BNUMBER: B-271469
DATE: July 23, 1996
TITLE: Interior Systems, Inc.
**********************************************************************
Matter of:Interior Systems, Inc.
File: B-271469
Date:July 23, 1996
Carol L. O'Riordan, Esq., and Vincent R. Brotski, Esq., Law Offices of
Carol L. O'Riordan, for the protester.
Marleen J. Phillips, Esq., and Eric A. Lile, Esq., Department of the
Navy, for the agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly disclosed protester's proprietary
information in a solicitation is denied where record shows that the
information in question was developed by the government and,
therefore, is not proprietary to the protester.
DECISION
Interior Systems, Inc., (ISI) protests the terms of request for
proposals (RFP) No. N00600-96-R-1427, issued by the Fleet and
Industrial Supply Center (FISC), Department of the Navy, for
consolidated mail sorting services. The principal allegation is that
the issuance of the solicitation constituted an intentional improper
disclosure of information which is proprietary to the protester.
We deny the protest.
BACKGROUND
In 1994, the United States Department of Agriculture (USDA) became
part of a government-wide Cooperative Administrative Support Unit
(CASU) which was intended to provide administrative services to
multiple agencies to avoid duplication of effort and achieve savings.
USDA's CASU participation included efforts to implement a
government-wide mail management initiative including a presorting
program. ISI representatives met with various CASU officials,
including representatives from USDA, from February 1995 through May
1995 concerning efforts to consolidate the presorting of mail among
various governmental activities; ISI expressed interest in obtaining
an 8(a) subcontract to establish and perform the government-wide
program.
On May 25, USDA informed the protester that it wished to pursue
negotiations with a view to awarding a non-competitive 8(a)
subcontract.[1] As part of this effort, on May 30 USDA provided ISI a
copy of a statement of work (SOW) previously issued by the General
Services Administration (GSA) and requested that the firm use it as a
model in preparing a draft SOW for the 8(a) subcontract. ISI
submitted a draft SOW 2 days later on June 1. USDA subsequently
modified the draft and incorporated a final SOW into solicitation No.
RFP-00-96-R-1, which was issued to ISI under the 8(a) program on
August 25.
On November 15, USDA informed ISI that it had determined not to
proceed with the acquisition under this solicitation because it had
recently acquired certain automated sorting equipment in its central
mail unit. Thereafter, on November 22, the CASU sent the Department
of the Navy a request for consolidated mail sorting services together
with a draft SOW which, after some modification, was incorporated into
the protested RFP which was issued on February 29, 1996, for
competition on an unrestricted basis. This protest followed.
PROTEST
ISI principally alleges that the issuance of the Navy's solicitation
constitutes an improper disclosure of proprietary information insofar
as the agency appropriated the SOW submitted to USDA during the early
stages of the 8(a) procurement in 1995. ISI also challenges several
solicitation provisions.
ANALYSIS
As a general rule, proprietary information is that which is marked
proprietary or otherwise submitted in confidence to the government.
Typically, this includes such information as a firm's overhead and
profit rates, and does not include information that the firm could
expect to be released to the public. Ursery Cos., Inc., supra.
The record does not support ISI's allegation that the Navy's SOW uses
material that is proprietary to the protester. First, the SOW drafted
by ISI for USDA was not marked proprietary when submitted in June of
1995. Moreover, as the agency's point-by-point comparative analysis
of ISI's SOW, the Navy's SOW and GSA's SOW reveals, the SOWs consist
of three categories of information: (1) information which is common
to all three, meaning that it was derived from the GSA SOW and is,
therefore, not proprietary to ISI; (2) information which is unique to
ISI's SOW but not contained in the Navy's SOW, meaning that the Navy
did not use this allegedly proprietary material; and, (3) information
which is unique to the Navy's SOW and not contained in ISI's SOW. In
its comments on the agency report, ISI does not present a credible
rebuttal to the agency's analysis and our review of the three SOWs
confirms the accuracy of the Navy's position.
Accordingly, since the analysis of the material at issue compels the
conclusion that the Navy did not use or disseminate information which
was unique to ISI's SOW draft, we conclude that the information in the
present SOW is simply not proprietary to the protester as alleged.
ISI also challenges several solicitation provisions. First, the firm
alleges that the Navy included an overly restrictive 12-month
experience requirement in an effort to eliminate the protester from
consideration. As the agency points out, however, the protester now
has the requisite experience, thus rendering its challenge academic.
Second, ISI contended that the solicitation contained the wrong small
business size standard in an effort to eliminate the protester from
competition; the size standard was subsequently modified by amendment
and ISI is eligible for consideration under the new standard. Third,
ISI originally challenged the evaluation provisions of the RFP as
being ambiguous; these provisions were subsequently modified by
amendment without any specific challenge by the protester. Finally,
ISI challenges the RFP as being deficient because it did not identify
a contracting officer by name. While we are unaware of any requirement
for such a provision, in fact, the name of the contracting officer was
publicly available, and was obtained by ISI prior to the filing of its
protest.
The protest is denied.
Comptroller General
of the United States
1. Section 8(a) of the Small Business Act, 15 U.S.C. sec. 637(a) (1994),
authorizes the Small Business Administration to enter into contracts
with government agencies and to arrange for performance through
subcontracts with socially and economically disadvantaged small
business concerns. These subcontracts may be awarded on a competitive
or noncompetitive basis. See Ursery Cos., Inc., B-258247, Dec. 29,
1994, 94-2 CPD para. 264.