United States: GAO Protective Orders (Post-Award Protest Primer #5)

Last Updated: August 11 2017
Article by Daniel E. Chudd and James A. Tucker

Post-award protests generally involve arguments about confidential, source-selection sensitive information – proprietary bid and proposal material, past performance data, cost and pricing information, nonpublic agency estimates, and the judgments of agency evaluators and source selection personnel.  Neither the government nor the competitors want that sort of information to be disclosed to anyone without rigorous protections.  That's where the protective order comes into play.  This post will provide a basic overview of what a GAO protective order is and what it does.

To allow an adversarial review and discussion of these materials, protesters generally request the GAO to enter a protective order allowing counsel and occasionally consultants for the non-government parties to receive and review material they ordinarily would not be allowed to see.  Other than individuals named in the protective order (and the admitted attorneys' non-attorney administrative support staff), the parties themselves do not have access to the protected material.  Nor are admitted individuals allowed to discuss, paraphrase, or otherwise disclose protected information to anyone not under the protective order – including their own clients.  This "cone of silence" means clients must trust their protest lawyers to make judgment calls about material the clients themselves will never see.  It also means the clients will not see much of their attorneys' work product, except in redacted versions that the parties' lawyers have agreed to.  This can create awkward conversations, where a client may ask an innocent and straightforward question, to which the attorney responds, "Sorry, I can't discuss that."

In most protests, the protester and intervenor submit protective order applications for their outside counsel.  On fairly rare occasions, a party seeks admission of inside counsel, which the GAO may allow if it is sufficiently clear the in-house attorney is not a competitive decision-maker and adequate safeguards are in place to prevent other company personnel from accessing the protected material the in-house attorney receives.  To protect the confidentiality of proprietary information, the GAO will ensure that no one "involved in competitive decision making" is admitted to the protective order.  GAO defines "competitive decision making" to involve "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."  U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984).

If the protest grounds may require the attorneys to make arguments about very specialized technical issues or complicated cost or pricing matters, parties often seek the admission of technical or cost consultants.  (People rarely go to law school because they are great with numbers or are technical whizzes.)  To be admitted to the protective order, these consultants also must provide adequate assurances that inadvertent release of protective material will not occur, and must not be involved in competitive decision-making regarding the subject matter at issue.  Because highly skilled subject-matter experts often make a living out of assisting companies in proposal-writing, it sometimes is a challenge to find a technical consultant whose ordinary business does not preclude him or her from admission to a protective order.

GAO's standard protective order allows each admitted party to receive up to three copies of each protected document (with the original counting as one copy, and each electronic version counting as a copy), which should not be further duplicated except to incorporate it into further protected filings.  Parties may request the GAO's permission to increase the number of permitted copies, for example, to allow one copy for each admitted attorney.  We remember well one former colleague's admonition to make sure not to include more than three attorneys from each non-government party on any protected email, unless the GAO has increased the number of protected copies each side may receive.

The front page of each copy of protected material must include the legend:  "PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER."  It is good practice to include the legend on each page of a protected filing, as well.  Whenever a party submits a protected filing, it should submit a redacted version of the filing, generally by the next day.

Once a protective order is issued, any documents sent or received by a party "in connection with" the protest must be treated as if it were protected, even if it is not marked as such, for two days.  This "two-day rule" allows parties to prevent improper release if there is disagreement over whether a particular document should be protected.  If the parties expressly agree that a particular document does not contain protected material, they may agree to waive the two-day rule and allow immediate release of the document.

Without prior express authorization from the GAO, parties may not use protected material for any other purpose (even another governmental proceeding).  The one exception is for bid protests at the Court of Federal Claims, where parties may file GAO protected material under seal and request the court to issue its own protective order to cover the material, even without seeking the GAO's permission.  This means, unless the GAO gives prior approval, parties may not use the GAO protected material in size protests and other proceedings before the Small Business Administration, in administrative disputes with contracting agencies (including claim appeals before the Boards of Contract Appeals or the Court of Federal Claims), civil litigation before courts of competent jurisdiction, or any purpose other than a sealed filing in a Court of Federal Claims bid protest.

Violation of a GAO protective order can result in severe sanctions, including dismissal of the protest, referral of an offending attorney to the state bar for discipline, and restrictions on the attorney's (or consultant's) ability to be admitted to future protective orders.  Fortunately, GAO protective orders rarely are violated.

Within 60 days after a protest has been resolved (or 60 days after resolution of a request for reconsideration or a claim for costs, if there is one), parties must return all protected material to the producing party, destroy all copies (if the parties so agree), or come to another written agreement regarding disposition of the protected materials.  In practice, the parties generally agree to destruction (i.e., permanent electronic deletion, with shredding of hardcopies) of the protected material.  Each admitted party may retain (and appropriately safeguard) a single copy of a protected decision or letter issued by the GAO, without a time limit.

Best Practices

There are several precautions that help prevent inadvertent disclosures and make post-protest document destruction much simpler for persons admitted to a protective order:

  • It is a good practice to place a protective legend even on internal emails and each page of handwritten notes or working drafts that contain or reflect protected material.
  • Protest attorneys (and their staff) should remember that protected material may lurk in both Sent and Inbox email folders, and ensure they do not place protected electronic documents in network folders that are accessible by anyone except the admitted attorneys (and consultants) and their supervised administrative support staff.
  • Care should be taken with automated archiving processes, which may complicate compliance with the protective order.
  • If non-attorney support staff have access to protected material under an attorney's supervision, they should be reminded of their duties to safeguard the material, and the attorney should ensure they properly dispose of any protected material in their possession after the protest is concluded.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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