B-170175, APR 21, 1971

B-170175, APR 21, 1971

BID PROTEST - PROPRIETARY INFORMATION REAFFIRMING PRIOR DECISION DENYING PROTEST BY DEAL'S INTERIORS AGAINST THE PROCUREMENT PROCEDURES USED IN CONNECTION WITH AN RFQ ISSUED BY THE AIR FORCE FOR THE REDECORATING OF A DINING HALL. THE AIR FORCE DENIES THAT PROTESTANT'S IDEAS WERE LIFTED FROM ITS PROPOSAL AND TRANSFERRED TO THE SLAUGHTER CONSTRUCTION CO., WHICH DID THE WORK. WHILE SOME OF PROTESTANT'S SUGGESTIONS WERE REVEALED THE DISCLOSURE OCCURRED PRIOR TO THE REQUEST THAT THEY BE KEPT CONFIDENTIAL.

TO DEAL'S INTERIORS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1971, REQUESTING RECONSIDERATION OF DECISION B-170175 OF DECEMBER 1, 1970, WHEREIN WE DENIED YOUR PROTEST AGAINST THE PROCUREMENT PROCEDURES USED IN CONNECTION WITH REQUEST FOR QUOTATIONS (RFQ) NO. F03601-70-Q-0773 AND INVITATION FOR BIDS NO. F03601-70-B-0926 COVERING THE REDECORATING OF A DINING HALL.

THE FACTS AND CIRCUMSTANCES UPON WHICH OUR DECISION WAS BASED ARE FULLY SET FORTH IN OUR DECISION OF DECEMBER 1, 1970, AND WILL NOT BE REPEATED HERE.

YOU STATE THAT THE DECORATING AND REPAIR WORK IN QUESTION HAS NOW BEEN COMPLETED BY THE SLAUGHTER CONSTRUCTION COMPANY; THAT IT APPEARS THAT THE JOB WAS DONE TO YOUR SPECIFICATIONS; AND THAT IT INCORPORATES IN DETAIL EVERY IDEA AND SUGGESTION THAT WAS IN YOUR FIRST-STEP (RFQ) PRESENTATION, SUCH AS SCENIC WALL COVERING IN THE ENTRY, WALL COVERING IN THE DINING AREA, LIGHTING DETAILS, KIRSCH ARCH EMINANCE, PERMA GRAIN FLOORING, PAINT COLORS, AND VARIOUS OTHER ITEMS OF DECOR AS CONTAINED IN YOUR LAYOUTS. YOU CONTEND THAT IT IS ONLY FAIR THAT THE USE OF YOUR PROFESSIONAL SERVICES BE PAID FOR SINCE IT APPEARS THAT YOUR IDEAS AND SUGGESTIONS WERE USED BY THE GOVERNMENT IN A LATER PROCUREMENT.

A COPY OF YOUR LETTER OF JANUARY 5, 1971, WAS SENT TO THE AIR FORCE FOR COMMENT. THE CONTRACTING OFFICER HAS REPLIED THAT LIEUTENANT (NOW CAPTAIN) LENA BURCH, FOOD SERVICES OFFICER, HAS STATED THAT DURING THE INITIAL PLANNING PERIOD, SHE MAY HAVE BEEN INFLUENCED BY SOME OF YOUR IDEAS, SUCH AS WOOD BLOCK FLOORING AND THE KIRSCH ARCHES, BUT THAT THE GENERAL LAYOUT WAS SOLELY HER CONCEPT AND THAT THE COLORS AND APPOINTMENTS AS ORIGINALLY SUGGESTED BY YOU WERE REJECTED BY THE AIR FORCE. FURTHER, THE RECORD INDICATES THAT CAPTAIN BURCH ALSO RECEIVED THE ASSISTANCE OF OTHER FIRMS IN DEVELOPING THIS PROJECT. THE AIR FORCE DENIES THAT YOUR IDEAS WERE "LIFTED" FROM YOUR PROPOSAL AND TRANSFERRED TO THE SLAUGHTER CONSTRUCTION COMPANY.

AS POINTED OUT IN THE DECISION OF DECEMBER 1, 1970, WHILE SOME OF YOUR SUGGESTIONS MIGHT HAVE BEEN REVEALED TO YOUR COMPETITOR, IT APPEARS THAT SUCH DISCLOSURE OCCURRED PRIOR TO THE REQUEST THAT THEY BE KEPT CONFIDENTIAL. IT ALSO SHOULD BE NOTED THAT THE RFQ, IN RESPONSE TO WHICH YOU SUBMITTED YOUR PROPOSAL, ADVISED BIDDERS THAT THE GOVERNMENT DID NOT INTEND TO AWARD A CONTRACT ON THE BASIS OF THE SUBJECT RFQ OR OTHERWISE PAY FOR THE INFORMATION SOLICITED.

IN REGARD TO THE QUESTION AS TO WHY, AFTER LEARNING THAT YOU COULD NOT OBTAIN A SURETY, YOU WERE NOT PERMITTED TO BID IN THE NAME OF THE PHILLIPS CONSTRUCTION COMPANY, IT IS REPORTED THAT A BID WAS NOT ALLOWED IN THAT NAME BECAUSE PHILLIPS DID NOT PARTICIPATE IN THE FIRST STEP OF THE TWO- STEP SOLICITATION. IN THAT REGARD, PARAGRAPHS 2-501 AND 2-503.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDE THAT STEP TWO IS A FORMALLY ADVERTISED PROCUREMENT CONFINED TO THOSE WHO SUBMITTED ACCEPTABLE PROPOSALS IN STEP ONE.

ACCORDINGLY, THE DECISION OF DECEMBER 1, 1970, IS AFFIRMED.