Matter of: Virginia Panel Corporation File: B-247825 Date: June 12, 1992

Matter of: Virginia Panel Corporation File: B-247825 Date: June 12, 1992

PROCUREMENT Bid Protests Patent infringement GAO review General Accounting Office will not consider the protester's contention that production of an acceptable part will necessitate infringement of its patent, since patent holders have adequate and effective remedies for such infringement, which function to save the government from having its procurements delayed pending litigation of such disputes. PROCUREMENT Bid Protests Allegation substantiation Lacking GAO review PROCUREMENT Competitive Negotiation Offers Evaluation Technical acceptability Where protester presents no evidence in support of its position that awardee's part was technically unacceptable, protest against agency's evaluation is denied.

Attorneys

DECISION Virginia Panel Corporation protests the award of a contract to MAC Panel Company under request for proposals (RFP) No. F09650-91-R-0199, issued by the Department of the Air Force for interface test adapter (ITA) assemblies. The protester principally contends that the awardee did not offer a part equivalent to its own part, which was specified.

We deny the protest.

On October 15, 1991, the agency issued the solicitation for a firm, fixed -price contract to fabricate and supply an ITA assembly for automatic test equipment to support the F-111 avionics modernization program test set development project. The assembly provides a resistance- and noise-free interface between an F-111 avionics intermediate station and the unit under test.

The RFP schedule called for an assembly "with blank modules. Du[a]l tier receivers. Features six handles on the cover. Virginia Panel Corp.: P/N 410102212." There was no listing of any additional required features or processes for production of the assembly. The solicitation provided for award on the basis of price.

The agency received two proposals on November 15, from the protester and from the eventual awardee. Technical evaluators advised the contracting officer that the sample submitted by MAC Panel did not meet certain characteristics of the protester's part, not listed in the solicitation but considered essential by the agency. The agency brought this to the attention of MAC Panel, which promised to provide the additional features required.

On January 31, 1992, the agency asked each offeror to submit a best and final offer (BAFO). Both offerors responded on February 3, with MAC Panel submitting a substantially lower price. Accordingly, on February 13, the agency made award to MAC Panel as the low, acceptable offeror, and this protest followed.

In arguing that the agency unreasonably determined the MAC Panel proposal to be technically acceptable, the protester contends that either MAC Panel is infringing the protester's patent on that part or, to the extent the awardee offers a substitute design, the agency unreasonably determined the MAC Panel part to be acceptable because any design other than the protester's will cause premature failure and damage to the receiver and ITA mechanism. The protester contends that its own specifications for the assembly contain rigid requirements for meeting military standards that insure the quality of the part.

First, our Office will not consider the protester's contention that production of an acceptable part will necessitate infringement of its patent, since patent holders have adequate and effective remedies for such infringement, which function to save the government from having its procurements delayed pending litigation of such disputes. See Hollingsead Int'l, B-227853, Oct. 19, 1987, 87-2 CPD Para. 372; Fairchild Weston Sys., Inc., B-229568.2, Apr. 22, 1988, 88-1 CPD Para. 394; 28 U.S.C. Sec. 1498 (1988). Second, the contracting agency is responsible for evaluating the data submitted by an offeror and determining whether the data demonstrate the acceptability of the offeror's product; the agency enjoys a degree of discretion in making such determinations, which we will not disturb so long as they are reasonable. See VG Instruments, Inc., B-241484, Feb. 7, 1991, 91-1 CPD Para. 137. Although the protester asserts that only its product can meet the agency's needs, it has presented no evidence that would support challenging the agency's determination that the awardee's proposal was acceptable; therefore, based on the record before us, we cannot find that determination to be unreasonable. See Sheffield Schaudt Grinding Sys., Inc., B-246699, Mar. 27, 1992, 92-1 CPD Para. 313.

The protester also argues that the agency should have notified the protester of the award at the same time that it notified the awardee; this would have allowed Virginia Panel to file its protest in time to obtain a stay of contract performance pending the protest. Federal Acquisition Regulation (FAR) Sec. 15.1001 (FAC 90-7) requires prompt notice of award to unsuccessful offerors; in this instance, the agency made award on February 12 and sent notice by letter dated February 18, 3 working days later. We do not find this delay unreasonable.

We deny the protest.