Government Contracts Brief – Week of March 9, 2020

Recovering Protest Costs At GAO When An Agency Takes Corrective Action

A protestor at GAO has two avenues of redress for recovering the costs of pursuing its protest when the agency decides to take corrective action. It may ask GAO to recommend the agency reimburse the costs and if the parties cannot reach an agreement on the amount of costs it may also ask GAO to recommend the amount of costs to be paid. There are strict deadlines and procedures for filing a request for recommendation of reimbursement as well as making a claim to the agency for the amount of costs and for filing a request for recommendation of the amount of costs with GAO.

Protesting A COC Decision At GAO

The SBA may issue a Certificate of Competency (COC) determining that a small business is a responsible contractor for purposes of obtaining and performing work for the government. FAR 19.602. A contracting officer refers a small business offeror to the SBA for a COC when he or she determines that the business will be the apparent successful offeror but lacks elements of responsibility. FAR 19.602-1. Should a small business fail to receive the award due to a COC denial and want to protest the decision, it should be careful about whether to move forward with the protest. GAO has repeatedly held that it will not review a challenge to an SBA COC decision unless the protestor can show bad faith or the SBA’s failure to consider vital information due to how the agency presented it to or withheld it from the SBA. If an unsuccessful offeror cannot meet this standard, then it is unlikely to prevail on a protest challenging the SBA’s decision not to issue a COC.

Disputes Over Markings

DoD has specific restrictive marking requirements outlined in DFARS for proprietary technical data or computer software delivered under a contract. If a contractor does not mark or marks incorrectly the data or software, then it may have a difficult time enforcing any protections. In the case of a mark that does not adhere to the regulations, a contracting officer may dispute the marking or its scope. DFARS does contain procedural mechanisms for handling disputes over markings, and appeals of a contracting officer’s final decision on the matter may be taken to the ASBCA or COFC. A contractor has one year to appeal a final decision on markings, during which time the agency must continue to honor the original marking.

 

Attorney Kristi Morgan AronicaOur government contracts briefs, reports, and articles are published by Attorney Kristi Morgan Aronica. She serves as counsel to government contractors and subcontractors throughout Texas and nationally.