A-11259, MARCH 9, 1926, 5 COMP. GEN. 712

A-11259, MARCH 9, 1926, 5 COMP. GEN. 712

ADVERTISING, ACCEPTANCE OF OTHER THAN LOWEST BID - DETAIL SPECIFICATIONS THE ATTACHING TO AND MAKING A PART OF THE ADVERTISEMENT FOR BIDS, THE SPECIFICATIONS OF A PARTICULAR MAKE OF TRUCK LIMITS COMPETITION AND IS NOT A COMPLIANCE WITH SECTION 3709, REVISED STATUTES. IN ADVERTISING FOR TRUCKS TO BE FURNISHED THE GOVERNMENT THE SPECIFICATIONS SHOULD STIPULATE ONLY THE ESSENTIAL FEATURES NECESSARY TO MEET THE REQUIREMENTS SO THAT THERE MAY BE OPPORTUNITY FOR COMPETITION. THE SPECIFYING OF MINOR DETAILS HAS NOTHING TO DO WITH THE NEED FOR A TRUCK AND ONLY RESULTS IN LIMITING COMPETITION.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, THE PANAMA CANAL, MARCH 9, 1926:

I HAVE A LETTER DATED FEBRUARY 27, 1926, FROM THE GENERAL PURCHASING AGENT, PANAMA CANAL, PRESUMABLY AT YOUR DIRECTION, WITH FURTHER REFERENCE TO THE PROTEST MADE BY THE AUTOCAR SALES AND SERVICE CO., WASHINGTON, D.C., THAT THE PANAMA CANAL IN PURCHASING MOTOR TRUCKS DRAW THEIR SPECIFICATIONS SO AS TO PREVENT COMPETITION. YOU STATE IN PART THAT:

REFERRING TO THE SECOND PARAGRAPH OF THE AUTOCAR SALES AND SERVICE COMPANY'S LETTER TO YOU OF OCTOBER 30, 1925, CRITICIZING THE GENERAL PRACTICE OF THE PANAMA CANAL IN PURCHASING MOTOR TRUCKS, AND CALLING ATTENTION ESPECIALLY TO CIRCULAR INVITATION NO. 1705, DATED OCTOBER 23, 1925, AS A REPRESENTATIVE INSTANCE OF SPECIFICATIONS THAT ELIMINATE COMPETITION IN MAKING SUCH PURCHASES, THE FACTS OF THE INSTANT CASE ARE AS FOLLOWS:

IN CONNECTION WITH THE PURCHASE OF MOTOR TRUCKS UNDER W-130280, HEREINBEFORE REFERRED TO, THE PANAMA CANAL HAD MADE AN INVESTIGATION AND STUDY OF ITS MOTOR TRUCK SERVICE WITH A VIEW TO IMPROVEMENT IN ITS EFFICIENCY AND ECONOMY OF MAINTENANCE AND OPERATION. IN CANVASSING BIDS RECEIVED UNDER THAT ORDER THE SPECIFICATIONS OF THE FEDERAL MOTOR TRUCK COMPANY WERE CONSIDERED AS BEING WELL ADAPTED TO THE PANAMA CANAL SERVICE AND THE PRICE OFFERED WAS RELATIVELY LOW. IT WAS THOUGHT THAT IT MIGHT BE DESIRABLE TO MAKE A TRIAL AND COMPARISON BETWEEN THESE TRUCKS AND THE ,DODGE" TRUCKS THEN IN GENERAL USE AT THE ISTHMUS. ACCORDINGLY, BIDS WERE INVITED BY CIRCULAR 1705 FOR THREE TRUCK CHASSES UPON THE SPECIFICATIONS OF THE FEDERAL MOTOR TRUCK COMPANY, INCLUDING THE SLEEVE VALVE IN ENGINE, WHICH IS A DISTINCTIVE FEATURE OF THAT TRUCK.

THIS CIRCULAR ALSO CONTAINED THE STANDARD PROVISION HEREINBEFORE QUOTED ON PAGE 2 OF THIS LETTER, AND BIDS WERE IN FACT RECEIVED FROM THREE COMPANIES OTHER THAN THE FEDERAL MOTOR TRUCK COMPANY TO WHOM AWARD WAS MADE. THE SPECIFICATIONS OF THE LOWER-PRICED TRUCKS OFFERED VARIED FROM THE SPECIFICATIONS IN ESSENTIAL POINTS, AND, THEREFORE, WERE NOT SATISFACTORY FOR THE SERVICE REQUIRED.

THE DISINTERESTED EFFORT OF THE AUTOCAR SALES AND SERVICE COMPANY TO IMPROVE GOVERNMENT PROCEDURE FOR PURCHASING MOTOR TRUCKS IS DULY APPRECIATED, BUT THIS OFFICE IS UNABLE TO SEE WHEREIN THE PRESENT PROCEDURE OF THE PANAMA CANAL FOR SUCH PURCHASES IS UNSOUND IN BUSINESS PRINCIPLE OR IN ANY WAY PREJUDICIAL TO THE BEST INTERESTS OF THE GOVERNMENT.

IT HAS BEEN HELD IN NUMEROUS DECISIONS BY THIS OFFICE AND THE COURTS THAT THE PROVISIONS OF SECTION 3709, REVISED STATUTES, ARE DESIGNED TO GIVE ALL MANUFACTURERS, ETC., EQUAL RIGHT TO COMPETE FOR GOVERNMENT BUSINESS; SECURE TO THE GOVERNMENT THE BENEFITS WHICH FLOW FROM COMPETITION; TO PREVENT UNJUST FAVORITISM BY AN OFFICER OF THE GOVERNMENT IN MAKING PURCHASES ON PUBLIC ACCOUNT, AND TO RAISE A BARAGAIN ST COLLUSION AND FRAUD IN PROCURING SUPPLIES AND LETTING CONTRACTS. THE PROVISIONS OF THE STATUTE ARE MANDATORY AND ITS REQUIREMENTS ARE TO BE STRICTLY ENFORCED AND NO PROCEDURE AMOUNTING TO NONCOMPLIANCE WITH ITS TERMS IS AUTHORIZED.

IT IS TO BE NOTED THAT YOU STATE THAT THE SPECIFICATIONS ACCOMPANYING CIRCULAR INVITATION NO. 1705, DATED OCTOBER 23, 1925, ARE THE SPECIFICATIONS OF THE FEDERAL MOTOR TRUCK CO. IT HAS BEEN CONSISTENTLY HELD THAT THE NAMING OF A PARTICULAR MAKE OF TRUCK, ETC., IN THE ADVERTISEMENT FOR PROPOSALS TO THE EXCLUSION OF OTHERS OF EQUAL QUALITY IS NOT A COMPLIANCE WITH SECTION 3709, REVISED STATUTES, 1 COMP. GEN. 59, ID. 134, ID, 698; 11 COMP. DEC. 36; 27 ID. 896. THE SAME RULE WOULD APPLY IN THE MATTER HERE PRESENTED FOR THE REASON THAT THE ATTACHING TO AND MAKING A PART OF THE ADVERTISEMENT FOR BIDS THE SPECIFICATIONS OFA PARTICULAR MAKE OF TRUCK PRACTICALLY EXCLUDES OTHER MAKES AND PREVENTS COMPETITION. SPECIFYING MINOR DETAILS HAS NOTHING TO DO WITH THE NEED FOR A TRUCK AND APPARENTLY THE ONLY PURPOSE RESULTING THEREBY IS TO LIMIT COMPETITION. SUCH A PROCEDURE IS PERMITTED, IT WOULD PRACTICALLY NULLIFY THE LAW REQUIRING ADVERTISING AS A CONDITION PRECEDENT. NOT ONLY IS SUCH A PROCEDURE UNAUTHORIZED AS BEING IN DIRECT CONFLICT WITH SECTION 3719, REVISED STATUTES, BUT IT LEADS TO DISSATISFACTION AMONG BIDDERS AND SHOULD BE DISCONTINUED.

I WOULD THEREFORE SUGGEST THAT THE METHODS OF PURCHASE BY THE PANAMA CANAL MUST BE CORRECTED SO THAT BIDS BE NOT ASKED UNDER SPECIFICATIONS SO WORDED AS TO LIMIT TO A PARTICULAR MAKE AS IN THE INSTANT MATTER.