# I **n the United States Court of Federal Claims**

No. 16

- 376C (Filed Ju ly 5 , 201 7 )

NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * *

*

*

BOARD OF REGENTS OF *

THE NEVADA SYSTEM OF * HIGHER EDUCATION, *

on behalf of THE DESERT *

RESEARCH INSTITUTE, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

* Defendant, * and, *

*

OAK RIDGE ASSOCIATED *

UNIVERSITIES

, *

*

Defendant

- Intervenor. *

*

* * * * * * * * * * * * * * * * * *

ORDER

The Court has reviewed intervenor’s request that certain information be

redacted from the opinion filed under seal May 31 , 201 7

. The documents filed by the parties in this case are subject to a protective order precluding disclosure of “information that must be protected to safeguard the competitive process, including source selection information, proprietary information, and confid ential information.” Protective Order ¶ 1. Although there is “a presumption of public access to judicial records,” Baystate Techs., Inc. v. Bowers , 283 F. App’x 808, 810 (Fed. Cir. 2008), which may extend to “materials on which a court relies in

determin ing the litigants’ substantive rights,” Anderson v. Cryovac, Inc. , 805 F.2d 1, 13 (1st Cir. 1986), the Supreme Court has recognized that this right “is not absolute,” and may not allow access to “business information that might harm a- 2

- litigant’s competitiv e standing,” Nixon v. Warner Commc’ns, Inc. , 435 U.S. 589, 598 (1978) (citations omitted); see also In re Reporters Comm. for Freedom of the Press

, 775 F.2d 1325, 1332

– 33 (D.C. Cir. 1985) (citing Nixon , 435 U.S. at 597

– 98)

. As a

result , protective orders are routinely used in bid protest cases, for which the record

often includes confidential proposals containing proprietary information such as

non

- public prices, business methods, and perhaps even the manner in which

i nformation is presented.

It does not follow , however, that all information conveyed in a proposal must be redacted from a judicial opinion. A description may be so general, or a method so common, that it would be unreasonable to remove it from an opinion, particularly if this might render th e ruling unintelligible. The common law presumption of public access rests, after all, on the notion “that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.”

Siedle v. Putnam Invs. , Inc. , 147 F.3d 7, 9

– 10 (1st Cir. 1998) (citation and internal quotation marks omitted); see also Baystate Techs. , 283 F. App’x at 810 (same); Madison Servs., Inc. v. United States , 92 Fed. Cl. 120, 131 (2010) (same). Moreover, the posture of the procure ment at issue must be considered, as matters that may

have been confidential within a proposal may become public through performance of a contract the award of which was unsuccessfully protested.

In this case, the Court finds the majority of the requested redactions to be unjustified . Intervenor contends that the information it seeks to protect is

“ proprietary and confidential trade secret information ” and cites the exemption

from Freedom of Information Act disclosures for such information

, 5 U.S.C. § 552 ( b ) (4) , in support of its requests. Int.’s Request for Redactions of Protected Information Contained in Sealed Opinion and Order (Int.’s Request) at 1

– 2

. But very few of the requested redactions concern information that could be meaningful ly described as prop ri et ar y or as embodying trade secrets

.

Intervenor w ants removed fr om the opinion all references to the fact that it proposed use of part

- time labor in the performance of the contract . As this court has previously found, the proposed use of part

- time labor under a contract is not

usu ally the sort of information that should be redacted from a bid protest opinion.

I

nspace 21 LLC v. United States , No. 15

- 364C, 2016 WL 4611057, at *2 (Fed. Cl. Sept. 6, 2016)

. The proposed use of part

- time employees is frequently discussed in even heavily

- redacted bid protest opinions

, s ee FirstLine Transp. Sec., Inc. v. United

States , 119 Fed. Cl. 116, 123

– 24 (2014) ; Survival Sys. USA, Inc. v. United States

, 102 Fed. Cl. 255, 265 (2011); Tech Sys., Inc. v. United States , 98 Fed. Cl. 228, 256 (2011); Advanced Data Concepts, Inc. v. United States , 43 Fed. Cl. 410, 420 (1999). Accordingly, the references to the proposed or past use of part

- time employees will

not be redacted from the opinion , although references to the extent and manner of

their use have been redacted

.- 3

- While t he mere use of part

- time employees is not protectable, the Court

agre es that the number of Full Time Equivalents (FTEs) recommended by

intervenor should be red acted. The specific number does not meaningfully contribute to, and its absence would not detract from, the comp r e he ns i bility of the opinion and could conceivably ai d intervenor’s competitors. Accordingly, the number of proposed FTEs will be redacted.

Intervenor also oddly requests redaction of a reference to its having propos ed
to bill certain of its labor costs as Other Direct Co s ts (ODCs) and the comparison in the opinion between the amount of labor costs billed as direct labor compared to

those billed as ODCs. Int.’s Request at 4

– 5. But how a contractor bills the government, under government

- provided line items, does not reveal anything about

how the contractor performs the required work. Accordingly, this information will

not be redacted. The opinion will be reissued, reflecting the above

- discussed

redactions.

IT IS SO ORDERED.

s/ Victor J. Wolski
VICTOR J. WOLSKI

J udge