONAL CAR WILL BE NECESSARY TO CARRY THE PERSONNEL THAT MUST ACCOMPANY THE DIRECTOR ON OFFICIAL TRIPS TO THE VARIOUS PROJECTS UNDER HIS SUPERVISION.

THE BIDS, AS STATED, WERE FORWARDED SEVEN DEALERS AND POSTED IN PUBLIC PLACES, AFFORDING, IT WAS THOUGHT, AMPLE OPPORTUNITY FOR THOSE INTERESTED TO SUBMIT BIDS. OUTRIGHT AND THE LOW ALLOWANCE PRICE RECEIVED FOR THE LASALLE CAR, IS APPARENTLY DUE TO THE FACT THAT THE CAR IN ITS PRESENT CONDITION IS NOT USABLE. AN ESTIMATE OF $337.35 HAS BEEN RECEIVED FROM A RELIABLE DEALER AS THE LOWEST AMOUNT THAT WOULD PUT THE CAR IN SERVICEABLE CONDITION AND DUE TO THE ESTIMATE, THE ALLOWANCE OF $35.00 WAS ACCEPTED. UPON RECEIPT OF YOUR DECISION THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT WAS REQUESTED TO SUBMIT AN ESTIMATE FOR PLACING THE CAR IN CONDITION. IN REPLY, THEY SUBMITTED AN ESTIMATE OF $325.00. IN THIS CONNECTION I MIGHT STATE THAT THE DEALER AND ALSO THE PROCUREMENT DIVISION ADVISED AGAINST EXPENDING THAT AMOUNT ON THE CAR, RECOMMENDING THAT IT BE TURNED IN AS PART PAYMENT ON THE PURCHASE OF A NEW CAR EVEN THOUGH THE ALLOWANCE WAS SMALL.

IN VIEW OF THE CONDITIONS STATED, I SHALL APPRECIATE IT IF YOU WILL GIVE RECONSIDERATION TO MY LETTER OF JULY 11, AND AUTHORIZE THE PLACING OF A PURCHASE ORDER UNDER THE PROPOSAL OF THE GENERAL MOTORS CORPORATION AT THE PRICE SUBMITTED, $1,496.75.

YOUR EXPLANATION AS TO THE ACQUISITION OF THE USED LASALLE SEDAN IS, CARRY SIX PASSENGERS AND CHAUFFEUR, UNDER THE CONDITIONS MENTIONED. IF A CAR OF THIS TYPE IS NOT USED, AN ADDITIONAL CAR WILL BE NECESSARY TO CARRY THE PERSONNEL THAT MUST ACCOMPANY THE DIRECTOR ON OFFICIAL TRIPS TO THE VARIOUS PROJECTS UNDER HIS SUPERVISION.

THE BIDS, AS STATED, WERE FORWARDED SEVEN DEALERS AND POSTED IN PUBLIC PLACES, AFFORDING, IT WAS THOUGHT, AMPLE OPPORTUNITY FOR THOSE INTERESTED TO SUBMIT BIDS. OUTRIGHT AND THE LOW ALLOWANCE PRICE RECEIVED FOR THE LASALLE CAR, IS APPARENTLY DUE TO THE FACT THAT THE CAR IN ITS PRESENT CONDITION IS NOT USABLE. AN ESTIMATE OF $337.35 HAS BEEN RECEIVED FROM A RELIABLE DEALER AS THE LOWEST AMOUNT THAT WOULD PUT THE CAR IN SERVICEABLE CONDITION AND DUE TO THE ESTIMATE, THE ALLOWANCE OF $35.00 WAS ACCEPTED. UPON RECEIPT OF YOUR DECISION THE PROCUREMENT DIVISION OF THE TREASURY DEPARTMENT WAS REQUESTED TO SUBMIT AN ESTIMATE FOR PLACING THE CAR IN CONDITION. IN REPLY, THEY SUBMITTED AN ESTIMATE OF $325.00. IN THIS CONNECTION I MIGHT STATE THAT THE DEALER AND ALSO THE PROCUREMENT DIVISION ADVISED AGAINST EXPENDING THAT AMOUNT ON THE CAR, RECOMMENDING THAT IT BE TURNED IN AS PART PAYMENT ON THE PURCHASE OF A NEW CAR EVEN THOUGH THE ALLOWANCE WAS SMALL.

IN VIEW OF THE CONDITIONS STATED, I SHALL APPRECIATE IT IF YOU WILL GIVE RECONSIDERATION TO MY LETTER OF JULY 11, AND AUTHORIZE THE PLACING OF A PURCHASE ORDER UNDER THE PROPOSAL OF THE GENERAL MOTORS CORPORATION AT THE PRICE SUBMITTED, $1,496.75.

YOUR EXPLANATION AS TO THE ACQUISITION OF THE USED LASALLE SEDAN IS, USABLE IN ITS PRESENT CONDITION, AND IS IN NEED OF EXTENSIVE REPAIR, WOULD NOT JUSTIFY TRADING IT IN ON THE PURCHASE OF A NEW AUTOMOBILE WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES. ASIDE FROM OTHERS WHO MAY BE INTERESTED, THERE ARE MANY DEALERS WHO MAKE A BUSINESS OF PURCHASING, RECONDITIONING, AND SELLING USED AUTOMOBILES, AND IT MAY BE THAT SUCH DEALERS WOULD BE READY TO PAY A BETTER PRICE FOR THE VEHICLE THAN OFFERED AS A TRADE-IN ALLOWANCE, AND IT WOULD BE PROPER TO ADVERTISE THE LASALLE SEDAN FOR SALE INDEPENDENTLY OF THE PURCHASE OF A NEW AUTOMOBILE.

NO QUESTION WAS RAISED IN MY FORMER DECISION AS TO THE REQUIREMENT FOR A SEVEN PASSENGER AUTOMOBILE, AND IF, IN FACT, SUCH CAPACITY IS NECESSARY TO ACCOMMODATE THE PERSONNEL THAT MUST ACCOMPANY THE DIRECTOR OF CONSERVATION WORK ON OFFICIAL TRIPS TO THE VARIOUS PROJECTS UNDER HIS SUPERVISION, AS STATED BY YOU, THE REQUIREMENT WOULD BE JUSTIFIED. IT HAS NOT BEEN SHOWN AND CANNOT BE PRESUMED THAT THERE ARE NO SEVEN-PASSENGER, SIX-CYLINDER AUTOMOBILES ON THE MARKET WITHIN THE PRICE LIMIT SET BY THE CONGRESS IN THIS INSTANCE, SUFFICIENTLY STURDY IN CONSTRUCTION AND FLEXIBLE IN POWER TO MEET EVERY SERVICE REQUIREMENT TO WHICH THE VEHICLE TO BE PURCHASED WOULD BE SUBJECTED. HENCE, THERE WOULD APPEAR NO AUTHORITY FOR THE REQUIREMENT OF AN EIGHT CYLINDER CAR, WHICH REQUIREMENT MIGHT LIMIT COMPETITION AND RESULT IN PLACING AN UNJUSTIFIABLE BURDEN UPON PUBLIC MONEYS.

THIS OFFICE HAS NOT BEEN FURNISHED WITH A LIST OF THE SEVEN DEALERS TO WHOM INVITATIONS FOR BIDS WERE SENT, OR THE MAKES OF AUTOMOBILES UPON WHICH BIDS WERE EXPECTED FROM THOSE DEALERS. IT MAY BE STATED THAT SPECIFICATIONS MAY NOT BE DRAWN, AS HAS BEEN DONE IN SOME INSTANCES, TO EXCLUDE FROM COMPETITION ALL EXCEPT A PREFERRED MAKE OF AUTOMOBILE IN A RECOGNIZED COMPETITIVE CLASS, AND WHEN THIS IS DONE, THE FACT THAT AUTOMOBILES NOT ORDINARILY COMPETITIVE IN SUCH A CLASS DOES NOT MEET THE REQUIREMENT THAT THERE SHALL BE OPPORTUNITY FOR FREE AND UNRESTRICTED COMPETITION. A-70183, FEBRUARY 18, 1936. THE RECORD BEFORE THIS OFFICE DOES NOT SHOW WHETHER OR NOT THIS WAS DONE IN THE INSTANT MATTER.

THERE IS NOTED YOUR STATEMENT THAT, IN THE OPINION OF THE DEPARTMENT, THE SPECIFICATIONS AS DRAWN COVERED THE BUICK AND THE CHRYSLER AND "IT WAS THOUGHT" OTHER MAKES; THAT IT WAS EXPECTED MORE THAN ONE BID WOULD BE RECEIVED, AND WAS UNDERSTOOD THAT THE CHRYSLER WOULD SUBMIT A BID. THE MERE FACT THAT TWO OR MORE MANUFACTURERS COULD MEET THE SPECIFICATIONS RULE WAS STATED IN 5 COMP. GEN. 776, THAT WHERE PURCHASE WAS TO BE MADE IN A PARTICULAR GRADE OF AUTOMOBILE, THE PROPOSAL FOR BIDS MUST BE SUCH AS TO INVITE COMPETITION BETWEEN ALL DEALERS OF WHATEVER MAKE IN THAT OR SUPERIOR GRADES OF EQUIPMENT, AND THE BID MOST ADVANTAGEOUS TO THE GOVERNMENT MUST BE ACCEPTED. SUBSEQUENT DECISIONS HAVE NOT DEPARTED FROM THAT RULE. THE RULE WAS BROADLY RESTATED IN 15 COMP. GEN. 1085-7, THAT NO ARBITRARY SPECIFICATIONS AS TO WEIGHT, WHEEL BASE, OR OTHER REQUIREMENTS MAY BE ADOPTED FOR THE PURPOSE OF EXCLUDING A PARTICULAR MAKE OF CAR OR CARS IN THE SAME RECOGNIZED GROUP FROM COMPETITION, AND THAT WHEN SUCH ARBITRARY AND RESTRICTIVE SPECIFICATIONS ARE USED APPROPRIATED MONEYS ARE NOT LEGALLY CHARGEABLE, AND THERE WERE CITED PREVIOUS DECISIONS TO THE SAME EFFECT. IN THE PRESENT INSTANCE THE ALLOWANCE ON ANY USED VEHICLE. IT MUST BE HELD, THEREFORE, THAT IN CONFORMITY WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, THE SPECIFICATIONS MUST BE DRAWN TO ADMIT TO COMPETITION ALL MAKES OF AUTOMOBILES REASONABLY WITHIN THE RECOGNIZED PRICE CLASS OF $1,500. AND WHILE, WHEN THE CONGRESS SPECIFICALLY AUTHORIZES THE PURCHASE OF AN A FIXED PRICE, THERE MIGHT BE JUSTIFIED THE PURCHASE OF ANY AUTOMOBILE THAT COULD BE OBTAINED WITHIN SUCH PRICE WHICH COULD BE SHOWN TO BE MOST THE DEGREE OF SUITABLENESS FOR THE PARTICULAR USE, RATHER THAN THE PRICE (WITHIN THE FIXED MAXIMUM) TO BE THE DETERMINING FACTOR IN MAKING THE AWARD--- THERE WOULD APPEAR TO BE NO AUTHORITY OR JUSTIFICATION IN THE FACTORY, AND $2,198 F.O.B. WASHINGTON, D.C.'--- OVER $300 IN EXCESS OF

THE CONCLUSION STATED IN THE CONCLUDING PARAGRAPH OF MY DECISION OF JULY 18, 1936, MUST BE AND IS AFFIRMED.