BNUMBER:  B-279839 
DATE:  July 27, 1998
TITLE: Rothe Development, Inc., B-279839, July 27, 1998
**********************************************************************

Matter of:Rothe Development, Inc.

File:     B-279839

Date:July 27, 1998

David F. Barton, Esq., The Gardner Law Firm, for the protester.
Clarence D. Long, III, Esq., and Wilbert W. Edgerton, Esq., Department 
of the Air Force, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In soliciting proposals for a contract for operation and maintenance 
services, agency did not improperly disclose information proprietary 
to the protester regarding the number of individuals employed by the 
protester for the performance of the predecessor contract where the 
information disclosed cannot reasonably be considered proprietary and 
the protester's claim that it was competitively disadvantaged by the 
release of the information is speculative at best.

DECISION

Rothe Development, Inc. protests the award of a contract to any other 
offeror under request for proposals (RFP) No. F34608-98-R-0016, issued 
by the Department of the Air Force, for operation and maintenance 
services for the base telecommunications system (BTS) and network 
control center (NCC) at Columbus Air Force Base, Mississippi.  Rothe, 
the incumbent contractor for a portion of the services, alleges that 
it was placed at a competitive disadvantage because the agency 
disclosed certain information which allegedly is proprietary to Rothe.

We deny the protest.

The RFP, issued on March 6, 1998, provides for the award of a 
fixed-price requirements contract for a base period with four 1-year 
options.  The contractor will be required to provide all personnel, 
equipment, parts, materials, tools, operation and maintenance 
documentation, and other items and services necessary to perform 
operations and maintenance of the BTS and NCC.  RFP  sec.  C 1.1.1.

The RFP lists company organization, quality, and safety as the 
technical evaluation factors, and includes evaluation subfactors under 
each of these evaluation factors.  RFP  sec.  M-800 B.  With regard to the 
company organization evaluation factor, the RFP lists eight evaluation 
subfactors, including personnel.  Id.  The RFP states that, under the 
personnel subfactor, the "availability of sufficient personnel with 
the required skills, training, and experience will be evaluated."  Id.

A preproposal conference was held, during which a potential offeror 
asked, "How many personnel are currently working at the NCC?"  The Air 
Force explains that, in order to answer this question, the quality 
assurance evaluator (QAE) for the predecessor contract, who has a 
close working relationship with the Rothe employees performing the 
contract, "mentally went through each office and listed the names of 
the persons in the offices."  Agency Memorandum of Law at 2.  
According to the Air Force, the QAE found "that Rothe had 23 people 
working the contract with approximately 15 performing the NCC work."  
Id.  The agency subsequently issued 71 questions and answers (Q&A) 
regarding the RFP to potential offerors, with Q&A number 24 reading as 
follows:

     24.  How many personnel are currently working at the NCC?
     The contractor currently has 23 people working the NCC - however, 
     only approx 15 of them are performing the work defined under this 
     contract.  Please note that individual personnel may be 
     cross-trained and performing more than one function.

Rothe asserts that the agency's answer to question 24 improperly 
disclosed Rothe's "proprietary privileged and confidential manning 
criteria related to the solicitation  
. . . and destroyed its competitive position for the solicitation."  
Protest at 3.  Rothe contends that, contrary to the agency's 
assertions, the number of Rothe personnel currently performing the 
contract could only have come from the technical proposal submitted by 
Rothe for the predecessor contract, and points out that this proposal 
contained language to preserve the confidentiality of the information 
contained therein.  Rothe requests that the RFP be canceled, and its 
current contract extended through December 1999 with 4 option years 
and modified to include the additional work required under the RFP.  
In the alternative, Rothe requests that it be awarded a contract for 
the services on a sole-source basis, or that the RFP be amended to 
delete the evaluation preference for small, disadvantaged businesses 
or issued as a total small business set-aside.     

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.  The Source, B-266362, Feb. 7, 1996, 96-1 CPD  para.  48 at 2; 
Ingersoll-Rand Co., B-236391, Dec. 5, 1989, 89-2 CPD  para.  517 at 2.  As a 
general rule, proprietary information is that which is marked 
proprietary or otherwise submitted in confidence to the government.  
Good Food Serv., Inc., B-260728, June 20, 1995, 95-2 CPD  para.  123 at 2.  
Where a protester alleges that such information was improperly 
disclosed, the record must show that 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, and establish that the protester was 
competitively prejudiced by the release, before we will sustain the 
protest.  Ursery Cos., Inc., B-258247, Dec. 29, 1994, 94-2 CPD  para.  264 
at 2; Ingersoll-Rand Co., supra.  Such competitive prejudice may not 
be established on the basis of speculation.  JL Assocs., Inc., 
B-239790, Oct. 1, 1990, 90-2 CPD  para.  261 at 4-5.

Here, considering the record most favorably to the protester, we do 
not believe that the information disclosed by the agency could 
reasonably be considered proprietary to the protester or that its 
disclosure resulted in any competitive disadvantage to Rothe.  

First, as stated by Rothe in its April 6 letter to the agency, "the 
information [disclosed in Q&A No. 24] is incorrect."  Indeed, the 
record confirms that the staffing levels disclosed are in fact 
different than those set forth in the proposal submitted by Rothe in 
response to the predecessor RFP.  Where the information released is 
substantively different than that which the protester claims as its 
own, we fail to see how the protester can claim that the agency 
released its proprietary information.
 
Moreover, it appears that the released information was ascertained 
from the QAE's "mental" headcount, as asserted by the agency, not 
through the agency's review of Rothe's proposal submitted in response 
to the predecessor RFP.  In our view, it is more likely that 
inaccurate information would result from a mistaken mental headcount 
rather than the review of a firm's proposal.  Such a mental headcount 
is, in our view, akin to "reverse engineering," and the release of 
information or data developed through reverse engineering is not 
improper.  Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974); 
Si Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1255 (3rd Cir. 
1985); Ingersoll-Rand Co., supra, at 4.  In any event, matters which 
are fully disclosed by the marketed product (such as the number of 
personnel performing a services contract monitored by the government) 
cannot be protected as a trade secret.  Ingersoll-Rand Co., supra.
       
Further, we fail to see how the protester was competitively 
disadvantaged by the agency's release of the information.  In this 
regard, the agency estimates that the contract being performed by 
Rothe includes 40 percent of the work required under this RFP.  Rothe, 
on the other hand, estimates that its current contract includes 80 
percent of the work required under the RFP.  Assuming for the sake of 
argument that Rothe is correct, the fact remains that 20 percent of 
the work was not covered by the predecessor RFP, and neither the 
agency nor Rothe asserts that offerors construct a reasonable proposal 
by simply increasing the staffing levels disclosed by the agency 
proportionally to cover all of the work now being solicited.  
Moreover, the information disclosed did not reveal what labor 
categories, mix, or rates would be appropriate, or how Rothe 
calculated its profit, overhead, and management costs--important 
elements of price and in some instances, technical approach.  At best, 
the agency's release of the information may operate to normalize to a 
small degree the competition so that all offerors will have a very 
rough estimate as to how many individuals will be needed for contract 
performance.  As such, even if the information disclosed could be 
considered proprietary, the effect of releasing the information on 
Rothe's competitive position under the terms of the RFP is speculative 
at best and provides no basis to sustain the protest.  See Ursery 
Cos., Inc., supra, at 3.

The protest is denied.  

Comptroller General 
of the United States