The November Group, Inc., B-292483, September 30, 2003

B-292483 Sep 30, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. The protester is the database system subcontractor of the incumbent contractor of ART data collection services for the agency. TNG argues that with the released information other firms will be able to replicate its software and easily access its proprietary database. 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. View Decision The November Group, Inc., B-292483, September 30, 2003 DIGEST Attorneys 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.