B-131418, APRIL 19, 1957, 36 COMP. GEN. 725

B-131418, APRIL 19, 1957, 36 COMP. GEN. 725

VEHICLES - PURCHASES - LIMITATIONS - EQUIPMENT AND ACCESSORIES - POLICE CARS THE EXTRA COST OF PASSENGER CAR EQUIPMENT TO BE USED IN POLICE WORK MUST BE CHARGED AGAINST THE STATUTORY MOTOR VEHICLE PURCHASE PRICE LIMITATION IN 5 U.S.C. 78 (C) (1) AND THE ACT OF JUNE 13, 1956, 5 U.S.C. 78A-1, BUT THE COST OF EQUIPMENT FOR RADIO NOISE SUPPRESSION, WHICH AFFECTS ONLY THE OPERATION OF THE POLICE RADIO, DOES NOT HAVE TO BE INCLUDED IN THE PURCHASE PRICE LIMITATION. THE INCLUSION OF A STATEMENT IN AN AUTOMOBILE PROCUREMENT BID THAT THE PROCUREMENT OF ACCESSORIES IS LEGAL AND THAT THE COST OF THE ACCESSORIES IS NOT TO BE INCLUDED IN THE STATUTORY MOTOR VEHICLE PURCHASE PRICE LIMITATION HAS THE SAME EFFECT AS IS IMPLICIT IN AN AWARD FOR VEHICLES AND ACCESSORIES AND, THEREFORE, SUCH A STATEMENT DOES NOT QUALIFY THE OFFER.

TO CLIFTON E. MACK, GENERAL SERVICES ADMINISTRATION, APRIL 19, 1957:

IN YOUR LETTER OF APRIL 9, 1957, REFERENCE FN-3, YOU AS AN OFFICER CHARGED WITH CONTRACTING FOR THE UNITED STATES, REQUEST OUR DECISION WHETHER THE COST OF AUTOMOTIVE EQUIPMENT INCLUDED IN AN INVITATION FOR BIDS FOR THE ACQUISITION OF MOTOR VEHICLES FOR LAW ENFORCEMENT AGENCIES MAY BE PURCHASED WITHOUT REGARD TO THE STATUTORY PURCHASE PRICE LIMITATION SET OUT IN 5 U.S.C. 78 (C) (1) AND PUBLIC LAW 578 APPROVED JUNE 13, 1956, 70 STAT. 279, 5 U.S.C. 78A-1; AND WHETHER CERTAIN LANGUAGE IN THE BID OF GENERAL MOTORS CORPORATION IN RESPONSE TO THE INVITATION REPRESENTS A QUALIFICATION OF ITS OFFER.

THE AFORESAID STATUTES PRECLUDE, DURING THE CURRENT FISCAL YEAR, UNLESS SPECIFICALLY PROVIDED OTHERWISE, THE EXPENDITURE OF APPROPRIATED MONEYS IN EXCESS OF $1,350 FOR THE PURCHASE OF ANY PASSENGER MOTOR VEHICLE COMPLETELY EQUIPPED FOR OPERATION, EXCEPT STATION WAGONS, FOR WHICH THE MAXIMUM IS $1,800, AND BUSES AND AMBULANCES.

THE AUTOMOTIVE EQUIPMENT INVOLVED IS STATED TO BE NEEDED URGENTLY TO ALLOW EFFECTIVE ENFORCEMENT OF THE POLICING ASPECT OF CERTAIN LAWS, TO ENABLE INTERCEPTION OF VEHICLES VIOLATING LAWS, TO PERMIT IMMEDIATE COMMUNICATION WITH HEADQUARTERS AND, IN THE CASE OF TIRES, TO CONTINUE PURSUIT WHERE REGULAR TIRES MIGHT FAIL BECAUSE OF HARD KNOCKS AND CUTS. YOU SAY THAT THE END USES OF THE HIGHER PRICED EQUIPMENT HAVE BEEN FULLY JUSTIFIED BY THE AGENCIES INVOLVED. ALSO, YOU SAY THAT IF THE END USE IS A PROPER STANDARD WHICH MAY BE ADOPTED IN APPLYING THE LIMITATION, TOGETHER WITH A FINDING THAT A DESIRED ITEM IS NOT BEING PROCURED PRIMARILY FOR THE PURPOSES OF COMFORT, CONVENIENCE AND EFFICIENT OPERATION OF THE VEHICLE AS AN ORDINARY PASSENGER CARRYING VEHICLE, YOUR AGENCY WILL UNDERTAKE TO BE FULLY RESPONSIBLE FOR REQUIRING A FULL JUSTIFICATION IN ANY SUCH CASE. THE INVITATION FOR THE PURCHASE OF AUTOMOBILES TO BE USED FOR LAW ENFORCEMENT PURPOSES INCLUDES EQUIPMENT AS FOLLOWS: (1) 8-CYLINDER ENGINES; (2) HEAVY-DUTY GENERATORS (40 AMPERES), HEAVY DUTY BATTERIES (70 AMPERE-HOURS), ALTERNATOR-RECITFIERS (50 AMPERES); (3) HEAVY-DUTY SPRINGS AND SHOCKS; (4) NYLON TIRES; (5) HEAVY-DUTY POLICE TYPE SEATS WITH VINYL OR EQUAL UPHOLSTERY; AND (6) RADIO NOISE SUPPRESSORS. YOU SAY THAT THE ABOVE ITEMS ARE NOT PURCHASED FOR REGULAR GOVERNMENT USE BUT ONLY WHEN THE AGENCIES JUSTIFY THEIR PROCUREMENT AS NECESSARY TO THE PERFORMANCE OF THEIR DUTY. YOU REQUEST OUR DECISION AS TO WHETHER THE EXTRA COST OF THIS SUPERIOR EQUIPMENT MAY BE PAID OVER AND ABOVE THE $1,350 LIMITATION.

PRICE LIMITATIONS AS TO AUTOMOBILES, SUCH AS ARE CONTAINED IN THE ACT OF JUNE 13, 1956, 70 STAT. 279, EXCEPT FOR VARIATIONS IN AMOUNTS HAVE BEEN ENACTED FOR A LONG PERIOD OF YEARS. THE WORDS ,COMPLETELY EQUIPPED FOR OPERATION" APPEARING IN SUCH STATUTES HAVE BEEN CONSIDERED ON NUMEROUS OCCASIONS. THE PRICE LIMITATION UNIFORMLY HAS BEEN HELD TO INCLUDE THE ORIGINAL COST OF THE CAR AS WELL AS ALL EQUIPMENT OR ACCESSORIES WHICH ARE PERMANENTLY ATTACHED TO AND BECOME A PART OF THE VEHICLE AND WHICH CONTRIBUTE TO THE COMFORT AND CONVENIENCE OF THE PASSENGERS AND THE EFFICIENT OPERATION OF THE VEHICLE AS A PASSENGER CARRYING VEHICLE. COMP. GEN. 988, 990; 24 ID. 94, 95; AND 28 ID. 720, 721.

ALL OF THE EQUIPMENT, EXCEPT THE EQUIPMENT FOR RADIO NOISE SUPPRESSION, APPEAR TO BE "SUCH AS ORDINARILY ARE PERMANENTLY ATTACHED TO, AND BECOME A PART OF THE VEHICLE.' WHILE THEY ONLY INCIDENTALLY MAY AFFECT THE COMFORT AND CONVENIENCE OF THE PASSENGERS, THEY ARE MOST CERTAINLY ESSENTIAL TO "THE EFFICIENT OPERATION OF THE VEHICLE.'

WE HAVE HELD THAT RADIOS USED IN POLICE WORK ARE NOT TO BE INCLUDED WITHIN THE STATUTORY LIMITATION. 18 COMP. GEN. 120. YOU REPORT THAT RADIO NOISE SUPPRESSION EQUIPMENT IS REQUIRED IN SOME BROADCAST AND RECEIVING RADIOS TO ELIMINATE ELECTRICAL INTERFERENCE. INASMUCH AS THIS AFFECTS ONLY THE OPERATION OF THE RADIO AND IS NOT RELATED TO THE COMFORT AND CONVENIENCE OF THE PASSENGERS AND THE EFFICIENCY OF THE VEHICLE'S OPERATION, THIS ITEM CAN BE TREATED AS OUTSIDE THE PURCHASE LIMITATION BUT WE SEE NO ALTERNATIVE TO THE CONCLUSION THAT THE EXTRA COST OF THE OTHER EQUIPMENT MUST BE CHARGED AGAINST THE LIMITATION.

THE SECOND MATTER OF CONCERN ARISES FROM THE FOLLOWING LANGUAGE WHICH APPEARS IN THE BID OF GENERAL MOTORS CORPORATION:

WE ARE BIDDING ON OPTIONAL ITEMS OF EQUIPMENT AS CALLED FOR IN THE INVITATION WITH THE UNDERSTANDING THAT IF PURCHASED AND ADDED TO THE BASIC VEHICLE PRICE QUOTED THAT PL578, (SIC) TITLE II, SECTION 201, WILL NOT BE APPLICABLE TO THIS PROCUREMENT AND THAT THE CONTRACT EVIDENCING SUCH PROCUREMENT WILL CONTAIN SUCH A STATEMENT.

IT IS QUESTIONED WHETHER THE LANGUAGE JUST QUOTED REPRESENTS A QUALIFIED OFFER. IN THAT REGARD, YOUR LETTER EXPRESSES THE BELIEF THAT GENERAL MOTORS CORPORATION ONLY INTENDED TO IMPLY THAT THE CONTRACT WAS TO STIPULATE THAT PROCUREMENT OF THE ACCESSORIES WAS LEGAL AND THAT THE PRICES FOR THEM WOULD NOT BE INCLUDED IN COMPUTING THE MAXIMUM PURCHASE PRICE LIMITATION. YOUR LETTER FURTHER STATES THAT SUCH A RESULT IS IMPLICIT IN ANY GSA VEHICLE AWARD WHERE EXTRA EQUIPMENT IS INCLUDED.

IN THE CIRCUMSTANCES, WE AGREE THAT THERE IS NO QUALIFICATION OF THE OFFER IN QUESTION.

THE GENERAL MOTORS CORPORATION BID, ENCLOSED WITH YOUR LETTER, IS RETURNED HEREWITH.