In the United States Court of Federal Claims

No. 15-663C

(Filed October 26, 2016)

NOT FOR PUBLICATION

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OXFORD DEVELOPMENT CO., *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant, *

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and *

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CAMBRIDGE HEALTHCARE *

SOLUTIONS PA LP, *

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Defendant-intervenor. *

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ORDER

The above-captioned case was a bid protest brought by Oxford Development 

Co. (Oxford). Judgment was entered in favor of the government and defendantintervenor Cambridge Healthcare Solutions PA LP (Cambridge or intervenor), on 

the basis of an oral ruling. See Order (Aug. 26, 2015). After a transcript including 

the oral ruling was filed under seal due to the protective order in this case, Oxford 

and Cambridge each filed a notice of intent to request redaction --- mistakenly 

believing that the court’s transcript redaction policy, designed for the protection of 

the personal information identified in Rule 5.2(a) of the Rules of the United States 

Court of Federal Claims, applied to proprietary and other competition-sensitive 

information. See Order (Sept. 10, 2015). The Court pointed out this error, and 

ordered that any redaction requests be made to the Court, in a document containing 

any necessary justifications. Id. at 1–2. The government and the intervenor have 
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each submitted such requests.1 See Def.-Intervenor’s Request for Redactions (Int.’s 

Request), ECF No. 54; Def.’s Request for Redactions (Def.’s Request), ECF No. 55. 

The parties have requested redactions in the following five categories: 

(1) information about the identities of investors in, and key employees of, an offeror; 

(2) information regarding the business model of intervenor; (3) information 

concerning the financial condition of the offerors and the agency’s evaluations 

thereof; (4) the technical scores of the offerors and information regarding the scoring 

system used by the agency in this procurement; and (5) the identities of agency 

evaluators involved in the procurement. Pl.’s Requests at 2–3; Int.’s Request at 1–2;

Def.’s Request at 1–2. These requests must be viewed in light of the “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 

determining the litigants’ substantive rights,” Anderson v. Cryovac, Inc., 805 F.2d 1, 

13 (1st Cir. 1986). This common law presumption rests 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).

The Supreme Court, however, has recognized that this right “is not absolute,” 

and may not allow access to “business information that might harm a litigant’s 

competitive 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, 773

F.2d 1325, 1332–33 (D.C. Cir. 1985) (citing Nixon, 435 U.S. at 597–98); Linc Gov't 

Servs., LLC v. United States, 96 Fed. Cl. 672, 723-25 (2010) (noting that the private 

interest in preventing a competitor from obtaining an unfair competitive advantage 

can overcome the public interest in having judicial records be available to the 

public). Accordingly in this case, as in most bid protests, a protective order was 

entered covering “information that must be protected to safeguard the competitive 

process, including source selection information, proprietary information, and 

confidential information.” Am. Prot. Order ¶ 1 (Aug. 3, 2015). Such an order does 

not indiscriminately preclude disclosure of all information contained in proposals 

and evaluation documents, as only information that is “competition-sensitive or 

otherwise protectable” may be protected. Id. at 1.

 

1 Plaintiff’s notice of its intent to request redaction was accompanied by a list of 

requested redactions that lacked any reasoned justification other than the 

prefatory, conclusory statement that the list consisted of “source selection 

information, proprietary information, and confidential information.” Pl.’s Notice of 

Intent to Request Redaction (Pl.’s Requests), ECF No. 50, at 2–3. All but one of 

these requests were repeated, with some explanation, by one of the other parties.
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In the first category of proposed redactions are the identities of the financial 

backers and key personnel of the intervenor. This sort of proprietary information is 

routinely protected, in the absence of any reasoned opposition. 

The second category of proposed redactions relate, broadly speaking, to the 

intervenor’s business model. While it is commonplace for the details of an offeror’s 

particular proposed approach or solution to be found competition-sensitive and thus 

eligible for redaction, many factors should be considered by a court in making this 

determination. These include whether the information is general or specific; 

whether the approach is common or innovative; whether the procurement is ongoing; whether the approach has been revealed through performance; and whether 

the opinion is rendered unintelligible absent the information. See, e.g., InSpace 21 

LLC v. United States, No. 15-364C, 2016 WL 4611057, at *1 (Fed. Cl. Sept. 6, 2016).

In this build-to-suit lease procurement, neither of the redactions requested by 

the intervenor, relating to its business model, concern competition-sensitive 

information. One is the particular role in the construction of the facility that was to 

be performed by one of Cambridge’s affiliates. This information could hardly 

advantage any of the intervenor’s competitors --- as, unlike the case of key 

personnel, there is no risk that its affiliated entities may be recruited by other 

offerors. The other request concerns the intervenor’s affiliates’ use of single-purpose 

entities in real estate development. Far from proprietary, this is a common practice 

that is discussed in even heavily-redacted bid protest opinions, see, e.g., CESC Plaza 

Ltd. P’ship v. United States, 52 Fed. Cl. 91, 92 (2002), and was the approach used by 

the original awardee in this procurement, see Ameriserv Trust v. United States, 125 

Fed. Cl. 733, 738 (2016). Moreover, the issues relating to past performance and 

small business status would be incomprehensible without the knowledge that the 

intervenor was a one-off entity. 

The third category of requested redactions involves the financial resources at 

the offerors’ disposal and the agency’s evaluation of their adequacy. With respect to 

specific financial information --- such as the dollar amounts of equity or loan 

contributions, or the identity of a third party offering a loan --- this is confidential 

information which could unfairly advantage competitors, and is not necessary to 

understand the Court’s decision. The agency’s evaluations, however, are an entirely 

different matter. See, e.g., CBY Design Builders v. United States, 105 Fed. Cl. 303, 

308 n.1 (2012) (denying request to redact adjectival ratings). The assessments of 

the relative strengths and weaknesses of proposals are typically at the heart of a 

bid protest, and are the product of the agency, not the offerors. No reason has been 

given to justify the removal of references to the evaluators’ findings concerning the 

financial conditions of Oxford and Cambridge. 

The fourth category relates to the scores awarded to the offerors and the 

scoring scale used by the agency. The scores given offerors’ proposals are rarely, if 
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ever, protected. See Tech Systems, Inc. v. United States, No. 10-877C, 2011 WL 

4374008, at *1 (Fed. Cl. Sept. 19, 2011) (rejecting request that evaluation scores be 

redacted). The Court supposes it is possible that in an on-going procurement, 

knowledge of the value attached to a particular feature could be akin to finding the 

answer key for an examination. But nothing of the sort is involved here. The mere 

mention of the government’s use of a fifty-point scale in evaluating technical factors 

reveals nothing to the advantage of future offerors. The agency’s peculiar decision 

to convert prices to points using the same scale could have been problematic had the 

rankings been different and had the points been dispositive rather than used for 

guidance. Knowledge that such an approach might be followed cannot possibly 

advantage an offeror. And the fact that three points were awarded for small 

business status could not affect the bidding strategy of any offeror --- you are either 

small or you’re not. The requests of the plaintiff and the government to redact such 

information are unfounded.

Similarly, the requested redaction, by both Oxford and Cambridge, of the 

technical point scores that each received is unwarranted. These numbers reveal 

nothing about the proposals themselves, but are instead artifacts of the evaluation 

process. Even were the procurement on-going, knowledge of these overall scores 

could not advantage a competitor.2

Falling in the final category of requested redactions are the names of the 

agency evaluators. The identities of procurement personnel may sometimes be 

protected when the source selection process is on-going, see CBY Design Builders, 

105 Fed. Cl. at 308 n.1 (allowing redaction of names of “agency personnel with 

continuing roles in the source selection”), but not otherwise, see L-3 Commc’ns Corp. 

v. United States, 99 Fed. Cl. 283, 285 n.1 (2011) (finding redaction of “the name of 

an individual involved in the procurement” to be unjustified); Tech Systems, Inc. v. 

United States, 98 Fed. Cl. 228, 228–29 n.1 (2011) (not redacting “the names of 

certain individuals involved in the procurement”). The procurement at issue has 

been concluded, and thus there is no risk of improper contact with the evaluators. 

The parties have not provided any reason why these identities must be kept secret, 

and the requests are accordingly denied. 

For the reasons stated above, the names of key employees, investors and 

other third party sources of funds shall be redacted from the transcript of the 

Court’s oral ruling, as well as the dollar amounts of various loan or equity 

 

2 Even less understandable is the request, made solely by plaintiff, to remove from 

the Court’s oral decision the recognition that plaintiff’s technical score would have 

been “better” than the intervenor’s had a certain adjustment been made. Showing 

such prejudice is the very point of a bid protest. See Bannum, Inc. v. United States, 

404 F.3d 1346, 1358 (Fed. Cir. 2005).
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contributions. All other redaction requests are denied. A separate order shall be 

issued under seal, specifically directing the court reporter to make the abovedescribed redactions. 

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Judge