BNUMBER:  B-271578
DATE:  July 9, 1996
TITLE:  Metric Systems Corporation

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Matter of:Metric Systems Corporation

File:     B-271578

Date:July 9, 1996

E. Bruce White Wolf for the protester.
Marian E. Sullivan, Esq., Department of the Air Force, for the agency.
Sylvia Schatz, Esq., David Ashen, Esq., and John M. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

Solicitation did not improperly disclose protester's design 
information where information was contained in a brochure the 
protester previously had provided to the agency without restrictions 
on its use or disclosure, or any indication that the protester 
considered the information confidential or proprietary; restriction on 
the use of ideas in unsolicited proposal does not apply where 
information was furnished to agency in advertising material, not an 
unsolicited proposal.

DECISION

Metric Systems Corporation protests the specifications in invitation 
for bids (IFB) No. F32605-96-B-0015, issued by the Department of the 
Air Force, Grand Forks Air Force Base (AFB), for containers to store 
and transport Metric's KC-135 aircraft cargo roller handling system.  
Metric contends that the specifications in the IFB are based on 
proprietary data furnished by Metric to the agency in an unsolicited 
proposal.  

We deny the protest.

In May 1995, Grand Forks AFB received from Scott AFB, Illinois, a 
pricing sheet and brochure--that had originally been furnished by 
Metric to the Air National Guard detachment at Salt Lake City, 
Utah--describing Metric's AMC-135 container.  The brochure and pricing 
sheet were not marked as containing proprietary data.  Subsequently, 
the contracting office at Grand Forks AFB requested from Metric 
pricing information on the containers.  Metric responded by sending 
the agency (by facsimile transmission) the same pricing sheet that had 
been included with the original brochure.  Again, the pricing sheet 
did not contain a legend indicating that the container design 
information was proprietary to Metric.  

The contracting office thereafter synopsized (in the Commerce Business 
Daily) a possible sole source award for the AMC-135 containers to 
determine whether other manufacturers could supply similar containers.  
After seven potential offerors  responded that they could supply the 
containers, the agency determined that a sole source award could not 
be justified, and that the containers should be procured on a 
competitive basis.  The agency then based the specifications for the 
competitive solicitation on the description in Metric's AMC-135 
container brochure.  

Metric argues that the brochure and pricing sheet it submitted to the 
Air Force constituted an unsolicited proposal, and that the Air 
Force's use of the information to develop the IFB specifications 
violated Federal Acquisition Regulation (FAR)  sec.  15.508(a) (FAC 90-29), 
which states that:

        "Government personnel shall not use any data, concept, idea, 
        or other part of an unsolicited proposal as the basis, or part 
        of the basis, for a solicitation or in negotiations with any 
        firm unless the offeror is notified of and agrees to intended 
        use.  However, this prohibition does not preclude using any 
        data, concept, or idea available to the Government from other 
        sources without restriction."

Metric concludes that competing the requirement is improper, and that 
award instead should be made to it on a sole source basis.

We find that Metric's brochure and pricing sheet as submitted to the 
Air Force did not constitute an unsolicited proposal, and thus were 
not subject to the FAR restrictions.  The FAR provides that an 
unsolicited proposal should contain certain specified basic 
information, indicate that it is a proposal, and permit its 
consideration by the agency in an objective and timely manner.  FAR  sec.  
15.501, 15.503(c), and 15.505 (FAC 90-32).  The brochure and pricing 
sheet did not set forth such information--it did not include the 
signature of a person authorized to represent and contractually 
obligate the firm, the period of time for which the "proposal" was to 
be valid (a 6- month minimum is suggested), or the type of contract 
preferred, and did not identify any proprietary data to be used only 
for evaluation purposes.  See FAR  sec.  15.505(a) and (c) (FAC 90-32).   

Further, the FAR distinguishes an unsolicited proposal from mere 
"advertising material," defined as "material designed to acquaint the 
Government with a prospective contractor's present products or 
potential capabilities, or to determine the Government's interest in 
buying these products."  FAR  sec.  15.501 (FAC 90-32).  Advertising 
material is not an unsolicited proposal.  FAR  sec.  15.503(b) (FAC 90-32).  
We think the language of Metric's brochure indicated that it was 
advertising material intended to introduce the product to a potential 
customer.  For example, although Metric's brochure contained detailed 
drawings of the containers, the brochure invited recipients to "Call 
Metric Now for More Information," thus indicating that Metric did not 
consider its submission to be a complete proposal that could be 
evaluated on its own.  See generally Technical Assessment Sys., Inc., 
B-242436, May 3, 1991, 91-1 CPD  para.  432 (agency reasonably considered 
letters to agency to be advertising material or an offer of a 
commercial product, and not an unsolicited proposal, where letters 
announced the "general availability" of a product).  

We conclude that the agency properly viewed Metric's brochure and 
pricing information as promotional in nature, and thus was not 
precluded from using the information in conducting a competitive 
procurement. 

The protest is denied.

Comptroller General
of the United States