Interpretation ID: nht76-4.7

DATE: 05/21/76

FROM: AUTHOR UNAVAILABLE; S. P. Wood NHTSA

TO: Department of the Army

TITLE: FMVSS INTERPRETATION

TEXT: This responds to your April 13, 1976, request for written confirmation that the requirements of paragraph S5.2.2.2 of Standard No. 116, Motor Vehicle Brake Fluids, do not preclude the use of brake fluid dispensing devices which are used without attachment to the brake fluid container.

Paragraph S5.2.2.2 of Standard No. 116 specifies the information that packagers of brake fluids are required to place on the outside of the brake fluid container. Subsection (g) of this paragraph specifies four warnings that must be marked on the container. These labeling requirements apply only to the brake fluid container. The requirements do not apply to use of the brake fluid, and therefore do not create duties on the part of the user to abide by the warnings. The purpose of these requirements is only to ensure that purchasers are warned of potential safety hazards that can result from improper use and storage of the product.

Sincerely,

ATTACH.

DEPARTMENT OF THE ARMY

APRIL 13, 1976

OFFICE OF CHIEF COUNSEL -- National Highway Traffic Safety Administration

Gentlemen:

Reference is made to Title 49 - Transportation, Chapter V - National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT), Part 571 - Federal Motor Vehicle Safety Standards, Motor Vehicle Hydraulic Brake Fluids, Motor Vehicle Safety Standard No. 116.

This Headquarters has issued a Solicitation IFB DAAA09-76-B-6363 for a quantity of automotive hydraulic brake system filler-bleeders.

One of the potential competitors on this procurement (i.e., Bowes Seal Fast Corporation, (Bowes)) has brought into issue the Department of Transportation FMVSS No. 116 in relationship to the specification cited in this solicitation (Incl 1). Specifically, Bowes contends that the required item under Mil-F-19849C dated 14 May 1969, Type I, Class A, Size 1, violates the requirement of FMVSS No. 116, paragraphs S5.2.2.2., (g) 1, 2, 3, and 4.

Our engineering staff is of the opinion that the requirements of FMVSS No. 116 properly applies only to the producer, packager, wholesaler, retailer and user for storage purposes, but has no relationship to the dispensing device used to fill any vehicles hydraulic brake systems.

Contact has been made with Mr. Sid Williams and Mr. Fred Redler of your office and they have orally confirmed that our engineering staffs' view of this matter is correct. Written verification of this fact is requested so that a final reply can be made to Bowes. Your prompt attention to this request will be appreciated. It is also requested that you forward the latest Series 100 and 300 Standards.

Sincerely yours,

MARVIN L. (Illegible Word) -- Chief, Procurement Law Division

1 Incl As stated

BOWES SEAL FAST CORPORATION

March 24, 1976

General William E. Eicher -- U. S. Army (Illegible Word) Command

Dear Sir:

Subject: FILLER-BLEEDER, HYDRAULIC BRAKE SYSTEM, AUTOMOTIVE NSN 4910-00-273-3658 (Formerly FSN 4910-273-3658)

Inasmuch as our Company is a small business, and manufacturer of equipment in the above category, that category is of interest. We are also government contractors and sub-contractors. Following is a tabulation of contract awards from your Command of which we find record in Commerce Business Daily: Solicitation No. DAAF03-72-B-1405 DAAA09-74-B-6988 Applicable Document Cited T&E PD-58B T&E PD-82 1969 June 20 1973 September 05 Contract Award DAAF03-73-C-1029-0004 DAAA09-74-D-6033-0001 24 April 1973 8 May 1974 Award Quantity 1,556 Units 1,016 Units Award Amount $ 69,302 $ 70,632

There has been some previous correspondence from this office to your Command on the above procurement. While our correspondence took exception to the procurement, it did not include a protest of contract award. A reply to one of our letters discussed procurement under T&E PD-58B and T&E PD-82, stating "based on higher work load priorities during this time frame, a military specification was not prepared."

Now, we have received current IFB DAAA09-76-B-6363 applying to NSN 4910-00-273-3568 in quantity of 1,597 units with bid opening date of 9 April 1976. The applicable document cited in this solicitation is MIL-F-19849C dated 14 May 1969.

Upon reading MIL-F-19849C, we do not find equipment described to be basically different from that of T&E PD-58B and T&E PD-82, at least as far as IFB DAAA09-76-B-6363 is concerned. The current IFB stipulates Type I, Class A, Size 1 unit with tank capacity of 3 gallons +/- 1/2 gallon. This refers to a storage tank with diaphragm into which hydraulic brake fluid would be transferred from the original container for shop use as needed.

2 Attention is invited to Department of Transportation FMVSS No. 116 published in Federal Register, Volume 36, No. 232, December 2, 1971. FMVSS 116 serves to establish standards for hydraulic brake fluids and their use.

Attached are specimens of labeling, including directions for use, which have been on all Bowes brake fluid containers since 1972. That this label includes the name of our Company is not significant, because all brake fluid marketers now use identical directions. This is as required in FMVSS 116, Section S 5.2.2.2., sub-paragraph (g), outlining the information to be clearly and indelibly marked on each brake fluid container. As will be noticed under the directions of panel 2, the label clearly states brake fluid is to be stored only in its original container, and that a container is not to be refilled.

In our reading of MIL-F-19849C, it appears to be a revision of earlier Specification MIL-F-198488, dated 4 September 1963. It is evident, then, that the specification has not been revised since 14 May 1969, hence is in conflict with FMVSS No. 116, effective 1 March, 1972.

While FMVSS 116 does not specify any particular type of dispenser for the use of hydraulic brake fluid, it does clearly state "store brake fluid only in its original container". It also specifies "do not refill container." This would exclude transferring brake fluid from its original drum or can to a refillable-reusable tank of 3 gallon capacity.

Attached is a catalog-instruction sheet on the Mack Brake Fluid Bleeder-Filler which is manufactured by our Company. This unit passed feasibility testing at your Command in 1971, following which it was approved and a contract issued from General Services Administration under date of February 15, 1972. It does meet the requirement of FMVSS No. 116 in dispensing brake fluid directly from an original closed container. Since pressure for operation of the unit is provided by a spring-loaded cylinder extending into the original brake fluid container, no air line, pressure gauge or water trap is required. Incidentally, we do not see the latter mentioned in MIL-F-19849C, although we question that a diaphragm would always be impervious to moisture in compressed air.

While the Mack Brake Fluid Bleeder-Filler is a product of distinctive quality, safety and convenience, it is not a proprietary item. That it does serve satisfactorily in its intended use is evidenced by repeat orders from original GSA contract buyers. The unit has also been the subject of a "New Equipment Review" letter from your Command.

As will be noted in the tabulation of contracts shown elsewhere in this letter, the cost of procurement increased over 50% from the 1973 award to the 1974 award, or from $ 44.54 to $ 69.52 per unit. In 1976, the Mack Brake Fluid Bleeder-Filler is available to dealers and fleet users from Bowes distributors throughout the United States at $ 18.25. Construction of the unit is of a nature not requiring special packaging. Standard commercial packaging is one unit per corrugated box 6 1/4" x 3 3/4" x 10 1/8", 10 units per master corrugated shipping carton 22" x 10 1/2" x 13 3/4". Shipping in this packaging has not involved any problem of damage in shipment or storage.

While our Company would be pleased to bid the Mack Brake Fluid Bleeder-Filler under IFB DAAA09-76-B-6363, there is no reason to do so as such offer would be considered non-responsive to the solicitation.

In our opinion, MIL-F-19849C has been obsolete for some time, no longer an appropriate criterion for procurement. Therefore, we respectfully ask that Solicitation No. DAAA09-76-B-6363 be canceled pending a thorough review of its subject, and development of an up-to-date revision of MIL-F-19849C.

Cordially yours,

GEORGE E. TALMAGE, Secretary

Copy to: Commander, U. S. Army Tank-Automotive Command, AMSTA-MST National Automotive Center, GSA-FYS; DRXMD-TE, Mr. Van Acker

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