B-154676, DEC. 14, 1964

B-154676: Dec 14, 1964

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INC.: THIS IS IN REPLY TO YOUR UNDATED LETTER AND ENCLOSURES RECEIVED HERE ON JULY 8. DISSEMINATION OR USE OF INFORMATION CONTAINED HEREIN IS PROHIBITED WITHOUT PRIOR WRITTEN APPROVAL OF NRA. THAT PROCUREMENT WAS ANTICIPATED DURING FISCAL YEAR 1964. THAT NO INFORMATION DERIVED FROM YOUR PROPOSAL HAD BEEN DISCLOSED AND THAT ALL PROPRIETARY RIGHTS HAD BEEN AND WILL BE OBSERVED. THIS LETTER FURTHER STATED THAT IT "IS WRITTEN FOR INFORMATION ONLY AND IS NOT TO BE CONSTRUED AS A COMMITMENT OF ANY TYPE WHEREBY IT COULD FORM THE BASIS OF ANY FUTURE CLAIMS AGAINST THE GOVERNMENT FOR COMPENSATION IN CONNECTION WITH THIS MATTER.'. WERE REQUESTED TO SUBMIT QUOTATIONS ON AN ENGINEERING STUDY IN ACCORDANCE WITH EXHIBIT "A" DATED SEPTEMBER 17.

B-154676, DEC. 14, 1964

TO NRA, INC.:

THIS IS IN REPLY TO YOUR UNDATED LETTER AND ENCLOSURES RECEIVED HERE ON JULY 8, 1964, PROTESTING AGAINST THE AWARD MADE BY THE DEPARTMENT OF THE AIR FORCE TO THE UNIVERSITY OF MICHIGAN UNDER REQUEST FOR PROPOSALS NO. 64 -461.

YOUR PROTEST ARISES FROM AN UNSOLICITED PROPOSAL SUBMITTED BY YOU TO THE ROME AIR DEVELOPMENT CENTER (RADC) ON MAY 13, 1963, COVERING THE THEORETICAL STUDY OF MISSILE-INDUCED IONOSPHERIC WAVES. THIS PROPOSAL CONTAINED ON ITS FACE A WARNING LEGEND AS FOLLOWS:

"PROPRIETARY INFORMATION"

"REPRODUCTION, DISSEMINATION OR USE OF INFORMATION CONTAINED HEREIN IS PROHIBITED WITHOUT PRIOR WRITTEN APPROVAL OF NRA, INC.'

RADC ADVISED YOU BY LETTER OF AUGUST 29, 1963, THAT YOUR PROPOSAL HAD TECHNICAL MERIT; THAT PROCUREMENT WAS ANTICIPATED DURING FISCAL YEAR 1964; THAT YOU WOULD BE CONSIDERED FOR SOLICITATION, AND THAT NO INFORMATION DERIVED FROM YOUR PROPOSAL HAD BEEN DISCLOSED AND THAT ALL PROPRIETARY RIGHTS HAD BEEN AND WILL BE OBSERVED. THIS LETTER FURTHER STATED THAT IT "IS WRITTEN FOR INFORMATION ONLY AND IS NOT TO BE CONSTRUED AS A COMMITMENT OF ANY TYPE WHEREBY IT COULD FORM THE BASIS OF ANY FUTURE CLAIMS AGAINST THE GOVERNMENT FOR COMPENSATION IN CONNECTION WITH THIS MATTER.'

BY REQUEST, FOR PROPOSALS NO. 64-461, DATED OCTOBER 16, 1963, 20 FIRMS, INCLUDING NRA, WERE REQUESTED TO SUBMIT QUOTATIONS ON AN ENGINEERING STUDY IN ACCORDANCE WITH EXHIBIT "A" DATED SEPTEMBER 17, 1963, ENTITLED "PURCHASE REQUEST CONTINUATION SHEET FOR: MISSILE IONOSPHERE COUPLING PHENOMENA," A CONTRACT STATUS REPORT IN ACCORDANCE WITH EXHIBIT "A," AND A TECHNICAL DOCUMENTARY REPORT IN ACCORDANCE WITH EXHIBIT "A.' HOWEVER, YOUR PROPOSAL WAS DETERMINED TO BE UNACCEPTABLE ON THE BASIS OF A TECHNICAL EVALUATION OF YOUR PRESENTATION. AWARD WAS MADE ON JUNE 3, 1964, TO THE REGENTS OF THE UNIVERSITY OF MICHIGAN AS THE LOWEST ACCEPTABLE OFFEROR UNDER THE REQUEST FOR PROPOSALS.

YOU ALLEGE THAT THE REQUEST FOR PROPOSALS WAS BASED ON YOUR INDEPENDENT RESEARCH AND FINDINGS WHICH UTILIZED THE UNIQUENESS OF YOUR IDEAS AND THEORETICALLY PROVABLE CONCEPTS, ALL WHICH WERE DISCLOSED TO THE AIR FORCE BY YOUR UNSOLICITED PROPOSAL. FURTHER, YOU CONTEND THAT YOUR PROPRIETARY RIGHTS IN SUCH DISCLOSED INFORMATION WERE VIOLATED BY THE ISSUANCE OF THE REQUEST FOR PROPOSALS. THEREFORE, YOU REQUEST THAT WE DIRECT THE AIR FORCE TO CANCEL THE CONTRACT AWARDED TO THE UNIVERSITY AND TO MAKE THE AWARD TO YOU. UPON REVIEW OF THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD OF THE CONTRACT TO THE UNIVERSITY.

PARAGRAPH 4-205.1 (E) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES:

"/E) UNSOLICITED PROPOSALS. UNSOLICITED PROPOSALS MAY BE THE PRODUCT OF ORIGINAL THINKING AND GENERALLY ARE THE PROPERTY OF THE ORGANIZATION OR INDIVIDUAL WHO PRESENTS THEM. THEY ARE OFFERED IN THE HOPE THAT THE GOVERNMENT WILL CONTRACT WITH THE OFFEROR FOR FURTHER RESEARCH ON, OR DEVELOPMENT OF, THE IDEAS THEY CONTAIN. EXTREME CARE MUST BE EXERCISED BY THE GOVERNMENT NOT TO DISCLOSE TO THIRD PARTIES ANY PROPRIETARY INFORMATION CONTAINED IN UNSOLICITED PROPOSALS. UNSOLICITED PROPOSALS RECEIVED BY PROCURING ACTIVITIES SHALL BE HANDLED IN A MANNER WHICH WILL ENCOURAGE PROSPECTIVE CONTRACTORS TO DISCLOSE TO THE GOVERNMENT IDEAS WHICH THEY HAVE ORIGINATED, CONCEIVED, OR DEVELOPED.'

PROPRIETARY RIGHTS WHICH MAY BE INVOLVED IN UNSOLICITED PROPOSALS ARE DEFINED IN THE AIR FORCE SYSTEMS COMMAND (ASFC) REGULATION NO. 80-8 AS FOLLOWS:

"2. EXPLANATION OF TERMS. CERTAIN TERMS USED IN THIS SPHERE OF WORK ARE DEFINED AS FOLLOWS:

"B. "PROPRIETARY RIGHTS"--- EXCLUSIVE RIGHTS OF OWNERSHIP IN INTELLECTUAL PROPERTY ARISING BY VIRTUE OF AUTHORSHIP, INVENTION, OR DISCOVERY, AND INCLUDING INVENTIONS, IDEAS, SCHEMES, TECHNIQUES, OR METHODS (WHETHER OR NOT PATENTABLE). PROPRIETARY RIGHTS MAY OR MAY NOT BE IN THE FORM OF A PROPOSAL SUITABLE FOR ADOPTION AS A PART OF THE APPROVED R AND D PROGRAM.'

IN CONNECTION WITH YOUR UNSOLICITED PROPOSAL, YOU EXECUTED AFSC FORM 91 WHEREIN YOU AGREED TO THE FOLLOWING POLICY:

"1. THE AIR FORCE SYSTEMS COMMAND HAS A CONTINUING INTEREST IN RECEIVING AND EVALUATING VOLUNTARY SUBMISSIONS WHICH CONTAIN NEW IDEAS, SUGGESTIONS AND INVENTIVE CONCEPTS WHICH ARE GERMANE TO THE POTENTIAL NEEDS OF THE AIR FORCE. HOWEVER, THE MILITARY SERVICE HAS MANY OF ITS PERSONNEL AND CONTRACTORS WORKING ON RESEARCH AND DEVELOPMENT; CONSEQUENTLY THE SUBSTANCE OF YOUR SUBMISSION MAY ALREADY BE KNOWN TO GOVERNMENT EMPLOYEES, GOVERNMENT CONTRACTORS OR MAY ALREADY BE IN THE PUBLIC DOMAIN. ACCORDINGLY, IT HAS BEEN FOUND DESIRABLE, IN RECEIVING VOLUNTARY SUBMISSIONS FOR EVALUATION, TO EXERCISE SUCH PRECAUTION AS WILL PRECLUDE MISUNDERSTANDING BY THE SUBMITTER AND WILL PREVENT SUCH SUBMISSIONS FROM HAVING ANY RESTRICTIVE OR LIMITING EFFECT ON THE AIR FORCE SYSTEMS COMMAND RESEARCH AND DEVELOPMENT PROGRAMS.

"2. IT SHOULD BE UNDERSTOOD THAT ACCEPTANCE FOR TEXT OR EVALUATION FOR POTENTIAL USEFULNESS TO THE AIR FORCE DOES NOT IMPLY A PROMISE TO PAY, A RECOGNITION OF NOVELTY, ORIGINALITY, UNIQUENESS OR A CONTRACTUAL RELATIONSHIP SUCH AS WOULD RENDER THE GOVERNMENT LIABLE TO PAY FOR ANY USE OF INFORMATION TO WHICH IT WOULD OTHERWISE BE ENTITLED. THE AIR FORCE HAS NO INTENTION OF USING ANY INVENTION, ARTICLE OR DISCLOSURE IN WHICH THE SUBMITTER HAS ESTABLISHED PROPERTY RIGHTS, WITHOUT PROPER COMPENSATION.

"6. THE EVALUATION OR TESTING OF VOLUNTARY SUBMISSIONS WILL IN NO WAY OBLIGATE THE GOVERNMENT TO PROCURE EXPERIMENTAL, PRODUCTION OR OTHER QUANTITIES OF THE ARTICLE SUBMITTED OR THE ITEM COVERED BY THE DISCLOSURE.

"7. THE VOLUNTARY SUBMISSIONS SUBMITTED WILL BE HANDLED IN ACCORDANCE WITH ESTABLISHED GOVERNMENTAL PROCEDURES FOR SAFEGUARDING SUCH ARTICLES OR INFORMATION AGAINST UNAUTHORIZED DISCLOSURE. THE SUBMITTER AGREES THAT ANY LIABILITY BY REASON OF UNAUTHORIZED DISCLOSURE BY THE GOVERNMENT WILL NOT EXTEND BEYOND THE ACTUAL DAMAGE TO THE SUBMITTER CAUSED BY ACTS OF THE GOVERNMENT.

YOUR CLAIM OF PROPRIETARY RIGHTS TO THE INFORMATION CONTAINED IN THE UNSOLICITED PROPOSAL IS COMPLETELY DENIED BY RESPONSIBLE AND KNOWLEDGEABLE TECHNICAL PERSONNEL OF THE AIR FORCE. THEY REPORT THAT NRA NEITHER BASICALLY DISCLOSED A NEW TECHNICAL PHENOMENA OR A UNIQUELY DESIRABLE APPROACH TO THE SOLUTION OF UNKNOWNS INVOLVED IN MAGNETOHYDRODYNAMIC PHENOMENOLOGY. IN YOUR LETTER TO OUR OFFICE, YOU CLAIM THAT NRA DEVELOPED AND DISCLOSED TO THE AIR FORCE A NEW SCHEME FOR MISSILE DETECTION THROUGH THE PROPAGATION OF MAGNETOHYDRODYNAMIC WAVES. THE AIR FORCE HAS ADVISED THAT IT HAS BEEN INVESTIGATING SUCH A SCHEME SINCE 1961 AND THAT MUCH UNCLASSIFIED LITERATURE ON THE GENERAL PHENOMENOLOGY IS AVAILABLE. THE BASIC CONCLUSION STATED BY YOU IN THE THIRD PARAGRAPH ON PAGE 2 OF YOUR LETTER TO OUR OFFICE HAS BEEN COMMON KNOWLEDGE VERIFIED BY EXPERIMENTS OF THE ARMY, NAVY, AIR FORCE, AND THE ADVANCED RESEARCH PROJECTS AGENCY OF THE DEPARTMENT OF DEFENSE. IN SUMMATION, WE HAVE BEEN ADVISED THAT A THOROUGH REVIEW BY AIR FORCE TECHNICAL AGENCIES AND PERSONNEL OF YOUR PROTEST HAS REVEALED NO COMPROMISE OF PROPRIETARY INFORMATION WHICH HAD BEEN DISCLOSED BY YOUR UNSOLICITED PROPOSALS; ALSO ON TWO OCCASIONS NRA WAS REQUESTED TO PROVIDE SPECIFIC DETAILS, WITH SUPPORTING PERTINENT DOCUMENTATION, AS TO THOSE CONFIDENTIAL AREAS DEEMED TO HAVE BEEN VIOLATED. TO DATE, NRA HAS NOT COMPLIED WITH THAT REQUEST. WHILE YOUR LETTER OF PROTEST POINTS OUT SOME AREAS OF SIMILARITY BETWEEN THE NRA UNSOLICITED PROPOSAL AND THE AIR FORCE REQUEST FOR PROPOSALS, EXPERIENCED AND QUALIFIED PERSONNEL HAVE BEEN UNABLE TO LEND ANY DEGREE OF CREDENCE TO YOUR CONTENTION. WE THEREFORE ARE UNABLE TO CONCLUDE THAT THE AIR FORCE COMPROMISED "PROPRIETARY" INFORMATION CONTAINED IN YOUR UNSOLICITED PROPOSAL.

WITH RESPECT TO DECISIONS OF OUR OFFICE CITED BY YOU IN SUPPORT OF YOUR CONTENTION THAT THE VIOLATION OF YOUR PROPRIETARY RIGHTS REQUIRES THE CANCELLATION OF THE AWARD MADE AND THE AWARD OF THE PROCUREMENT TO NRA, YOU ARE ADVISED THAT DECISION B-143711 OF DECEMBER 22, 1960, CONSIDERED A PROTEST AGAINST THE UNWARRANTED USE OF PROPRIETARY INFORMATION WHICH WAS DISCLOSED TO THE AIR FORCE UNDER CONDITIONS REQUIRING THE GOVERNMENT TO SAFEGUARD THE PROPRIETARY CHARACTER OF THE INFORMATION. THAT IS NOT THE CASE HERE. ALSO, IN 41 COMP. GEN. 148 AND 43 ID. 193, WE CONSIDERED SITUATIONS WHEREIN THE GOVERNMENT COMPROMISED THE CONFIDENTIAL CHARACTER OF PROPRIETARY DATA CONTRARY TO ITS AGREEMENT WITH THE CONTRACTOR. HERE AGAIN, THE DATA INVOLVED WAS IN FACT PROPRIETARY.

IN VIEW THEREOF, AND SINCE THE AIR FORCE WAS OBLIGATED ONLY TO SAFEGUARD "PROPRIETARY" RIGHTS DISCLOSED TO IT UNDER THE PROCEDURES GOVERNING THE RECEIPT, HANDLING AND DISPOSITION OF UNSOLICITED PROPOSALS, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE TO THE UNIVERSITY.