GAO Bid Protest Jurisdiction: No Intellectual Property Disputes

The GAO’s bid protest jurisdiction does not extend to complaints that a government agency has violated a company’s intellectual property rights.

According to a recent GAO bid protest decision, the GAO lacks jurisdiction over intellectual property matters, and affected companies must seek relief in the federal courts.

The GAO’s decision in Controlled FORCE, Inc., B-408853 (Sept. 18, 2013) involved a Navy solicitation for security guard services.  Controlled FORCE Inc. filed a pre-award bid protest, arguing that the Navy was violating Controlled FORCE’s intellectual property rights by incorporating the company’s “Mechanical Advantage Control Holds” program into the solicitation requirements and Navy guidance.

The GAO wrote that “we do not consider questions of intellectual property infringement under our bid protest jurisdiction.”  The GAO explained, “[a] patent or copyright holder’s remedy for any alleged government violation of its intellectual property rights, resulting from a government procurement, is a suit for money damages against the government before the Court of Federal Claims.”  The GAO also noted that under law, original jurisdiction over trademark disputes lies with the courts, not the GAO.

“Accordingly, our Office lacks jurisdiction to consider the issues raised in the protest,” the GAO wrote.  The GAO dismissed the protest.

Disputes between the government and contractors regarding intellectual property are not uncommon.  However, as the Controlled FORCE case demonstrates, when such disputes arise, the GAO may not be the place to seek relief.

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