Coulson asserts that the solicitation improperly discloses its proprietary information, which the protester contends will cause substantial competitive harm to Coulson and preclude a level playing field. Specifically, the protester points to seven requirements in the SOW, arguing they are based on, and misuse information that Coulson provided to the Forest Service in 2012 as part of the NextGen 1.0 procurement. The Air Force argues that its investigation reasonably concluded that the SOW requirements are either: (1) based on information that predated the delivery of the Coulson information, or were logically developed by Forest Service employees; or (2) are general performance requirements, and therefore not proprietary or novel to Coulson’s system. See AR, Tabs 52a through 52g, Air Force Investigation Summaries. For the reasons discussed below, we find reasonable the Air Force’s investigation and conclusion that the SOW requirements were not based on Coulson’s proprietary information. In addition, we find that Coulson has failed to demonstrate that the SOW requirements are proprietary to Coulson, or that Coulson’s proprietary information was the source of the SOW requirements. Accordingly, we find no basis to sustain the protest.

We have recognized the right of a firm to 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 literature or common knowledge. Ingersoll-Rand Co., B‑236495, Dec. 12, 1989, 89‑2 CPD ¶ 542; The Source, B‑266362, Feb 7, 1996, 96-1 CPD ¶ 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 N. Am., Inc., B-220012, Nov. 25, 1985, 85-2 CPD ¶ 595.

Coulson first challenges two of the solicitation’s tank requirements--SOW 6.2.e (tank side skin angles) and SOW 6.2.h (upper and lower tank)--arguing they are based on Coulson’s proprietary information. As discussed above, the agency’s investigation found that these SOW requirements were based on information that predates the delivery of Coulson’s information, or were logically developed by Forest Service employees, and therefore, were not based on Coulson’s proprietary information.

As relevant here, SOW 6.2.e states:

The center of mass of the retardant fluid shall be positioned over the release doors. The side walls of the tank shall be as vertical as possible and in no case shall any wall be greater than 40 degrees from vertical. No portion of the tank, except for the bottom and top, shall have horizontal surfaces. The horizontal surface at the bottom of the tank shall be minimized to be only the amount that is necessary to attach the tank to the fuselage.

SOW at 14.


Coulson argues that this SOW requirement is based on is proprietary design, which has side walls of approximately [DELETED] degrees. AR, Tab 52a, Air Force Investigation Summary, at 2.

With regard to SOW 6.2.h, it states:

The RDS tank shall be designed with an upper and lower portion. The upper portion shall extend above the cargo floor and contain the bulk of the tank volume. The upper portion shall be removable. Removal of the upper portion shall use the cargo ramp extended to the ground. The Contractor shall design support equipment to accomplish removal and reinstallation of the upper portion. Removal and reinstallation of the upper portion may use the cargo winch. Removal and reinstallation of the upper portion shall not require a forklift, K-loader, or any such mechanical heavy lifting device.

SOW at 15.

Coulson argues that this approach, which requires an upper and lower tank, with no additional heavy lift equipment required, is based expressly on Coulson’s proprietary approach.

Based on our review of the record, we find nothing unreasonable regarding the Air Force’s investigation, or conclusion that there is no information to indicate that these two SOW requirements were based on Coulson’s proprietary information. In investigating these two allegations the Air Force found that for both, several other offerors submitted RFIs in 2012 that meet the SOW requirements, and therefore concluded that these requirements were not novel to Coulson. AR, Tab 52a, Air Force Investigation Summary, at 2; Tab 52b, Air Force Investigation Summary, at 2.

With regard to the tank side skin angles requirement, the agency concluded that the tank design requirements were generated from pre‑existing studies, such as the Tank Design Guide for Fire Retardant Aircraft, 1978, (page 34), lessons learned from pre‑existing studies, and knowledge of engineering and fluid‑flow principles. AR, Tab 52a, Air Force Investigation Summary, at 3. For example, the Forest Service personnel explained that, “[h]istorically retardant tanks were designed with the center of mass over the doors,” and that, “with the advent of constant flow tanks, tank developers still kept the center of mass of the retardant fluid over the exit doors, but needed to slope the side walls of the tank to create enough volume for the tank.” Id. at 2. The Air Force also noted that, “although the angle of the tank sidewall for the Coulson design (approximately [DELETED] degrees) is within the SOW requirement, it is [DELETED] than the 40 degree limit in the SOW. Therefore, it is not logical that the Coulson design would be the basis of this requirement.” Id. at 3. Here too, we conclude that Coulson has failed to demonstrate that that the SOW requirement was derived from information that was proprietary to Coulson.

With regard to the upper and lower tank requirement, the Forest Service provided additional information explaining that “this configuration has existed for ‘decades’ on various aircraft, including C-130s not modified by Coulson.” AR, Tab 52b, Air Force Investigation Summary, at 4. Again, Coulson has not provided any evidence to establish that these designs are proprietary to Coulson, or that Coulson’s proprietary information was the source of the SOW requirements. On this record, we find no basis to sustain the protest.

Coulson’s remaining arguments concern SOW requirements which the Air Force found constituted general performance requirements or were not novel to Coulson. For example, Coulson contends that requirement 6.9.a of the SOW (digital tank displays) is based on proprietary data from a video Coulson provided to the Forest Service and Air Force in 2014. As relevant here, this SOW provision requires that “[a] digital tank quantity display shall be installed near each loading port and shall be visible to the loading crew,” and states that the display “shall indicate the total volume in the tank during the filling process.” SOW at 23. Coulson argues that the requirement that the gauge be digital is based on Coulson’s proprietary design, and contends that the Air Force obtained this proprietary information from the Forest Service. Protester’s Comments (June 26, 2015) at 33.

In investigating this issue, the Air Force noted that the Coulson video stated: “There’s also a digital quantity indicator available for the ground crew that indicates where the levels are at.” AR, Tab 48a, Coulson Video; Tab 52g, Air Force Investigation Summary, at 2. The investigation also found, however, that, while “[t]he location of the indicator is shown in the video[,] . . . since the indicator is inside of the air deflector door, the indicator is not shown in the video.” AR, Tab 52g, Air Force Investigation Summary, at 2. The Air Force’s investigation also stated that, while the SOW requirement specified that the gauge must be digital, there are no specific requirements in the SOW on the type of digital gauge that must be used. Id. at 3. Based on the investigation, the agency concluded that there was no information to indicate that Coulson’s proprietary data was used in the development of the SOW requirement. Id.

We find nothing unreasonable regarding the Air Force’s investigation, or conclusion that there is no information to indicate that the SOW requirement was based on Coulson’s proprietary information. Although, as the agency acknowledges, Coulson provided a video that referenced a digital display, Coulson has not provided any evidence to establish that Coulson owns this requirement, or that this video was the source of the requirement.

As another example, Coulson points to SOW requirement 6.8.c (fill port locations), which states that “[f]ill ports shall be available to loading personnel on both sides of the aircraft,” and that the fill ports “shall be located aft of the main landing gear doors between fuselage stations (FS) 615 and 690,” and “at a height where they can be reached by ground service personnel without a ground handling stand or ladder.” SOW at 23. Coulson concedes that the Forest Service’s 2012 RFI included a requirement that “[f]ill ports shall be available to loading personnel on both sides of the aircraft or at the tail.” Protester’s Comments (June 26, 2015), at 31. The protester nonetheless asserts that the SOW requirement that the fill ports be aft of the main landing gear doors and at a height where they can be reached by ground service personnel without a ground handling stand or ladder, is based on Coulson’s engineering drawings of its system, which Coulson alleges shows fill ports [DELETED]. AR, Tab 49, Coulson Drawings, at 9.

In conducting its investigation, the Air Force found that, while Coulson’s design had fill ports on both sides of the aircraft at a height that would meet the SOW requirements, it appeared that the location of the fill ports were between FS [DELETED] and [DELETED], rather than between FS 615 and 690, as required--and therefore did not meet the SOW requirements. AR, Tab 52f, Air Force Investigation Summary, at 2. The agency concluded that the SOW requirement either was based on information that predated the delivery of Coulson’s information, or was logically developed by Forest Service employees, and that there was no indication that the SOW requirement was based on Coulson’s proprietary information. Id. at 3.

We again find nothing unreasonable regarding the agency’s investigation, and find that Coulson has failed to establish by clear and convincing evidence that the agency based this SOW requirement on Coulson’s proprietary information. Rather, as reflected by the record, the agency has previously required fill ports on both sides of the aircraft, provides explanations for its inclusion of the requirement, and indicates that Coulson’s fill ports do not meet the SOW requirement. In short, the protester has failed to establish that this requirement is unique to Coulson or that the SOW requirement was based on Coulson’s proprietary information. The protester’s assertions that a SOW requirement is generally similar to one of Coulson’s designs is not enough to establish the propriety of the requirement, and GAO will not make inferences in this regard on the protester’s behalf.

Coulson also asserts that requirement 6.3.c of the SOW, regarding door ratio, is based on its proprietary information. This SOW requirement states: “The door’s aspect ratio (opening length compared to maximum opening width) shall be at least 10:1.” SOW at 17. Coulson contends that the SOW’s revised requirement for a long, slender door is based on Coulson’s proprietary design, which has a door opening ratio of [DELETED].

During its investigation, the Forest Service advised that “historically retardant tanks were designed with openings that were long and slender.” AR, Tab 52c, Air Force Investigation Summary, at 3 (citing 1991 Airtanker Criteria, Multi-Engine Criteria ¶ I.O.6.a) (“[A] long, narrow tank is to be preferred over a square tank.”). In this regard, the Air Force found that the SOW’s door aspect ratio requirement was based on pre-existing studies into door geometry and familiarity with many door configurations currently in use. Id. The Air Force stated that, “[a]lthough the door opening ratio for the Coulson design (approximately [DELETED]) meets the SOW requirement, it is different than the 10:1 limit in the SOW,” and “[t]herefore, it is not logical that the Coulson design would be the basis of this requirement.” Id. at 4. In addition, the Air Force stated that, based on several RFI responses received from other companies in 2012, “this design is not novel to Coulson’s system.” Id. Accordingly, the agency concluded that there was not any indication that the SOW requirement was based on Coulson’s proprietary information. Id.

The Air Force further concluded that, “although the door opening ratio for the Coulson design (approximately [DELETED]) meets the SOW requirement, it is different than the 10:1 limit in the SOW.” AR, Tab 52c, Air Force Investigation Summary, at 4. Accordingly, the agency concluded that “it is not logical that the Coulson design would be the basis of this requirement.” Id. In addition, the agency also concluded, based on 2012 RFIs submitted by other companies, that “this design is not novel to Coulson’s system.” Id. Ultimately, the agency concluded: “There is no information that indicates Coulson IP was used in the development of this SOW requirement.” Id.

We think that the protester fails to demonstrate how the agency’s requirement for the door aspect ratio was based on Coulson’s proprietary information. On this record, we find nothing unreasonable regarding the agency’s investigation, and no basis to sustain the protest.

Next, Coulson challenges requirement 6.4.m of the SOW, regarding flow rate adjustment of the drop controller which states: “The RDS shall adjust flow rate with ground speed and maintain the ground pattern performance identified in this SOW.” SOW at 20. Coulson argues that the SOW requirement to adjust the flow rate with ground speed is based on its design, which Coulson alleges provides for a stand‑alone RDS GPS to vary flow rate based on GPS ground speed.

During the Air Force investigation, the Forest Service advised that, “[h]istorically the drop speed for airtankers has been an average of 125 KIAS,” and that “[t]he addition of adjusting flow rate as aircraft speed is adjusted is an efficiency and performance requirement.” AR, Tab 52e, Air Force Investigation Summary, at 4. In addition, the Air Force noted that the information provided by the Forest Service showed that the requirement to adjust flow rate based on airspeed was added due to a finding that “actual airdrop speeds were higher than qualification speeds.” Id. at 5. The Forest Service also explained that “[s]everal vendors have already integrated speed adjustment logic into their drop controllers.” Id. at 4. Based on this, the Air Force concluded that the capability to adjust flow rate for various airspeeds is not novel to Coulson’s system, and the agency concluded that there was no information that indicated that the SOW was based on Coulson’s proprietary information. Id. at 5.

In sum, on the record before us, we conclude that Coulson has not demonstrated that the solicitation improperly incorporated or disclosed its proprietary information.  (Coulson Aviation (USA), Inc., B-411525, B-411525.2: Aug 14, 2015)  (pdf)