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FAR
6.401: Unsolicited Proposals |
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Comptroller
General - Key Excerpts |
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Digital contends that the agency has made improper use of its
proprietary material contained in its unsolicited proposal.
Specifically, the protester maintains that the RFP copies from
its unsolicited proposal the essential process of the electronic
identification of all known insurance sources covering VA
beneficiaries. Digital argues that the electronic polling of
databases to identify insurance coverage is an element of its
proprietary process. In protests of this nature the burden is on
the protester to demonstrate by clear and convincing evidence
that its proprietary rights have been violated. EDN Corp.,
B-225746.2, July 10, 1987, 87-2 CPD para. 31 at 3. To prevail on
a claim of violation of proprietary rights, the protester must
show that (1) its material was marked proprietary or
confidential or that it was disclosed to the government in
confidence, and (2) 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. Porta Power Pak, Inc., B-196218,
Apr. 29, 1980, 80-1 CPD para. 305 at 4. Commercial products, for
instance, are not considered proprietary, NEFF Instrument Corp.,
B-216236, Dec. 11, 1984, 84-2 CPD para. 649 and neither are
ideas or concepts which are obvious, and not innovative or
unique. Chromalloy Div.—Oklahoma of Chromalloy Amer. Corp.,
B-187051, Apr. 15, 1977, 77-1 CPD para. 262. Moreover, the mere
reformulation of a concept which is common knowledge cannot be
proprietary unless the restatement represents a valuable
contribution arising from the independent efforts of the
claimant. Andrulis Research Corp., B-190571, Apr. 26 1978, 78-1
CPD para. 321 at 4. Finally, the value of proprietary
information lies in its unique possession by the owner; once
such information becomes public knowledge, its value and status
as proprietary information is lost. Porta Power Pak, Inc.,
supra. Digital maintains that the key requirement of the RFP is
the same key functional solution proposed by it in its
unsolicited proposal, that being the electronic identification
of all known insurance sources covering VA beneficiaries.
Digital argues that the electronic polling of databases to
identify insurance coverage is one element of its proprietary
process. Digital maintains that the e-commerce process described
in its unsolicited proposal is a trade secret because it
qualifies as a method of doing business, has actual and
potential value, and would be very valuable to Digital’s
competitors. Digital states that it has filed one or more patent
applications on the methods that it has developed to conduct an
e-commerce business that collects the relevant information
necessary to identify primary and secondary coverage, and
thereafter to bill and collect from those sources. Based on our
review of the record, we find unconvincing Digital’s claim that
the agency improperly used proprietary information contained in
the protester's unsolicited proposal. As stated above, the
protester must demonstrate that the information was marked
proprietary and was provided to the government in confidence. As
explained above, once proprietary information becomes public
knowledge, it is no longer considered proprietary. A significant
amount of the information in Digital’s unsolicited proposal
about its capabilities and approach to automation of the
coordination of benefits among health plans, and related
procedures is available to the public on Digital’s website.
Specifically, while it claims that the electronic polling of
databases to identify insurance coverage is somehow proprietary
to Digital, its website includes a discussion of its ability to
“obtain the latest eligibility data from 4,000 other payors”
with its “automated COB process.” Also on the website is a quote
from the Office of Management and Budget (OMB) at a hearing
before the Senate Finance Committee in 1995 that OMB envisions:
“an on-line, up front query system in which the primary and
secondary payors will be determined at or before the time that
care is provided …”
http://www.dhinc.biz/docs/Digital_Healthcare_Brochure.pdf.
at 6. Thus, based on Digital’s website, it appears that the
concept touted by Digital as proprietary is public knowledge. (Digital
Healthcare, Inc., B-296489, August 24, 2005) (pdf) |
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Comptroller
General - Listing of Decisions |
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the Government |
For
the Protester |
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Digital Healthcare, Inc., B-296489,
August 24, 2005 (pdf) |
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