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B-158865, SEP. 26, 1966

B-158865 Sep 26, 1966
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TO COLUMBUS MCKINNON CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4. IN OUR LETTER WE STATED THAT OUR DECISIONS ARE ALWAYS SUBJECT TO REVIEW FOR MATERIAL ERROR EITHER IN FACT OR LAW AND THAT IF THE EXACT NATURE OF SUCH ALLEGED ERRORS WAS SPECIFIED WE WOULD GIVE THE MATTER OUR FURTHER CONSIDERATION. WE HAVE CAREFULLY CONSIDERED THE STATEMENTS. CONTENTIONS AND ARGUMENTS SUBMITTED IN YOUR APPEAL AND WE FIND THAT IN ALL MATERIAL ASPECTS THEY ARE ESSENTIALLY THE SAME AS THOSE WHICH WERE PRESENTED IN YOUR PREVIOUS COMMUNICATIONS. WHICH WE BELIEVE ARE PROPERLY ANSWERED IN THE CONCLUSIONS STATED IN OUR DECISION OF JULY 13. YOU DO NOT ALLEGE THAT OUR DECISION WAS BASED ON AN ERRONEOUS STATEMENT OF FACTS.

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B-158865, SEP. 26, 1966

TO COLUMBUS MCKINNON CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1966, WITH ENCLOSURES, APPEALING FROM OUR DECISION 46 COMP. GEN. - , B-158865, JULY 13, 1966, PURSUANT TO OUR LETTER OF JULY 22 TO YOUR COUNSEL. IN OUR LETTER WE STATED THAT OUR DECISIONS ARE ALWAYS SUBJECT TO REVIEW FOR MATERIAL ERROR EITHER IN FACT OR LAW AND THAT IF THE EXACT NATURE OF SUCH ALLEGED ERRORS WAS SPECIFIED WE WOULD GIVE THE MATTER OUR FURTHER CONSIDERATION.

WE HAVE CAREFULLY CONSIDERED THE STATEMENTS, CONTENTIONS AND ARGUMENTS SUBMITTED IN YOUR APPEAL AND WE FIND THAT IN ALL MATERIAL ASPECTS THEY ARE ESSENTIALLY THE SAME AS THOSE WHICH WERE PRESENTED IN YOUR PREVIOUS COMMUNICATIONS, AND WHICH WE BELIEVE ARE PROPERLY ANSWERED IN THE CONCLUSIONS STATED IN OUR DECISION OF JULY 13. YOU DO NOT ALLEGE THAT OUR DECISION WAS BASED ON AN ERRONEOUS STATEMENT OF FACTS, NOR DO YOU CITE ANY LEGAL AUTHORITY TO SUPPORT YOUR CONTENTION THAT OUR APPLICATION OF THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION TO SUCH FACTS IS ERRONEOUS. RATHER YOU MAINTAIN "THAT THE CONCLUSIONS OF "LAW" REACHED BY THE DECISION, ARE IN THEMSELVES ERRONEOUS," AND IT APPEARS THAT YOU FEEL WE SHOULD NOW ACCEPT YOUR PERSONAL PREVIOUSLY-CONSIDERED VIEWS AS CORRECT IN LIEU OF THOSE VIEWS THAT ARE STATED IN THE DECISION. WITHOUT ADDRESSING SUCH POINTS INDIVIDUALLY AGAIN, IT SEEMS THAT YOUR PRINCIPAL CONCERN IS THAT YOU HAVE A "RIGHT" UNDER ASPR 2-404.4 (A) TO INSPECT THE NONPROPRIETARY PORTIONS OF FMC'S STEP ONE PROPOSAL, AND THAT THE REFUSAL WAS, AND IS, A DIRECT VIOLATION OF SUCH "RIGHT," AND THAT THE RESTRICTION ON THE FMC PROPOSAL WHICH YOU SAY DEPRIVED YOU OF YOUR "RIGHT" RENDERED THE PROPOSAL NONRESPONSIVE ON ITS FACE IN ACCORDANCE WITH THAT SAME ASPR PROVISION. YOU ALSO SAY THAT NONPROPRIETARY MATERIAL WAS REQUIRED BY THE LETTER REQUEST FOR TECHNICAL PROPOSALS (LRFTP), AND YOU SEEM TO DISCOUNT THE REPORT BY THE PROCURING ACTIVITY -- THAT IN ACCEPTING FMC'S PROPOSAL FOR EVALUATION IT WAS DETERMINED THAT IT WAS NOT FEASIBLE TO SEGREGATE THE INFORMATION IN THE PROPOSAL BETWEEN PROPRIETARY AND NONPROPRIETARY DATA--- AS A DEVICE FOR PROTECTING ONE OFFER OR OVER ANOTHER. YOU FURTHER CONTEND THAT THE PROTECTION OF FMC'S PROPRIETARY DATA OTHER THAN IN ACCORDANCE WITH ASPR 3-507.1 IS "NEW LAW" AND "ESTABLISHES A PRECEDENT WHICH HAS GRAVE IMPLICATIONS IN FURTHER PROCUREMENT ACTIONS.'

CONCERNING THE DETERMINATION BY THE PROCURING ACTIVITY THAT IT WAS NOT FEASIBLE TO SEGREGATE THE INFORMATION IN FMC'S PROPOSAL BETWEEN PROPRIETARY AND NONPROPRIETARY DATA FOR YOUR INSPECTION, 18 U.S.C. 1905 PROVIDES:

"WHOEVER, BEING AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR OF ANY DEPARTMENT OR AGENCY THEREOF, PUBLISHES, DIVULGES, DISCLOSES, OR MAKES KNOWN IN ANY MANNER OR TO ANY EXTENT NOT AUTHORIZED BY LAW ANY INFORMATION COMING TO HIM IN THE COURSE OF HIS EMPLOYMENT OR OFFICIAL DUTIES OR BY REASON OF ANY EXAMINATION OR INVESTIGATION MADE BY, OR RETURN, REPORT OR RECORD MADE TO OR FILED WITH, SUCH DEPARTMENT OR AGENCY OR OFFICER OR EMPLOYEE THEREOF, WHICH INFORMATION CONCERNS OR RELATES TO THE TRADE SECRETS, PROCESSES, OPERATIONS, STYLE OF WORK, OR APPARATUS, OR TO THE IDENTITY, CONFIDENTIAL STATISTICAL DATA, AMOUNT OR SOURCE OF ANY INCOME, PROFITS, LOSSES, OR EXPENDITURES OF ANY PERSON, FIRM, PARTNERSHIP, CORPORATION, OR ASSOCIATION; OR PERMITS ANY INCOME RETURN OR COPY THEREOF OR ANY BOOK CONTAINING ANY ABSTRACT OR PARTICULARS THEREOF TO BE SEEN OR EXAMINED BY ANY PERSON EXCEPT AS PROVIDED BY LAW; SHALL BE FINED NOT MORE THAN $1,000, OR IMPRISONED NOT MORE THAN ONE YEAR, OR BOTH; AND SHALL BE REMOVED FROM OFFICE OR EMPLOYMENT.'

AS IT MAY BE NOTED, THE ABOVE STATUTE PROVIDES CRIMINAL PENALTIES (IN ADDITION TO REMOVAL FROM OFFICE OR EMPLOYMENT) FOR ANY GOVERNMENT OFFICER OR EMPLOYEE WHO MAKES AN UNAUTHORIZED DISCLOSURE OF INFORMATION WHICH CONCERNS OR RELATES TO A FIRM'S TRADE SECRETS, PROCESSES, OPERATIONS, STYLE OF WORK OR APPARATUS. IN VIEW THEREOF WE FEEL THAT THE RESPONSIBLE AGENCY OFFICIALS ARE ENTITLED TO GREAT LATITUDE IN THEIR DETERMINATIONS AS TO PROPOSAL INFORMATION WHICH MAY PROPERLY BE DISCLOSED, AND WE ARE NOT INCLINED TO SUBSTITUTE OUR JUDGMENT IN SUCH MATTERS FOR THAT OF THE APPROPRIATE ADMINISTRATIVE PERSONNEL UNLESS CLEARLY REQUIRED TO DO SO BY COMPELLING CIRCUMSTANCES, WHICH WE DO NOT FIND PRESENT HERE.

REGARDING THE ALLEGED "RIGHT" OF A BIDDER TO INSPECT THE

REGARDING THE ALLEGED "RIGHT" OF A BIDDER TO INSPECT THE NONPROPRIETARY DESCRIPTIVE LITERATURE OF ANOTHER BIDDER'S STEP ONE PROPOSAL WHICH YOU ASSERT IS PROVIDED BY APSR 2-404.4 (A), IT MAY BE NOTED IN A CAREFUL READING OF SUCH PROVISION THAT NO MENTION IS MADE OF AN ACTUAL "INSPECTION" OF SUCH MATERIAL BY BIDDERS, AND THAT A BID RESTRICTING THE PUBLIC DISCLOSURE OF ITS DESCRIPTIVE LITERATURE IS RENDERED NONRESPONSIVE ONLY "IF IT PROHIBITS THE DISCLOSURE OF SUFFICIENT INFORMATION TO PERMIT COMPETING BIDDERS TO KNOW THE ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED * * *.'

THAT PROVISION DOES NOT DEFINE THE TERM "ESSENTIAL NATURE AND TYPE OF THE PRODUCTS OFFERED" NOR DOES IT OFFER ANY SUGGESTION AS TO HOW MUCH INFORMATION MAY PROPERLY BE CONSIDERED AS SUFFICIENT TO PERMIT COMPETING BIDDERS "TO KNOW" SUCH FACTORS. YOU WERE FURNISHED THE INFORMATION IN OUR DECISION OF JULY 13 THAT THE FMC PROPOSAL OFFERED AN AUTOMATED MATERIAL HANDLING SYSTEM WHICH MET THE FOLLOWING BASIC REQUIREMENTS:

"* * * THAT (1) IT BE AN OVERHEAD CONVEYOR SYSTEM WHICH WILL SERVICE ALL OF THE BIN AREAS IN SUCH A WAY THAT THE STOCK PICKERS WILL NOT BE RESTRICTED AS THEY PICK MATERIAL FROM BINS LOCATED ON OPPOSITE SIDES OF THE CONVEYOR SYSTEM; (2) ALL PICKUP AND DELIVERY STATIONS HAVE THE NECESSARY GADGETRY TO ALLOW AUTOMATIC ROUTING OF MATERIAL TO AND FROM PICKUP STATIONS AND THE CUSTOMER ORDER ACCUMULATING AREA; (3) ALL PICKUP AND DELIVERY STATIONS HAVE CAPABILITY OF ACCUMULATING TOW TRAYS LOADED OR UNLOADED WITHOUT PULSATING A PRIMARY CONVEYOR; (4) IT WILL AUTOMATICALLY ACCUMULATE AND STORE CUSTOMER ORDERS IN THE CUSTOMER HOLDING AREA; AND THAT (5) IT WILL RELEASE LOADED TOW TRAYS OVER THE ROLLER CONVEYOR (EXPRESS LINE) WITHOUT PHYSICAL HANDLING OF THE TRAYS.' YOU WERE ALSO INFORMED THEREIN THAT THE SYSTEM WAS CAPABLE OF HANDLING THE MATERIAL DESCRIBED IN THE SPECIFICATIONS IN ACCORDANCE WITH THE OUTLINED OPERATIONAL SPEEDS, LOAD CAPACITIES AND THE QUANTITY OF MATERIAL THAT NEEDED TO BE ROUTED THROUGH THE SYSTEM, AND THAT THE SYSTEM MUST SATISFACTORILY COMPLETE THE PERFORMANCE TEST OUTLINED IN THE SPECIFICATIONS. ADDITIONALLY, OUR DECISION ADVISED THAT OUR EXAMINATION OF THE FMC PROPOSAL REVEALED NO BASIS FOR DISAGREEMENT WITH THE AGENCY'S CONCLUSION. UNDER THE CIRCUMSTANCES, EVEN IF WE VIEWED ASPR 2-404.4 (A) AS HAVING CONTROLLING APPLICATION IN THE CIRCUMSTANCES INVOLVED IN THE SUBJECT PROCUREMENT (WHICH WE DO NOT, FOR REASONS STATED IN OUR DECISION), WE FEEL THAT YOU HAVE BEEN PROVIDED WITH SUFFICIENT INFORMATION TO LET YOU KNOW THE ESSENTIAL NATURE AND TYPE OF FMC'S PRODUCT SO AS TO SATISFY ANY BASIC "RIGHT" IN THAT RESPECT WHICH MAY HAVE BEEN WITHIN THE CONTEMPLATION OF, AND AFFORDED YOU BY, THAT REGULATION.

WITH REGARD TO YOUR CONCERN AS TO THE ESTABLISHMENT OF A PRECEDENT BY THE DECISION WHICH WILL HAVE "GRAVE IMPLICATIONS" IN FUTURE PROCUREMENT ACTIONS, WE DO NOT SHARE YOUR MISGIVINGS. HOWEVER, IN THE EVENT YOU ARE CORRECT, AND BIDDERS DO ADOPT PROCEDURES WHICH ARE SHOWN TO BE ADVERSE TO THE BEST INTERESTS OF THE GOVERNMENT OR TO THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, IT WOULD APPEAR THAT CONSIDERATION SHOULD THEN BE GIVEN TO APPROPRIATE REVISIONS OF THE APPLICABLE PROCUREMENT REGULATIONS.

ACCORDINGLY, UPON REVIEW OF THE MATTER WE PERCEIVE NO BASIS FOR MODIFYING ANY PORTION OF OUR DECISION OF JULY 13, AND SUCH DECISION IS THEREFORE AFFIRMED.

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