oversight

Involvement of the Office of Education, Department of Health, Education, and Welfare, in the Development of an Information System Called the College Suggestor

Published by the Government Accountability Office on 1971-09-08.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                           COMPTROLLER      GENERAL   OF

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    B-164031(1)
                   Gt
                                                                                                 c.- y
    Dear Mr.      Terry:                                                                           4
            In accordance     with your letters          of April    2 and May 6,               247
  1 1971, and discussions           with you, the General Accounting               Office
    inquired    into the involvement          of the Office        of Education,        De- t#f& /
 Lpartment      of Health,      Education,     and Welfare        (HEW), in the de-           Zs
 Avelopment       of an information        system
                                               -_,-_. called   the   College      Suggestor.
                           --------"r-~                               ..,__
                                                                          -_-."__.im      -.
            The College       Suggestor       is an information       retrieval   system
    for use by students           and guidance       counselors     to quickly    locate
    the names of colleges             and universities       having characteristics
    which the student          believes       are important      in his selection      of a
    college     to attend.        The characteristics          in the system include
    curriculum,      tuition,       location,     and student      enrollment,

    BACKGROUND

             The College     Suggestor      was developed
                                                   e.IyI.       by Northwestern          Uni-
    versity,       Evanston,   Illinois,       du?Fr.ng the period        July 1965
    through      March 1969 and was financed              with funds provided           by
    the Office       of Education        under contracts       covering      two separate
    phases of its development.                        rst phase, which began
    July 1, 1965, dealt          with the development           of a prototype,          and
    the second phase, which began May 1, 1967, was for an evalua-
    tion of the prototype.               The amount of the contract             for the
    first     phase was $55,077 and for the second phase $48,053,                           To
    accomplish       the second phase, 300 College              Suggestors        were field
    tested     in five Chicago metropolitan               area high schools          to de-
    termine      the importance        of the characteristics           in the system
    and its effectiveness            as a means for information              retrieval.

            Early   in the 1960's,       Chronicle      Guidance Publications,          Inc.
     of Moravia,      New York, developed         an-d marketed      the ColAe,ge view-
    Deck which is a system that performs                 the same function         as the
     Coilege     Suggestor.     When Chronicle        learned     that the Office       of
     Education     was developing      the College       Suggestor,      it requested
c&your      predecessor,      Representative       Samuel Stratton,          on January    5,
'1966,        to inquire    into the matter.          Chronicle's       position    was
     that it could not compete and should not have to compete with a
                              ~~~a----



                                    50TH   ANNIVERSARY     1921-   1931
B-16403P(l)



Government agency and that there           was no need for     the Office
of Education   to conduct research         in an area that     Chronicle
had already  researched.  -----*-

        HEW informed  Representative    Stratton     that the College
Suggestor was being developed        to identify     and validate       the
factors     important in the college    selection      process--not       to
build a device to compete with Chronicle.              HEW also stated
that the information     obtained    in connection      with the develop-
ment of the College     Suggestor would be made available             to the
public    for use by any interested     party9    including      Chronicle.
         Early in 1971, Information    Resources Press, a division         of
Herner and Company, Washington,        D.C., published      an information
system also called      the College Suggestor which now competes
with the College View-Deck.         The following     item appeared in
the December 18, 1970, issue of "Higher           Education   and National
Affairs"      published by the American Council on Education:

      "A Washington-based       company has announced it has
      begun marketing      'the college    suggestor,'      a desk-
      top device tested by Northwestern          University     under
      a research    grant from the U.S. Office         of Educa-
      tion.    The company, Information       Resources Press, a
      division   of Herner and company, said the unit,              be-
      ing marketed for $40, 'is a refinement            of the
      orginal   Northwestern     version."

      On March    25, 1971,   during     a meeting with representatives
of our Office,     you expressed      concern that the competition          may
have arisen    from ideas which       your constituent    shared with       the
Qffice   of Education     and that Herner and Company may have            ob-
tained an unfair      advantage    during the development      of its     sys-
tem through assistance        from past or present      employees of      the
Office   of Education.       You questioned     whether the publication
of the College Suggestor by Herner and Company was an in-
fringement   of copyrights       which Chronicle     may have on the      Col-
lege View-Deck.
      Our examination      into the development      of the College    Sug-
gestor included     a review of the contracts        with Northwestern

                                       2
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University      and pertinent        files    of the Office of Education       ex-
cept for the contract          file      which the Office     of Education   could
not locate,      discussions       with HEW officials,        a review of the
records of the Copyright             Office    and the Patent Office,      a re-
view of applicable         laws and regulations,           and a study of the
characteristics       in each system.           We obtained    the backgrounds
of the officers       of Herner and Company from an independent
credit-rating       agency.       We also reviewed       the documentation     sup-
porting      HEW's statement        to you that "***no former or present
employee of the Office            of Education      had, or has, any connec-
tion with Herner and Company."

OFFICE OF EDUCATION'S INVOLVEMENT

       Your letter      of April   2, 1971, stated that your constit-
uent had met with representatives           of the Office    of Education
and had described        the College View-Deck in depth atid that
thereafter     the Office      of Education  contracted   with Northwest-
ern University       which, through the development       of the College
Suggestor,     provided     the means for competition.       The confer-
ence you referred         to was held in May 1964.

        Although      no documentation          was available    on the College
Suggestor's        origin,      information       in the project    officer's     file
indicated       that the development             of the College   Suggestor
started      at least as far back as December 1963.                  A letter
dated January 11, 1966, from your constituent                     to Represen-
tative     Stratton       stated that the Office          of Education       did not
become aware of Chronicle's                 College View-Deck until          the sys-
tem was exhibited            at a conference        in San Francisco       in March
1964.
      An Office   of Education      report dated June 12, 1964,
stated that the Office       of Education   was searching     for sources
early in 1964 to further        develop its College     Suggestor     and,
during this search,      learned of Chronicle's      system.      This re-
port by the Associate       Commissioner   for Educational      Research
and Development     to the Commissioner of Education         stated that
the Office of Education        considered  Chronicle    as a potential
developer   for the College Suggestor        but was of the belief
                                           3
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that (1) the College      View-Deck was too costly   and did                  not have
enough college    characteristics   and (2) an arrangement                    with a
commercial   concern was not desirable.

        In June 1964 the Office           of Education      made arrangements          to
have the Educational           Testing    Service    of Princeton,         New Jersey,
further     develop    the College      Suggestor     with funds available           un-
der the Cooperative          Research Act (20 U.S.C.          331).        Because
this act then provided            that only colleges,        universities,         and
State educational         agencies     were eligible      for Federal        funds for
educational      research,      the Office      of Education     advised       the Edu-
&YonaiTesting            Service     to find and work with a sponsoring
university.

        The Educational      Testing   Service     selected     Northwestern
University      to develop    the College     Suggestor.        On November 2,
1964, Northwestern        submitted    a proposal       and subsequently
became the prime contractor          for developing         the device.      North-
western     employed the Educational         Testing     Service    as a subcon-
tractor     for the first-phase      work at a cost of $27,333.              North-
western     did not subcontract      during     the second phase but
employed Educational         Testing   Service’s      project    director    as a
consultant,

        According    to an Office       of Education        official,      who was
formerly     project    officer    for the College          Suggestor      project,
the Northwestern        proposal     was the only one submitted                and was
treated     as an unsolicited        proposal      or one submitted          to the
Government       but not at the request          or initiation         of the pro-
curing    agency.      The project      officer     has told us that such
proposals      are funded only if merited            and that other sources
are not asked to submit proposals                to develop         the idea as
described      in an unsolicited        proposal     because the idea is the
property     of the originator.

        In our opinion,      Northwestern’s      proposal   should          have been
treated    as a solicited       proposal.     Documentation     in        the proj -
ect officer’s     file    clearly     shows that the idea for             Northwest-
ern’s proposal      was being developed        by the Office      of        Education
about a year before         Northwestern’s     involvement    and         that Office

                                           4
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of Education   officials   requested          the proposal   and furnished
guidance   to Northwestern    during        its preparation.

        Because the Office      of Education       requested  the proposal
and the Federal Procurement            Regulations     (41 CFR 1-3.101(d))
require    competition      for solicited      procurements   whenever pos-
sible,    we believe     that the Office of Education         should have
requested     more than one proposal         to ensure the benefit       of
full    and free competition.          The manner in which the contract
was handled does not, however , provide               a legal basis to chal-
lenge the right        of Herner and Company to publish          the College
Suggestor.

        We cannot comment on whether Federal              funds should have
been used to develop the College              Suggestor because adequate
details    on the project's     justification         were not in the proj-
ect officer's     file   and because the Office           of Education  was
unable to find the official           contract    file    which may have con-
tained the justification.

RELATIONSHIP BETWEEN OFFICE OF EDUCATION
AND HERNER AND COMPANY

        We have located     no evidence     that past or present         employ-
ees of the Office        of Education    assisted     or were in any way
involved     in the development       of Herner's     College     Suggestor.
Furthermore,      the Office     of Education     specified     from the be-
ginning    of its contracts       with Northwestern        that all informa-
tion developed       with Government funds would be made available
for public     use.     The Office    of Education      did not depart from
this policy,      even though urged to do so by Northwestern.

        Northwestern    furnished      the information     pertaining       to
both phases of the development             of the College Suggestor           to
the Office     of Education     which made the information            available
to the public       on January 27, 1967, and July 30, 1969, respec-
tively.      The information      included    data on the characteristics
of the colleges       in the College Suggestor         system.

     Herner and Company had a right  to, and apparently                   did,
use a portion of the data that Northwestern  developed.

                                        5
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Certain    aspects of Herner's     system, however, differ     from the
Northwestern-developed      College Suggestor.       For example, sev-
eral of the college    characteristics       in Werner's system are
not in Northwestern's      system.     Also Herner's    system includes
a larger    number of colleges     and universities     than Northwest-
ern's system.
        Another difference          between the two systems is their             de-
sign.      The Northwestern         system has one deck of 220
8-l/2"     x lo-3/4"     plastic     cards; whereas Herner's         system has
four decks, each containing              97 IBM-size      cardboard    cards.
These differences          tend to support the acknowledgement               in the
instructional        booklet     for Herner's      College    Suggestor    that
Herner's      system evolved out of but departs               in several     basic
aspects from the College Suggestor                 developed    for the Office
of Education       by Northwestern        University.

      Herner and Company may have an advantage            over others
who have used or may use the information           developed    by North-
western.    An inventor     from the Washington,      D.C., area was
employed by Northwestern        as a consultant    to assist    in North-
western's   development     of the College Suggestor.         An employee
from Herner and Company informed         the Office    of Education    in
March 1971 that the inventor        had also helped him and that he
and the inventor      were the only two persons who had worked on
developing   Herner's     system.

        Our review of the contract        and pertinent     laws and reg-
ulations    revealed   no provision     which would have prohibited
any member of Northwestern's        research     staff,   its subcontrac-
tor, or any of its consultants          from helping    a private      company
to commercially      develop a college      suggestor   either     before or
after    the time that the information        developed     with Federal
funds was released       to the public.      HEW's Office       of General
Counsel informed us that no such legal restrictions                 existed
and that,     in the absence of such restrictions,            the inventor
was free to help Herner and Company develop its College Sug-
gestor.

                                          6
B-164031(1)



COPYRIGHT INFRINGEMENT

        Copyright    infringement        is a legal matter        that should be
decided by the courts;           therefore,     we believe      that it would not
be appropriate       for us to state        an opinion      as to whether    the
marketing      of the College       Suggestor    infringed      on any copyright
that Chronicle       may have on the College            View-Deck.     The follow-
ing information,         however,    may be useful        to you and your con-
stituent.

        Chronicle      may not have adequate copyright                    protection.
It has registered          or is in the process              of registering          copy-
rights     on various      revisions      of the College          View-Deck,         but the
Copyright      Office     has no records         that the original             components
of the College         View-Deck      were registered.            An official         of the
Copyright      Office     has told us that a copyright                   on a revised
work applies        only to the revised            material.          Also,    under the
provisions       as set forth        in the United         States      Code (17 U.S.C.
13), no action         for copyright       infringement          will     be maintained
unless     copies     of the published        work are registered               in the
prescribed      manner.

        The courts   vary regarding        what constitutes      copyright
infringement.       Some courts     have held that a substantial                     copy-
ing must take place to result            in an infringement,          Other
courts    have ruled    that the copying       need not be word for                  word      .
but must be so similar        as to constitute        an unfair     use.             A
copyright     does not protect       the idea or the art described                     in
the copyrighted      material     but only the expression         of the             idea.
Anyone may develop        and write     about the same idea providing
he does not substantially          copy the copyrighted         material,




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       HEW, the Office   of Education,    and others     mentioned herein
have not been given an opportunity        to formally     comment on the
matters discussed     in this report.

                                    Sincerely   yours,




                                                    General
                                    of the United     States
CI
The Honorable  John H. Terry
House of Representatives