Government Contracts Monitor

The Wrong Forum: GAO Doesn\'t Consider Intellectual Property Infringement

September 23, 2013

By: Eric Whytsell

In a recent case, the Government Accountability Office (GAO) considered – and quickly dismissed – a protest of RFP terms alleging that they infringed the protester’s intellectual property rights. Controlled FORCE, Inc. B-408853 (Comp. Gen. Sept. 18, 2013) involved a Navy RFP for security guard services at Navy installations. Protester argued that the Navy “is violating intellectual property laws by incorporating the protester’s Mechanical Advantage Control Holds program into the solicitation requirements and Navy guidance.”

Even though the brief opinion does not delve into the details of the alleged infringement, it is easy to imagine scenarios in which a prospective offeror believes that the government has improperly distributed its IP as part of the RFP. Similarly, it takes no great effort to understand the impulse such an offeror would have to protest the RFP terms in an effort to prevent further infringement.

But no matter how valid your infringement claim might be, the GAO is not the place to pursue it.

As the decision notes, “[GAO does] not consider questions of intellectual property infringement under [its] bid protest jurisdiction.” Instead, a patent or copyright holder’s remedy for IP infringement resulting from government action is a suit for money damages before the Court of Federal Claims. And United States district courts have jurisdiction over trademark disputes.

Bottom line: If you want to pursue a claim against the government, make sure to choose the right forum.

Eric Whytsell is the attorney responsible for the content of this article.

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