Government contracts often include first article testing (FAT) requirements to ensure the contractor can supply a product that meets the contract requirements for acceptance. Such contracts incorporate the clause at FAR 52.209-3 (Contractor Testing) or FAR 52.209-4 (Government Testing) to impose FAT requirements on the contractor. Both clauses allow the government to waive the FAT requirements where the contractor has previously furnished supplies of identical or similar items that the government has accepted. An improper waiver of the FAT requirements that is inconsistent with the relevant FAR clause may be grounds for protest. In such protests, it is the procuring agency’s burden to establish that its decision to waive the FAT requirements was reasonable and in accordance with applicable procurement law and regulation. In addition to prior successful performance, if the agency can demonstrate that the contractor in question previously received FAT approval for the same items being procured, the Government Accountability Office (GAO) will typically not sustain the protest challenging the FAT waiver, unless the protester can present countervailing evidence that the item being supplied will not meet material solicitation requirements.

The government’s disclosure of proprietary information to third parties may form the basis of a pre-award protest when an agency improperly incorporates the information in a solicitation. To be successful in such pre-award protests, the protester must provide clear and convincing evidence that its proprietary rights were violated. The protester must demonstrate that the proprietary information was marked as such or that it was disclosed to the government in confidence. Additionally, the protester must show that the preparation of the information involved significant time and expense and that it contains material or concepts that cannot be independently obtained from publicly available literature or common knowledge. Protest adjudicative forums, such as the Government Accountability Office (GAO), will not sustain a protest based on improper disclosure of proprietary information unless the protester satisfies both elements. That is, such a protest will be denied if the protester fails to appropriately mark proprietary information in its submissions to the government, or if the information consists solely of ideas or concepts that are obvious and not innovative or unique.

In B-416685.6, a bid protest decision issued on May 4, 2020, the GAO denied a protest alleging that the government improperly disclosed proprietary information from an unsolicited proposal in a solicitation because the information was not innovative or unique. The protest involved certain systems on the Navy’s UC–35C aircraft, which were similar to systems on an older UC–12W aircraft. In 2010, after delivery of six UC–12Ws, the Navy had discovered that the aircraft's engines exceeded the maximum allowable Internal Turbine Temperature (ITT). The Navy leased expensive spare engines to keep the aircraft operational before developing an engine aural tone warning system in the 2011-2012 timeframe to resolve the ITT issue. The new warning system provided an audible tone to alert the aircrew when engine temperatures approached the allowable limits. As a direct result of the aural tone system, the Navy no longer needed the expensive spare engines to keep the UC-12W aircraft operational.

Procuring agencies must make an affirmative determination of contractor responsibility before awarding federal contracts. While a responsibility determination is necessary for all successful offerors, a non-responsibility determination that precludes a small business from receiving an award must be referred to the Small Business Administration (SBA). Specifically, SBA regulations require contracting officers (COs) to refer to the SBA for a Certificate of Competency (COC) determination, all small businesses deemed ineligible for award on a non-comparative basis under a responsibility-related factor, such as past performance or key personnel qualifications. In this regard, non-comparative responsibility factors are evaluated on a pass/fail, go/no-go, acceptable/non-acceptable or another similar basis. Once the referral is made, the SBA informs the small business of the non-responsibility determination and offers it the opportunity to apply for a COC. The SBA then typically reviews COC applications within 15 days. If an agency improperly fails to refer a small business for a COC determination, the small business may file a bid protest at the Government Accountability Office (GAO), alleging violation of the SBA’s COC procedures.