B-211868.2, DEC 28, 1983

B-211868.2, DEC 28, 1983

DIGEST: PRIOR DECISION HOLDING THAT NON-EXCLUSIVE LICENSEE IS NOT AN INTERESTED PARTY TO PROTEST ALLEGED GOVERNMENT MISUSE OF PROPRIETARY DATA IS AFFIRMED WHERE PROTESTER HAS NOT DEMONSTRATED ERROR OF FACT OR LAW.

SERVICE & SALES, INC.:

SERVICE & SALES, INC. (SSI), A NON-EXCLUSIVE LICENSEE OF GARRETT CORPORATION, REQUESTS THAT WE RECONSIDER OUR DECISION, SERVICE & SALES, INC., B-211868, OCTOBER 20, 1983, 83-2 CPD . IN THAT DECISION, WE FOUND SSI NOT TO BE AN "INTERESTED PARTY" WITHIN THE MEANING OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.1(A) (1983), WITH RESPECT TO THE QUESTION OF WHETHER THE DEFENSE LOGISTICS AGENCY (DLA), BY ISSUING REQUEST FOR PROPOSALS (RFP) NO. DLA700-83-R-0781, HAD IMPROPERLY DISCLOSED PROPRIETARY VENDOR INFORMATION - AN APPROVED SOURCE LIST - WHICH SSI HAD CONFIDENTIALLY SUBMITTED TO DLA WITH APPROPRIATE RESTRICTIVE LEGENDS. ESSENCE, WE STATED THAT GARRETT, AN OFFEROR AND THE OWNER OF THE TECHNICAL DATA, WAS A PARTY OF GREATER INTEREST WITH RESPECT TO THIS ISSUE, AND THAT SSI, AS A MERE NON-EXCLUSIVE LICENSEE, WAS THUS TOO REMOTE FROM THE CAUSE TO MAINTAIN THE PROTEST. SSI NOW CHALLENGES OUR DETERMINATION THAT IT IS NOT AN INTERESTED PARTY.

WE AFFIRM OUR DECISION.

SSI NOTES THAT OUR OFFICE HAS IN THE PAST CONSIDERED PROTESTS INVOLVING GOVERNMENT MISUSE OF PROPRIETARY DATA IN ORDER TO PROTECT A BIDDER'S LEGITIMATE INTEREST IN ITS TECHNICAL DATA, CITING DATA GENERAL CORPORATION, B-185897, APRIL 28, 1976, 76-1 CPD 287. SSI THEN STATES THAT IT DID NOT UNDERTAKE ITS PROTEST AS A REPRESENTATIVE OF GARRETT, BUT FILED THE PROTEST IN ITS OWN RIGHT WITH A DIRECT INTEREST IN THE OUTCOME SINCE DISCLOSURE OF THE DATA BY THE AGENCY IMPACTS ON THE VALUE OF ITS LICENSE. SSI FURTHER STATES THAT, AS AN OFFEROR, IT HAD A DIRECT RELATIONSHIP TO THE PROCUREMENT AND WAS ALWAYS ELIGIBLE FOR AWARD.

THE "INTERESTED PARTY" REQUIREMENT SET FORTH IN OUR BID PROTEST PROCEDURES SERVES TO ENSURE THAT THE PROTESTING PARTY HAS A SUFFICIENT STAKE IN THE OUTCOME OF A PROTEST. ABC MANAGEMENT SERVICES, INC., 55 COMP.GEN. 397 (1975), 75-2 CPD 245. WHETHER A PARTY IS SUFFICIENTLY INTERESTED DEPENDS ON ITS STATUS IN RELATION TO THE PROCUREMENT, THE NATURE OF THE ISSUES RAISED, AND HOW THESE CIRCUMSTANCES SHOW THE EXISTENCE OF A DIRECT OR SUBSTANTIAL ECONOMIC INTEREST ON THE PART OF THE PROTESTER. SEE DIE MESH CORPORATION, 58 COMP.GEN. 111 (1978), 78-2 CPD 374.

IN THIS CASE, WE CONTINUE TO BELIEVE THAT THE PRIMARY ECONOMIC INTEREST IN THE ISSUE RAISED BY SSI'S ORIGINAL PROTEST, THAT IS, THE ALLEGED GOVERNMENT MISUSE OF TECHNICAL DATA, RESTS WITH THE OWNER OF THAT DATA WHICH WAS ALSO AN OFFEROR UNDER THE SAME SOLICITATION RATHER THAN WITH A NON-EXCLUSIVE LICENSEE. FOR EXAMPLE, ONLY THE OWNER IS FAMILIAR WITH THE FACTUAL BACKGROUND SURROUNDING THE DEVELOPMENT OF THE TECHNICAL DATA AND THE POTENTIAL ECONOMIC HARM CAUSED BY ANY POTENTIAL IMPROPER DISCLOSURE, AND THUS HAS A GREATER INTEREST TO RAISE A QUESTION OF MISUSE OF THE DATA. THEREFORE, WE CONTINUE TO VIEW SSI AS NOT AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES WITH RESPECT TO THIS ISSUE BECAUSE OF THE EXISTENCE OF A PARTY OF GREATER INTEREST, THE OWNER/OFFEROR WHICH PARTICIPATED IN THE PROCUREMENT. SEE AMERICAN SATELLITE CORPORATION (RECONSIDERATION), B-189551, APRIL 17, 1978, 78-1 CPD 289.

WE CONCLUDE THAT SSI HAS NOT ADVANCED ANY ADDITIONAL FACTS OR LEGAL ARGUMENTS WHICH SHOW THAT OUR EARLIER DECISION IS ERRONEOUS. SEE 4 C.F.R. SEC. 21.9(A).

THE DECISION IS AFFIRMED.