In Marathon Targets, Inc. v. United States, U.S. Court of Federal Claims, No. 25-121 (March 13, 2025, reissued March 24, 2025), Marathon Targets sought to block a U.S. Marine Corps contract awarded to MVP Robotics for Trackless Mobile Infantry Targets after the Marine Corps disqualified Marathon from the competition. The disqualification stemmed from the Marine Corps’ inadvertent disclosure of MVP’s technical evaluation, which included proprietary and source selection information. Instead of immediately segregating or disclaiming use of the information, Marathon retained, reviewed and referenced it in its draft protest, shared it internally (including with non-attorneys), and made statements suggesting it could not “unring the bell.” The Marine Corps ultimately found that this created an unmitigable organizational conflict of interest and an appearance of impropriety, leading to disqualification. Marathon challenged that decision and sought a preliminary injunction to halt MVP’s performance and reinstate itself in the competition.
The Decision
The COFC denied the protester’s motion for preliminary injunction, ruling that:
- Disqualification Was Reasonable: The Court held that the Marine Corps acted within its discretion to disqualify Marathon based on the appearance of impropriety, concluding that Marathon’s conduct—particularly its retention and use of protected source selection information—undermined procurement integrity.
- Marathon’s Conduct Raised Red Flags: The Court noted Marathon’s misrepresentation about when and how it learned the identity of MVP’s subcontractor, its distribution of protected materials to non-attorneys, and its attempt to leverage the information in a protest as reasons that justified exclusion.
- No Due Process Violation: Despite receiving only four hours to respond to a final agency communication before disqualification, the Court found that Marathon had weeks of prior notice, had communicated extensively with agency counsel, and had ample opportunity to respond meaningfully.
- Public Interest and Government Harm Tipped the Balance: The Court emphasized the national security implications of disrupting Marine Corps training and found that a preliminary injunction would risk mission delays, training gaps and fragmented contract execution.
Key Takeaways for Contractors
- Treat Inadvertent Disclosures Seriously: If you receive protected information—even unintentionally—you must immediately disclose, delete and avoid any use or distribution. Relying on that information in a protest may lead to disqualification.
- Appearance Matters: GAO and COFC both recognize that even the appearance of impropriety or unfair advantage can justify disqualification, even without proof of bad intent.
- Communicate Carefully: Proposing “equitable workarounds” or hinting at legal leverage over sensitive material can be viewed as undermining integrity.
- Injunctions Require More than Harm: Even if you suffer business loss, you won’t get preliminary relief unless you show likely success on the merits and a strong public interest case.
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