Imagens das páginas
PDF
ePub

believes it is time to establish a more cooperative attitude toward working

with industry to achieve regulatory standards that are both realistic and beneficial to society with respect to health, safety and economic cost. Further, the government should provide economic incentives for regulatory compliance such as have been implemented in other countries.

The government has many needs for data to be furnished by a contractor under a government contract. Such needs include technical data first generated under the contract and contractor data developed at private expense, i.e., proprietary data. Contractors have an economic interest in proprietary data and protect it against unauthorized use. At present, there is no uniform federal policy dealing with the allocation of rights to technical data first developed under a government contract or to protect proprietary data used by a contractor in the performance of such a contract and delivered to the government. The absence of a uniform data policy, which should include an appropriate recognition of a contractor's right in his proprietary data, adversely impacts the government procurement process. In some cases, highly competent firms elect not to bid a particular program if to do so would place proprietary data in jeopardy. In other cases, having been awarded a contract, it may be necessary for a contractor to "reinvent the wheel" in order to protect valuable proprietary data.

Although misuse by the government of a contractor's proprietary data is not a frequent occurrence, it happens often enough to be of deep concern to industry. Unlike the owner of a patent who has a remedy under 28 USC 1498 for the unlicensed use by the government of his patented invention, there is no remedy for the owner of proprietary data that has been used by the government without authority.

Ten years ago, the Commission on Government Procurement recommended

the establishment of a remedy for the misuse of information supplied to the government in confidence.

We recommend, therefore:

0 The issuance of a uniform federal policy dealing with the
allocation of rights to technical data first developed in the
performance of a government contract;

0 The issuance of a policy affording appropriate protection to
proprietary data furnished by a contractor to the government;

[ocr errors]

The establishment of a remedy for the misuse of information supplied to the government in confidence.

In summary, AIA supports the need to re-evaluate the procurement process. We believe it should promote fair business relationships between industry and government. We believe consideration and adoption of our recommendations can lead to increased economy, better efficiency and more effectiveness in procuring items, systems and services needed to insure the nation's defense.

[blocks in formation]

In the past 30 years, the General Services Administration, as the alma mater of Government procurement (known prior thereto as the Procurement Division of the Treasury Department), has procured furniture substantially by carefully spelled out federal specifications. To exemplify a certain manufacturer's brand was never the practice of the government.

Only recently military and Veterans Administration installations, in the absence of GSA coverage by Federal Supply Schedules, have resorted to advertise for bids on furniture by using the formula "brand name or equal," and GSA in several instances has followed suit.

Why is this method of using "brand name or equal" not only objectionable and unethical, but also encourages manufacturers to engage in "unfair competition" and provokes them into acts of piracy?

From time immemorial, furniture craftsmen have created a distinct style and design which has had a certain appeal to the public. From the 13th Century on, these styles were identified by the creators of these designs or by

* The writer was admitted to practice as U. S. Patent Attorney in 1935 and served with the U. S. Government from 1935 to 1948, among others as Special Attorney with the Department of Justice.

For the past 30 years he has engaged in reporting to manufacturers on Government procurement activities with the aid of 50 field reporters.

His firm, Arndt & Arndt, is patronized by over 25, 000 manufacturers, and publishes privately the weekly G. S. A. Bulletin and the Defense Fuel Bulletin.

the epochs in which they created, e. g. Jacobean, Hepplewhite, Chippendale, Baroque, Rococo, and Empire. In more modern times, manufacturers have taken great pride and effort to create heretofore unknown styles and designs, usually identified by the manufacturer's name.

As automotive manufacturers come out each year with new models and designs to induce the public to buy these models, furniture manufacturers engaged in a fashion industry display at their Spring and Fall markets newly created styles and designs which have become their trademark. Unfortunately, in every branch of trade, there are certain elements who engage in the despicable art of stealing a successful design, in short, practice unfair competition or outright piracy.

Because of the rapid changing modern styles and designs, furniture manufacturers, as a rule, have not gone to the trouble of protecting these innovations by a Design Patent which, under the law, would protect the salient ornamental features. Nevertheless, these innovations become their trademark whether or not officially registered with the U. S. Patent and Trademark Office or with the individual Secretaries of State of the 50 U. S. States. In the furni

ture trade, a certain style and design becomes the distinctive identification mark of a manufacturer, and it is this style and design which he sells to the public as his stock and trade.

In other branches of the trade, such as houseware articles, hardware items, or automotive tires, brand names do not have the same connotation which they do in the furniture field and merely indicate the generic type of a commodity.

The gist of our Federal Procurement Policy is to afford all bidders the right to equal, open and fair competition. This maxim is anchored in the

various procurement laws passed by Congress, and tnis legislative intent is

further implemented in the Federal and Defense Procurement & Property Management Regulations.

The basic objection to advertising a furniture requirement by "brand name or equal" is that the manufacturer whose brand is specified is receiving preferential treatment. Not only may such manufacturer offer his stock item out of his ready inventory, but he has the inside track by being tooled up and being able to meet shorter delivery schedules. Other manufacturers, competing with the style and design of the named manufacturer are, therefore, at a distinct handicap.

This disadvantage is compounded by other factors: Usually the requirements set forth not only the particular brand, but also exact dimensional measurements in inches or fractions thereof, the wood species and finish, typical for the specified manufacturer. On the other hand, in most cases, the fabric is only cryptically identified by an arbitrary number assigned by the named manufacturer, without giving the basic textile mill number. In general, the description of the important construction factors are missing.

Competing manufacturers are thus compelled to seek out at great expense of time and money the foregoing advertised requirements, frequently with little or no help from the contracting officer.

However, furniture dealers may have considerably easier access to any manufacturer's catalog and specifications, whereas a competing manufacturer finds himself in a dilemma since no manufacturer, whose brand is named, knowingly would pass out his catalog and his specifications to a competitor, particularly for entering a competitive bid on a Government procurement.

There is, moreover, a great competitive jealousy among furniture manufacturers with a marked trend to keep a new style and design a secret until displayed at a forthcoming market, and even then the access to a competitor's space at the furniture mart is practically taboo for a manufacturer.

While regular dealers are recognized before the Government as bidders,

it has been the time-honored Government policy to procure directly from a

« AnteriorContinuar »