### BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. .:-1 )**~** 

## J:**L~** 

### 3
In the matter ofthe cancellation of**the~** 

### Air Taxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.

MOTION OF VIH COUGAR HELICOPTERS, INC. OBJECTING TO THE PUBLIC RELEASE OF CONFIDENTIAL INFORMATION AND THE RELEASE OF SUCH INFORMATION TO COUNSEL AND OUTSIDE EXPERTS OF INTERESTED PARTIES PURSUANT TO THE TERMS PROPOSED IN THE MARCH 12, 2012 SHOW CAUSE ORDER Communications with respect to this document should be sent to:

David M. Nadler David Y. 

### Yang Andrew E. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com Counsel to VIH Cougar Helicopters, Inc.
Dated: March 16, 2012

DSMDB-3040548vl

### BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

In the matter ofthe cancellation ofthe Air Taxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.

MOTION OF VIH COUGAR HELICOPTERS, INC. OBJECTING TO THE PUBLIC RELEASE OF CONFIDENTIAL INFORMATION AND THE RELEASE OF SUCH INFORMATION TO COUNSEL AND OUTSIDE EXPERTS FOR INTERESTED PARTIES PURSUANT TO THE TERMS PROPOSED IN THE MARCH 12, 2012 SHOW CAUSE ORDER
Pursuant to Rule 12 ofthe Rules ofPractice (14 C.P.R. 

### § 302.12) for the Department of Transportation ("Department"), VIH Cougar Helicopters, Inc. ("VIH Cougar") submits this motion objecting to: (1) the public release ofthe confidential commercial and private personal information that was furnished to the Department solely for its review in connection with the above-captioned proceedings; 1 

### and (2) the release ofsuch information to counsel and outside experts for any interested party to these proceedings pursuant to the terms and conditions presently proposed in the Department's March 12, 2012 Order to Show Cause ("Order"). To avoid immediate and irreparable harm, VIH Cougar respectfully requests that the Department stay all new affidavit applications and the release ofany VIH Cougar

1An 

### index ofthese documents, prepared in accordance with 14 C.P.R.§ 302.12(d)(l)(i), is attached as Exhibit A (the "Exhibit A Documents"), and is supported by the Declaration of William T. Steeper ("Steeper Declaration"), which is attached as Exhibit B. Although the Department already has copies ofthe Exhibit A Documents, and VIH Cougar has cross-referenced the materials in Exhibit

## A, for the Department's convenience, we will be providing a courtesy copy ofthe Exhibit A Documents next week on a CD-ROM disc.

DSMDB-3040548vl

### information pending the Department's decision on this motion. VIH Cougar requests expedited consideration ofthis motion. As discussed below, the documents at issue contain confidential proprietary and personal private information that is exempt from public disclosure under Exemption 4 ofthe Freedom of Information Act ("FOIA"), 5 U.S.C. § 

### 552(b)(4) and, therefore, is also prohibited from public release under the Trade Secrets Act, 18 U.S.C. § 1905. In addition, the terms and conditions presently proposed by the Department for releasing confidential information to counsel and outside experts for any interested parties to these proceedings are insufficient for safeguarding VIH Cougar's interests, because the procedures fall short ofwidely-accepted federal standards (such as those required by bid protest protective orders issued by the U.S. Government Accountability Office ("GAO")) for protecting business-sensitive information in similar contexts. Accordingly, anyTelease ofconfidential information to counsel and outside experts should occur only subject to processes and safeguards that require at least the same rigor as found under GAO bid protest protective orders. A copy ofa GAO protective order is enclosed in the Guide to GAO Protective Orders (June 2009) ("GAO Guide") at 19-22, attached as Exhibit C hereto. 

### I. FACTUAL BACKGROUND On April 24, 2008, the Department issued a letter to VIH Aviation Group ("VIHAG"), a Canadian company, which owns a minority interest in VIH Cougar, a U.S. air carrier, and wholly-owns Cougar Helicopters, Inc. ("Cougar"), a Canadian air carrier. The letter asserted various allegations concerning VIH Cougar's and Cougar's air service operations in the United States. As a result, the Department indicated that it was initiating an investigation into these matters. The letter also requested detailed information from VIHAG regarding certain air services provided by Cougar, VIH Cougar, and other alleged affiliates. In response to the 2 DSMDB-3040548vl

### Department's request, on June 20, 2008, VIHAG submitted a 14-page response, attaching Exhibits 1-20 ("Supplement 1"), which contained confidential and proprietary information, and noted that the submission, in its entirety, was exempt from disclosure under FOIA and all applicable disclosure statutes and regulations. VIHAG also provided the Department with a 5-page supplement on November 6, 2008 ("Supplement 2") that also contained confidential information and was marked FOIA exempt. In a follow-up to its April 24, 2008 letter, on July 10, 2009, the Department requested from VIH Cougar certain additional information. In response to that request, on August 10, 2009, VIH Cougar provided the Department with a 17-page response, attaching Exhibits 1-16 ("Supplement 3") that contained confidential information. As with the previous submissions, this submission was designated FOIA exempt. A year later, on July 9, 2010, the Department requested yet more information from VIH Cougar. VIH Cougar filed a 15-page submission on September 30,2010, attaching Exhibits 1-27 ("Supplement 4") subject to Trade Secrets Act protection and a 4-page supplement on November 17, 2011 ("Supplement 5"), both ofwhich contained additional confidential company information and stated that the materials were exempt from disclosure under FOIA. In short, all ofthe submissions that have been provided in response to the Department's requests since June 2008 have stated that the contents are confidential, proprietary, and cannot be disclosed under FOIA, the Trade Secrets Act, and any other applicable disclosure laws to any third parties. On March 12, 20 12, the Department served on VIH Cougar an Order to Show Cause regarding why the Department should not make final its tentative determination that VIH Cougar is under the defacto control ofMr. Kenneth Norie, a Canadian citizen. The Department asserted that its tentative finding was based on the "totality ofthe circumstances" ofthe relationship

3 DSMDB-3040548vI

### between VIH Cougar and Mr. Norie and/or his wholly-owned companies. Accordingly, the Department has asserted that VIH Cougar is not a U.S. citizen as defined in 49 U.S.C. 

### § 40102(a)(l5), and has proposed to revoke VIH Cougar's exemption authority as an air taxi operator pursuant to 49 U.S.C. 

### §40109(£) and 14 CFR Part 298. In issuing its tentative conclusion, the Department stated: VIH Cougar has requested that it be afforded the opportunity to request confidential treatment for the information it has provided in the course ofthe Department's review prior to public disclosure ofthis information. To afford interested parties prompt access to the confidential documents, we will grant immediate interim access to all documents provided by VIH Cougar to counsel and outside experts for interested parties who file appropriate affidavits with the Department in advance until such time that we have received and ruled on a motion to withhold information from public disclosure. Order to Show Cause, Docket No. DOT-OST.;2012-0022, at 8 (Mar. 12, 2012). The Department noted that it would allow counsel and outside experts for any interested pmiy, which is not defined, to go to the Depmiment's Dockets location to examine and make copies ofall previously submitted confidential documents, provided that they file an "appropriate affidavit" with the Department and present a stamped copy ofthe affidavit before examining the documents. 

### !d. at 9. The Department also stated that it would grant interim access to any subsequently filed materials that were submitted under a Rule 12 motion to counsel and outside experts for interested parties who filed "appropriate affidavits." 

### !d. The Department noted that

an "appropriate affidavit" only requires that the affiants state that they: 

### (I) are counsel for an interested party or an outside independent expert providing services to such a party; (2) will use the information only for the purpose ofparticipating in the above-captioned proceeding; and (3) will disclose such information only to otherpersons who have filed a valid affidavit in these proceedings. 

### !d. There is 

### no distinction in this affidavit process between inside or outside
4 DSMDB-3040548vl

### counsel, and there are no 

### requirements for qualifying outside experts. Similarly, there is no 

### restriction on affiants from engaging in competitive decision making on behalfofthe party they represent or on behalfofany actual or potential competitors ofVIH Cougar, nor are affiants required to explain what safeguards 

### (ifany) will be employed to ensure that protected information will not be shared, either advertently or inadvertently, with individuals who are engaged in competitive decision making. Finally, there are no 

### enforcement or oversight mechanisms for addressing unauthorized disclosures ofprotected information. 

### II. ARGUMENT A. VIH COUGAR'S CONFIDENTIAL INFORMATION IS PROTECTED FROM PUBLIC DISCLOSURE BY THE FREEDOM OF INFORMATION ACT AND THE TRADE SECRETS ACT 1. 

### Legal Standards Exemption 4 ofFOIA protects all matters that are "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. 

### § 552(b)( 4). Exemption 4 is intended to encou.rage cooperation with the Government while "protect[ing] persons who submit financial or commercial data to government agencies from the competitive disadvantages which would result from its publication." 

### Nat'!Parks & 

### ConservationAss 'n v. Morton, 498 F.2d 765, 768 (D.n Cir. 1974); 

### see also, Burke Energy Corp.


### v. DOE, 583 F.Supp. 507, 510 (D. Kan. 1984)(noting that the FOIA exemptions "protect the confidentiality ofinformation which citizens provide to their government, but which would customarily not be released to the public, and to facilitate citizens' ability to confide in their government."). To fall within the purview ofExemption 4, information must be: (1) 

### commercial or financial in nature;2 

### (2) obtained from a person or by the Government; and

2 

### The terms "commercial or financial" are given their ordinary meanings. 

### See Pub. Citizen Health Research Group, 704 F.2d 1280, 1290 (D.C. Cir. 1983). 5 DSMDB-3040548vl

### (3) confidential or privileged. 

### See e.g., Watkins v. US. Bureau of Customs andBorder, 643 F.3d 1189, 1194 (9th Cir. 2011); 

### see also, Public Citizen Health Research Group, 704 F.2d at 1290 (D.C. Cir. 1983). Information is deemed "confidential" under Exemption 4 ifit would not customarily be released to the public by the person from whom it was obtained, and ifits release may "cause substantial harm to the competitive position ofthe person from whom the information was obtained." 

### Nat 'I Parks & 

### ConservationAss 'n, 498 F.2d at 770. Under this rubric, the moving party need not show that the release ofinformation would cause any actual competitive harm, but just that there is "actual competition" and a "likelihood ofsubstantial competitive injury" from the disclosure. 

### Public Citizen Health Research Group, 704 F.2d at 1291 (citations omitted). In addition, the Trade Secrets Act, 18 U.S.C. § 

### 1905, prohibits Government personnel from disclosing confidential information unless disclosure would be allowed under FOIA Exemption 4. 

### See Canadian Commercial Corp. v. Dept. of AirForce, 514 F.3d 37, 39 (D.C. Cir. 2008) (citing 

### CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987)). As courts have explained, "unless another statute or regulation authorizes disclosure ofthe information, the Trade Secrets Act requires each agency to withhold any information it may withpold under Exemption 4 ofthe FOIA."3 

### !d. Accordingly, the Trade Secrets Act is coterminous with Exemption 4 ofFOIA.

3 

### Ifan agency makes a public disclosure ofconfidential trade secrets and/or commercial or financial information (or is about to make a public disclosure ofsuch information under a FOIA request), the person whose confidential information is disclosed (or is about to be disclosed) may file a "reverse-FOIA action" and seek to enjoin the Government from violating the Trade Secrets Act. 

### See Canadian Commercial C01p., 514 F.3d at 39-40 (citations omitted). 6 DSMDB-3040548vl

### 2. The Confidential Documents Identified in Exhibit A Are Entitled to Protection under FOIA Exemption 4 and Thus the Department May Not Release Them to the General Public Here, each ofthe Exhibit A Documents satisfies the requirements ofFOIA Exemption 4 and, thus, they are prohibited from public disclosure under the Trade Secrets Act. First, the documents are ofa commercial or financial nature, and relate to VIH Cougar's business operations, structure, and arrangements. Steeper**Declaration~~** 

### 4, 6. They include commercially-sensitive, proprietary, and financial and corporate information, as well as private personal information, that would not otherwise be made public, and there is no need for the public to have access to such information. Steeper**Declaration~~** 

### 4, 6-8. They were provided to the Department only to facilitate the Government's review ofunfounded allegations that have been brought by competitors regarding VIH Cougar's lawful air carriage operations in the United States.4

### Second, the information provided to the Department has been obtained from a person or by the Government within the meaning required for Exemption 4, as the materials were provided by to the Department in each ofthe confidential submissions. Third, the information at issue is confidential. The information is not generally known or publicly available, and it would not customarily be released to the public. Steeper Declaration**~~** 

### 4, 6-8. Further, its release is likely to result in substantial competitive harm to VIH Cougar, given the highly-competitive industry within which VIH Cougar operates and the fact that the company is in "actual competition" with numerous competitors who likely will use the information to gain a competitive advantage over VIH Cougar or to disparage or undermine VIH

4 

### To date, no final determination or order has been made establishing that VIH Cougar has violated any law or statute and the procedural process is still on-going. VIH Cougar intends to object to the Department's March 12, 2012 Order To Show Cause and understands that the Department will give full consideration to that submission before any final order is issued. 

### 7 DSMDB-3040548vl

### Cougar with respect to current and prospective business opportunities. Steeper**Declaration~** 

### 8. Indeed, such tactics have already been deployed. For example, VIH Cougar recently learned that

a competitor provided one ofVIH Cougar's customers with a copy ofthe March 12,2012 Order to Show Cause,just

### two days after it was issued by the Department, with the obvious purpose of undermining VIH Cougar's business relationship with the customer. Despite the fact that: (1) no final decision has been made; (2) the Order references VIH Cougar's confidential employment relationships, management and technical personnel, business practices, contractual relationships and agreements, assets, day-to-day operations, partnerships and other proprietary information; and (3) the Department has afforded VIH Cougar an opportunity to object to the release ofthis information and, thus, in the interim has only published a summary ofthe Order in the Federal Register, an 

### unredactedcopy ofthe full Order was obtained by a competitor and provided to at least one ofVIH Cougar's customers. The Department's failure to adequately safeguard VIH Cougar's confidential information and prevent such disclosures is prejudicial and undermines the integrity ofthese proceedings.5 

### Accordingly, because the Exhibit A Documents contain confidential, proprietary, and non-public personal private information, they are exempt from public disclosure under Exemption 4 ofFOIA, and by extension, under the Trade Secrets Act.

5 

### Indeed, the Department's issuance ofonly an unredacted version ofits Show Cause Order is contrary to the agency's past practice. For example, when the Department issued an Order to Show Cause to Virgin America, Inc. ("Virgin America") relating to a similar situation, it issued the order in two versions, a public version, with the discussion ofconfidential material redacted and a confidential version that included all such discussion. 

### See Order to Show Cause, Docket No. OST-2005-23307, at 1, fn.l (Dec. 27, 2006). The confidential version was available only to the various parties that filed appropriate affidavits. 

### ld. 8 DSMDB-3040548vl

### 3. The Release ofVIH Cougar's Confidential Information to Counsel and Outside Experts ofInterested Parties to these Proceedings Pursuant to the Terms and Conditions Presently SetForth in the Department's March 12, 2012 Show Cause Order Will Not Adequately Safeguard VIH Cougar's Business Interests In its March 12, 2012 Order to Show Cause, the Department stated that it would grant immediate interim access to all documents provided by VIH Cougar to counsel and outside experts for any interested party that filed appropriate affidavits with the Depmiment. 

### See Order to Show Cause, Docket No. DOT-OST-2012-0022, at 8-9 (March 12, 2012). According to the Order, an "appropriate affidavit" need only to state that: (1) "the affiant is counsel for an interested party or an outside independent expert providing services to such a pmiy," (2) "the affiant will use the information only for the purpose ofpmiicipating in this proceeding" and (3) "the affiant will disclose such information only to otherpersons who have filed a valid affidavit in Do9ket DOT-OST-2012-022." 

### !d. The Order further stated that affidavits must be filed with the Department and presented before examining confidential information. 

### !d. These criteria are patently insufficient to protect VIH Cougar's confidential information because they fall short ofthe Federal standards that have been deemed acceptable for safeguarding confidential and competitively-valuable business information in similar contexts. For example, in bid protests brought before GAO under the Competition in Contracting Act of 1984, 31 U.S.C. 

### § 3553(b)(2), and GAO's Bid Protest Regulations, 4 C.F.R. 

### § 21 

### etseq., an agency is required to provide with its report on the protest all relevant documents to GAO and interested parties. 

### See GAO Guide at 2. Often these documents contain a company's business data, such as the documents that have been submitted to the Department in connection with these proceedings, that are not publicly available and are proprietary. 

### !d. In order to accommodate interested parties who may wish participate in the protest, GAO issues a protective order strictly limiting access to all such protected information to attorneys, or experts retained by attorneys, so 9 DSMDB-3040548vl

### long as they meet certain requirements that are far more stringent than the terms that have been proposed by the Department here. See 

### 31 U.S.C. 

### § 3553(f)(2); 4 C.F.R. § 21.4. For example, GAO protective orders strictly control the number ofcopies ofprotected information that can be made, as to minimize the potential ofinadvertent disclosure.6 

### GAO Guide at 3. They also require individuals admitted under the protective order to take "all precautions necessary" 7 

### to prevent disclosure ofprotected material. !d. at 3, 21. Significantly, GAO practice distinguishes between inside and outside counsel, requiring that inside counsel, in addition to the requirements for outside counsel, must also agree keep protected materials under lock and key in their offices or agree to store and review the information at only home, and further agree not to transmit any protected information over company-wide email systems or networks in order to prevent other employees from advertently or inadvetiently accessing protected materials. More importantly, all applicants to a GAO protective order must submit an application8 

### and establish that they have read the protective order issued by GAO, will comply in all respects with the terms and conditions, and are not involved in competitive decision-making as defined in

6 

### Each patiy admitted under a protective order is entitled to receive up to three copies of protected material (including the original and electronic copies), and is not permitted to further duplicate that material except as is incidental to its incorporation into a submission to GAO, or as otherwise agreed to by the parties with GAO's concurrence. GAO Guide at 3. 7 

### Individuals admitted under the protective order must physically and electronically secure and safeguard access to confidential information, and take precautions when sending and receiving protected material to only use physical and electronic methods under the control ofindividuals authorized by the protective order or that otherwise restrict access to protected material to individuals authorized by the protective order. !d. at 3-4. 8 

### GAO requires in-house counsel, outside counsel, and experts/consultants to submit separate applications with GAO which contain individualized restrictions that prevent the harmful disclosure ofconfidential information or the inadvertent accessing ofprotected materials. !d. at 6, 36-44. 10 DSMDB-3040548vl

### US. Steel Corp. v. UnitedStates, 730 F.2d 1465 (Fed. Cir. I984). 9 

### GAO Guide at 6-7. These requirements take on added significance with respect to outside expert applicants, because not only are they prohibited from engaging in competitive decision making for the interested party
on whose behalfthey are representing, they are prohibited from competitive decision making for all other actual or potential competitors. Jd. 

### at 42-44. In addition, outside experts or consultants seeking admission to a GAO protective order must be prepared to submit a client list, and may also have to agree to certain future employment restrictions as a condition ofreceiving access to protected material. 

### !d. at 7. These requirements further ensure that all proposed experts are qualified and are truly outside experts, as opposed to employees or other affiliated persons who are masquerading as such and who may be more likely to disclose protected information to competitive decision makers because they are really insiders. Jd. 

### at 11-12, 42-44 (noting that consultants are required to submit a resume, client list and work performed during the last 2 years prior to the date of application, and other relevant information). Finally, all applicants are required to provide a mailing address, direct dial telephone number, facsimile number and email address to which protected material may be sent in accordance with the terms ofthe protective order. !d. at 

### 7. Equally important to the terms and conditions for admission to a GAO protective order
are the means for a party to object to an application for admission under the order. 

### See 4 C.F.R. 

### §21 .4(c). In reviewing objections, GAO considers and balances a variety offactors, including the nature and sensitivity ofthe material to be protected, the attorney's need for confidential

9 

### "Competitive decisionmaking" is described as: "[A] counsel's activities, associations, and relationship with a client that are such as to involve counsel's advice and participation in any or all ofthe client's decisions (pricing, product design, etc.) made in light ofsimilar or corresponding information about a competitor." 

### US. Steel Corp., 730 F.2d at 1468 n.3; 

### see also, Brown BagSoftware v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992); 

### Matsushita Elec. Indus. Co., Ltd v. UnitedStates, 929 F.2d 1577 (Fed. Cir. 1991). 11 DSMDB-3040548vl

### information sought in order to adequately prepare the party's case, and whether there is opposition to an applicant expressing legitimate concerns that the individual's admission would pose an unacceptable risk ofinadvertent disclosure. 10 

### See McDonnell Douglas Corp., B259694.2, B-259694.3, June 16, 1995, 95-2 CPD**~51.** 

### Finally, GAO issues a written notice identifying all individuals who are admitted under the protective order and who are, thus, entitled to access to protected material, which allows the parties to monitor the dissemination and use ofprotected information. GAO Guide at 8. Finally,
a violation ofa GAO protective order carries the risk ofsevere sanctions, including but not limited to, dismissal ofthe protest, referral ofthe violation to the appropriate bar associations and other disciplinary bodies, and restricting the individual's practice before GAO. 

### !d. at 14. The GAO process ensures that the individuals under the protective order will not misappropriate

or misuse confidential information, that a competitor will not gain a competitive advantage from

access to protected information, and that there will be no significant risk ofinadvertent disclosure ofprotected information. 

### See 4 C.F.R. § 24.4(c). By contrast, the procedures presently proposed by the Department for access to 

### VIH Cougar's confidential information has 

### none ofthese protections. For example, under the Department's proposed terms, 

### VIH Cougar will not know: (I) 

### who has requested access to confidential information; (2) who has gained access to confidential information; (3) howmany
10 

### Other factors that are taken into account include whether counsel advises on business decisions decisions, the degree ofphysical separation and security with respect to those who participate in competitive decision-making, and the degree and level ofsupervision. 

### See, Robbins-Gioia, Inc., B-274318 et al., Dec. 4, 1996, 96-2 CPD**~** 

### 222; 

### McDonnell Douglas Corp., B-259694.2, B259694.3, June 16, 1995, 95-2 CPD**~51;** 

### US. Sprint Communications Co. Ltd Partnership, B243767, Aug. 27, 1991, 91-2 CPD**~** 

### 201; 

### Earle Palmer Brown Cos., Inc., B-243544, B243544.2, Aug. 7, 1991, 91-2 CPD**~** 

### 134; 

### Dataproducts New England, Inc., et al., B-246149.3 et al., Feb. 26, 1992, 92-1 CPD**~** 

### 231; 

### Bendix FieldEng'g Corp., B-246236, Feb. 25, 1992,92-1 CPD**~** 

### 227;

### Atlantic Research Corp., B-247650, June 26, 1992, 92-1 CPD**~** 

### 543; 

### SRI!nt'l, Inc., B-250327.4, Apr. 27, 1993,93-1 CPD**~** 

### 344. 12 DSMDB-3040548vl

### copies ofconfidential information have been made; (4) whether the applicants engage, or has
ever engaged, in competitive decision making for the interested party they represent or for any other actual orpotential competitor ofVIH Cougar; (5) whether the applicants have close relationships or ties with those who are involved with competitive decision making; (6) in the

case ofcounsel, whether the applicant is inside or outside counsel for the interested party; (7) in the case ofinside counsel, what additional protections or safeguards, ifany, will be utilized place to ensure that individuals are firewalled from competitive decision makers; and (8) in the case of outside experts, what qualifications the individuals have that qualifies them as outside experts and what their relationships or connections are with respect to the interested parties they represent or with respect to other actual or potential competitors ofVIH Cougar. In addition, VIH Cougar has no means ofchallenging an individual's application for access to protected information and no means for enforcing a violation for any unauthorized disclosure ofprotected information. Given the deficiencies in the conditions proposed by the Department for access to confidential information in connection with these proceedings, we respectfully request that the Department, pursuant to its authority under 14 C.F.R. § 302.12(e), adopt the GAO protective order model and procedures for use in this matter. In addition, due the unacceptable risk posed by the Department's existing affidavit guidelines for the unauthorized disclosure ofVIH Cougar confidential information to individuals engaged in competitive decision making or access to such information by persons who have not filed affidavits, and the irreparable harm to VIH Cougar that would result from such a disclosure, we request that the Department

### stay any new affidavit applications and not release 

### any VIH Cougar information until the Departmenthas decided this motion. Moreover, because the Depmiment already has authorized the interim release of

13 DSMDB-3040548vl

### confidential information to third parties under the existing affidavit guidelines, to the extent that such affidavits have already been filed and information already been released to those individuals, we request that the Department direct any existing affiants to resubmit an application for access pursuant to a protective order similar to the GAO's model protective order and afford VIH Cougar an opportunity to review and object, ifnecessary, to the applications. Finally, VIH Cougar requested 

### expedited consideration ofthis motion. 

### III. CONCLUSION Forthe foregoing reasons, the Department should grant VIH Cougar's motion and refrain from disclosing the Exhibit A Documents to the general public. Moreover, the Department should stay all new affidavit applications pending its decision on this motion, and should make the Documents available to all existing affiants as well as any new applicants only pursuant to a protective order that includes at least the following**~afeguards:** A. 

### Require in-house and outside counsel and experts to apply for admission using separate applications; B. Notify VIH Cougar who has applied for admission and provide VIH Cougar an opportunity to object to their admission; C. Require that those who gain access to confidential information to not be involved in competitive decision-making on behalfofthe party they represent or any other actual or potential competitor in orderto ensure that no firm gains a competitive advantage from accessing confidential information; D. Require that those admitted under the protective order to take "all precautions necessary" to prevent disclosure, including, in the case ofinside counsel, the additional precautions that will be undetiaken to ensure that confidential information is not advertently or inadvertently accessed by other employees ofthe company (which may be a competitor ofVIH Cougar); E. Require any outside expetis or consultants to provide specific information regarding their background, including a client list and the disclosure ofall business or personal relationships with competitive decision makers ofthe party they represent or any other actual orpotential competitor ofVIH Cougar;

14 DSMDB-3040548vl

### F. Limit the number ofcopies ofconfidential information that can be made and distributed; G. Limit the disclosure and use ofconfidential information to only matters related to the above-captioned proceeding; H. Require the return and/or destruction ofall copied confidential information after the disposition ofthis proceeding; and I. 

### Provide for penalties for any violation ofthe proposed Department protective order, or any additional rules or regulations put in place to protect confidential information.

Dated: March 16, 2012

## ::spec~ully**su~**
David 

### i'JJ.. Nadler David Y. 

### Yang Andrew E. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@dicksteinshapiro.com 

### Counsel to VIH Cougar Helicopters, Inc.

15 DSMDB-3040548vl

# EXHIBIT A

### EXHIBIT A INDEX OF CONFIDENTIAL INFORMATION AND DOCUMENTS TO BE WITHHELD FROM THE PUBLIC:
CONFIDENTIAL ITEM# TITLE/DESCRIPTION PREVIOUSLY SUBMITTED 

### AS I. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit 2008 Financial Report A Tab 23) 2. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit 2009 Financial Report A Tab 24) 3. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit January-May 2010 Monthly A Tab 25) Financial Report 4. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit June 2010 Financial Re_port A Tab 26) 5. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit July 2010 Financial Report A Tab 27) 6. April 16, 2007 Memorandum June 20, 2008 Submission (Exhibit A Tab 15) 7. Inter-Company Lease and August 10, 2009 Submission Support Agreements (Exhibit A Tabs 5-8) 8. Share Purchase Agreement for August 10, 2009 Submission Western Airways (Exhibit A Tab 4) 9. Aircraft Lease and Trust August 10, 2009 Submission Agreements (Exhibit A Tab 5) 10. Galliano, Louisiana Lease August 10, 2009 Submission Documents (Exhibit A Tab 6) 11. Master Helicopter Technical August 10, 2009 Submission Support Services Agreement (Exhibit A Tab 7) 12. Master Management and August 10, 2009 Submission Administrative Services (Exhibit A Tab 8) Agreement 13. Subcontract Addendum No. 2 August 10, 2009 Submissior! dated May 24,2006 (Exhibit A Tab 13) 14. N925VH Lease July 9, 2010 Submission (Exhibit A Tab 2) IS. N905VH Lease July 9, 20IO Submission (Exhibit A Tab 3) I6. N263F Lease July 9, 20I0 Submission (Exhibit A Tab 4) 17. N263F Sublease July 9, 2010 Submission (Exhibit A Tab 5) 18. N262F Lease July 9, 2010 Submission (Exhibit A Tab 6) I9. NI44WA Lease July 9, 2010 Subinission (Exhibit A Tab 7) 20. N139WH Lease July 9, 20I0 Submission (Exhibit A Tab 8) 

### 16 DSMDB-3040548vl21. C-FWDV Lease July 9, 20I0 Submission (Exhibit A Tab 9) 22. C-FVIT Lease July 9, 2010 Submission (Exhibit A Tab 10) 23. C-FYIG Lease July 9, 2010 Submission (Exhibit A Tab 11) 24. C-FDUB Sublease July 9, 2010 Submission (Exhibit A Tab 12) 25. C-FBVI Lease and N226W A July 9, 2010 Submission (Exhibit Lease A Tab 13) 26. HSBC Bank USA, NA Line of July 9, 2010 Submission (Exhibit Credit Agreement A Tab 22) 27. Entire Exhibit A attached to November 6, 2008 Submission November 6, 2008 Submission (Exhibit A) 28. VIH Cougar Personnel Resumes August I0, 2009 Submission (Exhibit A Tab 2) 29. VIH Cougar Pilot Roster August I0, 2009 Submission (Exhibit A Tab 1 0) 30. VIH Cougar Helicopters, Inc. July 9, 20I0 Submission (Exhibit List ofEmployees A Tab 1) 31. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit VFR Customers and Flight Hours A Tab 14) 32. VIH Cougar Helicopters, Inc. July 9, 2010 Submission (Exhibit IFR Flight Times by Pilot A Tab 18) 33. Contract between British June 20, 2008 Submission Petroleum America Production (Exhibit A Tab 9) Company and Cougar Helicopters, Inc. 34. Contract between Shell June 20, 2008 Submission Exploration & Production (Exhibit A Tab 10) Company and Cougar Helicopters, Inc. 35. Spreadsheet ofEmergency June 20, 2008 Submission Response Flights from 2006 to (Exhibit A Tab 11) the Present 36. 2007 and 2008 Flight Tickets for June 20, 2008 Submission Cougar Helicopters, Inc. C- (Exhibit A Tab 12) FNCH 37. 2007 and 2008 Flight Tickets for June 20, 2008 Submission Pacific Helicopter Tours, Inc. (Exhibit A Tab 13) N261F 38. August 5, 2005 Contract between August 10, 2009 Submission BP America Production (Exhibit A Tab 11) Company and Cougar Helicopters 39. November I0, 2005 Subcontract August I0, 2009 Submission between Cougar Helicopters (Exhibit A Tab 12) and Pacific 40. Subcontract Addendum No. 2 August 10, 2009 Submission dated May 24, 2006 (Exhibit A Tab 13) 17 DSMDB-3040548vl41. Initial Aircraft Dry Sub-Lease August I0, 2009 Submission between Cougar Helicopter and (Exhibit A Tab 14) Pacific



### 18 DSMDB-3040548vl

# EXHIBITB

### BEFORETHE DEPARTMENT OFTRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

In the matter ofthe canceJiation ofthe Air Taxi authol'ity issued 

### to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.

DECLARATION OFWILLIAM T. STEEPER I, William T. Steeper, hereby declare: l. I am the president, secretary, and treasurer ofVIH Cougar Helicopters, Inc. ("VIH Cougar"). I have served as the president ofVIH Cougar since January 31, 2004, and as its secretary since November 28, 2006. In addition, I have been a director ofVIH Cougar since July 8, 2003 and its sole director since February 1, 2007. 2. The facts stated in this declaration are based upon my personal knowledge, on my review and familiarity with the records ofVIH Cougar Helicopters, Inc. ("VIH Cougar") that are maintained in the ordinary course ofbusiness, and on information obtained from employees and agents ofVIH Cougar and others. I am familiar with the VIH Cougar documents at issue here,
as well as VIH Cougar's policies regarding the dissemination ofits information. I am competent to testify to the statements herein and would so testify ifcalled to do so. 3. I havereviewed the following documents, which were provided to the Department ofTransportation ("Department") under the protection ofthe Trade Secrets Act, 18 U.S.C. 

### § 1905, and all applicable disclosure statutes and regulations, including Exemption 4 under the Freedom ofInfonnation Act ("FOIA"), 5 U.S.C. 

### § 552(b)( 4), in connection vvith the

DSMDB-304042Jvl

### Department's review ofVIH Cougar's FAA Part 133 and 135 air carrier operations in the United States. In addition, I have reviewed certain documents which I understand were provided to the Department in connection with the agency's unrelated review ofcertain search and rescue operations by Cougar Helicopters, Inc. ("Cougar Helicopters") (a separate and independent company from VIH Cougar) in the GulfofMexico. For convenience, and where appropriate, I reference all ofthese documents collectively as the "Documents." 4. The VII-I Cougar Documents contain confidential commercial information regarding the business stmcture, operations, contracts, finances, personnel records, and business and customerrelationships ofVIH Cougar and its respective customers. These Documents also contain non-public, personal information ofvarious third parties (such as employees, staff, and customers) \Vho have no connection to the proceedings in the above-referenced caption. I am informed that the Cougar Helicopters Documents also contain similarly non-public, confidential information pertaining to its customers and client base. 5. VIH Cougar was asked to provideDocuments in response to informal informational requests by the Department pursuantto letters dated April 24, 2008, July 10, 2009, and July 9, 2010, requesting, among other things, information concerning the above-mentioned topics. In addition, I am informed that Cougar Helicopters similarly has been asked by the Department to provide documents concerning unrelated search and rescue operations in the Gulf ofMexico. Because the public disclosure ofthis confidential commercial and third-party personal information could place VIH Cougar at an unfair competitive disadvantage in relation to its competitors, in negotiations and dealings with both current and prospective customers, and/or infringe upon the privacy rights ofunrelated third parties, VIH Cougar provided the Documents subject to the exemptions under FOIA, the Trade Secrets Act, and all other

2 DSMDR-3040423vIapplicable disclosure statutes and regulations. Therefore, the 

### VIH Cougar Documents arc protected from public disclosure pursuant to these affirmative disclosure restrictions and may not be released to the public. I understand that CougarHelicopters also provided Documents to the Department subject to the same restrictions to address the same concerns and therefore also may not be released to the public. 6. Based on my review, a description ofeach Document is as follows:

a. Financial statements and reports for 

### VIH Cougar were provided as Exhibits 23-27 in connection \vith the submission to the Department on July, 9, 2010. These Documents contain information regarding the revenues, expenses, and finances of

### VIH Cougar for the period January 2008 through July 2010, and are commerciallyvaluable, kept confidential, and are not publicly available, as 

### VII-I Cougar is not a public1y-traded company. 

### VIH Cougat· takes reasonable steps to protect against any unauthorized dissemination ofthis information, thereby protecting its commercial value. b. Contracts, leases for aircratt and facilities, financing instruments, and internal memoranda were provided to the Department as Exhibit 15 in connection with the June 20, 2008 submission, Exhibits 4-8 and 13 in connection withthe August I0, 2009 submission, and Exhibits 2-13 and 22 in connection with the July 9, 2010 submission. These Documents contain non-public information regarding the terms and conditions, including, among other details, pricing, regarding 

### VIH Cougar's ongoing business activities and arrangements and internal business structure. Accordingly, the Documents are confidential and commercially valuable. 

### VIH Cougar takes reasonable steps to protect against any unauthorized dissemination ofthis information, thereby protecting its commercial value.

3**DSMDfl-30~0423vl**c. Proposed terms, stock purchase and shareholders' agreements, and other supporting documents regarding a potential investment in VIH Cougar by unaffiliated third }Jarties vverc provided to the Department in connection with a submission on November 6, 2008. VIH Cougar considers the identities ofthe third-party investors referenced in the Documents to be confidential and non-public, and it is VIH Cougar's policy to redact the names ofall thirdparty participants in such circumstances before any information can be publicly released. d. Employee/staffing lists, pilot rosters, personnel resumes, and VFR and IFR customer flight records were provided to the Department as Exhibits 2 and 10 in connection with the August 10, 2009 submission, and as Exhibits 1, 14, and 18 inc01mection with the July 9, 2010 submission. The Documents are non-public and maintained confidentially by VIH Cougar in order to protect the identities, addresses, phone numbers, and otherpersonal identifiers for the employees and customers identified therein, none ofwhom have any connection to the present proceedings by the Department against VIH Cougar. VIH Cougar takes reasonable steps to keep all such documents, including the identities ofany employees and customers, confidential as a means ofprotecting theirprivacy interests and rights as unrelated third parties, and will release such documents to the general public only ifall identifying information (such as names, addresses, phone numbers, social security numbers, and/or similar identifiers) has been redacted or without redaction ifprior consent from the party has been obtained.

e. Finally, 

### it 

### is my understanding that certain documents 1 including customer contracts and flight records/tickets, belonging to Cougar Helicopters were provided to the Department in connection 

### 'vith the submission made on June 20, 2008, in connection with the Department's review into certain special air services activities by Cougar Helicopters in the Gulf



### 4 DSMDB-3040423vl

### ofMexico. I am informed that these Cougar Helicopters Documents, which were provided as Exhibits 9-13 to the June 20 submission, as well as Exhibits 11-14 to the August 10, 2009 submission, are kept confidential by Cougar Helicopters, are not available to the public, and thus
are not only commercially valuable to Cougar, but to the customers identified therein and to their competitors ifthey could learn the terms, conditions, and activities ofthose clients. I am further informed that because these customer contracts and flight records identify, and therefore implicate, the commercial interests ofthe customers listed therein, it is Cougar Helicopters' policy to keep all such materials, including all client identities, confidential as a means of protecting those confidential business and commercial relationships, and that Cougar Helicopters takes reasonable measures to ensure that such documents are and remain confidential. 7. VIH Cougar takes reasonable steps to ensure that its confidential commercial information and the privacy interests ofits employees, staff, customers, and any other disinterested third patties are kept confidential, including the information contained in the Documents, which includes keeping the Documents in a secure location and limiting their access to those personnel who need the information to perform their duties. VIH Cougar's employees

are generally instructed not to disclose VIH Cougar's confidential commercial information or the private information ofthird parties without appropriate restrictions on use and further dissemination ofthe information, in the case ofthe former, and in the case ofthe latter, without the express permission ofthe third party before information is released to the public. In addition, VIH Cougar's employees are required to safeguard VIH Cougar's confidential information. 8. VIH Cougaris currently in competition \vith a number ofdifferent competitors in the helicopter air taxi services market. The public disclosure ofthis information would: (i) 

### provide VIH Cougar's competitors, as \veil as prospective customers, with non-public

5 DSMDB-3040423\'1

### information concerning the terms, conditions, and pricing ofVIH Cougar's ongoing business arrangements, activities, finances, structure, and capabilities; (ii) infringe on the commercial interests ofVfH Cougar's customers who wish to keep the details oftheir operations confidential, including from competitors; and (iii) infringe on the privacy interests ofthird parties who have no relationship to any ofthe issues in the above-captioned proceedings against VIH Cougar. 9. I am informed that one or more competitors ofVIH Cougar recently provided to at least one ofVIH Cougar's customers an unredacted copy ofthe Department's October 6, 2011 letter to VIH Cougar's legal counsel and its March 12, 2012 Order to Show Cause.

I hereby declare underpenalty ofperjury pursuant to 28 U.S.C. 

### § 1746 that the foregoing is true and correct.
William T. Steeper
DATED this 16th day ofMarch, 2012.

6 DSMDB-3040423vl

# EXHIBIT C

# GAO

June 2009



### - GA0-09-770SP United States Government Accountability Office 

# Office ofthe General Counsel



# GUIDE TO GAO PROTECTIVE ORDERS

GAO

# Contents

I. Introduction· II. The Protective Order A. Protected Information B. Issuance C. Redactions D. Disposition ofProtected Materials 

### III. The Application Process A Who CanApply B. The Application C. When to File D. Objections E. The Admission 

### IV. Use ofProtected Materials before OtherAgencies and Courts V. Violations ofGAO Protective Orders AppendixA Appendix B Appendix C AppendixD 2 3 3 4 4 5 6 6 6 7 8 8 13
14 18 19 

### 23 36

Page 1 GA0-09-770SP Guide to GAO Protective Orders

# I. Introduction

Underthe Competition in Contracting Act of 1984, 31 U.S.C. § 3553(b)(2), as amended, and GAO's Bid Protest Regulations, 4 C.F.R. § 21.3(c), a contracting agency is required to provide with its report on theprotest all relevant documents to GAO andinterestedparties. Often these documents contain a company's proprietary or confidential data orthe agency's source-selection-sensitive information that cannotbe releasedpublicly. GAO mayissue a protective order to allow limited access to such "protected" information to attorneys, or consultants retainedby attorneys, who meet certain requirements. 31 U.S.C. § 3553(f)(2); 4 C.F.R. § 21.4. A copyofsection 21.4 of GAO's Bid Protest Regulations is included in appendix A. The protective order strictly controls who has access to protected material and how that material is labeled, distributed, stored, and disposed ofat the conclusion ofthe protest. Where no protective order is issued, the agency may withhold from the parties the portions ofits reportthat would ordinarily be subjectto a protective order; GAO will review in cameraall information withheld from the parties. 4 C.F.R. § 21.4(b).

Page 2 GA0-09-770SP Guide to GAO Protective Orders

# II. The Protective Order

A. Protected Information Proprietary orconfidential information, source-selection-sensitive information, or otherinformation, the release ofwhich could result in a competitive advantage to one ormore firms, maybe protected under a GAO protective order. Material or otherinformation identified asprotectedby anypartywill be subject to protection underthe terms ofthe protective order, unless GAO specifically provides otherwise. Protected material includes information whether onpaper or in any electronic format. Eachparty included under a protective orderis entitled to receive up to three copies ofprotected material (including the original and electronic copies), and is notpermitted to further duplicate that material except as is incidental to its incorporation into a submission to GAO, or as otherwise agreed to bythe parties with GAO's concurrence. "Party" refers to the entity ofrecord; therefore, multiple attorneys orlaw firms representing a single partymust determine among them howto allocate the maximum ofthree copies among the individuals admitted to theprotective order. Each duplication ofelectronic media, whetherin electronic orhard copyform, constitutes a single copy. E-mails to multiple recipients should be counted as generating one copyfor the sender and one for each recipient. E-mail transmission ofprotected material is permitted unless objected to by a partyto theprotest. Information identified asprotected maybe disclosedbythe parties only to GAO, the contracting agency, and otherindividuals admitted underthe protective order. Protectedmaterial may also be disclosed to support staff(paralegal, clerical, and administrativepersonnel) who are employed or supervised byindividuals admitted underthe protective order and who are notinvolved in competitive decision making. Itis the responsibility ofindividuals admitted underthe protective orderto take all precautions necessarytopreventdisclosure ofprotected material. In addition to physically and electronicallysecuring, safeguarding, andrestricting access to theprotected material in one'spossession, these precautions include sending and receiving protected material using physical and electronic methods that are within the control ofindividuals authorized by the protective order orthat otherwise restrict access to protected material to individuals authorized by the protective order. In view ofthese requirements, individuals who use such transmission methods as fax machines shared with individuals who are not authorized access to protected material underthe protective order, orfax machines

Page 3 GA0-09-770SP Guide to GAO Protective Orders

# B. Issuance

C. Redactions II. The Protective Order

that are not within their control orthe control oftheir support staff, may need to take additionalprecautions to restrict access to protected material. These precautions also include advising support staffoftheir obligations priorto providing them with access to protected material. Support staffwho are not directly employed or supervised by an individual admitted underthe protective order may notbe provided with access to protected material; thus, for example, protected material may not be disclosed to individual(s) in a typing service working at locations other than that ofthe individual admitted underthe protective order.

Because a protective order serves to facilitate the pursuit ofa protestby a protesterthrough counsel, it is, in the first instance, the responsibility of protester's counsel to request that a protective orderbe issued. Any otherparty may requestthe issuance ofa protective order, however, and GAO may issue a protective order on its own initiative whenever it appears that one is appropriate and the protester is represented by counsel. 4 C.F.R. § 21.4(a). Because only attorneys and consultants theyretain maybe admitted under a protective order, GAO will generally not issue a protective order, even ifthe record will include protectedinformation, where the protester is proceeding without an attorney. Aprotective orderpackage, which includes theprotective order and the application(s) for access to materialunder a protective order, generally will be issued soon after a protest is filed andin manycases simultaneously with the protestacknowledgmentnotice. After issuance, the protective orderwill apply to all proceedings associated with theprotest, e.g., supplemental and amended protests, requests for reconsideration, and claims for costs. A copy ofthe protective order canbe found in appendix B and at www.gao.gov.

It is the responsibility ofthe partypreparing a protest filing protected under a GAO protective orderto submit a version ofthe filing that omitsprotected information-a "redacted" version-to GAO and to eachparty authorized to receive protected material. This redacted version oftheprotestfiling mustbe provided within 1 day after theprotectedversion is filed. GAO will resolve disputes ifthe parties are unable to agree onthe scope ofproposed redactions. In anyprotest in which a protective orderhas been issued, a partyreceiving or sending documents that are not designated asprotected, including proposed redactedversions ofprotected documents, maynotrelease the documents to anyone not admitted undertheprotective orderuntil the end ofthe second day

Page 4 GA0-09-770SP Guide to GAO Protective OrdersII. The Protective Order

following receipt ofthe documentby all parties. This allows parties the opportunityto identify documents that should have been designated as protected material prior to their disclosure to individuals not admittedunderthe protective order. 

# D. Disposition ofProtected Material The GAO protective orderprovides specific instructions regarding the disposition ofprotectedmaterial atthe conclusion ofa protest. Parties to theprotective order are directed that within 60 days afterthe disposition ofthe protest (or, ifa request for reconsideration or a claimfor costs is filed, 60 days after the disposition ofthose matters), all protected material furnished to individuals admitted underthe protective order, including all electronicallytransmitted material and copies ofsuchmaterial, with the exception ofa single copy ofa protected decision or letterissued by GAO, mustbe (1) returned to the partythat produced them; or (2) with the prior written agreement ofthepartythatproduced theprotected material, destroyed and certified as destroyed to the partythat produced them; or (3) with the prior written agreement ofthepartythatproduced the protected material, retained underthe terms ofthe protective orderfor such period as maybe agreed. Within the same 60-dayperiod, protectedpleadings (including copies in archival files and computerbackup files) and written and electronic transcripts ofprotest conferences andhearings mustbe destroyed, and the destruction certifiedto GAO and the otherparties unless the parties agree otherwise. In the absence ofsuch agreement and for good cause shown, GAO may extendthe periodfor retention ofthe protected material.

Page 5 GA0-09-770SP Guide to GAO Protective OrdersIII. The Application Process



# A. Who Can Apply Only attorneys, or consultants retained by them, who represent an interested party orintervenor may apply for admission to a GAO protective order. Outside counsel and in-house counsel are eligible for admission to a GAO protective order. Law clerks and support staffwho will be working on a protest and who are admitted to a bar, regardless ofwhether they are employed by the firm as attorneys, must apply for admissionto the protective order. Applicants must establishthatthey are not involved in competitive decision making, as defined in 

### US. SteelCorp. v. 

### UmtedStates, 730 F.2d 1465 (Fed. Cir. 1984), for any company that could gain a competitive advantage from access toprotected information, andthatthere will be no significant risk ofinadvertent disclosure ofprotected information. 4 C.F.R. § 21.4(c). "Competitive decision making" is described as follows:[A] counsel's activities, associations, and relationship with a client that are such as to involve counSel's advice and participation in any or all ofthe client's decisions (pricing, product design, etc.) made in light ofsimilar orcorresponding information about a competitor. 

### US. SteelCorp., 730 F.2d at 1468 n.3. A copy ofthe 

### US. SteelCorp. decision can be found in appendix C. 

### SeealsoBrownBagSoftware v. 

### Symantec Corp., 960 F.2d 1465 (9th Cir. 1992); 

### Matsushita Elec. Indus. Co., Ltd v. 

### UnitedStates, 929 F. 2d 1577 (Fed. Cir. 1991). Each individual seeking admissionto a GAO protective ordermust submit a separate application. Individuals permitted access to protected information under a GAO protective order are not allowed to disclose thatinformationto others who are not admitted underthe protective order, such as other members ofthe attorney's law fum who are notthemselves admittedto theprotective order orthe attorney's client. 

# B. The Application Applicants for admission to a GAO protective ordermustfile the appropriate outside counsel, in-house counsel, or consultantapplication with GAO and all parties to the protest. Generally, the appropriate attorney's application will be attachedto the protective orderissued in a protest. The consultant's application can be obtained from the GAO staffattorney assigned to theprotest. In addition, copies ofthese applications canbe found in appendix D and at www.gao.gov.
Page 6 GA0-09-770SP Guide to GAO Protective Orders

# C. When to File III. The Application Process

The application for admission to a protective orderwill establish thatthe individual is appropriate for admission (e.g., an attorneyretained to represent an interestedparty in the protest or a consultantretained by such an attorney), is not involved in competitive decision-making, and has read the protective order issued by GAO in the protestand will complyin all respects with the terms and conditions ofthe protective order. A consultant seeking admission to the protective ordershouldbe prepared to provide a client list, and may also have to agree to certain future employmentrestrictions as a condition ofreceiving access to protected material. While GAO's consultant application suggests certain future employment restrictions, the parties may agree to different or otherrestrictions. Each applicantis required to provide a mailing address, direct dial telephone number, fax number, and e-mail address to which protected material may be sent in accordance with the terms ofthe protective order. This information should comport with the protective order's requirement thatparties send and receive protected material using physical and electronic methods that are within the control ofindividuals authorized bythe protective orderorthat otherwise restrict access to protected material to individuals authorized bythe protective order. The failure to accurately complete the application mayresult in denial and/or revocation ofadmission as well as other sanctions. Forexample, counsel's failure to accurately identify, as required, all instances within the last 2 years in which counsel hadbeen denied admission to a protective order, had admission revoked, orhad been found to have violated a protective orderissued by GAO orby another administrative orjudicialtribunal has resulted in the denial ofadmission to a GAO protective order, the revocation ofadmission to a GAO protective order, and the imposition ofa bar on access to protected material for a specifiedperiod.

Applications for admission to a protective order should be filed as soon as possible afterthe issuance oftheprotective order. Delays in filing applications for access to protected material, as well as requests for issuance ofa protective order, will generally notprovide a basis for extending the time within which comments on an agencyreport mustbe filed.

Page 7 GA0-09-770SP Guide to GAO Protective Orders

# D. Objections III. The Application Process

Objections to an applicant's admission to a protective order should be raised within 2 days ofreceipt ofthe application. 4 C.F.R. § 21.4(c). In reviewing applications for admission to a protective order, GAO considers and balances a variety offactors, including the nature and sensitivity ofthe material to be protected, the attorney's need for the confidential information soughtin orderto adequatelyprepare the party's case, and whetherthere is opposition to an applicant expressing legitimate concerns that the individual's admission would pose an unacceptable risk ofinadvertentdisclosure. SeeMcDonnellDouglas C01p., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD, 51. Because the information released under a protective orderis not GAO's, but ratherthe contracting agency's orthe otherparties', GAO relies uponthese parties to timely objectto an application for access to protected material. GAO will generally admit an applicantto a protective orderwhere there is no objection raised. Parties who have no objections to the admission ofindividual applicants may waive the 2-day period for filing objections in orderto expedite the admissionsprocess. 

# E. The Admission

1. 

## Outside Counsel GAO will issue a written notice identifying all individuals who are admitted under a GAO protective orderand who are thus entitled to have access toprotected material. Individuals who are denied access to protectedmaterial will be informed in writing ofthe basis for their denial.

Although itis often easierfor outside counsel to establish thatthey are not involved in competitive decision making, GAO approaches the admission of counsel on a case-by-case basis, and does not assume that any attorney's status as outside counsel is dispositive ofwhetherthat attorneyis involved in competitive decision making. Allied-Signal Aerospace Co., B-250822, B-250822.2, Feb. 19, 1993, 93-1 CPD , 201. InAllied-Signal, GAO denied access to outside counsel for the awardee, a subsidiary ofa parentcorporation, because the attorney served as a corporate

Page 8 GA0-09-770SP Guide to GAO Protective OrdersIII. The Application Process

officer for two other subsidiaries and represented at leastnine subsidiaries in the previous 3 years, suggesting thatthe attorneyhad a management relationship with the companies that cut across corporate boundaries. The attorney's role as competitive decision maker was found to presenttoo great a risk ofinadvertent disclosure ofprotected materials. In 

### LeBoeuf,Lamb, Greene &

### MacRae, B-283825, B2283825.3, Feb. 3, 2000, 2000 CPD**~** 35, GAO admittedprotester's counsel overthe agency's objection that a partnerin counsel's firm was listed as a personalreference for a key employee in the protester'sproposal, finding thatthere was no evidence thatcounsel orthe partnerparticipated in competitive decision making and that the nature ofthe relationships was limited. GAO also found withoutmerit the objection that counsel might be witnesses regarding the evaluation ofthe protester'sproposal because that evaluation was not challenged and because there was no showing that the remote possibility thatthepartnercouldbe a witness mightpresent an unacceptable risk ofinadvertent disclosure. GAO finally found thatthe blanket objection that counsel did nothave an established bid protestpractice and an establishedprocess for conformity to the strictures ofthe GAO protective order was no reasonto question counsel's representationsthattheyhad read the protective orderand would abide by its terms and conditions. In Mine SafetyAppliances Co., B-242379.2, B-242379.3, Nov. 27, 1991, 91-2 CPD**~** 506, GAO admitted theprotester's attorneys to a protective order even though they were associated with a law firm in which the managing partner's home office served onthe protester's board ofdirectors. The attorneys were found not to participate in competitive decision making, vowed notto discuss anyprotected information with the individual in the firm serving ontheprotester'sboard of directors, and agreed to specialproceduresto protectthe information (analogous to the procedures for the protection ofclassified materials), including using a locked cabinet, maintaining a log and a special dataprocessingfile for theprotest, and limiting access to the dataprocessing file. In 

### Maritjme BertMng; Inc., B-284123.3, Apr. 27, 2000, 2000 CPD**~** 89, GAO admitted outside counsel for the protester overthe agency's objection thathe was listed as an authorized negotiatorfor anotherfirm that was awarded

## acontractfor anotherpart ofthe solicitation and which was ownedbythe same group of principals as owned theprotester, and hadbeen listed as an authorized negotiator for other firms ownedbythese principals inprior agencyprocurements. GAO found that his designation as an authorized negotiatorrequired closer scrutiny of his application, butthatthe question ofadmission was to be resolved on a caseby-case basis. In this case, GAO admitted counsel because he hadperformedno activities inthis capacity, agreed to withdraw as the contractnegotiatorunderthe

Page 9 GA0-09-770SP Guide to GAO Protective Orders

## 2. In-House Counsel III. The Application Process

contract, and agreed notto serve as or be designated as an authorized negotiator for the companies owned by these principals in the future. In 

### ColonialStorage Co.; Paxton Van**Line~** 

### Inc., B-253501.5 

### etal., Oct. 19, 1993, 93-2 CPD 

### if 234, GAO denied admission to outside counsel for the awardee where the record established thatthe attorney was involved in competitive decision making-specifically, the attorneyrepresented the awardee at a pre solicitation conference andparticipated inprice discussions betweenthe awardee and the agency inthe course ofthe pro.curement. In 

### Ralvin PacificDev., Inc., B-251283.3, June 8, 1993, 93-1 CPD 

### if 442, GAO did not admit outside counsel employedbyprotester where there was evidence inthe record thatthese attorneys were involved in competitive decision making-that is, conducting ongoing lease negotiations with the agency on behalfofthe protester's affiliate. The attorneys withdrewtheir applications for admission.

In considering applications ofin-house counsel, GAO considers suchfactors as whetherthe in-house counsel advises onpricing andproduct design decisions, including the review ofbids andproposals; the degree ofphysical separation and security with respectto those who participate in competitive decision making; and the degree and level ofsupervision to which in-house counselis subject. In determining whether access is appropriate, GAO considers not onlythe applicant's role with respectto competition for federal governmentbusiness, but also the individual's role in the commercial marketplace and in relation to other business activities where corporate decisions are made in light ofinformation about competitors that mightbe disclosed under a protective order. In 

### Hobbins-Gioia, Inc., B-274318 

### etal., Dec. 4, 1996, 96-2 CPD ,- 222, GAO admitted in-house counsel for the awardee overthe agency's objectionwhere the record establishedthatthe attorney did notparticipate in competitive decision making; the fact thatthe in-house counsel reportedto a competitive decision maker did not alone demonstrate thatthere was an unacceptable risk ofinadvertent disclosure ofprotected material. Admission ofin-house counsel to a protective order was denied where, in balancing the needtoprotectthe confidentiality ofsensitive information with the party's needto have access to the information to pursue the protest, GAO found thatthere was anunacceptable risk ofinadvertent disclosure becausethe in-house counsel advised his company's competitive strategists and there was

Page 10 GA0-09-770SP Guide to GAO Protective Orders

## 3. Consultants III. The Application Process

no showing thatthe in-house counsel needed access to the information to help thepartypursue itsprotest. 

### McDonnellDouglas Corp., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD**~** 51. GAO granted access to a senior attorneyin a companylitigation section where the litigation section was a separate and distinct operation devoted exclusively to litigation andthe attorney was "walled off' from competitive decision making. 

### USSprint Communications Co. Ltd Partnership, B-243767, Aug. 27, 1991,91-2 CPD**~** 201. GAO has denied access to in-house counsel who provide legal counsel to senior companymanagement, such that counsel advises orparticipates in competitive decision making. 

### EarlePalmerBrown Cos., Inc., B-243544, B-243544.2, Aug. 7, 1991, 91-2 CPD**~** 134; 

### DataproductsNew**Englan~** 

### Inc., etal., B-246149.3 

### etal., Feb. 26, 1992, 92-1 CPD**~** 231; 

### BendixFieldEng'g Corp., B-246236, Feb. 25, 1992, 92-1 CPD**~** 227. GAO denied admission to corporate counselwho was involved in competitive decision making with respectto otherbusiness matters, suchas mergers and acquisitions, where there was more than a minimal risk ofinadvertent disclosure ofinformation from the protest concerningthe competitorwho was involved in the mergertalks. 

### AtlanticResearch Corp., B-247650, June 26, 1992, 92-1 CPD**~** 543. GAO has granted a limited admission to in-house counselto permit counsel access to counsel's own company's evaluation documents concerningthe company's exclusion from the competitive range. By agreement ofcounsel, the in-house counsel did notreceive access to its competitors'proposals and evaluations. 

### SRI**lnt~** 

### Inc., B-250327.4, Apr. 27, 1993, 93-1 CPD**~** 344.

GAO's policyis to allowprotesters to choose the assistance they deem necessary topursue theirprotest. In 

### BendixFieldEng'g Corp., B-246236, Feb. 25, 1992, 92-1 CPD**~** 227, GAO admitted consultants to a protective orderto provide assistance to counsel in theirreview ofthe agency's costrealism evaluation where, although the agency objected thatthe consultants were notnecessary, there was no other objectionto the admissibility ofthe consultants. 

### Seealso GlobalReadiness Enters., B-284714, May 30, 2000, 2000 CPD , 97.

Page 11 GA0-09-770SP Guide to GAO Protective OrdersIII. The Application Process

However, in 

### EERSys. Corp., B-256383 

### etal., June 7, 1994,94-1 CPD**~** 354, GAO denied admission to consultants for the protester, even though it was unclear that granting access toprotected material to these consultants would pose a major risk ofinadvertent disclosure, where the protected material was undeniably sensitive and valuable suchthat disclosure ofthe information would cause serious competitive harm to the awardee, the awardee challenged the admissibility ofthe consultants, and GAO determined that it and the protester could fairly and reasonably address the specific protestissues withoutthe admission ofthe protester's consultants. Admission ofconsultants was denied where the consultants failed to agree to not engage orassist in the preparation ofa proposal to be submitted to any agency of the United States governmentfor environmental remediation services for a period of2years. GAO found thatthe failure to agree to this restriction would require the consultants to continually compartmentalize information to protect information obtained under ourprotective order, which created more than a minimal risk ofinadvertentdisclosure. 

### Restorationand ClosureServs., LLC, B-295663.6, B-295663.12, Apr. 18, 2005, 2005 CPD, 92. In 

### SystemsResearch andApplications Corp./BoozAllenHamilton, Inc., B-299818 

### etal., Sept. 6, 2007, 2008 CPD**~** 28, GAO admitted a consultant to the protective order, over the objectionthatthe consultantonce held a position with the protester andthatthe consultant's daughter was currently employed by the protester, where the record established thatthe consultanthad no continuing interest in the protesterandthat the consultant's daughterheld a relatively low-level position with the protesterin a division that was unrelated to the work to beperformed underthe protested contract.

Page 12 GA0-09-770SP Guide to GAO Protective Orders

# IV. 

# Use ofProtected Material before Other Agencies and Courts

Material to whichparties gain access under a GAO protective ordermay only be used in the protestproceedings for which the protestwas issued, absent express prior written authorization from GAO. GAO's protective order, however, permits the use ofprotected material obtained underthe protective order in a bidprotestftled with the United States Court of Federal Claims, without GAO's prior authorization, provided that the information is ftled under seal with the Court, thatthe Court is informed ofGAO's protective order, and thatthe Courtis requested to issue its ownprotective orderto cover theprotectedmaterial. In addition, GAO mustbe notified when suit is ftled with the Court. Use ofmaterial protected underthe GAO protective orderwill be governedbythe protective orderissued by the Court. Requests for authorization to use protected material in otherfora, otherthan the United States Court ofFederal Claims, mustbe made in writing to GAO, with notice to all parties, and must establish thatprotected material will be safeguarded, 

### e.g., bythe forum's issuance ofa protective order.

Page 13 GA0-09-770SP Guide to GAO Protective Orders

# V. Violations ofGAO Protective Orders

Any violation ofa protective order is a serious matter, regardless ofwhetherit results in an improper disclosure ofprotected material. Violations ofthe terms of a protective order will result in the imposition ofsuch sanctions as GAO deems appropriate, including but notlimited to dismissal ofthe protest, referral ofthe violation to the appropriate bar associations orother disciplinary bodies, and restricting the individual's practice before GAO. Violations ofthe GAO protective order have included instances where protected materialhas been disclosed, inadvertently or otherwise, to individuals not admittedunderthe GAO protective order; where protected material was disclosed to otherfora withoutpriorpermission from GAO; where applicants failed to comply withthe requirement to disclose priorviolations ofa GAO protective order; and where individuals improperlyretainedprotected material beyond the disposition date requiredbytheprotective order. The following is a brief discussion ofinstances where protected material has been disclosed to individuals not admitted underthe GAO protective order, the most common violation. Most ofthese have beeninadvertentviolations resulting from counsel's failure to carefullyreview documents to be sent to the client to ensure that no protected materialis included. Counsel have, for example, failed to ensure that all agreedupon redactions were includedinthe redactedversion ofa document sentto the client; failed to fully read instructions from the senderregarding the releasibility ofdocuments; andfailed to place a protective legend on a supplementalprotest, which ledto the transmission ofprotected material to the client. Several ofthese violations underscore the importance ofgiving support staffadequate instructions regarding their responsibilities in handling protected material. Support staffhave, for example, inadvertently includedprotected documents along with the redacted documents to be mailed or faxed to the client, improperlyforwarded a protected GAO decision to the client, and improperly faxed protected materialto the client as a result oferroneous or unclearinstructions from counsel. Innearly all of these cases, counselimmediatelyrecognized the error andretrieved theprotected materialbefore the clientcould review its contents. Nonetheless, in all ofthese cases, the violations andresulting sanctions couldhave been avoided had counsel taken all necessaryprecautions to prevent disclosure ofprotectedmaterial. Those precautions canbe particularly critical whenprotected material is being transmitted from one protestpartyto another. In one instance, it came to GAO's attention thatthe fax numberprinted on the letterhead usedby the protester's counsel was connected to a fax machine located in shared space, separate from counsel's office, notunder his control, and sharedby several different firms and businesses. GAO found that counsel's dissemination ofa

Page 14 GA0-09-770SP Guide to GAO Protective OrdersIV. Violations ofGAO Protective Orders

numberfor a fax machine that was notin his control-without advising GAO and otherparties to theprotest ofthis fact-fell short ofthe standard ofcare necessaryto safeguardprotectedinformation. The standardprotective order expresslyrequires individuals to send and receive protected material using physical and electronic methods that are within the control ofindividuals authorized by theprotective order orthat otherwise restrict access to protected material to individuals authorized bythe protective order. In PWCLogisticsServs. Co. KSC(c), B-310559, Jan. 11, 2008, 2008 CPD , 25, GAO dismissed the protestbecause ofa violation ofthe terms ofthe protective order issued in connection with the protest where protectedmaterial was improperly disclosed to counsel's clients, who were not admitted to the protective order. GAO found that the client's actions, where the client retained, read, and forwarded in partdocuments that were marked asprotected, undermined the protective order's effectiveness and therebythe integrity ofGAO's protective orderprocess. Several violations have involved the inadvertentoral disclosure ofprotected information. In one instance, GAO admonishedprotester's counsel and a consultant where the mannerin whichthe consultantaskedquestions ofthe protester's representative, who was not admittedto the protective order, disclosed, inpart, the intervenor's technical approach. In a similarinstance, GAO admonishedtwo ofintervenor's counsel where a consultantnotyet admitted to the protective orderwas able to inferfacts reflecting protected material about the protester's costproposal onthe basis ofsequential conversations with counsel. As GAO advised in a letterto counsel, itis true that counsel admitted to a protective ordermustbe vigilant in ensuring thattheir conversations withparties not admittedto the protective orderdo notinclude language thatisprotectedper se, butitis equally true that counselmustbe vigilant in ensuring thatthese conversations do not include language sufficientto discloseprotected information. In another instance, protester's counsel orally disclosed to the clientfeatures of the awardee's proposal that led to its selection. GAO rejected counsel's argument thatthe GAO protective orderwas inconsistentwith his state'srules ofconduct requiring counsel to explain matters to the clientto the extentnecessaryfor the client to make informed decisions. In a letter to counsel, GAO stated thatthe state's rules also providedthatrules orcourt orders governing litigation might provide thatinformation supplied to counsel maynot be disclosed to the client, and directed compliance with suchrules or orders. GAO also stated that if counsel believedthattheprotective orderprocess was invalid he should not have certifiedhis willingness to abide byits terms in his application for admission.

Page 15 GA0-09-770SP Guide to GAO Protective OrdersIV. Violations ofGAO Protective Orders

GAO sanctioned counsel bybarring him from access to protected material for 2 years and by referring the matterto his bar association. Violations have also occurred where counsel have failed to comply with the "2-day rule," which refers to the protective order's express prohibition on the release of any documents in connectionwith theprotestto anyone not admitted underthe protective orderpriorto the end ofthe second working day following receipt of the documents by all parties. In one instance, protester's counsel released to his client documents that were identified as releasable in an agency's report onthe date the report was received. The day afterreceipt ofthe report, the intervenor identified asprotected certain material contained within some ofthe documents that the agency had indicated were releasable. GAO admonished counsel for this violation. In anotherinstance, GAO admonished counsel who, immediately upon receipt ofthe agencyreport, copied and gave his clientthe parts ofthe reportthat were not designated asprotected. GAO rejected counsel's explanationthat because he intended to be outofthe office and thought it necessaryto furnish the nonprotectedparts ofthe reportto his client for its immediate assistance, he did not ask the agency ifhe could make the disclosure priorto the expiration ofthe 2-dayperiod. As theprotective orderitselfexpressly states, the 2-dayrule permits parties to identify documents that should have been markedprotectedbefore the documents are disclosed to individuals not admitted under the protective order. Improper disclosures ofprotected material have occurred where unilateral redactions ofprotected material areprovidedto individuals not admitted under the protective order. Inone instance, intervenor's counsel unilaterallyprepared a redactedversion ofdraft comments and gave itto the client. The redacted version containedprotectedmaterial. Although counsel argued thattheir actions were inadvertent, counsel also arguedthattheyhadthe right to unilaterally prepare andrelease redactedversions ofdocuments thathave notyet beenfiled with GAO orwhich were sentorreceived from anotherpartyto theprotest. GAO disagreed, finding that counselviolated the requirement not to release a proposed redactedversion ofa protected document. Such a practice would render meaningless the essentialprotection affordedbythe issuance ofa protective order, i e., to give all otherparties a fair opportunitytopropose additional redactions ·ofprotectable information. GAO sanctioned counsel by restricting their access to protectedmaterial for 3 months. Finally, counselhave occasionallyimproperly disclosed protected material to othermembers ofthe law firm based uponthe erroneous beliefthattheprotective order application was onbehalfofthe entire law firm. Since an attorneyin the firm who is not admitted to the protective orderdoes notfall within the category ofindividuals eligible to examine protected material, such as support staff, GAO

Page 16 GA0-09-770SP Guide to GAO Protective OrdersIV. Violations ofGAO Protective Orders

admonished both counsel for violating the protective order. In letters to both, GAO stated that application for admission under a GAO protective orderentails individual representations and certifications, subject to review bythe parties to the protest; GAO may deny applications from individual attorneys in a law firm, while admitting other attorneys from that same firm, where that action is warranted by the individual unique relationships orparticularprofessional responsibilities.

Page 17 GA0-09-770SP Guide to GAO Protective Orders

# Appendix A

Sec. 21.4 Protective Orders (a) At the request ofa party or on its own initiative, GAO mayissue a protective ordercontrolling the treatment ofprotected information. Such information may include proprietary, confidential, or source-selectionsensitive material, as well as otherinformationthe release ofwhich could resultin a competitive advantage to one ormore firms. The protective order shall establishprocedures for application for access to protected information, identification and safeguarding ofthat information, and submission ofredacted copies ofdocuments omittingprotected information. Because a protective order serves to facilitate thepursuit ofa protestby a protester through counsel, itis the responsibility ofprotester's counsel to requestthat a protective order be issued and to submittimely applications for admission underthat order. (b) Ifno protective orderhas been issued, the agency may withhold from theparties those portions ofits reportthat would ordinarilybe subjectto a protective order. GAO will review in cameraall information not released to theparties. (c) After a protective orderhas been issued, counsel or consultants retainedby counsel appearing on behalfofa party may apply for admission underthe orderby submitting an application to GAO, with copies furnished simultaneouslyto all parties. The application shall establish thatthe applicantis notinvolved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information andthatthere will be no significant risk of inadvertentdisclosure ofprotectedinformation. Objections to an applicant's admission shall be raised within 2 days afterreceipt ofthe application, although GAO may consider objections raised after thattime. (d) Any violation ofthe terms ofa protective ordermayresultin the imposition ofsuch sanctions as GAO deems appropriate, including referral to appropriate bar associations or otherdisciplinarybodies, restricting the individual'spractice before GAO, prohibition from participation in the remainder ofthe protest, or dismissal ofthe protest.

Page 18 GA0-09-770SP Guide to GAO Protective Orders

# AppendixB

UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington, D.C. 20548
Matter of: File: Agency: PROTECTIVE ORDER This protective order limits disclosure ofcertainmaterial and information submitted in the above-captioned protest, so thatnoparty obtaining access to protected material underthis orderwill gain a competitive advantage as a result ofthe disclosure. 1. This protective order applies to all material that is identified by any party asprotected, unless the GovernmentAccountability Office (GAO) specificallyprovides otherwise. Protectedmaterial includes information whether onpaper orin any electronic format. This protective order applies to all proceedings associated with theprotest,**~,** supplemental/amendedprotests, requests for reconsideration, and claims for costs. 2. Protected material ofany kind maybe provided only to GAO andto individuals authorized bythis protective order. The first page ofeach document containingprotected material is to be clearlymarked as follows: PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER

Page 19 GA0-09-770SP Guide to GAO Protective OrdersAppendix B

The party claiming protection must clearly identify the specific portion of the materialfor which it is claiming protection. Wherever suchprotection is claimed for a protestpleading, the party filing the pleading shall submit a proposed redactedversion for public release when the protectedversion is filed. 3. Only individuals who are admitted under this protective order by GAO, and support staff (paralegal, clerical, and administrativepersonnel) who are employed or supervised byindividuals admittedunderthis order, and who are notinvolved in competitive decisionn1aking for a partyto the protest orfor any firm that might gain a competitive advantage from access to theprotected material disclosed underthis order, shall have access to information coveredbythis order. Individuals admitted under this protective order shall advise such support staff, priorto providing them accessto protected material, oftheir obligations underthis order. 4. Eachpartyincludedunderthisprotective order shallreceive up to 3 copies ofthe protectedmaterial (the original constitutes one copy), and shall notfurther duplicate thatmaterial, except as incidental to its incorporationinto a submission to GAO oras otherwise agreedto by the parties with GAO's concurrence. Forpurpose ofthis provision, a "party" refers to the entity ofrecord. Therefore, multiple attorneys orlaw firms representing a single partymust determine among them howto allocate the maximum of3 copies among the individuals admitted to the protective order. Eachduplication ofelectronic**media(~,** CD Rom), whetherin electronic orhard copyform, constitutes a single copy. E-mail transmissionsto multiple recipients should be counted as generating one copyfor the sender and onefor eachrecipient. 5. When anyparty sends orreceives documents in connection with this protestthat are not designated as protected, including proposed redacted versions ofprotected documents, the party shall refrain from releasing the documents to anyone not admitted under this protective order, including clients, until the end ofthe second working day following receipt ofthe documents by all parties. This practicepermitsparties to identify documents thatshould have beenmarkedprotectedbefore the documents are disclosed to individuals not admitted underthis protective order.

Page 20 GA0-09-770SP Guide to GAO Protective OrdersAppendix B

6. Each individual covered underthis protective order shall take all precautions necessaryto prevent disclosure ofprotected material. In additionto physically and electronically securing, safeguarding, and restricting access to the protected material in one'spossession, these precautions include, but are notlimited to, sending and receiving protected material using physical and electronic methods that are within the control ofindividuals authorizedbythisprotective order orthat otherwise restrict access to protectedmaterial to individuals authorized bythisprotective order. Protectedmaterial maybe sent using electronic mail unless objected to by anyparty in this protest. The confidentiality of protected material shall be maintained inperpetuity. 7. Within 60 days afterthe disposition oftheprotest( s) (or ifa request for reconsideration ora claim for costs is filed, 60 days after the disposition of those matters), all protected material furnished to individuals admitted under this protective order, including all electronically transmitted material and copies ofsuch material, with the exception ofa single copy ofa protected decision orletter issued by our Office, shall be: (1) returned to the partythatproduced them; or (2) with the priorwritten agreement ofthepartythatproduced the protectedmaterial, destroyed and certified as destroyed to thepartythatproducedthem; or (3) with the priorwritten agreement ofthepartythatproducedtheprote<;ted material, retained underthe terms ofthis orderfor suchperiod as maybe agreed. Within the same 60-dayperiod, protectedpleadings (including copies in archival files and computerbackup files) and written and electronic transcripts ofprotest conferences andhearings shallbe destroyed, andthe destruction certified to GAO andthe otherparties, unless the parties agree otherwise. Inthe absence ofsuch agreement andfor good cause shown, theperiod for retention ofthe protectedmaterial underthis paragraph maybe extendedby order ofGAO. Any individual retaining material received underthis protective order (except for the single copy ofa protected decision orletterissued by our Office) beyond the 60-day period without the authorization ofGAO orthe prior written agreement ofthe partythatproducedthe material is in violation ofthis order. The terms of this protective order (exceptthose terms regarding the return or destruction ofprotected material) shall apply indefinitely to the single copyofthe protected decision orletter issuedby our Office that is retainedby a party admitted underthis order.

Page 21 GA0-09-770SP Guide to GAO Protective OrdersAppendix B

8. Material to which parties gain access underthisprotective order is to be used only for the subjectprotestproceeding, absent express prior authorization from the GAO. Protected material obtained underthis protective order may be used, however, in a bidprotest filed with the United States Court ofFederal Claims, without GAO's prior authorization, provided that the information is filed under seal with the Court, that the Courtis informed ofGAO's protective order, and that the Courtis requestedto issue its ownprotective orderto cover the protected material. In addition, GAO mustbe notified when suit is filed with the Court. Use of materialprotected underthe GAO protective orderwill be governed by the protective orderissued by the Court. 9. Any violation ofthe terms ofthis protective order may result in the imposition ofsuch sanctions as GAO deems appropriate, including but not limited to dismissal oftheprotest, referral ofthe violation to appropriate barassociations or other disciplinarybodies and restricting the practice of counsel before GAO. Apartywhose protected information is improperly disclosed shallbe entitledto all remedies under law or equity, including breach ofcontract.

[Insert GAO Attorney name] [Date]

Page 22 GA0-09-770SP Guide to GAO Protective Orders

# Appendix C**~niteo ~trues**  Qiourf of J\ppen1s fo:r i11e Jlfeoeml <!Ii:rruit

U. S. STEEL CORPORATION, ET AL., Appellants,
v. THE UNITED STATES AND U. S. INTERNATIONAL TRADE COMMISSION, Appellees, AND COSIPA, ET AL., Intervenors. Appeal No.

DECIDED: March 23, 1984 84-639

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and KASHIWA, Circuit Judge. MARKEY, Chief Judge. Interlocutory appeal on a certified question arising from a decision of the Court of International Trade 1/
. (CIT)- denyJ.ng u. s. Steel's (USS) corporate in-house counsel access to confidential information. We**~** and return. Background In Republic Steel Corp., supra, note 1, an action involving
a negative preliminary injury determination by the International Trade Commis;;ion (ITC), the CIT denied a motion for: access by USS' in-house counsel to certain confidential information while granting access to counsel retained by other parties
. Relying on an earlier decision in U. s. Steel corp.

. !/ Republic Ste>el Corp. v. United States, 572 F. Supp. 275 (Ct. Int'l. Traoe 1983}.

Page 23 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

v. United States, 569 F. supp. 870 (Ct. Int'l Trade 1983), vacated on other grounds, slip op. 84-12 (Ct. Int'l Trade Feb. 24, 1984), the court reiterated its view that the possibility of inadvertent disclosure by in-house counsel warranted denial of access. 572 F. Supp. at 276. That earlier decision, specifically incorporated into the decision on appeal here, acknowledged USS's need for the information but said that the information's nature and volume required a focus on the possibility of inadvertent disclosure. Though it accepted representations that the present in-house counsel are not involved in competitive decisions, the CIT nonetheless denied
access to in-house counsel because of their "general position" and "reasonable assumptions that they will move into other roles.• The CIT certified the access question in its decision. 572 F. Supp. at 277. This court granted USS's petition for review of that question on November 10, 1983, under 28 u.s.c. § 1292(a) (1), as amended by Federal courts Improvement Act of 1982, Pub. L. No. 97-164, S l25(a), 96 Stat. 25, 36 (1982). The case has proceeded with access granted to retained counsel and denied to in-house counsel. The United States joins uss in arguing that the CIT's decision constitutes a**~** se ban on access by in-house counsel and should be reversed in favor of a case-by-case balancing test without regard to whether counsel are in-house or retained.

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Page 24 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

The ITC takes no position on the pz:esent couz:t-denial of access, but seeks to pz:eserve its right to deny access by in-house counsel at the administrative level. Intervenors Companhia Sidez:urgica Paulista, s. A. (COSIPA)**~nd** Usinas Siderurgicas de Minas Gerais, S. A., of Brazil and Companhia Siderurgica Nacional are exporters of steel products seeking affirmance of the present denial. European exporters filed a brief amici curiae urging affirmance. Bethlehem Steel corporation filed a brief amicus curiae in support of reversal. Issue Whether the CIT erred in denying the present motion for
access. OPINION The authority of the CIT under 19 u.s.c. S 1516a(b)(2)(B) to control access to confidential information in cases before it is not in dispute.l/ In exercising that control in this case, the CIT carefully reviewed Atlantic Sugar, Ltd. v. United States, 85 Cust. Ct. 133, C.J<.D. 80-18 (1980) and available authorities dealing with access in other fields of law, made clear that its rationale carried no reflection 

### lf 19 u.s.c. S 1516a(b)(2)(B) provides: Confidential or pr1v1leged material. The confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action under this section. Notwithstanding the preceding sentence, the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order.

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Page 25 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

on the unquestioned integrity and unblemished record of USS' in-house counsel in adhering to protective orders, and indicated that retention of outside counsel was a reasonable way for USS to satisfy its recognized need for the requested information. Serving the interest of early and just resolutivn, the CIT certified to this court the question of whether access may be denied solely because of counsel's in-house status. Emphasizing congressional concern for confidentiality and the statutory provision, 19 u.s.c. S 1516a(b)(2)(B) for maintenance of confidentiality, the CIT denied access. It did so, however, only to in-house counsel, because of its concern, as it said, "solely with the greater risk of inadvertent disclosure within the corporate setting• (CIT's emphasis). Because what the CIT called the •extremely potent• information in this case fills several volumes and is intermixed with nonconfidential information, the CIT said "its nature and volume place it beyond the capacity of anyone to retain in a consciously separate category• and that the inadvertent disclosure • it is humanly impossible to control of some of this information in any prolonged working relationship. • The CIT recognized that those statements applied equally to retained counsel, but also recognized that applying it to both in-house and retained counsel would render adversarial proceedings impossible. The CIT's well-taken concern for the nature and scope of the information would be eminently applicable to (and would doubtl"'ss complicate) the crafting of a suitable protective order. That

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Page 26 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

concern, coupled with the CIT's emphasis on protection of confidentiality, might have JUStified denial of access to all and sundry. Once it became clear that access must be granted, however, it was error to deny access solely because of in-house counsel's "general position" and "reasonable assumptions" that present in-house counsel will move into other positions within USS. The denial of access here rested on the court's stated general assumption that there is "a greater likelihood of inadvertent disclosure by lawyers who are eillployees committed to remain in the environment of a single company•. Denial or grant of access, however, cannot rest on a general assumption that one group of lawyers are more likely or less likely inadvertently to breach their duty under a protective order. Indeed, it is common knowledge that some retained counsel enjoy long and intimate relationships and activities with one or more clients, activities
on occasion including retained counsel's service on a corporate board of directors. Exchange of employees between 3 client and a retained law firm is not uncommon. Thus the factual circumstances surrounding each individual counsel's activities, association, and relationship with a party, whether counsel be in-house or retained, must govern any concern for inadvertent or accidental disclosure. The CIT distinguished in-house from retained counsel because,
as it said, •a clear and more sustained relatiouship can be presumed as an outgrowth of the employer-employee relationship". It therefore saw exclusion of in-house counsel as providing "a

84-639

Page 27 GA0-09-770SP Gnide to GAO Protective OrdersAppendix C

meaningful increment of protection". Like retained counsel, however, in-house counsel are officers of the court, are bound by the same Code of Professional Responsibil i ty 1 and are subject to the same sanctions. In-house counsel provide the same services and are subject to the same types of pressures as retained counsel. The problem and importance of avoiding inadvertent disclosure is the same for both. Inadvertence, like the thief-in-the-night, is no respecter of its victims. Inadvertent
or accidental disclosure may or may not be predictable. To the extent that it may be predicted, and cannot be adequately forestalled in the design of a protective order, it may be a factor in the access decision. Whether an unacceptable opportunity for inadvertent disclosure exists, however, must be determined, as above indicated, by the facts on a counsel-by-counsel basis, and cannot be determined solely by giving controlling weight to the classification of counsel as in-house rather than retained.l/ Meaningful increments of protection are achievable in the design of a protective order. It may be that particular circumstances may require specific provisions in such orders. In such cases, the order would be developed in light of the particular counsel's relationship and activities, not solely on a counsel's status as in-house or retained. ll The parties have referred to involvement in "competitive decisionmaking• as a basis for denial of access. The phrase would appear serviceable as shorthand for a counsel's activities, association, and relationship with a client that are such as to involve counsel's advice and participation in any or all of the client's decisions (pricing, product design, etc.) made in light of similar or corresponding information about a competitor. 84-639

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Page 28 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

In a particular case,**~'** where in-house counsel are involved in competitive decisionmaking, it may well be that a party seeking access should be forced to retain outside counsel or be denied the access recognized as needed. Because the present litigation is extremely complex and at an advanced stage, and because present in-house counsel's divorcement from competitive decisionmaking has been accepted by the CIT, forcing uss to rely
on newly retained counsel would create an extreme and unnecessary hardship. Our decision here bears no relation to, and can have no effect on, ITC's rule establishing a**~ ~**  ban on disclosure to in-house counsel in its administrative proceedings. That rule is not before the court. The policy of an administrative agency faced with specific tasks and deadlines cannot of course control a trial court's discretion in managing the litigation before it. congress has granted discretion to control access to confidential information, in cases like the present, to the CIT. Whether the exercise of that discretion in the course of litigation would unacceptably "chill" the willingness to disclose such information at the administrative level is a matter for the Congress. On the other hand, our holding here, that access by· retained as well as in-house counsel should be governed by the facts, may serve to
reassure disclosers of confidential information. It is unnecessary for us to resolve the parties' dispute over whether the apparent emphasis on confidentiality in 19 u.s.c. § l516a(b)(2)(B), or the asserted emphasis on discovery in Rule

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Page 29 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

26, Fed.R.Civ.P. should control in this case. Though the requi cement to consider sounds in Rule 26 terms, the court has decided authorization in thethe facts rather than status of counsel it relates here only to cases in which to grant access in**~ccord** with the second sentence in 19 u.s.c. S l516a(b)(2)(B), supra, note 2. clear authority of the CIT to Nothing here said diminishes the deny access to all where the specific facts indicate a probability that confidentiality, under any form of protective order, would be seriously at risk. We do not here reverse the denial of access from which the certified question arose. listed in note counsel cannot Nor do we order a grant of access in the case 1, supra. we hold only that status as in-house alone create that probability of serious risk to confidentiality and cannot therefore serve as the sole· basis for denial of access. We have considered and find it unnecessary to discuss the arguments: that the CIT was here creating a**~** se rule requiring denial to all in-house counsel of access to any confidential information in all future cases; that the denial of access here constituted a violation of USS' right to choice of counsel or a disenfranchising of counsel without due process; that Rule 26, Fed. R. Civ. P., rathe:: than 19 U.S.C. S 1516a(b)(2)(B), should have been applied; and that the "staleness" of the information sought should dictate access.

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Page 30 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

CONCLUSION The certified question (whether access may be granted to retained and denied to in-house counsel solely on a presumption that inadvertent disclosure by the latter is more likely) is answered in the negative,**~.** a denial of access sought by in-house counsel on the sole ground of their status as in-house counsel is error. In further proceedings, access should be denied
or granted on the basis of each individual counsel's actual activity and relationship with the party represented, without regard to whether a particular counsel is in-house or retained. J..>ECISION In light of the foregoing, the order denying access to in-house counsel in the case listed in note 1, supra, must be vacated, and the question returned.

VACATEI.> and RETURNED

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Page 31 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

Jtlnitdx ;SUrles ll:ourt of**~~pptnls** for**~e .Jli'eiler~l**  ((irruit
U. S. STElL. COKPOKAT!UN, ET AL., ) ) Appellants, ) ) v. ) ) THE UNITED STATES AND U. S. ) lNTERMTIONAL TRADE COMMISSION, ) ) Appellees, ) ) and ) ) COSlPA, ET AL., ) ) Intervenors. ) AppeaL No. 84-h39

NiCHOLS, Senior Circuit Judge, dissenting.
I would affirm because 1 am not persuaded that CIT Judge watson abused his discretion. His decision has two things going for it this court does not mention. First, he conforms practice in his court to that of the lTC. We may say the ITC rule is not before us, yet we cannot overlook the anomaly that will exist if the court and the lTC enforce conflicting rules respecting the same documents. Second, the intervenors, original sources of the information in question, are willing for the court to allow disclosure to retained but not to in-house counsel. What they think is important because, if they consider the litigation is conducted in a manner unfair to them and in effeet a nontariff barrier to their trade, they could withPage 32 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

draw their marbles from our game and invite their own government to take retaliatory action against United States trade. Under all the circumstances, Judge Watson well may have thought whatever faults his disposition might suffer from

-- and hardly could he have imagined it was faultless

-- alternatives were worse. Factual inquiry into the relationship of in-house counsel with the makers of business policy in their companies, has an appearance, it cannot be denied, of greater fairness. One hopes, but does not much believe, it will not degenerate in practice into an invidious effort to throw doubt on the ability

-- if not the willingness

-- of certain members in good standing of the ClT bar, who happen to be currently employed as in-house counsel, to resist pressures to violate protective orders or not to yield "inadvertently." Not in this case, perhaps, but in cases for which this will be a precedent. At best a way is found to prolong the litigation and make it
more costly. The CIT judge will have to lay out a pretty rigid method of trial of this issue, one that will keep things within seemly limits and not take forever to implement, thus limiting the damage to what is endurable. l would be, on remand, inclined to consider seriously adoption of a simple alternative rule which our court majority also seems not to exclude,**~-,** if a document is

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Page 33 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

too sensitive to disclose to any counse1 of record, in good standing as a member of the CIT bar, it is too sensitive to disclose to any or all other such counsel. This is, I suppose, rejected by the CIT on its theory, as explained by Judge Watson, that the second sentence of 19 U.S.C. § l516a(b)(2)(B) nullifies the first once the court has examined the material in camera. Apparently the effect of the two sentences is believed to be to achieve practically nothing different from what Fed. K. Civ. P. 26 would effectuate if the Trade Agreements Act of 1979 had said nothing. The court majority here implies something different possibly to be the rule inasmuch as nothing in the second sentence requires grant of access to anyone. The supposed necessity of discriminating between retained and in-house counsel is, or may be, somewhat of a selfcreated dilemma. While the general rule is that sufficient necessity on the part of the discovering litigant will override any degree of sensitivity, this may not be
so where l516a(b) (2) (H) is applicable. Such an interpretation would recognize the differences in litigation where foreign traders and governments are so strongly interested in the procedure as well as the outcome, and relieves Congress of the imputation of having enacted futile "weasel" words. The matter has not been briefed and I do not wish to seem to rule upon it, even if, writing as a

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Page 34 GA0-09-770SP Guide to GAO Protective OrdersAppendix C

minority, I could. It seems to me th, , without discriminating among counsel or having to d, .:ide who is trustworthy, a court might find some other way of dealing with the problem. For example, a court appointed. expert, acceptable to both sides for expertise and impartiality, might examine the documents and advise the court as to what they reveal, in sanitized terms**sufficien~** to support
a legal conclusion, yet not divulging business or trade secrets. At any rate, the effect of the decision below, if it had stood, and if United States Steel had still refused to retain outside counsel as the CIT judge hoped it would, is not necessarily denial of justice to United States Steel, but a different thing, denial of the benefit of house counsel's advocacy. If United States Steel's counsel cannot examine these papers, it becomes incumbent on the court to examine them itself, in camera, and arrive at a just and lawful decis-ion using its own very considerable intellectual powers. lf this were the result, justice might possibly gain instead of losing, and 1 say this not meaning to denegrate the benefit to the court of adversary counsel's advocacy. This is a benefit, a· great one, but
one the court, if it must, can do without.

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Page 35 GA0-09-770SP Guide to GAO Protective Orders

# Appendix D

Matter of: File: Agency: UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington, D.C. 20548

APPLICATION FOR ACCESS TO MATERIAL UNDER A PROTECTIVE ORDER FOR OUTSIDE COUNSEL 1. I, , hereby apply for access to protected material coveredbythe protective orderissuedinconnectionwith thisprotest. 2. I am an attorney with the lawfirm of
___________which has beenretained to represent'---
___________ __,_ a partyto this protest. 3. I am a memberofthe bar(s) of
______ ;my barmembership number(s) is/are
4. My professional relationship withthe partyI represent in this protest andits personnel is strictly one oflegal counsel. I am notinvolved in competitive decisionmaking as discussed in U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalfofthe party I represent, any entitythatis aninterestedpartyto this protest, or any otherfirm that might gain a competitive advantage from access to the material disclosed undertheprotective order. I do notprovide advice orparticipate in any decisions ofsuchparties in matters involving similar or corresponding information about a competitor. This means thatI do not, for example, provide advice concerning orparticipate in decisions aboutmarketing oradvertising strategies, product research and development, productdesign orcompetitive structuring and composition ofbids, offers, orproposals with respectto which the use ofprotected material could provide a competitive advantage. 5. I identifY here (by writing "none" orlisting names and relevant circumstances) those attorneys in my firm who, to the best ofmy knowledge, cannot make therepresentations set forth in the precedingparagraph:

(Attach additional pages for this and the following questions, ifneeded.)

Page 36 GA0-09-770SP Guide to GAO Protective Orders6. I identify here (by writing "none" or listing names, position, and responsibilities) any member ofmy immediatefamily who is an officer or holds a managementposition with an interested party in the protest orwith any otherflrm that might gain a competitive advantage from access to the material disclosed nnderthe protective order:

7. I identify here (by writing "none" oridentifying the name ofthe forum, case number, date, and circumstances) instances within the last 2 years in which I have beendenied admission to a protective order, orhad admission revoked, orbeenfotmd to have violated a protective order issuedby GAO orby an administrative orjudicialtribtmal:

8. I identify here (by writing "none" orlisting the protest name and file number) any pending application for admission to a protective order issuedby GAO:

9. I have readthe protective orderissuedby GAO inthis protest, and I will comply in all respects with that order and will abide by its terms and conditions in handling any protected material filed orproducedin connectionwiththeprotest. 10. I acknowledge that any violation ofthe terms ofthe protective ordermayresultin the imposition ofsuch sanctions as GAO deems appropriate, includingbutnotlimited to dismissal ofthe protest, referral ofthe violation to appropriate bar associations orotherdisciplinary bodies, and restricting my practice before GAO. I further acknowledge that a party whose protected information is improperly disclosed shall be entitledto all remedies tmder law or equity, including breach ofcontract.

Page 37 GA0-09-770SP Guide to GAO Protective OrdersCERTIFICATION By my signature, I certify that, to the best ofmy knowledge, the representations setforth above (including any attached statements) are true and correct. I recognize thatknowingly making a false statement onthis application could renderme liable to a $10,000 fme or 5 years imprisonment, orboth, pursuantto 18 U.S.C.§ 1001. I identify belowthe mailing address and facsimile number atwhich I may receive protected material in accordance with the terms ofthe protective order.
Signature Date Executed
Typed Name and Title
Mailing Address

Direct Dial Telephone Number

Facsimile Number

E-mail Address

Page 38 GA0-09-770SP Guide to GAO Protective OrdersMatter of: File: Agency: UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington, D.C. 20548

APPLICATION FOR ACCESS TO MATERIAL UNDER A PROTECTIVE ORDER FOR IN-HOUSE COUNSEL 1. I, ,hereby apply for access to protectedmaterial covered bythe protective order issued in connection with this protest. 2. I am in-house counsel for
________________ , a partyto this protest. 3. I am a memberofthe bar(s) of
_______;my barmembership nurnber(s) is/are
4. My professional relationship with the party I representin this protest and itspersonnel is strictly one oflegal counsel. I am notinvolved in competitive decisionrnaking as discussed in U.S. Steel Com. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or onbehalfofthe party I represent, any entitythatis aninterestedpartyto thisprotest, orany other flnn that might gain a competitive advantage from access to the material disclosed under the protective order. I do notprovide advice orparticipate in any decisions ofsuchparties inmatters involving similar or corresponding information about a competitor. This means thatI do not, for example, provide advice concerning orparticipatein decisions aboutmarketing oradvertising strategies, product research anddevelopment, productdesign orcompetitive structuring and composition ofbids, offers, orproposals with respectto which the use ofprotected material could provide a competitive advantage.

Page 39 GA0-09-770SP Guide to GAO Protective Orders5. I have attached a detailed narrative providing the following information: (a) my position and responsibilities as in-house counsel, including my role in providing advice inprocurement-related matters; (b) the person(s) to whom I report, and theirposition(s) and responsibilities; (c) the number ofin-house counsel atthe office in which I work, and their involvement, if any, in competitive decisionmaking and inproviding advice in procurement-related matters; (d) my relationship to the nearestperson involved in competitive decisionmaking (both in terms ofphysical proximity and corporate structure); and (e) measures takento isolate me from competitive decisionmaking and to protect against the inadvertent disclosure ofprotected material topersons not admitted undertheprotective order. 6. I identify here (by writing "none" orlisting names, position, and responsibilities) any member ofmy immediate family who is an officer orholds a managementposition with an interestedparty in the protest orwithany other finn thatmightgain a competitive advantage from access to the material disclosed underthe protective order:

(Attach additional pages for this and the following questions, ifneeded.) 7. I identify here (bywriting "none" oridentifyingthe name ofthe forum, case number, date, and crrcumstances) instances withinthe last2 years in which I have been denied admission to a protective order, orhad admissionrevoked, orbeenfound to have violated a protective order issued by GAO orby an administrative orjudicialtribunal:

8. I identify here (by writing "none" orlisting the protestname and file number) any pending application for admissionto a protective orderissuedby GAO:

9. I have readthe protective orderissuedby GAO in thisprotest, and I will comply in all respects withthat order and will abide by its terms and conditions in handling anyprotected material flied orproducedin connectionwiththe protest.

Page 40 GA0-09-770SP Guide to GAO Protective Orders10. I acknowledge that any violation ofthe terms ofthe protective ordermay result in the imposition ofsuch sanctions as GAO deems appropriate, including butnotlimited to dismissal ofthe protest, referral ofthe violation to appropriate barassociations orother disciplinary bodies, and restricting my practice before GAO. I further acknowledge that a party whose protected informationis improperly disclosed shall be entitled to all remedies underlaw or equity, including breach ofcontract. CERTIFICATION By my signature, I certify that, to the best ofmy knowledge, the representations set forth above (including any attached statements) are true and correct. I recognize that lmowingly making a false statement onthis application could render me liable to a $10,000 fme or 5 years imprisonment, orboth, pursuantto 18 U.S.C. § 1001. I identifybelow the mailing address and facsimile number at which I may receive protected material in accordance with the terms ofthe protective order.
Signature Date Executed
Typed Name andTitle
Mailing Address

Direct Dial Telephone Number

Facsimile Number

E-Mail Address

Page 41 GA0-09-770SP Guide to GAO Protective OrdersMatter of: File: Agency: UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE OFFICE OF THE GENERAL COUNSEL PROCUREMENT LAW DIVISION Washington, D.C. 20548

APPLICATION FOR ACCESS TO MATERIAL UNDER A PROTECTIVE ORDER FOR CONSULTANT 1. I, , am a consultantemployed by , and hereby apply for access toprotectedmaterial covered bythe protective orderissued in connection with this protest. 2. Ihave beenretained by
_____and will, underthe direction and control ofthat attorney, assist inthe representation of in this protest. 3. I hereby certify that I am notinvolved in competitive decisionmaking for oron behalfofany partyto this protest orany otherfirm thatmight gain a competitive advantage from access to the material disclosed undertheprotective order. Neither I normy employerprovides advice orparticipates in any decisions ofsuchparties inmatters involving similar orcorresponding information abouta competitor. This means, for example, thatneither I normy employer provides advice concerning orparticipates in decisions about marketing or advertising strategies, productresearch and development, product design or competitive structuring and composition ofbids, offers, orproposals with respectto which the use ofprotected material couldprovide a competitive advantage. 4. My professional relationship with the partyfor whom I amretained in thisprotestand its personnelis strictly as a consultant on issuesrelevanttothe protest. Neither I, my spouse, nor anymember ofmy immediate family holds office ora managementposition in any company thatis a party in this protest, orin any competitor orpotential competitorofa party.

Page 42 GA0-09-770SP Guide to GAO Protective Orders5. I have attached the following information: (a) a currentresume describing my education and employmentexperience to date; (b) a list ofall clients for whom I have performed work within the 2years priorto the date ofthis application, and a briefdescription ofthe workperformed; (c) a list ofall clients for whom my employer hasperformed work within the 2years priorto the date ofthis application and for whom the use ofprotected material could provide a competitive advantage, and a briefdescription ofthe workperformed; (d) a statement ofthe services I am expected to perform in connection with this protest; (e) a description ofthe fmancial intereststhat I, my spouse, and/or my family has in any entity thatis an interested partyin this protestorwhose protectedmaterial will be reviewed; if none, I have so stated; (f) a list identifying by name offorum, case number, date, and circumstances all instances in which I have been granted admission orbeen denied admission to a protective order, or had a protective orderadmission revoked, orbeen found to have violated a protective orderissued by GAO orby an administrative orjudicialtribunal; ifnone, Ihave so stated; and (g) a statement ofthe professional associations to which I belong, including membership numbers. 6. I have read a copy ofthe protective orderissuedby GAO in this protest, and I will comply in all respects with all terms and conditions ofthat order in handling anyprotectedmaterial filed orproduced in connection with theprotest. I will notdisclose anyprotected material to any individual otherthanthose individuals admittedunderthe protective orderby GAO. 7. Fora period of2years from the date this application is granted, I will notengage or assistin the preparation ofa proposal to be submitted to any agency ofthe United States government for 

### * where I know orhave reasonto know that anypartyto theprotest, or any successorentity, will be a competitor, subcontractor, orteaming member. *Describe subject ofprocurement atissue in the protest 8. Fora period of2years from the date this application is granted, I will notengage orassistin the preparation ofa proposal for submissionto * for
__ *_*
_____ _ nor will I have any personal involvement in any such activity. *Name ofcontracting agency **Describe procurement at issue in the protest 9. I acknowledge that any violation ofthe terms oftheprotective ordermay resultin the imposition ofsuch sanctions as GAO deems appropriate, including butnotlimited to dismissal oftheprotest, referral ofthe violation to appropriate disciplinary bodies orprofessional associations, and restricting my practice before GAO. I further acknowledge that a party whose protectedinformationis improperly disclosed shall be entitled to all remedies underlaw orequity, including breach ofcontract.

Page 43 GA0-09-770SP Guide to GAO Protective OrdersCERTIFICATION By my signature, I certify that, to the best ofmy lmowledge, the representations set forth above (including attached statements) are true and correct. I recognize that lmowingly making a false statement on this application could render me liable to a $10,000 fine or5 years imprisonment, or both, pursuantto 18 U.S.C. § 1001. I identify below the mailing address and facsimile number at which I may receive protected material in accordance with the terms ofthe protective order.
Signature Date Executed Typed Name and Title Mailing Address
Direct Dial Telephone Number
Facsimile Number
E-mail Address
ATIORNEY'S CERTIFICATION The consultantnamed above has been retainedby me to assist in the representation of in this protest and will perform his/her duties in connection with this protestunder my direction and control.
Signature Date Executed Typed Name andTitle
Name ofFirm

Page 44 GA0-09-770SP Guide to GAO Protective Orders

### CERTIFICATE OF SERVICE 

### I certify that I have on this 16th day ofMarch 2012 served the foregoing motion ofVIH Cougar Helicopters, Inc. upon the persons listed below:
Susan L. 

### Kurland Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Lauralyn Remo Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 NewJersey Avenue, SE Room W96-495 Washington, DC 20590 Peter Lynch, AGC-300 Asst. ChiefCounsel for Enforcement Federal Aviation Administration 800 Independence Ave. SW Washington, DC 20591 William J. Weber Certification Section Manager FAA AFS-900 45005 Aviation Drive Suite 131 Dulles, VA 20166 Roy Hardie Aviation Safety Inspector Federal Aviation Administration 1601 Lind Avenue SW, Suite 260 Renton, W A 98057