B-147091, OCT. 30, 1961

B-147091, OCT. 30, 1961

TO MR. D. E. WEATHERLY, JR., BUREAU OF SHIPS, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1961, IN WHICH YOU ASK FOR CLARIFICATION OF OUR LETTER B-147091 OF SEPTEMBER 22, 1961, REGARDING THE RESPONSIVENESS OF THE BID SUBMITTED BY POLYTRONIC RESEARCH, INC., UNDER INVITATION FOR BIDS NO. 600-1019-61-S, SER 159 17.

THE QUESTION WHICH HAS BEEN RAISED CONCERNING THE RESPONSIVENESS OF THE POLYTRONIC BID INVOLVES THE BIDDER'S COMPLIANCE WITH THE PROVISION OF THE INVITATION THAT AWARD WILL BE MADE ONLY TO A BIDDER "* * * WHOSE COMMERCIAL EQUIVALENTS OF THE EQUIPMENTS DESCRIBED IN THIS INVITATION HAVE, PRIOR TO THE OPENING DATE OF BIDS, BEEN TYPE ACCEPTED BY THE FEDERAL COMMUNICATIONS COMMISSION * * *.'

AS INDICATED IN OUR LETTER OF SEPTEMBER 22, 1961, POLYTRONICS HAD FCC TYPE ACCEPTANCE FOR ONLY ONE MODEL (SO FAR AS HERE PERTINENT) PRIOR TO BID OPENING, AND WE STATED THAT THE RESPONSIVENESS OF ITS BID APPEARED TO DEPEND ON WHETHER THAT TYPE ACCEPTANCE WAS BROAD ENOUGH TO PERMIT THE PRODUCTION OF COMMERCIAL EQUIVALENTS OF BOTH THE MOBILE AND FIXED STATION TRANSMITTER RECEIVERS (ITEMS 1 AND 2, RESPECTIVELY) CALLED FOR BY THE INVITATION, A QUESTION WHICH WE FELT SHOULD BE ANSWERED BY THE FEDERAL COMMUNICATIONS COMMISSION.

WE HAVE SINCE ASCERTAINED THAT THE TYPE ACCEPTANCE GIVEN POLYTRONICS FOR ITS MODEL PR 50-H WAS BASED UPON TYPE ACCEPTANCE GIVEN THE INDUSTRIAL RADIO CORPORATION FOR ITS MODEL TM 50-H, ON THE UNDERSTANDING THAT POLYTRONICS HAD AN AGREEMENT WITH IRC FOR MANUFACTURE THEREOF UNDER ITS OWN NAME. THIS PARTICULAR MODEL IS A COMMERCIAL EQUIVALENT OF THE FIXED STATION TRANSMITTER RECEIVERS CALLED FOR UNDER ITEM 2 OF THE INVITATION. IN THE JUDGMENT OF BUSHIPS ENGINEERS, WITH WHICH WE AGREE, IT CANNOT BE CONSIDERED A COMMERCIAL EQUIVALENT OF THE MUCH SMALLER AND LIGHTER MOBILE TRANSMITTER RECEIVER CALLED FOR UNDER ITEM 1 OF THE INVITATION.

IT APPEARS PERTINENT TO STATE CERTAIN FACTS CONCERNING THE FCC TYPE ACCEPTANCE GIVEN POLYTRONIC'S MODEL PR 50-H. ON MAY 25, 1961, POLYTRONICS ADVISED FCC THAT IT HAD REQUESTED AND RECEIVED TYPE ACCEPTANCE ON ITS MODEL PR 50-H BASED ON A TYPE ACCEPTANCE PREVIOUSLY GIVEN INDUSTRIAL RADIO CORPORATION FOR ITS MODEL TM 50-H. POLYTRONICS ADVISED THAT, AS A RESULT OF ITS TYPE ACCEPTANCE, IT HAD STARTED MANUFACTURE OF ITS MODEL PR 50-H WHICH WAS IDENTICAL TO IRC MODEL TM 50-H. IT ADVISED FCC, HOWEVER, THAT IT HAD NOT BEEN ABLE TO SECURE FROM IRC ANYTHING OTHER THAN AN ORAL AGREEMENT COVERING ITS RIGHT TO MANUFACTURE THE MODEL COVERED BY THE PR 50-H AND TM 50-H TYPE ACCEPTANCES. POLYTRONICS REQUESTED, IN VIEW OF THE FACT THAT THE MODEL IT HAD STARTED MANUFACTURING WAS IDENTICAL TO THE UNIT SPECIFIED BY THE TYPE NUMBER PR 50-H, THAT THE DESIGNATION GRANTED BY FCC BE PERMITTED TO REMAIN ASSIGNED TO IT. THE LETTER FURTHER STATED THAT IT SUPERSEDED ALL PRIOR CORRESPONDENCE WITH REFERENCE TO THE TYPE ACCEPTANCE.

IN REPLY TO THIS LETTER FCC ADVISED POLYTRONICS ON JUNE 14, 1961, THAT THE PR 50-H TYPE ACCEPTANCE HAD BEEN GRANTED ON THE BASIS OF REPRESENTATIONS IN PREVIOUS POLYTRONIC LETTERS OF APRIL 10 AND APRIL 12, 1961, AND BECAUSE OF CERTAIN QUESTIONS RAISED BY ITS LETTER OF MAY 25, 1961, POLYTRONICS WAS REQUESTED TO SUBMIT CIRCUIT DIAGRAMS, PHOTOGRAPHS OF THE EQUIPMENT AND THE OTHER DESCRIPTIVE DATA REQUIRED BY SECTION 2.523 OF THE FCC RULES. A SIMILAR REQUEST WAS MADE BY FCC ON SEPTEMBER 28, 1961.

BY LETTER OF OCTOBER 5, 1961, POLYTRONICS FORWARDED TO FCC PHOTOGRAPHS, SCHEMATICS, CURVES AND DESCRIPTIVE INFORMATION ON ITS MODEL PR 50-H. THE MATERIAL SUBMITTED WAS CONSIDERED BY FCC AND POLYTRONICS WAS ADVISED BY LETTER DATED OCTOBER 13, 1961, THAT ITS MODEL PR 50-H DID NOT CONFORM TO THE TYPE ACCEPTANCE PREVIOUSLY GRANTED.

IT IS OUR UNDERSTANDING THAT, WHILE IT IS THEORETICALLY POSSIBLE TO MAKE A MOBILE TRANSMITTER RECEIVER WHICH WOULD BE A COMMERCIAL EQUIVALENT OF ITEM 1 UNDER THE PR 50-H TYPE ACCEPTANCE, IT WOULD BE DIFFICULT TO DO SO WITHIN PERMISSIBLE LIMITS UNDER FCC RULES CONCERNING DEVIATIONS UNDER TYPE ACCEPTANCES. IT IS OUR FURTHER UNDERSTANDING THAT A TRANSMITTER RECEIVER WHICH WAS AS RADICALLY REDUCED IN WEIGHT AND VOLUME FROM THE MODEL ON WHICH THE PR 50-H TYPE ACCEPTANCE WAS BASED AS WOULD BE NECESSARY FOR A COMMERCIAL EQUIVALENT OF ITEM 1 WOULD REQUIRE FURTHER EXAMINATION BY FCC BEFORE IT COULD PROPERLY BE GIVEN THE MODEL NUMBER PR 50-H.

IN THE LIGHT OF THE FOREGOING, IT IS OUR OPINION THAT POLYTRONICS DID NOT HAVE, PRIOR TO BID OPENING, FCC TYPE ACCEPTANCE OF A COMMERCIAL EQUIVALENT OF THE MOBILE TRANSMITTER RECEIVERS CALLED FOR UNDER ITEM 1 OF THE INVITATION. CONSEQUENTLY, ITS BID MUST BE CONSIDERED NONRESPONSIVE.

THIS RAISES THE QUESTION OF THE PROPRIETY OF THE INVITATION REQUIREMENT THAT BIDDERS HAVE FCC TYPE ACCEPTANCE FOR COMMERCIAL EQUIVALENTS. AS WAS STATED IN OUR LETTER OF SEPTEMBER 22, 1961, WE BELIEVE THIS REQUIREMENT IS SUBJECT TO CRITICISM. WE DO NOT BELIEVE IT FURNISHES AS MUCH ASSURANCE OF COMPLIANCE WITH THE ACTUAL NEEDS OF THE NAVY AS MAY HAVE BEEN ANTICIPATED AT THE TIME IT WAS ADOPTED SEVERAL YEARS AGO. HOWEVER, IT IS, IN OUR OPINION, OF SOME WORTH IN THE EVALUATION OF BIDS, AND WE THEREFORE DO NOT CONSIDER IT TO BE IMPROPER AS AN UNDULY RESTRICTIVE REQUIREMENT. IN THE CIRCUMSTANCES, WE DO NOT QUESTION THE VALIDITY OF THE AWARD MADE.