B-171601, JAN 7, 1972

B-171601, JAN 7, 1972

CONTRACTS - PROPRIETARY DATA - METHOD OF DETERMINATION DETERMINATIONS CONCERNING THE ALLEGED DISCLOSURE OF PROPRIETARY DATA DURING THE PROCUREMENT PROCESS WILL BE RENDERED BY THE OFFICE OF THE COMP. GEN. ON A CASE-BY-CASE BASIS.

TO TYCO INCORPORATED:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 30 AND DECEMBER 10, 1971, IN WHICH YOU STATE WE HAVE NOT ANSWERED IN OUR PRIOR CORRESPONDENCE, THE QUESTION AS TO WHAT ACTION OUR OFFICE WILL TAKE WHERE A CONTRACTING AGENCY HAS DISCLOSED PROPRIETARY DATA DURING THE PROCUREMENT PROCESS. YOU ASK FURTHER WHETHER RELIEF FROM SUCH DISCLOSURES MUST BE PROTESTED AND CONSIDERED ON A CASE-BY-CASE BASIS.

THE MERE ALLEGATION THAT CERTAIN DATA IS PROPRIETARY DOES NOT ESTABLISH THAT FACT. IF THE SUBSTANCE OF DATA ALLEGED TO BE PROPRIETARY IS IN FACT ALREADY KNOWN THROUGH SOURCES OTHER THAN THE CLAIMANT, OR IF IT IS OF SUCH A NATURE THAT IT MAY BE CONSIDERED TO BE WITHIN THE PUBLIC DOMAIN, THE CLAIM THAT IT IS PROPRIETARY MUST FAIL. DETERMINATION OF SUCH ISSUES MUST BE MADE ON A CASE-BY-CASE BASIS, WHETHER BY THE GENERAL ACCOUNTING OFFICE OR THE COURTS, DEPENDING ON THE PARTICULAR DATA INVOLVED AND THE OTHER CIRCUMSTANCES OF THE CASE.

OUR OFFICE WILL CONSIDER PROTESTS AGAINST IMPROPER DISCLOSURES OF PROPRIETARY DATA BY THE GOVERNMENT ON A CASE-BY-CASE BASIS AND WE HAVE, IN SOME INSTANCES, RECOMMENDED THAT SOLICITATIONS UTILIZING PROPRIETARY INFORMATION BE CANCELED. SEE, FOR EXAMPLE, 49 COMP. GEN. 28 (1969).