B-169680, NOV. 24, 1970

B-169680: Nov 24, 1970

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WHERE RECORD DOES NOT SHOW THAT DEVELOPERS OF GOVERNMENT SPECIFICATION HAD ANY DIRECT OR INDIRECT KNOWLEDGE OF PROTESTANT'S UNSOLICITED BUT RESTRICTED DATA IT CANNOT BE CONCLUDED THAT PROTESTANT'S PROPRIETARY RIGHTS WERE VIOLATED. TO TASKER INDUSTRIES: THIS IS IN REPLY TO CORRESPONDENCE SUBMITTED BY YOU AND YOUR ATTORNEYS PROTESTING THE PROPOSED AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER SOLICITATION NO. THE SUBJECT SOLICITATION DESCRIBES A REQUIREMENT FOR UPDATING AND IMPROVING A RADAR TRAINING SYSTEM WHICH IS USED TO SUPPORT A SAC COMMAND ELECTRONIC WARFARE TRAINING AND EVALUATION PROGRAM. THE SYSTEM IS REQUIRED TO PROVIDE REALISTIC PORTRAYAL OF THREAT PARAMETERS INCLUDING ASSOCIATED SUBSYSTEMS OF THE FOREIGN THREAT BEING SIMULATED.

B-169680, NOV. 24, 1970

BID PROTEST - PROPRIETARY RIGHTS DENIAL OF PROTEST AGAINST AWARD OF A NEGOTIATED CONTRACT FOR A RADAR TRAINING SYSTEM FOR SACRAMENTO AIR MATERIEL AREA ON THE GROUNDS THAT GOVERNMENT'S DESCRIPTION VIOLATES PROTESTANT'S PROPRIETARY RIGHTS. WHERE RECORD DOES NOT SHOW THAT DEVELOPERS OF GOVERNMENT SPECIFICATION HAD ANY DIRECT OR INDIRECT KNOWLEDGE OF PROTESTANT'S UNSOLICITED BUT RESTRICTED DATA IT CANNOT BE CONCLUDED THAT PROTESTANT'S PROPRIETARY RIGHTS WERE VIOLATED. WHILE GAO MAY PREVENT ACTION WHICH WOULD CLEARLY SUBJECT THE GOVERNMENT TO LEGAL LIABILITY FOR VIOLATION OF CONTRACTUAL OBLIGATIONS THIS OFFICE DOES NOT CONSIDER IT TO BE WITHIN ITS AUTHORITY TO TAKE SUCH ACTION WHERE RECORD DOES NOT ESTABLISH THE GOVERNMENT'S LIABILITY.

TO TASKER INDUSTRIES:

THIS IS IN REPLY TO CORRESPONDENCE SUBMITTED BY YOU AND YOUR ATTORNEYS PROTESTING THE PROPOSED AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER SOLICITATION NO. F04606-70-R-0261, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, SACRAMENTO AIR MATERIEL AREA (SMAMA), ON THE GROUNDS THAT THE GOVERNMENT'S DESCRIPTION OF ITS REQUIREMENTS VIOLATES YOUR PROPRIETARY RIGHTS IN CERTAIN DATA YOU SUBMITTED TO THE AIR FORCE.

THE SUBJECT SOLICITATION DESCRIBES A REQUIREMENT FOR UPDATING AND IMPROVING A RADAR TRAINING SYSTEM WHICH IS USED TO SUPPORT A SAC COMMAND ELECTRONIC WARFARE TRAINING AND EVALUATION PROGRAM. THE SYSTEM IS REQUIRED TO PROVIDE REALISTIC PORTRAYAL OF THREAT PARAMETERS INCLUDING ASSOCIATED SUBSYSTEMS OF THE FOREIGN THREAT BEING SIMULATED. IN DECEMBER 1962, YOU CONTRACTED WITH THE GOVERNMENT FOR THE DEVELOPMENT OF A PROTOTYPE OF THIS RADAR SYSTEM, KNOWN AS THE AN/MPQ-T2 (HEREAFTER THE T2), AND A NUMBER OF T2'S WERE SUBSEQUENTLY PROCURED FROM YOUR COMPANY. THE RECORD SHOWS THAT THE T2 SYSTEM HAS SINCE BEEN MODIFIED AS A RESULT OF CERTAIN UPDATED DEPARTMENT OF DEFENSE (DOD) INTELLIGENCE DATA CONCERNING THE FOREIGN THREAT RADAR REQUIRED TO BE SIMULATED. THE EXISTING UPDATED VERSION HAS BEEN DESIGNATED THE AN/MPQ T2A (HEREAFTER THE T2A). CHANGES REQUIRED BY THE SUBJECT SOLICITATION WILL FURTHER UPDATE THE EXISTING T2A AND THIS NEW SYSTEM HAS BEEN DESIGNATED THE AN/MPQ-T2B (HEREAFTER THE T2B).

YOUR ATTORNEYS STATE THAT SUBSEQUENT TO THE DEVELOPMENT OF THE T2 SYSTEM YOU HAD BEEN STIMULATED BY UPDATED DOD INTELLIGENCE INFORMATION AND HAD USED YOUR ENGINEERING KNOW-HOW AND DEVELOPMENTAL EXPERIENCE WITH THE T2 TO DEVISE WAYS TO MODIFY OR CHANGE THE EXISTING SYSTEM TO SIMULATE NEW THREAT CHARACTERISTICS. YOUR MODIFICATIONS HAVE BEEN SUGGESTED TO THE AIR FORCE IN A SERIES OF FIVE UNSOLICITED PROPOSALS SUBMITTED BETWEEN OCTOBER 1967 AND NOVEMBER 1968. EACH PROPOSAL WAS MARKED WITH THE PRESCRIBED "RESTRICTIVE USE LEGEND," AND CONTAINED DETAILED DESIGN APPROACHES FOR UPDATING THE SYSTEM, WHICH YOU BELIEVE INFORMED THE AIR FORCE HOW THE EXISTING HARDWARE COULD BE CHANGED TO MEET NEWLY DEVELOPED THREAT NEEDS. YOU STATE THAT YOUR PROPOSALS WERE NECESSARILY LENGTHY AND COMPLEX SINCE EACH PROPOSED CHANGE HAD A SNOWBALL EFFECT ON THE EXISTING EQUIPMENT.

SINCE THE ISSUANCE OF THE GOVERNMENT'S SOLICITATION FOR THE T2B, YOUR ENGINEERS HAVE EXPRESSED THE BELIEF THAT THE GOVERNMENT'S SOLICITATION DESCRIBES THE UNIQUE COMBINATION OF NON-THREAT FEATURES AND CERTAIN THREAT INTELLIGENCE FEATURES PREVIOUSLY PROVIDED THE GOVERNMENT IN YOUR UNSOLICITED PROPOSALS. IN THIS CONNECTION, THE RECORD SHOWS THAT YOUR UNSOLICITED PROPOSALS PREDATE THE FIRST GOVERNMENT SPECIFICATION FOR THE T2B WHICH WAS WRITTEN BY CAPTAIN BEEDE AT ROME AIR DEVELOPMENT CENTER (RADC) BEGINNING IN LATE 1968.

YOU ALSO EXPRESS THE BELIEF THAT THE GOVERNMENT ELECTED NOT TO INCLUDE CERTAIN THREAT REQUIREMENTS DESCRIBED IN DOD INTELLIGENCE DATA WHICH YOU ALSO ELECTED NOT TO INCLUDE IN YOUR UNSOLICITED PROPOSALS. YOU HAVE PRESENTED FOR OUR CONSIDERATION REPRESENTATIVE DETAILED EXAMPLES OF THE SIMILARITIES IN DESIGN BETWEEN THE SOLICITATION'S STATEMENT OF WORK AND YOUR UNSOLICITED PROPOSALS, AS WELL AS EXAMPLES RELATING TO SIMILARLY OMITTED THREAT FEATURES. IT IS ARGUED THAT THESE SIMILARITIES INDICATE THAT THE GOVERNMENT USED YOUR PROPOSAL IN THE WRITE UP OF ITS SPECIFICATION. MOREOVER YOU HAVE DOCUMENTED THE WIDE DISTRIBUTION OF YOUR PROPOSALS BY YOUR COMPANY TO VARIOUS PERSONS AND ACTIVITIES WITHIN THE AIR FORCE, AND YOU HAVE SHOWN THAT AIR FORCE PERSONNEL, OTHER THAN CAPTAIN BEEDE AND HIS SUPERVISOR, EVALUATED YOUR PROPOSALS PRIOR TO THE TIME THE GOVERNMENT'S SPECIFICATION WAS WRITTEN, AND THAT INTEREST IN PURSUING YOUR PROPOSALS WAS EXPRESSED BY CERTAIN OTHER AIR FORCE PERSONNEL.

IN SUPPORT OF YOUR BELIEF THAT YOUR PROPRIETARY RIGHTS HAVE BEEN VIOLATED, YOUR ATTORNEYS HAVE CITED AUTHORITY FOR THE GENERAL RULE OF LAW THAT ANY COMBINATION OF CHARACTERISTICS AND COMPONENTS THE DESIGN AND OPERATION OF WHICH AFFORDS A COMPETITIVE ADVANTAGE CAN BE A PROTECTIBLE TRADE SECRET. IMPERIAL CHEMICAL INDUSTRIES LTD. V NATIONAL DISTILLERS AND CHEMICAL CORP., 342 F. 2D 737 (1965), AND THE CASES CITED THEREIN. IT IS CONTENDED THAT THE TASKER T2B CONFIGURATION PROVIDES A COMPETITIVE ADVANTAGE IN THAT IT DEFINES THE MOST EFFICIENT AND ECONOMICAL APPROACH TO MODIFY AN EXISTING SYSTEM WITH WHICH TASKER IS MOST FAMILIAR. COUNSEL ALSO CITES OUR DECISION REPORTED AT 49 COMP. GEN. 28 (1969) AS ESTABLISHING THAT A PROTESTING CONTRACTOR NEED NOT PROVE THE ALLEGED VIOLATION OF THE CONFIDENTIAL RELATIONSHIP ACTUALLY OCCURRED, BUT THAT IT IS ENOUGH IF A PRESUMPTION IS RAISED THAT THE GOVERNMENT DID ADOPT AND USE PROPRIETARY CONCEPTS IN A FASHION WHICH HAD A MATERIAL BEARING ON THE PROCUREMENT SPECIFICATIONS. YOUR ATTORNEYS ARGUE THAT THE CIRCUMSTANCES IN THE PRESENT CASE ARE SUFFICIENT TO ESTABLISH SUCH A PRESUMPTION.

THE AIR FORCE HAS ADVISED THAT ALTHOUGH CAPTAIN BEEDE WAS ASSIGNED THE TASK OF WRITING A SPECIFICATION SUBSEQUENT TO THE SUBMISSION OF YOUR UNSOLICITED PROPOSALS, THE RADC SPECIFICATION WAS THE CULMINATION OF PRIOR INVESTIGATIONS TO DEFINE THE EXACT CONFIGURATION OF THE T2B. IT IS REPORTED THAT THE AIR FORCE CONTEMPLATED UPDATED VERSIONS OF THE T2 INCORPORATING ALL IMPROVEMENTS AND INTELLIGENCE AS EARLY AS DECEMBER 14, 1966, AND THAT BY OCTOBER 1966 HEADQUARTERS HAD REQUESTED DATA ON HIGH FAILURE RATE ITEMS. BY EARLY 1968 THIS THINKING HAD PROGRESSED TO THE POINT THAT HEADQUARTERS, THE STRATEGIC AIR COMMAND AND THE TACTICAL AIR COMMAND WERE OFFICIALLY REQUESTING ACTION TO CORRECT DEFICIENCIES IN THE T2. THE AIR FORCE MAKES REFERENCE TO THREE MESSAGES WHICH, IT CONTENDS, DEFINE THE BASIC DEFICIENCIES IN THE T2 AND ALL OF WHICH WERE IN EXISTENCE PRIOR TO ALL EXCEPT ONE OF TASKER'S UNSOLICITED PROPOSALS.

THE AIR FORCE HAS DISAVOWED ANY USE OF YOUR UNSOLICITED PROPOSALS IN THE WRITE-UP OF ITS SPECIFICATIONS. CAPTAIN BEEDE AND HIS SUPERVISOR, WHO WERE RESPONSIBLE FOR WRITING THE RADC SPECIFICATION, HAVE STATED THAT NO TASKER DATA WAS USED IN THE WRITE-UP, WITH ONE EXCEPTION WHICH DOES NOT APPEAR TO BE SIGNIFICANT. WE HAVE NOTED THE AFFIDAVIT OF THE PROGRAM MANAGER FOR THE SYSTEMS DIVISION OF TASKER INDUSTRIES WHEREIN HE RELATES A PARTICULAR DISCUSSION HE HAD WITH CAPTAIN BEEDE DURING WHICH THE CAPTAIN DENIED HAVING READ TASKER'S UNSOLICITED PROPOSALS BUT ADMITTED THERE WOULD NEVER HAVE BEEN A WORK STATEMENT HAD TASKER NOT PREPARED THE UNSOLICITED PROPOSALS. THE RECORD SHOWS, HOWEVER, THAT CAPTAIN BEEDE DOES NOT CONSIDER THE LATTER PORTION OF THE STATEMENT ATTRIBUTED TO HIM TO BE TRUE AND THAT HE CANNOT REMEMBER MAKING THIS STATEMENT.

IN ADDITION, WE HAVE BEEN ORALLY ADVISED BY CAPTAIN BEEDE AND HIS SUPERVISOR THAT THE MATERIALS AVAILABLE TO THEM AT THE TIME THE SPECIFICATION WAS WRITTEN UP CONTAINED NO REPORTS, ANALYSES OR REVIEWS OF TASKER'S UNSOLICITED PROPOSALS EXCEPT FOR A MEMO PREPARED BY THE T2 PROJECT ENGINEER, WHICH MAKES ONLY A GENERAL STATEMENT REGARDING THE ACCEPTABILITY OF THE TASKER PROPOSAL BUT CONTAINS NO DESCRIPTION OF ITS TECHNICAL CONTENTS. WHILE YOU CONTEND THAT THE MODIFICATIONS DESCRIBED IN TASKER'S PROTEST WERE NOT WRITTEN INTO THE RADC SPECIFICATION UNTIL IT HAD BEEN REVIEWED AND REVISED BY OTHER AIR FORCE PERSONNEL WHO HAD BEEN PRIVY TO YOUR UNSOLICITED PROPOSALS, CAPTAIN BEEDE HAS ORALLY ADVISED THAT TO THE BEST OF HIS KNOWLEDGE THE MODIFICATION DESCRIBED IN TASKER'S PROTEST APPEARED IN THE RADC SPECIFICATION AS ORIGINALLY WRITTEN AND WERE NOT INITIATED AFTER REVIEW BY OTHER AIR FORCE PERSONNEL. WHILE REVIEWS AND REVISIONS WERE MADE IN THE ORIGINAL DRAFT OF THE RADC SPECIFICATION, CAPTAIN BEEDE HAS ADVISED THAT THESE REVISIONS PERTAINED TO OTHER AREAS THAN THOSE INVOLVED IN THE MODIFICATIONS POINTED OUT IN YOUR PROTEST.

WITH RESPECT TO YOUR EXAMPLES OF THE SIMILARITIES BETWEEN YOUR UNSOLICITED PROPOSALS AND THE GOVERNMENT'S DESCRIPTION, IT IS IN ESSENCE THE POSITION OF THE AIR FORCE THAT ITS SPECIFICATIONS ARE TAKEN FOR THE MOST PART FROM TECHNICAL DOD INTELLIGENCE INFORMATION, WHICH WAS ALSO MADE AVAILABLE TO YOUR FIRM. THE AIR FORCE BELIEVES IT IS OBVIOUS THAT SINCE TASKER AND AIR FORCE PERSONNEL HAVE READ THE SAME DOCUMENTS THE RESULTING APPROACHES TO CORRECT OR UPDATE THE T2A WOULD BE SIMILAR, AND IT POINTS OUT THAT THE MAJORITY OF THE REQUIREMENTS IN THE RADC SPECIFICATION WERE ALSO STATED IN THE THREE AIR FORCE MESSAGES, MENTIONED ABOVE, WHICH PREDATE YOUR UNSOLICITED PROPOSALS. WITH RESPECT TO THOSE PORTIONS OF ITS SPECIFICATION WHICH ARE NOT DERIVED FROM THE INTELLIGENCE INFORMATION, THE AIR FORCE SUBMITS THAT THEY ARE EITHER LOGICAL ENGINEERING EXTENSIONS OF AVAILABLE NONPROPRIETARY DATA, SUCH AS OPERATING AND MAINTENANCE HISTORY OF THE EXISTING EQUIPMENT AND SPECIFICATIONS FOR SIMILAR HARDWARE PREVIOUSLY PROCURED, OR AIR FORCE CONCEIVED IDEAS.

WHILE WE HAVE MADE AVAILABLE TO YOU ALL OF THE AIR FORCE REPORTS IN THIS MATTER WHICH, IN PERTINENT PART, EXPLAIN THE REASONS FOR INCLUDING IN THE GOVERNMENT SPECIFICATIONS THOSE REQUIREMENTS WHICH YOU STATE ARE IDENTICAL TO THOSE IN YOUR PROPOSALS, YOU REMAIN CONVINCED OF THE UNLIKELIHOOD THAT THE SIMILARITIES COULD HAVE BEEN INDEPENDENTLY WRITTEN. IN VIEW OF THE HIGHLY COMPLEX AND TECHNICAL NATURE OF THE GOVERNMENT'S REQUIREMENTS IN THIS CASE, WE FIND IT IMPRACTICABLE TO JUDGE FOR OURSELVES THE DEGREE TO WHICH THE GENERAL ENGINEERING APPROACHES OF THE GOVERNMENT AND OF YOUR COMPANY FOR UPDATING OF THE T2A WOULD LIKELY BE SIMILAR, GIVEN THE SAME INTELLIGENCE AND OTHER AVAILABLE DATA. FURTHER, NOTWITHSTANDING THE WIDE DISSEMINATION OF YOUR PROPOSALS WITHIN THE AIR FORCE AND THE INTEREST EXPRESSED THEREIN BY VARIOUS SEGMENTS IN THE AIR FORCE, WE DO NOT FEEL THAT THE RECORD EITHER REQUIRES OR WOULD JUSTIFY A CONCLUSION THAT THE WRITERS OF THE RADC SPECIFICATION HAD, AT THE TIME OF WRITING, ANY DIRECT OR INDIRECT KNOWLEDGE OF THE TECHNICAL CONTENTS OF ANY PREVIOUS TASKER PROPOSAL.

CONCERNING YOUR CONTENTION THAT OUR CONCLUSION IN 49 COMP. GEN. 28 (1969) SUPPORTS YOUR POSITION WE BELIEVE THERE ARE IMPORTANT DISTINCTIONS BETWEEN THE SITUATION IN THAT CASE AND THE INSTANT CASE, SINCE IN THE PRIOR CASE IT WAS ADMITTED THAT THE WRITER OF THE GOVERNMENT'S SPECIFICATIONS HAD SEEN THE PROTESTOR'S PROPOSAL AND THE PROTESTOR HAD PROVIDED AN AFFIDAVIT ATTESTING TO THE FACT THAT THIS WRITER HAD BEEN BRIEFED ON ITS PROPOSAL PRIOR TO WRITING THE GOVERNMENT'S SPECIFICATIONS. IT IS ALSO SIGNIFICANT THAT IN THE PRIOR CASE WE WERE ABLE TO CONCLUDE THAT THE PROTESTOR'S PROPOSAL CONTAINED PROTECTIBLE SECRETS WHICH WERE IN FACT INCORPORATED IN THE GOVERNMENT'S SPECIFICATIONS.

WHILE THIS OFFICE MAY UNDERTAKE TO PREVENT ACTION WHICH WOULD CLEARLY SUBJECT THE GOVERNMENT TO LEGAL LIABILITY FOR VIOLATION OF CONTRACTUAL OBLIGATIONS, EITHER EXPRESSED OR IMPLIED, WE DO NOT CONSIDER IT TO BE WITHIN THE PROPER SCOPE OF OUR AUTHORITY TO TAKE SUCH ACTION WHERE THE RECORD DOES NOT CLEARLY ESTABLISH THE GOVERNMENT'S LIABILITY. BASED UPON THE RECORD IN THIS CASE WE ARE UNABLE TO CONCLUDE THAT THE WRITERS OF THE RADC SPECIFICATION HAD, AT THE TIME OF WRITING, ANY DIRECT OR INDIRECT KNOWLEDGE OF THE TECHNICAL CONTENTS OF ANY PRIOR TASKER UNSOLICITED PROPOSAL, OR THAT THE GOVERNMENT INCORPORATED INTO ITS SPECIFICATION ANY PROPRIETARY INFORMATION WHICH MAY HAVE BEEN INCLUDED IN YOUR UNSOLICITED PROPOSALS.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.