On April 20, 2012, the military informed bidders that it had awarded a contract to remington. On April 26, Colt filed a protest with our office against the military`s sentence, claiming, among other things, that the military had not applied the 5% adjustment to the royalties of the claims to the overall prices of other suppliers. Instead, Colt said, the agency misapplied the royalty adjustment only to certain parts of the prices offered by bidders, based on an undisclosed and independent interpretation of the license agreement that the military did not share with sellers. Contrary to Colts` arguments, nothing in far § 27.202-2 precludes the use of an evaluation factor based on possible royalty liability under a license agreement for the use of technical data. In this context, we note that far § 27.202-2 applies only to patent license rights and the current situation includes royalties for the use of technical data. We also note that there is no similar provision in Subpart 27.4 of the FAR, Data Rights and Copyright, which deals in any way with the assessment of royalties for the use of technical data. [4] Even if this provision were applicable, we do not consider that far § 27.202-2 is exclusive to the valuation of a royalty if the amount of the royalty has not yet been determined. Instead, this regulation only provides that if a license amount is agreed, it must be evaluated. Colt states that it is not asking the GAO to resolve the ongoing dispute between the protester and the agency over the correct interpretation of the license agreement and the royalties payable to Colt. Protesters` response to the GAO regarding jurisdiction (November 2, 2012) at 2.
Instead, Colt argues that the agency is prohibited from issuing an application that does not set an agreed fee. As stated in our previous decision, the military and Colt have not yet reached an agreement based on the terms of the license agreement as to what the actual portion of the royalties should be. In fact, Colt argues that the terms of the amended application are inconsistent with the terms of the license agreement because the method of calculating the fee by the agencies is completely incorrect. Demonstration at 7 p.m.m. On the other hand, the royalty provisions in the application reflect the Army`s position on the reasonable percentage of royalties owed to Colt. [1] The license agreement is a non-public agreement between Colt and the military that provides for a royalty on Colt for the use of its licensed technology. 2. A price evaluation system contained in a call for arms submissions and taking into account the royalties for technical data due when the award is made to a bidder who does not own the technical data is not objectionable, even though the licence fee may not constitute the final licence fee paid by the Government under a technical data licence agreement; since the parties to the license agreement have not yet agreed on this matter. applicable license fees.
Here we find no basis to maintain the protest. It is not disputed that the government incurs royalties if the award is granted to a supplier other than Colt. As noted above, we believe that the Agency can reasonably consider these costs when determining relative prices in this call for tenders, despite the uncertainty that remains as to the exact amount to be paid to Colt under the licence agreement. 1. GAO will not resolve any dispute involving the interpretation of a license agreement, even if the amount of the license fee under the agreement depends on the evaluation factors of the current application, as this involves a matter of contract management that is not subject to Review by the GaOs. [2] The license agreement between Colt and the Army provides in a relevant part: Colt Defense, LLC, of West Hartford, Connecticut, protests against the terms of Call for Proposals (RFP) No. W56HZV-10-R-0593, Amendment No. 7, issued by the Army Department for standard M4 carabiners and standard M4A1 carabiners. The protester argues that the terms of the application are inconsistent with the Federal Acquisition Regulation (FAR) and the terms of Colt`s license agreement with the military. Colt argues that the royalty assessment agencies` provisions no longer require the inclusion of the actual royalty provided for in the license agreement and are therefore inconsistent with the requirement of the Federal Procurement Regulation (FAR) § 27.202-2(b)(1) that the government is required to pay. A royalty requires agencies to evaluate a provider`s price by adding an amount equal to the license fee. See also FAR § 52.227-7 (If a bidder does not indicate that it is the owner or licensee of the patent, its bid will be evaluated by adding an amount equal to the license fee).
Colt states that the agency is not allowed to assess the fee because there is no agreed fee between the government and Colt. Colt argues that instead of the actual royalty, as requested by the FAR, the terms of the revised military price assessment provide for a speculative license amount that the agency admits is for valuation purposes only and that Colt claims to underestimate the actual cost to the government. In fact, Colt argues that the military cannot carry out the procurement until the parties have reached an agreement on the license rate. For the reasons outlined below, we disagree with the protester. With respect to determining the actual amount of the royalty, GAO will not resolve any dispute over the interpretation of a license agreement, even if the amount of the royalty depends on the evaluation factors of the current application. See SCM Corp., Kleinschmidt Div. Kleinschmidt Inc., B-186235, August 10, 1976, 76-2 CPD ¶ 147-3. In this context, the license agreement here contains a dispute resolution clause that governs the resolution of disputes under the license agreement and provides for their review by the contract employee as well as appeals to the competent appeals chamber or court for federal claims. M4 Carbine Addendum to Technical Data Sales and Patent License Agreement, Article XII Incorporated Regulations, p. 16. We consider these disputes to be matters of contract administration that are not subject to our jurisdiction over bid challenges, but to the discretion of the principal and for review by the competent appeals chamber or the Federal Claims Court.
4 C.F.R. § 21.5(a) (2012); Hawker Eternacell, Inc., B-283586, November 23, 1999, 99-2 CPD ¶ 96 to 3.M.5.2.3 The license rate is 5%. If a bidder does not indicate that it is the owner or licensee of the technology or specifications, its bid will be evaluated by adding an amount equal to the royalty to the proposed prices. M4 Carbine Addendum to Technical Data Sales and Patent License Agreement, Article VII Royalties, pp. 13-14. The license agreement was not included in the scope of the delivery, but was made available to our office under cover of a protection order. Given that the parties in this case agree that Colt is entitled to a certain royalty and that the amount of the royalty undeniably represents costs to the government, we consider that the Agency acted in the reasonable exercise of its discretion when it took that charge into account in the price assessment in order to more reasonably determine which proposal represents the lowest cost to the government. See Hughes Aircraft Co., B-226955, p.
15. July 1987, 87-2 CPD ¶ 48 at 3 (Agency required to assess patent and technical data fees as part of cost assessment, if the terms of a license agreement – concluded by an agency and the owner of technical data – require a specific license fee paid by the agency when a contract requiring the use of technical data, to a company other than the owner of the Data B. ) ; SCM Corp., KleinSchmidt Div. Kleinschmidt Inc., loc. cit. (even if there is a dispute over the amount of royalty due under a licensing agreement between the government and a contractor that cannot be resolved by GAO, GAO will not object to the agencies using a reasonable valuation formula in a tender to account for royalties, which, according to the government, are due to the licensee on the basis of an award). As relevant in this case, the original application indicated to the suppliers that the technical data package for the M4/M4A1 carabiners contains licensed technologies for which the government is required to pay a royalty under a licensing agreement with Colt Defense, LLC. [2] Call for tenders, pp. 3, 74. The tender stated that suppliers who do not own or license the Colt technology will be evaluated as follows: 6.
Colt and the Colt logo, as well as all marks and products referenced on the Sites or listed on the Sites, are trademarks of Colt Technology Services Group Limited or its affiliates. No rights are granted in any of the above trademarks. If you have any doubts as to whether an item is a trademark of Colt Technology Services Group Limited or its affiliates, please contact us for clarification. Colt Acceptable Use Policy for Asia as of August 18, 2015. ————————————————————————————————–. 44K Nothing in these Terms grants benefits to third parties under the UK Contracts (Rights of Third Parties) Act 1999 or equivalent local laws. This is without prejudice to the rights or remedies of any person that exist or are available in any manner other than under this Law or equivalent local laws. In response to our recommendation, the Agency published on 12 September Amendment 7 to the call, which defines the methodology for assessing the price in relation to the 5% fee and requests a revision of the estimate. DP, amendment no. .
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