B-174080, OCT 22, 1971
Highlights
ADVISING THAT AS A RESULT OF THE PROTEST THE IFB WAS AMENDED TO INCLUDE PATENT INDEMNITY CLAUSE. HAS INDICATED IT WOULD NOT USE PROTESTANT'S SWITCH AND AS THERE ARE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED. THE REPORT INDICATES THAT AS A RESULT OF THE PROTEST THE INVITATION WAS AMENDED TO INCLUDE THE PATENT INDEMNITY CLAUSE PRESCRIBED BY PARAGRAPH 9-103 OF THE ARMED SERVICES PROCUREMENT REGULATION. THE CONTRACTING OFFICER STATES THAT THE COGNIZANT TECHNICAL ACTIVITY HAS CONFIRMED THE FACT THAT THERE ARE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED IN THE PERFORMANCE OF THE CONTRACT. NO LEGAL BASIS IS PRESENTED FOR OUR OFFICE TO OBJECT THE PROPOSED AWARD OF THE CONTRACT TO CAMBRIDGE.
B-174080, OCT 22, 1971
BID PROTEST - ALLEGED PATENT INFRINGEMENT CONCERNING PROTEST OF STRUTHERS ELECTRONIC CORPORATION AGAINST AWARD BY NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA., OF A CONTRACT TO CAMBRIDGE MARINE INDUSTRIES, INC. FOR ANTENNA SWITCH UNITS WHICH WOULD ALLEGEDLY INFRINGE THE PATENT HELD BY PROTESTANT. ADVISING THAT AS A RESULT OF THE PROTEST THE IFB WAS AMENDED TO INCLUDE PATENT INDEMNITY CLAUSE. HOWEVER, AS CAMBRIDGE, THE LOW BIDDER, HAS INDICATED IT WOULD NOT USE PROTESTANT'S SWITCH AND AS THERE ARE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED, NO LEGAL BASIS EXISTS TO SUSTAIN THE PROTEST.
TO STRUTHERS ELECTRONIC CORPORATION:
WE REFER TO YOUR LETTER OF SEPTEMBER 7, 1971, PROTESTING AGAINST THE ISSUANCE BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA, OF INVITATION FOR BIDS N00140-72-B-0037 ON THE GROUND THAT THE AWARD OF A CONTRACT TO ANY OTHER BIDDER FOR THE ANTENNA SWITCH UNITS REQUIRED WOULD INFRINGE A PATENT HELD BY YOUR FIRM ON A COMPONENT OF THE UNIT.
BY LETTER, WITH ENCLOSURES, DATED OCTOBER 6, 1971, THE DEPUTY COMMANDER, PROCUREMENT MANAGEMENT, NAVAL SUPPLY SYSTEMS COMMAND, FURNISHED OUR OFFICE THE CONTRACTING OFFICER'S REPORT ON THE PROTEST. THE REPORT INDICATES THAT AS A RESULT OF THE PROTEST THE INVITATION WAS AMENDED TO INCLUDE THE PATENT INDEMNITY CLAUSE PRESCRIBED BY PARAGRAPH 9-103 OF THE ARMED SERVICES PROCUREMENT REGULATION. ONLY TWO FIRMS RESPONDED TO THE AMENDED INVITATION: YOUR FIRM WITH A BID OF $30,950, AND CAMBRIDGE MARINE INDUSTRIES, INC., WITH A BID OF $20,850. BY LETTER DATED SEPTEMBER 22, 1971, CAMBRIDGE ADVISED THE CONTRACTING OFFICER THAT IT DOES NOT INTEND TO USE THE INTERNAL SWITCHING MECHANISM COVERED BY YOUR PATENT. MOREOVER, THE CONTRACTING OFFICER STATES THAT THE COGNIZANT TECHNICAL ACTIVITY HAS CONFIRMED THE FACT THAT THERE ARE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED IN THE PERFORMANCE OF THE CONTRACT.
IN VIEW OF THE FOREGOING, NO LEGAL BASIS IS PRESENTED FOR OUR OFFICE TO OBJECT THE PROPOSED AWARD OF THE CONTRACT TO CAMBRIDGE.