TITLE: The November Group, Inc., B-292483, September 30, 2003
BNUMBER: B-292483
DATE: September 30, 2003
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The November Group, Inc., B-292483, September 30, 2003
Decision
Matter of: The November Group, Inc.
File: B-292483
Date: September 30, 2003
Alison L. Doyle, Esq., and Jeffrey R. Boodman, Esq., McKenna Long &
Aldridge, for the protester.
Scott C. Briles, Esq., Department of Health and Human Services, Centers
for Disease Control and Prevention, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest alleging that agency improperly released solicitation materials
containing protester*s proprietary information is denied where protester
fails to provide clear and convincing evidence rebutting agency*s
determination that materials at issue were based on publicly available
information and general quality control concepts commonly used in
epidemiological studies.
DECISION
The November Group, Inc. (TNG) protests the terms of request for proposals
(RFP) No. 2003-N-00781, issued by the Department of Health and Human
Services, Centers for Disease Control and Prevention, for the development
of a database system and related data collection and reporting assistance
services to track the clinical use of assisted reproductive technology
(ART) procedures in the treatment of infertility. The protester is the
database system subcontractor of the incumbent contractor of ART data
collection services for the agency, the Society for Assisted Reproductive
Technology (SART). TNG alleges that certain solicitation materials issued
by the agency (namely, a cleaning criteria document released in response
to an offeror*s question about, among other things, edit specifications
for checking the accuracy of data) disclosed proprietary quality control
and programming features of its ART data collection software. The
protester contends that, since the released agency edit specifications
apply to the protester*s software, they reveal proprietary software coding
and logic rules by stating, for example, the inverse of TNG*s allegedly
proprietary logic rules. TNG argues that with the released information
other firms will be able to replicate its software and easily access its
proprietary database, which, according to TNG, deprives it of the
competitive advantage it expected to enjoy as the subcontractor providing
the current ART data collection services for the incumbent contractor. The
protester seeks a sole-source contract under the RFP or a requirement that
other offerors purchase a license from TNG for use of the protester*s ART
database system.
We deny the protest.
The RFP, issued on May 19, 2003, contemplates the award of a
cost-reimbursement type contract for a 7-year period to the firm
submitting the proposal considered to offer the best value to the
government. RFP at 34, 81. The contractor is to develop a standardized
data collection system to track the use of ART procedures by clinics and
medical practices in the United States and its territories. Among other
things, the contractor is to provide: software to tabulate ART data and
import the data into the agency*s reporting system; software distribution
and instruction; a paper data abstraction form; and a quality assurance
program for the assessment of the quality and completeness of the data
received, including detection of logic errors between data set elements,
and out of range or otherwise questionable values for each data set
element. RFP at 10. The challenged solicitation information released by
the agency relates mostly to the quality assurance edit checks used by the
agency to detect logic errors and questionable data under the current
system.[1]
The RFP attachments define each data element to be reported by the clinics
and provide information as to the relationships among specific data
sub-elements. For instance, some data sub-elements are mutually
exclusive, indicating that an affirmative response for one should preclude
an affirmative response for another, while others are collective in that
the sum of certain factors or subfactors may define a data element. For
instance, under the data element of *gravidity* (meaning the number of
the patient*s prior pregnancies), each clinic was to separately report
related sub-elements of such information, such as the number of the
patient*s full and pre-term births, and prior spontaneous abortions.
Another example of the extensive data collection system information
released in the solicitation materials, and unchallenged by the protester,
is the sample data documentation table provided to illustrate how the data
could be recorded by variable name (in a shortened form), data type
(whether reported numerically or otherwise, such as by date or time of the
reported procedure), variable description (defining the required data
element as set out in the solicitation), data format and codes
(identifying the specific software program code assigned by the programmer
to the data element), and quality control issues (concerning the logic
rules to apply to checking the accuracy of the data collected for that
data element).[2] For quality control purposes, for instance, an ART
patient*s date of birth reported outside the range of 18 to 60 years of
age would be questionable as illogical for falling outside of a determined
general childbearing age range. The RFP also provided detailed data
descriptions and substantive medical definitions through its express
incorporation of publicly available documents, such as the agency*s recent
annual ART data report, and a detailed Federal Register notice, 65 Fed.
Reg. 53310, 53312-6 (Sept. 1, 2000), containing the agency*s comprehensive
definitions and explanations of relevant ART terms and procedures, and
providing substantial subject matter information, including information
about the relationships among the cited ART data elements to be reported.
Many questions were received from prospective offerors about the terms of
the current system. The agency explained, however, that it did not have
proprietary rights in that system and thus could not release its software
or proprietary terms. In response to a request for more information about
edit specifications, the agency explained that logic and range checks were
to be provided and that they were to be as comprehensive as the type of
edit checks the agency uses to assess the quality of the current
contractor*s data. To illustrate the type of edit checks desired, the
agency posted at the solicitation*s Internet site a copy of its cleaning
criteria document, including the data edit checks it runs to assess the
accuracy of data reported by its current ART data collection contractor,
SART. In that document, for instance, the agency*s edit checks for the
data element of *gravidity* (the number of the patient*s prior
pregnancies) include questioning data recorded as less than 0 or greater
than 11 pregnancies for a patient; under the agency*s cleaning criteria
for the accuracy of gravidity data, the number of prior pregnancies
reported is also checked for accuracy if it is recorded as a number less
than the sum of separately reported data accounting for the number of the
patient*s full and pre-term births, plus the number of spontaneous
abortions.
After this information was posted, the protester promptly notified the
agency that, in its view, the cleaning criteria document revealed
proprietary information about TNG*s software. As support for its
assertion, TNG pointed to certain similarities between its and the
agency*s quality control edit terms. For example, in the protester*s
allegedly proprietary preliminary field map, TNG provides a similar edit
check for *gravidity* that includes confirmation that the sum of a
patient*s reported full and pre-term births, plus spontaneous abortions is
less than or equal to the number of reported prior pregnancies. Citing
similarities such as this between the terms it uses and the information
released by the agency, and contending that the agency*s cleaning criteria
merely inverted the terms of some of its edit checks, the protester sought
relief from the agency for allegedly releasing the protester*s proprietary
information.
The agency disagreed with the protester*s assertion of proprietary rights,
noting that the released edit checks were disclosed only as examples of
the agency*s efforts (and the desired comprehensiveness of any offeror*s
proposed efforts) to check the accuracy of the ART data reported. The
agency further explained that its cleaning criteria were the results of
its own work over the course of several years checking the accuracy of
data reported on the current (SART CORS) system. The agency reasoned that
the release of its cleaning criteria is unobjectionable not only because
they are typical of the type of edit criteria commonly used in similar
epidemiological studies, but because they are based on publicly available
information about ART and the agency*s data collection requirements, as
well as general principles of logic and statistics relevant to data
collection studies. Due to the protester*s continued insistence, and as a
precautionary measure, the agency removed the challenged cleaning criteria
document from its solicitation materials on the Internet 16 days after it
had been posted; the public was instructed to destroy any copies of it.
This protest followed.
We have recognized that a firm may protect its proprietary data from
improper exposure in a solicitation where its material was marked
proprietary or confidential, or was disclosed to the government in
confidence, and where it involved significant time and expense in
preparation and contained material or concepts that could not be
independently obtained from publicly available information or common
knowledge. The Source, B-266362, Feb. 7, 1996, 96-1 CPD P: 48 at 2. To
prevail on such a claim, the protester must prove by clear and convincing
evidence that its proprietary rights have been violated. Zodiac of North
America, Inc., B-220012, Nov. 25, 1985, 85-2 CPD P: 595 at 3. TNG has not
met this standard here. On the contrary, our review of the record
confirms the reasonableness of the agency*s position that TNG has not
provided sufficient evidence to establish a proprietary right to the
information released in the agency cleaning criteria document.
As stated above, TNG argues that a comparison of its preliminary data
field map to the agency*s cleaning criteria document reveals similarities
in terms; according to TNG, since its field map was developed first, the
agency should be found to have improperly derived its cleaning criteria
from the protester*s proprietary quality control terms. Our review of the
two documents, however, provides no basis to sustain the protest on this
ground. As an initial matter, as the agency points out, there are
substantial differences in the two documents. For instance, the
protester*s document is not as comprehensive as the agency*s document, and
it does not include as many quality control specifications as those
identified in the agency*s document. Also, contrary to the protester*s
suggestion, the agency*s document does not reveal the protester*s
software*s extensive coding of data elements and sub-elements that
constitute its underlying programming and reasonably would be required for
others to replicate the protester*s database system. In this regard, we
cannot find that the agency*s indication in a limited number of cleaning
criteria of the number of sub-elements included in some of TNG*s data
fields constitutes the improper release of proprietary information, since
the solicitation and above-referenced Federal Register notice specifically
and publicly already identified the required data elements and
sub-elements to be tracked. The mere number of items tracked by the
protester, therefore, in our opinion, reveals insufficient information to
warrant additional protections or other relief, since the proprietary
coding of how the information is tracked and recorded has not been
released.
Most important to the resolution of this protest, however, is the
substantial amount of detailed public information that is readily
available about ART procedures and approaches, as well as this agency*s
specific reporting requirements in the ART field. Extensive information
remains publicly available about the specific data elements to be
reported, and their related sub-elements; as stated above, offerors were
also referred in the solicitation to a comprehensive Federal Register
notice that further defined all of the data elements to be reported and
how they relate to each other. Clearly, to satisfy the solicitation*s
requirements for comprehensive quality assurance checks for the data
reported, any offeror would reasonably be expected to utilize this
specific information and terminology in crafting its data edit checks.
Thus, contrary to the protester*s contention that any similarity in the
terms of the agency*s cleaning criteria to its own shows that the agency
misappropriated the protester*s data, we believe the record more
reasonably supports the agency*s position that the similarity in terms
reflects the reasonable, yet independent, application of common data
cleaning rules to the specific data elements and medical terminology at
hand here. In this regard, using the above stated example of *gravidity,*
a data element under the RFP defined as the number of the patient*s prior
pregnancies, we cannot find reasonable the protester*s position that its
approach was unique in designing an edit check for this data element on
the basis of the sum of stated underlying factors related to the outcomes
of that number of pregnancies, such as full and pre-term births, and
spontaneous abortions. On the contrary, the solicitation itself implied
this edit check was appropriate through its incorporation of the Federal
Register notice definition of *gravidity* which expressly includes the
factors (full and pre-term births, and spontaneous abortions) used by both
the protester and the agency in developing their cleaning criteria terms.
In short, the protester has not met its burden of proving by clear and
convincing evidence that its proprietary rights have been violated by
CDC*s disclosure in the solicitation materials.[3] Rather, at issue here
is material or concepts that we believe can reasonably be independently
derived from public information. This includes publicly available
scientific and medical information expressly incorporated by reference in
the solicitation, describing not only the ART subject matter, but also the
specific data elements to be reported and the relationship among the
sub-elements for purposes of checking the accuracy of such data. Further,
the record shows that the final step in the process is application of
commonly known principles of logic and statistics typically used to assess
the accuracy of information gathered in similar types of epidemiological
studies. Accordingly, we conclude that the protester has failed not only
to demonstrate sufficient uniqueness in the limited material it claims is
reflected in both its preliminary data field map*s quality control terms
and the agency*s cleaning criteria document, but also has not sufficiently
supported its assertions of the proprietary nature of the challenged
information.[4]
As a final matter, we note that even assuming the protester had adequately
supported its contention of proprietary rights in the released material,
there would be no basis to recommend the relief sought by TNG. The record
is clear, by the terms of the challenged document itself, that the agency
released the cleansing criteria for informational purposes only as a guide
for use by offerors in the preparation of their own proposed edit
specifications and quality control terms. The information simply was not
released as a requirement for offerors to propose the allegedly
proprietary material (which, even if proprietary, would, at best, still
only reflect some aspect of the protester*s approach to meeting a term of
the RFP). See Vinnell Corp., B-230919, June 30, 1988, 88-2 CPD P: 4 at
3. As such, even if the protester had established proprietary rights in
the material, there would be no reasonable basis for us to conclude that
the extraordinary remedies sought by the protester--a recommendation for a
sole-source award or a requirement for each offeror to purchase a license
from the protester--would be appropriate. See Sentel Corp.,
B‑244991, Dec. 6, 1991, 91-2 CPD P: 519 at 3, recon. den.,
B-244991.2, May 5, 1992, 92-1 CPD P: 419 at 3.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The agency does not claim to have proprietary rights to the
protester*s software or its database system, which is entitled SART Clinic
Outcome Reporting System (SART CORS). The agency reports that prior to
this protest, it believed that SARTCORS was proprietary to its prime
contractor, SART, which organization currently provides ART data
collection services to the agency and subcontracts for the database system
and related services with the protester. As stated above, we view TNG*s
protest as essentially limited to the cleaning criteria (or edit checks)
released by the agency, since, although the protester initially challenged
the agency*s release of its data field names and data description, the
protester conceded in its comments responding to the agency*s report that
the data descriptions are based on public information, namely, the
solicitation*s list of the required data elements. We similarly believe
that the same public information clearly served as the basis for the
generic truncated field names used by TNG (and released by the agency) as
the variable name that merely identifies the publicly described data.
Since the protester has not supported its general claim that the release
of its shortened data element names alone will give others improper access
to its software, and has otherwise provided insufficient basis for us to
consider its claim of proprietary rights to the information, we do not
consider the challenge of the truncated fields further in this decision.
[2] Despite a noted similarity in format of this sample data documentation
table and the format of the protester*s own data field map, TNG has not
challenged the agency*s release of this table.
[3] Our Office held a hearing on the protest to receive testimony from the
parties regarding the allegedly proprietary nature of the material at
issue. The hearing testimony supports our conclusion that the protester
has failed to make the required showing that its proprietary rights have
been violated.
[4] Given our conclusion that the protester has not established the
proprietary nature of the material at issue, we need not reach the other
prongs of the legal standard in this area. See The Source, supra. We
note, however, that, based on the record, questions remain as to the
adequacy of the protester*s actions to protect the alleged proprietary
material and the degree of collaboration between the agency and the
protester in developing the challenged material.