BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

.:-1 ) ~ J: L~ 3 

In the matter of the 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 of the 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 FOR INTERESTED PARTIES PURSUANT TO THE TERMS 

PROPOSED IN THE MARCH 12, 2012 SHOW CAUSE ORDER 

Pursuant to Rule 12 of the Rules of Practice (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 of the 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 of such 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 of any VIH Cougar 

1 An 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 of the 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 of the 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 of this motion. 

As discussed below, the documents at issue contain confidential proprietary and personal 

private information that is exempt from public disclosure under Exemption 4 of the 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 of widely-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 of confidential 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 of a 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 of which 

contained additional confidential company information and stated that the materials were exempt 

from disclosure under FOIA. In short, all of the 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 de facto control of Mr. Kenneth Norie, a Canadian citizen. The Department asserted 

that its tentative finding was based on the "totality of the circumstances" of the relationship 

3 

DSMDB-3040548v I 
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 of the Department's review prior to public disclosure 

of this 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 of all previously submitted confidential documents, provided that they file an "appropriate 

affidavit" with the Department and present a stamped copy of the 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 of participating in the above-captioned proceeding; and 

(3) will disclose such information only to other persons 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 behalf of the party they 

represent or on behalf of any actual or potential competitors of VIH Cougar, nor are affiants 

required to explain what safeguards (if any) 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 of protected 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 of FOIA 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 & 

Conservation Ass '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 of information 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 of Exemption 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 and Border, 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 if it would not customarily be 

released to the public by the person from whom it was obtained, and if its release may "cause 

substantial harm to the competitive position of the person from whom the information was 

obtained." Nat 'I Parks & Conservation Ass 'n, 498 F.2d at 770. Under this rubric, the moving 

party need not show that the release of information would cause any actual competitive harm, but 

just that there is "actual competition" and a "likelihood of substantial 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 Air Force, 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 of the information, the 

Trade Secrets Act requires each agency to withhold any information it may withpold under 

Exemption 4 of the FOIA."3 !d. Accordingly, the Trade Secrets Act is coterminous with 

Exemption 4 of FOIA. 

3 If an agency makes a public disclosure of confidential trade secrets and/or commercial or 

financial information (or is about to make a public disclosure of such information under a FO IA 

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 of the 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 of a 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 of unfounded 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 of the 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-3040548v l 
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 of this information and, thus, in the interim has only published a summary ofthe Order in 

the Federal Register, an unredacted copy of the 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 of these 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 of only an unredacted version of its 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 of confidential 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 of Interested Parties to these Proceedings 

Pursuant to the Terms and Conditions Presently Set Forth 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 of pmiicipating in this proceeding" and 

(3) "the affiant will disclose such information only to other persons 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 of the 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 et seq., 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 of copies of protected 

information that can be made, as to minimize the potential of inadvertent disclosure. 6 GAO 

Guide at 3. They also require individuals admitted under the protective order to take "all 

precautions necessary"7 to prevent disclosure of protected 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 of individuals 

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 of confidential information or the inadvertent accessing of protected materials. !d. at 

6, 36-44. 

10 

DSMDB-3040548vl 
US. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. I 984). 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 behalf they 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 of receiving 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 of the 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 of factors, including 

the nature and sensitivity of the 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 of the client's decisions (pricing, product design, etc.) made in light of similar or 

corresponding information about a competitor." US. Steel Corp., 730 F.2d at 1468 n.3; see also, 

Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992); Matsushita Elec. Indus. 

Co., Ltd v. United States, 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 of inadvertent 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 of protected information. GAO Guide at 8. Finally, 

a violation of a GAO protective order carries the risk of severe sanctions, including but not 

limited to, dismissal of the protest, referral of the 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 of inadvertent 

disclosure of protected 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 of these 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) how many 

10 Other factors that are taken into account include whether counsel advises on business decisions 

decisions, the degree of physical separation and security with respect to those who participate in 

competitive decision-making, and the degree and level of supervision. 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 Field Eng'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 of confidential 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 or potential 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 of counsel, whether the applicant is inside or outside counsel for the interested party; (7) in 

the case of inside counsel, what additional protections or safeguards, if any, 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 of challenging an individual's application for access to protected 

information and no means for enforcing a violation for any unauthorized disclosure of protected 

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 of VIH 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 Department has decided this 

motion. Moreover, because the Depmiment already has authorized the interim release of 

13 

DSMDB-3040548v l 
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, if necessary, to the applications. Finally, VIH 

Cougar requested expedited consideration of this motion. 

III. CONCLUSION 

For the 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 behalf of the party they represent or any other 

actual or potential competitor in order to 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 of inside 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 of all 

business or personal relationships with competitive decision makers of the party 

they represent or any other actual or potential competitor of VIH Cougar; 

14 

DSMDB-3040548vl 
F. Limit the number of copies of confidential information that can be made and 

distributed; 

G. Limit the disclosure and use of confidential information to only matters related to 

the above-captioned proceeding; 

H. Require the return and/or destruction of all copied confidential information after 

the disposition of this proceeding; and 

I. Provide for penalties for any violation of the 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, 20 I 0 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, 20 I 0 Submission (Exhibit 

A Tab 8) 

16 

DSMDB-3040548vl 
21. C-FWDV Lease July 9, 20 I 0 Submission (Exhibit 

A Tab 9) 

22. C-FVIT Lease July 9, 2010 Submission (Exhibit 

A Tab 10) 

23. C-FYI G 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 I 0, 2009 Submission 

(Exhibit A Tab 2) 

29. VIH Cougar Pilot Roster August I 0, 2009 Submission 

(Exhibit A Tab 1 0) 

30. VIH Cougar Helicopters, Inc. July 9, 20 I 0 Submission (Exhibit 

List of Employees 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 of Emergency 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 I 0, 2005 Subcontract August I 0, 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-3040548vl 
41. Initial Aircraft Dry Sub-Lease August I 0, 2009 Submission 

between Cougar Helicopter and (Exhibit A Tab 14) 

Pacific 

18 

DSMDB-3040548vl 
EXHIBITB 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

In the matter of the canceJiation of the 

Air Taxi authol'ity issued to: Docket DOT-OST-2012-0022 

VIH COUGAR HELICOPTERS, INC. 

DECLARATION OF WILLIAM 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 of VIH Cougar since January 31, 2004, and as 

its secretary since November 28, 2006. In addition, I have been a director of VIH 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 of business, 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 of its information. I am competent 

to testify to the statements herein and would so testify if called to do so. 

3. I have reviewed the following documents, which were provided to the Department 

of Transportation ("Department") under the protection of the Trade Secrets Act, 18 U.S.C. 

§ 1905, and all applicable disclosure statutes and regulations, including Exemption 4 under the 

Freedom of Infonnation Act ("FOIA"), 5 U .S.C. § 552(b )( 4), in connection vvith the 

DSMDB-304042Jv l 
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 of certain search and rescue 

operations by Cougar Helicopters, Inc. ("Cougar Helicopters") (a separate and independent 

company from VIH Cougar) in the Gulf of Mexico. 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 customer relationships 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 provide Documents in response to informal 

informational requests by the Department pursuant to 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 of this 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 of unrelated third parties, VIH Cougar provided the 

Documents subject to the exemptions under FOIA, the Trade Secrets Act, and all other 

2 DSMDR-3040423v I 
applicable 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 Cougar Helicopters 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 of each 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 commercially valuable, 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 of this 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 with the August I 0, 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 of this 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 of the third-party investors referenced in the Documents to 

be confidential and non-public, and it is VIH Cougar's policy to redact the names of all 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 in c01mection 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 other personal 

identifiers for the employees and customers identified therein, none of whom 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 of any employees and 

customers, confidential as a means of protecting their privacy interests and rights as unrelated 

third parties, and will release such documents to the general public only if all identifying 

information (such as names, addresses, phone numbers, social security numbers, and/or similar 

identifiers) has been redacted or without redaction if prior consent from the party has been 

obtained. 

e. Finally, it is my understanding that certain documents1 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 
of Mexico. 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 if they 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 of the 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 of its 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 of third parties without appropriate restrictions on use and further 

dissemination of the information, in the case ofthe former, and in the case of the latter, without 

the express permission of the 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 Cougar is currently in competition \vith a number of different competitors in 

the helicopter air taxi services market. The public disclosure of this 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 of their operations 

confidential, including from competitors; and (iii) infringe on the privacy interests of third 

parties who have no relationship to any of the 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 of the Department's October 6, 2011 

letter to VIH Cougar's legal counsel and its March 12, 2012 Order to Show Cause. 

I hereby declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing 

is true and correct. 

William T. Steeper 

DATED this 16th day of March, 2012. 

6 DSMDB-3040423vl 
EXHIBIT C 
GAO 

June 2009 

- GA0-09-770SP 

United States Government Accountability Office 

Office of the General Counsel 

GUIDE TO GAO 

PROTECTIVE 

ORDERS 

GAO 
Contents 

I. Introduction· 

II. The Protective Order 

A. Protected Information 

B. Issuance 

C. Redactions 

D. Disposition of Protected Materials 

III. The Application Process 

A Who Can Apply 

B. The Application 

C. When to File 

D. Objections 

E. The Admission 

IV. Use of Protected Materials before Other Agencies and Courts 

V. Violations of GAO Protective Orders 

Appendix A 

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 

Under the 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 the protest all relevant documents 

to GAO and interested parties. Often these documents contain a company's 

proprietary or confidential data or the agency's source-selection-sensitive 

information that cannot be released publicly. 

GAO may issue a protective order to allow limited access to such "protected" 

information to attorneys, or consultants retained by attorneys, who meet certain 

requirements. 31 U.S. C. § 3553(f)(2); 4 C.F.R. § 21.4. A copy of section 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 of at the conclusion of the protest. 

Where no protective order is issued, the agency may withhold from the parties the 

portions of its report that would ordinarily be subject to a protective order; GAO 

will review in camera all 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 or confidential information, source-selection-sensitive information, or 

other information, the release of which could result in a competitive advantage to 

one or more firms, may be protected under a GAO protective order. Material or 

other information identified as protected by any party will be subject to 

protection under the terms of the protective order, unless GAO specifically 

provides otherwise. Protected material includes information whether on paper or 

in any electronic format. 

Each party included 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. "Party" refers to the entity of record; therefore, multiple 

attorneys or law firms representing a single party must determine among them 

how to allocate the maximum of three copies among the individuals admitted to 

the protective order. Each duplication of electronic media, whether in electronic 

or hard copy form, constitutes a single copy. E-mails to multiple recipients should 

be counted as generating one copy for the sender and one for each recipient. 

E-mail transmission of protected material is permitted unless objected to by a 

party to the protest. 

Information identified as protected may be disclosed by the parties only to GAO, 

the contracting agency, and other individuals admitted under the protective order. 

Protected material may also be disclosed to support staff (paralegal, clerical, and 

administrative personnel) who are employed or supervised by individuals 

admitted under the protective order and who are not involved in competitive 

decision making. 

It is the responsibility of individuals admitted under the protective order to take 

all precautions necessary to prevent disclosure of protected material. In addition 

to physically and electronically securing, safeguarding, and restricting access to 

the protected material in one's possession, these precautions include sending and 

receiving protected material using physical and electronic methods that are within 

the control of individuals authorized by the protective order or that otherwise 

restrict access to protected material to individuals authorized by the protective 

order. In view of these requirements, individuals who use such transmission 

methods as fax machines shared with individuals who are not authorized access 

to protected material under the protective order, or fax 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 or the control of their support staff, may need to 

take additional precautions to restrict access to protected material. 

These precautions also include advising support staff of their obligations prior to 

providing them with access to protected material. Support staff who are not 

directly employed or supervised by an individual admitted under the protective 

order may not be 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 of the individual admitted under the 

protective order. 

Because a protective order serves to facilitate the pursuit of a protest by a 

protester through counsel, it is, in the first instance, the responsibility of 

protester's counsel to request that a protective order be issued. Any other party 

may request the issuance of a 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 they retain may be admitted under a protective order, 

GAO will generally not issue a protective order, even if the record will include 

protected information, where the protester is proceeding without an attorney. 

A protective order package, which includes the protective order and the 

application(s) for access to material under a protective order, generally will be 

issued soon after a protest is filed and in many cases simultaneously with the 

protest acknowledgment notice. After issuance, the protective order will apply to 

all proceedings associated with the protest, e.g., supplemental and amended 

protests, requests for reconsideration, and claims for costs. A copy of the 

protective order can be found in appendix B and at www.gao.gov. 

It is the responsibility of the party preparing a protest filing protected under a 

GAO protective order to submit a version of the filing that omits protected 

information-a "redacted" version-to GAO and to each party authorized to 

receive protected material. This redacted version of the protest filing must be 

provided within 1 day after the protected version is filed. GAO will resolve 

disputes if the parties are unable to agree on the scope of proposed redactions. 

In any protest in which a protective order has been issued, a party receiving or 

sending documents that are not designated as protected, including proposed 

redacted versions of protected documents, may not release the documents to 

anyone not admitted under the protective order until the end of the second day 

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

following receipt of the document by all parties. This allows parties the 

opportunity to identify documents that should have been designated as protected 

material prior to their disclosure to individuals not admitted under the protective 

order. 

D. Disposition of Protected Material 

The GAO protective order provides specific instructions regarding the disposition 

of protected material at the conclusion of a protest. Parties to the protective 

order are directed that within 60 days after the disposition of the protest (or, if a 

request for reconsideration or a claim for costs is filed, 60 days after the 

disposition of those matters), all protected material furnished to individuals 

admitted under the protective order, including all electronically transmitted 

material and copies of such material, with the exception of a single copy of a 

protected decision or letter issued by GAO, must be (1) returned to the party that 

produced them; or (2) with the prior written agreement of the party that produced 

the protected material, destroyed and certified as destroyed to the party that 

produced them; or (3) with the prior written agreement of the party that produced 

the protected material, retained under the terms of the protective order for such 

period as may be agreed. Within the same 60-day period, protected pleadings 

(including copies in archival files and computer backup files) and written and 

electronic transcripts of protest conferences and hearings must be destroyed, and 

the destruction certified to GAO and the other parties unless the parties agree 

otherwise. In the absence of such agreement and for good cause shown, GAO 

may extend the period for retention of the protected material. 

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

A. Who Can Apply 

Only attorneys, or consultants retained by them, who represent an interested 

party or intervenor 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 staff who will be working on a protest and who are 

admitted to a bar, regardless of whether they are employed by the firm as 

attorneys, must apply for admission to the protective order. Applicants must 

establish that they are not involved in competitive decision making, as defined in 

US. Steel Corp. v. Umted States, 730 F.2d 1465 (Fed. Cir. 1984), for any company 

that could gain a competitive advantage from access to protected information, 

and that there will be no significant risk of inadvertent disclosure of protected 

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 of the client's decisions (pricing, product design, etc.) made in 

light of similar or corresponding information about a competitor. 

US. Steel Corp., 730 F.2d at 1468 n.3. A copy of the US. Steel Corp. decision can 

be found in appendix C. See also Brown Bag Software v. Symantec Corp., 960 

F.2d 1465 (9th Cir. 1992); Matsushita Elec. Indus. Co., Ltd v. United States, 929 F. 

2d 1577 (Fed. Cir. 1991). 

Each individual seeking admission to a GAO protective order must submit a 

separate application. Individuals permitted access to protected information under 

a GAO protective order are not allowed to disclose that information to others who 

are not admitted under the protective order, such as other members of the 

attorney's law fum who are not themselves admitted to the protective order or the 

attorney's client. 

B. The Application 

Applicants for admission to a GAO protective order must file the appropriate 

outside counsel, in-house counsel, or consultant application with GAO and all 

parties to the protest. Generally, the appropriate attorney's application will be 

attached to the protective order issued in a protest. The consultant's application 

can be obtained from the GAO staff attorney assigned to the protest. In addition, 

copies of these applications can be 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 order will establish that the 

individual is appropriate for admission (e.g., an attorney retained to represent an 

interested party in the protest or a consultant retained by such an attorney), is not 

involved in competitive decision-making, and has read the protective order issued 

by GAO in the protest and will comply in all respects with the terms and 

conditions of the protective order. A consultant seeking admission to the 

protective order should be prepared to provide a client list, and may also have to 

agree to certain future employment restrictions as a condition of receiving access 

to protected material. While GAO's consultant application suggests certain future 

employment restrictions, the parties may agree to different or other restrictions. 

Each applicant is 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 of the protective order. This information should 

comport with the protective order's requirement that parties send and receive 

protected material using physical and electronic methods that are within the 

control of individuals authorized by the protective order or that otherwise restrict 

access to protected material to individuals authorized by the protective order. 

The failure to accurately complete the application may result in denial and/or 

revocation of admission as well as other sanctions. For example, counsel's failure 

to accurately identify, as required, all instances within the last 2 years in which 

counsel had been denied admission to a protective order, had admission revoked, 

or had been found to have violated a protective order issued by GAO or by 

another administrative or judicial tribunal has resulted in the denial of admission 

to a GAO protective order, the revocation of admission to a GAO protective order, 

and the imposition of a bar on access to protected material for a specified period. 

Applications for admission to a protective order should be filed as soon as 

possible after the issuance of the protective order. Delays in filing applications 

for access to protected material, as well as requests for issuance of a protective 

order, will generally not provide a basis for extending the time within which 

comments on an agency report must be 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 of receipt of the application. 4 C.F.R. § 21.4(c). In reviewing 

applications for admission to a protective order, GAO considers and balances a 

variety of factors, including the nature and sensitivity of the material to be 

protected, the attorney's need for the confidential 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 of inadvertent disclosure. See McDonnell Douglas 

C01p., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD, 51. 

Because the information released under a protective order is not GAO's, but 

rather the contracting agency's or the other parties', GAO relies upon these parties 

to timely object to an application for access to protected material. GAO will 

generally admit an applicant to a protective order where there is no objection 

raised. Parties who have no objections to the admission of individual applicants 

may waive the 2-day period for filing objections in order to expedite the 

admissions process. 

E. The Admission 

1. Outside Counsel 

GAO will issue a written notice identifying all individuals who are admitted under 

a GAO protective order and who are thus entitled to have access to protected 

material. Individuals who are denied access to protected material will be 

informed in writing of the basis for their denial. 

Although it is often easier for outside counsel to establish that they 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 of whether that attorney is involved in competitive 

decision making. Allied-Signal Aerospace Co., B-250822, B-250822.2, 

Feb. 19, 1993, 93-1 CPD , 201. 

In Allied-Signal, GAO denied access to outside counsel for the awardee, a 

subsidiary of a parent corporation, because the attorney served as a corporate 

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

officer for two other subsidiaries and represented at least nine subsidiaries in the 

previous 3 years, suggesting that the attorney had a management relationship with 

the companies that cut across corporate boundaries. The attorney's role as 

competitive decision maker was found to present too great a risk of inadvertent 

disclosure of protected materials. 

In LeBoeuf, Lamb, Greene & MacRae, B-283825, B2283825.3, Feb. 3, 2000, 2000 

CPD ~ 35, GAO admitted protester's counsel over the agency's objection that a 

partner in counsel's firm was listed as a personal reference for a key employee in 

the protester's proposal, finding that there was no evidence that counsel or the 

partner participated in competitive decision making and that the nature of the 

relationships was limited. GAO also found without merit the objection that 

counsel might be witnesses regarding the evaluation of the protester's proposal 

because that evaluation was not challenged and because there was no showing 

that the remote possibility that the partner could be a witness might present an 

unacceptable risk of inadvertent disclosure. GAO finally found that the blanket 

objection that counsel did not have an established bid protest practice and an 

established process for conformity to the strictures of the GAO protective order 

was no reason to question counsel's representations that they had read the 

protective order and would abide by its terms and conditions. 

In Mine Safety Appliances Co., B-242379.2, B-242379.3, Nov. 27, 1991, 91-2 CPD 

~ 506, GAO admitted the protester's attorneys to a protective order even though 

they were associated with a law firm in which the managing partner's home office 

served on the protester's board of directors. The attorneys were found not to 

participate in competitive decision making, vowed not to discuss any protected 

information with the individual in the firm serving on the protester's board of 

directors, and agreed to special procedures to protect the information (analogous 

to the procedures for the protection of classified materials), including using a 

locked cabinet, maintaining a log and a special data processing file for the protest, 

and limiting access to the data processing file. 

In Maritjme BertMng; Inc., B-284123.3, Apr. 27, 2000, 2000 CPD ~ 89, GAO 

admitted outside counsel for the protester over the agency's objection that he was 

listed as an authorized negotiator for another firm that was awarded a contract for 

another part of the solicitation and which was owned by the same group of 

principals as owned the protester, and had been listed as an authorized negotiator 

for other firms owned by these principals in prior agency procurements. GAO 

found that his designation as an authorized negotiator required closer scrutiny of 

his application, but that the question of admission was to be resolved on a caseby-case basis. In this case, GAO admitted counsel because he had performed no 

activities in this capacity, agreed to withdraw as the contract negotiator under the 

Page 9 GA0-09-770SP Guide to GAO Protective Orders 
2. In-House Counsel 

III. The Application Process 

contract, and agreed not to serve as or be designated as an authorized negotiator 

for the companies owned by these principals in the future. 

In Colonial Storage Co.; Paxton Van Line~ Inc., B-253501.5 et al., Oct. 19, 1993, 

93-2 CPD if 234, GAO denied admission to outside counsel for the awardee where 

the record established that the attorney was involved in competitive decision 

making-specifically, the attorney represented the awardee at a pre solicitation 

conference and participated in price discussions between the awardee and the 

agency in the course of the pro.curement. 

In Ralvin Pacific Dev., Inc., B-251283.3, June 8, 1993, 93-1 CPD if 442, GAO did not 

admit outside counsel employed by protester where there was evidence in the 

record that these attorneys were involved in competitive decision making-that 

is, conducting ongoing lease negotiations with the agency on behalf of the 

protester's affiliate. The attorneys withdrew their applications for admission. 

In considering applications of in-house counsel, GAO considers such factors as 

whether the in-house counsel advises on pricing and product design decisions, 

including the review of bids and proposals; the degree of physical separation and 

security with respect to those who participate in competitive decision making; 

and the degree and level of supervision to which in-house counsel is subject. In 

determining whether access is appropriate, GAO considers not only the 

applicant's role with respect to competition for federal government business, but 

also the individual's role in the commercial marketplace and in relation to other 

business activities where corporate decisions are made in light of information 

about competitors that might be disclosed under a protective order. 

In Hobbins-Gioia, Inc., B-274318 et al., Dec. 4, 1996, 96-2 CPD ,- 222, GAO admitted 

in-house counsel for the awardee over the agency's objection where the record 

established that the attorney did not participate in competitive decision making; 

the fact that the in-house counsel reported to a competitive decision maker did 

not alone demonstrate that there was an unacceptable risk of inadvertent 

disclosure of protected material. 

Admission of in-house counsel to a protective order was denied where, in 

balancing the need to protect the confidentiality of sensitive information with the 

party's need to have access to the information to pursue the protest, GAO found 

that there was an unacceptable risk of inadvertent disclosure because the 

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 that the in-house counsel needed access to the information to help 

the party pursue its protest. McDonnell Douglas Corp., B-259694.2, B-259694.3, 

June 16, 1995, 95-2 CPD ~ 51. 

GAO granted access to a senior attorney in a company litigation section where the 

litigation section was a separate and distinct operation devoted exclusively to 

litigation and the attorney was "walled off' from competitive decision making. 

US Sprint 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 

company management, such that counsel advises or participates in competitive 

decision making. Earle Palmer Brown Cos., Inc., B-243544, B-243544.2, Aug. 7, 

1991, 91-2 CPD ~ 134; Dataproducts New Englan~ Inc., et al., B-246149.3 et al., 

Feb. 26, 1992, 92-1 CPD ~ 231; Bendix Field Eng'g Corp., B-246236, Feb. 25, 1992, 

92-1 CPD ~ 227. 

GAO denied admission to corporate counsel who was involved in competitive 

decision making with respect to other business matters, such as mergers and 

acquisitions, where there was more than a minimal risk of inadvertent disclosure 

of information from the protest concerning the competitor who was involved in 

the merger talks. Atlantic Research Corp., B-247650, June 26, 1992, 92-1 CPD 

~ 543. 

GAO has granted a limited admission to in-house counsel to permit counsel 

access to counsel's own company's evaluation documents concerning the 

company's exclusion from the competitive range. By agreement of counsel, the 

in-house counsel did not receive access to its competitors' proposals and 

evaluations. SRI lnt~ Inc., B-250327.4, Apr. 27, 1993, 93-1 CPD ~ 344. 

GAO's policy is to allow protesters to choose the assistance they deem necessary 

to pursue their protest. In Bendix Field Eng'g Corp., B-246236, Feb. 25, 1992, 92-1 

CPD ~ 227, GAO admitted consultants to a protective order to provide assistance 

to counsel in their review of the agency's cost realism evaluation where, although 

the agency objected that the consultants were not necessary, there was no other 

objection to the admissibility of the consultants. See also Global Readiness 

Enters., B-284714, May 30, 2000, 2000 CPD , 97. 

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

However, in EER Sys. Corp., B-256383 et al., June 7, 1994,94-1 CPD ~ 354, GAO 

denied admission to consultants for the protester, even though it was unclear that 

granting access to protected material to these consultants would pose a major 

risk of inadvertent disclosure, where the protected material was undeniably 

sensitive and valuable such that disclosure of the information would cause serious 

competitive harm to the awardee, the awardee challenged the admissibility of the 

consultants, and GAO determined that it and the protester could fairly and 

reasonably address the specific protest issues without the admission of the 

protester's consultants. 

Admission of consultants was denied where the consultants failed to agree to not 

engage or assist in the preparation of a proposal to be submitted to any agency of 

the United States government for environmental remediation services for a period 

of 2 years. GAO found that the failure to agree to this restriction would require 

the consultants to continually compartmentalize information to protect 

information obtained under our protective order, which created more than a 

minimal risk of inadvertent disclosure. Restoration and Closure Servs., LLC, 

B-295663.6, B-295663.12, Apr. 18, 2005, 2005 CPD, 92. 

In Systems Research and Applications Corp./ Booz Allen Hamilton, Inc., B-299818 

et al., Sept. 6, 2007, 2008 CPD ~ 28, GAO admitted a consultant to the protective 

order, over the objection that the consultant once held a position with the 

protester and that the consultant's daughter was currently employed by the 

protester, where the record established that the consultant had no continuing 

interest in the protester and that the consultant's daughter held a relatively 

low-level position with the protester in a division that was unrelated to the work 

to be performed under the protested contract. 

Page 12 GA0-09-770SP Guide to GAO Protective Orders 
IV. Use of Protected Material before 

Other Agencies and Courts 

Material to which parties gain access under a GAO protective order may only be 

used in the protest proceedings for which the protest was issued, absent express 

prior written authorization from GAO. 

GAO's protective order, however, permits the use of protected material obtained 

under the protective order in a bid protest ftled with the United States Court of 

Federal Claims, without GAO's prior authorization, provided that the information 

is ftled under seal with the Court, that the Court is informed of GAO's protective 

order, and that the Court is requested to issue its own protective order to cover 

the protected material. In addition, GAO must be notified when suit is ftled with 

the Court. Use of material protected under the GAO protective order will be 

governed by the protective order issued by the Court. 

Requests for authorization to use protected material in other fora, other than the 

United States Court of Federal Claims, must be made in writing to GAO, with 

notice to all parties, and must establish that protected material will be 

safeguarded, e.g., by the forum's issuance of a protective order. 

Page 13 GA0-09-770SP Guide to GAO Protective Orders 
V. Violations of GAO Protective Orders 

Any violation of a protective order is a serious matter, regardless of whether it 

results in an improper disclosure of protected material. Violations of the terms of 

a protective order will result in the imposition of such sanctions as GAO deems 

appropriate, including but not limited to dismissal of the protest, referral of the 

violation to the appropriate bar associations or other disciplinary bodies, and 

restricting the individual's practice before GAO. 

Violations of the GAO protective order have included instances where protected 

material has been disclosed, inadvertently or otherwise, to individuals not 

admitted under the GAO protective order; where protected material was disclosed 

to other fora without prior permission from GAO; where applicants failed to 

comply with the requirement to disclose prior violations of a GAO protective 

order; and where individuals improperly retained protected material beyond the 

disposition date required by the protective order. The following is a brief 

discussion of instances where protected material has been disclosed to 

individuals not admitted under the GAO protective order, the most common 

violation. 

Most of these have been inadvertent violations resulting from counsel's failure to 

carefully review documents to be sent to the client to ensure that no protected 

material is included. Counsel have, for example, failed to ensure that all agreedupon redactions were included in the redacted version of a document sent to the 

client; failed to fully read instructions from the sender regarding the releasibility 

of documents; and failed to place a protective legend on a supplemental protest, 

which led to the transmission of protected material to the client. Several of these 

violations underscore the importance of giving support staff adequate instructions 

regarding their responsibilities in handling protected material. Support staff have, 

for example, inadvertently included protected documents along with the redacted 

documents to be mailed or faxed to the client, improperly forwarded a protected 

GAO decision to the client, and improperly faxed protected material to the client 

as a result of erroneous or unclear instructions from counsel. In nearly all of 

these cases, counsel immediately recognized the error and retrieved the protected 

material before the client could review its contents. Nonetheless, in all of these 

cases, the violations and resulting sanctions could have been avoided had counsel 

taken all necessary precautions to prevent disclosure of protected material. 

Those precautions can be particularly critical when protected material is being 

transmitted from one protest party to another. In one instance, it came to GAO's 

attention that the fax number printed on the letterhead used by the protester's 

counsel was connected to a fax machine located in shared space, separate from 

counsel's office, not under his control, and shared by several different firms and 

businesses. GAO found that counsel's dissemination of a 

Page 14 GA0-09-770SP Guide to GAO Protective Orders 
IV. Violations of GAO Protective Orders 

number for a fax machine that was not in his control-without advising GAO and 

other parties to the protest of this fact-fell short of the standard of care 

necessary to safeguard protected information. The standard protective order 

expressly requires individuals to send and receive protected material using 

physical and electronic methods that are within the control of individuals 

authorized by the protective order or that otherwise restrict access to protected 

material to individuals authorized by the protective order. 

In PWC Logistics Servs. Co. KSC(c), B-310559, Jan. 11, 2008, 2008 CPD , 25, GAO 

dismissed the protest because of a violation of the terms of the protective order 

issued in connection with the protest where protected material 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 part documents that were marked as protected, undermined the 

protective order's effectiveness and thereby the integrity of GAO's protective 

order process. 

Several violations have involved the inadvertent oral disclosure of protected 

information. In one instance, GAO admonished protester's counsel and a 

consultant where the manner in which the consultant asked questions of the 

protester's representative, who was not admitted to the protective order, 

disclosed, in part, the intervenor's technical approach. In a similar instance, GAO 

admonished two of intervenor's counsel where a consultant not yet admitted to 

the protective order was able to infer facts reflecting protected material about the 

protester's cost proposal on the basis of sequential conversations with counsel. 

As GAO advised in a letter to counsel, it is true that counsel admitted to a 

protective order must be vigilant in ensuring that their conversations with parties 

not admitted to the protective order do not include language that is protected per 

se, but it is equally true that counsel must be vigilant in ensuring that these 

conversations do not include language sufficient to disclose protected 

information. 

In another instance, protester's counsel orally disclosed to the client features of 

the awardee's proposal that led to its selection. GAO rejected counsel's argument 

that the GAO protective order was inconsistent with his state's rules of conduct 

requiring counsel to explain matters to the client to the extent necessary for the 

client to make informed decisions. In a letter to counsel, GAO stated that the 

state's rules also provided that rules or court orders governing litigation might 

provide that information supplied to counsel may not be disclosed to the client, 

and directed compliance with such rules or orders. GAO also stated that if 

counsel believed that the protective order process was invalid he should not have 

certified his willingness to abide by its terms in his application for admission. 

Page 15 GA0-09-770SP Guide to GAO Protective Orders 
IV. Violations of GAO Protective Orders 

GAO sanctioned counsel by barring him from access to protected material for 2 

years and by referring the matter to 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 connection with the protest to anyone not admitted under the 

protective order prior to the end of the 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 on the 

date the report was received. The day after receipt of the report, the intervenor 

identified as protected certain material contained within some of the documents 

that the agency had indicated were releasable. GAO admonished counsel for this 

violation. In another instance, GAO admonished counsel who, immediately upon 

receipt of the agency report, copied and gave his client the parts of the report that 

were not designated as protected. GAO rejected counsel's explanation that 

because he intended to be out of the office and thought it necessary to furnish the 

non protected parts of the report to his client for its immediate assistance, he did 

not ask the agency if he could make the disclosure prior to the expiration of the 

2-day period. As the protective order itself expressly states, the 2-day rule permits 

parties to identify documents that should have been marked protected before the 

documents are disclosed to individuals not admitted under the protective order. 

Improper disclosures of protected material have occurred where unilateral 

redactions of protected material are provided to individuals not admitted under 

the protective order. In one instance, intervenor's counsel unilaterally prepared a 

redacted version of draft comments and gave it to the client. The redacted 

version contained protected material. Although counsel argued that their actions 

were inadvertent, counsel also argued that they had the right to unilaterally 

prepare and release redacted versions of documents that have not yet been filed 

with GAO or which were sent or received from another party to the protest. GAO 

disagreed, finding that counsel violated the requirement not to release a proposed 

redacted version of a protected document. Such a practice would render 

meaningless the essential protection afforded by the issuance of a protective 

order, i e., to give all other parties a fair opportunity to propose additional 

redactions ·of protectable information. GAO sanctioned counsel by restricting 

their access to protected material for 3 months. 

Finally, counsel have occasionally improperly disclosed protected material to 

other members of the law firm based upon the erroneous belief that the protective 

order application was on behalf of the entire law firm. Since an attorney in the 

firm who is not admitted to the protective order does not fall within the category 

of individuals eligible to examine protected material, such as support staff, GAO 

Page 16 GA0-09-770SP Guide to GAO Protective Orders 
IV. Violations of GAO Protective Orders 

admonished both counsel for violating the protective order. In letters to both, 

GAO stated that application for admission under a GAO protective order entails 

individual representations and certifications, subject to review by the 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 or particular professional 

responsibilities. 

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

Sec. 21.4 Protective Orders 

(a) At the request of a party or on its own initiative, GAO may issue a 

protective order controlling the treatment of protected information. Such 

information may include proprietary, confidential, or source-selectionsensitive material, as well as other information the release of which could 

result in a competitive advantage to one or more firms. The protective 

order shall establish procedures for application for access to protected 

information, identification and safeguarding of that information, and 

submission of redacted copies of documents omitting protected 

information. Because a protective order serves to facilitate the pursuit of a 

protest by a protester through counsel, it is the responsibility of protester's 

counsel to request that a protective order be issued and to submit timely 

applications for admission under that order. 

(b) If no protective order has been issued, the agency may withhold 

from the parties those portions of its report that would ordinarily be 

subject to a protective order. GAO will review in camera all information 

not released to the parties. 

(c) After a protective order has been issued, counsel or consultants 

retained by counsel appearing on behalf of a party may apply for 

admission under the order by submitting an application to GAO, with 

copies furnished simultaneously to all parties. The application shall 

establish that the applicant is not involved in competitive decision-making 

for any firm that could gain a competitive advantage from access to the 

protected information and that there will be no significant risk of 

inadvertent disclosure of protected information. Objections to an 

applicant's admission shall be raised within 2 days after receipt of the 

application, although GAO may consider objections raised after that time. 

(d) Any violation of the terms of a protective order may result in the 

imposition of such sanctions as GAO deems appropriate, including referral 

to appropriate bar associations or other disciplinary bodies, restricting the 

individual's practice before GAO, prohibition from participation in the 

remainder of the protest, or dismissal of the 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 of certain material and information 

submitted in the above-captioned protest, so that no party obtaining 

access to protected material under this order will gain a competitive 

advantage as a result of the disclosure. 

1. This protective order applies to all material that is identified by any 

party as protected, unless the Government Accountability Office (GAO) 

specifically provides otherwise. Protected material includes information 

whether on paper or in any electronic format. This protective order 

applies to all proceedings associated with the protest, ~, 

supplemental/amended protests, requests for reconsideration, and claims 

for costs. 

2. Protected material of any kind may be provided only to GAO and to 

individuals authorized by this protective order. The first page of each 

document containing protected material is to be clearly marked 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 Orders 
Appendix B 

The party claiming protection must clearly identify the specific portion of 

the material for which it is claiming protection. Wherever such protection 

is claimed for a protest pleading, the party filing the pleading shall submit 

a proposed redacted version for public release when the protected version 

is filed. 

3. Only individuals who are admitted under this protective order by GAO, 

and support staff (paralegal, clerical, and administrative personnel) who 

are employed or supervised by individuals admitted under this order, and 

who are not involved in competitive decisionn1aking for a party to the 

protest or for any firm that might gain a competitive advantage from 

access to the protected material disclosed under this order, shall have 

access to information covered by this order. Individuals admitted under 

this protective order shall advise such support staff, prior to providing 

them access to protected material, of their obligations under this order. 

4. Each party included under this protective order shall receive up to 3 

copies of the protected material (the original constitutes one copy), and 

shall not further duplicate that material, except as incidental to its 

incorporation into a submission to GAO or as otherwise agreed to by the 

parties with GAO's concurrence. For purpose of this provision, a "party" 

refers to the entity of record. Therefore, multiple attorneys or law firms 

representing a single party must determine among them how to allocate 

the maximum of 3 copies among the individuals admitted to the protective 

order. Each duplication of electronic media(~, CD Rom), whether in 

electronic or hard copy form, constitutes a single copy. E-mail 

transmissions to multiple recipients should be counted as generating one 

copy for the sender and one for each recipient. 

5. When any party sends or receives documents in connection with this 

protest that are not designated as protected, including proposed redacted 

versions of protected documents, the party shall refrain from releasing the 

documents to anyone not admitted under this protective order, including 

clients, until the end of the second working day following receipt of the 

documents by all parties. This practice permits parties to identify 

documents that should have been marked protected before the documents 

are disclosed to individuals not admitted under this protective order. 

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

6. Each individual covered under this protective order shall take all 

precautions necessary to prevent disclosure of protected material. In 

addition to physically and electronically securing, safeguarding, and 

restricting access to the protected material in one's possession, these 

precautions include, but are not limited to, sending and receiving 

protected material using physical and electronic methods that are within 

the control of individuals authorized by this protective order or that 

otherwise restrict access to protected material to individuals authorized 

by this protective order. Protected material may be sent using electronic 

mail unless objected to by any party in this protest. The confidentiality of 

protected material shall be maintained in perpetuity. 

7. Within 60 days after the disposition of the protest( s) (or if a request for 

reconsideration or a 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 of such material, with the exception of a single copy 

of a protected decision or letter issued by our Office, shall be: (1) 

returned to the party that produced them; or (2) with the prior written 

agreement of the party that produced the protected material, destroyed 

and certified as destroyed to the party that produced them; or (3) with the 

prior written agreement of the party that produced the prote<;ted material, 

retained under the terms of this order for such period as may be agreed. 

Within the same 60-day period, protected pleadings (including copies in 

archival files and computer backup files) and written and electronic 

transcripts of protest conferences and hearings shall be destroyed, and the 

destruction certified to GAO and the other parties, unless the parties agree 

otherwise. In the absence of such agreement and for good cause shown, 

the period for retention of the protected material under this paragraph 

may be extended by order of GAO. Any individual retaining material 

received under this protective order (except for the single copy of a 

protected decision or letter issued by our Office) beyond the 60-day period 

without the authorization of GAO or the prior written agreement of the 

party that produced the material is in violation of this order. The terms of 

this protective order (except those terms regarding the return or 

destruction of protected material) shall apply indefinitely to the single 

copy of the protected decision or letter issued by our Office that is 

retained by a party admitted under this order. 

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

8. Material to which parties gain access under this protective order is to 

be used only for the subject protest proceeding, absent express prior 

authorization from the GAO. Protected material obtained under this 

protective order may be used, however, in a bid protest filed with the 

United States Court of Federal Claims, without GAO's prior authorization, 

provided that the information is filed under seal with the Court, that the 

Court is informed of GAO's protective order, and that the Court is 

requested to issue its own protective order to cover the protected material. 

In addition, GAO must be notified when suit is filed with the Court. Use of 

material protected under the GAO protective order will be governed by the 

protective order issued by the Court. 

9. Any violation of the terms of this protective order may result in the 

imposition of such sanctions as GAO deems appropriate, including but not 

limited to dismissal of the protest, referral of the violation to appropriate 

bar associations or other disciplinary bodies and restricting the practice of 

counsel before GAO. A party whose protected information is improperly 

disclosed shall be entitled to all remedies under law or equity, including 

breach of contract. 

[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 Orders 
Appendix 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. 

84-639 - 2 -

Page 24 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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. 

84-639 - 3 -

Page 25 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 

84-639 - 4 -

Page 26 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 Orders 
Appendix 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 Res pons ibi l 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 - 6 -

Page 28 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 

84-639 - 7 -

Page 29 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 the 

the 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. 

84-639 - !J -

Page 30 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 

84-639 - 9 -

Page 31 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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 in formation 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 Orders 
Appendix 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 

Cl T 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 

- L: -

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

too sensitive to disclose to any counse 1 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 

- 3 -

Page 34 GA0-09-770SP Guide to GAO Protective Orders 
Appendix 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. 

- 4 -

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 

covered by the protective order issued in connection with this protest. 

2. I am an attorney with the law firm of ___________ which has been retained to 

represent'---___________ __,_ a party to this protest. 

3. I am a member of the bar(s) of ______ ; my bar membership number(s) is/are 

4. My professional relationship with the party I represent in this protest and its personnel is 

strictly one of legal counsel. I am not involved in competitive decisionmaking as discussed in 

U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I 

represent, any entity that is an interested party to this protest, or any other firm that might gain 

a competitive advantage from access to the material disclosed under the protective order. I do 

not provide advice or participate in any decisions of such parties in matters involving similar or 

corresponding information about a competitor. This means that I do not, for example, provide 

advice concerning or participate in decisions about marketing or advertising strategies, product 

research and development, product design or competitive structuring and composition of bids, 

offers, or proposals with respect to which the use of protected material could provide a 

competitive advantage. 

5. I identifY here (by writing "none" or listing names and relevant circumstances) those 

attorneys in my firm who, to the best of my knowledge, cannot make the representations set 

forth in the preceding paragraph: 

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

Page 36 GA0-09-770SP Guide to GAO Protective Orders 
6. I identify here (by writing "none" or listing names, position, and responsibilities) any 

member of my immediate family who is an officer or holds a management position with an 

interested party in the protest or with any other flrm that might gain a competitive advantage 

from access to the material disclosed nnder the protective order: 

7. I identify here (by writing "none" or identifying the name of the forum, case number, date, 

and circumstances) instances within the last 2 years in which I have been denied admission to 

a protective order, or had admission revoked, or been fotmd to have violated a protective order 

issued by GAO or by an administrative or judicial tribtmal: 

8. I identify here (by writing "none" or listing the protest name and file number) any pending 

application for admission to a protective order issued by GAO: 

9. I have read the protective order issued by GAO in this 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 or produced in connection with the protest. 

10. I acknowledge that any violation of the terms of the protective order may result in the 

imposition of such sanctions as GAO deems appropriate, including but not limited to dismissal 

of the protest, referral of the violation to appropriate bar associations or other disciplinary 

bodies, and restricting my practice before GAO. I further acknowledge that a party whose 

protected information is improperly disclosed shall be entitled to all remedies tmder law or 

equity, including breach of contract. 

Page 37 GA0-09-770SP Guide to GAO Protective Orders 
CERTIFICATION 

By my signature, I certify that, to the best of my knowledge, the representations set forth above 

(including any attached statements) are true and correct. I recognize that knowingly making a 

false statement on this application could render me liable to a $10,000 fme or 5 years 

imprisonment, or both, pursuant to 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 of the 

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 Orders 
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 IN-HOUSE COUNSEL 

1. I, , hereby apply for access to protected material covered 

by the protective order issued in connection with this protest. 

2. I am in-house counsel for ________________ , a party to this protest. 

3. I am a member of the bar(s) of _______ ; my bar membership nurnber(s) is/are 

4. My professional relationship with the party I represent in this protest and its personnel is 

strictly one of legal counsel. I am not involved in competitive decisionrnaking as discussed in 

U.S. Steel Com. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of the party I 

represent, any entity that is an interested party to this protest, or any other flnn that might gain 

a competitive advantage from access to the material disclosed under the protective order. I do 

not provide advice or participate in any decisions of such parties in matters involving similar or 

corresponding information about a competitor. This means that I do not, for example, provide 

advice concerning or participate in decisions about marketing or advertising strategies, product 

research and development, product design or competitive structuring and composition of bids, 

offers, or proposals with respect to which the use of protected material could provide a 

competitive advantage. 

Page 39 GA0-09-770SP Guide to GAO Protective Orders 
5. 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 in procurement-related matters; 

(b) the person( s) to whom I report, and their position( s) and responsibilities; 

(c) the number of in-house counsel at the office in which I work, and their involvement, if 

any, in competitive decisionmaking and in providing advice in procurement-related matters; 

(d) my relationship to the nearest person involved in competitive decisionmaking (both in 

terms of physical proximity and corporate structure); and 

(e) measures taken to isolate me from competitive decisionmaking and to protect against 

the inadvertent disclosure of protected material to persons not admitted under the protective 

order. 

6. I identify here (by writing "none" or listing names, position, and responsibilities) any 

member of my immediate family who is an officer or holds a management position with an 

interested party in the protest or with any other finn that might gain a competitive advantage 

from access to the material disclosed under the protective order: 

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

7. I identify here (by writing "none" or identifying the name of the forum, case number, date, 

and crrcumstances) instances within the last 2 years in which I have been denied admission to 

a protective order, or had admission revoked, or been found to have violated a protective order 

issued by GAO or by an administrative or judicial tribunal: 

8. I identify here (by writing "none" or listing the protest name and file number) any pending 

application for admission to a protective order issued by GAO: 

9. I have read the protective order issued by GAO in this protest, and I will comply in all 

respects with that order and will abide by its terms and conditions in handling any protected 

material flied or produced in connection with the protest. 

Page 40 GA0-09-770SP Guide to GAO Protective Orders 
10. I acknowledge that any violation of the terms of the protective order may result in the 

imposition of such sanctions as GAO deems appropriate, including but not limited to dismissal 

of the protest, referral of the violation to appropriate bar associations or other disciplinary 

bodies, and restricting my practice before GAO. I further acknowledge that a party whose 

protected information is improperly disclosed shall be entitled to all remedies under law or 

equity, including breach of contract. 

CERTIFICATION 

By my signature, I certify that, to the best of my knowledge, the representations set forth above 

(including any 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 fme or 5 years 

imprisonment, or both, pursuant to 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 of the 

protective order. 

Signature Date Executed 

Typed Name and Title 

Mailing Address 

Direct Dial Telephone Number 

Facsimile Number 

E-Mail Address 

Page 41 GA0-09-770SP Guide to GAO Protective Orders 
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 CONSULTANT 

1. I, , am a consultant employed by , and hereby apply for 

access to protected material covered by the protective order issued in connection with this 

protest. 

2. I have been retained by _____ and will, under the direction and control of that 

attorney, assist in the representation of in this protest. 

3. I hereby certify that I am not involved in competitive decisionmaking for or on behalf of any 

party to this protest or any other firm that might gain a competitive advantage from access to 

the material disclosed under the protective order. Neither I nor my employer provides advice 

or participates in any decisions of such parties in matters involving similar or corresponding 

information about a competitor. This means, for example, that neither I nor my employer 

provides advice concerning or participates in decisions about marketing or advertising 

strategies, product research and development, product design or competitive structuring and 

composition of bids, offers, or proposals with respect to which the use of protected material 

could provide a competitive advantage. 

4. My professional relationship with the party for whom I am retained in this protest and its 

personnel is strictly as a consultant on issues relevant to the protest. Neither I, my spouse, nor 

any member of my immediate family holds office or a management position in any company 

that is a party in this protest, or in any competitor or potential competitor of a party. 

Page 42 GA0-09-770SP Guide to GAO Protective Orders 
5. I have attached the following information: 

(a) a current resume describing my education and employment experience to date; 

(b) a list of all clients for whom I have performed work within the 2 years prior to the date 

of this application, and a brief description of the work performed; 

(c) a list of all clients for whom my employer has performed work within the 2 years 

prior to the date of this application and for whom the use of protected material could provide a 

competitive advantage, and a brief description of the work performed; 

(d) a statement of the services I am expected to perform in connection with this protest; 

(e) a description of the fmancial interests that I, my spouse, and/or my family has in any 

entity that is an interested party in this protest or whose protected material will be reviewed; if 

none, I have so stated; 

(f) a list identifying by name of forum, case number, date, and circumstances all instances 

in which I have been granted admission or been denied admission to a protective order, or had 

a protective order admission revoked, or been found to have violated a protective order issued 

by GAO or by an administrative or judicial tribunal; if none, I have so stated; and 

(g) a statement of the professional associations to which I belong, including membership 

numbers. 

6. I have read a copy of the protective order issued by GAO in this protest, and I will comply in 

all respects with all terms and conditions of that order in handling any protected material filed 

or produced in connection with the protest. I will not disclose any protected material to any 

individual other than those individuals admitted under the protective order by GAO. 

7. For a period of 2 years from the date this application is granted, I will not engage or assist in 

the preparation of a proposal to be submitted to any agency of the United States government 

for * where I know or have reason to know that any party to the protest, or 

any successor entity, will be a competitor, subcontractor, or teaming member. *Describe subject 

of procurement at issue in the protest 

8. For a period of 2 years from the date this application is granted, I will not engage or assist in 

the preparation of a proposal for submission to * for __ *_* _____ _ 

nor will I have any personal involvement in any such activity. *Name of contracting agency **Describe 

procurement at issue in the protest 

9. I acknowledge that any violation of the terms of the protective order may result in the 

imposition of such sanctions as GAO deems appropriate, including but not limited to dismissal 

of the protest, referral of the violation to appropriate disciplinary bodies or professional 

associations, and restricting my practice before GAO. I further acknowledge that a party 

whose protected information is improperly disclosed shall be entitled to all remedies under law 

or equity, including breach of contract. 

Page 43 GA0-09-770SP Guide to GAO Protective Orders 
CERTIFICATION 

By my signature, I certify that, to the best of my 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 or 5 years imprisonment, 

or both, pursuant to 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 of the 

protective order. 

Signature Date Executed 

Typed Name and Title 

Mailing Address 

Direct Dial Telephone Number 

Facsimile Number 

E-mail Address 

ATIORNEY'S CERTIFICATION 

The consultant named above has been retained by me to assist in the representation of 

in this protest and will perform his/her duties in connection with this protest under my 

direction and control. 

Signature Date Executed 

Typed Name and Title 

Name of Firm 

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

I certify that I have on this 16th day of March 2012 served the foregoing motion of VIH Cougar 

Helicopters, Inc. upon the persons listed below: 

Susan L. Kurland 

Office of the Assistant Secretary for 

Aviation and International Affairs 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Room W96-495 

Washington, DC 20590 

Lauralyn Remo 

Office of the Assistant Secretary for 

Aviation and International Affairs 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Room W96-495 

Washington, DC 20590 

Peter Lynch, AGC-300 

Asst. Chief Counsel 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