A-70183, JUNE 15, 1936, 15 COMP. GEN. 1085

A-70183, JUNE 15, 1936, 15 COMP. GEN. 1085

CONTRACTS - SPECIFICATIONS - AUTOMOBILES - USE OF APPROXIMATE WEIGHTS AND WHEEL BASES AND PURCHASE OF OTHER THAN LIGHT-WEIGHT CARS THE PRICE LIMITATION OF $750 FIXED BY STATUTE FOR PASSENGER-CARRYING VEHICLES IS A MAXIMUM AND NOT A MINIMUM LIMITATION AND IS NO JUSTIFICATION FOR THE PURCHASE OF AN AUTOMOBILE IN THE HEAVY-WEIGHT CLASS AT A HIGHER PRICE MERELY BECAUSE WITHIN SAID LIMITATION WHEN A CAR IN THE MEDIUM CLASS AT A LOWER PRICE WILL MEET THE ACTUAL NEEDS OF THE GOVERNMENT AS SET FORTH IN THE SERVICE REQUIREMENTS OF THE SPECIFICATIONS. APPROXIMATE WEIGHTS AND WHEEL BASES MAY BE SUGGESTED IN ADVERTISED SPECIFICATIONS AS INDICATING THE REQUIREMENT OF A STURDIER AUTOMOBILE THAN THOSE IN THE LIGHT-WEIGHT CLASS WHERE THE SERVICE REQUIREMENTS ARE SUCH AS TO JUSTIFY ELIMINATION OF SUCH CARS, BUT WEIGHT AND WHEEL BASE REQUIREMENTS MAY NOT BE ARBITRARILY SET SO AS TO EXCLUDE AUTOMOBILES IN A RECOGNIZED COMPETITIVE GROUP, AND A REASONABLE DEFICIENCY IN EITHER RESPECT MAY NOT BE MADE THE BASIS FOR REJECTION OF AN OTHERWISE ACCEPTABLE LOW BID.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 15, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 20, 1936, WITH ENCLOSURES AS FOLLOWS:

ENCLOSED ARE ALL BIDS AND AN ABSTRACT THEREOF RECEIVED UNDER INVITATION U.S.D.I. NO. 1291 FOR THE DELIVERY OF TWO 4-DOOR 5 PASSENGER SEDAN AUTOMOBILES FOR THE NATIONAL PARK SERVICE AT WASHINGTON, D.C. THIS IS A READVERTISEMENT OF U.S.D.I. NO. 1168 SUBMITTED TO YOU ON JANUARY 16, 1936, AND RETURNED FEBRUARY 18, 1936, WITH YOUR DECISION A-70183.

IN COMPLIANCE WITH THE INSTRUCTIONS CONTAINED IN YOUR DECISION A 70183, WHEEL BASE AND WEIGHT REQUIREMENTS WERE ELIMINATED IN U.S.D.I. NO. 1291, AND FROM THE ABSTRACT ENCLOSED IT WILL BE NOTED (1) THAT BIDS WERE RECEIVED ON CARS RANGING FROM A CHEVROLET STANDARD SEDAN WEIGHING 2,791 POUNDS, WITH A WHEEL BASE OF 109 INCHES, TO AN OLDSMOBILE 8 WEIGHING 3,495 POUNDS, WITH A WHEEL BASE OF 121 INCHES; (2) THAT THE FARGO MOTOR CORPORATION STATED IN ITS BID: "THE LACK OF SPECIFICATIONS MAKES IT DIFFICULT TO DETERMINE WHAT CLASS OF VEHICLE IS INTENDED TO BE RCHASED," AS A RESULT OF WHICH THAT COMPANY OFFERED THREE DIFFERENT MAKES AND SIZES OF UTOMOBILES; AND (3) THAT THE GENERAL MOTOR CORPORATION SUBMITTED FOUR SEPARATE BIDS OFFERING FOUR DIFFERENT MAKES OF AUTOMOBILES WITH TWO DIFFERENT SIZES IN THREE OF THESE MAKES. FROM THE ABOVE FACTS IT IS EVIDENT THAT BIDDERS COULD NOT DETERMINE WHAT CLASS OF VEHICLE IT WAS THE INTENT TO PURCHASE.

THE STATEMENT OF "SERVICE REQUIREMENTS" IN ADVERTISEMENT U.S.D.I. NO. 1291 IS IDENTICAL WITH THAT SET FORTH IN ADVERTISEMENT U.S.D.I. NO. 1168, EXCEPT FOR CHANGES FROM SINGULAR TO PLURAL NECESSITATED BY THE ADDITION OF ONE CAR IN THE READVERTISEMENT. IN YOUR DECISION A 70183, WITH REFERENCE TO THE STATEMENT OF "SERVICE REQUIREMENTS" U.S.D.I. NO. 1168, YOU EXPRESSED YOUR OPINION IN THESE WORDS:

"THE PROVISIONS OF THE SPECIFICATIONS RELATIVE TO SERVICE REQUIREMENTS SET FORTH THE CHARACTER OF THE WORK TO BE DONE WITH SUFFICIENT DETAIL TO MEET THE REQUIREMENT THAT SERVICE NEEDS SHALL BE STATED CLEARLY AND COMPLETELY, AND THEY INDICATE THE NEED OF A CAR OF UNUSUALLY STURDY CONSTRUCTION, CAPABLE OF SUSTAINED PERFORMANCE UNDER WIDELY VARYING ROAD AND WEATHER CONDITIONS * * *.'

ACCORDINGLY, YOUR APPROVAL OF THE STATEMENT OF SERVICE REQUIREMENTS IN U.S.D.I. NO. 1291, THE CASE HERE PRESENTED, MAY SAFELY BE TAKEN FOR GRANTED. THE WHEEL BASE AND WEIGHT LIMITATIONS OBJECTIONABLE TO YOU IN THE PREVIOUS ADVERTISEMENT HAVE BEEN OMITTED. IN THE TOTAL ABSENCE OF ANY OTHER LIMITING FACTORS, THE DECISION AS TO THE PROPER AWARD UNDER U.S.D.I. NO. 1291 NECESSARILY MUST REST SOLELY UPON A CLASSIFICATION OF AUTOMOBILES ACCORDING TO THE STATED SERVICE REQUIREMENTS. SUCH A CLASSIFICATION MUST, IN TURN, REST UPON ADMINISTRATIVE JUDGMENT, TEMPERED BY EXPERIENCE AND KNOWLEDGE IN THE GREATEST POSSIBLE DEGREE, BUT INEVITABLY A MATTER OF OPINION IN THE FINAL ANALYSIS. IT SEEMS ALMOST IMPOSSIBLE SO TO DECIDE WITHOUT APPEARING TO BE ARBITRARY, BUT WITH NO OTHER BASIS FOR DECISION APPARENT THE DEPARTMENT HAS DETERMINED THAT, AMONG THE OFFERINGS UNDER U.S.D.I. NO. 1291, THE FOLLOWING ARE INADEQUATE TO MEET THE ADVERTISED SERVICE REQUIREMENTS:

FORD V-8 CHEVROLET MASTER

PLYMOUTH PONTIAC 6

DODGE PONTIAC 8

DE SOTO OLDSMOBILE 6

CHEVROLET STANDARD AND THAT THE FOLLOWING ARE FULLY CAPABLE OF MEETING THE ACTUAL NEEDS AS SET FORTH IN THE ADVERTISED SERVICE REQUIREMENTS:

OLDSMOBILE 8

BUICK 41

THE LOWER OF THESE TWO OFFERINGS IS BID NO. 5, GENERAL MOTORS CORPORATION, OLDSMOBILE DIVISION, OFFERING TWO OLDSMOBILE 8 4-DOOR SEDANS DELIVERED AT WASHINGTON, D.C., FOR $772.96 EACH (PRICE AT POINT OF ORIGIN, LANSING, MICHIGAN, $726.35 EACH).

IF THE AWARD BE MADE TO BIDDER NO. 5, PLEASE ADVISE IF APPROPRIATED MONEYS WILL BE AVAILABLE FOR PAYMENT OF THE BID PRICE (WHICH DOES NOT EXCEED THE STATUTORY LIMITATION OF $750 AT POINT OF ORIGIN) UNDER THE RESULTING CONTRACT. AS MORE THAN THREE MONTHS HAVE ELAPSED SINCE THE NATIONAL PARK SERVICE FIRST REQUESTED THE PURCHASE OF ONE OF THESE CARS, A PROMPT DECISION IS URGENTLY REQUESTED.

FROM THIS CASE IT IS CLEARLY EVIDENT THAT THERE IS NEED FOR A MORE DEFINITE CLASSIFICATION OF AUTOMOBILES THAN HAS BEEN POSSIBLE UNDER YOUR DECISIONS A-62479 AND A-70183. YOUR ATTENTION IS DIRECTED TO THE PREDICATION OF THIS SITUATION ON PAGE 6 OF THE REPORT OF NOVEMBER 7, 1935, MADE BY THIS DEPARTMENT ON ANOTHER CASE, ON WHICH YOU RENDERED YOUR DECISION A-62479 OF NOVEMBER 15, 1935.

THIS DEPARTMENT HAS CONSISTENTLY MAINTAINED THAT IT IS MORE IN THE PUBLIC INTEREST TO LIMIT BIDDING TO THE CLASS OF AUTOMOBILES REQUIRED, TAKING THE LOWEST BID SUBMITTED THEREON, THAN TO ADVERTISE WITH SUCH INDEFINITE SPECIFICATIONS AS WILL PERMIT BIDS ON VARIOUS CLASSES, TAKING THE LOWEST BID ADMINISTRATIVELY DETERMINED AS MEETING THE SERVICE REQUIREMENTS AND DISREGARDING ANY LOWER BIDS.

IN VIEW OF THE SITUATION HERE PRESENTED IT IS REQUESTED THAT YOU APPROVE THE INCLUSION OF WHEEL BASE AND WEIGHT REQUIREMENTS IN FUTURE SPECIFICATIONS IN ORDER TO INFORM PROSPECTIVE BIDDERS WHAT CLASS OF AUTOMOBILE THIS DEPARTMENT DESIRES TO PURCHASE.

THIS OFFICE HAS NOT HELD THAT NO WEIGHT OR WHEEL BASE MAY BE MENTIONED IN SPECIFICATIONS FOR THE PURCHASE OF AUTOMOBILES. IT IS RECOGNIZED THAT THERE ARE CLASSES OF AUTOMOBILES WHICH ARE GENERALLY DESIGNATED AS LIGHT, MEDIUM, AND HEAVY WEIGHT, AND THAT SERVICE REQUIREMENTS MAY, IN SOME INSTANCES, BE SUCH THAT THE RECOGNIZED "LIGHT WEIGHT" VEHICLES WILL NOT ADEQUATELY SERVE THE NEEDS OF THE GOVERNMENT, AND IT HAS BEEN SUGGESTED THAT WHEN THIS IS TRUE APPROXIMATE WEIGHTS AND WHEEL BASES MAY BE STATED TO SUGGEST TO BIDDERS THE NEED FOR A STURDIER CAR. 13 COMP. GEN. 226, A- 62479, NOVEMBER 15, 1935; A-57939, DECEMBER 18, 1934. IN THE LAST MENTIONED DECISION IT WAS SUGGESTED THAT IN THE THEN STATE OF THE INDUSTRY AN APPROXIMATE WEIGHT OF 3,100 POUNDS MIGHT BE USED AS INDICATING THE REQUIREMENT OF THE STURDIER CARS. IT IS NOT UNDERSTOOD THAT THERE HAS BEEN SUBSTANTIAL CHANGE WITH REFERENCE TO AUTOMOBILE WEIGHTS SINCE THAT DATE.

THE DECISIONS OF THIS OFFICE ARE TO THE EFFECT THAT NO ARBITRARY SPECIFICATIONS AS TO WEIGHT, WHEEL BASE, OR OTHER REQUIREMENT MAY BE ADOPTED FOR THE PURPOSE OF EXCLUDING A PARTICULAR CAR OR CARS IN THE SAME RECOGNIZED GROUP FROM COMPETITION, AND THAT WHEN SUCH ARBITRARY AND RESTRICTIVE SPECIFICATIONS ARE USED, THE APPROPRIATIONS ARE NOT LEGALLY CHARGEABLE. 13 COMP. GEN. 284; 14 COMP. GEN. 368, 491, 518, 832; A-60763, DECEMBER 10, 1935.

THE FORMER SPECIFICATIONS IN THIS MATTER WERE APPARENTLY DRAWN FOR THE PATENT PURPOSE OF EXCLUDING FROM COMPETITION ANY CAR WHICH DID NOT MEET BOTH THE WEIGHT AND WHEEL BASE OF THE BUICK 40 SPECIAL, WITHOUT REGARD TO WHETHER SUCH AUTOMOBILE WAS IN THE SAME COMPETITIVE CLASS AND ALTHOUGH ADEQUATE FOR THE NEEDS OF THE GOVERNMENT. ALSO, SUCH SPECIFICATIONS, DESPITE THE STATUTORY LIMITATION UPON THE PRICE TO BE PAID, ADMITTED TO COMPETITION ONLY CARS OF A SUBSTANTIALLY HIGHER LIST PRICE THAN THE BUICK 40 SPECIAL. THE SPECIFICATIONS CLEARLY WERE IMPROPER AND IT NECESSARILY WAS SO HELD.

UPON READVERTISEMENT, ALL LIMITING FACTORS WERE ELIMINATED WITH THE RESULT THAT BIDS WERE SUBMITTED OFFERING CARS IN THE LIGHT-WEIGHT CLASS AS WELL AS CARS OF HEAVIER CONSTRUCTION. YOU NOW PROPOSE TO ELIMINATE ALL BUT THE TWO HIGHEST PRICED AUTOMOBILES OFFERED--- NOTWITHSTANDING SOME OF THE OTHER CARS OFFERED ARE GENERALLY RECOGNIZED AS IN THE SAME COMPETITIVE CLASS WITH THE BUICK 40.

THE WEIGHTS AND WHEEL BASES OF THE AUTOMOBILES YOU PROPOSE TO REJECT ARE AS FOLLOWS, THE FIGURES BEING TAKEN FROM THE ABSTRACT OF BIDS ACCOMPANYING YOUR SUBMISSION:

TABLE

WEIGHT WHEEL

BASE FORD V-8 --------------------------------------- 2,960 112 PLYMOUTH BUSINESS ------------------------------ 2,900 113 DODGE ------------------ ------------------------ 2,923 116 DE SOTO ------------------------------- --------- 3,111 117 CHEVROLET STANDARD ----------------------------- 2,791 109 CHEVROLET MASTER ------------------------------- 3,077 113 PONTIAC 6 - ------------------------------------- 3,235 112 PONTIAC 8 ---------------- ---------------------- 3,415 116 5/8 OLDSMOBILE 6 ------------------------ ----------- 3,265 115

THE TWO CARS WHICH YOU PROPOSE TO CONSIDER ARE:

WEIGHT WHEEL

BASE BUICK 41 -- ------------------------------------ 3,360 118 OLDSMOBILE 8 -- -------------------------------- 3,495 121

IT WOULD APPEAR FROM THE FOREGOING THAT SOME OF THE AUTOMOBILES LISTED, BY REASON OF THE COMBINATION OF LIGHTER WEIGHT AND SHORTER WHEEL BASE, MIGHT BE CONSIDERED AS LIGHTWEIGHT VEHICLES AND, THEREFORE, NOT NECESSARY FOR CONSIDERATION IN THE PRESENT INSTANCE, IN VIEW OF THE SERVICE REQUIREMENTS STIPULATED.

OTHER AUTOMOBILES LISTED, SO FAR AS APPROXIMATE WEIGHT IS CONCERNED, WOULD APPEAR TO BE IN THE SECOND OR STURDIER CLASS AND PROPERLY FOR CONSIDERATION IN THE ABSENCE OF A DEFINITE SHOWING, BASED UPON FACTS, TO THE EFFECT THAT THE PARTICULAR CARS ARE INADEQUATE TO PERFORM THE SERVICE REQUIRED.

IT IS TO BE NOTED THAT WHILE THE GROSS PRICE ON THE DE SOTO APPEARS TO BE HIGHER THAN THE BID ON THE OLDSMOBILE EIGHT, THE FORMER OFFERS A DISCOUNT OF $25 PER CAR IF PAID WITHIN 30 DAYS, WHICH IS MORE THAN SUFFICIENT TO OFFSET THE DIFFERENCE IN BID PRICE, AND THAT, SUBJECT TO THIS EXCEPTION, THE TWO CARS PROPOSED FOR CONSIDERATION ARE THE HIGHEST PRICES BID AND VERY NEARLY APPROXIMATE THE MAXIMUM STATUTORY PRICE LIMIT. IT MAY BE POINTED OUT THAT THE PRICE OF $750 FIXED BY THE STATUTES IS A MAXIMUM AND NOT A MINIMUM PRICE. IT DOES NOT ABROGATE THE REQUIREMENT THAT, UNDER SECTION 3709, REVISED STATUTES, THE NEEDS OF THE GOVERNMENT ARE FOR CONSIDERATION RATHER THAN WHAT MAY BE CONSIDERED AS MORE DESIRABLE OR EVEN SUPERIOR. IF A LOWER-PRICED VEHICLE WILL PERFORM THE WORK TO BE DONE, ITS PURCHASE IS REQUIRED WITHOUT REGARD TO FEATURES OF DESIRABILITY OR SUPERIORITY OF A HIGHER PRICED CAR. THE SOLE QUESTION FOR CONSIDERATION IS THE SUFFICIENCY OF THE LOWEST-PRICED CAR FOR THE ACTUAL NEEDS OF THE GOVERNMENT, AND THIS IS DEPENDENT UPON ITS OWN CONSTRUCTION AND NOT UPON COMPARISON WITH OTHER AND HIGHER-PRICED CARS WHICH MAY, AND PROPERLY SHOULD, HAVE SOME SUPERIOR FEATURES (A-71968, APR. 28, 1936). THE SERVICE REQUIREMENTS IN THE PRESENT INSTANCE STATED THAT THE CARS ARE FOR USE BY THE DIRECTOR OF CONSERVATION WORK AND THE ASSISTANT DIRECTOR, NATIONAL PARK SERVICE, IN CHARGE OF THE BRANCH OF PLANNING AND STATE COOPERATION, IN VISITING VARIOUS PROJECTS UNDER CONSTRUCTION AND INVESTIGATING PROPOSED PROJECTS AND BETTERMENTS WITHIN THE CONTINENTAL UNITED STATES. THE REQUIREMENTS WERE, IN PERTINENT PART, AS FOLLOWS:

* * * THE CAR MUST BE CAPABLE OF CONTINUOUS AND LONG DISTANCE TRAVELING BETWEEN STATES AND SHOULD BE OF STURDY CONSTRUCTION WITH ADEQUATE AND FLEXIBLE POWER TO NEGOTIATE HEAVY GRADES, SAND, MUD, ETC., AND CAPABLE OF TRAVELING UNDER EXTRAORDINARY ROAD OR WEATHER CONDITIONS. THE ROUTES TO BE TRAVERSED BY THIS CAR WILL INCLUDE ALL KINDS AND CONDITIONS OF ROADWAYS, RANGING DOWN TO UNIMPROVED ROADS, VIRGIN TERRAIN, AND PROJECTS UNDER CONSTRUCTION.

THE AUTOMOBILE MUST BE CAPABLE OF SUSTAINED HIGH SPEED AND CHASSIS AND BODY MUST BE CONSTRUCTED SO THAT IT WILL WITHSTAND THE MOST GRUELLING TESTS THAT LONG DAY-BY-DAY DRIVING REQUIRES. VARIOUS UNITS, SUCH AS IGNITION COIL, GENERATOR, DISTRIBUTOR, CARBURETOR, ETC., MUST BE OF HIGH QUALITY SO AS TO REDUCE TO A MINIMUM, REPEATED OR EVEN OCCASIONAL BREAK- DOWNS EN ROUTE, AS SUCH BREAK-DOWNS WOULD SERIOUSLY INTERFERE WITH THE ASSISTANT DIRECTOR'S APPOINTMENTS AND CONSEQUENTLY IMPAIR HIS EFFICIENCY AND ACTUALLY DELAY THE WORK ON INSPECTION OF IMPORTANT PROJECTS. ACTUAL EXPERIENCE HAS PROVEN THAT THE LIGHTER WEIGHT CARS ARE NOT SUFFICIENTLY STURDY IN CONSTRUCTION TO WITHSTAND THE LONG DAY-BY-DAY DRIVING UNDER THE SERVICE CONDITIONS STATED, WITHOUT SERIOUS DELAYS.

ACCEPTING THE STATEMENT OF ACTUAL EXPERIENCE AS SET FORTH--- THAT THE LIGHTER WEIGHT CARS ARE NOT SUFFICIENTLY STURDY IN CONSTRUCTION TO WITHSTAND THE LONG DAY-BY-DAY DRIVING UNDER THE SERVICE CONDITIONS STATED WITHOUT SERIOUS DELAYS, THERE HAVE BEEN PRESENTED NO FACTS UPON WHICH TO BASE A CONCLUSION THAT ANY AUTOMOBILE OFFERED IN THE MEDIUM WEIGHT CLASS WILL NOT RENDER THE SERVICE REQUIRED. ACCORDINGLY, I HAVE TO ADVISE THAT, IN THE ABSENCE OF SUCH SHOWING, APPROPRIATED MONEYS WILL NOT BE AVAILABLE FOR PAYMENT UNDER A CONTRACT AWARDED TO OTHER THAN THE LOW BIDDER OFFERING A CAR IN THAT GROUP. REPLYING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE INFORMED THAT WITHIN THE GENERAL LIMITATIONS HEREIN SUGGESTED, THE INCLUSION OF WHEEL BASE AND WEIGHT REQUIREMENTS WILL NOT BE OBJECTIONABLE. THAT IS TO SAY, APPROXIMATE WEIGHTS AND WHEEL BASES MAY BE SUGGESTED AS INDICATING TO BIDDERS THE REQUIREMENT OF A STURDIER AUTOMOBILE THAN THOSE IN THE LIGHT-WEIGHT CLASS, BUT NO ARBITRARY MINIMUM WEIGHT OR WHEEL BASE MAY BE SPECIFIED WHICH RESULTS IN THE EXCLUSION OF ANY AUTOMOBILE IN A RECOGNIZED COMPETITIVE GROUP, AND A REASONABLE DEFICIENCY IN EITHER RESPECT MAY NOT BE MADE THE BASIS FOR REJECTION OF AN OTHERWISE ACCEPTABLE LOW BID. IT IS TO BE UNDERSTOOD, HOWEVER, THAT WHEN THE SERVICE REQUIREMENTS ARE SUCH AS MAY BE MET BY AUTOMOBILES IN THE LIGHT-WEIGHT CLASS, NO SPECIFICATION MAY BE USED WHICH WOULD RESULT IN EXCLUDING ANY CAR IN THAT CLASS FROM COMPETITION.