Oftentimes bid protests contain the protester’s highly sensitive and confidential company information, the release of which would cause competitive harm to the protester.
This includes bid prices in response to an invitation for bids, proposed costs/prices submitted in response to a solicitation, technical solutions, proposed management approaches, and the like. Similarly, the procuring agency’s response to a bid protest may contain the protester’s and awardee’s confidential information (like responsive proposals or quotations) in addition to the agency’s source selection sensitive information, like source selection plans, technical evaluation documents, cost or price evaluations, tradeoff analyses, the best value determination, and the agency’s award decision. Whether originating from the protester, awardee, or procuring agency, this information is generally kept confidential. A protective order provides a mechanism within which the parties can exchange this information during the protest process while keeping the information protected by limiting access to certain individuals and requiring specific safeguards be taken to keep the information from being circulated to the public.
There are three bid protests forums: (1) the procuring agency; (2) the U.S. Government Accountability Office (GAO); and (3) the U.S. Court of Federal Claims (COFC). There is no formal process to request a protective order when filing an agency level bid protest. Instead, when filing an agency level bid protest, a protester should mark the filing with an appropriate legend stating that the document contains confidential and proprietary information that must not be released outside the government and that the document is not subject to release under the Freedom of Information Act. Bid protests and protective orders can quickly become overwhelming, but having a trusted attorney by your side can be beneficial in guiding you on the journey ahead.
When requested, both the GAO and COFC will issue protective orders to protect the disclosure of business confidential and proprietary information and the agency’s source selection sensitive information. While the protective orders issued by the GAO and the COFC are different, both serve the same purpose of protecting the respective party’s confidential and proprietary information. The GAO protective order is located in Appendix B of the GAO’s “Guide to GAO Protective Orders,” June 2019 (Revised Tenth Ed.), found here, and the COFC protective order is located at Form 8 to the Rules of the Court of Federal Claims, found here.
At GAO and the COFC, after a request for a protective order has been granted and the protective order subsequently issued, only certain individuals are eligible to apply for access to the protected material. Generally, that access is limited to the attorneys representing the protester and any intervenor (generally the awardee). Sample applications can be found here for GAO (Appendix D) and here for the COFC (Form 9). In some instances, like when there are difficult technical issues or complicated cost/pricing issues, a consultant may be admitted. In rare instances, in-house counsel for a company may also be admitted.
The GAO and COFC protective orders require those gaining access to protected information to treat that information in specific ways. For example, the information circulated must be marked with the appropriate GAO or COFC protective legend and requires the information to be destroyed within a set number of days after the conclusion of the case. The protective orders also limit the number of copies made to further prevent inadvertent disclosure.
This process can be frustrating for the non-agency parties involved in the bid protest because discussions with their respective outside attorneys are generally brief and do not provide very specific information. But that doesn’t mean that only the attorneys admitted will ever see the filings in a case.
Both GAO and the COFC allow for the parties admitted to the protective order to work together to agree upon a version of the filing with the protected material “redacted” or blacked out. Once agreement is reached, and the parties adhere to the required holding period before release, the redacted version becomes “public” and can be released.