GAO Fends Off ‘Killer Tomato’ Protest

I always knew my legal career would some day overlap with my love of terrible movies, before-they-were-stars trivia, and naval warfare. Today is that day.

When I saw that GAO had dismissed a “killer tomato” protest, several things came to mind. First, I thought, wait, are they talking about “Attack of the Killer Tomatoes“? Then I though, wait, wasn’t George Clooney in that—and didn’t he have a terrible 80’s mullet? Naturally, my curiosity got the best of me. I clicked.

The protest in question was filed by Geodata Systems Management, Inc., an Ohio company that makes floating naval gunnery target balloons called “Killer Tomatoes.” These things are apparently giant, bright colored floats that the Navy will dump in the ocean and use for target practice. There are a bunch of videos on YouTube of gun boats teeing off on these things.

Apparently, they are made by one of two companies: Geodata or American Pacific Plastics Fabricators, Inc., who have been arguing over which business owns the Killer Tomato trademark.

In the protest, Geodata said that it is the only company that can provide Killer Tomatoes and that the solicitation improperly permitted offerors to procure the floating inflatable targets from its competitor. Geodata said that it, and it alone, is the only company authorized to manufacture the Killer Tomato product.

GAO dismissed the protest for two reasons: First, it was late—by two hours and twenty-five minutes. Second, GAO said that an allegation that a solicitation is not restrictive enough of competition is not an adequate basis of protest. In general, the government prefers competition.

The timeliness issue is, in my opinion, the attention grabber here. Normally, a GAO protest is timely if filed on the day it is due before 5:30 p.m. Eastern. Geodata’s protest was filed at 5:25 p.m. So what gives?

Well, when a protest challenges the terms of a solicitation, it must be filed before the bid opening or “the time set for receipt of initial proposals.” 4 C.F.R. § 21.2(a)(1). The agency here had set the time for the receipt of quotations at 3 p.m. So, although Geodata filed its protest on the correct day, before the customary cutoff time, it was still two hours and 25 minutes late.

As this case shows, in matters of timeliness GAO does not consider close to be “good enough.” The takeaway for potential pre-award protesters is to always check when proposals are due as that may affect the bid protest timeline.

Now, back to the tomatoes. Before dismissing the protest, the GAO attorney got the pleasure of dropping an all-time footnote (cleaned up). Enjoy:

The protester claims that its part number is a product that [it] refers to as the “killer tomato.” Geodata maintains that it holds an exclusive trademark for that name, along with several other product names, including “killer kiwi,” “killer lemon,” “killer orange,” “killer banana,” “target x-ray,” and “bogie blimp.” In contrast, [American Pacific Plastics Fabricators] maintains that the question of whether or not Geodata has exclusive trademark rights to the name “killer tomato” was the subject of recent litigation in U.S. district court. According to [American Pacific Plastics Fabricators] this litigation ended in a settlement agreement that effectively permits both parties to use the trade name “killer tomato” and precludes either party from claiming exclusivity to the trade name “killer tomato.” (The intervenor represents that the name “killer tomato” derives from what it describes as a 1978 B-grade science fiction movie called “Attack of the Killer Tomatoes.”)

So, there you have it. George Clooney, by the way, is not in “Attack of the Killer Tomatoes.” I was thinking of the sequel “Return of the Killer Tomatoes.” The mullet, however, was real.