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B-171222, APR 3, 1972

B-171222 Apr 03, 1972
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EVEN THOUGH THEY MAY HAVE BEEN ALERTED TO THE NEED FOR CORRECTION BY MATERIAL CONTAINED IN TYCO'S ORIGINAL PROTEST. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 11. WE DID NOT AGREE WITH YOUR CONTENTION THAT THE INFORMATION USED IN THE INVITATION WAS IMPROPERLY OBTAINED FROM TYCO'S PROPRIETARY DRAWINGS AND DATA SUBMITTED ON A PREVIOUS SOLICITATION. NOR DO WE FIND A BASIS TO CONCLUDE THAT HE IMPROPERLY UTILIZED INFORMATION WHICH WAS. YOU ALLEGE THAT THE SHAFT DIMENSION ERROR WAS EXPOSED TO THE CONTRACTING OFFICER BECAUSE OUR OFFICE FORWARDED YOUR ORIGINAL PROTEST MATERIAL TO THE CONTRACTING AGENCY FOR A REPORT. WHILE INFORMATION CONTAINED THEREIN MAY HAVE ALERTED THE CONTRACTING AGENCY TO THE SHAFT DIMENSION ERROR.

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B-171222, APR 3, 1972

BID PROTEST - ALLEGED IMPROPER USE OF PROPRIETARY INFORMATION DECISION AFFIRMING PRIOR DENIAL OF A PROTEST OF TYCO, INC., AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN IFB ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER. A PROTEST WHICH RESTRICTS THE GENERAL ACCOUNTING OFFICE FROM FREELY DISTRIBUTING ALLEGED PROPRIETARY INFORMATION MAY NOT BE PROCESSED, SINCE GAO PROCEDURES REQUIRE THAT ALL INTERESTED PARTIES BE PLACED IN A POSITION TO COMMENT SPECIFICALLY ON THE BASES OF A PROTEST. THE RECORD INDICATES THAT THE CONTRACTING AGENCY HAD BEEN PREVIOUSLY AWARE OF THE PROPER SHAFT DIMENSION AND THE COMP. GEN. FINDS NO IMPROPRIETY IN THE AGENCY'S CORRECTION OF THE ERRONEOUS SPECIFICATION, EVEN THOUGH THEY MAY HAVE BEEN ALERTED TO THE NEED FOR CORRECTION BY MATERIAL CONTAINED IN TYCO'S ORIGINAL PROTEST. ACCORDINGLY, THE PRIOR DENIAL MUST BE SUSTAINED.

TO TYCO, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 11, 1971, AND PRIOR CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION B-171222, JANUARY 19, 1971, WHEREIN WE DENIED YOUR PROTEST UNDER A DEFENSE GENERAL SUPPLY CENTER CONTRACT AWARDED UNDER INVITATION FOR BIDS NO. DSA-400-71-B- 0499.

IN OUR DECISION, WE DID NOT AGREE WITH YOUR CONTENTION THAT THE INFORMATION USED IN THE INVITATION WAS IMPROPERLY OBTAINED FROM TYCO'S PROPRIETARY DRAWINGS AND DATA SUBMITTED ON A PREVIOUS SOLICITATION. YOUR REQUEST FOR RECONSIDERATION FURNISHES NO SUBSTANTIAL EVIDENCE TO DISPROVE THE CONTRACTING OFFICER'S EXPLANATION, PREVIOUSLY FURNISHED TO YOU, OF THE INFORMATION UPON WHICH HE BASED THE SPECIFICATIONS IN THE INVITATION IN QUESTION. NOR DO WE FIND A BASIS TO CONCLUDE THAT HE IMPROPERLY UTILIZED INFORMATION WHICH WAS, IN FACT, PROPRIETARY TO YOUR FIRM.

IN ADDITION, WE CONCLUDED THAT THE CONTRACTING OFFICER ACTED PROPERLY IN ISSUING A CHANGE ORDER WHICH CORRECTED A DEFECT IN A SHAFT DIMENSION CONTAINED IN THE INVITATION AND RESULTANT CONTRACT SPECIFICATIONS. WITH RESPECT TO THIS ASPECT OF YOUR REQUEST FOR RECONSIDERATION, YOU ALLEGE THAT THE SHAFT DIMENSION ERROR WAS EXPOSED TO THE CONTRACTING OFFICER BECAUSE OUR OFFICE FORWARDED YOUR ORIGINAL PROTEST MATERIAL TO THE CONTRACTING AGENCY FOR A REPORT. IN ANOTHER PROTEST, YOU RESTRICTED OUR OFFICE FROM FORWARDING ALLEGED PROPRIETARY INFORMATION TO A CONTRACTING AGENCY TO AVOID WHAT, YOU ALLEGE, OCCURRED HERE. IN OUR LETTER TO YOU OF JULY 1, 1971, (B-172728), WE REFUSED TO PROCESS YOUR PROTEST BECAUSE OUR PROCEDURES REQUIRE ALL INTERESTED PARTIES, INCLUDING A CONTRACTING AGENCY, BE GIVEN ACCESS TO ALL NECESSARY INFORMATION WHICH HAD BEEN SUBMITTED IN SUPPORT OF A PROTEST IN ORDER THAT SUCH PARTIES MAY BE IN A POSITION TO COMMENT SPECIFICALLY ON THE BASES OF A PROTEST.

WE FORWARDED YOUR ORIGINAL PROTEST MATERIAL TO THE CONTRACTING AGENCY IN ACCORDANCE WITH OUR ESTABLISHED PROCEDURES SINCE YOU HAD PLACED NO RESTRICTIONS THEREON. WHILE INFORMATION CONTAINED THEREIN MAY HAVE ALERTED THE CONTRACTING AGENCY TO THE SHAFT DIMENSION ERROR, THE FACT REMAINS THAT THE AGENCY HAS BEEN COGNIZANT OF THE CORRECT SHAFT DIMENSION, AS EVIDENCED BY CONTEMPORANEOUS DOCUMENTATION, SINCE 1966. SUCH BEING THE CASE, WE FIND NO IMPROPRIETY IN THE CORRECTION OF THE ERRONEOUS SHAFT DIMENSION EVEN THOUGH IT MAY HAVE BEEN THAT YOUR PROTEST MATERIAL MAY HAVE ALERTED THE CONTRACTING AGENCY TO THE NEED FOR CORRECTION.

IN VIEW OF THE FOREGOING, OUR PRIOR DECISION IS SUSTAINED.

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