B-161872, DEC. 18, 1967

BIDS - PROPRIETARY RIGHTS, ETC. - USE BY GOVERNMENT DECISION TO AIR CRAFTSMEN, INC., DENYING PROTEST AGAINST AIR FORCE SOLICITATION OF EMPENNAGE WORK STANDS ON BASIS THAT IT WAS IN VIOLATION OF CONTRACTOR'S RIGHTS AND 41 COMP. GEN. 148. WHERE DESIGN AND PRODUCTION OF EMPENNAGE WORK STANDS RESULTED FROM FACTORS OTHER THAN RELEASE BY AIR FORCE OF PROTESTANT'S DRAWINGS (NAMELY KNOW-HOW OF COMMON EMPLOYEES) SOLICITATION ON BASIS OF DRAWINGS AND PHOTOGRAPHS ARE NOT SUBJECT TO OBJECTION. THE SECRETARY OF AIR FORCE WAS REQUESTED TO TAKE ACTION TO PREVENT THE ALLEGATION OF ERRONEOUS FACTS IN THE SUBMISSION OF ADMINISTRATIVE REPORTS ON BID PROTESTS.

TO AIRCRAFTSMEN, INCORPORATED:

WE REFER TO YOUR LETTER DATED JUNE 21, 1967, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE DISTRIBUTION OF CERTAIN DRAWINGS ATTACHED TO NEGOTIATED SOLICITATION NO. F41608-67-R-F646 DATED JUNE 16, 1967. THE SOLICITATION WAS ISSUED BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, TO PROCURE 25 EMPENNAGE WORK STANDS. IN YOUR LETTER YOU CONTEND THAT SUCH DISTRIBUTION OF THE DRAWINGS VIOLATES AN EARLIER DECISION OF OUR OFFICE, 41 COMP. GEN. 148, WHICH PROHIBITED THE USE OF CERTAIN AIRCRAFTSMEN DRAWINGS FOR COMPETITIVE PROCUREMENT PURPOSES BECAUSE THEY HAD BEEN FURNISHED TO THE GOVERNMENT FOR EVALUATION PURPOSES ONLY. THE STAND DEPICTED IN THE DRAWINGS CONSISTS OF A MOBILE SCAFFOLDING TOWER EQUIPPED WITH TWO INDEPENDENT HORIZONTALLY-SWINGING PIVOTED CATWALKS CAPABLE OF BEING ELEVATED OR LOWERED IN A VERTICAL PLANE, THEREBY FACILITATING ACCESS TO THE TAIL SURFACES OF LARGE AIRCRAFT FOR SERVICE AND REPAIR.

SINCE THE ISSUANCE OF OUR 1961 DECISION WHICH HELD THAT AIRCRAFTSMEN'S SET OF EIGHT DETAIL DRAWINGS COULD NOT BE USED FOR COMPETITIVE PROCUREMENT PURPOSES, THE AIR FORCE HAS TWICE PURCHASED EMPENNAGE WORK STANDS FROM AIRCRAFTSMEN ON A SOLE-SOURCE BASIS.

THE PRESENTLY PROTESTED SOLICITATION WAS PRECEEDED BY SOLICITATION NO. F41608-67-R-F388, ISSUED MARCH 3, 1967, TO PROCURE 25 EMPENNAGE WORK STANDS IDENTIFIED AS "AIRCRAFTSMEN INC. - P/N 1001.' ALSO PROVIDED WERE A SHORT PERFORMANCE DESCRIPTION AND ROUGH OVERALL DIMENSIONS. ON MARCH 13, 1967, AIRCRAFTSMEN WROTE TO THE AIR FORCE ALLEGING THAT THE USE OF ITS NAME AND PART NUMBER ON THE SOLICITATION WAS PROHIBITED BY 41 COMP. GEN. 148. ON APRIL 10, 1967, THE AIR FORCE CANCELLED THE ORIGINAL SOLICITATION PENDING A COMPLETE REVIEW OF THE GOVERNMENT'S REQUIREMENTS FOR THE STANDS. SINCE THIS EARLIER SOLICITATION HAS BEEN CANCELLED, WE SEE NO NEED TO FURTHER CONSIDER THIS PORTION OF THE PROTEST.

ON APRIL 18, 1967, THE PRESIDENT OF AIRCRAFT EQUIPMENT COMPANY (AEC) OF MIAMI, FLORIDA, WROTE TO THE AIR FORCE ENCLOSING SIX SETS OF THREE DRAWINGS AND A PHOTOGRAPH OF AN EMPENNAGE STAND CONSTRUCTED BY AEC FOR LOCKHEED-GEORGIA COMPANY. THE GOVERNMENT WAS GIVEN UNRESTRICTED AND UNLIMITED RIGHTS TO USE SAID DRAWINGS. ON JUNE 16, 1967, THE AIR FORCE ISSUED THE PRESENT SOLICITATION, ATTACHING A SET OF THE DRAWINGS AND PHOTOGRAPH FURNISHED BY AEC. THE SOLICITATION STATED THAT THE DRAWINGS AND PHOTOGRAPH WERE FURNISHED ONLY "FOR THE PURPOSE OF DESCRIBING A REPRESENTATIVE TYPE ITEM OF THE STAND" AND WERE NOT INTENDED TO REFLECT "MANDATORY SALIENT CHARACTERISTICS OR REQUIREMENTS.'

YOU CONTEND THAT THESE THREE DRAWINGS ARE SUBSTANTIALLY SIMILAR TO, AND WERE PREPARED FROM THE CONFIDENTIAL AIRCRAFTSMEN DRAWINGS WRONGFULLY RELEASED BY THE AIR FORCE IN 1960; AND, THEREFORE, THAT THEIR USE VIOLATES 41 COMP. GEN. 148. THE AIR FORCE IN DENYING THIS ALLEGATION, ALLEGES THAT THE DRAWINGS SUPPLIED BY AEC CAN BE TRACED TO A SOURCE INDEPENDENT OF THE RELEASE BY THE AIR FORCE OF AIRCRAFTSMEN'S DRAWINGS. AN AIR FORCE REPORT OF AUGUST 17, 1967, CONCLUDES: "THE FILE SHOWS THAT THE AIRCRAFT EQUIPMENT DRAWINGS WERE PRODUCED TO COVER A MAINTENANCE STAND BUILT FOR LOCKHEED- GEORGIA COMPANY FOR THEIR USE IN PRODUCTION OF C-141 AIRCRAFT. LOCKHEED- GEORGIA COMPANY LETTER DATED 31 MARCH 1967 (TAB D) STATES THAT THE AIRCRAFT EQUIPMENT COMPANY STAND WAS MANUFACTURED TO A TOOL DRAWING PRODUCED BY LOCKHEED-GEORGIA COMPANY AS THE RESULT OF USE, REVIEW, INSPECTION AND ANALYSIS OF A SIMILAR STAND MANUFACTURED BY AIR CRAFTSMEN *

HOWEVER, LATER INFORMATION SHOWS THAT AEC CONTRACTED TO DELIVER THE EMPENNAGE STAND IN QUESTION TO LOCKHEED-GEORGIA PRIOR TO THE DATE OF THE LOCKHEED-GEORGIA TOOL DRAWINGS. IT THEREFORE APPEARS THAT THE STAND WAS NOT "MANUFACTURED TO A TOOL DRAWING PRODUCED BY LOCKHEED GEORGIA COMPANY.'

AIRCRAFTSMEN AND AEC HAVE BEEN INVOLVED IN LENGTHY LITIGATION, CULMINATING IN A SUIT BY AIRCRAFTSMEN AGAINST AEC ALLEGING THAT THE AEC EMPENNAGE STAND BUILT FOR LOCKHEED-GEORGIA IN 1964 INFRINGED AIRCRAFTSMEN'S EMPENNAGE WORK STAND PATENT. THIS CASE, AIRCRAFTSMEN, INC. V. AIRCRAFT EQUIPMENT COMPANY, 247 F.SUPP. 469, DECIDED BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA ON OCTOBER 29, 1965, AFFIRMED BY THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, IN APPEAL NO. 23535 ON NOVEMBER 6, 1967, HELD THAT THE AEC STAND DID NOT INFRINGE AIRCRAFTSMEN'S PATENT AND THAT AIRCRAFTSMEN'S PATENT WAS INVALID BECAUSE IT REPRESENTED MERELY A ROUTINE ENGINEERING IMPROVEMENT OVER PRIOR ART. ALTHOUGH THIS DISPOSED OF THE ISSUES IN LITIGATION, THE TRIAL COURT COMMENTED FURTHER: "XXVII. THE TESTIMONY OF THE DEFENDANT'S WITNESSES * * * AND THE PLAINTIFF'S WITNESS * * * CREATES A SUBSTANTIAL IMPRESSION THAT THE STAND FEATURED IN THE HERRING (OF AIR CRAFTSMEN) PATENT WAS INVENTED FIRST BY BENJAMIN F. MATTHEWS (OF AIRCRAFT EQUIPMENT COMPANY) RATHER THAN BY MATTHEW M. HERRING. HOWEVER, THE COURT'S FINDING THAT THE SUBJECT MATTER OF THE PATENT CLAIM IN SUIT IS NOT PATENTABLE ELIMINATES THE NECESSITY OF ATTEMPTING TO RESOLVE THE ISSUE OF INVENTORSHIP.'

IN THIS REGARD, AT 247 F.SUPP. 469, 476, THE COURT ALSO NOTED THE TESTIMONY OF AN EMPLOYEE OF AIRCRAFTSMEN TO THE EFFECT THAT WHEN SEEKING INFORMATION OR INSTRUCTIONS CONCERNING THE MANUFACTURE OF AN EMPENNAGE WORK STAND, HE GENERALLY CONTACTED THE SAID BENJAMIN F. MATTHEWS WHO, THE COURT RECORDS SHOW, LATER BECAME ASSOCIATED WITH AEC.

FURTHER, THE COURT IN AN EARLIER SUIT, AIRCRAFTSMEN, INC. V. AIRCRAFT EQUIPMENT COMPANY, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION, CIVIL ACTION NO. 10685, IN ITS ORDER OF NOVEMBER 5, 1962, DISMISSED WITH PREJUDICE THAT PORTION OF AIRCRAFTSMEN'S COMPLAINT WHICH ALLEGED THAT THE SAME BENJAMIN F. MATTHEWS HAD APPROPRIATED FOR THE USE OF AEC, CONFIDENTIAL INFORMATION REGARDING THE DESIGN AND PRODUCTION OF EMPENNAGE WORK STANDS OBTAINED WHILE IN AIRCRAFTSMEN'S EMPLOY. WE CONCLUDE, THEREFORE, THAT THIS INDIVIDUAL WAS FREE TO USE HIS ENGINEERING TALENT AND KNOWLEDGE TO DESIGN AND DEVELOP AN EMPENNAGE WORK STAND FOR AEC AND THAT AEC WAS FULLY CAPABLE OF DESIGNING THE EMPENNAGE WORK STAND DELIVERED TO LOCKHEED-GEORGIA IN 1964 WITHOUT HAVING TO RELY ON THE AIRCRAFTSMEN'S DRAWINGS DISTRIBUTED BY THE AIR FORCE.

IT IS OUR FURTHER OPINION THAT THIS HISTORY OF COMMON EMPLOYEES FURNISHES AN ADEQUATE EXPLANATION FOR WHAT COULD BE SAID TO BE A FAMILY RESEMBLANCE BETWEEN THE STAND DEPICTED IN THE SET OF EIGHT AIRCRAFTSMEN'S DRAWINGS WHICH WERE THE SUBJECT OF 41 COMP. GEN. 148 AND THE EMPENNAGE STAND SHOWN IN THE AEC DRAWINGS PREPARED FOR LOCKHEED GEORGIA IN 1964 AND ATTACHED TO THE PROTESTED SOLICITATION. IT SHOULD BE NOTED, HOWEVER, THAT THE AEC DRAWINGS CONSIST OF RELATIVELY SIMPLE OVERALL VIEWS OF A STAND, WHILE THE AIRCRAFTSMEN'S DRAWINGS CONTAIN COMPREHENSIVE DETAILS OF PARTS AND COMPONENT SYSTEMS; FURTHER, THE AEC STAND HAS A NUMBER OF MECHANICAL, ENGINEERING AND DIMENSIONAL FEATURES WHICH DISTINGUISH IT FROM THE AIRCRAFTSMEN STAND.

ON THE BASIS OF THE INFORMATION CONTAINED IN THE RECORD OF LITIGATION DISCUSSED ABOVE, WE CONCLUDE THAT AEC'S COURSE OF DESIGNING, MARKETING AND PRODUCING AN EMPENNAGE WORK STAND RESULTED FROM FACTORS OTHER THAN THE AIR FORCE'S RELEASE OF THE AIRCRAFTSMEN'S DRAWINGS. ACCORDINGLY, WE FIND NO LEGAL OBJECTION TO THE ISSUANCE OF NEGOTIATED SOLICITATION NO. F41608-67-R -F646 WITH THE ATTACHED DRAWINGS AND PHOTOGRAPH OR TO AN AWARD PURSUANT TO THE SOLICITATION CONSISTENT WITH APPLICABLE STATUTES AND REGULATIONS.