MOTION TO COMPEL GRANTED IN PART: January 28, 1993 GSBCA 12240-P RAYTECH ENGINEERING, INC., Protester, v. DEPARTMENT OF THE NAVY, Respondent, and FORCE 3, INC., Intervenor. Andrew H. Mohr and Donn R. Milton of Cohen & White, Washington, DC, counsel for Protester. Robert C. Peterson, Michael S. Roys, and James L. Yohn, Office of Counsel, Naval Supply Center, Department of the Navy, Charleston, SC, and Eric A. Lile, Office of Counsel, Naval Supply Systems Command, Department of the Navy, Arlington, VA, counsel for Respondent. James A. List, Towson, MD, counsel for Intervenor. WILLIAMS, Board Judge. On December 28, 1992, Raytech Engineering Inc. (Raytech) filed a protest challenging the Navy's award of a contract for Computer Assisted Medical Interactive Video System II (CAMIS II) to Force 3, Inc. (Force 3). Raytech claims that Force 3's proposal did not meet a mandatory requirement of the solicitation in that Force 3's proposed graphics overlay board and sound amplifier board were not commercial off-the-shelf (COTS) products. Raytech also alleges that the Navy misled Raytech into raising its price in its best and final offer. This matter comes before the Board on protester's motion to compel intervenor to produce for inspection and testing, at protester's facilities or those of protester's expert, its CAMIS II graphic overlay and sound amplifier boards and to provide "the software source code, programming, design, production drawings, and similar manufacturing documentation for the graphic overlay and sound amplifier boards." Protester's Motion to Compel and in the Alternative, Motion for Permission to Supplement Discovery (Motion to Compel) at 1. Intervenor opposes the motion, arguing that protester did not request production of the actual boards in its original discovery request and that if the Board orders production of the boards for testing, any tests should be conducted at intervenor's facility in the presence of intervenor's personnel. On January 27, 1993, the Board orally granted the motion to compel in part, finding that it would be in the interest of all parties to permit the testing at intervenor's facility and in the presence of intervenor's and respondent's employees and representatives. This written order confirms that ruling. Discussion Intervenor urges us to deny protester's request to supplement discovery. Although protester did not request production of the actual boards in its initial discovery requests, we permit protester to supplement its discovery requests to request inspection and testing of the boards.[foot #] 1 We note that the request was made sufficiently in advance of the discovery cutoff on January 29, 1993, to permit the testing without continuing the trial, that the performance and characteristics of these boards are relevant to the protest, and that the tests are a proper mechanism for discovery under Board Rules 15(a) and 17(d) and Federal Rule of Civil Procedure 34. Rule 34(a) expressly permits requests for testing "tangible things" in the possession of a party. Cf. Quinn v. Chrysler Corp., 35 F.R.D. 34 (W.D. Pa. 1964) (Rule 34 encompasses testing handbrake assembly after installing it in another vehicle in personal injury action where handbrake was claimed to be defective.) This leads us to the issue of the logistics of the tests. Protester contends that locating the testing at intervenor's facility is insufficient, claiming: Inspection of the graphics overlay and sound amplifier boards at Force 3's facility is insufficient. If confined to Force 3's plant, Raytech's expert, Tom Bragg will not be able to inspect the boards as ----------- FOOTNOTE BEGINS --------- [foot #] 1 Protester's motion was filed on January 22, 1993. Counsel for intervenor was ill and could not respond to this motion until January 26, 1993. ----------- FOOTNOTE ENDS ----------- carefully as he could at his own or Raytech's facility. Certainly, since the boards will be ready for shipment and not connected to a CAMIS II system, it will be impossible for Mr. Bragg to observe the boards operationally. In this regard, it would be impossible for Mr. Bragg to confirm at Force 3's facility that the items presented are the actual boards that will supposedly be included in Force 3's CAMIS II system. Only by inspecting and testing the boards at Mr. Bragg's or Raytech's own facilities will Raytech truly be able to review Force 3's claims that the boards are COTS compliant. Considering that Force 3 claims these boards to be COTS, Raytech should be able to inspect and test these boards at its own facilities, just as it could for any truly COTS products available from Comp USA or Computerland. Indeed, the graphics overlay board and sound amplifier boards . . . while claimed to be Commercial- Off-The-Shelf, are not commercially available from the shelves of any national or local distributors. Thus, the only source for these boards is Force 3. Protester's Motion to Compel at 3. Intervenor contends that the products are commercially available off-the-shelf (COTS) products and that protester should be required to purchase them. Alternatively, intervenor argues that the inspection and testing be conducted at intervenor's place of business during normal business hours, and under the supervision of intervenor's agents. Intervenor's Response to Protester's Motion to Compel at 5. Our appellate authority set forth some parameters for conducting tests of tangible things in the possession of a party litigant in In re Newman, 782 F.2d 971 (Fed. Cir. 1986). At issue there was a district court order authorizing testing of a patent applicant's device by the National Bureau of Standards. The challenged order barred the applicant from observing the tests or receiving prior notice of what tests would be performed and permitted the dismantling or destruction of the device without the applicant's consent. On appeal, the United States Court of Appeals for the Federal Circuit ruled that the district court had departed from the safeguards and standard procedures for implementing Rule 34, and stated: Rule 34 discovery is a common procedure, as is inter partes testing in general, arising in actions where there is a need to conduct inspections and tests for evidentiary purposes. Such tests routinely are made in the presence of the opposing party, and the test data are routinely provided to all parties. Wagoner v. Barger, 463 F.2d 1377, 1382, 175 USPQ 85, 88 (CCPA 1972) ("the results of tests made by one party . . . without notice to, and in the absence of, the other party . . . [are] for that reason alone entitled to little or no weight"); Congoleum Industries, Inc. v. Armstrong Cork Co., 319 F.Supp 714, 716, 168 USPQ, 263 264 (E.D. Pa. 1970) ("the established doctrine that evidence of experiments conducted by an interested party, in the absence of his adversary, is always received with suspicion and given only negligible probative value"). Id. at 974. Although protester has not represented that it intends to introduce the results of the test in evidence, these principles should nonetheless be followed so as to preserve the potential use of the test results as evidence, if appropriate. We thus direct protester to perform any tests of the boards in the presence of intervenor's and respondent's employees or representatives. In considering the appropriate location for the tests, we note that other tribunals have authorized inspections to be conducted at the premises of the party whose property is being inspected. E.g., Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 80, 82-83 (N.D. Ohio 1973): Sperberg cites Dow Chemical Co. v. Monsanto Co., 256 F.Supp. 315 (S.D. Ohio 1966); Paul v. Sinnott, 217 F.Supp. 84 (W.D.Pa. 1963); and Peelers Co. v. Kaakinen, 126 U.S.P.Q. 42 (W.D.Wash. 1960). In each of these cases the Court compelled the defendant in a patent infringement case to permit the plaintiff to make a visual inspection of an alleged infringing apparatus or process on defendant's property. . . . . In each of the cited authorities the plaintiff was permitted to enter upon the property of the defendant and make any and all necessary observations and inspections of defendant's operations . . . . Id. (emphasis added). This is in accord with Rule 34(a)(2), which authorizes requests "to permit entry upon . . . other property in the possession or control of the party upon whom the request is served for the purpose of . . . testing. . . ." In considering the scope of the testing, we direct protester to provide prior notice of the tests it intends to perform. Further, we authorize protester to conduct operational tests of the boards, recognize that the boards need to be inserted in a system to be operationally tested, and direct the parties to cooperate in ensuring the necessary equipment is available.[foot #] 2 Finally, we reject intervenor's suggestion that protester should be required to purchase the boards in lieu of conducting a test. There is an issue as to whether the boards are COTS and are readily obtainable. In addition, the discovery rules permit requests for production of tangible things in the possession of a party litigant for purposes of inspection and testing so long as the request is reasonably calculated to lead to the discovery of admissible evidence. Rules 15(a), 17(d); Fed. R. Civ. P. 34(a). Protester's request to test the boards meets this criterion. Order Protester's motion to compel production and, in the alternative, motion for permission to supplement discovery is GRANTED IN PART, as follows: 1. Protester's expert may inspect and test intervenor's CAMIS II graphic overlay and sound amplifier boards at intervenor's place of business prior to the discovery cutoff and in the presence of intervenor's employees or representatives. Protester's and respondent's representatives may also attend. 2. Protester shall give notice of the type of tests it plans to conduct as soon as practicable and at least one day prior to the tests. 3. Operational tests are authorized. Intervenor shall produce the boards and an IBM-compatible 486; protester shall provide all other equipment necessary for the tests. 4. Intervenor shall produce the software source code, programming, design, production drawings, and similar manufacturing documentation for the graphic overlay and sound amplifier boards forthwith and in no event later than the discovery cutoff. 5. The discovery cutoff is extended until Monday, February 1, 1993, at 4:30 p.m. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 During a telephonic conference on January 27, 1993, counsel for intervenor represented that he would make available the boards and an IBM-compatible 486 for the test; protester is responsible for bringing any additional equipment it might require.