B-177474, APR 13, 1973

B-177474: Apr 13, 1973

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THE HISTORY OF THE SUBJECT PROCUREMENT AS SET FORTH IN THE AGENCY'S REPORT IS AS FOLLOWS: 1. INTELLECTUAL PROPERTY AND THE GOVERNMENT REPRESENTATIVES WERE NOT AWARE THAT CREATIVE INDUSTRIES CLAIMED ANY SUCH RIGHTS IN THE DESIGN. 3. THE SPECIFICATIONS WERE CONSIDERED TO BE GENERAL ENOUGH IN NATURE SO THAT THEY DESCRIBED AN ITEM WHICH COULD BE READILY PRODUCED BY ANY NUMBER OF FIRMS. TEN PROSPECTIVE CONTRACTORS WERE SOLICITED. WERE RECEIVED. WAS AWARDED TO THAT COMPANY ON 26 JUNE 1972. THE FIRST PREPRODUCTION SAMPLE OF THE PAPERWEIGHT SUBMITTED BY THE CREST CRAFT COMPANY WAS DISAPPROVED AS NOT MEETING THE SPECIFICATIONS. THE SECOND SAMPLE WAS APPROVED ON 25 OCTOBER 1972. 000 PAPERWEIGHTS ARE NOW BEING PACKAGED FOR SHIPMENT TO DESTINATION. 4.

B-177474, APR 13, 1973

DENIAL OF PROTEST FILED ON BEHALF OF CREATIVE INDUSTRIES OF BOSTON, INC., AGAINST PREPRODUCTION SAMPLE ACCEPTED BY THE U.S. MARINE CORPS FROM CREST CRAFT CO.

TO RICHARD F. FELL:

WE REFER TO YOUR LETTER DATED NOVEMBER 14, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF CREATIVE INDUSTRIES OF BOSTON, INCORPORATED (CREATIVE), AGAINST THE PREPRODUCTION SAMPLE ACCEPTED BY THE UNITED STATES MARINE CORPS FROM CREST CRAFT COMPANY (CREST) UNDER THE CONTRACT RESULTING FROM INVITATION FOR BIDS NO. M00027-72-B-0062, ISSUED JUNE 8, 1972.

THE HISTORY OF THE SUBJECT PROCUREMENT AS SET FORTH IN THE AGENCY'S REPORT IS AS FOLLOWS:

1. IN JUNE 1971, THE MARINE CORPS PROCURED UNDER CONTRACT M00027-71 C- 0138 A NUMBER OF PAPERWEIGHTS CONTAINING THE MARINE CORPS' EMBLEM FROM CHARLES G. STOTT AND COMPANY, INC., WHO IN TURN HAD THEM PRODUCED BY L. E. MASON COMPANY OF BOSTON, MASSACHUSETTS.

2. PRIOR TO ISSUANCE OF IFB M00027-72-B-0062 FOR PAPERWEIGHTS, CREATIVE INDUSTRIES OF BOSTON, INC., CONTACTED THE MARINE CORPS AND SUGGESTED THAT THE MARINE CORPS ALLOW THEM TO DESIGN A PAPERWEIGHT WITHOUT COST OR OBLIGATION TO THE GOVERNMENT. CREATIVE INDUSTRIES DID SUBMIT A SAMPLE PAPERWEIGHT FOR EVALUATION BY THE MARINE CORPS; HOWEVER, AT NO TIME PRIOR TO AWARD OF THE CONTRACT HERE PROTESTED DID THIS COMPANY STATE THAT IT HAD SUBMITTED PROTECTABLE, INTELLECTUAL PROPERTY AND THE GOVERNMENT REPRESENTATIVES WERE NOT AWARE THAT CREATIVE INDUSTRIES CLAIMED ANY SUCH RIGHTS IN THE DESIGN.

3. THE MARINE CORPS ISSUED IFB M00027-72-B-0062 ON 8 JUNE 1972 FOR 3,000 PAPERWEIGHTS. THE SPECIFICATIONS CONTAINED IN IFB M00027-72-B 0062 HIGHLIGHTED THE FEATURES OF THE SAMPLE PAPERWEIGHT PROVIDED BY CREATIVE INDUSTRIES AS WELL AS THOSE OF THE PAPERWEIGHT PREVIOUSLY BOUGHT FROM CHARLES G. STOTT AND COMPANY. THE SPECIFICATIONS WERE CONSIDERED TO BE GENERAL ENOUGH IN NATURE SO THAT THEY DESCRIBED AN ITEM WHICH COULD BE READILY PRODUCED BY ANY NUMBER OF FIRMS. TEN PROSPECTIVE CONTRACTORS WERE SOLICITED, AND SIX BIDS, INCLUDING ONE FROM CREATIVE INDUSTRIES, WERE RECEIVED. SINCE CREST CRAFT COMPANY SUBMITTED THE LOWEST RESPONSIVE BID, THE CONTRACT NUMBER M00027-72-C 0111, WAS AWARDED TO THAT COMPANY ON 26 JUNE 1972. THE FIRST PREPRODUCTION SAMPLE OF THE PAPERWEIGHT SUBMITTED BY THE CREST CRAFT COMPANY WAS DISAPPROVED AS NOT MEETING THE SPECIFICATIONS. THE CONTRACTING OFFICER DECIDED IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO EXTEND THE DELIVERY SCHEDULES AND PERMIT CREST CRAFT COMPANY TO SUBMIT AN ACCEPTABLE PREPRODUCTION SAMPLE. THE SECOND SAMPLE WAS APPROVED ON 25 OCTOBER 1972. PRODUCTION HAS PROCEEDED WITHOUT KNOWN COMPLICATION, AND CREST CRAFT COMPANY HAS RECENTLY ADVISED THAT ALL 3,000 PAPERWEIGHTS ARE NOW BEING PACKAGED FOR SHIPMENT TO DESTINATION.

4. CREATIVE INDUSTRIES, BY LETTER OF 22 AUGUST 1972, ADVISED THE MARINE CORPS THAT AN APPLICATION FOR COPYRIGHT HAD BEEN SUBMITTED FOR THE OVERALL DESIGN AND SCULPTURAL AUTHORSHIP OF THE ITEM. THAT LETTER WAS ACKNOWLEDGED BY THE MARINE CORPS ON 1 SEPTEMBER 1972. INASMUCH AS COPYRIGHT INFRINGEMENT CASES ARE HANDLED WITHIN THE DEPARTMENT OF THE NAVY BY THE OFFICE OF NAVAL RESEARCH, THE MATTER WAS REFERRED TO THAT OFFICE FOR APPROPRIATE ACTION, AS WAS MR. FELL'S LETTER OF 29 SEPTEMBER 1972, ADDRESSED TO THE MARINE CORPS. AS A MATTER OF INFORMATION, THE OFFICE OF NAVAL RESEARCH CORRESPONDED WITH CREATIVE INDUSTRIES ON 29 SEPTEMBER IN AN EFFORT TO DETERMINE WHETHER IT WAS THE INTENTION OF CREATIVE INDUSTRIES TO PRESENT A CLAIM OF COPYRIGHT INFRINGEMENT. IN THIS REGARD, THIS HEADQUARTERS HAS BEEN ADVISED THAT MR. FELL STILL INTENDS TO FILE AN ADMINISTRATIVE CLAIM IN BEHALF OF HIS CLIENT, CREATIVE INDUSTRIES OF BOSTON, INC., FOLLOWING THE GUIDELINES SET FORTH IN THE ARMED SERVICES PROCUREMENT REGULATION.

YOU ASSERT THAT THE AWARD TO CREST IS INVALID BECAUSE THE PREPRODUCTION SAMPLE PRODUCED BY THAT FIRM DOES NOT COMPLY WITH THE REQUIREMENTS OF THE CONTRACT. IT IS YOUR POSITION THAT THE SIDES OF CREST'S SAMPLE PAPERWEIGHT ARE NOT BEVELED AS REQUIRED BY SECTION F OF THE SPECIFICATIONS CONTAINED IN THE SUBJECT CONTRACT.

ALTHOUGH, CREST'S INITIAL SAMPLE WAS REJECTED AS NOT IN CONFORMANCE WITH THE SPECIFICATIONS WE HAVE BEEN INFORMED THAT ITS SECOND SAMPLE HAS BEEN ACCEPTED AND ITS SIDES ARE, IN FACT, BEVELED ALBEIT TO A LESSOR DEGREE THAN THE SIDES OF CREATIVE'S PAPERWEIGHT. IN ANY EVENT, WE FIND NO REASON TO DISTURB THE AWARD. SO FAR AS THE RECORD SHOWS, THE CONTRACT WAS PROPERLY AWARDED TO CREST AS THE LOW BIDDER. WHETHER ITS PREPRODUCTION SAMPLE CONFORMS TO THE REQUIREMENTS OF THE SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION.

SUCH MATTERS ARE NOT DETERMINED BY THIS OFFICE BUT ARE FOR DETERMINATION BY THE CONTRACTING OFFICER, WHO CAN TERMINATE THE CONTRACT FOR DEFAULT IF NECESSARY. SEE 46 COMP. GEN. 123 (1966).

ACCORDINGLY, YOUR PROTEST IS DENIED.