B-173192, AUG 23, 1971

B-173192: Aug 23, 1971

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ALTHOUGH PROTESTANT CONTENDS THAT IT FURNISHED THE AIR FORCE WITH INFORMATION THAT WAS PROPRIETARY AND CONFIDENTIAL FOR LIMITED PURPOSES AND THAT THE AIR FORCE IMPROPERLY DISCLOSED THE DATA TO COMPETITORS TO DEVELOP NEW SOURCES FOR THE CONTACT ASSEMBLIES. THERE IS NO INDICATION THAT THE DATA WAS FURNISHED FOR LIMITED PURPOSES. NOR IS THERE ANY EVIDENCE THAT THE GOVERNMENT DISCLOSED ANY OF BEOWOLF'S PROPRIETARY RIGHTS. PROTEST IS DENIED. TO BEOWULF CONNECTOR AND CABLE CORPORATION: REFERENCE IS MADE TO THE LETTERS OF JUNE 14. WE HAVE BEEN ADVISED THAT AWARD UNDER THIS SOLICITATION IS BEING WITHHELD PENDING OUR RESOLUTION OF THE PROTEST. CERTAIN MATERIAL FACTS PERTINENT TO THE PROTEST ARE IN DISPUTE.

B-173192, AUG 23, 1971

BID PROTEST - DISCLOSURE OF PROPRIETARY RIGHTS BY GOVERNMENT DECISION DENYING PROTEST OF BEOWOLF CONNECTOR AND CABLE CORPORATION AGAINST AWARD OF CONTRACT TO ANY OTHER FIRM UNDER RFP ISSUED BY DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AFB, GA., FOR CONTACT ASSEMBLIES USED ON CERTAIN BOMB RACKS. ALTHOUGH PROTESTANT CONTENDS THAT IT FURNISHED THE AIR FORCE WITH INFORMATION THAT WAS PROPRIETARY AND CONFIDENTIAL FOR LIMITED PURPOSES AND THAT THE AIR FORCE IMPROPERLY DISCLOSED THE DATA TO COMPETITORS TO DEVELOP NEW SOURCES FOR THE CONTACT ASSEMBLIES, THE RECORD SHOWS OTHERWISE. UNDER THE GENERAL PROVISIONS OF CONTRACT NO. 4164, THE GOVERNMENT PURCHASED UNLIMITED RIGHTS TO THE DATA ON THE ITEM IN QUESTION. THERE IS NO INDICATION THAT THE DATA WAS FURNISHED FOR LIMITED PURPOSES, NOR IS THERE ANY EVIDENCE THAT THE GOVERNMENT DISCLOSED ANY OF BEOWOLF'S PROPRIETARY RIGHTS; THEREFORE, PROTEST IS DENIED.

TO BEOWULF CONNECTOR AND CABLE CORPORATION:

REFERENCE IS MADE TO THE LETTERS OF JUNE 14, 1971, AND AUGUST 13, 1971, WITH ENCLOSURES, REFERENCE 3648S, FROM COUNSEL CONCERNING YOUR PROTEST AGAINST THE PROPOSED AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. F09603-71-R-4451, ISSUED ON MAY 7, 1971, BY WRAMA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, ROBINS AIR FORCE BASE, GEORGIA, FOR CONTACT ASSEMBLIES USED ON CERTAIN BOMB RACKS. WE HAVE BEEN ADVISED THAT AWARD UNDER THIS SOLICITATION IS BEING WITHHELD PENDING OUR RESOLUTION OF THE PROTEST.

YOU CONTEND THAT THE AIR FORCE DISCLOSED ALLEGEDLY PROPRIETARY AND CONFIDENTIAL INFORMATION RELATIVE TO BEOWULF PART NUMBER (P/N) 8900980 TO A COMPETITOR FOR THE PURPOSE OF DEVELOPING AN ADDITIONAL SOURCE FOR THE ITEMS.

CERTAIN MATERIAL FACTS PERTINENT TO THE PROTEST ARE IN DISPUTE. HOWEVER, THERE APPEARS TO BE AGREEMENT ON THE FOLLOWING FACTS.

PRIOR TO THE DEVELOPMENT OF BEOWULF P/N 8900980 THE AIR FORCE WAS USING MCDONNELL P/N 2551821 SUBSEQUENTLY REDESIGNATED AS AIR FORCE P/N 67D46204. BEOWULF FIRST OFFERED ITS P/N 8900980 AS AN ALTERNATE TO THE MCDONNELL PART SPECIFIED IN RFP NO. F09603-69-R-1511, ISSUED BY ROBINS AIR FORCE BASE ON NOVEMBER 25, 1968, FOR 14,290 CONTACT ASSEMBLIES. BEOWULF'S ALTERNATE OFFER OF ITS P/N 8900980 WAS NOT ACCEPTED; HOWEVER, BEOWULF DID RECEIVE AN AWARD UNDER RFP-1511 FOR FURNISHING THE SPECIFIED MCDONNELL PART NUMBER AT A UNIT PRICE OF $1.08. ON JUNE 3, 1969, THE AIR FORCE EXERCISED ITS OPTION UNDER THAT CONTRACT AND PURCHASED AN ADDITIONAL 29,840 UNITS OF THE MCDONNELL VERSION FROM YOUR CONCERN.

THE FIRST PURCHASE OF YOUR BEOWULF P/N 8900980 WAS UNDER A PURCHASE ORDER ISSUED TO YOUR CONCERN FOR 1,000 UNITS WITH A DELIVERY DATE OF JULY 30, 1969, INCORPORATING CERTAIN CHANGES TO THE PIN DIAMETER AND THE FILLET RADIUS AS REQUIRED BY THE AIR FORCE. CERTAIN OTHER CHANGES TO THE UNITS WERE DEVELOPED BY YOUR CONCERN DURING TESTING. THE PURCHASE REQUEST AND THE RESULTANT ORDER DID NOT REQUIRE DATA.

RFP NO. 09603-71-R-3722, WHICH SPECIFIED BEOWULF P/N 8900980 AND ALSO HAD AN ACCEPTABLE ITEMS CLAUSE IN PARAGRAPH 38 OF SECTION C, WAS MAILED TO BEOWULF AND FOUR OTHER SUPPLIERS ON JANUARY 21, 1971. SEVERAL PROPOSALS WERE RECEIVED INCLUDING PROPOSALS FROM MINIMATIC COMPONENTS AND SOLO ENTERPRISES CORPORATION WHICH WERE LOWER IN PRICE THAN YOUR PROPOSAL; HOWEVER, THESE TWO PROPOSALS WERE REJECTED AS UNACCEPTABLE. ON APRIL 2, 1971, CONTRACT NO. F09603-71-C-4164 WAS AWARDED TO YOUR CONCERN FOR BEOWULF P/N8900980.

THE INITIAL AWARD INCREMENT UNDER ITEM NO. 0001AA WAS FOR 20,000 UNITS; OPTIONAL QUANTITIES UNDER INCREMENTS A, B, AND C WERE FOR 20,000, 10,000 AND 5,000 UNITS RESPECTIVELY. ITEM NO. 0002AB IN YOUR CONTRACT WAS FOR DATA INCLUDING PROCUREMENT DATA PACKAGES AND LISTS UNDER A002 IN ACCORDANCE WITH ATTACHED EXHIBIT "A". EXHIBIT "A" PROVIDED THAT ITEM NO. A001 (DRAWINGS AND LISTS OF NON-GOVERNMENT DESIGN ACTIVITY) WOULD BE FURNISHED AS REQUESTED AND THAT ITEM NO. A002 WAS REQUIRED 30 DAYS AFTER CONTRACT AWARD. YOU INITIALLY QUOTED A PRICE OF $7,500 FOR ITEM NO. A002 BUT BY LETTER DATED MARCH 1, 1971, YOU DELETED ANY CHANGE FOR THIS ITEM.

CONTRACT NO. -4164 DELETED CLAUSE NO. 28, RIGHTS IN TECHNICAL DATA (ASPR 7-104.9(A)) FROM THE GENERAL PROVISIONS, SECTION L, OF THE RFP AND ADDED CLAUSE 73, RIGHTS IN TECHNICAL DATA - SPECIFIC ACQUISITION, 1964 MAY (ASPR 7-104.9(C)). UNDER CLAUSE 73, THE GOVERNMENT HAS THE RIGHT TO "DUPLICATE, USE AND DISCLOSE IN ANY MANNER AND FOR ANY PURPOSE WHATSOEVER, AND HAVE OTHERS SO DO, ALL OR ANY PART OF THE TECHNICAL DATA DELIVERED BY THE CONTRACTOR TO THE GOVERNMENT UNDER THIS CONTRACT."

DURING THE PERIOD BETWEEN THE PURCHASE REQUEST FOR RFP - 3722 AND CONTRACT NO. -4164, AN EMERGENCY NEED AROSE FOR BEOWULF P/N 8900980 AND A QUANTITY OF 10,365 UNITS WAS AWARDED TO YOUR CONCERN ON JANUARY 29, 1971 (CONTRACT NO. F09603-71-C-3878), ON A SOLE-SOURCE BASIS AT A PRICE OF $3.19 PER UNIT.

ON MAY 11, 1971, MINIMATIC WAS APPROVED AS A SOURCE FOR THE CONTACT ASSEMBLIES BASED ON SAMPLES SUBMITTED AND CERTIFICATIONS SET FORTH IN MINIMATIC'S LETTERS OF APRIL 16 AND MAY 7, 1971. ON JUNE 28, 1971, SOLO WAS ALSO APPROVED AS A SOURCE FOR THE CONTACT ASSEMBLIES AND THE LETTER TO SOLO ADVISED THAT ITS PART NUMBER WOULD BE INCLUDED IN FUTURE SOLICITATIONS FOR THE ITEM.

THE AIR FORCE BUYER UNDER CONTRACT NO. -4164 WAS INFORMED BY YOUR REPRESENTATIVE ON MAY 4, 1971, THAT THE DATA REQUIRED UNDER ITEM NO. A002 OF EXHIBIT "A" OF THAT CONTRACT WOULD NOT BE FORTHCOMING FOR SEVERAL WEEKS. THE CONTRACTING OFFICER STATES THAT UPON RECEIPT OF THIS ADVICE THE INSTANT SOLICITATION (RFP NO. F09603-71-R-4451) WAS ISSUED TO THE PRINTER AND MAILED TO YOUR CONCERN AND MINIMATICS ON MAY 7, 1971. ITEM NO. 0001 OF THIS RFP SPECIFIED BEOWULF P/N 8900980 OR MINIMATIC P/N 8543 WITH A REQUIREMENT FOR 45,182 UNITS.

THE LETTER OF JUNE 14 REQUESTS THAT THE QUALIFICATION OF MINIMATIC AS AN APPROVED SOURCE SHOULD BE RESCINDED AND THE INSTANT SOLICITATION BE CANCELLED. THE CONTENTIONS IN THE LETTER OF JUNE 14 AND AIR FORCE'S RESPONSES THERETO ARE SUMMARIZED IN PARAGRAPHS (1) THROUGH (6) AS FOLLOWS:

(1) THE LETTER OF JUNE 14 INDICATES THAT BEOWULF DEVELOPED ITS P/N 8900980 AS A RESULT OF BEING ADVISED OF INADEQUACIES IN THE MCDONNELL PART. IT IS AIR FORCE'S POSITION THAT BEOWULF INITIATED THE DEVELOPMENT OF ITS PART AND THAT BEOWULF CONTACTED CERTAIN AIR FORCE PERSONNEL TO "SELL" ITS PART.

(2) IT IS URGED THAT IN CONNECTION WITH THE DEVELOPMENT OF YOUR PART YOU MADE OPEN DISCLOSURES OF DATA TO AIR FORCE PERSONNEL WITH THE UNDERSTANDING THAT SUCH DATA WAS "CONFIDENTIAL AND PROPRIETARY." AIR FORCE ADVISES THAT DATA WAS SUBMITTED BY YOU TO "PROVE" THE ACCEPTABILITY OF THE PART; THAT YOU DID NOT STRESS THAT SUCH DATA WAS "CONFIDENTIAL AND PROPRIETARY;" AND THAT IN ANY EVENT AIR FORCE DID NOT MAKE ANY DISCLOSURE OF SUCH DATA TO OTHER POTENTIAL SOURCES.

(3) THE LETTER OF JUNE 14 STATES THAT "AS EARLY AS DECEMBER, 1968, MR. WILLIE H. SMITH *** ROBINS AIR FORCE BASE *** STATED THAT THE AIR FORCE WOULD TRY THE CONTACT ASSEMBLY *** PROVIDED THAT BEOWULF WOULD AGREE TO SELL THE TECHNICAL DATA TO THE AIR FORCE. *** AT NO TIME DID BEOWULF OFFER TO GIVE ITS TECHNICAL DATA *** WITHOUT AN AGREEMENT BY AIR FORCE TO PURCHASE A MINIMUM NUMBER OF THE BEOWULF CONTACT ASSEMBLIES." AIR FORCE ADVISES MR. SMITH AGREES THAT BEOWULF WAS ASKED IF IT WOULD SELL THE DATA; HOWEVER, MR. SMITH DENIES THAT THERE WAS ANY UNDERSTANDING THAT THE FURNISHING OF BEOWULF'S DATA WAS PREDICATED ON THE AIR FORCE PURCHASING ANY SPECIFIED QUANTITY OF BEOWULF'S UNITS.

(4) THE CONTENTION IS MADE THAT BEOWULF GAVE DETAILS OF ITS TECHNICAL DATA TO OFFICIALS AT ROBINS AIR FORCE BASE IN CONNECTION WITH THE PURCHASE ORDER FOR 1,000 UNITS AND THAT SUCH DATA WAS DISCLOSED TO YOUR COMPETITORS. AIR FORCE ADMITS THAT ONE SET OF BEOWULF'S UPDATED DRAWING WAS FURNISHED TO CERTAIN OFFICIALS AT WRAMA IN CONNECTION WITH THE PURCHASE ORDER FOR 1,000 UNITS. THE CONTRACTING OFFICER'S REPORT STATES THAT THESE OFFICIALS HAVE DENIED THAT SUCH DATA WAS EVER DISCLOSED TO AN OUTSIDE SOURCE.

(5) THE AIR FORCE ADMITS THE CONTENTION THAT THE COPIES OF THE TELEGRAMS FROM VIETNAM ENCLOSED WITH THE LETTER OF PROTEST INDICATES IMPROVED RESULTS USING YOUR CONTACT ASSEMBLIES.

(6) IT IS ASSERTED THAT THE COPY OF THE LETTER DATED JANUARY 30, 1970, TO MR. ROY NICHOLSON AT ROBINS AIR FORCE BASE IS TYPICAL OF THE CONFIDENTIAL NATURE OF YOUR DISCLOSURES TO THE AIR FORCE. IT IS AIR FORCE'S VIEW THAT WHILE THE LETTER STATES WHAT IS BEING DONE NO DETAILS ARE GIVEN AND THAT IN ANY EVENT THE CONTENTS OF THAT LETTER WERE NOT REVEALED TO ANY OTHER SOURCE.

THE LETTER OF JUNE 14 URGES THAT ANY RIGHTS TO THE DATA WHICH AIR FORCE MAY HAVE ACQUIRED UNDER CONTRACT NO. -4164 DID NOT BECOME EFFECTIVE UNTIL MAY 12, 1971, SINCE THAT IS THE DATE FOR DELIVERY OF THE DATA ACQUIRED UNDER THAT CONTRACT. IT IS ALLEGED THAT THERE WAS AN IMPLIED AGREEMENT ON THE PART OF THE GOVERNMENT IN THIS CONTRACT THAT THE GOVERNMENT WOULD EXERCISE THE OPTIONS FOR ADDITIONAL BEOWULF CONTACT ASSEMBLIES PRIOR TO ISSUING THE INSTANT SOLICITATION. IT IS ASSERTED THAT THE PROCEDURE FOR PURCHASING YOUR DATA WAS IN VIOLATION OF ASPR 9-202.2(D) WHICH PROVIDES FOR PREDETERMINATION OF RIGHTS IN DATA IN CERTAIN SITUATIONS.

WE HAVE REVIEWED CONTRACT -4164, AND FIND IN IT NOTHING WHICH MAKES THE ACQUISITION OF YOUR DATA DEPENDENT ON THE EXERCISE OF THE OPTIONS THEREIN. ASPR 1-1505(C) SETS OUT CRITERIA FOR EXERCISE OF OPTIONS AND THE CONTRACTING OFFICER HAS DETERMINED THAT THE OPTIONS SHOULD NOT BE EXERCISED. WE HAVE FOUND NO BASIS TO QUESTION THIS DETERMINATION. SEE 49 COMP. GEN. 335 (1969).

UNDER CLAUSE 73 OF THE GENERAL PROVISIONS OF CONTRACT NO. -4164 THE GOVERNMENT ACQUIRED UNLIMITED RIGHTS IN THE DATA PURCHASED FROM YOU. THERE IS NO INDICATION THAT YOU PROPOSED TO FURNISH DATA WITH LIMITED RIGHTS; CONSEQUENTLY, ASPR 9-202.2(D) WHICH DEALS WITH LIMITED RIGHTS DOES NOT APPLY HERE. IN VIEW OF THE FACTS PRESENTED, WE DO NOT THINK IT IS RELEVANT THAT THE INSTANT RFP WAS ISSUED PRIOR TO THE DATE YOU WERE REQUIRED TO DELIVER YOUR DATA UNDER CONTRACT NO. -4164.

OUR OFFICE HAS BEEN FURNISHED A COPY OF A MINIMATIC DRAWING IN ATTACHMENT I AND A COPY OF BEOWULF'S DRAWING OF DECEMBER 2, 1968, AS REVISED IN ATTACHMENT H. IT IS ASSERTED THAT THE SIMILARITY OF THESE DRAWINGS ESTABLISHES THAT THE MINIMATIC QUALIFICATION OF MAY 11 WAS BASED ON BEOWULF'S DESIGN. WITH REGARD TO THIS CONTENTION A HANDWRITTEN LETTER BY THE PRESIDENT OF BEOWULF TO THE COMMANDING GENERAL AT WRAMA, DATED MAY 12, 1971, STATES THAT AN OFFICER OF BEOWULF WAS DISCHARGED FOR GIVING BEOWULF'S DRAWING TO MINIMATIC AND SOLO INDUSTRIES. IN A LETTER DATED JULY 1, 1971, MINIMATIC HAS DENIED THAT IT EVER RECEIVED ANY TRADE SECRETS FROM THE AIR FORCE. MINIMATIC'S LETTER FURTHER STATES THAT " *** ALL THE SPECIAL PROCESSES REQUIRED TO PRODUCE AN ACCEPTABLE PART ARE SPECIFIED BY MIL SPECS AND IF FOLLOWED, DO NOT REQUIRE TRADE SECRETS, SPECIAL TEST EQUIPMENT OR PROPRIETARY INFORMATION FROM ANYONE." THE RECORD BEFORE US DOES NOT ESTABLISH THAT THE AIR FORCE DISCLOSED PROPRIETARY OR CONFIDENTIAL INFORMATION TO MINIMATIC. MOREOVER, WE TAKE NO POSITION WITH RESPECT TO POSSIBLE VIOLATION OF BEOWULF'S PROPRIETARY RIGHTS BY NON- GOVERNMENT PERSONS OR ORGANIZATIONS. THE RESOLTUTION OF SUCH ISSUES ARE BEYOND THE PROVINCE OF THIS OFFICE. B-169493, JULY 1, 1970. THEREFORE, WE DO NOT FIND ANY BASIS TO QUESTION AIR FORCE'S ACTION IN QUALIFYING MINIMATIC OR IN ISSUING THE INSTANT RFP.