B-154141, MAY 22, 1964

B-154141, MAY 22, 1964

TO MALAKER LABORATORIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1964, ADDRESSED TO MAJOR GENERAL ALDEN SIBLEY, U.S. MOBILITY COMMAND, DETROIT, MICHIGAN, PROTESTING THE AWARD OF A CONTRACT TO OTHER THAN YOUR FIRM UNDER REQUEST FOR QUOTATIONS AMC (T/-44-009-64-1121-C. YOUR PROTEST WAS REFERRED TO THIS OFFICE BY HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND.

THE RECORD SHOWS THAT ON MARCH 7, 1963, REPRESENTATIVES OF YOUR FIRM VISITED THE OFFICES OF U.S. ARMY MOBILITY COMMAND FOR THE PURPOSE OF DISCUSSING PRODUCTS MADE BY YOUR FIRM. THE ARMY WAS ADVISED THAT YOU PRODUCE A CRYOGENIC REFRIGERATOR WHICH IS MARKETED COMMERCIALLY AND CARRIES THE REGISTERED NAME "CRYONITE.' YOUR REPRESENTATIVES LEFT COPIES OF YOUR BROCHURE ON "CRYONITE.' THERE WAS NO RESTRICTIVE MARKINGS ON THE BROCHURE NOR WAS THE GOVERNMENT ORALLY ADVISED THAT THE INFORMATION CONTAINED THEREIN WAS PROPRIETARY OR IN ANY WAY RESTRICTED. THE BROCHURE SUBSEQUENTLY WAS SENT TO THE U.S. ARMY ENGINEER RESEARCH AND EQUIPMENT LABORATORIES, FORT BELVOIR, VIRGINIA, THE PROCURING ACTIVITY HAVING AN INTEREST IN THIS TYPE OF COMMODITY.

ON MARCH 25, 1963, YOUR REPRESENTATIVES VISITED THE U.S. ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES AND DISCUSSED THE ARMY'S REQUIREMENTS FOR A MINIATURE CRYOGENIC UNIT. AT THAT MEETING YOUR REPRESENTATIVES WERE ADVISED THAT THE ARMY HAD A REQUIREMENT FOR A COMPACT CLOSED CYCLE REFRIGERATION ENGINE HAVING A COOLING CAPACITY OF 0.3 WATTS; THAT YOUR "CRYONITE," HAVING A COOLING CAPACITY OF 5 WATTS, DID NOT SATISFY THE GOVERNMENT'S SPECIFIC REQUIREMENTS AND TO BE SATISFACTORY IT WOULD HAVE TO BE ADJUSTED IN POWER AND SIZE TO THE REDUCED COOLING CAPACITY.

BY LETTER OF APRIL 26, 1963, YOU SUBMITTED AN UNSOLICITED PROPOSAL TO THE U.S. ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES CONSISTING OF A COPY OF THE SAME BROCHURE LEFT WITH THE MOBILITY COMMAND IN MARCH AND A LETTER DESCRIBING THE DEVICE WITH WHICH YOU PROPOSED TO SATISFY THE ARMY'S REQUIREMENTS. THE PROPOSAL CONTAINED A RESTRICTIVE NOTE AS FOLLOWS:

"THIS DATA SHALL NOT BE DISCLOSED OUTSIDE THE GOVERNMENT OR BE DUPLICATED, USED OR DISCLOSED IN WHOLE OR IN PART FOR ANY PURPOSE OTHER THAN TO EVALUATE THE PROPOSAL, PROVIDED THAT IF A CONTRACT IS AWARDED TO THIS OFFEROR AS A RESULT OF OR IN CONNECTION WITH THE SUBMISSION OF SUCH DATA, THE GOVERNMENT SHALL HAVE THE RIGHT TO DUPLICATE USE OR DISCLOSE THIS DATA TO THE EXTENT PROVIDED IN THE CONTRACT. THIS RESTRICTION DOES NOT LIMIT THE GOVERNMENT'S RIGHT TO USE INFORMATION CONTAINED IN SUCH DATA IF IT IS OBTAINED FROM ANOTHER SOURCE.'

ON SEPTEMBER 16, 1963, U.S. ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES ISSUED REQUEST FOR QUOTATIONS NO. AMC-44-009-64-1121-C FOR THE FABRICATION OF "A CLOSED CYCLE CRYOSTAT" TO BE MADE IN ACCORDANCE WITH AN ATTACHED PURCHASE DESCRIPTION. YOUR FIRM AND OTHERS SUBMITTED PROPOSALS IN RESPONSE TO THE REQUEST. ON JANUARY 31, 1964, AN AMENDMENT WAS ISSUED REVISING THE PURCHASE DESCRIPTION TO REDEFINE THE GOVERNMENT'S REQUIREMENTS SO THAT ALL COMPETING FIRMS WOULD BE QUOTING AGAINST THE SAME STANDARDS. FOLLOWING RECEIPT OF THE REVISED PROPOSALS AND EVALUATION THEREOF, U.S. ARMY ENGINEER RESEARCH AND DEVELOPMENT LABORATORIES RECOMMENDED AN AWARD TO PHILIPS LABORATORIES.

IN YOUR LETTER OF APRIL 1, 1964, YOU PROTEST AGAINST AN AWARD TO ANY FIRM OTHER THAN YOURS FOR THE ALLEGED REASON THAT THE REQUEST AND SPECIFICATIONS ISSUED IN CONNECTION THEREWITH CONTAIN PROPRIETARY DATA TAKEN FROM YOUR UNSOLICITED PROPOSAL OF APRIL 26, 1963.

WITH RESPECT TO THE SIGNIFICANCE OF TECHNICAL DISCLOSURE, YOUR CONTENTIONS ARE AS FOLLOWS:

"THE DISCLOSURE OF THE DATA OUTLINED IN EXHIBIT "A" IS ADEQUATE FOR AN ENGINEER, SKILLED IN THE ART OF REFRIGERATION, TO UTILIZE THE PROPRIETARY KNOWLEDGE DIVULGED TO PRODUCE A CRYOGENIC COOLER WHICH HE COULD NOT HAVE DEVELOPED WITHOUT EXTENSIVE ENGINEERING.

"THE DISCLOSURE OF THE TIME CYCLE ("40 PERCENT") AND POWER REQUIREMENTS ("40 WATTS"), TOGETHER WITH THE NATURE OF THE REFRIGERANT ("HELIUM"), CAN BE CONVERTED IN TERMS OF ENERGY TO THE AMOUNT OF REFRIGERANT BEING COMPRESSED AND EXPANDED TO PROVIDE THE REQUIRED REFRIGERATION.

"THE SIZE ("3 1/2 FEET DIAMETER") AND THE WEIGHT ("5 POUNDS") COMBINED WITH THE GEOMETRICAL DESCRIPTION ("INSULATED COLDHEAD, REGENERATOR, COOLING FINS AND DUAL PISTON COMPRESSOR-EXPANDER") DISCLOSE IMMEDIATELY THAT SIZE OF PISTONS AND THE NATURE OF THE MATERIALS USED, AS WELL AS SIZE AND SHAPE OF THE REGENERATOR (WHICH IS A CRITICAL ELEMENT IN THE DESIGN).'

AS TO THOSE CONTENTIONS IT IS REPORTED BY THE CONTRACTING AGENCY THAT:

(I) EQUATION 1 ON PAGE 10 OF YOUR BROCHURE SHOWS THAT FOR A GIVEN COLD HEAD TEMPERATURE, THREE PARAMETERS CONTROL THE HEAT LOAD: (1) THE AVERAGE PRESSURE OF THE REFRIGERANT, (2) THE RPM OF THE ENGINE, AND (3) THE VOLUME OF THE EXPANSION SPACE. THE DESIGNER IS COMPELLED TO CHOOSE THE BEST COMPROMISE BETWEEN THESE PARAMETERS IN ORDER TO OPTIMIZE THE DESIGN FOR ANY PARTICULAR REQUIREMENT. A DESIGNER CANNOT OBTAIN THE VALUES FOR THESE PARAMETERS FROM THE OUTER DIMENSIONS, WEIGHT AND AVERAGE OR PEAK POWER REQUIREMENTS.

(II) THE "AMOUNT OF REFRIGERANT" CANNOT BE DETERMINED FROM THE POWER INPUT AND THE NATURE OF THE REFRIGERANT WITHOUT MAKING ASSUMPTIONS ABOUT THE RPM OF THE ENGINE AND THE DEVIATION OF THE ENGINE'S PERFORMANCE FROM IDEAL PERFORMANCE DUE TO FRICTION, REGENERATOR EFFICIENCY AND THE SO- CALLED "ADIABATIC LOSS.'

(III) THE DIAMETER, LENGTH AND WEIGHT WILL ESTABLISH A CERTAIN DENSITY, BUT NO INFORMATION RELATING TO PISTON SIZE, NATURE OF MATERIALS USED AND SHAPE OF THE REGENERATOR.

(IV) THE MOST SIGNIFICANT INFORMATION NEEDED BY A DESIGNER TO OBTAIN PERFORMANCE EQUAL TO THE ,CRYOMITE" WAS SET FORTH AS "CRYOMITE SPECIFICATIONS" ON PAGE 14 OF YOUR BROCHURE. THIS INFORMATION WAS NOT DISCLOSED BY THE GOVERNMENT.

ADDITIONALLY THE CONTRACTING OFFICER HAS FOUND, IN PERTINENT PART, AS FOLLOWS:

"A. NO SINGLE TERM OR COLLECTION OF TERMS USED IN THE RFQ AND THE PURCHASE DESCRIPTION DISCLOSES ANY INFORMATION WHICH IS PROPRIETARY TO MALAKER LABORATORIES. THE PURCHASE DESCRIPTION MERELY RECITED THE GOVERNMENT'S REQUIREMENTS IN TERMS ALREADY FAMILIAR TO INDUSTRY AND WITHIN THE THEN EXISTING STATE OF THE ART.

"AN ARTICLE APPEARED IN A TRADE PUBLICATION ENTITLED "SIGNAL MAGAZINE" IN MAY 1963 REGARDING CRYO-ELECTRONICS. THE ARTICLE WAS PREPARED BY TWO EMPLOYEES OF PHILIPS LABORATORIES, THE LOW OFFEROR TO THE RFQ IN QUESTION. THE ARTICLE REVEALS THAT IN MARCH 1963, ONE MONTH PRIOR TO MALAKER'S UNSOLICITED PROPOSAL, PHILIPS LABORATORIES SUCCESSFULLY TESTED ITS "CRYOGEM" IN CONNECTION WITH A PARTICULAR SYSTEM. THE "CRYOGEM" IS PHILIPS' COMMERCIALLY MARKETED CRYOGENIC REFRIGERATOR. A REPRINT OF THAT ARTICLE IS ATTACHED TO THIS REPORT (EXHIBIT "F"). THE ARTICLE STATES THAT PHILIPS HAS DEMONSTRATED "THE APPLICATION OF STIRLING CYCLE TO A MINIATURE COOLER.' ADDITIONALLY THE "CRYOGEM" IS DESCRIBED AS A COMPACT, SINGLE STAGE, CLOSED CYCLE REFRIGERATOR CAPABLE OF PRODUCING REFRIGERATION DOWN TO 25 DEGREES K. THE PURCHASE DESCRIPTION OF THE RFQ REQUIRES THAT THE UNIT TO BE PRODUCED FOR THE GOVERNMENT COOL DOWN TO 77 DEGREES K. IT IS READILY APPARENT, THEREFORE, THAT THE COMMERCIAL PRODUCT OF PHILIPS EXCEEDS THE GOVERNMENT REQUIREMENTS IN THIS REGARD. FURTHER, THE ARTICLE CLEARLY POINTS OUT THAT HELIUM GAS IS USED WITH THE PHILIPS COOLER. THE DIMENSIONS AND WEIGHT OF THE "CRYOGEM" ARE ALSO DESCRIBED, AND IT IS NOTED THAT IN THIS RESPECT THE "CRYOGEM" AND MALAKER'S "CRYOMITE" ARE NOT SUBSTANTIALLY DISSIMILAR. THE FOLLOWING COMPARISON OF THE COMMERCIAL MODELS OF MALAKER AND PHILIPS VIVIDLY DEMONSTRATES THE LIKENESS AND THE STATE OF THE ART EXISTING PRIOR TO THE UNSOLICITED PROPOSAL:

CHART

MALAKER PHILIPS OPERATING TEMPERATURE 80 DEGREES K 25 DEGREES K-300

DEGREES K COOLING OUTPUT 5 WATTS AT 80 10 WATTS AT 80

DEGREES K DEGREES KPOWER INPUT 100 WATTS 100 WATTS AT

100 DEGREES K WEIGHT: (EXCLUDING MOTOR AND

5 POUNDS NO FIGURE VACUUM HEAD) (EXCLUDING MOTOR) NO FIGURE

ABOUT 12 POUNDS SIZE: (EXCLUDING MOTOR) 4 INCHES DIAMETER 4 INCHES BY 4 INCHES

BY 6 INCHES LONG BY 12 INCHES COOL-DOWN TIME 12 MINUTES 6-7 MINUTES"

FURTHER, SINCE THE BROCHURE DELIVERED TO THE GOVERNMENT IN MARCH 1963 CONTAINED NO RESTRICTIVE MARKINGS AND THE GOVERNMENT WAS NOT ADVISED THAT THE INFORMATION THEREIN WAS PRIVILEGED OR PROPRIETARY, IF THE INFORMATION THEREIN WAS PROPRIETARY AT THAT TIME, IT WOULD APPEAR THAT ITS PROPRIETARY CHARACTER MAY HAVE BEEN LOST WHEN IT WAS DISCLOSED TO THE GOVERNMENT WITHOUT RESTRICTION.

MOREOVER, THE RESTRICTIVE NOTE PLACED ON YOUR UNSOLICITED PROPOSAL RECOGNIZES THE GOVERNMENT'S RIGHT TO DISCLOSE INFORMATION CONTAINED IN THE PROPOSAL IF OBTAINED FROM OTHER SOURCES. IT APPEARS FROM THE MAGAZINE ARTICLE MENTIONED ABOVE A BROCHURE ON NORELCO CYROGENERATORS, WHICH WAS AVAILABLE TO THE PROCURING AGENCY, THAT THE TERMS USED IN EXHIBIT "A" ATTACHED TO YOUR LETTER ARE A COMBINATION OF COMMON TECHNICAL TERMS AND OPERATIONAL REQUIREMENTS OF THE GOVERNMENT WHICH WERE THEN GENERAL KNOWLEDGE IN THE INDUSTRY.

IN VIEW OF THE FOREGOING, THERE WOULD APPEAR TO BE CONSIDERABLE DOUBT THAT YOU EFFECTIVELY RESERVED ANY PROPRIETARY RIGHTS YOU MAY HAVE POSSESSED WITH RESPECT TO THE INFORMATION CONTAINED IN THE BROCHURE SUBMITTED ON MARCH 7, 1963, OR THAT THE CONTRACTING AGENCY USED ANYINFORMATION FROM YOUR APRIL 26 BROCHURE TO WHICH YOU MAY PROPERLY CLAIM AN ENFORCEABLE PROPRIETARY RIGHT. UNDER THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT YOUR RIGHTS HAVE BEEN VIOLATED AND, ACCORDINGLY, YOUR PROTEST MUST BE DENIED.