BNUMBER:  B-266362
DATE:  February 7, 1996
TITLE:  The Source

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Matter of:The Source

File:     B-266362

Date:     February 7, 1996

William E. Conner, Esq., and Joseph J. Petrillo, Esq., Petrillo & 
Associates, for the protester.
Anita D. Polen, Esq., and John A. Pendleton, Department of the Navy, 
for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that contracting agency improperly used protester's 
proprietary data in drafting a solicitation is denied where the 
protester does not show that the specifications in the solicitation 
were derived from technical data which is proprietary to the 
protester.

2.  Protest challenging agency's failure to furnish request for 
quotations to protester under small purchase procedures is denied 
where the record shows that the contracting officer was not aware of 
the protester's interest in the procurement and provided the 
solicitation to three potential suppliers.

DECISION

The Source protests any award of a contract under request for 
quotations (RFQ) No. 95-M-QE33 for mess deck improvements to the 
U.S.S. Peterson on the ground that the specifications in the RFQ are 
based upon proprietary information The Source provided to the Navy.  

We deny the protest.

The RFQ, issued by the Navy's Fleet and Industrial Supply Center under 
small purchase procedures on September 26, 1995, requested quotations 
for mess deck improvements to the ship.  The RFQ's  specifications did 
not include any drawings.  The contracting officer provided copies of 
the RFQ to three suppliers known to perform these services and awarded 
a contract to the firm quoting the lowest price, $19,742, on September 
30.  

In the course of making several unsolicited sales calls on the ship's 
supply officer prior to the issuance of the RFQ, The Source submitted 
a price and detailed plans for the mess deck improvements, as well as 
a drawing of the beverage line layout.  The Source argues that this 
data formed the basis for the specifications here.  The Navy responds 
that the specifications were not developed on the basis of proprietary 
data furnished by The Source, but were independently developed for the 
Navy by API Consulting Services under an August 1995 contract to do 
so.   

We have recognized the right of a firm to protect its proprietary data 
from improper exposure in a solicitation in the context of a bid 
protest.  Ingersoll-Rand Co., B-236495, Dec. 12, 1989, 89-2 CPD  para.  542; 
Zodiac of N. Am., Inc., B-220012, Nov. 25, 1985, 85-2 CPD  para.  595.  To 
prevail on a claim of violation of proprietary rights, the protester 
must show that:  (1) its material was marked proprietary or 
confidential or that it was disclosed to the government in confidence; 
and (2) the material involved significant time and expense in 
preparation and contained material or concepts that could not be 
independently obtained from publicly available literature or common 
knowledge.  Litton Applied Technology, B-227090; B-227156, Sept. 3, 
1987, 87-2 CPD  para.  219; Zodiac of N. Am., Inc., supra.

The record here shows that the only document generated by The Source 
which was provided to API was a drawing.[1]  Unlike The Source's 
plans, the drawing contains no proprietary markings of any kind.  It 
merely consists of a rough dimensional sketch of the beverage line 
layout, with boxes drawn to represent the placement of the glass and 
cup lowerators, ice dispensers, "bug juice" dispensers, coffee urn, 
and milk machine.  In fact, the only words on the page are the names 
of these machines.  The absence of any proprietary markings or of any 
indication of  confidentiality is striking, considering that each and 
every page of The Source's plans contains a prominent proprietary 
legend.  We conclude that The Source has not provided sufficient 
evidence to establish the proprietary nature of the drawing which it 
had furnished the agency, and thus that the protester has not shown 
that the RFQ's specifications were derived from technical data which 
is proprietary to The Source.[2]  Zodiac of N. Am., Inc., supra.
 
The Source also argues that the contracting officer intentionally 
excluded it from competing for the work solicited under the RFQ.  The 
record does not support this contention.  The requisition received by 
the contracting officer contained no suggested sources, and the RFQ 
was issued to three randomly selected firms known to perform this type 
of work.  This was consistent with the applicable rules for simplified 
acquisitions, under which contracting officers are to solicit 
quotations from a reasonable number of sources--generally, at least 
three sources--to promote competition to the maximum extent 
practicable.  Federal Acquisition Regulation  sec.  13.106-1(a)(1), (3).  
The supply officer attests that he did not advise the contracting 
officer of The Source's interest in this matter, and the contracting 
officer confirms this statement.  There is simply no basis to conclude 
that the contracting officer deliberately excluded The Source from 
competing.  

The protest is denied.
 
Comptroller General
of the United States

1. The ship's supply officer attests that he did not provide The 
Source's pricing or detailed plans to API, and API confirms this 
statement.  We are also unpersuaded by the protester's efforts, in 
support of its contention that its proprietary information was in fact 
"leaked" to API, to demonstrate any similarity between its plans and 
the specifications.

2. We also note that our review of the drawing does not show that it 
would have met the second prong of the inquiry, i.e., that the drawing 
involved significant time and expense in preparation and contained 
material concepts that could not be independently obtained from 
publicly available literature or common knowledge.   See EDN Corp., 66 
Comp. Gen. 563 (1987), 87-2 CPD  para.  31.