The Court of Federal Claims and the Protective Order

The United States Court of Federal Claims (the Court) decided the case of the Board of Regents of the Nevada System of Higher Education, on Behalf of the Desert Research Institute, v. United States and Oak Ridge Associated Universities, 2017 WL 2856416. These federal courts were established pursuant to Article I of the U.S. Constitution and deal mostly with monetary claims made against the U.S. government. This court commonly hears cases concerning government contracts and tax refunds, among other subjects.

 A Protective Order Background 

Acting on behalf of the Desert Research Institute, the Board of Regents of the Nevada System of Higher Education (Nevada Regents) sought to gain access to information tied to an active government contract.

The information in question was sealed. Moreover, there was a protective order in place, prohibiting release of “information that must be protected to safeguard the competitive process, including source selection information, proprietary information, and confidential information.”

The Court explained that protective orders are common in bid protest cases, as the record contains proprietary information relating to the bidder’s business practices, pricing structures and other confidential information.

Oak Ridge Associated Universities (Oak Ridge) sought to prevent Nevada Regents from accessing all of the requested information. Oak Ridge also asked the Court to redact certain material from the record. The Court agreed to review this case and render a final decision.

Legal Analysis of the Protective Order 

Oak Ridge contended that sealing and redaction was necessary under 5 U.S.C. 552(b)(4). This section safeguards “trade secrets and commercial or financial information obtained from a person and is privileged or confidential.” Oak Ridge argued that, without redaction, their “proprietary and confidential trade secret information” would be released. Oak Ridge would suffer a competitive disadvantage.

After reviewing the arguments from both parties as well as evidence on the record, the Court determined that “very few of the requested redactions concern information that could be meaningfully described as proprietary or as embodying trade secrets.”

One concern was the inclusion of references to the use of part-time employees, which the Court underlined that such references are not generally redacted. The use of part-time employees was such a commonly discussed topic in bid proposals that it did not seem proprietary to the Court. Though the Court did note that how Oak Ridge utilized part-time workers was protected and should be redacted.

On the other hand, the Court determined that the number of full-time employees proposed by Oak Ridge to in its bid should be redacted. Revealing such information could impact Oak Ridge negatively. Moreover, the redaction of such information would not impair a third party’s ability to read and understand the judgment.

Lastly, the Court considered Oak Ridge’s request to redact information concerning their billing decisions. The Court stated (emphasis in original): “how a contractor bills the government, under government-provided line items, does not reveal anything about how the contractor performs the required work.” As a result, information concerning Oak Ridge’s billing decisions should not be redacted.

Do You Need Legal Advice from an Experienced Government Contracts Attorney?

Navigating the ins and outs of government contracts can be a challenge. There are various legal regulations and considerations at play, which can make it difficult to understand the proper course of action. But a knowledgeable government attorney can make all of the difference, helping you avoid pitfalls and resolve any issues that might arise.

If you are in need of assistance with government contracts or other related matters, please do not hesitate to contact Whitcomb, Selinsky, PC immediately. Located in Denver, Colorado, you can reach the attorneys at Whitcomb, Selinsky, PC by phone at (303) 534-1958 or online by completing a simple form.

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