B-152684, FEB. 5, 1965, 44 COMP. GEN. 451

B-152684, FEB. 5, 1965, 44 COMP. GEN. 451

CONTRACTS - DATA, RIGHTS, ETC. - USE BY GOVERNMENT - RESEARCH AND DEVELOPMENT V. SUPPLY CONTRACTS THE FACT THAT ENGINEERING DATA DISCLOSING THE DESIGN AND SPECIFICATIONS PRIVATELY DEVELOPED BY A CONTRACTOR AT ITS OWN EXPENSE WAS FURNISHED TO THE GOVERNMENT UNDER A NEGOTIATED SUPPLY CONTRACT RATHER THAN UNDER A RESEARCH AND DEVELOPMENT (R AND D) CONTRACT, WHERE THE GOVERNMENT PAYS FOR THE DEVELOPMENT OF THE END PRODUCT, DOES NOT PRECLUDE THE USE OF THE DATA FOR COMPETITIVE BIDDING, THE RESTRICTIVE MARKINGS ON THE DATA DELIVERED WITH THE BIDDER'S PROPOSAL HAVING BEEN SUBMITTED FOR THE SOLE PURPOSE OF PREPARING THE REQUEST FOR PROPOSALS, SUBSEQUENT DATA FURNISHED DURING THE NEGOTIATION OF THE CONTRACT NOT BEARING THE LEGEND, AND THE "REPRODUCTION AND USE OF TECHNICAL ATA" CLAUSE OF THE CONTRACT AUTHORIZING THE GOVERNMENT TO REPRODUCE, USE AND DISCLOSE THE DATA, A CLAUSE CONSTRUED IN THE "PIKE MEMORANDUM" AS ESTABLISHING THE GOVERNMENT'S RIGHT IN DATA FOR GOVERNMENTAL PURPOSES, INCLUDING COMPETITIVE PROCUREMENT, UNLESS SPECIFICALLY RESTRICTED, APPLYING TO SUPPLY AS WELL AS R.AND D. CONTRACTS; THEREFORE, UNDER THE CONTRACT CONSIDERED BY THE PARTIES TO BE MORE THAN THE USUAL SUPPLY CONTRACT, THE GOVERNMENT IS NOT RESTRICTED FROM USING THE DATA FURNISHED.

TO F. TROWBRIDGE VOM BAUR, FEBRUARY 5, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 14, 1963, AND THE SUPPLEMENTAL CORRESPONDENCE SUBMITTED BY YOU PROTESTING ON BEHALF OF SPACE CORPORATION, DALLAS, TEXAS, AGAINST THE USE OF JET ENGINE TEST STAND ENGINEERING DATA FOR COMPETITIVE PROCUREMENT PURPOSES UNDER INVITATION FOR BIDS NO. 41-608-63-400 (IFB-400) ISSUED MARCH 5, 1963, BY KELLY AIR FORCE BASE. THE GROUND OF THE PROTEST IS THAT SUCH DATA WAS ACQUIRED FROM SPACE CORPORATION ON A RESTRICTED BASIS UNDER CONTRACT NO. AF 14 (604/-5353 (HEREINAFTER REFERRED TO AS CONTRACT 5353) DATED NOVEMBER 20, 1956, AND THEREFORE MAY NOT BE USED FOR COMPETITIVE PROCUREMENT PURPOSES. PENDING CONSIDERATION AND DETERMINATION OF THIS PROTEST THE REQUIREMENTS OF IFB- 400 HAVE BEEN OTHERWISE SATISFIED AND THE INVITATION HAS BEEN WITHDRAWN. A DETERMINATION OF THE MATTER HAS BEEN REQUESTED, HOWEVER, AS ADDITIONAL PROCUREMENTS ARE ANTICIPATED WHICH MAY REQUIRE USE OF THE ENGINEERING DATA IN QUESTION. THAT THE JET ENGINE TEST STAND WAS DEVELOPED AND DESIGNED BY SPACE CORPORATION ON ITS OWN INITIATIVE AND AT ITS OWN EXPENSE APPARENTLY IS NOT CONTESTED, BUT OPPOSING POSITIONS HAVE BEEN VIGOROUSLY MAINTAINED REGARDING THE DATA RIGHTS CONVEYED BY CONTRACT 5353 AND THE MATTER HAS BEEN THE SUBJECT OF EXTENDED CONSIDERATION AND DISCUSSIONS WITH REPRESENTATIVES OF THE PROCUREMENT AGENCY AS WELL AS OF YOUR OFFICE.

IT IS THE POSITION OF SPACE CORPORATION, AS STATED IN REPLY MEMORANDUM SUBMITTED MARCH 6, 1964, THAT THE DATA AND DRAWINGS IN QUESTION WERE FURNISHED PURSUANT TO A CONFIDENTIAL RELATIONSHIP CREATED BY THE GOVERNMENT'S ACCEPTANCE OF A CONFIDENTIAL PROPOSAL BY THE CORPORATION DATED SEPTEMBER 5, 1956, DISCLOSING THE DESIGN AND SPECIFICATIONS OF A NEW TYPE "UNIVERSAL TEST STAND AND CONVERSION KIT" DEVELOPED BY THE CORPORATION FOR TESTING JET ENGINES; THAT THIS CONFIDENTIAL RELATIONSHIP WAS EXPRESSLY CONFIRMED BY AIR FORCE REPRESENTATIONS TO THE CORPORATION DURING THE ENSUING PROCUREMENT NEGOTIATIONS, AND THAT THE VERY TERMS OF THE RESULTING CONTRACT ITSELF ,EXPLICITLY RECOGNIZED THE AIR FORCE'S CONFIDENTIAL DUTY AND FURTHER PROVIDED BY NECESSARY IMPLICATION THAT THE ENGINEERING DATA TO BE FURNISHED UNDER THE CONTRACT WOULD NOT BE USED FOR COMPETITIVE PROCUREMENT.' IT IS CONTENDED THAT AIR FORCE DISCLOSURE AND USE OF SUCH DATA FOR COMPETITIVE PROCUREMENT PURPOSES WOULD CONSTITUTE A BREACH OF BOTH THE CONFIDENTIAL RELATIONSHIP AND THE PROVISIONS OF CONTRACT 5353 AND THEREFORE NONE OF THE ENGINEERING DATA FURNISHED UNDER THE CORPORATION'S TECHNICAL PROPOSAL OF SEPTEMBER 5, 1956, AND CONTRACT 5353 SHOULD BE USED FOR COMPETITIVE PROCUREMENT WITHOUT THE WRITTEN CONSENT OF THE CORPORATION.

IN SUPPORT OF THIS POSITION, YOU ALLEGE IN YOUR LETTER OF DECEMBER 14, 1964, THAT CONTRACT 5353 WAS A SUPPLY CONTRACT; THAT A SUPPLY CONTRACT IS ESSENTIALLY DIFFERENT IN INTENT AND PURPOSE FROM A RESEARCH AND DEVELOPMENT (R AND D) CONTRACT AND THEREFORE THE INTERPRETATION SET FORTH IN THE ,PIKE MEMORANDUM" OF THE "REPRODUCTION AND USE OF TECHNICAL DATA" CLAUSE WHEN USED IN A RESEARCH AND DEVELOPMENT CONTRACT, RELIED UPON BY THE AIR FORCE, IS NOT CONTROLLING HERE. WE AGREE WITH YOUR STATEMENT THAT:

WHEN THE GOVERNMENT PROCURES AND PAYS FOR THE DEVELOPMENT OF AN END PRODUCT UNDER A RESEARCH AND DEVELOPMENT CONTRACT, THE GOVERNMENT SHOULD BE REGARDED AS THE OWNER OF WHATEVER TRADE SECRETS OR PROPRIETARY DATA CONCERNING THE DESIGN OR MANUFACTURE OF SUCH END PRODUCT WHICH COMES INTO BEING IN THE COURSE OF SUCH DEVELOPMENT, UNLESS THE CONTRACT EXPRESSLY PROVIDES OTHERWISE. * * *

THE GOVERNMENT'S POSITION, YOU EXPLAIN, IS ANALOGOUS UNDER SUCH CIRCUMSTANCES "TO THE RIGHT EMPLOYER TO THE FULL OWNERSHIP OF INVENTIONS MADE BY HIS EMPLOYEE HIRED TO INVENT IN THE COURSE OF THAT EMPLOYMENT" AS SUPPORTED BY THE STATEMENT "A TERM OF THE AGREEMENT NECESSARILY IS THAT WHAT HE IS PAID TO PRODUCE BELONGS TO HIS PAYMASTER" MADE BY THE SUPREME COURT IN UNITED STATES V. DUBILIER CONDENSER CORP., 289 U.S. 178, 187 (1933), CITING STANDARD PARTS CO. V. PECK, 264 U.S. 52 (1924), 32 A.L.R. 1033. YOU ALSO REFER TO THE DISCUSSION OF STANDARD PARTS CO. IN THE DISSENTING OPINION OF MR. JUSTICE STONE IN DUBILIER CONDENSER CORP., SUPRA, AT 289 U.S. 216, AND YOU CONCLUDE:

* * * ACCORDINGLY, IN THIS CONTEXT, THE TECHNICAL DATA CLAUSE SHOULD NOT FORECLOSE USE OF DATA PRODUCED UNDER SUCH AN R.AND D. CONTRACT FOR COMPETITIVE PROCUREMENT OF THE END PRODUCT DEVELOPED UNDER THE CONTRACT, PARTICULARLY WHEN THE GOVERNMENT ALSO WOULD ACQUIRE AT LEAST A ROYALTY- FREE LICENSE TO USE, FOR COMPETITIVE PROCUREMENT, ANY DATA DEVELOPED IN CONNECTION WITH ANY INVENTION, IMPROVEMENT OR DISCOVERY CONCEIVED OR FIRST REDUCED TO PRACTICE IN THE PERFORMANCE OF ANY EXPERIMENTAL, DEVELOPMENT, OR RESEARCH WORK UNDER SUCH A CONTRACT. * * * YOU CONTEND "THIS TENDS TO SHOW THAT, NOTWITHSTANDING THE PRIVISO, "GOVERNMENTAL PURPOSES" AS USED IN THE TECHNICAL DATA CLAUSE IN AN R.AND D. CONTRACT WOULD EMBRACE USE OF DATA FOR COMPETITIVE PROCUREMENT PURPOSES" BUT THAT "NONE OF THESE CONSIDERATIONS ORDINARILY IS APPLICABLE TO SUPPLY CONTRACTS.'

YOU URGE THAT A RADICALLY DIFFERENT QUESTION IS PRESENTED WHERE, AS HERE, A SUPPLY CONTRACT IS INVOLVED AND THE GOVERNMENT,"HAVING NEITHER PAID FOR THE DEVELOPMENT OF THE END PRODUCT AND THE RELATED TRADE SECRETS AND PROPRIETARY DATA, NOR HAVING EXPRESSLY PURCHASED UNLIMITED RIGHTS TO THE CONTRACTOR'S TRADE SECRETS AND PROPRIETARY DATA IN SUCH PRIVATELY DEVELOPED END PRODUCT, RELIES ON THE TECHNICAL DATA CLAUSE INCLUDED IN SUCH A CONTRACT AND ON THE PIKE MEMORANDUM FOR THE PROPOSITION THAT THE GOVERNMENT MAY USE THE DATA FURNISHED UNDER THE CONTRACT TO REPRODUCE THE END PRODUCT BY COMPETITIVE PROCUREMENT.' YOU CONTEND THAT FIRST," THIS IS A CONTRADICTION IN MS," SECOND,"IN THIS CONTEXT, THE AMBIGUITIES OF THE TECHNICAL DATA CLAUSE SHOULD BE CONSTRUED AGAINST THE GOVERNMENT AS THE AUTHOR OF THE CLAUSE," CITING W. H. EDWARDS ENGINEERING CORP. V. UNITED STATES, CT.CL.NO. 218-59, APRIL 5, 1963, AND THIRD,"THE GOVERNMENT CANNOT ACQUIRE THE RIGHTS CLAIMED UNLESS IN A GIVEN CASE THE EVIDENCE PLAINLY SHOWS THAT THE GOVERNMENT INTENDED TO PROCURE UNLIMITED RIGHTS IN THE DATA THROUGH THE INCLUSION OF THIS CLAUSE IN A SUPPLY CONTRACT, AND CLEARLY COMMUNICATED SUCH INTENTION TO THE CONTRACTOR WHILE THE CONTRACT WAS BEING EGOTIATED" CITING 41 COMP. GEN. 148, 159 (1961).

YOU URGE FURTHER IN YOUR LETTER OF DECEMBER 14, 1964, THAT "THE AMBIGUITIES OF THE TECHNICAL DATA CLAUSE INCLUDED IN A SUPPLY CONTRACT AT THE VERY LEAST MAKE IT NECESSARY TO EXAMINE THE CONTRACT AS A WHOLE AND THE SURROUNDING CIRCUMSTANCES" AND THAT IN THE INSTANT CASE SUCH AN EXAMINATION SHOWS WITHOUT CONTRADICTION THE FOLLOWING SIGNIFICANT FACTS:

1. THE END PRODUCT (THE UNIVERSAL TEST STANDS) WAS DEVELOPED SOLELY AT THE EXPENSE OF SPACE CORPORATION.

2. IN THE NEGOTIATION OF CONTRACT 5353 THERE WAS NO EXPRESSION OF PURPOSE BY THE GOVERNMENT'S REPRESENTATIVES TO PURCHASE OR ACQUIRE UNLIMITED RIGHTS IN SPACE CORPORATION'S TRADE SECRETS AND PROPRIETARY DATA RELATING TO THE TEST STANDS.

3. THE CONTRACT PRICE DID NOT INCLUDE A PENNY FOR THE PURCHASE OF ANY SUCH RIGHTS NOR DID IT REIMBURSE SPACE CORPORATION FOR ITS COSTS OF DEVELOPING THE TEST STANDS.

4. THE REDETERMINED CONTRACT PRICE OF APPROXIMATELY $60,000 FOR THE ENGINEERING DATA PROVIDED UNDER THE CONTRACT (CONTRACT ITEMS 19 AND 20) DID NOT EVEN COVER THE CONTRACTOR'S DIRECT LABOR COSTS (13,278 HOURS FOR DRAFTING SERVICES AND 10,625 HOURS FOR ENGINEERING LABOR) EXCEEDING $76,000 OF PRODUCING THE DATA, THAT IS, OF PREPARING APPROXIMATELY 200 DETAILED DESIGN DRAWINGS OF THE TEST STANDS OF REQUIRED BY THE CONTRACT. SUCH FIGURE OF $60,000 DID NOT INCLUDE A PENNY FOR THE PURCHASE OR ACQUISITION OF THE CONTRACTOR'S TRADE SECRETS OR PROPRIETARY DATA IN THE TEST STANDS OR FOR REIMBURSEMENT OF THE CONTRACTOR'S R AND D COSTS IN DEVELOPING THE TEST STANDS.

5. THE CONTRACT INCORPORATED BY REFERENCE THE CONFIDENTIAL RELATIONSHIP OF THE PARTIES, AND SPECIFICALLY INCORPORATED SPACE CORPORATION'S RESTRICTIVE LEGEND ON THE BASIC DRAWINGS SETTING FORTH THE TRADE SECRETS, PROHIBITING THEIR USE FOR COMPETITIVE PROCUREMENT.

6. THE CONTRACT SPECIFICATIONS SET FORTH INTENDED USES OF THE DATA EXCLUSIVE OF USE FOR COMPETITIVE PROCUREMENT. THESE FACTORS, YOU CONTEND, WHOLLY DIFFERENTIATE THE INSTANT CASE "WITH ITS SUPPLY TYPE CONTRACT AND ITS SPECIAL AND PECULIAR FACTS, FROM THE R.AND D. CONTRACT SITUATION TO WHICH THE PIKE MEMORANDUM WAS SOLELY DESIGNED TO APPLY.' AND, IN CONCLUSION, YOU STATE THAT:

* * * IT WOULD BE GROSSLY UNFAIR FOR THE GOVERNMENT NOW, BY SUBTLETY AND INDIRECTION, AND AS AN AFTERTHOUGHT THAT THE GOVERNMENT WOULD NOT PAY A PENNY FOR THEM, AND AFTER SOME FIVE YEARS OF ACQUIESCENCE BY THE GOVERNMENT IN THE CONTRACTOR'S OPENLY STATED POSITION THAT THEY WERE NOT PURCHASED, TO BE PERMITTED TO CLAIM THAT THE TRADE SECRETS WERE OBTAINED BY A CLAUSE WHICH, AS INTERPRETED BY THE PIKE MEMORANDUM, WAS NEVER INTENDED TO APPLY TO OUR SITUATION OR ANYTHING RESEMBLING IT, BUT ONLY TO THE VERY DIFFERENT SITUATION OF R AND D CONTRACTS.

ON THE OTHER HAND, THE DEPARTMENT OF THE AIR FORCE ASSERTS THAT AT NO TIME DURING THE DISCUSSIONS IN SEPTEMBER 1956 DID THE CORPORATION MANIFEST ANY INTENTION TO LIMIT THE RIGHTS OF THE GOVERNMENT IN THE DATA TO BE PROCURED UNDER THE CONTRACT; THAT THE RESULTING REQUEST FOR PROPOSALS CALLED FOR THE DELIVERY OF ENGINEERING DATA AND DRAWINGS AS A PRICED CONTRACT LINE ITEM WITHOUT ANY EXPRESS LIMITATION ON THE USE THEREOF; ALSO, THAT THE REQUEST FOR PROPOSALS (RFP) CONTAINED THE CLAUSES THEN PRESCRIBED IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) FOR THE ACQUISITION OF UNLIMITED RIGHTS IN DATA, I.E., CLAUSE 46 OF THE GENERAL PROVISIONS GRANTING TO THE GOVERNMENT "THE RIGHT TO REPRODUCE, USE, AND DISCLOSE FOR GOVERNMENTAL PURPOSES" ALL OF THE DRAWINGS AND DATA SPECIFIED TO BE DELIVERED UNDER THE CONTRACT, TOGETHER WITH THE STANDARD PATENT RIGHTS CLAUSE PROVIDING FOR THE ACQUISITION OF A ROYALTY-FREE LICENSE TO PRACTICE ANY INVENTION CONCEIVED OR REDUCED TO PRACTICE IN THE PERFORMANCE OF ANY EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK CALLED FOR OR REQUIRED UNDER THE CONTRACT, AND THAT "IT WAS THE INTENTION OF THE AIR FORCE PERSONNEL NEGOTIATING THE CONTRACT * * *, AND THE OPINION OF ALL AIR FORCE PERSONNEL SUBSEQUENTLY CONCERNED WITH THIS MATTER THAT THE AIR FORCE PURCHASED THE DRAWINGS AND ALL RIGHTS AND INTERESTS PERTAINING THERETO.' THE DEPARTMENT'S POSITION IS THAT THE RIGHT TO REPRODUCE AND USE THE DRAWINGS IN QUESTION WAS ACQUIRED UNDER THE PROVISIONS OF CLAUSE 46 OF THE CONTRACT "FOR ANY VALID GOVERNMENTAL PURPOSE WHATSOEVER" AND THEREFORE THE USE OF THE DRAWINGS AND ENGINEERING DATA IN A COMPETITIVE PROCUREMENT "IS PROPER AND LAWFUL AND IS NOT IN VIOLATION OF ANY LEGAL INTEREST OR RIGHT OF SPACE CORPORATION.'

IT IS POINTED OUT IN THE AIR FORCE LETTER OF NOVEMBER 18, 1963, THAT "ALTHOUGH THE FIGURES SUBMITTED BY THE CORPORATION AS PART OF EXHIBITS ODMSB-9-8-1 AND 2 IN SUPPORT OF ITS UNSOLICITED PROPOSAL BORE A RESTRICTIVE LEGEND, THE CORPORATION DID NOT PLACE ANY RESTRICTIVE MARKING ON THE DRAWINGS DELIVERED PURSUANT TO ITEMS 19 AND 20 OF THE CONTRACT" AND "SIMILARLY, REVISIONS TO THESE DRAWINGS, SUBSEQUENTLY PROVIDED AT AIR FORCE REQUEST WERE DEVOID OF ANY RESTRICTIVE MARKING.' AND IN ITS LETTER OF JUNE 3, 1964, IT IS STATED IN PART AS FOLLOWS:

* * * THE AIR FORCE DOES NOT DENY THAT IT RECEIVED CONTRACTOR'S PROPOSAL OF SEPTEMBER 5, 1956, AND THAT THE FIGURES ACCOMPANYING THIS PROPOSAL CONTAINED RESTRICTIONS UPON THEIR USE. THESE FIGURES WERE STATED TO BE "THE PROPERTY OF SHAW AND ESTES" AND WERE THEN DELIVERED TO THE AIR FORCE ON A CONFIDENTIAL BASIS--- A NOT UNCOMMON PRACTICE--- INITIALLY FOR THE SOLE PURPOSE OF EVALUATING THE CONTRACTOR'S PROPOSAL, AND IF THE PROPOSAL WAS CONSIDERED ACCEPTABLE, FOR THE ADDITIONAL PURPOSE OF PREPARING AN RFP TO THE CONTRACTOR. THIS POLICY OF PROTECTING INFORMATION SUBMITTED AS PART OF A CONTRACTOR'S PROPOSAL IS PRESENTLY SET FORTH IN ASPR 3-506.1, AND 9-202.6 AND IS CONSIDERED A NECESSARY PROCEDURE IN THE PROCUREMENT PROCESS.

CONSIDERABLE EMPHASIS IS PLACED BY THE PROCURING AGENCY ON THE THEORY ADOPTED BY THE "PIKE MEMORANDUM" IN INTERPRETING THE DATA CLAUSE OF THE CONTRACT THERE INVOLVED, WHICH IS RELATED IN A LETTER OF NOVEMBER 5, 1964, FROM THE OFFICE OF GENERAL COUNSEL, DEPARTMENT OF DEFENSE, AS OLLOWS:

IN RESPONSE TO A REQUEST FROM THE ARMY, ASSISTANT SECRETARY OF DEFENSE THOMAS PIKE ISSUED AN INTERPRETATION OF THE "REPRODUCTION AND USE OF TECHNICAL DATA" CLAUSE IN JULY 13, 1955. IN ESSENCE, THE PIKE MEMO STATED:

(1) THAT THE GOVERNMENT ACQUIRED THE RIGHT TO REPRODUCE, USE, AND DISCLOSE DATA REQUIRED TO BE DELIVERED UNDER THE CONTRACT, AND THUS SUBJECT TO THE CLAUSE, FOR GOVERNMENTAL PURPOSES, (2) THAT GOVERNMENTAL PURPOSES INCLUDED COMPETITIVE REPROCUREMENT, AND

(3) THAT THE CLAUSE ITSELF DOES NOT AFFECT IN ANY WAY THE GOVERNMENT'S OTHERWISE ESTABLISHED RIGHT TO REPRODUCE THE ITEM PROCURED. THE THEORY OF THE OPINION WAS THAT THE CLAUSE ESTABLISHED THE GOVERNMENT'S RIGHTS IN DATA AND THAT THE GOVERNMENT HAD A PLENARY, OR COMMON LAW RIGHT TO REPRODUCE ANY ITEM PROCURED UNDER A CONTRACT UNLESS THE CONTRACT SPECIFICALLY RESTRICTED THE GOVERNMENT'S RIGHT TO DO SO. THE MEMORANDUM EXPLAINED THAT THE LAST WORDS OF THIS PROVISO:

* * * "PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY LICENSE UNDER ANY PATENT NOW OR HEREAFTER ISSUED OR TO GRANT ANY RIGHT OR REPRODUCE ANYTHING ELSE CALLED FOR BY THIS CONTRACT.' WERE ADDED TO THE CALUSE AT THE INSTANCE OF THE MANUFACTURER'S AIRCRAFT ASSOCIATION ONLY TO SHOW THAT THE CLAUSE, WHICH WAS ADDRESSED SOLELY TO ESTABLISHING THE GOVERNMENT'S RIGHTS IN TECHNICAL DATA, DID NOT GO BEYOND THE COMMON LAW WITH RESPECT TO THE RIGHT TO REPRODUCE ARTICLES PROCURED UNDER THE CONTRACT. THE CONTRACTOR'S ARGUMENT THAT THE PROVISO LIMITS THE RIGHT TO USE DATA FOR "GOVERNMENTAL PURPOSES" TO USES NOT INCLUDING COMPETITIVE REPROCUREMENT IS, TO US, COMPLETELY MISGUIDED. IT IS NOT THIS CLAUSE WHICH ESTABLISHES THE RIGHT TO REPRODUCE THE ARTICLE, BUT THE COMMON LAW RIGHT TO DO SO, UNLESS THE CONTRACT SPECIFICALLY LIMITS THAT RIGHT. WE SEE NO WAY IN WHICH THE SPACE CORPORATION CONTRACT CAN BE SO CONSTRUED TO LIMIT THE GOVERNMENT'S RIGHT TO REPRODUCE THE TEST STANDS.

IN OPPOSITION TO YOUR CONTENTIONS, IT IS URGED IN THE LETTER OF NOVEMBER 5, 1964, THAT THE ,PIKE MEMORANDUM" INTERPRETATION OF THE DATA CLAUSE SHOULD PREVAIL WHETHER SUCH CLAUSE IS USED IN RESEARCH AND DEVELOPMENT CONTRACTS OR IN SUPPLY CONTRACTS ON THE FOLLOWING BASIS:

IT IS ALSO ARGUED THAT THIS DATA CLAUSE, AND THE PIKE MEMORANDUM INTERPRETATION OF IT, WOULD ESTABLISHED UNLIMITED RIGHTS IN DATA ONLY WHEN THE CLAUSE WAS USED IN A RESEARCH AND DEVELOPMENT CONTRACT. IT IS TRUE THAT THE CLAUSE IS DIRECTED IN THE ASPR FOR USE IN DEVELOPMENT CONTRACTS AND THAT THE PIKE MEMORANDUM RELATES TO USE OF THE CLAUSE IN RESEARCH AND DEVELOPMENT CONTRACTS. ONE REASON FOR THAT IS THAT THE NORMAL USE OF THE CLAUSE WAS IN RESEARCH AND DEVELOPMENT CONTRACTS; ANOTHER IS THAT THE PIKE MEMORANDUM WAS WRITTEN WITH REFERENCE TO A 1952 INTERPRETATION OF THE DATA CLAUSE PRIOR TO BEING SET APART AS ASPR 9-112, I.E. WHEN THE CLAUSE WAS PARAGRAPH (D) IN THE PATENTS RIGHTS CLAUSE WHICH WAS DIRECTED FOR USE ONLY IN R AND D CONTRACTS. BUT THERE IS NO ESCAPING THE FACT THAT THE GOVERNMENT HAS ALWAYS INTERPRETED THE CLAUSE AS ESTABLISHING UNLIMITED RIGHTS IN DATA.

IT SEEMS TO US THAT THE DISTINCTION AS TO WHETHER THE CONTRACT IS A DEVELOPMENT CONTRACT LOSES SIGNIFICANCE IN A CASE IN WHICH DATA WHICH IS THE RESULT OF AN EARLIER DEVELOPMENT IS SPECIFICALLY PROCURED AND PAID FOR IN A SUPPLY CONTRACT. INDEED, THERE WAS NO STANDARD CLAUSE, OTHER THAN THE "REPRODUCTION AND USE OF TECHNICAL DATA" CLAUSE, TO USE IN SUCH CIRCUMSTANCES WHEN IT WAS DESIRED TO ESTABLISH THE GOVERNMENT'S UNLIMITED RIGHTS IN DATA.

THUS, THE PRIMARY CONTENTION OF THE AIR FORCE IS THAT THE INTENTION OF THE PARTIES WAS CLEARLY EXPRESSED BY CLAUSE 46 OF CONTRACT 5353,WHEREAS YOUR CONTENTION IS THAT THIS CLAUSE IS AMBIGUOUS AND SHOULD BE CONSTRUED LESS FAVORABLE TO THE GOVERNMENT WHICH DRAFTED IT. IN THIS CONNECTION, WE ADHERE TO THE PRINCIPLES SET OUT IN OUR DECISION IN THE AIRCRAFTSMEN CASE TO WHICH YOU HAVE MADE REFERENCE, 41 COMP. GEN. 148, AT PAGE 150. IT WAS THERE STATED, IN GENERAL, THAT THE UNITED STATES AS A CONTRACTOR MUST BE TREATED AS OTHER CONTRACTORS UNDER ANALOGOUS SITUATIONS; WHEN PROBLEMS OF THE INTERPRETATION OF ITS CONTRACTS ARISE THE LAW OF CONTRACTS GOVERNS; THAT THE INTENT AND MEANING OF A CONTRACT ARE NOT TO BE DETERMINED BY THE CONSIDERATION OF AN ISOLATED SECTION OR PROVISION THEREOF, BUT THAT THE CONTRACT IS TO BE CONSIDERED IN ITS ENTIRETY, AND EACH PROVISION IS TO BE CONSIDERED IN ITS RELATIONSHIP TO OTHER PROVISIONS AND IN THE LIGHT OF THE GENERAL PURPOSE INTENDED TO BE ACCOMPLISHED BY THE CONTRACTING PARTIES.

WHEN THE RIGHT OF THE GOVERNMENT TO USE CONTRACTOR-FURNISHED DRAWINGS AND TECHNICAL DATA FOR COMPETITIVE PROCUREMENT PURPOSES HAS BEEN CHALLENGED, WE HAVE RECOGNIZED AND APPLIED THE WELL-ESTABLISHED RULE THAT, INDEPENDENT OF THE LAW APPLICABLE TO PATENTS AND COPYRIGHTS, THE OWNER OF PROPRIETARY INFORMATION OR TRADE SECRETS IS ENTITLED TO APPROPRIATE RELIEF AGAINST THE USE OR DISCLOSURE THEREOF IN VIOLATION OF A CONFIDENTIAL OR CONTRACTUAL RELATIONSHIP, AND THAT A NONDISCLOSURE AGREEMENT OR CONTRACT MAY BE IMPLIED FROM THE PARTICULAR CIRCUMSTANCES INVOLVED. SEE OUR DECISIONS B- 150369, AUGUST 22, 1963, 43 COMP. GEN. 193; B-149295, JANUARY 8, 1963, 42 COMP. GEN. 346; B 148376, JULY 24, 1962; B-136916, AUGUST 28, 1961, 41 COMP. GEN. 148, AND THE AUTHORITIES CITED THEREIN; ALSO THE CASES COLLECTED IN THE ANNOTATION IJ 170 A.L.R. 449-500.

THE AVAILABLE RECORD IN THIS CASE DISCLOSES THAT DURING THE PERIOD 1953- 1956 SHAW AND ESTES, THE PREDECESSOR OF SPACE CORPORATION, DESIGNED AND DEVELOPED A "UNIVERSAL TEST STAND AND CONVERSION KIT" CAPABLE OF TESTING THE PERFORMANCE OF VIRTUALLY ALL TYPES AND MODELS OF JET ENGINES THEN IN THE AIR FORCE INVENTORY BY A SINGLE TEST DEVICE OF FACILITY. PRIOR TO THIS DEVELOPMENT SEPARATE TEST FACILITIES WERE PROCURED FOR EACH TYPE OR MODEL OF JET ENGINE TESTED. AT A CONFERENCE IN AUGUST 1956 SHAW AND ESTES MADE A DETAILED PRESENTATION AND DISCLOSURE OF THE ,UNIVERSAL" TEST STAND TO AIR FORCE OFFICIALS AT TOPEKA AIR FORCE DEPOT. IN RESPONSE TO THE INTEREST EXPRESSED AT THIS CONFERENCE THE CORPORATION THEREUPON SUBMITTED A DETAILED TECHNICAL PROPOSAL DATED SEPTEMBER 5, 1956, WHICH INCLUDED 20 DRAWINGS (FIGURES 390-1 THROUGH 390-20) EACH STAMPED WITH THE FOLLOWING RESTRICTIVE LEGEND:

THIS DRAWING IS THE PROPERTY OF SHAW AND ESTES AND POSSESSION THEREOF NEITHER CONFERS OR TRANSFERS ANY DESIGN OR TECHNICAL INFORMATION SHOWN THEREON WITHOUT WRITTEN CONSENT OF SHAW AND ESTES.

FOLLOWING A STUDY OF THE DESIGN SPECIFICATIONS AND THE CURRENT AIR FORCE NEED A DETERMINATION WAS MADE TO NEGOTIATE A CONTRACT WITH SHAW AND ESTES ON A SOLE-SOURCE BASIS. SEVERAL MEETINGS WERE HELD DURING THE PERIOD SEPTEMBER 5 THROUGH OCTOBER 1, 1956, BETWEEN MR. ELLIE JONES, SALES MANAGER, AND OTHER SHAW AND ESTES PERSONNEL AND GOVERNMENT REPRESENTATIVES, CHARLES D. BARKHURST, ODM; HARLAND D. BRITTAIN, ODM; J. L. WRIGHT, CONTRACTING OFFICER, ODPCS (CHIEF, SPECIAL EQUIPMENT BRANCH), AND R. A. MOODY, ODPC, DEPUTY CHIEF, CONTRACT DIVISION. AT THESE MEETINGS FURTHER ENGINEERING DETAILS WERE WORKED OUT WHICH RESULTED IN THE EXHIBITS ODMSB-9-8-1 AND ODMSB-9-8-2, DATED SEPTEMBER 8, 1956 (BUT ACTUALLY REVISED SEVERAL TIMES SUBSEQUENT TO THAT DATE), SETTING OUT THE RESPECTIVE SCOPE, GENERAL DESCRIPTION AND SPECIFICATIONS AND REQUIREMENT FOR "TEST STAND, TURBO-JET ENGINE, 20000 NO. THRUST CAPACITY, SINGLE-UNIT, UNIVERSAL, SEMI- PORTABLE; * * * SHAW AND ESTES P/N 391-100" AND FOR THE CONVERSION KIT "SHAW AND ESTES P/N 392/100.' ITEM DESCRIPTIONS, DELIVERIES AND OTHER DETAILS WERE ALSO NEGOTIATED FOR USE IN PREPARING REQUEST FOR PROPOSALS RFP 14-604-57 5234 WHICH WAS ISSUED OCTOBER 1, 1956. THE SIGNED PROPOSAL OF SHAW AND ESTES DATED OCTOBER 12, 1956, PROVIDED FOR A FIXED-PRICE REDETERMINABLE CONTRACT. FOLLOWING FURTHER NEGOTIATIONS THE PROPOSAL WAS ACCEPTED NOVEMBER 20, 1956, BY J. L. WRIGHT, AIR FORCE CONTRACTING OFFICER, AND WAS DESIGNATED CONTRACT NO. AF 14 (604/-5353.

AMONG THE 26 ITEMS SPECIFIED, INCLUDING CONTROL PANELS AND SPARE PARTS, OPERATION AND SERVICE MANUALS, ETC., THE CONTRACT SCHEDULE CALLED FOR DELIVERY OF THE FOLLOWING:

ITEM 1-19 EACH AT A UNIT PRICE OF $35,142.28

TEST STAND, TURBO-JET ENGINE, 20000 NO. THRUST CAPACITY, SINGLE UNIT, UNIVERSAL, SEMI-PORTABLE; FOR TESTING (WITH ADDITION APPROPRIATE ENGINE CONTROL PANEL) TURBO-JET ENGINES J33, J35, J47, J48, J57, J65, J71, J73, ALL MODELS IN AIR FORCE INVENTORY AS OF 30 AUG 56; IN ACCORDANCE WITH EXHIBIT ODMSB-9-8-1, 8 SEPT 56; SHAW AND ESTES P/N 391 100. * * *

ITEM 2-22 EACH AT A UNIT PRICE OF $29,076.78

KIT, CONVERSION, TEST STAND, TURBO-JET ENGINE, 20000 NO. THRUST CAPACITY, SINGLE-UNIT, UNIVERSAL, SEMI-PORTABLE; * * * IN ACCORDANCE WITH EXHIBIT ODMSB-9-8-2, 8 SEPT 56; SHAW AND ESTES P/N 392-100. * * *

ITEM 19, SEPARATELY PRIVED AT $21,587.09

ENGINEERING DATA COVERING ITEM 1; IN ACCORDANCE WITH TABLE 250 (MCP 71- 506, 12 JUN 56) HEREOF; COMPLETE SET OF REPRODUCTIONS OF ALL DRAWINGS AND DATA LISTS, AS DESCRIBED IN 1.A. (1) OF TABLE 250, (NOT REVISIONS OF SETS FURNISHED UNDER PREVIOUS AIR FORCE CONTRACT); COMPLETE SET OF REPRODUCTIONS OF SPARE PARTS APPLICATION DATA LIST, AS DESCRIBED IN 1.D. (1) OF TABLE 250 (NOT REVISIONS OF SETS FURNISHED UNDER PREVIOUS AIR FORCE CONTRACTS); TO INCLUDE DRAWINGS AND DATA LISTS, AND SPARE PARTS DATA LISTS FOR EACH OF ITEMS 3 THRU 9 THEREOF, REFERENCED ARTICLES ONLY.

ITEM 20, SEPARATELY PRICED AT $24,333.84

ENGINEERING DATA COVERING ITEM 2; IN ACCORDANCE WITH TABLE 250 (MCP 71- 506, 12 JUNE 56) HEREOF; COMPLETE SET OF REPRODUCTIONS OF ALL DRAWINGS AND DATA LISTS, AS DESCRIBED IN 1.A. (1) OF TABLE 250, EXCEPT THAT DATA IDENTICAL TO THAT FURNISHED IN ITEM 19 NEED ONLY BE IDENTIFIED AND REFERENCED; COMPLETE SET OF REPRODUCTIONS OF SPARE PARTS APPLICATION DATA LIST, AS DESCRIBED IN 1.D (1) OF TABLE 250, EXCEPT THAT DATA IDENTICAL TO THAT FURNISHED IN ITEM 19 NEED ONLY BE IDENTIFIED AND REFERENCED; TO INCLUDE DRAWINGS AND DATA LISTS, AND SPARE PARTS DATA LISTS FOR EACH OF ITEMS 3 THRU 9 HEREOF, REFERENCED ARTICLES ONLY.

CLAUSE 46 OF THE GENERAL PROVISIONS OF THE CONTRACT PROVIDED AS FOLLOWS:

46--- REPRODUCTION AND USE OF TECHNICAL DATA

THE CONTRACTOR AGREES TO AND DOES HEREBY GRANT TO THE GOVERNMENT, TO THE FULL EXTENT OF THE CONTRACTOR'S RIGHT TO DO SO WITHOUT PAYMENT OF COMPENSATION TO OTHERS, THE RIGHT TO REPRODUCE, USE, AND DISCLOSE FOR GOVERNMENTAL PURPOSES (INCLUDING THE RIGHT TO GIVE TO FOREIGN GOVERNMENTS FOR THEIR USE AS THE NATIONAL INTEREST OF THE UNITED STATES MAY DEMAND) ALL OR ANY PART OF THE REPORTS, DRAWINGS, BLUEPRINTS, DATA, AND TECHNICAL INFORMATION SPECIFIED TO BE DELIVERED BY THE CONTRACTOR TO THE GOVERNMENT UNDER THIS CONTRACT; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY LICENSE UNDER ANY PATENT NOW OR HEREAFTER ISSUED OR TO GRANT ANY RIGHT TO REPRODUCE ANYTHING ELSE CALLED FOR BY THIS CONTRACT. THE USE OF CLAUSE 46 IN R.AND D. CONTRACTS WAS PRESCRIBED BY PARAGRAPH 9-112 SET FORTH IN THE 1955 EDITION OF ASPR, IN EFFECT WHEN CONTRACT 5353 WAS NEGOTIATED, PROVIDING AS FOLLOWS:

9-112 TECHNICAL DATA IN RESEARCH AND DEVELOPMENT CONTRACTS. THE CLAUSE SET FORTH BELOW SHALL BE INCLUDED IN ALL CONTRACTS FOR EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK:

REPRODUCTION AND USE OF TECHNICAL DATA

THE CONTRACTOR AGREES TO AND DOES HEREBY GRANT TO THE GOVERNMENT, TO THE FULL EXTENT OF THE CONTRACTOR'S RIGHT TO DO SO WITHOUT PAYMENT OF COMPENSATION TO OTHERS, THE RIGHT TO REPRODUCE, USE, AND DISCLOSE FOR GOVERNMENTAL PURPOSES (INCLUDING THE RIGHT TO GIVE TO FOREIGN GOVERNMENTS FOR THEIR USE AS THE NATIONAL INTEREST OF THE UNITED STATES MAY DEMAND) ALL OR ANY PART OF THE REPORTS, DRAWINGS, BLUEPRINTS, DATA, AND TECHNICAL INFORMATION SPECIFIED TO BE DELIVERED BY THE CONTRACTOR TO THE GOVERNMENT UNDER THIS CONTRACT; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY LICENSE UNDER ANY PATENT NOW OR HEREAFTER ISSUED OR TO GRANT ANY RIGHT TO REPRODUCE ANYTHING ELSE CALLED FOR BY THIS CONTRACT.

CF. ASPR REVISIONS ISSUED MARCH 26 AND APRIL 9, 1957, DURING THE CONTRACT PERIOD, PRESCRIBING CLAUSES FOR PROCURING "RIGHTS IN DATA--- UNLIMITED" AND "RIGHTS IN DATA--- LIMITED" UNDER PARAGRAPHS 9-203.1 AND 9-203.2, RESPECTIVELY, TO BE USED IN R AND D CONTRACTS AND SUPPLY CONTRACTS IN ACCORDANCE WITH THE POLICY STATED IN PARAGRAPH 9-202.

THERE SEEMS TO BE LITTLE ROOM FOR DISAGREEMENT THAT THE LANGUAGE OF THE "REPRODUCTION AND USE OF TECHNICAL DATA" CLAUSE ITSELF, CLAUSE 46 OF THE CONTRACT, MAY NOT REASONABLY BE CONSTRUED AS EVIDENCING AN INTENTION TO IMPOSE RESTRICTIONS ON THE GOVERNMENT FOR THE BENEFIT OF THE CONTRACTOR, THAT IS, THIS CLAUSE DOES NOT EXPRESSLY PROVIDE NOR IMPLY THAT THE GOVERNMENT MAY NOT USE DATA SPECIFIED FOR DELIVERY FOR SUCH PURPOSES AS MAY BE FOUND APPROPRIATE OR NECESSARY TO CARRY OUT ITS USUAL "GOVERNMENTAL" FUNCTIONS WHICH WOULD GENERALLY INCLUDE COMPETITIVE PROCUREMENT. FOR THE REASONS STATED BY YOU AND SET FORTH IN THE "PIKE MEMORANDUM" THIS INTERPRETATION OF THE CLAUSE SEEMS INESCAPABLE WHEN INCLUDED IN AN R AND D CONTRACT. AND, IN OUR OPINION, THE FACT THAT THE USE OF THIS CLAUSE WAS PRESCRIBED BY ASPR FOR R AND D CONTRACTS WITHOUT REFERENCE TO OTHER TYPES OF CONTRACTS, PROPERLY MAY NOT BE REGARDED AS A RESTRICTION ON ITS USE IN SUPPLY CONTRACTS OR JUSTIFY A DIFFERENT INTERPRETATION WHEN SO USED IN THE ABSENCE OF CLEAR EVIDENCE REASONABLY ESTABLISHING IT WAS INTENDED BY THE PARTIES.

THIS BRINGS US TO THE PRECISE QUESTIONS WE FEEL ARE AT ISSUE IN THIS CASE: (1) WHETHER THE LEGEND ON THE DRAWINGS SUBMITTED WITH THE CONTRACTOR'S UNSOLICITED PROPOSAL AND INCORPORATED INTO THE CONTRACT MAY BE REGARDED AS AN EXPRESS CONTRACTUAL RESTRICTION ON THE USE OF THE DATA PURCHASED, AND (2) IF NOT, WHETHER THE PURPOSE AND TERMS OF THE CONTRACT AND THE FACTS AND CIRCUMSTANCES UNDER WHICH THE DATA WAS FURNISHED AND ACQUIRED, CONSIDERED TOGETHER, MAY GIVE RISE TO AN IMPLIED NONDISCLOSURE AGREEMENT WHEREBY THE GOVERNMENT IS UNDER AN OBLIGATION NOT TO DISCLOSE SUCH DATA TO THE CONTRACTOR'S COMPETITORS WITHOUT ITS CONSENT. THIS LATTER POSSIBILITY APPARENTLY WAS NOT CONSIDERED IN THE "PIKE MEMORANDUM.' FROM A CAREFUL CONSIDERATION OF ALL THE INFORMATION AND EVIDENCE SUBMITTED WE ARE OF THE VIEW THAT A NEGATIVE ANSWER TO BOTH OF THESE QUESTIONS IS REQUIRED. WITH RESPECT TO THE FIRST QUESTION, IT IS SEEN THAT BY ITS OWN LANGUAGE THE LEGEND PLACED ON THE DRAWINGS SUBMITTED WITH THE CONTRACTOR'S UNSOLICITED PROPOSAL WAS APPLICABLE ONLY TO THOSE DRAWINGS, AND THERE IS NO EXPRESS REFERENCE TO THE LEGEND IN ITEMS 19 AND 20 COVERING THE ENGINEERING DATA SPECIFIED FOR DELIVERY AS END ITEMS UNDER THE CONTRACT. MOREOVER, THE RECORD OF THE CONTRACT NEGOTIATIONS FAILS TO SHOW THAT THE CONTRACTOR ASSERTED OR OTHERWISE INDICATED AN INTENTION THAT THE LEGEND ON THESE DRAWINGS WAS TO BE EXTENDED TO THE ENGINEERING DATA SPECIFIED FOR DELIVERY, NOR WAS THIS OR ANY SIMILAR RESTRICTIVE LEGEND PLACED ON ANY OF THE ENGINEERING DATA DELIVERED UNDER THE CONTRACT. HENCE, WE DO NOT BELIEVE THIS LEGEND MAY REASONABLY BE REGARDED AS AN EXPRESS CONTRACTUAL RESTRICTION ON THE USE OF THE DATA PURCHASED. IN THIS CONNECTION, COMPARE THE 1955 EDITION OF ASPR, REVISION NO. 17, DATED SEPTEMBER 7, 1956, WHICH ADDED A NEW PARAGRAPH 3 109 RELATING TO "RESTRICTIONS ON DISCLOSURE OF DATA IN PROPOSALS" AND PARAGRAPH 3-506.1 CARRIED INTO THE 1963 EDITION OF ASPR.

WITH RESPECT TO THE SECOND QUESTION, ALTHOUGH CONTRACT 5353 WAS WRITTEN ON A STANDARD SUPPLY CONTRACT FORM, AS DISTINGUISHED FROM THE FORM USED FOR THE TYPICAL R AND D CONTRACT, IT CALLED FOR SERVICES AND SUPPLIES REQUIRED TO MANUFACTURE AND FURNISH COMPLEX TECHNICAL HARDWARE AND ENGINEERING DATA BASED IN SUBSTANTIAL PART ON PERFORMANCE SPECIFICATIONS, AND WAS MODIFIED BY AT LEAST 25 SUPPLEMENTAL AGREEMENTS DURING ITS PERFORMANCE PERIOD OF APPROXIMATELY FIVE YEARS, FINAL PAYMENT BEING MADE ON MAY 1, 1962. THE CONTRACT FILE SHOWS THAT ON OCTOBER 4, 1956, AMENDMENT NO. 1 TO THE RFP WAS ISSUED PROVIDING FOR THE ADDITION OF A CLAUSE PERTAINING TO THE GOVERNMENT-FURNISHED DATA, IN MATERIAL PART, AS FOLLOWS:

2. THE FOLLOWING CLAUSE SHALL BE ADDED AS SPECIAL PROVISIONS.

S. GOVERNMENT FURNISHED DATA:

A. THE GOVERNMENT SHALL FURNISH TO THE CONTRACTOR WITHIN 30 DAYS AFTER DATE OF AWARD, FOR USE IN CONNECTION WITH AND UNDER THE TERMS OF THIS CONTRACT, A COMPLETE LIST OF ALL MODELS OF TURBO-JET ENGINES TO BE TESTED BY THE TEST EQUIPMENT TO BE FURNISHED HEREUNDER (ALL MODELS OF EACH ENGINE COVERED AS WERE IN AIR FORCE INVENTORY AS OF 30 AUGUST 1956), AND SUCH OTHER TECHNICAL DATA PERTAINING TO THE TESTING REQUIREMENTS OF SAID MODELS AND ENGINES AS THE CONTRACTOR MAY REQUEST AND AS MAY REASONABLY BE REQUIRED FOR THE ENGINEERING DEVELOPMENT AND THE PRODUCTION OF THE TEST EQUIPMENT TO BE FURNISHED HEREUNDER.' SEE ALSO, THE CONTRACTING OFFICER'S DETERMINATION AND FINDINGS DATED, APRIL 2, 1957, FOR PROCURING ADDITIONAL ITEMS UNDER THE CONTRACT WITHOUT COMPETITION WHERE HE STATED IN PART: "I HEREBY FIND AS FOLLOWS:SAID TEST STAND IS NOW UNDER DEVELOPMENT AND PRODUCTION UNDER SAID CONTRACT AF14 (604/-5353.'

THUS, THE RFP AS ISSUED AND AMENDED, THE INCLUSION OF THE "PATENT RIGHTS" AND THE "DATA" CLAUSES, THE HISTORY OF THE VARIOUS SUPPLEMENTAL AGREEMENTS AND ACTIONS TAKEN THEREUNDER DISCLOSED BY THE RECORD, ALL SEEM TO INDICATE --- AND WE THINK REASONABLY REQUIRE THE CONCLUSION--- THAT THE CONTRACT WAS CONSIDERED BY THE PARTIES AS BEING MORE THAN THE USUAL "SUPPLY" CONTRACT. THE PARTIES CONTEMPLATED AND THE CONTRACT PROVIDED FOR THE DEVELOPMENT AND PRODUCTION OF THE TEST STANDS TOGETHER WITH THE ENGINEERING DATA SPECIFIED, WHICH WAS TO BE SUPPLEMENTED BY THE GOVERNMENT AND SUBJECT TO REVISIONS NECESSITATED BY ITS PARTICULAR REQUIREMENTS. ITS PURPOSE AND CHARACTERISTICS WERE SUBSTANTIALLY THE SAME, IN MANY RESPECTS, AS THOSE OF AN R.AND D. CONTRACT. FURTHERMORE, IN OUR OPINION, WE DO NOT HAVE A SITUATION HERE WHERE THE RECORD DISCLOSED THAT THE CONTRACTOR HAD BEEN LED TO BELIEVE BY ASSURANCES OR RESPONSIBLE PROCUREMENT OFFICIALS THAT DATA SPECIFIED FOR DELIVERY UNDER THE TERMS OF THE CONTRACT WOULD BE HELD CONFIDENTIAL AND WOULD NOT BE DISCLOSED TO THE CONTRACTOR'S COMPETITORS, AS IN THE AIRCRAFTSMEN CASE 41 COMP. GEN. 148, AND THE EAGLE CRUSHER COMPANY CASE, 43 COMP. GEN. 193. NOR DO WE FEEL THAT THE SUBSEQUENT PROCUREMENTS FROM THE CONTRACTOR AND THE CORRESPONDENCE REFERRED TO BY YOU AND BY THE AIR FORCE RELATIVE TO THE RIGHTS IN THE DATA DELIVERED UNDER CONTRACT 5353, CONSIDERED WITH ALL OF THE OTHER FACTS AND CIRCUMSTANCES OF THIS CASE AS A WHOLE, AFFORD AN ADEQUATE BASIS FOR HOLDING THAT THERE IS AN IMPLIED OBLIGATION RESTRICTING THE GOVERNMENT FROM USING SUCH DATA FOR COMPETITIVE PROCUREMENT PURPOSES.