United States General Accounting Office

GAO Office of the General Counsel

February 1997 Guide to GAO

Protective Orders

GAO/OGC-97-30

Contents

I. Introduction 2

II. The Protective

Order

3

A. Protected Information 3

B. Issuance 3

C. Redactions 4

D. Disposition of Protected Material 4

III. The Application

Process

6

A. Who Can Apply 6

B. the Application 6

C. When to File 7

D. Objections 7

E. the Admission 8

1. Outside Counsel 8

2. In-House Counsel 9

3. Consultants 10

IV. Use of Protected

Material Before Other

Agencies and Courts

11

V. Sanctions 12

Appendixes Appendix A 18

Appendix B 19

Appendix C 22

Appendix D 29

Appendix E 38

Major Contributor to the Guide to GAO Protective Orders 39

Page 1 GAO/OGC-97-30
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) (1997), a

contracting agency is required to provide with its report on the protest all

relevant documents to the 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

meeting 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 which 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 GAO/OGC-97-30
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 information identified as protected by any

party will be subject to protection under the terms of the protective order,

unless GAO specifically provides otherwise. Each party included under a

protective order will be entitled to receive a single copy of protected

material, which may not be duplicated, except as is incidental to its

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

parties with GAO’s concurrence.

Information identified as protected may only be disclosed by the parties 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 decisionmaking. It is the responsibility of

individuals admitted under the protective order to take all necessary

precautions to prevent disclosure of protected material; this includes

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.

B. Issuance 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; nor will a protective order be

issued where the protester requests that one not be issued.

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

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

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II. The Protective Order

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 sample protective order can be

found in Appendix B.

C. Redactions It is the responsibility of the party preparing a filing protected under a GAO

protective order to submit a version of the filing which omits protected

information. This “redacted” version of the protest filing should be

provided when the protected version is filed. GAO will resolve disputes if

the parties are unable to agree as to 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 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 20 days after the disposition

of the protest (or if a request for reconsideration or a claim for costs is

filed, 20 days after the disposition of those matters), all protected material

furnished to individuals admitted under the protective order, including all

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

20-day period, protected pleadings (including copies in archival files and

computer backup files) and written transcripts of protest conferences and

hearings must be destroyed, and the destruction certified to GAO and the

other parties unless the parties agree otherwise; video transcripts

produced by GAO must be returned to our Office. In the absence of such

Page 4 GAO/OGC-97-30
II. The Protective Order

agreement and for good cause shown, GAO may extend the period for

retention of the protected material.

Page 5 GAO/OGC-97-30
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. Applicants must establish that they are not involved

in competitive decisionmaking as that term is defined in U.S. Steel Corp. v.

United 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 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.” 730 F.2d at 1468 n.3.

A copy of the U.S. 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 firm 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. Copies of the these applications can be found in Appendix D.

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.

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 decisionmaking, 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

Page 6 GAO/OGC-97-30
III. The Application Process

consultant seeking admission to the protective order 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.

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 5 years in which counsel had 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 another administrative or judicial

tribunal, resulted in counsel’s revocation of admission to a GAO protective

order.

C. When to File 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.

D. Objections 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 Corp., 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.

Page 7 GAO/OGC-97-30
III. The Application Process

E. the Admission 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 of their denial.

1. Outside Counsel Although it is often easier for outside counsel to establish that they are not

involved in competitive decisionmaking, GAO approaches the admission of

counsel on a case-by-case basis, and GAO does not assume that any

attorney’s status as outside counsel is dispositive of whether that attorney

is involved in competitive decisionmaking. 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 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 decisionmaker was found

to present too great a risk of inadvertent disclosure of protected materials.

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 of the law firm’s home office served on the protester’s board of

directors. The attorneys were found to not participate in competitive

decisionmaking, 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 Colonial Storage Co.; Paxton Van Lines, Inc., B-253501.5 et al., Oct. 19,

1993, 93-2 CPD ¶ 234, GAO denied admission to outside counsel for the

awardee where the record established that the attorney was involved in

competitive decisionmaking—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

procurement.

Page 8 GAO/OGC-97-30
III. The Application Process

In Ralvin Pacific Dev., Inc., B-251283.3, June 8, 1993, 93-1 CPD ¶ 442, GAO

did not admit outside counsel employed by protester where there was

evidence in the record that these attorneys were involved in competitive

decisionmaking—that is, conducting ongoing lease negotiations with the

agency on behalf of the protester’s affiliate. The attorneys withdrew their

applications for admission.

2. In-House Counsel 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 decisionmaking, 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 to other business activities where

corporate decisions are made in light of information about competitors

that might be disclosed under a protective order.

In Robbins-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 decisionmaking; the fact that the in-house counsel reported to

a competitive decisionmaker 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 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

decisionmaking. US Sprint Communications Co. Ltd. Partnership,

B-243767, Aug. 27, 1991, 91-2 CPD ¶ 201.

Page 9 GAO/OGC-97-30
III. The Application Process

GAO has denied access to in-house counsel who provide legal counsel to

senior company management, such that counsel advises or participates in

competitive decisionmaking. Earle Palmer Brown Cos., Inc., 70 Comp.

Gen. 667 (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.

GAO denied admission to corporate counsel who was involved in

competitive decisionmaking 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 Int’l, Inc., B-250327.4, April 27,1993, 93-1

CPD ¶ 344.

3. Consultants 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.

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.

Page 10 GAO/OGC-97-30
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. Requests for

authorization to use protected material in other fora must be made in

writing, 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.

GAO has generally permitted the use of protected material in the filing of

federal lawsuits and before other administrative tribunals where the party

seeking to use such material establishes that the material will be

safeguarded. For example, GAO has permitted the filing of protected

material, which a party received under a GAO protective order, in court

pleadings where the court was informed of the GAO protective order and

the material subject to the GAO protective order and where a court

protective order was issued to protect and govern the protected material.

A sample notice of limited leave to release protected material to a federal

court is included in Appendix E. The precise nature of GAO’s leave to

release protected material to another forum will depend upon the

circumstances necessary to protect the information in that forum.

Page 11 GAO/OGC-97-30
V. Sanctions

Any violation of a protective order is a serious matter, whether or not 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 referral of the

violation to the appropriate bar associations or other disciplinary bodies

and restricting the individual’s practice before GAO.

Violations of GAO protective orders have included instances where

protected material has been disclosed, inadvertently or otherwise, to

individuals not admitted under the GAO protective order, where unilateral

redactions of protected material were provided to individuals not admitted

under the protective order resulting in an improper disclosure of protected

material, and where protected material was disclosed to other fora

without prior permission from GAO. The following case studies illustrate

protective order matters that have been raised with GAO:

CASE 1: A protester’s counsel violated a GAO protective order by furnishing

an agency’s report, which was identified as protected material, to a

representative of the protester, who was not admitted under the protective

order. GAO sanctioned the counsel by restricting counsel’s future

admission to GAO protective orders for a period of 2 years and referred the

protective order violation to the appropriate bar association for its

consideration.

CASE 2: Intervenor’s counsel unilaterally prepared a redacted version of

draft comments counsel was preparing to file in response to an agency’s

report and provided this redacted version of the draft comments to a

representative of the intervenor, who was not admitted to the protective

order. This redacted version contained protected information—the

protester’s pricing information—in violation of the GAO protective order.

Although counsel argued that the release of the protected material was

inadvertent, it was also argued that counsel have the right to unilaterally

prepare and release redacted versions of documents that have not yet

been filed with GAO or which were not sent or received from another party

to the protest. Protester’s counsel violated the protective order

requirement not to release a proposed redacted version of a protected

document without the affirmative agreement of all other parties or absent

GAO’s agreement. Given the seriousness of the violation and the poor

judgment evidenced, GAO sanctioned counsel by restricting counsel’s

future admission to GAO protective orders for a period of 3 months.

Page 12 GAO/OGC-97-30
V. Sanctions

CASE 3: Protester’s counsel unilaterally prepared a redacted version of an

agency’s report, which was identified as protected under the GAO

protective order, and informed the agency that counsel would release the

redacted version if not otherwise informed by the agency by the close of

the next business day. The agency was unable to object to protester’s

counsel’s proposed redacted version before the release of counsel’s

redacted version to counsel’s client, who was not admitted to the

protective order. Counsel’s redacted version of the agency’s report

contained source-selection-sensitive information that was protected under

the protective order. Counsel’s release of a proposed redacted version of a

protected document without the affirmative agreement of all other parties

(or GAO’s agreement where the parties disagree) was improper. Given that

the unilaterally redacted documents did not appear to contain information

whose release provided the protester with a competitive advantage or

prejudiced the agency or any other party and that it did not appear that the

protester’s counsel had acted in bad faith, GAO admonished the protester’s

counsel to ensure that in the future the counsel obtained the affirmative

agreement from all parties before releasing a redacted version of a

protected document.

CASE 4: Protester’s counsel violated the GAO protective order when

counsel disclosed protected material to the Small Business Administration

as a part of the protester’s challenge of the intervenor’s small business size

status, where the protester’s counsel did not obtain GAO’s prior approval to

use the protected material and did not take steps to ensure the

confidentiality of the protected material. GAO revoked counsel’s admission

to the protective order, directed counsel to immediately return to GAO or

destroy all protected material in counsel’s possession, and cautioned

counsel that any future disclosure of protected material would result in

more stringent action by GAO.

CASE 5: While a protest was pending before GAO, protester’s counsel filed

suit in federal court to enjoin performance of the contract pending GAO’s

bid protest decision. Protester’s counsel represented to the court that he

had reviewed the intervenor’s proposal, which was protected under a GAO

protective order, and that it did not comply with a key minimum

mandatory solicitation provision. GAO did not find a violation of the

protective order requirement that protected material be used only for the

protest proceeding, since counsel only represented to the court his belief

as to whether the proposal satisfied the solicitation requirements; the

record showed that counsel did not disclose any of the contents of the

intervenor’s proposal or any other protected information.

Page 13 GAO/OGC-97-30
V. Sanctions

CASE 6: Protester’s counsel violated a GAO protective order by including

protected material in a complaint and memorandum in support of

declarative relief filed in a United States District Court, without first

contacting GAO regarding the propriety of using the protected material.

Protester’s counsel did, however, enter into a separate protective

arrangement with the court for purposes of the action before releasing the

protected material. While a violation of the protective order occurred, a

private admonishment letter was issued to the protester’s counsel,

because counsel had ensured that protected material was not disclosed

beyond the parties to the litigation and pursuant to the court’s protective

order.

CASE 7: Protester’s counsel improperly disclosed protected material

received under the GAO protective order to another member of counsel’s

law firm based upon counsel’s erroneous belief that the protective

application was on behalf of the entire law firm. This violated the GAO’s

protective order, which expressly provided for admission of individuals

who each file separate applications. Protester’s counsel was admonished

to exercise greater care in the future in the handling of protected material

and cautioned that any future violation of a protective order could result

in revocation of admission to a protective order and affect future

protective order admissions.

CASE 8: After the receipt of an agency’s report, which contained protected

material, protester’s counsel withdrew representation of the protester as a

result of a disagreement with the protester. Protester’s counsel arranged

to have the agency provide a redacted version of the report to the

protester, who elected to proceed pro se in the protest, and returned the

protected version of the agency report to the agency. Inadvertently, the

contracting officer’s statement, which was designated as protected

material, was delivered to the protester along with documents belonging

to the protester. Although a protective order violation occurred,

protester’s counsel appropriately obtained the return of the contracting

officer’s statement from the protester, who attested the protected

document had not been read and assured the GAO that counsel would be

more careful in the future regarding the safeguarding of protected

material. A private letter of admonishment was issued to protester’s

counsel.

CASE 9: Protester’s counsel released to a representative of the protester

documents that were identified as releasable in an agency’s report on the

date that the report was received. A day after receipt of the report, the

Page 14 GAO/OGC-97-30
V. Sanctions

intervenor identified as protected certain material contained within some

of the documents which the agency had indicated were releasable.

Protester’s counsel promptly informed GAO that the protected material had

already been released to an individual who was not admitted under the

protective order and that all individuals who had wrongly received access

to the protected material had, at counsel’s instruction, halted further

review and destroyed the documents. Counsel violated the protective

order requirement to delay release of documents that are not designated

as protected material for 2 days following receipt, except to individuals

admitted under the protective order. Counsel’s failure to abide by this

requirement deprived the intervenor of the opportunity to identify

documents that should be protected. Counsel was privately admonished.

CASE 10: An intervenor’s counsel received a document under a protective

order marked “redacted version” but accompanied by a memorandum that

informed counsel that the document was redacted for release only to the

protester. Intervenor’s counsel released the document to a representative

of the intervenor, who was not admitted under the protective order and

entitled to receive the document. Intervenor’s counsel violated the

protective order requirement to disclose protected material only to

individuals admitted under the protective order. However, because the

violation was unintentional and the document was promptly returned by

the intervenor whose representative retained no copies of the document,

the counsel was privately admonished.

CASE 11: A contracting agency in responding to a protest filed a document

containing an offeror’s protected material but did not identify that the

document contained protected information that should be withheld from

individuals not admitted to the GAO protective order. Protester’s counsel

released this document to representatives of the protester who were not

admitted under the protective order. GAO advised the agency that in

responding to protests in which protective orders have been issued the

agency must be particularly diligent in the identification of protected

material to prevent the dissemination of an offeror’s proprietary

information or the agency’s source-selection-sensitive information.

CASE 12: Protester’s Counsel A telefaxed a protest pleading, containing

protected material, to Counsel B for another protester without including a

protective legend as required by the protective order. Both counsel A and

B were admitted to the GAO protective order. Counsel B’s secretary

telefaxed the protest pleading to an intervenor’s in-house counsel, who

was not admitted to the protective order. The in-house counsel returned

Page 15 GAO/OGC-97-30
V. Sanctions

the document without reading it, after being notified of the protective

order violation. Counsel A’s failure to include a protective legend violated

the protective order requirement that protected material be identified and

directly resulted in the release of protected material to individuals not

admitted to the protective order. A private letter of admonishment was

issued to Counsel A.

CASE 13: A consultant retained by a protester’s counsel and admitted

under a protective order effectively disclosed protected material to a

representative of the protester, who was not admitted under the protective

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

protester’s representative disclosed, in part, the intervenor’s technical

approach. Although the consultant and protester’s counsel maintain that

the information effectively disclosed was not properly protected because

it arguably was publicly available, GAO found that the consultant, and the

protester’s counsel under whose direction and control the consultant

performed his tasks, were in violation of the GAO protective order.

Information designated as protected by a party remains protected until the

parties agree that such information may be removed from coverage of the

protective order or GAO informs the parties that the information is no

longer protected. Protester’s counsel and the consultant were admonished

to exercise greater care in the future and that the circumstances of this

protective order violation would be considered under any future

applications for admission to GAO protective orders.

Page 16 GAO/OGC-97-30
Page 17 GAO/OGC-97-30
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-selection-sensitive 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 which 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

and restricting the individual's practice before GAO.

 

Page 18 GAO/OGC-97-30
Appendix B

UNITED STATES GENERAL ACCOUNTING 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. Material to

which parties gain access under this protective order is to be used only for the subject

protest proceedings, absent express prior authorization from the General Accounting

Office (GAO). Such authorization must be requested in writing, with notice to all parties.

1. This protective order applies to all material that is identified by any party as protected,

unless GAO specifically provides otherwise. This protective order applies to all

proceedings associated with the protest, e.g., 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, and must be in a sealed parcel containing the legend

"PROTECTED MATERIAL ENCLOSED" conspicuously placed on the outside of the

parcel containing the protected information. 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

GENERAL ACCOUNTING OFFICE PROTECTIVE ORDER

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.

 

Page 19 GAO/OGC-97-30
Appendix B

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

decisionmaking 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 a single copy of the

protected material and shall not 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. 

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 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. 

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

precautions to prevent disclosure of protected material, including but not limited to physically securing, safeguarding, and restricting access to the protected material. The

confidentiality of protected material shall be maintained in perpetuity.

7. Within 20 days after the disposition of the protest(s) (or if a request for

reconsideration or a claim for costs is filed, 20 days after the disposition of those

matters), all protected material furnished to individuals admitted under this protective

order, including all 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 protected material,

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

20-day period, protected pleadings (including copies in archival files and computer backup

files) and written transcripts of protest conferences and hearings shall be destroyed, and

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

video transcripts produced by GAO shall be returned to our Office. 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 20-day period without the

 

Page 20 GAO/OGC-97-30
Appendix B

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.

8. 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 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.

Assistant General Counsel Date

 

Page 21 GAO/OGC-97-30
Appendix C

United States Court of Appeals for the Federal Circuit

U. S. STEEL CORPORATION, ET AL., )

)

Appellants, )

v. ) Appeal No. 84-639

)

THE UNITED STATES AND U. S. )

INTERNATIONAL TRADE COMMISSION, )

)

Appellees, )

)

AND COSIPA, ET AL., )

)

Intervenors. )

DECIDED: March 23, 1984

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 (CIT)1

 denying U. S. Steel's (USS) corporate in-house counsel

access to confidential information. We vacate and return.

Background

In Republic Steel Corp., supra, note l, an action involving a negative preliminary

injury determination by the International Trade Commission (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. 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

 

1

Republic Steel Corp. v. United States, 572 F. Supp. 275 (Ct. Int'l Trade 1983).

84-639 

Page 22 GAO/OGC-97-30
Appendix C

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)(l), as amended by Federal Courts Improvement Act of 1982, Pub.

L. No. 97-164, § 125(a), 96 Stat. 25, 36 (1982).

The case has proceeded with access granted to retained counsel and denied to inhouse counsel.

The United States joins USS in arguing that the CIT's decision constitutes a per 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.

The ITC takes no position on the present court-denial of access, but seeks to

preserve its right to deny access by in-house counsel at the administrative level.

Intervenors Companhia Siderurgica Paulista, S. A. (COSIPA) and 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. § 1516a(b)(2)(B) to control access to

confidential information in cases before it is not in dispute.2

 In exercising that control

in this case, the CIT carefully reviewed Atlantic Sugar, Ltd. v. United States, 85 Cust.

Ct. 133, C.R.D. 80-18 (1980) and available authorities dealing with access in other

fields of law, made clear that its rationale carried no reflection on the unquestioned

integrity and unblemished record of USS' in-house counsel in adhering to protective

 

2

19 U.S.C. § 1516a(b)(2)(B) provides:

Confidential or privileged 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 

Page 23 GAO/OGC-97-30
Appendix C

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 resolution, 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. § 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 "it is humanly impossible to control the inadvertent

disclosure 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 doubtless complicate) the crafting of a suitable

protective order. That 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 inhouse 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 employees

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 a 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 relationship can be presumed as an outgrowth of the employeremployee relationship". It therefore saw exclusion of in-house counsel as providing

"a meaningful increment of protection". Like retained counsel, however, in-house

84-639 

Page 24 GAO/OGC-97-30
Appendix C

counsel are officers of the court, are bound by the same Code of Professional

Responsibility, 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.3

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.

In a particular case, e.g., 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 inhouse 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 per se 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

 

3

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 

Page 25 GAO/OGC-97-30
Appendix C

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. § 1516a(b)(2)(B), or the asserted emphasis

on discovery in Rule 26, Fed.R.Civ.P. should control in this case. Though the

requirement to consider the facts rather than status of counsel sounds in Rule 26

terms, it relates here only to cases in which the court has decided to grant access in

accord with the authorization in the second sentence in 19 U.S.C. § 1516a(b)(2)(B),

supra, note 2. Nothing here said diminishes the clear authority of the CIT to 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. Nor do we order a grant of

access in the case listed in note l, supra. We hold only that status as in-house counsel

cannot 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 per 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., rather than 19 U.S.C.

§ 1516a(b)(2)(B), should have been applied; and that the "staleness" of the information

sought should dictate access.

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, i.e., 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.

DECISION

In light of the foregoing, the order denying access to in-house counsel in the case

listed in note l, supra, must be vacated, and the question returned.

VACATED and RETURNED

84-639 

Page 26 GAO/OGC-97-30
Appendix C

United States Court of Appeals for the Federal Circuit

U. S. STEEL CORPORATION, ET AL., )

)

Appellants, )

v. ) Appeal No. 84-639

)

THE UNITED STATES AND U. S. )

INTERNATIONAL TRADE COMMISSION, )

)

Appellees, )

and )

)

COSIPA, ET AL., )

)

Intervenors )

NICHOLS, Senior Circuit Judge, dissenting.

I would affirm because I 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 ITC. We may say the ITC rule is not

before us, yet we cannot overlook the anomaly that will exist if the court and the ITC

enforce conflicting rules respecting the same documents. Second, the intervenors,

original sources of the information in question, are willing for the court to allow

disclosure to retained but not to in-house counsel. What they think is important

because, if they consider the litigation is conducted in a manner unfair to them and

in effect a nontariff barrier to their trade, they could withdraw 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 CIT 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.

 

Page 27 GAO/OGC-97-30
Appendix C

I would be, on remand, inclined to consider seriously adoption of a simple

alternative rule which our court majority also seems not to exclude, i.e., if a document

is too sensitive to disclose to any counsel 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. § 1516a(b) (2) (13) 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. R. 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 self-created 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 § 1516a(b)(2)(B) 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 minority, I could. It

seems to me that, without discriminating among counsel or having to decide 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 sufficient 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 decision using its own very considerable intellectual

powers. If this were the result, justice might possibly gain instead of losing, and I say

this not meaning to denigrate 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.

 

Page 28 GAO/OGC-97-30
Appendix D

UNITED STATES GENERAL ACCOUNTING OFFICE

OFFICE OF THE GENERAL COUNSEL

PROCUREMENT LAW DIVISION

Washington, D.C. 20548

Matter of:

File:

Agency:

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 

 and have 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.

 

Page 29 GAO/OGC-97-30
Appendix D

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.)

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 firm that might gain a

competitive advantage from access to the material disclosed under 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 5 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 filed or produced in connection with the protest.

 

Page 30 GAO/OGC-97-30
Appendix D

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 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

knowingly making a false statement on this application could render me liable to a

fine or imprisonment, or both, pursuant to 18 U.S.C. § 1001.

 

Signature Date Executed

Typed Name and Title

Name of Firm

(Revised 2/97)

 

Page 31 GAO/OGC-97-30
Appendix D

UNITED STATES GENERAL ACCOUNTING OFFICE

OFFICE OF THE GENERAL COUNSEL

PROCUREMENT LAW DIVISION

Washington, D.C. 20548

Matter of:

File:

Agency:

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

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.

Page 32 GAO/OGC-97-30
Appendix D

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 firm 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 circumstances) instances within the last 5 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:

 

Page 33 GAO/OGC-97-30
Appendix D

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 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 attached statements) are true and correct. I recognize that

knowingly making a false statement on this application could render me liable to a

fine or imprisonment, or both, pursuant to 18 U.S.C. § 1001.

 

Signature Date Executed

Typed Name and Title

Name of Business Entity

(Revised 2/97)

 

Page 34 GAO/OGC-97-30
Appendix D

UNITED STATES GENERAL ACCOUNTING OFFICE

OFFICE OF THE GENERAL COUNSEL

PROCUREMENT LAW DIVISION

Washington, D.C. 20548

Matter of:

File:

Agency:

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.

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;

Page 35 GAO/OGC-97-30
Appendix D

(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 financial 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

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 36 GAO/OGC-97-30
Appendix D

CERTIFICATION

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

above (including attached statements) are true and correct. I recognize that knowingly

making a false statement on this application could render me liable to a fine or

imprisonment, or both, pursuant to 18 U.S.C. § 1001.

 

Signature Date Executed

Typed Name and Title

ATTORNEY'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 

(Revised 2/97)

 

Page 37 GAO/OGC-97-30
Appendix E

Page 38 GAO/OGC-97-30
Major Contributor to the Guide to GAO

Protective Orders

Office of the General

Counsel

Guy R. Pietrovito, Senior Attorney

Page 39 GAO/OGC-97-30
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