B-169493, JUL. 1, 1970

B-169493: Jul 1, 1970

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SINCE ALLEGED DISCLOSURE OF PROPRIETARY DATA WAS NOT MADE DIRECTLY TO THE GOVT. PRIME CONTRACTOR WHO DISAGREES WITH ALLEGATION AND SINCE THERE IS NO INDICATION THAT GOVERNMENT WAS ON NOTICE OF ANY VIOLATION NO ACTION BY THE COMPTROLLER GENERAL IS WARRANTED PARTICULARLY IN VIEW OF FACT THAT MATTER IS SUBJECT TO JUDICIAL PROCEEDING. INCORPORATED: THIS IS IN REPLY TO YOUR LETTER OF APRIL 3. AN AWARD WAS MADE TO MORRISON-KNUDSON COMPANY & ASSOCIATES ON MARCH 31. WHILE THE SCAFFOLDING SYSTEM IS NOT A PART OF THE CONSTRUCTION WORK RESULTING FROM THE PROTESTED SOLICITATION. CRITERIA AND CERTAIN DESIGN ITEMS WERE NECESSARILY ORIGINATED BY WECO AS THE PRIME CONTRACTOR FOR THE EQUIPMENT. WERE INCORPORATED INTO THE SUPPORT FACILITIES SPECIFICATIONS.

B-169493, JUL. 1, 1970

BID PROTEST -- PROPRIETARY DATA DISCLOSURE DECISION TO TRYLON, INC., DENYING PROTEST AGAINST DISCLOSURE OF PROPRIETARY DATA IN INVITATION OF ARMY CORPS OF ENGINEERS FOR CONSTRUCTION OF SAFEGUARD BALLISTIC MISSILE DEFENSE FACILITIES WHICH RESULTED IN AWARD TO MORRISON-KNUDSON CO. & ASSOCIATES. SINCE ALLEGED DISCLOSURE OF PROPRIETARY DATA WAS NOT MADE DIRECTLY TO THE GOVT. BUT TO A GOVT. PRIME CONTRACTOR WHO DISAGREES WITH ALLEGATION AND SINCE THERE IS NO INDICATION THAT GOVERNMENT WAS ON NOTICE OF ANY VIOLATION NO ACTION BY THE COMPTROLLER GENERAL IS WARRANTED PARTICULARLY IN VIEW OF FACT THAT MATTER IS SUBJECT TO JUDICIAL PROCEEDING.

TO TRYLON, INCORPORATED:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 3, 1970, AND ENCLOSURE, PROTESTING ON BEHALF OF TRYLON, INCORPORATED, AGAINST AN ALLEGED DISCLOSURE OF THE COMPANY'S PROPRIETARY DATA IN INVITATION FOR BIDS NO. DACA 87-70-B-0001, ISSUED BY THE ARMY CORPS OF ENGINEERS ON JANUARY 23, 1970.

THE INVITATION REQUESTED BIDS FOR THE CONSTRUCTION OF SAFEGUARD BALLISTIC MISSILE DEFENSE FACILITIES IN THE VICINITY OF GRAND FORKS, NORTH DAKOTA, AND AN AWARD WAS MADE TO MORRISON-KNUDSON COMPANY & ASSOCIATES ON MARCH 31, 1970, PRIOR TO THE DATE OF YOUR PROTEST.

YOUR PROTEST RELATES ONLY TO CERTAIN DRAWINGS AND SPECIFICATIONS FOR THE PERIMETER ACQUISITION RADAR (PAR) BUILDING. YOU STATE THAT TRYLON CONFIDENTIALLY SUBMITTED A TECHNICAL PROPOSAL TO THE WESTERN ELECTRIC COMPANY (WECO), THE PRIME CONTRACTOR UNDER A CONTRACT FOR DEVELOPMENT, INSTALLATION AND TEST OF THE TACTICAL EQUIPMENT OF THE WEAPONS SYSTEM. BASICALLY, TRYLON'S PROPOSAL INVOLVED A MOTORIZED SCAFFOLDING SYSTEM WHICH WECO STILL HAS UNDER CONSIDERATION FOR POSSIBLE USE IN THE INSTALLATION OF THE ANTENNA ARRAY ON THE PAR BUILDING. WHILE THE SCAFFOLDING SYSTEM IS NOT A PART OF THE CONSTRUCTION WORK RESULTING FROM THE PROTESTED SOLICITATION, THE CONTESTED DATA RELATES TO CERTAIN FOUNDATIONS AND EMBEDDED PLATES ON THE FOUNDATIONS AND THE PAR FACE WHICH WOULD PERMIT PLACEMENT OF THE SCAFFOLDING AGAINST THE STRUCTURE.

IT APPEARS THAT DURING THE CONSTRUCTION DESIGN PHASE OF THE SAFEGUARD FACILITIES PERFORMED BY AMMAN & WHITNEY UNDER AN ARCHITECT-ENGINEER CONTRACT, CRITERIA AND CERTAIN DESIGN ITEMS WERE NECESSARILY ORIGINATED BY WECO AS THE PRIME CONTRACTOR FOR THE EQUIPMENT, AND WERE INCORPORATED INTO THE SUPPORT FACILITIES SPECIFICATIONS. THE CONTRACTING OFFICER HAS REPORTED THAT THE PERTINENT DATA WERE INCORPORATED IN THE INVITATION FOR CONSTRUCTION OF SUPPORT FACILITIES IN ACCORDANCE WITH AN ENGINEERING CHANGE PROPOSAL SUBMITTED BY WECO WHICH, ACCORDING TO WECO, WAS INTENDED MERELY TO MAKE PROVISION IN THE CONSTRUCTION CONTRACT FOR AN ULTIMATE INTERFACE RELATING TO SUCH SCAFFOLDING AND THAT SUCH INFORMATION DID NOT IMPROPERLY DISCLOSE ANY OF TRYLON'S PROPRIETARY DATA.

THE CONTRACTING OFFICER FURTHER ADVISES THAT THE DRAWINGS ACCOMPANYING THE ENGINEERING CHANGE PROPOSAL WERE RECEIVED BY THE GOVERNMENT FROM WECO WITHOUT RESTRICTIVE OR PROPRIETARY MARKINGS AND THAT THERE WAS NO APPARENT REASON FOR CONCLUDING THAT USE OF THE DRAWINGS MIGHT INVOLVE A VIOLATION OF CONFIDENTIAL INFORMATION. THE REPORT ALSO ADVISES THAT TRYLON HAS INSTITUTED SUIT AGAINST WECO IN A UNITED STATES DISTRICT COURT SEEKING DAMAGES AND AN INJUNCTION AGAINST FURTHER WECO DISCLOSURES.

ESSENTIALLY, YOU HAVE REQUESTED THAT THE GOVERNMENT DISCONTINUE THIS PROCUREMENT INSOFAR AS IT VIOLATES YOUR RIGHTS IN CONFIDENTIAL INFORMATION AND THAT IT PURSUE ITS REQUIREMENTS ON THE BASIS OF DRAWINGS AND SPECIFICATIONS WHICH DO NOT INCLUDE ANY OF TRYLON'S TRADE SECRETS AND PROPRIETARY INFORMATION. IT IS STATED IN YOUR LETTER THAT THIS OFFICE HAS GRANTED SIMILAR RELIEF UNDER SIMILAR CIRCUMSTANCES, CITING SEVERAL DECISIONS IN SUPPORT THEREOF.

IN THE PAST THIS OFFICE HAS ACTED IN SEVERAL CASES, SUCH AS THOSE YOU HAVE CITED, TO DIRECT CANCELLATION OF PENDING SOLICITATIONS OF BIDS OR PROPOSALS WHERE THE SOLICITATIONS INCLUDED PROPRIETARY DATA SUPPLIED BY GOVERNMENT CONTRACTORS, THE USE OF WHICH WAS A CLEAR VIOLATION OF CONTRACTUAL RELATIONS BETWEEN THE GOVERNMENT AND THE PROPRIETOR. IN THE PRESENT SITUATION, ON THE OTHER HAND, THE ALLEGED CONFIDENTIAL DISCLOSURE WAS NOT MADE DIRECTLY TO THE GOVERNMENT BY TRYLON, BUT RATHER TO A GOVERNMENT CONTRACTOR WHO DISAGREES WITH TRYLON'S POSITION THAT THE SUBJECT INVITATION CONTAINS PROPRIETARY MATERIAL, AND THERE IS NO INDICATION THAT THE GOVERNMENT WAS ON NOTICE PRIOR TO AWARD OF THE CONTRACT THAT ANY VIOLATION OF PROPRIETARY RIGHTS WAS CLAIMED. IN SUCH CIRCUMSTANCES, AND ESPECIALLY IN VIEW OF THE FACT THAT YOUR RIGHTS AGAINST WECO ARE NOW THE SUBJECT OF A JUDICIAL PROCEEDING WHICH MAY INVOLVE SOME OF THE SAME ISSUES AS PRESENTED BY YOUR PROTEST, WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN TAKING ANY ACTION WITH RESPECT TO THE CONTRACT WHICH HAS BEEN AWARDED, AT LEAST UNTIL SUCH ISSUES HAVE BEEN PASSED UPON BY THE COURT. SEE B-156727, OCTOBER 7, 1965.

FURTHERMORE, SINCE THE GOVERNMENT HAS IN GOOD FAITH ENTERED INTO CONTRACTS FOR THE DEVELOPMENT OF THE EQUIPMENT AND THE CONSTRUCTION OF THE SUPPORT FACILITIES, WE BELIEVE IT IS DOUBTFUL WHETHER YOUR ASSERTED PROPRIETARY INTERESTS ARE ENTITLED TO SUCH A DEGREE OF PROTECTION AS WOULD REQUIRE ACTION BY OUR OFFICE TO INTERFERE WITH THE CONTRACT. SEE RESTATEMENT, TORTS, SECTION 758, AND B-165111, FEBRUARY 26, 1969.

FOR THE REASONS STATED, YOUR PROTEST AGAINST THE SUBJECT PROCUREMENT IS DENIED.