B-170543, DEC. 2, 1970

B-170543, DEC. 2, 1970

BID PROTEST - PROPRIETARY RIGHTS DENIAL OF PROTEST BY ROCKET RESEARCH CORPORATION AGAINST CONTRACT AWARD BY NATIONAL AERONAUTICS AND SPACE ADMINISTRATION TO AEROJET GENERAL CORPORATION FOR THE DESIGN, FABRICATION AND TESTING OF A COMBINATION MONOPROPELLANT/BIPROPELLANT ROCKET ENGINE. WHERE PROTESTANT FURNISHES NO EVIDENCE TO SUPPORT CLAIM THAT THERE HAS BEEN A VIOLATION OF THEIR PROPRIETARY RIGHTS OR THAT THE GOVERNMENT IMPROPERLY REVEALED ANY PROPRIETARY DATA AND AGENCY FINDS THAT SUCCESSFUL BIDDER'S PROPOSAL UTILIZIES A DIFFERENT CONFIGURATION WHICH WOULD NOT RESULT IN ANY INFRINGEMENT UPON PROTESTANT'S RIGHTS, THE GAO IS NOT IN A POSITION TO ADJUDICATE ANY POSSIBLE RIGHTS PROTESTANT MAY HAVE AGAINST THIRD PARTIES OR TO PURSUE THE INVESTIGATION FURTHER TO SUBSTANTIATE OR REFUTE PROTESTANT'S CLAIM OR TO INTERFERE WITH THE PROCUREMENT IN ANY OTHER MANNER. THEREFORE THE PROTEST IS DENIED.

TO GRAYBEAL, COLE AND BARNARD:

THIS IS IN REPLY TO YOUR LETTERS OF AUGUST 7, SEPTEMBER 18 AND OCTOBER 30, 1970, PROTESTING ON BEHALF OF ROCKET RESEARCH CORPORATION (RRC) THE PROPOSED AWARD OF NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) CONTRACT NO. NAS 7-802 TO AEROJET GENERAL CORPORATION (AGC).

THE PROPOSED CONTRACT IS FOR THE DESIGN, FABRICATION AND TESTING OF A FLIGHT TYPE COMBINATION MONOPROPELLANT/BIPROPELLANT ROCKET ENGINE USING ANHYDROUS HYDRAZINE AND LIQUID FLUORINE PROPELLANTS. NASA SOLICITED PROPOSALS FROM INTERESTED FIRMS AND WE ARE ADVISED THAT IT PROPOSES TO AWARD A CONTRACT TO AGC.

IT IS YOUR POSITION THAT AN AWARD SHOULD BE WITHHELD FROM AGC EITHER UNTIL IT CAN BE ESTABLISHED THAT ITS PROPOSAL DOES NOT INCORPORATE A PROPRIETARY CONCEPT WHICH WAS PREVIOUSLY REVEALED TO THE GOVERNMENT FOR EVALUATION ONLY IN RRC'S UNSOLICITED PROPOSALS OR, IF SUCH CONCEPT IS INCORPORATED IN THE AGC PROPOSAL, UNTIL IT IS ESTABLISHED THAT AGC INDEPENDENTLY DEVELOPED THE CONCEPT OR LEGITIMATELY RECEIVED IT FROM A THIRD SOURCE.

YOU STATE IN YOUR LETTER OF OCTOBER 30 THAT "IN THE MIDDLE AND LATTER PART OF JULY 1970, JUST PRIOR TO THE ANNOUNCEMENT OF THE AWARD TO AEROJET, ROCKET RESEARCH CORPORATION RECEIVED INFORMAL INFORMATION THAT LET TO THE BELIEF THAT PROPRIETARY INFORMATION OF ROCKET RESEARCH CORPORATION RELATING TO ITS ... CONCEPT HAS BEEN DISCLOSED TO OTHERS OUTSIDE OF NASA." HOWEVER, YOU HAVE NOT SUBMITTED ANY EVIDENCE WHATEVER IN SUPPORT OF YOUR BELIEF THAT THERE HAS BEEN A VIOLATION OF YOUR RIGHTS IN PROPRIETARY DATA, OR THAT THE GOVERNMENT IMPROPERLY REVEALED YOUR PROPRIETARY DATA. TO THE CONTRARY, IT IS ADMITTED IN YOUR LETTER OF OCTOBER 30 THAT THE GOVERNMENT'S SOLICITATION OF ITSELF DOES NOT REVEAL ANY OF RRC'S PROPRIETARY INFORMATION. ADDITIONALLY, IT IS THE POSITION OF NASA'S PATENT COUNSEL THAT THE ENGINE CONFIGURATION PROPOSED BY AEROJET UTILIZES A DIFFERENT CONFIGURATION THAN THAT PROPOSED BY RRC AND THAT AEROJET'S WORK IF AWARDED A CONTRACT THEREFORE WOULD NOT INFRINGE RRC'S RIGHTS IN THE EVENT IT SHOULD BE GRANTED A PATENT UPON ITS PRESENT PATENT APPLICATION.

WE HAVE HELD THAT IN THE INTEREST OF PRESERVING THE INTEGRITY OF THE GOVERNMENT AS A PURCHASER, AND OF AVOIDING POSSIBLE LEGAL LIABILITY, THE GOVERNMENT SHOULD RECOGNIZE AN INDIVIDUAL'S PROPRIETARY RIGHTS TO INFORMATION AND SHOULD NOT DISCLOSE OR USE SUCH INFORMATION FOR PROCUREMENT PURPOSES UNLESS IT ACQUIRES THE RIGHT TO DO SO FROM THE INDIVIDUAL OWNER. MOREOVER, OUR OFFICE HAS ACTED IN SEVERAL CASES TO DIRECT CANCELLATION OF PENDING SOLICITATIONS OF BIDS OR PROPOSALS WHERE IT APPEARED THAT THE GOVERNMENT'S SOLICITATION INCORPORATED THE PROPRIETARY DATA OF ANOTHER, AND THE GOVERNMENT'S USE OF SUCH DATA WAS A CLEAR VIOLATION OF CONTRACTUAL RELATIONS BETWEEN THE GOVERNMENT AND THE PROPRIETOR. HOWEVER, YOU HAVE NOT SUBMITTED ANY EVIDENCE TO SUGGEST THAT THE GOVERNMENT HAS MISUSED YOUR PROPRIETARY DATA, AND IT IS THE POSITION OF THE CONTRACTING AGENCY THAT AEROJET'S DESIGN CONFIGURATION WILL NOT VIOLATE ANY RIGHTS YOU CLAIM TO BE PROPRIETARY. THIS OFFICE IS NOT IN A POSITION TO ADJUDICATE ANY RIGHTS YOU MIGHT POSSIBLY HAVE AGAINST PRIVATE PARTIES AND, UNTIL SUCH RIGHTS AS YOU MAY HAVE IN THE MATTER HAVE BEEN ESTABLISHED BY A COURT OF COMPETENT JURISDICTION WE WOULD NOT BE JUSTIFIED IN INTERFERING WITH THIS PROCUREMENT, OR IN PURSUING ANY FURTHER INVESTIGATION FOR THE PURPOSE OF SUBSTANTIATING OR REFUTING YOUR ALLEGATION THAT AEROJET'S PERFORMANCE OF THE CONTRACT MAY VIOLATE YOUR PROPRIETARY RIGHTS.

ACCORDINGLY, YOUR PROTEST IS DENIED.