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MOTION FOR SANCTIONS GRANTED: February 25, 1994
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GSBCA 12402-P
EXECUTONE INFORMATION SYSTEMS, INC.,
Protester,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent,
and
GOVERNMENT TELECOMMUNICATIONS, INC.,
Intervenor.
Dennis J. Riley, Jared H. Silberman, and Kenneth A. Martin
of Elliott, Vanaskie & Riley, Washington, DC, counsel for
Protester.
Lloyd M. Weinerman and Rodney L. Benson, Office of the
General Counsel, Social Security Administration, Baltimore, MD,
counsel for Respondent.
Kenneth S. Kramer, P.C., and James M. Weitzel, Jr., of
Fried, Frank, Harris, Shriver & Jacobson, Washington, DC; and
Glenn J. Ballenger, Vice President and General Counsel,
Government Telecommunications, Inc., Chantilly, VA, counsel for
Intervenor.
Before Board Judges HENDLEY, NEILL, and VERGILIO.
HENDLEY, Board Judge.
In May 1993, prior to the hearing on the merits of the
protest filed by Executone Information Systems, Inc. (Executone),
intervenor, Government Telecommunications, Inc. (GTI), filed a
motion (later supplemented) for sanctions to be imposed on the
protester and Messrs. Riley, Silberman and Martin, retained
counsel of the protester, for violation of our protective order
of April 29, 1993. The motion contends that protester's counsel
used protected material for other than the subject protest (in
providing the contracting officer with protected information in
pursuit of an agency protest). Further, the motion maintains the
protester's counsel improperly took it upon themselves to redact
protected information (the proposal of GTI and related sensitive
information) and to release incompletely redacted information to
the protester, such that protected material was released to an
individual(s) without access under the protective order. The
protester has responded to the motion.
Findings of Fact
On the same day it filed its protest with this Board, the
protester, through the same retained counsel here representing
the protester, filed with the contracting officer a protest of
GTI's "eligibility as a manufacturer or regular dealer under the
Walsh Healey Act." GTI's Motion, Exhibit A. Although the
protest at this Board initially alleged violations relating to
the Walsh Healey Act, the protester dropped those issues and
proceeded on other grounds.
Prior to the start of the discovery process the presiding
judge issued his usual protective order. Executone's attorneys
agreed to abide by the protective order's terms, as evinced by
the exchange of letters dated May 6, 1993, between Executone and
the respondent. The protective order contains the following
pertinent provisions (underscoring added):
A party wishing to limit the disclosure of any
information or material involved in this protest may
invoke the terms of this protective order.
This protective order applies to all information
and material the Board has ordered disclosed under
protective order. Other material and information may
also be protected by marking it as "PROTECTED
MATERIAL," following the procedures below, either by:
(1) the party generating or providing the information,
before it is passed to another party of record, or the
Board; or (2) the party obtaining the information,
within one working day of receipt, by informing all
parties which received the material that it is to be
protected.
Should a party oppose any requested protection, it
must notify, in writing, both the Board, the party
seeking the protection, and other parties, stating the
objection and bases for objection, within one working
day of receiving the material marked for protection or
subsequent notification of intent to protect. The
party seeking the protection must respond, in writing,
to the Board and opposing party, stating its position
within one working day of receipt of opposition. The
Board will then rule on the motion in due course, and
in the interim, the material shall be deemed protected
subject to this protective order.
. . . Counsel of record which receives protected
material are responsible for abiding by the terms of
this protective order.
Protected material received by a party, or
information contained therein, is to be used only for
the subject protest . . . .
Any allegations of abuse or violation of this
order will be considered by the Board either for
purposes of determining whether we should enter
sanctions, under Rule 10(d) or other rules, or for
purposes of determining whether or not the matter
should be referred for appropriate possible
disciplinary proceedings, or both.
During the discovery process, Executone's attorneys received
from respondent, pursuant to the protective order, copies of
GTI's proposal and other information relating to how GTI intended
to perform any resultant contract. Executone's attorneys
compiled the protected information relating to alleged violations
of the Walsh-Healey Act.
By letter dated May 10, 1993, Executone's attorneys provided
the contracting officer with material relating to its agency
protest. That letter set forth protected information gleaned
from GTI's proposal. Executone's attorneys placed the following
annotation at the very beginning of the May 10th letter:
PROTECTED MATERIAL
TO BE DISCLOSED ONLY IN ACCORDANCE WITH BOARD ORDER
Hence, it is clear that Executone's attorneys were aware of the
protected nature of the information in the letter.
After Executone's attorneys mailed the May 10th letter to
the contracting officer, they redacted what they believed to be
all protected information contained therein, and provided a copy
of the redacted letter to one individual--the Vice President and
General Counsel of Executone. Unfortunately the redaction was
not complete and some protected material remained. Executone's
corporate counsel is clearly not a person entitled to access to
the protected material.
The protester's attorney contends that the information
released in the redacted letter of May 10th was information that
was essentially available from sources other than protected
material, and hence its disclosure did not violate the terms of
the protective order. We disagree.
Without delving into the precise particulars of the
disclosures, the redacted letter of May 10th disclosed several
items of information about GTI's proposal that would not
otherwise be known to Executone's corporate counsel, e.g., the
extent to which GTI intended to rely upon subcontractors in the
performance of the contract. Although one might conclude that
certain facets of that information could be surmised, any such
conclusions would entail a large element of conjecture.
Discussion
Release to the contracting officer
The protective order dictates: "Protected material received
by a party, or information contained therein, is to be used only
for the subject protest . . . ." Inasmuch as the letter of May
10 was addressed and sent to the contracting officer for the
agency protest--a purpose other than the subject protest--the
attorneys violated the terms of the protective order.
Authorization from the Board is required prior to such use of
information. Systems Management American Corp., GSBCA 9773-P,
89-3 BCA 21,945, at 110,373, 1989 BPD 161, at 6 ("By
referencing protected material in letters to [the contracting
officer and an official of the General Services Administration],
without seeking prior approval, counsel usurped the Board's
authority to control the use of protected material. This action
is not permissible under the protective order.").
Release to corporate counsel
The protester's retained counsel unleashed the mischief by
failing to confer with counsel for the intervenor and respondent
prior to furnishing the incompletely redacted May 10th letter to
the protester's in-house counsel. This release of information
violates the terms of the protective order which require material
marked as protected to be treated as protected and which provide
for the party claiming protection of portions of material to
identify unprotected information. Had those with access to the
protected information first conferred, as envisioned and required
by the protective order, the problem would have been obviated.
Instead, counsel took it upon themselves to judge whether the
redactions of the May 10th letter were sufficient to expunge all
the protected material. Regardless of counsel's belief that they
had redacted all protected material, that belief was erroneous.
Contrary to the language of the protective order, the protester's
retained counsel assumed a risk of improperly disclosing
protected information which did not initially belong with them.
At the time of the unauthorized release of the information,
GTI could have been prejudiced had the protester prevailed and
the procurement continued on its course. However, this Board has
affirmed the award to GTI and the time for appeal to the Court of
Appeals for the Federal Circuit has expired. Executone
Information Systems, Inc. v. Department of Health & Human
Services, GSBCA 12402-P, 94-1 BCA 26,274, 1993 BPD 203.
Although GTI has alleged damage and harm from the release, it has
provided no specifics as to the extent of such damage or harm.
In light of the nature of the disclosures and GTI's retention of
the contract, no actual damage or harm to GTI is apparent.
But the protected information was compromised and could
have subsequently been used to the detriment of GTI. As the
Board has noted:
The protective orders issued by this Board are designed
to insure to the maximum extent possible that
sensitive, confidential or proprietary materials will
not be disclosed beyond our proceedings. Parties have
a right to expect that we will enforce our protective
orders and remedy any violation of such orders by
entering sanctions or taking such other remedial action
as appropriate.
Meredith Relocation Corp., GSBCA 8956, et al. (Apr. 11, 1990).
Failure to abide by the terms and conditions of the protective
order is sanctionable.
Decision
The motion for sanctions is GRANTED. The Board hereby
admonishes Executone's retained counsel for violating the terms
of the protective order.
_________________________
JAMES W. HENDLEY
Board Judge
We concur:
_________________________ _________________________
EDWIN B. NEILL JOSEPH A. VERGILIO
Board Judge Board Judge