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B-147091, NOV. 16, 1961

B-147091 Nov 16, 1961
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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2. YOUR REQUEST FOR RECONSIDERATION IS PREMISED ESSENTIALLY ON YOUR CONTENTION THAT ON JUNE 8. WE THINK IT IS WELL TO RESTATE BRIEFLY THE QUESTION INVOLVED IN THE CASE. WE BELIEVE THIS REQUIREMENT IS SUBJECT TO CRITICISM IN THAT IT FAILS TO GIVE CONSIDERATION TO POSSIBLE PRIOR PRODUCTION OF COMPARABLE EQUIPMENTS FOR THE GOVERNMENT. THAT THE REQUIREMENT DOES NOT FURNISH AS MUCH ASSURANCE OF COMPLIANCE WITH THE ACTUAL NEEDS OF THE NAVY AS THAT DEPARTMENT MAY HAVE ANTICIPATED. WE BELIEVE THE REQUIREMENT IS OF SOME WORTH IN THE EVALUATION OF BIDS. ONE OF THE PRINCIPAL REASONS WHICH CONTRIBUTED TO OUR CONCLUSION THAT THE REQUIREMENT WAS NOT AS PROTECTIVE OF THE GOVERNMENT'S INTERESTS AS MIGHT HAVE BEEN CONTEMPLATED WAS OUR UNDERSTANDING THAT THE BUILDING AND TESTING OF A MODEL WAS NOT NECESSARY IN ALL CASES FOR FCC TYPE ACCEPTANCE.

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B-147091, NOV. 16, 1961

TO POLYTRONIC RESEARCH, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2, 1961, REQUESTING RECONSIDERATION OF OUR DECISION B-147091 OF OCTOBER 30, 1961.

YOUR REQUEST FOR RECONSIDERATION IS PREMISED ESSENTIALLY ON YOUR CONTENTION THAT ON JUNE 8, 1961, THE OPENING DATE FOR BIDS UNDER NAVY INVITATION 600-1019-61-S, YOU HAD FEDERAL COMMUNICATIONS COMMISSION TYPE ACCEPTANCE OF COMMERCIAL EQUIVALENTS OF THE MOBILE AND FIXED STATION TRANSMITTER RECEIVERS CALLED FOR BY THE INVITATION.

WE THINK IT IS WELL TO RESTATE BRIEFLY THE QUESTION INVOLVED IN THE CASE. THE CITED INVITATION CONTAINED A PROVISION THAT AWARD WOULD BE MADE ONLY TO A BIDDER WHOSE COMMERCIAL EQUIVALENTS OF THE TWO ITEMS OF EQUIPMENT CALLED FOR HAD BEEN TYPE ACCEPTED BY THE FEDERAL COMMUNICATIONS COMMISSION BEFORE BID OPENING. AS WE STATED IN OUR DECISION B-147091 OF SEPTEMBER 22, 1961, WE BELIEVE THIS REQUIREMENT IS SUBJECT TO CRITICISM IN THAT IT FAILS TO GIVE CONSIDERATION TO POSSIBLE PRIOR PRODUCTION OF COMPARABLE EQUIPMENTS FOR THE GOVERNMENT, A FACTOR NOT, HOWEVER, INVOLVED IN THE INSTANT CASE. WE BELIEVE FURTHER, AS WE STATED IN OUR DECISION OF OCTOBER 30, 1961, THAT THE REQUIREMENT DOES NOT FURNISH AS MUCH ASSURANCE OF COMPLIANCE WITH THE ACTUAL NEEDS OF THE NAVY AS THAT DEPARTMENT MAY HAVE ANTICIPATED. HOWEVER, AS WE ALSO STATED IN THE DECISION OF OCTOBER 30TH, WE BELIEVE THE REQUIREMENT IS OF SOME WORTH IN THE EVALUATION OF BIDS, AND WE THEREFORE DO NOT CONSIDER IT UNDULY RESTRICTIVE.

ONE OF THE PRINCIPAL REASONS WHICH CONTRIBUTED TO OUR CONCLUSION THAT THE REQUIREMENT WAS NOT AS PROTECTIVE OF THE GOVERNMENT'S INTERESTS AS MIGHT HAVE BEEN CONTEMPLATED WAS OUR UNDERSTANDING THAT THE BUILDING AND TESTING OF A MODEL WAS NOT NECESSARY IN ALL CASES FOR FCC TYPE ACCEPTANCE. AFTER A CAREFUL STUDY OF THE FCC RULES APPLICABLE TO TYPE ACCEPTANCE IT NOW APPEARS THAT THIS UNDERSTANDING IS NOT IN ACCORDANCE WITH THE ACTUAL EFFECT OF THE RULES. IT IS OBVIOUS THAT THE REQUIREMENT IS OF MUCH GREATER VALUE IN THE EVALUATION OF BIDS IF ITS EFFECT IS TO REQUIRE THAT MODELS OF COMMERCIAL EQUIVALENTS OF THE TWO ITEMS BEING PROCURED HAVE BEEN BUILT AND TESTED, AND TYPE ACCEPTED BY FCC, PRIOR TO BID OPENING. IT NOW SEEMS CLEAR THAT THIS IN FACT IS ITS EFFECT.

SECTION 2.523 OF THE FCC RULES REQUIRES THAT EACH REQUEST FOR TYPE ACCEPTANCE INCLUDE THE FOLLOWING, AMONG OTHERS:

"/4) PHOTOGRAPHS OF EQUIPMENT: ADEQUATELY IDENTIFIED PHOTOGRAPHS OF SUFFICIENT SIZE AND CLARITY TO REVEAL EQUIPMENT CONSTRUCTION AND LAYOUT SHOULD BE FURNISHED. * * *"

SECTION 2.524 REQUIRES THAT MEASUREMENTS OF THE EQUIPMENT PROPOSED FOR TYPE ACCEPTANCE BE MADE TO ESTABLISH CERTAIN CHARACTERISTICS.

IT IS THEREFORE NECESSARY, UNDER FCC RULES, THAT A MODEL OF THE EQUIPMENT FOR WHICH TYPE ACCEPTANCE IS SOUGHT BE BUILT AND PHOTOGRAPHED AND THAT TEST MEASUREMENTS THEREOF BE MADE. IN THE CASE OF THE TYPE ACCEPTANCE GRANTED POLYTRONIC FOR ITS MODEL PR 50-H, THESE REQUIREMENTS WERE CONSIDERED SATISFIED BY THE PHOTOGRAPHS AND TEST MEASUREMENTS SUBMITTED BY INDUSTRIAL RADIO CORPORATION FOR ITS MODEL TM 50-H, TOGETHER WITH THE UNDERSTANDING OF THE FCC THAT POLYTRONIC'S MODEL PR 50-H WAS IDENTICAL TO THE IRC MODEL TM 50-H. AS YOU WERE ADVISED BY FCC LETTER OF OCTOBER 13, 1961, IT WAS THE UNDERSTANDING OF THE COMMISSION---

"* * * THAT THE POLYTRONIC RESEARCH, INCORPORATED, TYPE PR 50-H TRANSMITTER WAS IDENTICAL TO THE INDUSTRIAL RADIO CORPORATION TYPE TM 50-H TRANSMITTER. THIS WAS THE BASIS UPON WHICH TYPE ACCEPTANCE OF THE PR 50-H WAS ISSUED AND REMAINED IN EFFECT. STATEMENTS IN YOUR LETTER OF MAY 25, 1961, CONFIRM THAT THIS WAS YOUR REPRESENTATION AT THAT TIME.'

IT IS OUR CONCLUSION, AS STATED IN OUR DECISION OF OCTOBER 30, 1961, THAT NEITHER THE IRC MODEL TM 50-H NOR THE POLYTRONIC MODEL PR 50-H IS THE COMMERCIAL EQUIVALENT OF THE MOBILE TRANSMITTER RECEIVER CALLED FOR BY ITEM 1 OF THE INVITATION. THE INVITATION, IT MUST BE NOTED, DID NOT REQUIRE MERELY THAT BIDDERS HAVE A TYPE ACCEPTANCE UNDER WHICH IT MIGHT BE POSSIBLE, AFTER BID OPENING, TO PRODUCE COMMERCIAL EQUIVALENTS OF ITEMS 1 AND 2. IT REQUIRED THAT BIDDERS ACTUALLY HAVE IN EXISTENCE, PRIOR TO BID OPENING, COMMERCIAL EQUIVALENTS OF ITEMS 1 AND 2 WHICH HAD BEEN TYPE ACCEPTED.

AS STATED, IT WAS OUR UNDERSTANDING THAT THE BUILDING AND TESTING OF A MODEL WAS NOT NECESSARY FOR FCC TYPE ACCEPTANCE IN ALL CASES. IT WAS ON THE BASIS OF THIS UNDERSTANDING, THAT WE STATED OUR BELIEF IN THE DECISION OF SEPTEMBER 22, 1961, THAT THE RESPONSIVENESS OF YOUR BID DEPENDED UPON WHETHER THE TYPE ACCEPTANCE GRANTED FOR YOUR MODEL PR 50-H WAS BROAD ENOUGH TO PERMIT PRODUCTION OF COMMERCIAL EQUIVALENTS OF BOTH ITEMS 1 AND 2 OF THE INVITATION. IT IS NOW CLEAR, FROM EXAMINATION OF THE PERTINENT FCC RULES, THAT THE BUILDING AND TESTING OF A MODEL IS A PREREQUISITE TO FCC TYPE ACCEPTANCE, EVEN THOUGH SUCH MODEL NEED NOT HAVE BEEN BUILT BY THE APPLICANT HIMSELF WHERE TYPE ACCEPTANCE IS PREDICATED UPON THE DUPLICATION OF ANOTHER FIRM'S MODEL WHICH HAS ALREADY BEEN TYPE ACCEPTED.

YOU HAD NOT, PRIOR TO BID OPENING, BUILT AND RECEIVED TYPE ACCEPTANCE FOR A COMMERCIAL EQUIVALENT OF EITHER ITEM 1 OR 2 OF THE INVITATION. YOU HAD RECEIVED TYPE ACCEPTANCE FOR A COMMERCIAL EQUIVALENT OF ITEM 2, WHICH WAS BASED ON YOUR DUPLICATING THE IRC MODEL TM 50-H, AND SINCE THE INVITATION DID NOT SPECIFICALLY REQUIRE THAT SUCH TYPE ACCEPTANCE BE BASED ON A MODEL YOU HAD BUILT YOURSELF, EVEN THOUGH WE BELIEVE THIS WAS NAVY'S EXPECTATION, WE DO NOT QUESTION THE RESPONSIVENESS OF YOUR BID AS TO ITEM 2. HOWEVER, YOU HAD NOT YOURSELF BUILT A TYPE-ACCEPTED COMMERCIAL EQUIVALENT OF ITEM 1, NOR DID YOU HAVE TYPE ACCEPTANCE FOR YOUR OWN MODEL OF ANY OTHER FIRM'S COMMERCIAL EQUIVALENT OF ITEM 1. WE MUST, THEREFORE, AFFIRM OUR DECISION OF OCTOBER 30, 1961, THAT YOUR BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

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