B-156134, MAY 14, 1965

B-156134: May 14, 1965

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TO RADIO ENGINEERING PRODUCTS LIMITED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. PROTESTING THE USE OF DRAWINGS FOR COMPETITIVE PROCUREMENT WHICH WERE ORIGINALLY FURNISHED BY YOU TO THE DEPARTMENT OF THE ARMY UNDER ORDER NO. 891-PP-57- 93-54 ALLEGING THAT ONLY LIMITED RIGHTS THEREIN WERE CONVEYED TO THE ARMY UNDER THIS ORDER. IN THE MEMORANDUM FURNISHED IN SUPPORT OF YOUR PROTEST IT IS STATED THAT AT THE TIME ARMY NOMENCLATURE WAS ASSIGNED TO THIS ADAPTER. THE AVAILABLE RECORD SHOWS THAT RADIO ENGINEERING PRODUCTS WAS A SUBCONTRACTOR UNDER THE REFERENCED ORDER. THAT THE DRAWINGS AND DATA IN QUESTION WERE FURNISHED AS AN END ITEM UNDER THIS CONTRACT. IT WAS EXPRESSLY PROVIDED UNDER NOTE 10.

B-156134, MAY 14, 1965

TO RADIO ENGINEERING PRODUCTS LIMITED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1965, PROTESTING THE USE OF DRAWINGS FOR COMPETITIVE PROCUREMENT WHICH WERE ORIGINALLY FURNISHED BY YOU TO THE DEPARTMENT OF THE ARMY UNDER ORDER NO. 891-PP-57- 93-54 ALLEGING THAT ONLY LIMITED RIGHTS THEREIN WERE CONVEYED TO THE ARMY UNDER THIS ORDER. YOU REQUEST THAT INVITATION FOR BIDS (IFB) NO. AMC-11- 022-65-2178 (E) BASED ON THESE DRAWINGS BE CANCELED AND THAT THE REQUIREMENTS FOR THE ITEM, I.E., UG-1312 ( ( (U ADAPTER, CONNECTOR, BE PURCHASED FROM YOUR FIRM ON A NEGOTIATED BASIS OR THAT YOUR BID ON THE PRESENT IFB BE ACCEPTED. YOU ALSO EXPRESS THE WILLINGNESS TO NEGOTIATE FOR THE ACQUISITION BY THE GOVERNMENT OF UNLIMITED RIGHTS IN THE DATA AND DRAWINGS IN QUESTION.

IN THE MEMORANDUM FURNISHED IN SUPPORT OF YOUR PROTEST IT IS STATED THAT AT THE TIME ARMY NOMENCLATURE WAS ASSIGNED TO THIS ADAPTER, CONNECTOR AND YOU PREPARED DRAWINGS OF IT IN SIGNAL CORPS FORMAT YOU EXPLICITLY RESERVED YOUR "PROPRIETARY RIGHTS IN DISCUSSIONS WITH THE CHIEF ENGINEER OF USASESA, MR. H. F. HUBBARD, AND HIS REPRESENTATIVE, MR. W. J. LAVERICK, AND COOPERATED WITH THEM IN STANDARDIZING THE PROCUREMENT INFORMATION ONLY ON THIS BASIS.' CORROBORATIVE EVIDENCE TO ESTABLISH THE "DISCUSSIONS" REFERRED TO, HOWEVER, HAS NOT BEEN FURNISHED WITH YOUR PROTEST.

THE AVAILABLE RECORD SHOWS THAT RADIO ENGINEERING PRODUCTS WAS A SUBCONTRACTOR UNDER THE REFERENCED ORDER, I.E., CONTRACT NO. DA 36-039 SC- 66422 DATED JUNE 26, 1957, AND THAT THE DRAWINGS AND DATA IN QUESTION WERE FURNISHED AS AN END ITEM UNDER THIS CONTRACT. IT WAS EXPRESSLY PROVIDED UNDER NOTE 10, PARAGRAPH "D," OF THE CONTRACT THAT THE DRAWINGS COULD BE USED FOR REPROCUREMENT, AS FOLLOWS:

"IT IS UNDERSTOOD THAT THESE PRODUCTION DRAWINGS WILL BE UTILIZED BY THE CONTRACTOR IN THE MANUFACTURE OF THE EQUIPMENT WHICH THEY COVER. IT IS FURTHER UNDERSTOOD THAT THESE PRODUCTION DRAWINGS WILL BE USED BY THE GOVERNMENT FOR CHECKING EQUIPMENT PRODUCED ON THE CONTRACT AND REPROCUREMENT OF EQUIPMENT OR PROCUREMENT OF MAINTENANCE ITEMS FOR THE EQUIPMENT.'

IN ADDITION, THE CONTRACT ALSO CONTAINED ARTICLE 9 GRANTING LICENSE RIGHTS IN ALL COPYRIGHTABLE MATERIAL FIRST PRODUCED OR COMPOSED AND DELIVERED TO THE GOVERNMENT UNDER THE CONTRACT, AND THE FOLLOWING PROVISIONS OF ARTICLE 12 PERTAINING TO THE REPRODUCTION AND USE OF TECHNICAL DATA:

"ARTICLE 12 REPRODUCTION AND USE OF TECHNICAL DATA (ASPR 9-112, ASPR REV. NO. 1, 4 JAN 55/--- THE CONTRACTOR AGREES TO AND DOES HEREBY GRANT TO THE GOVERNMENT, TO THE FULL EXTENT OF THE CONTRACTOR'S RIGHT TO DO SO WITHOUT PAYMENT OF COMPENSATION TO OTHERS, THE RIGHT TO REPRODUCE, USE AND DISCLOSE FOR GOVERNMENTAL PURPOSES (INCLUDING THE RIGHT TO GIVE TO FOREIGN GOVERNMENTS FOR THEIR USE AS THE NATIONAL INTEREST OF THE UNITED STATES MAY DEMAND) ALL OR ANY PART OF THE REPORTS, DRAWINGS, BLUEPRINTS, DATA, AND TECHNICAL INFORMATION SPECIFIED TO BE DELIVERED BY THE CONTRACTOR TO THE GOVERNMENT UNDER THIS CONTRACT; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS PARAGRAPH SHALL BE DEEMED, DIRECTLY OR BY IMPLICATION, TO GRANT ANY LICENSE UNDER ANY PATENT NOW OR HEREAFTER ISSUED OR TO GRANT ANY RIGHT TO REPRODUCE ANYTHING ELSE CALLED FOR BY THIS CONTRACT.'

IT THEREFORE SEEMS REASONABLY CLEAR FROM THESE EXPRESS PROVISIONS OF THE CONTRACT UNDER WHICH THE DRAWINGS AND DATA IN QUESTION WERE FURNISHED THAT THE GOVERNMENT ACQUIRED THE UNRESTRICTED RIGHT TO "REPRODUCE, USE AND DISCLOSE" DRAWINGS AND DATA FOR REPROCUREMENT AND OTHER ,GOVERNMENTAL PURPOSES.' CF. OUR DECISION OF FEBRUARY 5, 1965, B-152684, WHERE SIMILAR PROVISIONS WERE CONSIDERED.

WITH RESPECT TO YOUR CONTENTION THAT PROPRIETARY RIGHTS WERE RESERVED IN "DISCUSSIONS" OR CONVERSATIONS WITH REPRESENTATIVES OF THE ARMY, IT IS NOTED THAT THESE CONVERSATIONS APPARENTLY WOULD HAVE TAKEN PLACE BETWEEN JUNE 1959 AND FEBRUARY 1960; IN OTHER WORDS, LONG AFTER THE DRAWINGS AND DATA WERE PREPARED AND DELIVERED TO THE GOVERNMENT UNDER THE CONTRACT OF JUNE 1957. IN OUR OPINION, SUCH ORAL DISCUSSIONS, IF ESTABLISHED, PROPERLY WOULD NOT AFFORD JUSTIFICATION FOR A DETERMINATION ADVERSELY AFFECTING THE RIGHTS THERETOFORE ACQUIRED BY THE GOVERNMENT UNDER THE 1957 CONTRACT.

FROM A CAREFUL CONSIDERATION OF ALL THE INFORMATION AND EVIDENCE OF RECORD WE FIND NO BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION IN THIS CASE.