Date: March 29, 1990

P.S. Protest No. 90-9

DATAVIEW ELECTRONIC SYSTEMS, INC.

Solicitation No. 104230-90-A-0008

DECISION

DataView Electronic Systems, Inc. ("DataView") timely protests the terms of Solicitation No. 104230-90-A-0008, issued by the Office of Procurement, Postal Service Headquarters, on November 20, 1989, for production of 1,750 Delivery Bar Code Sorters ("DBCS"). DataView alleges patent and copyright infringement with respect to the label printer component of the DBCS.

The solicitation is a follow-on to a Modification and Test Agreement ("MTA"), issued on February 23, 1988. The specification package for the MTA contained general requirements for a Stacker Identification Display and Label Printer, but did not contain any drawings or technical data. 1 Four awards were made under the MTA solicitation in August and September, 1988. Testing under the MTA was conducted between October 10 and December 15, 1989, at the General Mail Facility in St. Paul, MN. Only offerors whose equipment was successfully tested during the MTA will be considered for award under the current solicitation. DataView was neither an offeror nor an awardee under the MTA.  In its protest, DataView alleges that it is the inventor of the "On Demand Label Generation System" and that the Postal Service used its exclusive technology for a similar component of the DBCS throughout the solicitation process without DataView's knowledge or consent. In support of its contention, it voluminously documents all contacts between it and the Postal Service from July 21, 1987, to July 6, 1989, involving numerous postal facilities from Boston, MA to Long Beach, CA. These contacts ranged from presentations of its technology to interested postal personnel to actual purchases of DataView's equipment, including installation at Washington, D.C. and Chicago.

DataView strongly urges that its proprietary machine is far superior to any other alternative on the market, and that the current solicitation infringes its patents and copyrights by describing a device similar to its protected label generation system. DataView requests the Postal Service negotiate to license its system as part of the present solicitation, or compare its technology with those of offerors on this solicitation to determine which system would be in the best interests of the Postal Service.2  The contracting officer's statement refutes DataView's allegations. The contracting officer states that the specification for the stacker identification display and label printer was based on the specification in the MTA, which was itself based on an original draft, written by the program manager on July 13, 1987. The contracting officer concludes that since the original draft was written prior to DataView's first contact with the Postal Service, it can be neither an infringement on DataView's copyrights, nor an unauthorized disclosure of proprietary information. Furthermore, the contracting officer states that the language is written in such broad terms, it cannot be construed as an infringement. 3 He goes on to note that neither of the program managers who have handled the procurement had any knowledge of DataView or its equipment during the procurement process. Finally, the contracting officer questions the uniqueness of DataView's technology, stating that of the four competitors in the MTA, two have stated that the technology is available from several different vendors and has been used in the aerospace industry for many years.

Martin Marietta Information and Communications Systems, an interested party, commented on the protest, stating that it is not aware of any contact with DataView and is unfamiliar with its product and design concepts. It claims that display, print and data distribution technology is available from many sources.

Electrocom Automation, Inc., also submitted comments on the protest, stating that as a subcontractor for the development of certain portions of a test machine involved in the MTA, it was able to locate numerous sources for both the pocket displays and the printer. It states that during the time it produced the test machine hardware it had no knowledge of DataView. It claims that it first became aware of DataView in March, 1989 when it received an information package from it.

DataView submitted comments on the contracting officer's report, stating that had it known about the MTA, it would have submitted a proposal. It asserts that the Memphis Division had been shown earlier prototypes of DataView's equipment by a third party as early as 1986. It also finds it unlikely that the program manager for such an important project as the DBCS would have been unaware of DataView's technology. DataView notes that in February, 1989, it installed equipment in Washington, DC that utilized a two line by sixteen character display and concludes that the success of this equipment prompted the Postal Service to amend the original specification to include a similar character display in the current solicitation. 4

DataView does not dispute the contracting officer's contention that display and print technology exists, but claims that its product uniquely combines display, print, and data distribution technology in a way not presently available from other vendors. DataView contends that the system specified in the solicitation is not sufficient to meet the Postal Service's needs. It claims that it should be the sole supplier of the multiple display and label printing component of the DBCS.

Discussion

An initial question is whether DataView has standing to challenge the terms of the solicitation. The Procurement Manual ("PM") defines a protest as "a written objection by any interested party concerning the terms of a solicitation . . . ." PM 4.5.2 a. The test for an interested party is whether the protester would be eligible for award of the contract if the protest were upheld. York International Corporation, P.S. Protest No. 89-77, January 19, 1990; Electrocraft Industries, Inc., P.S. Protest No. 83-42, September 1, 1983. The solicitation states that only offerors whose equipment was tested under the MTA are eligible for award. Since DataView is not an offeror whose equipment was tested, it is clearly not eligible for award. DataView's contention that it would have been an offeror, had it known about the MTA, is unavailing, since the solicitation for the MTA was publicly posted and synopsized in the Commerce Business Daily. 5

In certain limited circumstances, a potential supplier may be an interested party "where no other immediate party has a greater interest concerning the issue raised, and where there is a possibility that recognizable interests would be inadequately protected were access to our protest forum limited to potential awardees." York International Corporation, supra; Falcon Systems, Inc., et. al, P.S. Protest Nos. 86-31, 86-33, and 86-35, July 25, 1986. In such circumstances, we must give consideration to the nature of the issues raised and the direct or indirect benefit or relief sought by the protester. Id.; Damper Design, Comp. Gen. Dec. B-190785, January 12, 1978, 78-1 CPD ô 31. "We must examine the degree to which the interest is both established and direct." York, supra; Climatological Consulting Corp., Comp. Gen. Dec. B-197906, August 4, 1980, 80-2 CPD ô 81. Here, DataView is not even a subcontractor to a potential awardee and, thus, its interest is neither established nor direct. Accordingly, we cannot reach the merits of DataView's protest.

Even should DataView establish that it falls within the above narrow exception, its primary complaint is that the Postal Service infringed on its exclusive technology. Our bid protest function does not include jurisdiction over patent infringement issues. Facet Transportation, P.S. Protest No. 86-75, October 7, 1986; Tulsa Diamond Manufacturing Corporation, et. al., P.S. Protest Nos. 85-18, 85-20, and 85-23, June 20, 1985. Furthermore, under 28 U.S.C. õ 1498, "the remedy of an owner of a United States patent for the unlicensed manufacture or use by or for the United States is an action in the United States Claims Court for recovery of the reasonable and entire compensation due for such manufacture or use." Facet Transportation, supra. This federal law has been adopted by and made applicable to the Postal Service. See PM 9.2.2 a.1. Thus, there exists a forum outside of the bid protest arena where DataView's interests would be adequately protected.

This protest is dismissed.

William J. Jones
Associate General Counsel
Office of Contracts and Property Law
[checked against original JLS 6/2/93]