B-223527.3, MAR 6, 1987, 87-1 CPD 254

B-223527.3: Mar 6, 1987

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CONTENTION THAT MANUFACTURE OF SYSTEM BEING PROCURED BY GOVERNMENT WILL VIOLATE PATENT OF PROTESTER WILL NOT BE CONSIDERED. SINCE EXCLUSIVE REMEDY OF AGGRIEVED PARTY IS COURT ACTION AGAINST GOVERNMENT FOR DAMAGES. PROTEST GROUND WHICH APPEARS TO CHALLENGE THE RESPONSIBILITY OF AN AWARDEE AND ITS SUBCONTRACTOR IS DISMISSED SINCE THE PROTESTER IS NOT AN INTERESTED PARTY WITHIN THE MEANING OF THE GENERAL ACCOUNTING OFFICE'S (GAO'S) BID PROTEST REGULATIONS AND. GAO WILL NOT REVIEW CHALLENGES TO AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT A SHOWING ON THE PART OF THE PROTESTER THAT THE DETERMINATION MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA CONTAINED IN THE SOLICITATION WERE NOT MET.

B-223527.3, MAR 6, 1987, 87-1 CPD 254

PROCUREMENT - BID PROTESTS - PATENT INFRINGEMENT - GAO REVIEW DIGEST: 1. CONTENTION THAT MANUFACTURE OF SYSTEM BEING PROCURED BY GOVERNMENT WILL VIOLATE PATENT OF PROTESTER WILL NOT BE CONSIDERED, SINCE EXCLUSIVE REMEDY OF AGGRIEVED PARTY IS COURT ACTION AGAINST GOVERNMENT FOR DAMAGES. PROCUREMENT - CONTRACTOR QUALIFICATION - RESPONSIBILITY - CONTRACTING OFFICER FINDINGS - AFFIRMATIVE DETERMINATION - GAO REVIEW PROCUREMENT - BID PROTESTS - GAO PROCEDURES - INTERESTED PARTIES 2. PROTEST GROUND WHICH APPEARS TO CHALLENGE THE RESPONSIBILITY OF AN AWARDEE AND ITS SUBCONTRACTOR IS DISMISSED SINCE THE PROTESTER IS NOT AN INTERESTED PARTY WITHIN THE MEANING OF THE GENERAL ACCOUNTING OFFICE'S (GAO'S) BID PROTEST REGULATIONS AND, IN ANY EVENT, GAO WILL NOT REVIEW CHALLENGES TO AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT A SHOWING ON THE PART OF THE PROTESTER THAT THE DETERMINATION MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA CONTAINED IN THE SOLICITATION WERE NOT MET.

KURTIS DWIGHT DAVIS:

KURTIS DWIGHT DAVIS, PROTESTS THE AWARD OF A CONTRACT TO PHROBIS III LTD. FOR THE PRODUCTION OF A MULTIPURPOSE BAYONET SYSTEM UNDER REQUEST FOR PROPOSALS NO. DAAA21-86-R-0155, ISSUED BY THE ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND. MR. DAVIS APPEARS TO HAVE A NUMBER OF CONCERNS, PRINCIPALLY THAT PERFORMANCE OF THE CONTRACT BY PHROBIS III LTD., AND ITS SUBCONTRACTOR, BUCK KNIVES, INC., WILL RESULT IN THE INFRINGEMENT OF A PATENT HELD BY HIM ON A HILT DESIGN FOR KNIVES AND THAT BUCK KNIVES' PARTICIPATION IN THIS CONTRACT IS CONTRARY TO THE PUBLICLY-STATED RELIGIOUS PRINCIPLES OF THAT FIRM'S PRESIDENT, WHO HAS STATED HE WILL NOT MANUFACTURE KNIVES "FOR FIGHTING." WE DISMISS THE PROTEST WITHOUT RECEIVING AN AGENCY REPORT SINCE IT IS CLEAR FROM THE FACE OF THE PROTEST THAT IT DOES NOT PRESENT ISSUES APPROPRIATE FOR OUR CONSIDERATION.

THE SOLICITATION WAS ISSUED ON MARCH 28, 1986, AND REQUESTED PROPOSALS TO SUPPLY A BAYONET SYSTEM COMPRISED OF A MULTI-PURPOSE KNIFE CARRIED IN A DETACHABLE SCABBARD. MR. DAVIS, ALTHOUGH INVITED TO BID ON THE CONTRACT, DECLINED TO DO SO BECAUSE, ACCORDING TO HIS SUBMISSION, HE DID NOT HAVE THE MASS PRODUCTION CAPABILITIES REQUIRED BY THE CONTRACT. APPARENTLY, MR. DAVIS MAKES ALL OF HIS KNIVES AND SWORDS BY HAND IN A SMALL MACHINE SHOP LOCATED IN HIS HOME.

ON OCTOBER 6, THE ARMY AWARDED THE CONTRACT TO PHROBIS III, LTD., WHICH IN TURN SUBCONTRACTED WITH BUCK KNIVES, INC. FOR THE ACTUAL PRODUCTION OF THE BAYONET SYSTEM.

MR. DAVIS FIRST ARGUES THAT IN THE PRODUCTION OF THIS BAYONET SYSTEM THE ARMY AND ITS CONTRACTOR AND SUBCONTRACTOR HAVE INFRINGED UPON U.S. PATENT NO. 4,458,420 HELD BY HIM. ACCORDING TO MR. DAVIS, HE OFFERED TO SELL HIS PATENT TO THE UNITED STATES MILITARY ACADEMY IN 1985 BUT RECEIVED NO RESPONSE. MR. DAVIS BELIEVES THAT HIS OFFER INDUCED THE ARMY TO RECOMMEND THE EMPLOYMENT OF THE BAYONET AS A WEAPON SYSTEM AFTER A CONSIDERABLE AMOUNT OF TIME DURING WHICH BAYONETS HAD NOT BEEN USED. IN ADDITION, MR. DAVIS CONTENDS THAT A CAREFUL EXAMINATION OF PHOTOGRAPHS OF THE NEW BAYONET SYSTEM CURRENTLY BEING PRODUCED REVEALS THAT ITS DESIGN IS DERIVED FROM HIS PATENT.

WITH REGARD TO THIS ARGUMENT, 28 U.S.C. SEC. 1498 (1982) PREVENTS GOVERNMENT CONTRACTORS OR SUBCONTRACTORS FROM BEING SUBJECTED BY AGGRIEVED PARTIES TO SUITS FOR ALLEGED INFRINGEMENT OF ANY PATENTS IN PROVIDING GOODS OR SERVICES TO THE GOVERNMENT. IN SUCH MATTERS, THE EXCLUSIVE REMEDY OF THE AGGRIEVED PARTY IS A COURT ACTION AGAINST THE GOVERNMENT FOR DAMAGES. THEREFORE, BECAUSE IT IS DESIRABLE THAT ALL POTENTIAL COMPANIES BE PERMITTED TO BID ON GOVERNMENT CONTRACTS, REGARDLESS OF ANY POSSIBLE PATENT INFRINGEMENTS, OUR OFFICE HAS CONCLUDED THAT IT WILL NOT CONSIDER PROTESTS BASED ON THE CLAIM THAT PERFORMANCE BY A CONTRACTOR WILL RESULT IN PATENT INFRINGEMENT. SEE ULTRAVIOLET PURIFICATION SYSTEMS, INC., 55 COMP.GEN. 1272 (1976), 76-2 CPD PARA. 46; PRESTO LOCK, INC., B-218766, AUG. 16, 1985, 85-2 CPD PARA. 183.

MR. DAVIS STATES THAT THE PRESIDENT OF BUCK KNIVES, INC. HAS ARTICULATED A RELIGIOUS COMMITMENT TO MANUFACTURING KNIVES ONLY FOR "NON-FIGHTING" PURPOSES. THE PROTESTER ARGUES THAT THIS COMMITMENT IS AT ODDS WITH THE COMPANY'S PARTICIPATION IN THE CONTRACT AND CALLS INTO QUESTION ITS INTEGRITY. UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.0 (1986), MR. DAVIS IS NOT AN INTERESTED PARTY TO PROTEST THIS ISSUE SINCE EVEN IF IT WERE RESOLVED IN HIS FAVOR, HE WOULD BE INELIGIBLE FOR AWARD, HAVING FAILED TO SUBMIT A PROPOSAL IN RESPONSE TO THE SOLICITATION. MULTINATIONAL BUSINESS SERVICES, INC., B-221362, JAN. 9, 1986, 86-1 CPD PARA. 25. EVEN IF MR. DAVIS WERE AN INTERESTED PARTY, WE WOULD NOT CONSIDER THIS COMPLAINT SINCE AT BEST IT REPRESENTS A CHALLENGE TO THE RESPONSIBILITY OF THE AWARDEE AND ITS SUBCONTRACTOR, AND WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS EITHER THAT THE DETERMINATION MAY HAVE BEEN MADE FRAUDULENTLY OR IN BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA CONTAINED IN THE SOLICITATION WERE NOT MET. NATIONS, INC., B-220935.2, FEB. 26, 1986, 86-1 CPD PARA. 203. MR. DAVIS HAS MADE NO SUCH SHOWING IN THIS CASE.

THE PROTEST IS DISMISSED.