B-157652, JUN. 29, 1966

B-157652, JUN. 29, 1966

TO SELLERS, CONNER AND CUNEO:

REFERENCE IS MADE TO THE CORRESPONDENCE AND CONFERENCES YOU AND REPRESENTATIVES OF THE EAGLE CRUSHER COMPANY, INC., HAVE HAD WITH OUR OFFICE ON PROTESTS RELATING TO DEFENSE SUPPLY AGENCY (DSA) INVITATIONS FOR BIDS DSA-700-66-0598 AND -1298 AND REQUESTS FOR PROPOSALS DSA-700 66-NEG- 1302, -2453 AND -2663.

IN B-150369, AUGUST 22, 1963, 43 COMP. GEN. 193, OUR OFFICE HELD THAT DSA, IN A SOLICITATION FOR BIDS ON SPARE PARTS, COULD NOT PROPERLY USE ROCK CRUSHER SPARE PARTS DRAWINGS FURNISHED IN CONFIDENCE TO DSA BY EAGLE CRUSHER IN AN EARLIER PROCUREMENT FOR ROCK CRUSHERS AND THAT THE DRAWINGS SO ISSUED WITH AN INVITATION FOR BIDS SHOULD BE RECOVERED. SUBSEQUENTLY, IN B-153941, AUGUST 27, 1964, OUR OFFICE INDICATED THAT IT DOUBTED THAT A DSA DRAWING OF A SPARE PART KNOWN AS A MOVABLE JAW CRUSHER WAS PREPARED INDEPENDENT OF THE EAGLE CRUSHER CONFIDENTIAL SPARE PART DRAWING FOR THAT ITEM AND HELD THAT IT TOO COULD NOT BE USED IN AN INVITATION FOR BIDS FOR MOVABLE JAW CRUSHERS AND THAT THE INVITATION FOR BIDS SHOULD BE WITHDRAWN. AT A LATER DATE, DSA ISSUED A REQUEST FOR PROPOSALS FOR A QUANTITY OF STATIONARY JAW CRUSHERS DESCRIBED BRIEFLY AS EAGLE CRUSHER PART NUMBER 1120A. THE REQUEST FOR PROPOSALS MADE NO REFERENCE TO ANY DRAWINGS. EABLE CRUSHER AND ANOTHER COMPANY FURNISHED PROPOSALS FOR THE JAW CRUSHERS. DSA INQUIRED OF THE OTHER COMPANY HOW IT INTENDED TO BE ABLE TO SUPPLY THE JAW CRUSHERS IF GRANTED A CONTRACT. THE COMPANY RESPONDED BY FURNISHING A DRAWING OF STATIONARY AND MOVABLE JAW CRUSHERS WHICH DRAWING ON ITS FACE PURPORTS TO HAVE BEEN PREPARED FROM DATA OBTAINED FROM WORN SAMPLES OF EAGLE CRUSHER JAW CRUSHERS. THE COMPANY ADVISED FURTHER THAT IF IT WERE TO RECEIVE A CONTRACT FOR THE JAW CRUSHERS IT WOULD PROVIDE THE DRAWING AND THE RIGHT OF UNLIMITED USE TO DSA AS A PART OF THE CONTRACT. DSA CONTRACTED WITH THE COMPANY ON THAT BASIS AND HAS USED THE DRAWING SO OBTAINED AS PART OF SUBSEQUENT SOLICITATIONS FOR BIDS FOR STATIONARY AND MOVABLE JAW CRUSHERS. IN SOMEWHAT SIMILAR FASHION, DSA HAS OBTAINED DRAWINGS FROM THE KENSINGTON STEEL DIVISION OF POOR AND COMPANY OF SPARE PARTS KNOWN AS SMOOTH ROLLS. DSA HAS NOTED THAT, UNLIKE THE SITUATION WITH THE EAGLE CRUSHER DRAWINGS OF THE JAW CRUSHERS, DSA HAS NEVER DISCLOSED THE EAGLE CRUSHER DRAWINGS OF SMOOTH ROLLS. EAGLE CRUSHER PROTESTS THE USE OF THE AFTER-ACQUIRED DRAWINGS ON THE JAW CRUSHERS AND THE SMOOTH ROLLS ON THE BASIS THAT SUCH USE IS IN DEROGATION OF THE PRIOR DECISIONS CITED ABOVE.

IN THE EARLY CONSIDERATION OF THIS MATTER, CONFLICTING VIEWPOINTS WERE EXPRESSED BY DSA AND EAGLE CRUSHER AS TO WHETHER THE DRAWINGS FURNISHED BY EABLE CRUSHER CONTAINED PROPRIETARY DATA. WHILE IN THE EARLY DECISION THE EAGLE CRUSHER DATA IS REFERRED TO AS BEING "PROPRIETARY," THE WORD WAS USED ONLY AS A TERM OF DESCRIPTION RATHER THAN AS A TERM OF ART. THIS IS MANIFESTED IN THE DECISION IN THAT IT RECOGNIZES THE POSSIBLE DEROGATION OF THE LICENSE GRANTED THE GOVERNMENT UNDER THE RIGHTS IN DATA CLAUSE EMPLOYED IN THE ROCK CRUSHER CONTRACT WITH EAGLE CRUSHER, BUT TURNS INSTEAD ON THE BASIS THAT SINCE EAGLE CRUSHER HAD FURNISHED THE DRAWINGS WITH THE UNDERSTANDING THAT THEY WOULD BE TREATED AS CONFIDENTIAL AND NOT DISCLOSED TO COMPETITION, PRINCIPLES OF EQUITY AND FAIR DEALING DICTATED THAT THE DRAWINGS BE REGARDED AS CONFIDENTIAL NONETHELESS. THEREFORE, WHEN IT APPEARED THAT DSA WAS NOT OBSERVING THE CONFIDENCE REPOSED IN THE GOVERNMENT BY PUBLISHING EAGLE CRUSHER DRAWINGS AND DRAWINGS WHICH APPEARED TO HAVE BEEN COPIED BY DSA FROM EAGLE CRUSHER DRAWINGS, OUR OFFICE OBJECTED TO THIS BREACH OF CONFIDENCE. HOWEVER, THOSE DECISIONS DID NOT FORECLOSE DSA FROM USING ANY OTHER AVENUES AVAILABLE TO IT FOR OBTAINING SIMILAR INFORMATION THROUGH PROPER MEANS. THE RESTATEMENT, TORTS SECTION 757, RECOGNIZES THAT WHILE A PARTY MAY BE PRECLUDED FROM USING INFORMATION OBTAINED IN CONFIDENCE, HE IS NOT PRECLUDED, BUT RATHER MAY BE COMPELLED TO GO TO ANOTHER SOURCE FOR THE INFORMATION. THE SITUATION WITH EAGLE CRUSHER IS SUCH THAT WHAT EAGLE CRUSHER SOUGHT TO PROHIBIT WHEN IT MADE THE DRAWINGS AVAILABLE TO THE GOVERNMENT WAS THE DISCLOSURE BY THE GOVERNMENT OF THOSE DRAWINGS TO THE BUSINESS COMMUNITY. THERE WAS NO AGREEMENT THAT THE GOVERNMENT WOULD NOT DISCLOSE ANY INFORMATION WHICH IT MIGHT OBTAIN PROPERLY FROM OTHER SOURCES.

OUR OFFICE RULED AGAINST THE USE OF THE DSA DRAWING WHICH WAS PURPORTEDLY BASED ON REVERSE ENGINEERING BECAUSE FROM THE EVIDENCE, OF WHICH ONE FACTOR WAS THAT THE DSA DRAWING CONTAINED A MATHEMATICALLY INACCURATE COMPUTATION WHICH WAS ALSO IN THE EAGLE CRUSHER DRAWING, IT APPEARED THAT THE DSA DRAWING WAS COPIED FROM THE EAGLE CRUSHER DRAWING AND IT WAS BELIEVED THAT SUCH USE WOULD BE A VIOLATION OF THE CONFIDENCE REPOSED IN THE GOVERNMENT. IN THE CURRENT PROTEST, IT IS POINTED OUT THAT THE DRAWING WHICH DSA OBTAINED ON THE JAW CRUSHERS FROM ANOTHER SOURCE CONTAINS THE SAME MATHEMATICAL INACCURACY IN THAT IT SHOWS 17 EQUAL SPACES AT 1.948 AS EQUAL TO 33 1/8 INSTEAD OF 33.116. WHILE IN THE CONTEXT OF THE FACTS IN OUR EARLIER DECISION, WE CONSTRUED THE MATHEMATICAL INACCURACY AS AN INDICATION THAT DSA HAD COPIED THE EAGLE CRUSHER DRAWING, THE DRAWING OF THE JAW CRUSHERS WHICH DSA HAS OBTAINED FROM ANOTHER SOURCE PURPORTS ON THE FACE OF IT TO HAVE BEEN COPIED FROM WORN SAMPLES OF EAGLE CRUSHER JAW CRUSHERS ON MARCH 14, 1962, WHICH WAS BEFORE DSA EVER DISCLOSED THE EAGLE CRUSHER DRAWINGS OF THE PARTS PUBLICLY. MOREOVER, FROM THE INFORMATION FURNISHED BY EAGLE CRUSHER IT APPEARS THAT THE COMPANY HAS BEEN PRODUCING THE TYPE OF JAW CRUSHERS INVOLVED SINCE THE 1940-S. THEREFORE, IT IS ENTIRELY POSSIBLE THAT THE DRAWING OF THE JAW CRUSHERS OBTAINED FROM ANOTHER SOURCE COULD HAVE BEEN PREPARED FROM WORN SAMPLES AS REPRESENTED. ALTHOUGH THERE WAS AN OPPORTUNITY FOR ANYONE TO EXAMINE THE EAGLE CRUSHER DRAWINGS AND THE DSA DRAWINGS PREPARED FROM THEM BEFORE THOSE DRAWINGS WERE RECOVERED BY DSA, THE NEW SOURCE HAD NO REASON TO MISREPRESENT WHEN THE DRAWINGS WERE PREPARED AS IT WOULD NOT KNOW THAT THE GOVERNMENT WOULD ATTACH ANY IMPORTANCE TO THE FACT THAT IT WAS PREPARED PRIOR TO DSA DISCLOSURE. THUS, IN THE CIRCUMSTANCES, THE REPRESENTATION ON THE DRAWING AS TO THE TIME OF PREPARATION IS CREDIBLE. IN THAT CIRCUMSTANCE, THE SO CALLED "MATHEMATICAL INACCURACY" IS CONSIDERED TO BE A FRACTIONAL REPRESENTATION OF A DECIMAL NUMBER AND DOES NOT NECESSARILY EVIDENCE COPYING FROM DRAWINGS DISCLOSED BY DSA. COURSE, WITH RESPECT TO THE DRAWINGS OF THE SMOOTH ROLLS WHICH DSA HAS OBTAINED FROM ANOTHER SOURCE, DSA HAS REPRESENTED THAT IT HAS NOT AT ANY TIME DISCLOSED EAGLE CRUSHER'S DRAWINGS OF THAT PART, SO THAT SUCH DRAWINGS CANNOT IN ANY WAY BE ATTRIBUTED TO THE DRAWINGS WHICH EAGLE CRUSHER FURNISHED THE GOVERNMENT FOR THAT PART.

ACCORDINGLY, IT IS THE CONCLUSION OF OUR OFFICE THAT THE PROCUREMENT OF JAW CRUSHERS AND SMOOTH ROLLS ON THE BASIS OF THE DRAWINGS WHICH DSA HAS OBTAINED FROM SOURCES OTHER THAN EAGLE CRUSHER WOULD NOT BE IMPROPER. THE PROTEST OF EAGLE CRUSHER AGAINST THE USE OF SUCH DRAWINGS IS ..END :