ORDER REGARDING DOCUMENTS WITHHELD AS PROTECTED
BY THE DELIBERATIVE PROCESS PRIVILEGE:
February 8, 2022
CBCA 6597
ACTIVE CONSTRUCTION, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Terry R. Marston II of Marston Legal, PLLC, Kirkland, WA, counsel for Appellant.
Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration,
Department of Transportation, Vancouver, WA, counsel for Respondent.
LESTER, Board Judge.
ORDER1
By motion dated August 17, 2021, appellant, Active Construction, Inc. (ACI),
requested that the Board reconsider that portion of its panel decision dated August 9, 2021,
1 This order is being published to assist in providing greater transparency to the
public about the manner in which the Board has addressed issues in cases before it. 
Nevertheless, although single-judge orders like this one are binding in the appeals in which
they are issued, they are, consistent with Board Rule 1(d) (48 CFR 6101.1(d) (2020)), not
precedential in other appeals before the Board.

CBCA 6597 2
denying its motion to compel production of documents that the Federal Highway
Administration (FHWA) has withheld as protected by the deliberative process privilege.
Background
In its August 9 decision, the Board found that it lacked jurisdiction to entertain ACI’s
good faith and fair dealing breach claim.  Active Construction, Inc. v. Department of
Transportation, CBCA 6597, 21-1 BCA ¶ 37,905.  It also found that, because ACI had
agreed that the documents it was seeking to require the FHWA to produce all related to
funding decisions relevant only to that good faith and fair dealing breach claim, the
documents sought were irrelevant to any issue properly before the Board and, therefore, did
not need to be produced.  Id.  In its request for reconsideration, ACI does not challenge the
Board’s jurisdictional holding but argues that the Board misinterpreted its representations
about the nature of the documents that it was seeking.  It asserts that, although (in light of the
Board’s jurisdictional determination) it is no longer seeking funding records, its original
motion to compel encompassed broader categories of documents beyond those related to
funding, including, but not limited to, its request for equitable adjustment cost estimates,
FHWA emails considering those estimates, and documents reviewed by the FHWA
contracting officer in considering change requests.
Although we provided the FHWA an opportunity to respond to ACI’s request for
reconsideration, the FHWA filed no response.  Given its silence, we assume that the FHWA
agrees that we misinterpreted ACI’s prior representations about the nature of the documents
being sought.
In response to the request for reconsideration, we allowed ACI to select up to seventy
documents from the FHWA’s privilege log that it wanted the Board to review in camera.  We
also allowed the FHWA to select some additional documents from its log for in camera
submission to provide the Board with a more complete understanding of the nature of the
documents over which the FHWA had invoked the deliberative process privilege.  The
FHWA submitted these documents to the Board on December 29, 2021, and the presiding
judge has completed an in camera review of those documents.
Discussion
The Deliberative Process Privilege
The deliberative process privilege “rests on the obvious realization that officials will
not communicate candidly among themselves if each remark is a potential item of discovery
and front page news, and its object is to enhance ‘the quality of agency decisions’ by
protecting open and frank discussion among those who make them within the Government.” 

CBCA 6597 3
Department of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)
(quoting National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150
1975)).  Nevertheless, the “privilege should be construed narrowly in order to permit parties
seeking discovery to obtain sufficient information.”  First Heights Bank v. United States, 46
Fed. Cl. 827, 829-30 (2000).  The privilege only protects information from disclosure that
is “predecisional” (that is, generated before the agency adopts a policy or reaches a decision)
and “deliberative” in nature (that is, prepared to assist an agency decision-maker in arriving
at a decision through the give-and-take of the collaborative process).  Renegotiation Board
v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975); Judicial Watch, Inc. v.
Food & Drug Administration, 449 F.3d 141, 151 (D.C. Cir. 2006); Formaldehyde Institute
v. Department of Health & Human Services, 889 F.2d 1118, 1122 (D.C. Cir. 1989).  Such
information can include “recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.”  Coastal States Gas Corp. v. United States Department of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980).  Nevertheless, “post-decisional records fall outside the
deliberative process privilege if they follow a final decision and are designed to explain a
decision already made.”  Lahr v. National Transportation Safety Board, 569 F.3d 964, 981
(9th Cir. 2009).
Importantly for purposes of ACI’s motion, the deliberative process privilege is not
absolute.  Even if the privilege is properly invoked, an individual need for information as
evidence may outweigh any public interest in nondisclosure.  Redland Soccer Club, Inc. v.
Department of the Army, 55 F.3d 827, 854 (3d Cir. 1995).  To compel disclosure after a
proper invocation of the privilege, the claimant must make “a showing of necessity sufficient
to outweigh the adverse effects the production would engender.”  Carl Zeiss Stiftung v.
V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 328-29 (D.D.C. 1966), aff’d, 384 F.2d 979 (D.C. Cir.
1967).  The role of the Government in the litigation, however, may affect that balancing of
interests.  Redland Soccer, 55 F.3d at 854.  “Where the Government is a party litigant and
application of executive privilege may result in an unfair litigating advantage,” tribunals
“may be more inclined to find that the privilege must give way to the need.”  4K Global-ACC
Joint Venture v. Department of Labor, CBCA 6683, et al., slip op. at 12 (Feb. 10, 2021)
(quoting Ingalls Shipbuilding Division, Litton Systems, Inc., ASBCA 17717, 73-2 BCA
¶ 10,205); see Dairyland Power Cooperative v. United States, 77 Fed. Cl. 330, 342 (2007)
(If the Government is a party to and has a stake in the action, its privilege invocation “must
be carefully scrutinized.”).  The balance is more likely to weigh in favor of a contractor’s
need for protected documents if the Government takes a “litigation position” that implicates
the documents.  Pacific Gas & Electric Co. v. United States, 71 Fed. Cl. 205, 214 (2006).

CBCA 6597 4
The Board’s Privilege Determinations
Having reviewed the sampling of documents that the FHWA presented the Board for
in camera review, we believe that they can be divided into three categories:
First, a few of the documents that the FHWA has submitted for in camera review
relate to decisions that had already been made when the documents were created.  One
example is privilege log entry no. 112, which involves an email from one FHWA employee
forwarding to two other FHWA employees a unilateral contract modification (CM00039)
that the FHWA contracting officer had already executed as well as an internal memorandum
(already signed by the contracting officer as “Approved”) justifying the unilateral
modification.  Similar documents are at privilege log entry nos. 396, 404, 528, 539, 572, 718,
914, 1009, and 1024.  As discussed above, the deliberative process privilege only applies to
“predecisional” documents.  Renegotiation Board, 421 U.S. at 184.  Once a decision is made,
deliberations have ended, and, absent circumstances indicating that the decision is not
actually “final,” there is no longer a basis for applying a privilege that is designed to
encourage frank and open predecisional deliberations.  There is no basis for invoking the
deliberative process privilege over these post-decisional documents.
Second, the FHWA has asserted the privilege over documents that have no discernible
tie to a “decision” that the agency is deliberating.  That is, the FHWA has not identified any
“decision” that the FHWA was considering when these documents were created, and nothing
in these documents suggests that they in some way contributed to the deliberations of any
such “decision.”  An example is found in privilege log entry nos. 262 and 265, which are two
related emails in which one FHWA employee asks another FHWA employee to update a
work schedule, with an attachment that appears to be an “as planned” construction schedule
associated with a particular contract modification.  Other examples are privilege log entry
nos. 404, 485, and 699.  Any document to which the deliberative process privilege attaches
must relate to deliberations intended to lead to a decision.  The FHWA cannot invoke the
deliberative process privilege over routine messages transmitted within the agency.  See
Lahr, 569 F.3d at 981 (finding that the privilege does not protect “the routine collection of
data and analysis where the agency could point only to speculative or generalized purposes
for which the information would be used”).
Third, the FHWA has asserted the privilege over deliberations relating to the
administration of the very contract at issue in this appeal.  In fact, other than a single internal
FHWA email attaching a Value Engineering Change Proposal from an unrelated contract
(which may or may not have been forwarded for use in the administration of ACI’s contract),
every single document that the FHWA provided in the sample of documents that it submitted
to the Board for in camera review relates to contract administration matters under ACI’s
contract.  For example, privilege log entry no. 212 is an email to which is attached a price

CBCA 6597 5
negotiation memorandum in support of a proposed no-cost contract modification under
ACI’s contract.  The proposed modification is in response to ACI’s request for a contract
change to allow placement of pavement to a maximum lift thickness of three inches instead
of the two-and-a-half-inch lifts required by contract specifications.  Although there are a few
suggested edits in the email chain accompanying the memorandum, they are innocuous.  The
only “decision” that is being deliberated is a decision about whether and how to respond to
ACI’s contract change request.
For the reasons that we discussed in our February 10, 2021, decision in 4K Global-
ACC Joint Venture, only in unusual situations will an agency be able to preclude production
of documents relating to contract administration decisions, particularly those relating to
decisions about contract changes and modifications, under the guise of the deliberative
process privilege when defending against a contract action seeking damages for those same
contract administration activities, changes, and modifications:
These later considerations are directly relevant when the Government seeks to
withhold documents relating to deliberations regarding the administration of
the very contract at issue in the litigation.  Many years ago, the Armed
Services Board of Contract Appeals (ASBCA) in Ingalls Shipbuilding
analyzed the distinction between internal agency deliberations about policy
and legal matters, on the one hand, and internal deliberations about contract
administration matters, on the other.  The ASBCA recognized that concern
about full and frank exchanges of information “comes into play” where
“commentary or policy analysis is . . . involved” on matters of agency policy,
“as e.g. in suggestions for modification of [safety] standards.”  Id. (quoting
Ditlow v. Volpe, 362 F. Supp. 1321, 1327 (D.D.C. 1973)).  The same concern,
the ASBCA recognized, is not typically in play where individuals are
providing opinions to a contracting officer about matters of contract
administration on a particular government contract:
It may well be in a particular case, especially in connection with
contract disputes, that technical experts are providing to a
decision-maker (such as a contracting officer) factual input of
various kinds—e.g., engineering, audit, quality assurance.  Such
factual information could be characterized as opinion, in the
sense that any statement of fact is actually the opinion of the
person making the statement, and other persons may well hold
a contrary opinion.  Likewise, such factual information could be
characterized as advisory, in the sense that it is provided to
assist the decision-maker.  The “advisory opinions” that
executive privilege is designed to protect, however, contain

CBCA 6597 6
ideas and points of view on legal and policy matters, as
distinguished from factual matters.
Id.  “Factual investigations, such as evaluations of contract claims, that are
needed in the ordinary course of Government business, will not foreseeably
dry up because of the possibility of future disclosure.  If anything, the
knowledge of possible future disclosure would simply bring to bear a greater
incentive for the investigators to be fully accurate, which we view as a salutary
effect to be sought after, not avoided.”  Id.  Accordingly, the ASBCA held that
the deliberative process privilege was not applicable to the types of “opinion”
about factual matters that were presented to the contracting officer.  See also
Carl W. Olson & Sons Co., IBCA 930-9-71, 74-1 BCA ¶ 10,564 (citing Ingalls
Shipbuilding with approval); Robert E. McKee General Contractor, Inc.,
GSBCA 3697, 1973 WL 1973 (Oct. 16, 1973) (same).
4K Global, slip op. at 12-13.
In our review of the documents that the FHWA submitted for in camera review, we
did not identify a single document that we could consider privileged.  The documents, most
of which involve the development of pre-negotiation and price negotiation memoranda in
response to proposed contract changes, relate to routine contract administration matters that
would not normally be considered privileged.  Although an agency might “deliberate” before
reaching a “decision” on whether to approve a contract change request and on whether and
how to pay for it, those types of contract administration activities are not normally the type
of legal and policy deliberations that the deliberative process privilege is targeted as
protecting.  Ingalls Shipbuilding.  The privilege might technically cover these types of
deliberations, but the privilege has to fall, absent very good reasons to the contrary, in
response to a contractor’s appeal challenging the very contract administration matters that
the agency contracting office was deciding.
Further, “[t]o test whether disclosure of a document is likely to adversely affect the
purposes of the privilege, courts ask themselves whether the document is so candid or
personal in nature that public disclosure is likely in the future to stifle honest and frank
communication within the agency.”  Coastal States Gas, 617 F.2d at 866.  Having reviewed
the sampling of documents that the FHWA submitted for in camera review, we cannot find
in them the types of candid and personal disclosures that the deliberative process privilege
encourages, which is not surprising given that they relate to matters of normal contract
administration.  The conclusory assertions set forth in a declaration in support of the
FHWA’s invocation of the privilege that employees would be less willing to disclose agency
negotiation goals in writing if they knew that their goals might be discoverable in a
subsequent contract dispute merely parrot language from court decisions about the

CBCA 6597 7
deliberative process privilege and do not provide any realistic evidence or examples of why
that would be.  The FHWA has identified no good reasons justifying its need to keep these
contract administration deliberations out of the normal discovery process.
Of the documents that the FHWA submitted for in camera review, we direct that the
FHWA produce all of them to ACI, other than any documents that solely address FHWA
funding requests and funding issues.  As the Board held in its August 9, 2021, decision,
documents relating to funding requests and funding issues are not relevant to the matters
properly before the Board.  A requesting party cannot, as a matter of law, demonstrate “need”
sufficient to overcome a deliberative process assertion in the absence of relevance.  United
States v. Farley, 11 F.3d 1385, 1390 (7th Cir. 1993).  In any event, the FHWA, as we held
in our August 9 decision, need not produce such documents.
Because we have determined that the sample of documents submitted to the Board
should be produced (except for irrelevant funding documents), we need not resolve ACI’s
challenge to the sufficiency of the declaration from the FHWA agency official invoking the
deliberative process privilege.
Decision
ACI’s request for reconsideration is GRANTED IN PART.  No later than
February 18, 2022, the FHWA shall produce to ACI the documents that it provided to the
Board for in camera review, except that it may withhold from production any documents that
it believes relate solely to funding issues.
The FHWA and ACI shall confer to determine whether they can resolve their dispute
as to the remaining documents identified in the FHWA’s privilege log as subject to the
deliberative process privilege and report to the Board no later than February 18, 2022, on
the extent to which further proceedings relating to ACI’s motion to compel will be necessary.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge