B-176764, MAY 14, 1974

B-176764, MAY 14, 1974

UPON REQUEST FOR RECONSIDERATION, PRIOR DECISION IS AFFIRMED AS TO CONCLUSION THAT PROTESTER HAS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT PROPRIETARY RIGHTS WERE VIOLATED AS RECORD SUPPORTS AGENCY POSITION THAT INFORMATION DIVULGED WAS NOT OF PROPRIETARY NATURE.

TO HOWELL INSTRUMENTS, INCORPORATED:

HOWELL INSTRUMENTS, INCORPORATED (HOWELL), HAS REQUESTED RECONSIDERATION OF OUR DECISION OF MAY 14, 1973, 52 COMP. GEN. 773, DENYING THAT FIRM'S PROTEST AGAINST THE DEPARTMENT OF THE NAVY'S USE FOR PROCUREMENT PURPOSES OF DATA WHICH IT CONTENDS IS PROPRIETARY TO HOWELL.

HOWELL POINTS OUT THAT THE "THRUST" OF OUR DECISION "IS THAT PRATT AND WHITNEY AIRCRAFT (THE GOVERNMENT'S PRIME CONTRACTOR) PURCHASE ORDER 807153 OBLIGATED HOWELL TO PROVIDE OPERATIONAL OR INSTRUCTIONAL MANUALS WITH UNLIMITED RIGHTS, SINCE THE REVERSE SIDE OF THE PURCHASE ORDER INCORPORATED SECTION 9-203(B) OF ASPR." HOWELL ARGUES THAT THE DECISION IS ERRONEOUS IN THIS REGARD BECAUSE OUR OFFICE FAILED TO CONSIDER CERTAIN EVENTS BETWEEN EXECUTION OF THE PURCHASE ORDER AND FURNISHING OF THE MANUALS WITH RESTRICTIVE LEGENDS.

HOWELL ACKNOWLEDGES THAT PURCHASE ORDER NO. 807153, DATED APRIL 28, 1971, DID CALL FOR THE SUBJECT MANUALS. HOWEVER, HOWELL POINTS OUT THAT THE PURCHASE ORDER DID NOT SPECIFY THE CONTENTS OF THE MANUALS AND THAT THE MANUALS WERE NOT IN FACT ORDERED UNTIL A PURCHASE ORDER SUPPLEMENT TO THE ORIGINAL PURCHASE ORDER WAS ISSUED ON OCTOBER 7, 1971. HOWELL NOTES THAT IN THE INTERIM, ON AUGUST 28, 1971, HOWELL AND UNITED AIRCRAFT CORPORATION, PRATT AND WHITNEY AIRCRAFT DIVISION (PW), ENTERED INTO A "NON -DISCLOSURE" AGREEMENT. THIS AGREEMENT PROVIDED THAT HOWELL WOULD AFFIX A LEGEND TO DATA IT CONSIDERED PROPRIETARY AND THAT ONLY SUCH LEGEND WOULD BE HONORED.

HOWELL CONTENDS THAT THIS AGREEMENT AMENDED THE APRIL 28, 1971, PURCHASE ORDER TO "PROVIDE SPECIFICALLY WHAT INFORMATION WOULD BE SUBMITTED BY HOWELL WITH A RESTRICTIVE LEGEND." HOWELL CONCLUDES, THEREFORE, THAT ALTHOUGH THE PURCHASE ORDER, AS AMENDED, OBLIGATED IT TO PROVIDE A MANUAL, IT DID NOT OBLIGATE HOWELL TO FURNISH PW PROPRIETARY INFORMATION WITH UNLIMITED RIGHTS. ACCORDINGLY, IT IS CONTENDED THAT THE FURNISHING OF THE MANUALS TO PW WITH THE RESTRICTIVE LEGEND WAS EFFECTIVE TO PROTECT ITS PROPRIETARY INTERESTS IN THE INFORMATION CONTAINED THEREIN AND PRECLUDE THE NAVY FROM DISCLOSING SUCH INFORMATION.

THE NAVY BELIEVES THAT THE "NON-DISCLOSURE" AGREEMENT DOES NOT AFFECT ITS RIGHTS IN THE MANUAL BECAUSE IT CONTAINS NO PROVISIONS WHICH EITHER SPECIFICALLY OR GENERALLY MODIFY THE TERMS OF THE INITIAL PURCHASE ORDER OR ESTABLISH WHETHER SPECIFIC INFORMATION IS PROPRIETARY. IN SUPPORT OF ITS POSITION, THE NAVY HAS SUBMITTED A TELEFAX MESSAGE DATED APRIL 26, 1972, APPARENTLY FROM THE NAVY'S PW PLANT REPRESENTATIVE, WHICH PURPORTS TO CONTAIN INFORMATION OBTAINED FROM PW TO THE EFFECT THAT NO AGREEMENT "MODIFYING, REMOVING OR ADDING TO THE BASIC DATA CLAUSE RIGHTS OF THE GOVERNMENT HAS BEEN MADE WITH HOWELL." IN ADDITION, THE NAVY AGAIN ASSERTS ITS POSITION THAT THE INFORMATION DISCLOSED BY IT IS NOT PROPRIETARY AND IS NOT THEREFORE ENTITLED TO PROTECTION.

IN 52 COMP. GEN. 773, SUPRA, WE CONCLUDED THAT HOWELL HAD NOT PROVIDED CLEAR AND CONVINCING EVIDENCE REFUTING THE NAVY'S POSITION "THAT AS A RESULT OF THE EXPRESS PROVISIONS CONCERNING RIGHTS IN TECHNICAL DATA CONTAINED IN BOTH THE PRIME CONTRACT AND THE PURCHASE ORDER, IT CONTRACTED FOR AND OBTAINED UNLIMITED RIGHTS IN THE SUBJECT MANUAL NOTWITHSTANDING ANY LEGEND WHICH HOWELL AFFIXED THERETO." ALTHOUGH OUR PRIOR DECISION WAS BASED PRIMARILY ON THE FOREGOING POSITION, THE NAVY ARGUED, IN RESPONSE TO HOWELL'S INITIAL PROTEST, THAT THE DATA INCLUDED IN ITS SOLICITATION COULD NOT BE CONSIDERED PROPRIETARY TO HOWELL SINCE IT CONSISTS OF INFORMATION WHICH WAS READILY DISCLOSED BY INSPECTION OF THE TEST UNIT AND NOT DETAILED DESIGN INFORMATION AS TO THE UNIT'S MANUFACTURE OR ASSEMBLY. THE NAVY INSISTED THAT THIS INFORMATION HAD BEEN PREVIOUSLY PUBLISHED OR FURNISHED TO THE NAVY WITHOUT RESTRICTION BY HOWELL, PW, AND OTHER MANUFACTURERS; THAT SOME OF THE COMPONENTS ARE COMMERCIALLY AVAILABLE; AND THAT EACH OF THE REQUIREMENTS IN THE PURCHASE DESCRIPTION WAS ESTABLISHED ON THE BASIS OF THE PERFORMANCE OF THE ENGINES TO BE TESTED AS INDICATED BY ENGINE TRIM CHARTS PREPARED BY THE ENGINE MANUFACTURER, THE EQUIPMENT IN THE FLEET WHICH WILL BE USED IN CONJUNCTION WITH THE TEST SETS, AND GENERAL MILITARY SPECIFICATIONS GOVERNING SUCH EQUIPMENT.

HOWELL, ON THE OTHER HAND, CONTENDS THAT THE INFORMATION FOR THE NAVY SPECIFICATION WAS ACTUALLY OBTAINED FROM HOWELL'S PROPRIETARY DRAWINGS AND THAT THE NAVY SOUGHT TO JUSTIFY THE ACTION ON THE BASIS OF ITS ASSERTED RIGHT TO USE HOWELL'S MANUAL FOR THAT PURPOSE. WE BELIEVE THERE IS SUBSTANTIAL SUPPORT FOR THE NAVY POSITION THAT THE SOLICITATION INFORMATION WAS DERIVED SOLELY FROM NONPROPRIETARY SOURCES. THE QUESTION AT ISSUE INVOLVES WHAT IS ESSENTIALLY A FACTUAL DISPUTE OF A TECHNICAL NATURE. WE CANNOT CONCLUDE THAT THE DETERMINATION OF THE NAVY TECHNICAL PERSONNEL IN THIS REGARD WAS WITHOUT A REASONABLE BASIS, AND WE DO NOT BELIEVE THAT HOWELL HAS MADE A SHOWING ADEQUATE FOR THIS OFFICE TO REJECT THE AGENCY VIEWS. SEE 52 COMP. GEN. 312, 316 (1972).

ACCORDINGLY, OUR PRIOR DECISION IS AFFIRMED.