B-148288, SEP. 26, 1962

B-148288, SEP. 26, 1962

TO ROBBINS AVIATION, INCORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 28, 1962, REQUESTING FURTHER RECONSIDERATION OF OUR DECISION OF JUNE 1, 1962, WHICH DISALLOWED YOUR PROTEST AGAINST THE ACTION OF THE DEPARTMENT OF THE AIR FORCE IN AWARDING A CONTRACT FOR DESICCANT CARTRIDGES TO PERMANENT FILTER CORPORATION (PERMANENT).

YOUR LETTER ADVISES THAT PATENT NO. 3,047,993 WAS GRANTED ON AUGUST 7, 1962, ON THE CARTRIDGE IN QUESTION, AND THAT BOTH WARNER ROBINS AIR MATERIEL AREA AND PERMANENT FILTER CORPORATION WERE SPECIFICALLY ADVISED AND CAUTIONED THAT THE ARTICLE WAS "PATENT PENDING" AT THE TIME OF THE PROCUREMENT TO WHICH YOUR PROTEST IS DIRECTED. IN VIEW OF THIS KNOWLEDGE, YOU CONTEND IT IS IMMATERIAL WHETHER PERMANENT OBTAINED MANUFACTURING DATA RELATIVE TO THE CARTRIDGE FROM A FORMER EMPLOYEE OF YOUR COMPANY; THAT IT IS SUFFICIENT FOR THE PURPOSE OF YOUR PROTEST THAT THE AIR FORCE HAD KNOWLEDGE THAT PERMANENT WAS SUPPLYING IT WITH A PRODUCT MANUFACTURED IN AN ATTEMPT TO DUPLICATE AN ITEM, THE DESIGN OF WHICH BELONGED TO SOMEONE ELSE; AND THAT THE AWARD OF A CONTRACT TO PERMANENT UNDER SUCH CIRCUMSTANCES CONSTITUTES AN INVASION OF YOUR PROPERTY RIGHTS AND A THEFT OF YOUR PROPERTY TO WHICH THE AIR FORCE IS AN ACCESSORY.

THESE CONTENTIONS DIFFER SUBSTANTIALLY FROM YOUR PREVIOUS POSITION THAT DRAWINGS PROPRIETARY TO YOUR COMPANY HAD BEEN TURNED OVER TO PERMANENT BY AIR FORCE PERSONNEL, AND THAT SUCH ACTION REQUIRED CANCELLATION OF THE AWARD TO PERMANENT. IN THIS CONNECTION, IT MUST BE BORNE IN MIND THAT THE JURISDICTION OF THIS OFFICE IN PROTESTS AGAINST CONTRACT AWARDS IS LIMITED TO DETERMINING WHETHER THE CONTRACT CONSTITUTES A LEGAL AND BINDING OBLIGATION, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, AGAINST THE GOVERNMENT. THE PRIMARY QUESTION FOR DETERMINATION BY THIS OFFICE THEREFORE IS WHETHER THE PROCUREMENT PROCEDURES FOLLOWED, AND THE RESULTANT AWARD, CONSTITUTE VIOLATIONS OF APPLICABLE STATUTES OR REGULATIONS WHICH RENDER THE CONTRACT AWARDED UNENFORCEABLE. YOUR ORIGINAL CONTENTION, THAT DATA PROPRIETARY TO YOUR COMPANY HAD BEEN IMPROPERLY RELEASED TO PERMANENT BY AIR FORCE PERSONNEL, THEREFORE RAISED QUESTIONS PROPERLY FOR CONSIDERATION BY THIS OFFICE, AND OUR INVESTIGATION WAS CONDUCTED ON THAT BASIS.

HOWEVER, EVEN IF IT IS CONCEDED THAT AIR FORCE HAD NOTICE OF YOUR PATENT APPLICATION ON THE DESICCANT CARTRIDGE IN QUESTION, AND ASSUMING WITHOUT CONCEDING THAT PERMANENT INTENDED TO DUPLICATE THE ITEM, WE ARE NOT AWARE OF ANY LAW, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, WHICH WOULD RENDER THE CONTRACT AWARDED TO PERMANENT VOID OR UNENFORCEABLE BECAUSE OF SUCH KNOWLEDGE. WHETHER THE PROCUREMENT PROCEDURE FOLLOWED BY THE AIR FORCE VIOLATED YOUR CONSTITUTIONAL RIGHTS, AS CONTENDED IN YOUR LETTER, WOULD APPEAR TO BE A MATTER FOR DETERMINATION BY THE COURTS HAVING JURISDICTION TO DETERMINE QUESTIONS OF THAT NATURE, RATHER THAN BY THIS OFFICE. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO 28 U.S.C. 1498 PROVIDING FOR SUIT AGAINST THE UNITED STATES IN THE EVENT OF PATENT INFRINGEMENT BY ONE OF ITS CONTRACTORS.

IN VIEW OF THE FOREGOING WE ARE UNABLE TO CONCLUDE THAT THE EVIDENCE OF RECORD PRESENTS ANY SUFFICIENT JUSTIFICATION TO SUPPORT A CONCLUSION BY THIS OFFICE THAT THE CONTRACT AWARDED TO PERMANENT IS UNENFORCEABLE AND SHOULD BE CANCELLED. WE MUST THEREFORE REAFFIRM OUR PRIOR ..END :