Today, we continue with Part 9 of our 10-part series on Government Accountability Office (“GAO”) bid protests by discussing Protective Orders. You can catch up on the complete series by following these links: Parts 1, 2, 3, 4, 5, 6, 7, and 8. In this installment, we’ll examine how protesters can guard against the disclosure of their confidential and proprietary information during a protest through protective orders.
A protective order can be issued in connection with a bid protest either on the GAO’s own initiative or by virtue of a specific request by a protester. “Protected information” under the protective order includes proprietary, confidential, or “source-selection-sensitive” materials that – if disclosed during a protest – would result is a competitive disadvantage.
When requested at the outset a protest, the protective order is included in the GAO’s opening Acknowledgement Notice to all parties. Once the protective order is in place, only specific individuals may seek access to protected materials disclosed during the course of the protest – including outside attorneys, in-house counsel, and retained consultants. Thus, a protective order is an important mechanism for keep proprietary source-selection materials from “going public.” Protecting confidential information can be of even greater importance when there are other parties to the protest (including competitors) who would otherwise have access to your proprietary information.
It should be noted that a protective order does not cover all of the information in your GAO protest – only confidential, source-selection material. For that reason, when a protective order is in place, you must submit two versions of your filing: First, you submit an original document that will only be viewed by those admitted under the protective order. Second, you are required to submit a “public version” of the original document that redacts (or edits out) all protected material. The redacted copy must be filed with GAO within 1 day after the original is filed. And be careful – if you try to overreach and redact information that is not really confidential or proprietary, the GAO (or other parties to the protest) may push back.
In the end, there are both advantages and disadvantages to protective orders. On the advantages side, it is always a good idea to protect your confidential source selection information from the competition. In terms of disadvantages, once a protective order in place, it will also limit your access to information. In other words, if another party to your protest files a document under the protective order, only your attorney will be able to review the original. You will have to wait for the “public version” to be released (generally within 2 days of the filing). Also, protective orders carry strict sanctions if they are violated – so be careful out there.
On Friday, we’ll conclude this 10-part series with Part 10: Automatic Performance Stays, so be sure to check back to the Fox Rothschild Federal Government Contracts & Procurement Blog.