B-172658, JUL 1, 1971

B-172658: Jul 1, 1971

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INCORPORATING TWO DESIGN CHANGES: (1) THE SCREW ON CAP WAS REPLACED BY A "SLEEVE-TYPE" DESIGN. (2) THE UNIT WAS CONSTRUCTED OF ALUMINUM RATHER THAN STEEL. THE DESIGN FEATURES QUESTIONED BY REMCOR WERE THE RESULT OF A NWL'S DEVELOPMENT PROGRAM DURING THE PERIOD 1966 71. THE COMPTROLLER GENERAL IS UNABLE TO CONCLUDE THAT NWL INCORPORATED INTO ITS DESIGN AND DRAWINGS ANY PROPRIETARY INFORMATION WHICH MAY HAVE BEEN INCLUDED IN REMCOR'S UNSOLICITED PROPOSALS. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. THE SUBJECT INVITATION WAS ISSUED ON MARCH 23. THE ITEMS BEING PROCURED FOR QUALIFICATION TESTING WERE REQUIRED TO BE IN ACCORDANCE WITH REFERENCED SPECIFICATIONS INCLUDING FIVE ATTACHED NWL DRAWINGS.

B-172658, JUL 1, 1971

BID PROTEST - PROPRIETARY RIGHTS DENYING PROTEST OF REMCOR, INCORPORATED AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AND IFB ISSUED BY THE NAVAL WEAPONS LABORATORY FOR THE PROCUREMENT OF FOUR ITEMS IN CONNECTION WITH NWL'S DEVELOPMENT PROGRAM FOR A CARTRIDGE ACTUATED DEVICE (CAD) TO LAUNCH SONOBUOYS FROM P- 3C AIRCRAFT. PROTESTANT CONTENDS THAT THE DRAWINGS ATTACHED TO THE IFB VIOLATE THEIR PROPRIETARY RIGHTS IN CERTAIN DRAWINGS PREVIOUSLY SUBMITTED TO NWL, AS AN UNSOLICITED PROPOSAL, INCORPORATING TWO DESIGN CHANGES: (1) THE SCREW ON CAP WAS REPLACED BY A "SLEEVE-TYPE" DESIGN, AND (2) THE UNIT WAS CONSTRUCTED OF ALUMINUM RATHER THAN STEEL. ACCORDING TO THE NWL REPORT, THE DESIGN FEATURES QUESTIONED BY REMCOR WERE THE RESULT OF A NWL'S DEVELOPMENT PROGRAM DURING THE PERIOD 1966 71. BASED UPON THE RECORD IN THIS CASE, THE COMPTROLLER GENERAL IS UNABLE TO CONCLUDE THAT NWL INCORPORATED INTO ITS DESIGN AND DRAWINGS ANY PROPRIETARY INFORMATION WHICH MAY HAVE BEEN INCLUDED IN REMCOR'S UNSOLICITED PROPOSALS.

TO REMCOR, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS NO. N00178-71-B 0070, ISSUED BY THE NAVAL WEAPONS LABORATORY (NWL), DAHLGREN, VIRGINIA, ON THE GROUND THAT THE DRAWINGS ATTACHED THERETO VIOLATE YOUR PROPRIETARY RIGHTS IN CERTAIN DRAWINGS PREVIOUSLY SUBMITTED TO NWL.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 23, 1971, FOR THE PROCUREMENT OF SPECIFIED QUANTITIES OF FOUR ITEMS IN CONNECTION WITH NWL'S DEVELOPMENT PROGRAM FOR A CARTRIDGE ACTUATED DEVICE (CAD) TO LAUNCH SONOBUOYS FROM P- 3C AIRCRAFT. THE ITEMS BEING PROCURED FOR QUALIFICATION TESTING WERE REQUIRED TO BE IN ACCORDANCE WITH REFERENCED SPECIFICATIONS INCLUDING FIVE ATTACHED NWL DRAWINGS. THREE BIDS WERE RECEIVED AND OPENED ON APRIL 23, 1971. IT IS PROPOSED TO MAKE AWARDS TO YOUR FIRM FOR ITEMS 2 AND 3, AND TO BREED CORPORATION FOR ITEMS 1 AND 4, AS THE LOW BIDDERS FOR THE RESPECTIVE ITEMS.

YOU CONTEND THAT AWARD OF ANY OF THE ITEMS TO OTHER THAN YOUR FIRM WOULD VIOLATE YOUR PROPRIETARY RIGHTS AS THE NWL DRAWINGS UTILIZE REMCOR'S CONCEPT WHICH HAS BEEN UNDER DEVELOPMENT FOR TWO YEARS. IN THIS CONNECTION, YOU STATE THAT PRIOR TO THE SUBJECT PROCUREMENT THE NAVY'S CONCEPT WAS A CAD UNIT WITH A SCREW-ON CAP WHICH WAS SCREWED INTO THE CARTRIDGE CHAMBER, AND THE UNIT WAS MADE OF STEEL. YOU STATE THAT BECAUSE THE NAVY'S DESIGN HAD PROVEN UNSAFE IN JULY 1969 REMCOR DEVELOPED A UNIT WHICH DIFFERED IN TWO MAJOR RESPECTS: (1) THE SCREW ON CAP WAS ELIMINATED BY MAKING THE OUTER CASING ONE-PIECE WITH NO JOINTS EXTERNAL TO THE BREECH CAP OF THE SHIP/LAUNCH CONTAINER, AND (2) IT IS CONSTRUCTED OF ALUMINUM RATHER THAN STEEL.

YOU REPORT THAT NWL TESTED THE REMCOR CONCEPT ON JANUARY 6, 1969, AND REFER TO AN ENCLOSED TEST REPORT IN YOUR LETTER OF APRIL 16, 1971, TO OUR OFFICE. AFTER FURTHER DEVELOPING THE UNIT, YOU STATE THAT YOU FORWARDED AN UNSOLICITED PROPOSAL TO THE NAVAL AIR DEPARTMENT CENTER, JOHNSVILLE, WARMINSTER, PENNSYLVANIA, STATING " *** DRAWINGS HAVE BEEN FORWARDED TO YOU AS CONFIDENTIAL INFORMATION AND ARE NOT TO BE USED EXCEPT IN THE EVALUATION OF THIS PROPOSAL." THE DRAWINGS SENT WITH THE PROPOSAL INCLUDED A RESTRICTIVE LEGEND. THE LETTER ALSO STATED FIVE SAMPLE UNITS HAD BEEN SHIPPED TO NWL FOR TESTING. HOWEVER, YOU WERE NOT ADVISED WHETHER SUCH TESTS WERE EVER CONDUCTED. ON SEPTEMBER 18, 1970, YOU REPORT SENDING ANOTHER UNSOLICITED PROPOSAL TO NWL OFFERING TO DESIGN AND SUPPLY A FAIL-SAFE CAD UNIT. THIS PROPOSAL REFERRED TO THE FIVE UNITS PREVIOUSLY SUBMITTED FOR TESTING, AND SET FORTH CERTAIN GENERAL DESIGN PROBLEMS WHICH HAD BEEN SUCCESSFULLY ENGINEERED. YOUR PROPOSAL WAS NOT ACCEPTED.

THE NAVY REPORTS THAT THE SUBJECT PROCUREMENT RESULTS FROM ITS OWN DEVELOPMENT PROGRAM FOR A CAD TO LAUNCH SONOBUOYS FROM THE P-3C AIRCRAFT WHICH HAS BEEN UNDER STUDY AT THE NWL IN DAHLGREN SINCE APRIL 1965. THE INITIAL CAD DEVELOPED WAS FABRICATED FROM STEEL. HOWEVER, CONTRARY TO YOUR STATEMENT THAT YOUR DEVELOPMENT OF AN ALUMINUM CAD IN 1969 WAS AN INNOVATION AND DRASTIC DEPARTURE FROM THE NAVY FABRICATION FROM STEEL, IT IS REPORTED THAT AN ALTERNATE CAD UNIT WAS DESIGNED IN 1966 UTILIZING ALUMINUM ALLOY. THIS DESIGN WAS IMPROVED IN 1967, AND ENGINEERING DEVELOPMENT COMPLETED. IN FEBRUARY 1968 NWL PROCURED APPROXIMATELY 2,000 UNITS OF THIS DESIGN FOR QUALIFICATION TESTING AND FURTHER FLEET TESTS. PRIOR TO COMPLETION OF TESTING OF THESE UNITS, IN LATE 1968 THE SAFETY CONTAINER COMPANY CONTACTED NWL CONCERNING ITS DESIGN OF A CAD CONSISTING OF TWO FORCE FITTED SLEEVES AND FABRICATED FROM ALUMINUM. THESE UNITS WERE TESTED IN NOVEMBER 1968 AND FOUND UNACCEPTABLE. FURTHER TESTS ON THESE UNITS WERE CONDUCTED ON JANUARY 6 AND 27, 1969, AND FOUND UNACCEPTABLE. IT IS REPORTED THAT THESE TESTS WERE THE ONLY TESTS OF ANY DESIGN OTHER THAN NWL'S DESIGNS. IN THIS CONNECTION, WE NOTE THAT ENCLOSURE "C" WITH YOUR LETTER OF APRIL 16, 1971, LABELED "TEST REPORT DATED JANUARY 6, 1969," AND REFERRED TO AS A TEST OF REMCOR'S CONCEPT ON JANUARY 6, 1969, IS A DUPLICATE COPY OF THE JANUARY 27, 1969, TEST REPORT OF THE SAFETY CONTAINER DESIGN FURNISHED OUR OFFICE BY THE NAVY.

IN FEBRUARY 1969 THERE WERE SOME FAILURES IN NWL'S ALUMINUM CAD DESIGN, AND A MODIFIED ALUMINUM CAD, ABANDONING THE CARTRIDGE CHAMBER WITH A SCREW -ON CAP AND UTILIZING TWO SLEEVES THAT THREAD TOGETHER, WAS DESIGNED IN MAY 1969. THIS DESIGN WAS UPDATED IN SEPTEMBER 1969. HOWEVER, IN OCTOBER 1969, DUE TO A SHORTAGE OF FUNDS AND AN URGENT NEED FOR CAD UNITS IN THE FLEET, FURTHER ALUMINUM CAD DEVELOPMENT WAS POSTPONED AND STEEL CAD UNITS WERE PROCURED.

IT IS REPORTED THAT IN DECEMBER 1969 YOU HAND-CARRIED FIVE CAD UNITS, SIMILAR TO NWL'S DESIGN AS IT EXISTED IN SEPTEMBER 1969, TO NWL FOR TESTING. SINCE THE NAVY WAS SATISFIED WITH ITS ALUMINUM-THREADED SLEEVE DESIGN, YOUR UNITS WERE NOT TESTED. WITH REGARD TO YOUR STATEMENT THAT YOU SENT AN UNSOLICITED PROPOSAL AND DRAWINGS TO JOHNSVILLE ON DECEMBER 29, 1969, NWL SAYS THAT THEY HAVE NO KNOWLEDGE CONCERNING IT.

IN SEPTEMBER 1970 DEVELOPMENT FUNDS BECAME AVAILABLE AND NWL RESUMED DEVELOPMENT OF ITS ALUMINUM-THREADED SLEEVE DESIGN. AT ABOUT THE SAME TIME, YOUR UNSOLICITED PROPOSAL OF SEPTEMBER 18, 1970, FOR THE DEVELOPMENT OF A CAD WAS RECEIVED. IT IS REPORTED THAT YOUR PROPOSAL WAS REJECTED SINCE IN-HOUSE EFFORTS HAD BEEN RESUMED AND A PARALLEL EFFORT WAS NOT CONSIDERED WARRANTED. FURTHERMORE, THE NAVY SAYS NO DRAWINGS ACCOMPANIED YOUR PROPOSAL AND IT DID NOT CONTAIN SUFFICIENT DETAIL AS TO APPROACH, DESIGN, CONSIDERATIONS, STRESS ANALYSES, AND MATERIAL SELECTIONS TO PROVIDE A BASIS FOR MEANINGFUL TECHNICAL EVALUATION.

BASED UPON THE RECORD IN THIS CASE WE ARE UNABLE TO CONCLUDE THAT NWL INCORPORATED INTO ITS DESIGN AND RESULTING DRAWINGS ANY PROPRIETARY INFORMATION WHICH MAY HAVE BEEN INCLUDED IN YOUR UNSOLICITED PROPOSALS. ACCORDING TO THE NAVY, IT BEGAN DEVELOPMENT OF A CAD UNIT FABRICATED OF ALUMINUM AS EARLY AS 1966 AND, EXCEPT FOR A PERIOD OF APPROXIMATELY ONE YEAR FROM OCTOBER 1969 TO SEPTEMBER 1970, CONTINUED DEVELOPMENT UNTIL IN 1971 ITS FINAL DESIGN WAS INCORPORATED IN THE SUBJECT DRAWINGS. FURTHERMORE, THE RECORD INDICATES THAT NWL BEGAN DEVELOPMENT OF THE INNER AND OUTER SLEEVE CONCEPT AS EARLY AS MAY 1969. ACCORDING TO THE INFORMATION YOU HAVE FURNISHED US, YOU DEVELOPED THESE CONCEPTS IN JULY 1969, AND ALLEGEDLY SUBMITTED THEM TO ANOTHER NAVY ACTIVITY IN AN UNSOLICITED PROPOSAL IN DECEMBER 1969. AS FOR YOUR UNSOLICITED PROPOSAL OF SEPTEMBER 1970, IT APPARENTLY CONTAINED NO PROPRIETARY INFORMATION AND WAS SUBMITTED LONG AFTER THE NAVY HAD DEVELOPED ITS CAD DESIGN.

ACCORDINGLY, YOUR PROTEST IS DENIED.