_______________________________________________________________ ACCESS UNDER PROTECTIVE ORDER GRANTED IN PART: January 9, 1995 _______________________________________________________________ GSBCA 12823-COM UNISYS CORPORATION, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Michael R. Charness, J. Eric Andr , and Ronald B. Vogt of Howrey & Simon, Washington, DC, counsel for Appellant. Jerry A. Walz, Steven Carrara, Roxie Jamison Jones, Terry Hart Lee, and Cecilia Carson, Office of the Assistant General Counsel for Finance and Litigation, Department of Commerce, Washington, DC, counsel for Respondent. BORWICK, Board Judge. Background Unisys Corporation (Unisys) has applied for access under the protective order on behalf of its consultants Mr. Richard J. Wall and Mr. Christopher B. Pockney of Ernst & Young, Government Contract Services, and on behalf of Mr. Nikolaos P. Toubanos, an auditor employed by Unisys. On January 4, 1995, the Board convened a telephonic prehearing conference and orally ruled on the request for access. This order reduces the rulings to writing. Mr. Toubanos is an auditor employed in the internal audit department of Unisys. Statement of Nikolaos P. Toubanos (Toubanos Statement) (Nov. 14, 1994) 2. He reports to the manager of internal audits, who reports to the director of internal audits. Id. 3. The director in turn reports to the general auditor, who reports to the vice president and chief financial auditor of Unisys. Id. Mr. Toubanos conducts internal compliance audits on estimating and pricing systems, cost accounting systems and disclosure issues, consultant retention, costs incurred and billings. He assists Unisys's auditors with year-end financial audits, and special audits as requested by the Unisys Office of General Counsel. Id. 4. Mr. Toubanos claims that his "responsibilities do not involve providing advice or participating in any bids or proposals with respect to pricing, selection of products, product design, or any other decision involving the competitive structuring of proposals." Toubanos Statement 5. Respondent objects to access for Mr. Toubanos because "his work and the results thereof appear to have a direct effect on the competitive process, from advice given for preparation of bids (structuring, pricing, etc.) to strategy for pursuit of procurements." Respondent's Opposition at 1. Respondent also notes that "Concurrent Computer (Concurrent), a competitor and subcontractor to Appellant, agreed to permit access to the documents submitted to Respondent's Office of Inspector General only to those individuals currently covered by the Board's protective order." Id. Discussion Respondent does not make specific objection to access by Mr. Wall and Mr. Pockney of Ernst & Young Government Services. Respondent expresses concern that Concurrent Computer, a subcontractor to Unisys on the NEXRAD contract, agreed to access to certain documents only for those persons admitted under the protective order, which did not then include Mr. Wall and Mr. Pockney. Such private agreements cannot limit the Board's administration of access under the protective order. Also, during the telephonic conference on this matter, Unisys's counsel represented that Concurrent was aware of Unisys's request for access for the consultants from Ernst & Young, Government Services. Concurrent filed no objection to Unisys's request. The Board discerns no reason to deny Mr. Wall and Mr. Pockney access under its protective order; to the extent that respondent's expression of concern is an objection to access by Mr. Pockney and Mr. Young, that objection is DENIED. The Board considers Unisys's request for access by Mr. Toubanos. The protective order entered in this case provides in pertinent part: Protected material received by a party, or information contained therein is to be limited to . . . (3) any person who is not employed by, or under contract with, a party, and who is retained by an attorney of record as a consultant or expert witness to assist in this appeal, and (4) any other person whom the Board has deemed to be entitled to view protected material. Protective Order. Generally, the Board grants access to consultants who are retained by attorneys for specific litigation. As the Board explained in B3H Corp., GSBCA 11416-P, 92-1 BCA 24,384, at 121,773, 1991 BPD 216, at 3, the "retained by the attorney" provision seeks to reduce the opportunity for inadvertent disclosure by separating the financial interests of consultant and client and placing the contractual and ethical responsibilities for the consultant with counsel. Mr. Toubanos is employed by Unisys, not retained by the attorney of record. While the Board has no doubt as to Mr. Toubanos' sincerity in his claim that he is not a competitive decision-maker, the risk of inadvertent disclosure is present, given his status as an employee. Since Unisys's counsel has retained two consultants from Ernst & Young, Government Services who have been granted access under the protective order, Unisys has not shown special circumstances that would cause the Board to make an exception to the general rule stated above. Unisys's request for access under the protective order for Mr. Toubanos is DENIED. Decision The Board GRANTS access to Mr. Wall and Mr. Pockney and DENIES access to Mr. Toubanos. ________________________________ ANTHONY S. BORWICK Board Judge