B-174080, JAN 24, 1972
Highlights
PROTESTANT'S REMEDY IS IN THE COURT OF CLAIMS AND THE GOVERNMENT IS PROTECTED BY THE PATENT INDEMNITY CLAUSE OF THE CONTRACT. TO STRUTHERS ELECTRONICS CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. IN WHICH WE ADVISED THAT THERE WAS NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE PROPOSED AWARD OF A CONTRACT TO CAMBRIDGE MARINE INDUSTRIES. OUR OFFICE ADVISED IN THE OCTOBER 22 DECISION THAT THERE WAS A PATENT INDEMNITY CLAUSE IN THE INVITATION AS AMENDED. THAT THERE WERE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED AND THAT CAMBRIDGE HAD ADVISED THE CONTRACTING OFFICER THAT IT DID NOT INTEND TO USE THE INTERNAL SWITCHING MECHANISM COVERED BY YOUR PATENT.
B-174080, JAN 24, 1972
BID PROTEST - PATENT INFRINGEMENT DECISION DENYING PROTEST BY STRUTHERS ELECTRONICS CORPORATION AGAINST THE AWARD OF A CONTRACT TO CAMBRIDGE MARINE INDUSTRIES, INC., UNDER AN IFB ISSUED BY THE NAVY REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA. CAMBRIDGE HAS ADVISED THAT IT CAN COMPLY WITH THE TERMS OF THE SOLICITATION WITHOUT INFRINGING PROTESTANT'S PATENT. IF THIS DOES NOT PROVE POSSIBLE, PROTESTANT'S REMEDY IS IN THE COURT OF CLAIMS AND THE GOVERNMENT IS PROTECTED BY THE PATENT INDEMNITY CLAUSE OF THE CONTRACT. ACCORDINGLY, THE PROTEST MUST BE DENIED.
TO STRUTHERS ELECTRONICS CORPORATION:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1972, AND PRIOR CORRESPONDENCE, REQUESTING RECONSIDERATION OF DECISION B-174080 OF OCTOBER 22, 1971, IN WHICH WE ADVISED THAT THERE WAS NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE PROPOSED AWARD OF A CONTRACT TO CAMBRIDGE MARINE INDUSTRIES, INC. (CAMBRIDGE), UNDER INVITATION FOR BIDS (IFB) N00140-72-B- 0037 ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA.
IN RESPONSE TO YOUR CONTENTION THAT AN AWARD TO CAMBRIDGE WOULD INFRINGE YOUR PATENT, OUR OFFICE ADVISED IN THE OCTOBER 22 DECISION THAT THERE WAS A PATENT INDEMNITY CLAUSE IN THE INVITATION AS AMENDED, THAT THERE WERE A NUMBER OF DIFFERENT INTERNAL SWITCHING MECHANISMS WHICH CAN BE USED AND THAT CAMBRIDGE HAD ADVISED THE CONTRACTING OFFICER THAT IT DID NOT INTEND TO USE THE INTERNAL SWITCHING MECHANISM COVERED BY YOUR PATENT.
HOWEVER, YOU HAVE A PATENT ON THE INTERNAL COAXIAL SWITCH MECHANISM IN THE SA-544A/GRA 34 ANTENNA TRANSFER SWITCHING UNIT AND YOU NOW QUESTION THE ACCEPTABILITY OF AN ANTENNA TRANSFER SWITCHING UNIT THAT DOES NOT CONTAIN THAT INTERNAL COAXIAL SWITCH MECHANISM IN VIEW OF THE PROVISION IN IFB SPECIFICATIONS THAT ALL PARTS USED IN THE ANTENNA TRANSFER SWITCHING UNIT "MUST BE DIRECTLY INTERCHANGEABLE WITH THE SAMPLE SA-544A/GRA 34 UNIT PROVIDED."
BY LETTER OF NOVEMBER 18, 1971, CAMBRIDGE ADVISED THE CONTRACTING OFFICER THAT IT INTENDS TO FURNISH A COAXIAL SWITCH WHICH WILL BE MECHANICALLY AND ELECTRICALLY INTERCHANGEABLE WITH THE COUNTERPART COAXIAL SWITCH. FURTHER, THE TECHNICAL ACTIVITY HAS STATED THAT IT IS ENTIRELY POSSIBLE FOR A COMPETENT MANUFACTURER TO PRODUCE A SWITCH WHICH WILL DUPLICATE THE FORM, FIT AND FUNCTION OF THE EXISTING SWITCH WITHOUT UTILIZING THE IDENTICAL DESIGN. CAMBRIDGE DID NOT STATE ANY EXCEPTION TO THE SPECIFICATIONS IN ITS BID AND IT HAS OTHERWISE INDICATED AN INTENT TO COMPLY WITH THE SPECIFICATIONS. MOREOVER, THE CONTRACTING AGENCY HAS INDICATED THAT IT MAY BE POSSIBLE TO CONFORM TO THE SPECIFICATIONS WITHOUT INFRINGING THE PATENT. IF CAMBRIDGE CANNOT COMPLY WITHOUT INFRINGING THE PATENT, YOUR REMEDY IS IN THE COURT OF CLAIMS AND THE GOVERNMENT IS PROTECTED BY THE PATENT INDEMNITY CLAUSE IN THE CONTRACT.
IN THE CIRCUMSTANCES, THE PROTEST AGAINST AN AWARD TO CAMBRIDGE IS DENIED.