B-169108, MAR. 24, 1970

B-169108: Mar 24, 1970

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THERE IS NO SHOWING OF ANY OBLIGATION ON ITS PART TO SUPPLY DATA IT CLAIMS IS PROPRIETARY. INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. IT APPEARS THAT YOU ARE A SUBCONTRACTOR TO THE AVCO CORPORATION WHICH HOLDS PRIME CONTRACT NO. ONLY AFTER YOU HAD DISCLOSED THAT THE END CUSTOMER INVOLVED WAS THE GOVERNMENT. IMC REPLIED THAT THE INFORMATION REQUESTED WAS PROPRIETARY AND WOULD NOT BE FURNISHED. YOU FEEL THAT WITH THE REQUESTED INFORMATION YOU COULD HAVE REPAIRED THE MOTOR FOR $18 PER UNIT AND THAT IMC'S REFUSAL TO PROVIDE THE REQUESTED DATA COUPLED WITH ITS OFFER TO SELL NEW UNITS FOR $90 AMOUNTS TO UNCONSCIONABLE CONDUCT. THERE IS NO SHOWING OF ANY OBLIGATION ON ITS PART TO SUPPLY THE DATA IT CLAIMS IS PROPRIETARY OR TO SELL THE MOTORS IN QUESTION FOR LESS THAN THE OFFERED PRICE OF $90.

B-169108, MAR. 24, 1970

CONTRACTS--DATA, RIGHTS, ETC.--SUBCONTRACTOR'S NEED GAO HAS NO AUTHORITY TO REQUIRE MANUFACTURER (PRIVATE SOURCE) TO PRODUCE PROPRIETARY INFORMATION FOR BENEFIT OF SUBCONTRACTOR UNDER GOVT. CONTRACT, AS MANUFACTURER APPARENTLY HAS NO CONTRACT OBLIGATION TO GOVT; TO PRIME CONTRACTOR, OR TO SUBCONTRACTOR, AND THERE IS NO SHOWING OF ANY OBLIGATION ON ITS PART TO SUPPLY DATA IT CLAIMS IS PROPRIETARY, OR TO SELL EQUIPMENT IN QUESTION TO SUBCONTRACTOR FOR LESS THAN OFFERED PRICE.

TO MATLOCK ELECTRIC CO; INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1970, IN WHICH YOU INQUIRE AS TO WHETHER OR NOT THE IMC MAGNETICS CORPORATION (IMC) "CAN BE ENJOINED" TO FURNISH YOUR FIRM WITH INFORMATION CONCERNING ONE OF ITS PRODUCTS.

FROM YOUR CORRESPONDENCE WITH OUR OFFICE AND THE OFFICE OF THE HONORABLE ROBERT TAFT, JR; MEMBER OF CONGRESS, IT APPEARS THAT YOU ARE A SUBCONTRACTOR TO THE AVCO CORPORATION WHICH HOLDS PRIME CONTRACT NO. DOT- FA69AC-7903-4 WITH THE FEDERAL AVIATION AUTHORITY. IN THE COURSE OF PERFORMING YOUR SUBCONTRACT, IT BECAME NECESSARY TO OBTAIN CERTAIN WINDING AND CONNECTING DATA FROM IMC ON ONE OF ITS MOTORS. AFTER REPEATED INQUIRIES, AND ONLY AFTER YOU HAD DISCLOSED THAT THE END CUSTOMER INVOLVED WAS THE GOVERNMENT, IMC REPLIED THAT THE INFORMATION REQUESTED WAS PROPRIETARY AND WOULD NOT BE FURNISHED. IMC DID, HOWEVER, OFFER TO SUPPLY THE MOTORS AT A PRICE OF $90 PER UNIT. YOU FEEL THAT WITH THE REQUESTED INFORMATION YOU COULD HAVE REPAIRED THE MOTOR FOR $18 PER UNIT AND THAT IMC'S REFUSAL TO PROVIDE THE REQUESTED DATA COUPLED WITH ITS OFFER TO SELL NEW UNITS FOR $90 AMOUNTS TO UNCONSCIONABLE CONDUCT.

FROM THE RECORD BEFORE US, IT DOES NOT APPEAR THAT IMC HAS ANY CONTRACT OBLIGATION TO THE GOVERNMENT, THE PRIME CONTRACTOR, OR YOURSELF. THERE IS NO SHOWING OF ANY OBLIGATION ON ITS PART TO SUPPLY THE DATA IT CLAIMS IS PROPRIETARY OR TO SELL THE MOTORS IN QUESTION FOR LESS THAN THE OFFERED PRICE OF $90. IN SUCH EVENT, OUR OFFICE HAS NO AUTHORITY TO REQUIRE THE PRODUCTION OF SUCH PROPRIETARY INFORMATION FROM A PRIVATE SOURCE FOR THE BENEFIT OF A SUBCONTRACTOR UNDER A GOVERNMENT CONTRACT.

WHILE THERE MAY BE OTHER AVENUES OF RECOURSE OPEN TO YOU IT WOULD NOT BE APPROPRIATE FOR THIS OFFICE TO FURNISH YOU WITH ADVICE IN THAT REGARD.