_______________________________________________ ORDER ON ACCESS TO PROTECTED MATERIAL: September 19, 1995 _______________________________________________ GSBCA 12823-COM UNISYS CORPORATION, Appellant, v. DEPARTMENT OF COMMERCE, Respondent. Michael R. Charness of McDermott, Will & Emery, Washington, DC; and J. Eric Andr 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. ORDER On August 31, 1995, we convened a telephonic conference call with counsel for appellant, Unisys Corporation (Unisys), respondent, Department of Commerce, and Concurrent Computer Corporation (Concurrent), a subpoenaed subcontractor to Unisys, the prime contractor for the next generation weather radar (NEXRAD) contract. Concurrent had objected to respondent's request for access to protected material, under the terms of the protective order entered in this appeal, for Ms. Patricia Infante, an administrative contracting officer (ACO) for the NEXRAD contract. We denied Concurrent's objection. This memorandum reduces our ruling to writing. Ms. Infante is an ACO with the Defense Plant Representative Office (DPRO), located at Loral Defense Systems-East (Loral) (formerly Unisys Corporation), Great Neck, NY. Affidavit of Patricia M. Infante (Infante Affidavit) (June 16, 1995) 1. As such, her responsibilities included supervising approval of the Unisys purchasing system, which included approving or denying Concurrent's commerciality exemption. Id. 13, 14. Respondent has filed a "Statement of Compliance" from Ms. Infante, dated April 26, 1995. The statement of compliance stated that Ms. Infante has read the terms of the Board's protective order of June 7, 1994, as modified on March 21, 1995, and agrees to abide by the terms and conditions of the Board's order as amended. Moreover, on June 26, counsel for respondent filed the Infante Affidavit. Ms. Infante stated that because Concurrent does not presently perform any defense-related work under subcontracts with Loral at the Great Neck, NY facility, and because the defense-related work performed by Loral is completely dissimilar to the NEXRAD production contract, her review of, or knowledge of, Concurrent's outdated cost information would have no effect, adverse or otherwise, on contract administration. Infante Affidavit 16. Concurrent's vice president states that Concurrent would be prejudiced by Ms. Infante's knowledge of Concurrent's data. Affidavit of Stuart B. Zigun (Zigun Affidavit) (June 14, 1995) 12-15. In this appeal, another contracting officer has determined in his final decision that respondent was overcharged $7,370,157 for spare parts under the NEXRAD contract modifications 77, 111, and 122. Much of the alleged overcharges were due to the spare parts supplied by Concurrent. Appeal File, Exhibit 152 and attached exhibits. Discussion Generally, counsel who are not competitive decision-makers and who agree to abide by the terms of a Board protective order are entitled to access to protected material under the terms of that order. See Matsushita Electric Industrial Co. v. United States, 929 F.2d 1577, 1580 (Fed. Cir. 1991) (decision of the International Trade Commission to grant access to proprietary business information to in-house counsel of corporation which was a party to proceeding was not arbitrary, capricious or an abuse of discretion where counsel was insulated from competitive decision-making). Counsel who are not competitive decision- makers are to be granted access to protected material unless there is an unacceptable risk of inadvertent disclosure. Id. The parties to this appeal, and Concurrent, have agreed to provide access to Concurrent's cost data to Government employees under the terms and conditions of the protective order entered in this case. It is appropriate, therefore, to refer to the standards under which counsel (and non-lawyer consultants) are granted access under Board protective order. Ms. Infante is not a competitive decision-maker; she is an employee of the Department of Commerce. She is subject to the terms and conditions of the Board's protective order; moreover, apart from the Board's protective order, she has obligations and constraints placed upon her as a Government official. See 18 U.S.C. 1905 (1988). Concurrent has not established that Ms. Infante would disclose protected material or that there is an unacceptable risk of inadvertent disclosure. The claim of prejudice arising from Ms. Infante's access to protected material is not convincing. Any prejudice of the type described by Concurrent in the Zigun affidavit is more likely to arise from the administrative actions already taken and the events leading to this appeal, and not from Ms Infante's access to protected material. Decision The objection to Ms. Infante's access to protected material is DENIED. Ms. Infante is granted access to protected material, under the terms and conditions of the protective order, as modified. In addition, without objection, this Board grants access to respondent's employee, Ms. Shirley Shelor, under the protective order. Ms. Shelor is a procurement analyst for Systems Engineering Division of the Office of the Inspector General and participated in the development of the contracting officer's final decision from which this appeal is taken. ________________________________ ANTHONY S. BORWICK Board Judge