B-225746.2, JUL 10, 1987, 66 COMP.GEN. 563

B-225746.2, JUL 10, 1987, 66 COMP.GEN. 563

PROCUREMENT - COMPETITIVE NEGOTIATION - REQUESTS FOR PROPOSALS - TERMS - INTELLECTUAL PROPERTY - INCUMBENT CONTRACTORS PROCUREMENT - NONCOMPETITIVE NEGOTIATION - SOLE SOURCES - JUSTIFICATION - INTELLECTUAL PROPERTY 1. REQUEST FOR PROPOSALS WHICH STATES REQUIREMENTS IN BASIC TERMS AND DOES NOT REVEAL PREVIOUSLY UNDISCLOSED DETAILS OF INCUMBENT'S CAREER PLANNING PROGRAM DOES NOT INFRINGE INCUMBENT'S PROPRIETARY RIGHTS. 2. CONTENTION THAT COMPETITION IN CONTRACTING ACT MANDATES SOLE SOURCE PROCUREMENT, BASED ON ALLEGED PROPRIETARY RIGHTS, IS WITHOUT MERIT WHERE AGENCY CAN DESCRIBE REQUIREMENTS WITHOUT REVEALING PROPRIETARY INFORMATION.

EDN CORPORATION:

EDN CORPORATION PROTESTS THE ISSUANCE OF REQUEST FOR PROPOSALS (RFP) NO. MDA903-87-R-0068 BY THE DEFENSE SUPPLY SERVICE, WASHINGTON, D.C. (DSSW). WE DENY THE PROTEST IN PART AND WE DISMISS IT IN PART.

BACKGROUND

DSSW ISSUED THIS RFP ON MARCH 12, 1987, SEEKING COMPETITIVE OFFERS FOR A CAREER COUNSELING PROGRAM FOR USE BY THE ARMY NATIONAL GUARD (ARNG). GENERAL TERMS, THE RFP CONTEMPLATES THAT THE CONTRACTOR WILL DEVELOP THE CONCEPT, MATERIALS, PUBLICATIONS AND TRAINING NECESSARY TO PROVIDE CAREER GUIDANCE AND COUNSELING TO HIGH SCHOOL SENIORS, UNDER THE AUSPICES OF ARNG RECRUITERS, AND PROVIDE SCHEDULING AND SUPPORT SERVICES TO THE ARNG IN CONJUNCTION WITH PROGRAM. THE PROGRAM IS TO BE USED IN ALL STATES AND TERRITORIES. THE RFP STIPULATES THAT ALL PRODUCTS DEVELOPED OR PRODUCED UNDER THE CONTRACT WILL BECOME THE PROPERTY OF THE GOVERNMENT. THE RFP DESCRIBES THE PROGRAM IN BROAD TERMS, SUCH AS:

"THE ARMY NATIONAL GUARD CAREER SYMPOSIUM IS DESIGNED TO PROVIDE CAREER GUIDANCE AND COUNSELING TO HIGH SCHOOL JUNIOR AND SENIOR STUDENTS IN ALL STATES, TERRITORIES AND THE DISTRICT OF COLUMBIA."

"A COURSE WILL BE DESIGNED TO TRAIN GUARD FIELD RECRUITERS AS SYMPOSIUM INSTRUCTORS.

"THE COURSE WILL INCLUDE THE VARIOUS OPTIONS AVAILABLE TO HIGH SCHOOL STUDENTS IN TERMS OF THEIR FUTURE.

"THE ARNG SHALL ACT AS SPONSOR OF A CAREER SYMPOSIUM WHICH UTILIZES ARNG FIELD RECRUITERS AS CLASSROOM INSTRUCTORS.

"THE CONTRACTOR SHALL DEVELOP A CONCEPT PLAN WHICH WILL INCLUDE WHAT THE CONTRACTOR IS GOING TO DO AND HOW HE IS GOING TO DO IT. PROJECTED SEQUENCE OF EVENTS IN ACCOMPLISHING TASKS WILL BE DISCUSSED ALONG WITH HOW TRAINING MATERIALS AND AUDIO VISUAL AIDS WILL BE DEVELOPED AND USED.

"THE CONTRACTOR SHALL DEVELOP TEACHER/OUTLINE NOTEBOOKS."

PROTEST

EDN CONTENDS THAT THE RFP IS BASED ON THE "CAREER PLANNING WORKSHOP" (CPW) THAT EDN ORIGINALLY DEVELOPED IN 1974 FOR THE PENNSYLVANIA ARNG FROM EXISTING EDN COMMERCIAL MATERIALS. EDN HAS BEEN AWARDED SUCCESSIVE NONCOMPETITIVE CONTRACTS TO PROVIDE CPW TO THE ARNG SINCE 1974. EDN CONTENDS THAT THE RFP VIOLATES EDN'S PROPRIETARY RIGHTS, THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), AND THE TERMS OF EDN'S CURRENT CONTRACT. EDN POINTS TO SUCCESSIVE ARNG SOLE-SOURCE JUSTIFICATIONS AS AMOUNTING TO ADMISSIONS THAT THE ARNG CONSIDERED THE CPW PROGRAM TO BE PROPRIETARY, AND ARGUES THAT EDN HAS ALWAYS CONSIDERED CPW PROPRIETARY AND HAS CONSISTENTLY TAKEN MEASURES TO PROTECT ITS RIGHTS. EDN ASKS THAT WE REQUIRE WITHDRAWAL OF THE RFP, PROHIBIT DSSW FROM USING ANY OF EDN'S CONCEPTS, DATA OR IDEAS IN FUTURE SOLICITATIONS, AND REQUIRE DSSW TO AWARD THE CONTRACT TO EDN OR, IN THE ALTERNATIVE, TO EXERCISE THE AVAILABLE OPTION UNDER EDN'S CURRENT CONTRACT.

DSSW CONTESTS EDN'S PROPRIETARY CLAIMS AND ARGUES THAT, AT HEART, EDN'S PROTEST IS AN EFFORT TO GET OUR OFFICE TO RECOMMEND EITHER A SOLE SOURCE AWARD TO EDN OR CANCELLATION OF THE RFP AND EXERCISE OF THE OPTION IN EDN'S CONTRACT. IN THIS RESPECT, DSSW ASSERTS THAT EDN'S PROTEST IS INDISTINGUISHABLE FROM THAT IN ARCTIC ENERGIES LTD., B-224672, NOV. 17, 1986, 86-2 CPD 571, IN WHICH WE STATED THAT WE CONSIDERED IT INAPPROPRIATE TO CONSIDER A PROTEST THAT AN AGENCY SHOULD PROCURE FROM A PARTICULAR FIRM ON A SOLE-SOURCE BASIS. DSSW CONTENDS THAT EDN'S PROTEST SHOULD BE DISMISSED. DSSW DOES NOT CONTEST EITHER THE PRIOR EXISTENCE OF EDN'S COMMERCIAL PRODUCTS AND MATERIALS OR EDN'S COPY RIGHT AND TRADEMARK OF THE MATERIALS USED IN THE CURRENT PROGRAM.

DISCUSSION-- DISCLOSURE

AS DSSW CORRECTLY POINTS OUT, WE NORMALLY REJECT, AS MATTERS OF CONTRACT ADMINISTRATION OUTSIDE OF THE BID PROTEST FUNCTION, PROTESTS THAT ASK US TO RECOMMEND THE EXERCISE OF A CONTRACT OPTION IN LIEU OF A COMPETITIVE PROCUREMENT. SEE E.G., STONE TRACT ASSOCIATES, B-225568, JAN 8, 1987, 87-1 CPD 38. ON THE OTHER HAND, AND NOTWITHSTANDING THE GENERAL RULE STATED IN ARCTIC ENERGIES, LTD., WE WILL CONSIDER CLAIMS OF MISUSE OF SUCH DATA SO AS TO AVOID ANY SEMBLANCE OF APPROVAL OF IMPROPER DISCLOSURES OF PROPRIETARY DATA, AND WE MAY, IN APPROPRIATE CIRCUMSTANCES, RECOMMEND A SOLE-SOURCE AWARD TO THE PROTESTER OR CANCELLATION OF THE SOLICITATION AND REISSUANCE WITHOUT THE PROPRIETARY DATA. SEE AERONAUTICAL INSTRUMENT AND RADIO CO., B-224431.3, AUG. 7, 1986, 86-2 CPD 170.

EDN'S PRINCIPAL BASIS FOR PROTEST IS THAT THE RFP IMPROPERLY DISCLOSES EDN'S PROPRIETARY INFORMATION. THE BURDEN IS ON THE PROTESTER TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT ITS PROPRIETARY RIGHTS HAVE BEEN VIOLATED. ZODIAC OF NORTH AMERICAN, INC., B-220012, NOV. 25, 1985, 85-2 CPD 595. TO PREVAIL ON SUCH A CLAIMS, THE PROTESTER MUST SHOW THAT (1) ITS MATERIAL WAS MARKED PROPRIETARY OR CONFIDENTIAL OR THAT IT WAS DISCLOSED TO THE GOVERNMENT IN CONFIDENCE, AND (2) THAT THE MATERIAL INVOLVED SIGNIFICANT TIME AND EXPENSE IN PREPARATION AND THAT IT CONTAINED MATERIAL OR CONCEPTS THAT COULD NOT BE INDEPENDENTLY OBTAINED FROM PUBLICLY AVAILABLE LITERATURE OR COMMON KNOWLEDGE. PORTA POWER PAK, INC., B-196218, APR. 29, 1980, 80-1 CPD 305.

WE FURTHER POINT OUT THAT MERELY HAVING AN IDEA DOES NOT MAKE IT PROPRIETARY. COMMERCIAL PRODUCTS, FOR INSTANCE, ARE EXCLUDED FROM THIS CATEGORY, NEFF INSTRUMENTS, B-216236, DEC. 11, 1984, 84-2 CPD 649, AS ARE IDEAS OR CONCEPTS WHICH ARE OBVIOUS, AND NOT INNOVATIVE OR UNIQUE. CHROMALLOY DIVISION - OKLAHOMA OF CHROMALLOY AMERICAN CORPORATION, 56 COMP.GEN. 537 (1977), 77-1 CPD 262. MOREOVER, THE MERE REFORMULATION OF A CONCEPT WHICH IS COMMON KNOWLEDGE CANNOT BE PROPRIETARY UNLESS THE RESTATEMENT REPRESENTS A VALUABLE CONTRIBUTION ARISING FROM THE INDEPENDENT EFFORTS OF THE CLAIMANT. ANDRULIS RESEARCH CORP., B-190571, APR. 26, 1978, 78-1 CPD 321.

EDN CONTENDS THAT BECAUSE IT PROVIDES ALL OF THE DELIVERABLES DESCRIBES IN THE RFP UNDER ITS EXISTING CONTRACT AND THE RFP PARALLELS EDN'S PROGRAM, THE RFP DISCLOSES CONCEPTS THAT ARE PROPRIETARY TO EDN. IN OUR VIEW, HOWEVER, THE STATEMENTS IN THE RFP ARE EITHER TOO GENERAL TO CONSTITUTE DISCLOSURE OF PROPRIETARY INFORMATION OR THEY ADDRESS CONCEPTS ALREADY DISCLOSED.

EDN ARGUES, FOR INSTANCE, THAT ONE OF THE CENTRAL CONCEPTS OF ITS PROGRAM REVEALED BY THE RFP IS THE USE OF ARNG RECRUITERS IN THE CLASSROOM AS INSTRUCTORS. THEIR USE, HOWEVER, OBVIOUSLY, IS REVEALED EVERY TIME AN ARNG RECRUITER CONDUCTS A CPW SESSION-- WHICH THEY HAVE BEEN DOING FOR 13 YEARS-- AND WE FIND NOTHING IN THE RFP WHICH IDENTIFIES EDN'S PARTICULAR APPROACH TO THEIR USE. AS WE HAVE SAID PREVIOUSLY, THE VALUE OF PROPRIETARY INFORMATION LIES IN ITS UNIQUE POSSESSION BY THE OWNER; ONCE SUCH INFORMATION BECOMES PUBLIC KNOWLEDGE, ITS VALUE AND STATUS AS PROPRIETARY INFORMATION IS LOST. PORTA POWER PAK, INC., SUPRA. SINCE THE USE OF ARNG RECRUITERS IN THE CLASSROOM IS ALREADY DISCLOSED AND THE RFP DOES NOT DISCLOSE EDN'S POTENTIALLY PROPRIETARY UNDERLYING APPROACH-- WHICH, WE NOTE, THERE IS NO ASSURANCE A NEW CONTRACTOR WOULD BE AWARE OF OR WOULD IMPLEMENT-- WE FIND NO MERIT IN THIS CONTENTION.

THIS SAME RATIONALE APPLIES TO THE REQUIREMENT FOR TEACHER OUTLINES AND NOTEBOOKS. EDN PROVIDES THESE MATERIALS TO ITS COMMERCIAL CUSTOMERS WHEN THEY PURCHASE A MINIMUM NUMBER OF CPW PUBLICATIONS, WHICH APPEARS TO AMOUNT TO DISCLOSURE OF THE FACT THAT EDN PROVIDES SUCH TEXTS; MOREOVER, TEACHER OUTLINES AND NOTEBOOKS ARE COMMONLY PROVIDED IN CONJUNCTION WITH EDUCATIONAL MATERIALS. WE ALSO NOTE THAT IT IS LITTLE MORE THAN COMMON SENSE THAT THE CONTRACTOR MIGHT BE EXPECTED TO TRAIN ARNG RECRUITERS IN THE USE OF THE MATERIALS PROVIDED UNDER THE CONTRACT. IN OUR VIEW, THESE ARE NOT THE SORT OF UNIQUE OR INNOVATIVE IDEAS THAT CAN FORM THE BASIS OF PROPRIETARY INFORMATION.

A RELATED ASSERTION BY EDN THAT THE INTERRELATEDNESS AND INTEGRATION OF ITS MATERIALS IS UNIQUE AND PROPRIETARY GOES TO THE TEXT AND CONTENT OF EDN'S MATERIALS. THE RFP, HOWEVER, IS SIMPLY TOO BROADLY STATED TO REVEAL THE SPECIFIC CONTENT OF EDN'S MATERIALS.

IN SUM, WE FIND THAT THE RFP DESCRIBES, IN GENERAL TERMS, THE PRODUCTS OR SERVICES TO BE PROVIDED IN IMPLEMENTING THE CONCEPT DEVELOPED BY THE CONTRACTOR UNDER THE FIRST TASK IN THE RFP. ALTHOUGH THESE DELIVERABLES MAY, IN FACT, PARALLEL SIMILAR PRODUCTS AND SERVICES PROVIDED BY EDN, THEY ARE DESCRIBED IN THE MOST BASIS TERMS AND REPRESENT LITTLE MORE THAN THE COMMON SENSE AND COMMONLY KNOWN ASSOCIATED REQUIREMENTS NEEDED TO ACCOMMODATE THE NEEDS OF THE ARNG. IN SHORT, THIS RFP ASKS FOR LITTLE MORE THAN A CONCEPT, MATERIALS TO IMPLEMENT THE CONCEPT, TRAINING TO USE THE MATERIALS, AND CONTRACTOR SUPPORT, NONE OF WHICH IS DESCRIBED IN SUFFICIENT DETAIL TO DISCLOSE ANY JUSTIFIABLE PROPRIETARY INTEREST WHICH EDN MIGHT HOLD IN CPW.

DISCUSSION-- PROPRIETARY INFORMATION

MOREOVER, WE FIND THAT THE EVIDENCE IS, AT BEST, CONFLICTING REGARDING EDN'S CLAIM OF PROPRIETARY RIGHTS. IN THIS REGARD, WE NOTE ESPECIALLY THE FOLLOWING:

1. ALTHOUGH THERE ARE SEVERAL DOCUMENTS, PRIMARILY ARNG SOLE-SOURCE JUSTIFICATIONS, WHICH STATE THE EDN DEVELOPED THE CPW PROGRAM ON ITS OWN INITIATIVE AND AT ITS OWN EXPENSE, THERE ARE OTHERS WHICH SUGGEST, AT LEAST, THAT THERE MAY HAVE BEEN ARNG EFFORT AND FINANCING INVOLVED IN THE DEVELOPMENT OF THE PROGRAM. FOR INSTANCE:

-- A MAY 9, 1977, LETTER FROM THE PRESIDENT OF EDN WHICH STATES: (1) EDN UNDERTOOK DEVELOPMENT OF THE (CPW) PROGRAM PROTOTYPE OVER A 12 MONTH PERIOD. EDN CORPORATION AND THE NATIONAL GUARD HAVE INVESTED SUBSTANTIAL TIME AND EFFORT TO DEVELOP A PROTOTYPE PROGRAM; (2) STATES CURRENTLY PARTICIPATING IN THE CPW PROGRAM HAVE EXPENDED CONSIDERABLE DOLLARS AND TIME IN DEVELOPING, TESTING AND CUSTOMIZING EACH PROGRAM; AND (3) (CPW) MAY HAVE BECOME PROPRIETARY TO EDN.

-- THE PENNSYLVANIA ARNG'S REPORT ON THE RESULTS OF THE PILOT TEST OF EDN'S INITIAL PROGRAM STATES THAT THE SCHOOLS ASKED ARNG RECRUITERS TO TEACH THE CPW COURSE. AS NOTED ABOVE, EDN CLAIMS THAT THE USE OF RECRUITERS IN THE CLASS ROOM IS PROPRIETARY.

2. IT IS ALSO UNCLEAR THE EDN HAS CONSISTENTLY TRIED TO PROTECT ITS ASSERTED PROPRIETARY RIGHTS IN THE PROGRAM:

-- THE MAY 9, 1977, LETTER REFERRED TO ABOVE ALSO STATES THAT "3500 EDUCATORS IN OVER 2000 SCHOOLS HAVE INTRODUCED THE CAREER PLANNING WORKSHOP INTO THEIR CURRICULUM."

-- EDN'S PROPOSAL TO THE ARNG FOR FISCAL YEAR 1981, COVERING THE 1981 - 1982 SCHOOL YEAR, CONTAINS NO PROPRIETARY MARKINGS. EDN STATES THAT THIS WAS MERELY A COST PROPOSAL WITH NO ACCOMPANYING TECHNICAL PROPOSAL. THIS PROPOSAL, ABSENT EDN'S COST INFORMATION, CONTAINS A MORE COMPREHENSIVE AND REVEALING DESCRIPTION OF CPW THAN DOES THE CURRENT RFP TO WHICH EDN OBJECTS.

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

4. THE ARNG SOLE-SOURCE JUSTIFICATIONS, WHICH EDN CHARACTERIZES AS ADMISSIONS BY THE GOVERNMENT THAT THE PROGRAM IS PROPRIETARY TO EDN, STRIKE US AS SOMETHING LESS. IN EACH INSTANCE, THE JUSTIFICATION COVERING EDN'S 1980, 1981, 1982 AND 1983 CONTRACTS IS BASED ON THE FACT THAT EDN HAS THE ONLY PROGRAM THAT CAN MEET THE ARNG'S SCHEDULE. IN OTHER WORDS, THE JUSTIFICATIONS ARE BASED ON URGENCY AND NOT ON THE PREMISE THAT THE PROGRAM IS PROPRIETARY TO EDN.

WE FIND ITEMS SUCH AS THE MAY 9, 1977, LETTER, WHICH ARE MORE CONTEMPORANEOUS WITH THE DEVELOPMENT OF CPW, TO BE STRONG EVIDENCE OF SIGNIFICANT AND SUBSTANTIAL ARNG INVOLVEMENT IN THE ADAPTATION OF EDN'S COMMERCIAL MATERIALS TO MEET THE NEEDS OF THE ARNG AND EQUALLY PERSUASIVE EVIDENCE THAT EVEN EDN INITIALLY DID NOT CONSIDER THE PROGRAM PROPRIETARY; OTHERWISE, THERE WOULD BE NO REASON FOR EDN'S 1977 SUGGESTION THAT THE PROGRAM "MAY HAVE BECOME PROPRIETARY." MOREOVER, WE CANNOT HELP BUT NOTE THE OBVIOUS INCONSISTENCIES BETWEEN EDN'S ASSERTION THAT CPW IS PROPRIETARY, EDN'S CLAIMS OF EXEMPTION FROM THE SUBMISSION OF COST OR PRICING DATA ON THE BASIS THAT CPW IS A COMMERCIAL PRODUCT, AND EDN'S SUGGESTION IN THIS PROTEST, DISCUSSED BELOW, THAT DSSW IS REQUIRED TO ACQUIRE CPW BECAUSE IT IS A COMMERCIAL PRODUCT.

IN SHORT, WE ARE NOT PERSUADED THAT THIS PROGRAM IS PROPRIETARY BEYOND THE COPYRIGHTS AND TRADEMARKS HELD BY EDN, AND WE CONSIDER THAT TO THE EXTENT IT MAY BE PROPRIETARY, THESE ELEMENTS ARE NOT DISCLOSED BY THE RFP. WE CANNOT CONCLUDE, ON THIS RECORD, THAT EDN HAS ESTABLISHED A VIOLATION OF ITS PROPRIETARY RIGHTS "BY CLEAR AND CONVINCING EVIDENCE." MOREOVER, SINCE WE FIND NO OFFENDING DISCLOSURE, WE CONSIDER EDN'S ALLEGATION THAT THE RFP VIOLATES THE TERMS OF ITS CONTRACT, PREMISED ON AN IMPLICIT CONTRACTUAL UNDERSTANDING OF CONFIDENTIALITY, TO BE MOOT AND WILL NOT CONSIDER THIS QUESTION. DISCUSSION-- CICA

EDN'S ARGUMENT THAT THE RFP VIOLATES CICA IS BASED ON THE ARGUMENT THAT BECAUSE CPW IS UNIQUE AND BECAUSE EDN'S RIGHTS IN CPW PRECLUDE ITS USE IN DEVELOPMENT OF SPECIFICATIONS FOR A COMPETITIVE PROCUREMENT, THIS SITUATION PRESENTS A COMPELLING EXAMPLE OF "UNIQUE SUPPLIES OR SERVICES AVAILABLE FROM ONLY ONE SOURCE OR ONLY ONE SUPPLIER WITH UNIQUE CAPABILITIES." (SEE, FAR, 48 C.F.R. 6.302-1(B)(1) (1986)). EDN CONTENDS THAT IN THESE CIRCUMSTANCES, CICA MANDATES THAT DSSW ACQUIRE EDN'S PROGRAM THROUGH A NONCOMPETITIVE PROCUREMENT.

WE DISAGREE. THE APPLICABLE SECTION OF CICA, 10 U.S.C. SEC. 2304(C)(1) (SUPP. III 1985), PROVIDES THAT AN AGENCY MAY USE NONCOMPETITIVE PROCEDURES ONLY WHEN "THE PROPERTY OR SERVICES NEEDED BY THE AGENCY ARE AVAILABLE FROM ONLY ONE RESPONSIBLE SOURCE AND NO OTHER TYPE OF PROPERTY OR SERVICE WILL SATISFY THE NEEDS OF THE AGENCY." AS WE NOTED ABOVE, DSSW DESCRIBED ITS REQUIREMENTS IN A WAY THAT DOES NOT VIOLATE EDN'S RIGHTS AND WHICH SHOULD RESULT IN THE ACQUISITION OF A SIMILAR, BUT NOT IDENTICAL, PROGRAM THAT WILL MEET THE GOVERNMENT'S NEEDS. THE RFP HAS PRODUCED MULTIPLE INQUIRIES FROM VENDORS. IN OUR VIEW, THIS IS EVIDENCE THAT OTHER VENDORS CAN MEET THE NEEDS OF THE AGENCY AND DSSW MAY NOT, THEREFORE, ACQUIRE EDN'S PROGRAM ON A SOLE SOURCE BASIS UNDER CICA.

EDN ALSO ASSERTS THAT THE RFP VIOLATES THE DIRECTIVE IN CICA THAT PROCUREMENT POLICIES AND PROCEDURES SHOULD "PROMOTE THE USE OF COMMERCIAL PRODUCTS WHENEVER PRACTICABLE," 10 U.S.C. 2301(B)(6), BECAUSE THE RFP ALLEGEDLY SEEKS THE DEVELOPMENT OF A NEW PROGRAM TO REPLACE CPW. INITIALLY, WE NOTE THAT THIS ARGUMENT MAKES NO SENSE UNLESS EDN WOULD HAVE US CONSIDER CPW A COMMERCIAL PROGRAM, IN WHICH CASE IT IS NOT PROPRIETARY. NEFF INSTRUMENTS, SUPRA. SECONDLY, EDN DID NOT RAISE THIS QUESTION UNTIL APRIL 21, 3 DAYS AFTER EDN FILED ITS INITIAL PROTEST, AND HAS OFFERED NO PLAUSIBLE REASON FOR THE DELAY. BECAUSE OUR BID PROTEST REGULATIONS DO NOT CONTEMPLATE PIECEMEAL FILING OF PROTEST, PROTESTERS DELAY RAISING ISSUES SUCH AS THIS AT THEIR OWN PERIL. WE WILL NOT CONSIDER THIS QUESTION. MILITARY BASE MANAGEMENT, INC., B-224128, NOV. 26, 1986, 86-2 CPD 616.

DISCUSSION-- TRANSFER OF RIGHTS TO PROGRAM

FINALLY, EDN ALSO CONTENDS THAT THE REQUIREMENT FOR THE CONTRACTOR TO CONVEY ALL RIGHTS IN MATERIALS PRODUCED UNDER THE CONTRACT UNFAIRLY PRECLUDED ITS PARTICIPATION IN THE PROCUREMENT BECAUSE "MUCH OF EDN'S OTHER COMMERCIAL BUSINESS DEPENDS ON THESE SAME CONCEPTS." EDN HAS NOT, HOWEVER, PROVIDED ANY EVIDENCE WHICH DEMONSTRATES THE NATURE OF THE HARM THAT MIGHT BEFALL ITS COMMERCIAL BUSINESS FROM SUCH A TRANSFER AND WE HAVE DIFFICULTY FINDING ANY, PARTICULARLY WHERE IT INVOLVES WHAT EDN DESCRIBES AS:

"THE SIMILAR NATIONAL PROGRAMS EDN HAS DEVELOPED AND IMPLEMENTS IN THE AREAS OF PRENATAL AND POSTNATAL CARE, YOUNG CHILDHOOD CARE, CAREER EDUCATION, VOCATIONAL EDUCATION, EDUCATION FOR THE HANDICAPPED, TEST TRACKING SKILLS, AND PREMARITAL FINANCIAL GUIDANCE."

CERTAINLY, EDN'S TRANSFER OF RIGHTS TO THE GOVERNMENT WOULD NOT KEEP EDN FROM CONTINUING ITS COMMERCIAL BUSINESS, INCLUDING CPW, OR PRECLUDE EDN FROM DEVELOPING ADDITIONAL PROGRAMS USING THE SAME CONCEPTS. IN SHORT, WE ARE NOT PERSUADED THAT EDN WAS PRECLUDED FROM THIS COMPETITION BY THIS REQUIREMENT.

THE PROTEST IS DENIED IN PART AND DISMISSED IN PART.