Montana Attorney General Opinion 15-352

Opinion No. 352 County Commissioners - Bids, Speci- fications for-Tractors-Patented Articles-l\lonopolies HELD: S'pecifications for bids must be sufficiently definite and pre- cise to fUrnish a basis for fair and in- telligent bidding, hut must not contain such restrictions in the way of detail as would pre"ent billding and stifle competition. Opposite de\ys are taken ill case of patented articles or monopo- lies. October 3, 1933. In your request for an opinion you submit specifications for track-type tractors. The question involved is the legality of the specifications submit- ted by the count,y commissioners as n basis for receiving bids require.d by Chapter 8, Laws of 1933. This chap- ter requires that "no contract shall be entered into by a board of county commissioners for the purchase of any nutomobile, truck, or other vehicle, or road, highway, or other machiriery, apparatus, nppliances or equipment, or materials, or supplies of any kind, for which must be paid a sum in excess of five hundred dollars, without first publishing a notice calling for bids * .... and e"ery such contract shall be let to the iowest responsible hidder." The specifications consist of nearly three single spaced pages. Some of the requirements are as follows: "Must have four or more speeds forward and one reverse. Low gear not to exceed 1.6 miles per hour at governed speed; second gear 2.4 miles per hour; thi'rd gear 3.1 miles per hour; fourth gear 1.6 miles per hour; reverse gear 1.9 per hour. • * * To be 4 cylinder, slow speed, not oyer 900 R. P. l\L governed, at full load; valve in tbe head. * * *" On the face, the SpeCifications look considern bly like the manufacturer's complete detailed specifications of a certain make of track-type tractor. They haye the appearance at least of heing an adoption by the commission- ('rs of a bidder's own specifications of his track-type tractor. I do not feel, howeyer, tha t I am able to place an unqunlified interpretation upon these specifications as I am not acquainted with the fncts and hnve not had the op- pOl·tunity of making an investigation. Therefore, I do not wish to make such assertion. It is somewhat difficult. however, to understand wh~' only a 4 cylinder engine or a valve in the head engine would be a satisfactory type of engine. It is likewise difficult to l~nderstallll why a speed exceeding 1.6 238 OPINIONS OF THE ATTOHXEY GENERAL miles per hour at low gear would be too fast or why all of these speeds of fractional miles per hour should be so exact. It is difficult to understand the reasonableness or necessity of some of the other details of the speci- fications. It seems to be the general rule of law that specifications inviting bids must be sufficiently definite and pre- cise to furnish a basis for fair and in- telligent bidding. It is also the gen- eral rule that there must not be such restrictions in the way of detail in the specifications which would prevent bidding and thus stifle competition. The express purpose of the law is to obtain competitive bidding and to en- able the commissioners to purchase property from the lowest responsible bidder. The general rule of law is stated in 44 C. J. p. 104, Section 2Un. Also page 324, Section 2490 et seq. Note 10 of section 2191, supra, contains a considerable number of cases in sup- port of this rule. See also McQuillin Municipal Corporations, Second Edi- tion, Sections 1310, 1309, 1306. In Sec- tion 1310, supra, the text-writer said: "Under laws 'requiring that plans and specifications and detailed drawings be prepared, it is sometimes difficult to determine to what extent the drawings or specifications must be carried into detail. Such pro\isions are not to be construed literally, but in a manner merely to secure the object for which they were deSigned • * *." The text-writer then quotes from Ampt v. Cincinnati, 17 Ohio Cir. Ot. 516, aff'd in 60 Ohio St. 621, 54 N. E. 1097 : "The machinery required for this work is only capable of being built by ten firms in the United States. Of these eight were bidders on this work. The difficulty that presented itself at once to the trustees in mak- ing exact drawings and specifications of every part was this: machinery of this magnitude has as yet not reached that state of perfection, and probably never will, where all bidders build to any certain and fixed plan as to de- tails. In this respect each builder has his own detailed plans, and no two are alike, and their tools and patterns are made to produce their own work after their own plans; therefore, if the de- tailed plan of this complicated work was to be given in all of its parts, the trustees were either compelled to adopt the plans of one of the concerns which had produced such work, or else get up a plan of the same kind of their own. It will be seen at once that the object of the law would be defeated if the board were to adopt the detailed plans of anyone of the firms, for this ,would virtually destror all bidding by firms other than the one whose plan was adopted, and place the trustees at the mercy of that firm. The price to the city would in all probability be much greater than it should be. This would destroy competition in bidding. the very thing the law was intended to bring about." The court in the case last cited, made this apt comment on vage 520 of Volume 17, Ohio Circuit Court Re- ports: "In construing statutes it is a well known and valuable rule of the law that a thing may be within the law and yet not within the letter of the law, and a thing may be within the letter of the law and still not with- in the law; and so it seems to us in this case that it is within the letter of the law that these specifications and detai~ed drawings mentioned in the statute should give every detail of e\'ery part of this great and complex machinery, but we do not believe it is within the meaning of the law that they should do so." See also: Grace \'. Forbes, 118 N. Y. S. 1062, (not 1063. 1065 and 1066) 64 Misc. Rep. 130; and 15 C. J. 550, sec. 244. 'Ve have been concerned above with the general rule. In regard to patent- ed articles and monopolies, there are two opposite views. Our Supreme Court, so far as we can ascertain, has not had occasion to pass on the ques- tion. We call attention to 44 C. J. p. 103, where the cases are cited in sup- port of the following: "Opposite views have been taken of the effect of a pro\ision requiring advertisements 'and bids for patented articles or ar- ticles or mJaterials co~trolled llya monopoly. One is that muniCipal cor- porations are thereby precluded from requiring articles or materials with reference to which there cannot be free competition in the bidding. The other \iew is that, where the best in- terests of the city will be subserved OPIXIOKS OF 'I'HE ATTOHXEY GEKERAL 239 by the use of a patented article or an article· controlled by a monopoly, pro- cura·ble frQm only one source, the pro- ,'ision in question has no application whatever, the case being without its Hpirit and intent; and in some cases it is expressly so provided in the grant of authoritr to make the contact." 'Ve are not possessed of sufficient facts to determine whether this exception to the general rule should apply and therefore express ·no opinion as to which of these two opposite ,iews should be adopted. Our S'upreme Court rloes not seem to have passed on the question.