B-154038, AUG. 4, 1964

B-154038, AUG. 4, 1964

TO J. M. BEACH MANUFACTURING, INC.:

REFERENCE IS MADE TO YOUR NIGHT LETTER OF APRIL 24, 1964, PROTESTING THE VALIDITY OF INVITATION FOR BIDS NO. 41-608-64-531.

THE INVITATION, WHICH WAS ISSUED ON MARCH 18, 1964, BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS, REQUESTED BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO FURNISH 180 AIRCRAFT ENGINE TRAILERS, TYPE ETU-14/E, MODEL 3030 IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T- 26232B (USAF) AND AIR LOGISTICS DRAWING 105722 AND ALL DETAILS AND TECHNICAL DATA. ONE OF THE COMPONENTS OF THE TRAILER IS A TOWBAR TO BE MANUFACTURED IN ACCORDANCE WITH AIR LOGISTICS CORPORATION DRAWING NO. S- 104438. THE TOWBAR WAS ONE OF TWO ITEMS WHICH WERE INVOLVED IN AN EARLIER PROTEST BY YOU AGAINST TWO OTHER AIR FORCE PROCUREMENTS.

IN THE PRIOR PROCUREMENTS YOU CONTENDED THAT THE TOWBAR WAS A COMMERCIALLY APPROVED PROPRIETARY ITEM, DESIGNED, ENGINEERED, TOOLED AND PRODUCED BY YOU UNDER PATENT NO. 2,886,344. YOU STATED THAT THE INFORMATION ON THE DRAWINGS FURNISHED WITH THE INVITATION FOR BIDS WAS INADEQUATE TO PERMIT MANUFACTURE OF AN ITEM THAT WOULD BE INTERCHANGEABLE WITH EXISTING STOCK. YOU STATED FURTHER THAT YOU HAD NOT GRANTED REPRODUCTION RIGHTS TO THE AIR LOGISTICS CORPORATION.

SINCE THE TWO CONTRACTS INVOLVED WERE THEN IN THE PROCESS OF TERMINATION, NO DECISION WAS RENDERED ON THE MERITS OF YOUR PROTEST. YOU WERE ADVISED, HOWEVER, BY OUR LETTER OF OCTOBER 2, 1963, B-151430, OF A DETERMINATION BY THE CONTRACTING ACTIVITY THAT THE INFORMATION ON THE DRAWINGS WAS ADEQUATE TO PERMIT MANUFACTURE; THAT NO DATA PROPRIETARY TO YOU WAS SHOWN ON THE DRAWINGS; THAT THE GOVERNMENT HAD RECEIVED THE RIGHT TO USE THE DRAWINGS FROM AIR LOGISTICS CORPORATION; AND THAT THE FACT THAT YOU HELD A PATENT ON THE TOWBAR DID NOT PRECLUDE COMPETITIVE PROCUREMENT ON THE ITEM. ADDITION, WE RECOMMENDED TO THE SECRETARY OF THE AIR FORCE IN OUR LETTER OF THE SAME DATE, B-151430, THAT THE ADEQUACY OF THE DRAWINGS FOR MANUFACTURING PURPOSES BE REVIEWED BEFORE THEIR FURTHER USE IN COMPETITIVE PROCUREMENT AND THAT SHOULD THE DRAWINGS BE FOUND ADEQUATE, A REVIEW SHOULD ALSO BE MADE OF THE GOVERNMENT'S RIGHT TO THEIR USE FOR SUCH PURPOSES.

YOUR PRESENT PROTEST IS ON THE BASIS THAT IFB NO. 41-608-64-531 IS CONTRARY TO OUR INSTRUCTION OF OCTOBER 2, 1963, TO THE SECRETARY OF THE AIR FORCE.

THE DEPARTMENT OF THE AIR FORCE, IN A REPORT ON YOUR CURRENT PROTEST, ADVISES THAT PRIOR TO THE ISSUANCE OF IFB NO. 41-608-64-531, THE DRAWINGS FURNISHED IN THE EARLIER PROCUREMENTS WERE REVIEWED. DRAWING NO. S- 104438, WHICH WAS DRAWN ON APRIL 20, 1956, AND IS SIMILAR TO MILITARY STANDARD DRAWING NO. MS 33534-56, APPROVED ON JANUARY 26, 1956, WAS ACQUIRED BY THE AIR FORCE FROM AIR LOGISTICS CORPORATION UNDER CONTRACT NO. AF 01/601/-30869, DATED AUGUST 24, 1960. PURSUANT TO THE CONTRACT DATA CLAUSE, AIR LOGISTICS CORPORATION GRANTED TO THE GOVERNMENT THE RIGHT TO USE THE DRAWING FOR COMPETITIVE PROCUREMENT, ALTHOUGH NO PATENT RIGHTS WERE TRANSFERRED TO THE GOVERNMENT.

IN THE OPINION OF AIR FORCE ENGINEERING EXPERTS, THE DRAWING (WHICH DOES NOT INDICATE THAT ANY OF THE DATA SHOWN IS PROPRIETARY TO YOU, BUT DOES LIST BY NUMBER THREE PARTS TO BE PROCURED FROM YOU) IS ADEQUATE FOR MANUFACTURING PURPOSES, AND ANY TOWBARS MANUFACTURED IN ACCORDANCE THEREWITH WOULD BE COMPLETELY INTERCHANGEABLE AS TO ASSEMBLY OR AS COMPONENT PARTS AS WELL AS WITH ANY COMPONENTS MANUFACTURED BY YOU. THIS CONNECTION, THE RECORD SHOWS THAT UNDER CONTRACT NO. AF 41/608/- 26125, YOU WERE PERMITTED TO SUBSTITUTE FOR THE SEAMLESS TUBING REQUIRED BY THE GOVERNMENT DRAWINGS THE WELDED TUBING WHICH YOU USE FOR YOUR TOWBAR, BOTH TYPES OF TUBING BEING EQUALLY ACCEPTABLE TO THE GOVERNMENT.

WITH RESPECT TO THE FAILURE OF WALD RESEARCH, INC., AND SOUTH BAY MANUFACTURING COMPANY TO SUCCESSFULLY PERFORM CONTRACTS AWARDED TO THEM FOR THE TOWBARS, WE ARE ADVISED THAT IT IS THE OPINION OF THE AIR FORCE THAT THEIR FAILURES WERE DUE TO FINANCIAL DIFFICULTIES RATHER THAN TO DEFICIENCIES IN THE DRAWINGS, AND THAT ALLEGATIONS CONCERNING THE DRAWINGS WERE MADE IN AN EFFORT TO AVOID DEFAULT ACTION.

FROM THE FOREGOING, IT WOULD APPEAR THAT NO DATA PROPRIETARY TO YOUR COMPANY HAS BEEN USED BY THE GOVERNMENT; RATHER, THE DRAWING IN DISPUTE CONSTITUTED DATA, THE USE OF WHICH WAS GRANTED TO THE GOVERNMENT BY CONTRACT WITH AIR LOGISTICS CORPORATION. WE ARE THEREFORE UNABLE TO CONCLUDE THAT USE OF THE DRAWING BY THE AIR FORCE WAS IMPROPER.

AS TO THE OPINION OF THE AIR FORCE ENGINEERING EXPERTS THAT THE DRAWING IN QUESTION IS ADEQUATE FOR MANUFACTURING PURPOSES, SINCE WE ARE NOT QUALIFIED TO DETERMINE THE MERITS OF TECHNICAL OR ENGINEERING OPINIONS, WE MUST ACCEPT THE VIEWS OF THOSE INDIVIDUALS WHO ARE REQUIRED TO RENDER SUCH OPINIONS FOR THE GOVERNMENT, IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR OF IMPROPER CONDUCT, WHICH ARE NOT INVOLVED HERE. WE FIND NO SUCH EVIDENCE IN THE RECORD.

CONCERNING THE EXISTENCE OF YOUR PATENT, THE POSSIBILITY OF INFRINGEMENT OF A PATENT ON AN ITEM TO BE PROCURED BY THE GOVERNMENT DOES NOT PRECLUDE SOLICITATION OF COMPETITIVE BIDS ON THE ITEM. RATHER, 28 U.S.C. 1498 PROVIDES THAT THE REMEDY OF THE OWNER OF A PATENT ON AN INVENTION WHICH IS USED WITHOUT AUTHORIZATION OF THE OWNER BY THE UNITED STATES OR FOR THE UNITED STATES WITH THE AUTHORIZATION AND CONSENT OF THE GOVERNMENT SHALL BE BY ACTION AGAINST THE UNITED STATES IN THE COURT OF CLAIMS FOR RECOVERY OF REASONABLE COMPENSATION. THEREFORE, EVEN IF THE TOWBAR REQUIRED FOR THE TRAILER BEING PROCURED UNDER IFB NO. 41-608-64-531 IS CONSIDERED TO BE THE ITEM COVERED BY YOUR PATENT, YOUR REMEDY AGAINST THE GOVERNMENT WOULD LIE UNDER 28 U.S.C. 1498. SEE 38 COMP. GEN. 276, COPY ENCLOSED.

FOR THE REASONS STATED, WE FIND NO VALID BASIS TO QUESTION THE PROPRIETY OF THE ISSUANCE OF INVITATION FOR BIDS NO. 41-608-64-531. THEREFORE, YOUR PROTEST IS DENIED.