B-158316, JUL. 18, 1966

B-158316, JUL. 18, 1966

TO CALIN CORP.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1966, AND PREVIOUS CORRESPONDENCE, PROTESTING THAT PROPRIETARY RIGHTS OF YOUR COMPANY ARE VIOLATED BY DEPARTMENT OF THE AIR FORCE REQUESTS FOR PROPOSALS (RFP) 25114NB AND 25128-NB.

BASICALLY, THE PROTEST SEEMS TO BE GROUNDED UPON THE CONTENTION THAT IN NEGOTIATING AND PERFORMING CONTRACT AF 33/615/-2138, CALLING FOR A FEASIBILITY STUDY OF METHODS OF SOLIDIFYING FUEL OR OILS FOR RAPID REPAIR OF BOMB DAMAGED RUNWAYS, PROPRIETARY INFORMATION AND TRADE SECRETS WERE DISCLOSED TO GOVERNMENT ENGINEERING PERSONNEL WITH THE EXPECTATION THAT THE DATA WOULD BE PROTECTED AGAINST PUBLIC DISCLOSURE.

THE AIR FORCE, IN A REPORT, A COPY OF WHICH HAS BEEN FURNISHED YOU FOR EXAMINATION AND COMMENT, HAS DENIED THAT ITS PERSONNEL RECEIVED THE KIND OF INFORMATION ALLEGED TO HAVE BEEN FURNISHED. IT CONTENDS THAT ANY PROPRIETARY INFORMATION AND TRADE SECRETS WERE PROTECTED THROUGH NONDISCLOSURE TO GOVERNMENT PERSONNEL. IN THAT CONNECTION, THE AIR FORCE POINTS OUT THAT YOUR COMPANY PROTECTED ANY SECRET IT HAD BY AVOIDING REFERENCE TO ANY SPECIFIC COMPONENTS OF ITS COMPOUND. MOREOVER, IN THE CONTRACT THE COMPONENTS WERE REFERRED TO IN GENERAL TERMS AS "HIDI/CATALYSTS/RESIN SYSTEM" AND IN TEST REPORTS FURNISHED UNDER THE CONTRACT YOU REFERRED TO THE COMPONENTS AS "A," "B," "D," ,FOAMING AGENT," "RESIN," "HIDI RESIN-CATALYST-PETROLEUM-SYSTEM" AND "HIDI CHEMICALS.' THE AIR FORCE HAS STATED FURTHER THAT THE INFORMATION INCLUDED IN RFP 25114NB WAS OBTAINED FROM DATA FURNISHED BY OTHER AIR FORCE CONTRACTORS, OTHER INFORMATION GENERALLY KNOWN TO THE TRADE, AND INDEPENDENT RESEARCH PERFORMED BY THE AIR FORCE ENGINEERING PERSONNEL INVOLVED. MOREOVER, IT IS STATED THAT THE AIR FORCE ENGINEERING PERSONNEL WERE FIRST APPRISED OF THE COMPONENTS OF THE COMPOUND WHICH YOUR COMPANY HAD PREPARED UNDER ITS CONTRACT WHEN YOUR COMPANY COMPLAINED AFTER RFP 25114NB WAS ISSUED THAT THE COMPONENTS LISTED IN THE RFP WERE THE SAME COMPONENTS WHICH YOUR COMPANY HAD USED UNDER THE CONTRACT. THE AIR FORCE ENGINEERING PERSONNEL INVOLVED DENY HAVING HAD ANY KNOWLEDGE OF THE COMPONENTS YOUR COMPANY WAS USING UNTIL THAT TIME. ADDITIONALLY, IT IS INDICATED THAT EVEN THOUGH THE COMPONENTS HAVE NOW BEEN REVEALED TO THE AIR FORCE, THE FORMULA INVOLVED STILL REMAINS A SECRET NOT DISCLOSED TO THE AIR FORCE.

YOU HAVE COUNTERED THAT THE COST PROPOSAL SUBMITTED BY YOUR COMPANY WITH ITS TECHNICAL PROPOSAL FOR CONTRACT AF 33/615/-2138 FURNISHED THE AIR FORCE KNOWLEDGE OF THE CHEMICALS INVOLVED. YOU POINT OUT ALSO THAT YOUR COMPANY REQUESTED THE AIR FORCE TO ASSIST IT IN OBTAINING CERTAIN CHEMICALS FROM A CHEMICAL COMPANY WHICH WAS STRIKE BOUND. FURTHER, YOU STATE THAT THE AIR FORCE ENGINEERING PERSONNEL ATTENDED TESTS OF YOUR COMPOUND AND TOOK NOTES AND RECEIVED ANSWERS TO QUESTIONS WHICH WOULD HAVE FURNISHED INFORMATION AS TO THE CHEMICAL FORMULATION.

AN EXAMINATION OF THE COST PROPOSAL TO WHICH YOU REFER REVEALS THAT IT CONTAINS THE NAMES OF THE COMPANIES WITH WHICH YOU PROPOSED TO DEAL, BUT THERE IS NO INDICATION THEREIN AS TO WHAT SPECIFIC CHEMICALS WOULD BE PURCHASED FROM THOSE COMPANIES. MOREOVER, THE FACT THAT THE ENGINEERING PERSONNEL MIGHT HAVE HAD AN OPPORTUNITY TO DISCOVER THE CHEMICAL COMPONENTS WHILE YOUR COMPANY WAS PERFORMING ITS CONTRACT DOES NOT ESTABLISH THAT IT DID IN FACT DISCOVER THE COMPONENTS IN THAT MANNER. INDICATED ABOVE, THE AIR FORCE MAINTAINS THAT THE CHEMICAL COMPONENTS WHICH WERE REFERRED TO IN RFP 25114NB WERE IN FACT LEARNED IN ANOTHER WAY INDEPENDENT OF ANY INFORMATION FURNISHED BY YOUR COMPANY.

IN THE BRIEF SUBMITTED WITH THE PROTEST, RELIANCE IS PLACED UPON THE PADBLOC COMPANY, INC. V. UNITED STATES, 161 CT.CL. 369; 43 COMP. GEN. 193; 42 ID. 346; 41 ID. 148; B-154079, OCTOBER 14, 1964; AND B-143711, DECEMBER 22, 1960. HOWEVER, THE IMMEDIATE CASE IS DIFFERENT FROM THOSE CASES IN AN IMPORTANT RESPECT. UNLIKE THE CITED CASES, THE INFORMATION INCLUDED IN THE RFP AS TO THE INGREDIENTS OF THE COMPOUND WAS NOT IN FACT RECEIVED FROM YOU. IT WAS ONLY THROUGH OTHER INDEPENDENT SOURCES THAT THE AIR FORCE ENGINEERING PERSONNEL INVOLVED DISCOVERED THE COMPONENTS WHICH YOU HAD BEEN KEEPING SECRET.

WITH REGARD TO THE PROTEST THAT RFP 25128-NB IS ALSO AN UNAUTHORIZED USE OF PROPRIETARY DATA, WE OBSERVE THAT IT IS AN RFP FOR THE INVESTIGATION OF SOIL STABILIZATION TECHNIQUES WRITTEN IN TERMS INDICATING THE END RESULT DESIRED WITHOUT DIRECTING THE MANNER OF ACCOMPLISHMENT. WHILE YOU INDICATE THAT IN THE PERFORMANCE OF ANY CONTRACT RESULTING FROM THAT RFP THE CONTRACTOR MIGHT VIOLATE YOUR COMPANY'S PROPRIETARY RIGHTS, IT DOES NOT NECESSARILY FOLLOW THAT IT WILL, AND IN ANY EVENT, IN VIEW OF THE BROAD ASPECT OF THE WORK STATEMENT IN THE RFP SUCH PERFORMANCE COULD NOT BE CONSIDERED TO BE DUE TO ANY DIRECTION FROM THE GOVERNMENT AND SUCH PERFORMANCE WE BELIEVE WOULD BE A MATTER BETWEEN YOUR COMPANY AND THE CONTRACTOR.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO OBJECT TO THE ISSUANCE OF THE SUBJECT INVITATIONS. YOUR PROTEST IS THEREFORE DENIED.