A-80247, A-80479, NOVEMBER 17, 1936, 16 COMP. GEN. 497

A-80247, A-80479, NOVEMBER 17, 1936, 16 COMP. GEN. 497

CONTRACTS - TRUCKS - CHANGES IN SPECIFICATIONS AND AWARDS WITH PROTESTS PENDING THE WORDING OF THE PROVISIONS OF STANDARD TRUCK SPECIFICATIONS PURPOSELY DRAWN AND MADE EFFECTIVE FOR THE USE OF ALL GOVERNMENT DEPARTMENTS SHOULD NOT BE CHANGED BY ADMINISTRATIVE OFFICERS WHERE THERE IS NO APPARENT REASON THEREFOR, AS SUCH CHANGES MAY RESULT IN CONFUSION AMONG BIDDERS WITH CORRESPONDING REDUCTION OF COMPETITION AND LIKELIHOOD OF INCREASED PRICES. CONTRACT AWARDS SHOULD NOT BE MADE BY GOVERNMENT AGENCIES WHERE THE SPECIFICATIONS INVOLVED ARE A MATTER OF PROTEST UNTIL AFTER DETERMINATION OF THE MATTER BY THE GENERAL ACCOUNTING OFFICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 17, 1936:

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

REFERENCE IS MADE TO YOUR LETTERS (A-80247 AND A-80479) DATED AUGUST 27, 1936, AND SEPTEMBER 11, 1936, RELATIVE TO PROTESTS OF THE OSHKOSH MOTOR TRUCK, INC., RELATIVE TO ALLEGED RESTRICTIVE FEATURES EMBODIED IN SPECIFICATIONS OF SCHEDULES COVERING THE DELIVERY OF MOTOR TRUCKS.

THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION, A REPORT DATED OCTOBER 30, 1936, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, TOGETHER WITH THE SCHEDULES MENTIONED THEREIN, WHICH FULLY ANSWERS THE PROTESTS OF THE OSHKOSH MOTOR TRUCK, INC.

THE REPORT TRANSMITTED WITH YOUR LETTER IS IN SUBSTANCE THAT THE REQUIREMENT OF THE CENTER DIFFERENTIAL WITH LOCK-OUT FEATURE IS NECESSARY IN ORDER TO OBTAIN TRACTION UNDER THE ADVERSE CONDITIONS TO BE ENCOUNTERED IN THE SERVICE FOR WHICH THE TRUCKS ARE TO BE USED; THAT TRUCKS WITH AUTOMATIC DIFFERENTIAL LOCK MANUFACTURED BY THE OSHKOSH MOTOR TRUCK, INC., COMPLY WITH THE SPECIFICATIONS IN THAT RESPECT AND A BID SUBMITTED BY THAT COMPANY WOULD HAVE BEEN SO CONSIDERED; AND THAT THE PROTESTING COMPANY DID NOT SUBMIT A BID IN EITHER INSTANCE AND DID NOT PROTEST THE SPECIFICATIONS UNTIL TOO LATE TO RECEIVE CONSIDERATION PRIOR TO THE OPENING OF THE BIDS. ALSO, IT IS STATED THAT THREE BIDS WERE RECEIVED FROM TWO BIDDERS ON THE FIRST SCHEDULE; THAT THERE WERE THREE BIDDERS ON THE SECOND SCHEDULE; AND THAT AWARD HAS BEEN MADE TO THE LOW BIDDER ON THE FIRST OPENING AND WILL BE MADE TO THE LOW BIDDER UNDER THE SECOND.

UPON ALL THE FACTS PRESENTED IN THE REPORT, THIS OFFICE WILL NOT WITHHOLD APPROVAL OF OTHERWISE PROPER PAYMENTS UNDER CONTRACTS AWARDED AS ADMINISTRATIVELY PROPOSED IN THESE TWO INSTANCES, AND OSHKOSH MOTOR TRUCK, INC., IS BEING SO ADVISED.

IN THIS CONNECTION, HOWEVER, IT IS TO BE OBSERVED THAT FEDERAL SPECIFICATIONS KKK-T-706, NOVEMBER 6, 1934, COVERING FOUR-WHEEL DRIVE AND SIX-WHEEL DRIVE TRUCKS BECAME EFFECTIVE FOR THE USE OF ALL GOVERNMENT DEPARTMENTS ON JULY 1, 1935. PARAGRAPH D-12B IS AS FOLLOWS:

WHERE A CENTER DIFFERENTIAL IS PROVIDED, ADEQUATE MEANS SHALL BE INCORPORATED FOR LOCKING THE DIFFERENTIAL EITHER "IN" OR "OUT" AS DESIRED.

IN SPECIFYING THE LOCKING DEVISE IN THE TWO SCHEDULES HERE UNDER CONSIDERATION THE WORD POSITIVE WAS USED INSTEAD OF THE WORD ADEQUATE, FOR NO APPARENT REASON. IT MAY BE THAT THE SUBSTITUTION WAS MISINTERPRETED BY THE OSHKOSH MOTOR TRUCK, INC., RESULTING IN ITS FAILURE TO BID IN EITHER INSTANCE, THUS REDUCING COMPETITION, WITH THE POSSIBLE RESULT THAT THE CHARGE UPON APPROPRIATED MONEYS FOR THE PURCHASE OF THE TRUCKS IS GREATER THAN IT OTHERWISE MIGHT HAVE BEEN. RELATIVE TO THE REQUIREMENT FOR A CENTER DIFFERENTIAL IN THE PURCHASE OF FOUR-WHEEL DRIVE TRUCKS FOR USE UNDER ORDINARY SERVICE CONDITIONS, SEE 15 COMP. GEN. 1119.

MOREOVER, THE FACT THAT THE PROTESTING COMPANY DID NOT SUBMIT BIDS DID NOT AFFECT ITS RIGHT TO PROTEST THE SPECIFICATIONS, IF CONSIDERED RESTRICTIVE. 14 COMP. GEN. 671. ITS LETTER OF AUGUST 24, 1936, TO YOUR DEPARTMENT POINTED OUT WHEREIN THE PROTESTED SPECIFICATIONS WERE CONSIDERED RESTRICTIVE AND STATED THAT IT WAS NOT SUBMITTING A BID FOR THAT REASON. ITS LETTER OF SEPTEMBER 4 STATED THAT IT WAS NOT BIDDING ON THE SECOND SCHEDULE FOR THE SAME REASON, THAT IS, THAT THE COMPANY CONSIDERED THE SPECIFICATION WITH REFERENCE TO THE CENTER DIFFERENTIAL SO RESTRICTIVE AS TO ELIMINATE IT FROM COMPETITION. MY LETTER OF AUGUST 27, 1936, INFORMING YOU OF THE RECEIPT OF THE PROTEST HERE DOUBTLESS WAS RECEIVED PRIOR TO AWARD OF THE CONTRACT ON THE FIRST SCHEDULE, WHICH THE REPORT STATES WAS MADE ON SEPTEMBER 8, 1936. PROPER ADMINISTRATIVE PROCEDURE REQUIRED THAT YOUR REPORT BE SUBMITTED TO THIS OFFICE, AND AWARD OF THE CONTRACT BE WITHHELD PENDING DETERMINATION OF THE MATTER HERE. UPON CONSIDERATION HERE IT DEVELOPES THAT THE SPECIFICATIONS ARE, IN FACT, UNDULY RESTRICTIVE OF COMPETITION, OR OTHERWISE UNAUTHORIZED, IT MUST BE HELD THAT APPROPRIATED FUNDS ARE NOT AVAILABLE FOR PAYMENT, AND THIS IS TRUE WHETHER OR NOT ANY CONTRACT HAS BEEN UNDERTAKEN. RESPONSIBILITY FOR THE UNAUTHORIZED AWARD OF CONTRACT UNDER SUCH CONDITIONS MUST REST WITH THE ADMINISTRATIVE DEPARTMENT INVOLVED AND THE LOSS WITH THE BIDDER UNDERTAKING THE CONTRACT. SUCH MATTERS ARE GIVEN PREFERRED ATTENTION HERE, AND IF IT APPEARS UPON CONSIDERATION THAT THE SPECIFICATIONS ARE NOT OBJECTIONABLE, THE AWARD OF A CONTRACT IS SELDOM, IF EVER, DELAYED TO ANY APPRECIABLE EXTENT.