B-105342, OCTOBER 10, 1951, 31 COMP. GEN. 136

B-105342, OCTOBER 10, 1951, 31 COMP. GEN. 136

TYPEWRITERS - PURCHASE PRICE LIMITATION - FLEXOWRITERS AND JUSTOWRITERS AS CONSTITUTING TYPEWRITING MACHINES THE " FLEXOWRITER" (TAPE RECORDER-REPRODUCER) AND " JUSTOWRITER" (AUTOMATIC JUSTIFYING COMPOSING MACHINE) ARE TYPEWRITING MACHINES WITHIN THE PURVIEW OF THE GENERAL APPROPRIATION ACT, 1951, RESTRICTING THE PURCHASE PRICE THAT MAY BE PAID FOR TYPEWRITING MACHINES DURING THE FISCAL YEAR 1951.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 10, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1951, REQUESTING TO BE ADVISED WHETHER " FLEXOWRITERS" AND " JUSTOWRITERS," PRODUCTS OF THE COMMERCIAL CONTROLS CORPORATION, ARE ,TYPEWRITING MACHINES" WITHIN THE MEANING OF THE PRICE RESTRICTIONS IN THE " GENERAL APPROPRIATION ACT, 1951," 64 STAT. 595, 708.

THE PERTINENT PROVISIONS OF SAID ACT ARE AS FOLLOWS:

DURING THE CURRENT FISCAL YEAR, NO PART OF ANY MONEY APPROPRIATED IN THIS OR ANY OTHER ACT SHALL BE USED DURING ANY QUARTER OF SUCH FISCAL YEAR TO PURCHASE TYPEWRITING MACHINES (EXCEPT BOOKKEEPING AND BILLING MACHINES) AT A PRICE WHICH EXCEEDS 90 PERCENTUM OF THE LOWEST NET CASH PRICE, PLUS APPLICABLE FEDERAL EXCISE TAXES, ACCORDED THE MOST-FAVORED CUSTOMER (OTHER THAN THE GOVERNMENT, THE AMERICAN NATIONAL RED CROSS, AND THE PURCHASERS OF TYPEWRITING MACHINES FOR EDUCATIONAL PURPOSES ONLY) OF THE MANUFACTURER OF SUCH MACHINES DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING SUCH QUARTER.

NO PART OF ANY MONEY APPROPRIATED BY THIS OR ANY OTHER ACT FOR ANY AGENCY OF THE EXECUTIVE BRANCH OF THE GOVERNMENT (WHICH SHALL INCLUDE ALL DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS) SHALL BE USED DURING THE CURRENT FISCAL YEAR FOR THE PURCHASE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OF ANY TYPEWRITING MACHINES (EXCEPT TYPEWRITING MACHINES FOR VETERANS UNDER PUBLIC LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION) UNLESS THE ADMINISTRATOR OF GENERAL SERVICES CERTIFIES THAT HE IS UNABLE TO FURNISH SUCH AGENCY WITH SUITABLE TYPEWRITING MACHINES OUT OF STOCK ON HAND. * *

THE " INDEPENDENT OFFICES APPROPRIATION ACT, 1952," PUBLIC LAW 137, APPROVED AUGUST 31, 1951, 65 STAT. 268, CONTAINS A SIMILAR RESTRICTION AS TO PRICE. ALSO, THE TERM "TYPEWRITING MACHINE" AS USED IN THE ABOVE QUOTED STATUTE IS SIMILAR TO THE LANGUAGE CONTAINED IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949, 62 STAT. 415, 416, WHICH WAS CONSIDERED IN 28 COMP. GEN. 146, WHEREIN IT WAS HELD QUOTING FROM THE SYLLABUS, AS FOLLOWS:

THE PURCHASE, WHEN OTHERWISE PROPER, OF SPECIAL PURPOSE MACHINES SUCH AS THE " PROPORTIONAL SPACING MACHINE," THE " REKTOWRITER," AND THE " VARITYPER" IS SUBJECT TO THE RESTRICTION IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1949, THAT TYPEWRITING MACHINES SHALL NOT BE PURCHASED DURING ANY QUARTER OF THE FISCAL YEAR 1949 AT A PRICE IN EXCESS OF 90 PERCENT OF THE LOWEST NET CASH PRICE, PLUS APPLICABLE FEDERAL EXCISE TAXES, ACCORDED THE MANUFACTURER'S MOST FAVORED CUSTOMER (OTHER THAN THE UNITED STATES AND PURCHASERS FOR EDUCATIONAL INSTRUCTION PURPOSES) DURING THE 6-MONTH PERIOD PRECEDING SUCH QUARTER.

THE ABOVE DECISION WAS RECONSIDERED IN DECISION OF DECEMBER 15, 1948, B- 78978, WHEREIN THE DEFINITION OF "TYPEWRITING MACHINE" WAS CONSIDERED AT LENGTH AND IT WAS FOUND NECESSARY TO ADHERE TO THE ORIGINAL DECISION FOR THE REASONS THEREIN STATED.

IN THE LETTER OF JUNE 21, 1951, FROM THE COMMERCIAL CONTROLS CORPORATION, REFERRED TO IN YOUR LETTER, THERE IS SET FORTH THE FOLLOWING INFORMATION CONCERNING THE FUNCTIONS PERFORMED BY THE MACHINES HERE IN QUESTION:

FLEXOWRITER--- TAPE RECORDER-1REPRODUCER. THE FLEXOWRITER TAPE RECORDER- 1REPRODUCER IS A COMPLETELY AUTOMATIC UNIT WHICH COMBINES FACILITIES FOR TAPE PERFORATING AND MULTIPLE COPY REPRODUCTION. IT IS SPECIFICALLY ENGINEERED FOR CONTINUOUS HIGH-SPEED TAPE PERFORATING, TAPE REPRODUCTION AND AUTOMATIC MULTIPLE REPRODUCTION. IN ADDITION TO INDIVIDUALLY PREPARED COPY WRITING, THE FLEXOWRITER IS ESPECIALLY ADAPTED FOR THE PREPARATION OF SINGLE MASTER COPY FOR THE REPRODUCTION OF MANUALS, BROCHURES, BOOKS AND THE LIKE. IT REPRODUCES FROM TAPE, ERRORLESS STENCIL MASTERS, METAL PLATES AND PAPER PLATES FOR DUPLICATING AND PRINTING MACHINE REPRODUCTION. IN ADDITION, THE FLEXOWRITER IS ESPECIALLY ADAPTED TO THE PREPARATION OF CODED TAPE ADDRESS LISTS. TAPE PREPARATION ON THE FLEXOWRITER IS ALSO ADAPTED TO THE OPERATION OF ADDRESSING MACHINES AND COMMUNICATIONS MACHINES.

JUSTOWRITER--- AUTOMATIC JUSTIFYING COMPOSING MACHINE. THE JUSTOWRITER IS AN AUTOMATIC JUSTIFYING COMPOSING MACHINE SPECIFICALLY ENGINEERED TO COMPOSE, IN A SINGLE TYPE FACE, COMPOSITION WITH JUSTIFIED LEFT AND RIGHT- HAND MARGINS. THE JUSTOWRITER CONSISTS OF TWO UNITS--- ONE A TAPE RECORDER WHICH WHEN OPERATED BY THE COMPOSITOR, PERFORATES A TAPE IN CODES. THE SECOND UNIT, THE REPRODUCER, ACCEPTS THIS CODED TAPE, READS IT AND PRODUCES TYPESET MATERIAL WITH AUTOMATICALLY JUSTIFIED RIGHT- AND LEFT -HAND MARGINS AT HIGH SPEED. JUSTIFIED COMPOSITION PRODUCED ON THE JUSTOWRITER--- AUTOMATIC COMPOSING MACHINE--- IS PRODUCED AT A RATE OF 15,000 EMS PER HOUR--- THE EQUIVALENT OF 100 (5 LETTER) WORDS PER MINUTE. JUSTOWRITERS ARE AVAILABLE EQUIPPED WITH ANY ONE OF SIX SPECIFICALLY DESIGNED TYPE FACES EACH APPROXIMATELY 12 POINT IN SIZE, BUT VARYING IN WIDTH OF DESIGN AND CHARACTERISTICS. JUSTOWRITERS PRODUCE HIGH SPEED COMPOSITION FOR LETTER PRESS OR OFFSET PRINTING IN PAGE, GALLERY OR CONTINUOUS ROLL FORM FOR THE PRINTING PRODUCTION OF BOOKS, NEWSPAPERS, MANUALS, AND A HOST OF OTHER PRINTED MATERIAL.

THE CORPORATION TAKES THE POSITION THAT THE MACHINES DO NOT FALL WITHIN THE TYPEWRITING EQUIPMENT CLASSIFICATION; THAT THEY ARE NOT TYPEWRITING MACHINES WITHIN THE MEANING OF STATUTORY RESTRICTIONS; THAT THEY WERE DEVELOPED FOR AUTOMATIC REPRODUCTION OF MULTIPLE ORIGINAL COPIES AND FOR AUTOMATIC COMPOSITION OF PRINTED MATERIAL FOR REPRODUCTION BY OFF-SET PRINTING; AND THAT THEY WERE NOT DEVELOPED WITH ANY INTENTION OF ENTERING COMPETITIVELY IN THE TYPEWRITER FIELD.

IN THE FOLDER CONCERNING THE " FLEXOWRITER," PREPARED BY THE CORPORATION AND SUBMITTED WITH YOUR LETTER, IT IS STATED THAT THE MACHINE REQUIRES NO SPECIAL OPERATING TRAINING; THAT IT IS SO EASY AND SO SIMPLE ANY AVERAGE TYPIST GRASPS ITS FUNDAMENTALS ALMOST IMMEDIATELY AND THAT AN OPERATOR CAN PRODUCE UP TO 600 INDIVIDUALLY TYPEWRITTEN LETTERS IN ONE DAY. FURTHER, IT IS STATED THAT THE MACHINE PROVIDES AN ON-THE-SPOT METHOD FOR PERFORATING MASTER TAPES FOR IMMEDIATE MULTIPLE COPY PRODUCTION; THAT IT AUTOMATICALLY REPERFORATES DUPLICATE MASTER TYPES WHEN REQUIRED FOR OTHER " FLEXOWRITERS" AT THE SAME TIME MULTIPLE COPIES ARE AUTOMATICALLY PRODUCED; THAT ITS AUTOMATIC POWER TYPING MECHANISM ASSURES THE BEST POSSIBLE FINISHED COPY; AND THAT IT PERMITS THE OPERATOR TO ELIMINATE HER TYPING ERRORS IN THE PERFORATED TAPE. ALSO, IT IS STATED THAT A CONTROL SWITCH IS PROVIDED FOR TURNING THE PUNCH ON AND OFF SO THAT THE " FLEXOWRITER" CAN, IF DESIRED, BE USED TO TYPE WITHOUT PERFORATING TAPE.

IN THE FOLDER CONCERNING THE " JUSTOWRITER," IT IS STATED THAT THE MACHINE CONSISTS OF TWO COMPANION UNITS--- A RECORDER AND A REPRODUCER; THAT EACH MACHINE IS BASICALLY A PROPORTIONAL SPACING ELECTRICALLY POWERED MACHINE WITH A STANDARD TYPEWRITER KEYBOARD WHICH CAN BE OPERATED BY ANY TYPIST; THAT THE RECORDER AUTOMATICALLY PERFORATES IN CODE ON A NARROW TAPE AS THE COPY IS TYPED BY THE OPERATOR; THAT THE COMPLETED TAPE IS THEN INSERTED IN THE REPRODUCTION UNIT WHICH INTERPRETS THE CODE AND AUTOMATICALLY TYPES THE COPY IN JUSTIFIED LINES; AND THAT THIS PRODUCES CLEAR CORRECTLY SPACED ERRORLESS TEXT IN PAGE GALLERY OR CONTINUOUS ROLL FORMS READY FOR OFF-SET OR DUPLICATOR REPRODUCTION.

WHILE AS INDICATED ABOVE, THE CORPORATION TAKES THE POSITION THAT THE SPECIAL PURPOSE MACHINES DO NOT FALL IN THE TYPEWRITER EQUIPMENT CLASSIFICATION, INFORMAL INQUIRY FROM THE PATENT OFFICE ELICITS THE INFORMATION THAT IN THE APPLICATION FOR TRADE MARK BY THE COMMERCIAL CONTROLS CORPORATION FILED ON MARCH 7, 1950, FOR THE " JUSTOWRITER" (SERIAL NO. 593529) THE APPLICANT DESCRIBED THE MACHINE AS AUTOMATICALLY CONTROLLED JUSTIFYING TYPEWRITERS AND MACHINES FOR PRODUCING CONTROL MEDIUM THEREFOR. IN ANOTHER APPLICATION FOR TRADE MARK FILED ON THE SAME DATE (SERIAL NO. 593530) THE CORPORATION DESCRIBED THE " FLEXOWRITER" AS POWER OPERATED TYPEWRITERS HAVING MEANS FOR PRODUCING A CONTROL TAPE AND BEING ADAPTED FOR AUTOMATIC OPERATION UNDER CONTROL OF SUCH TAPE.

IN VIEW OF THE FOREGOING AND THE LEGISLATIVE HISTORY OF THE SIMILAR STATUTORY PROVISIONS CONSIDERED IN 28 COMP. GEN. 146, AND THE SAID DECISION OF DECEMBER 15, 1948, REVEALING A CONGRESSIONAL INTENT TO RESTRICT THE PURCHASE PRICE THAT MAY BE PAID FOR TYPEWRITING MACHINES (EXCEPT BOOKKEEPING AND BILLING MACHINES) REGARDLESS OF THE KINDS OR TYPES OR THE PURPOSE FOR WHICH THEY MAY BE USED, IT MUST BE HELD THAT THE " FLEXOWRITER" AND " JUSTOWRITER" ARE TYPEWRITING MACHINES WITHIN THE MEANING OF THE TYPEWRITING MACHINE PRICE RESTRICTION IN THE GENERAL APPROPRIATION ACT, 1951.