THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN REDACTED FORM ON FEBRUARY 2, 1993 INTERVENOR'S MOTION TO DISQUALIFY [PROTESTER'S] EXPERT CONSULTANTS GRANTED: September 3, 1992 GSBCA 11939-P GRUMMAN DATA SYSTEMS CORPORATION, Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent, and CONTEL FEDERAL SYSTEMS, INC., Intervenor. Irwin Goldbloom, Peter L. Winik, David R. Hazelton, James H. Barker, and Curtis P. Lu of Latham & Watkins, Washington, DC, and Patrick O. Killian of Grumman Data Systems Corporation, Bethpage, NY, counsel for Protester. Clarence D. Long, III and Joseph M. Goldstein, Office of the General Counsel, Department of the Air Force, Washington, DC, and Richard C. Bean and Paul E. VanMaldeghem, Hanscom AFB, MA, counsel for Respondent. William H. Butterfield, Jed L. Babbin, Charlotte F. Rothenberg, and Lori Beth Feld of McGuire, Woods, Battle & Boothe, Washington, DC, counsel for Intervenor-Respondent. WILLIAMS, Board Judge. This matter comes before the Board on intervenor's motion to disqualify protester's expert consultants, and its employees, from providing consultant services in this protest. The grounds for the motion are that these experts have a conflict of interest arising out of their participation as expert consultants for intervenor Contel Federal Systems, Inc.'s (Contel) subcontractor, in the Treasury Multiuser Acquisition Contract protest, International Business Machines Corp. and Lockheed Missiles & Space Co., Inc., GSBCA 11359-P et al., 91-3 BCA 24,327, 1991 BPD 227, recon. denied, 1991 BPD 273, 92-1 BCA 24,438 (TMAC I). Protester opposes the motion contending it is untimely and that no conflict exists. Background Grumman filed the instant protest on July 23, 1992.[foot #] 1 On July 29 and August 3, these experts requested access to protected material. There being no objection, the Board granted the requests on July 30 as to one individual and August 4, as to the other two. These experts had previously been granted access to protected material in Grumman I without any suggestion that they should be disqualified; they performed extensive consulting services in Grumman I, analyzing the voluminous exhibits, and explaining the technical issues to counsel, but not testifying; their bill for services in Grumman I was approximately $100,000. Conference Memorandum, August 17, 1992. It is anticipated that these experts would perform similar services here, including a review of the Air Force's cost/technical tradeoff analysis. Id.[foot #] 2 By motion dated August 10, 1992, intervenor Contel have claimed that these experts should be disqualified because of their engagement on behalf in TMAC I, ----------- FOOTNOTE BEGINS --------- [foot #] 1 This protest is the second protest lodged by Grumman against the conduct of this procurement. We granted the first protest (Grumman I) and directed the Air Force to conduct a _________ proper cost-technical tradeoff analysis. In response to the Board's directive, the Air Force performed a cost-technical tradeoff which is the subject of this protest (Grumman II). __________ [foot #] 2 Grumman has retained an additional expert, Dr. John L. Sibert as its trial expert in this case. Dr. Sibert's field of expertise is human computer interaction and interactive computer graphics. According to the Rule 26(b)(4) statement filed on August 10, 1992, Dr. Sibert's review has included "the evaluation documentation for various items, factors and standards as indexed by the Air Force in the previous protest's Rule 4 File." Protester's Expert Designation and Rule 26(b)(4) Statement at 3. ----------- FOOTNOTE ENDS ----------- and their engagement here for Grumman, .[foot #] 3 had only learned that these experts were retained by Grumman the day before, i.e., on August 9. contends that it had no knowledge that these experts participated in Grumman I, and thus had no reason to seek their disqualification earlier.[foot #] 4 The Experts' Involvement in TMAC I The TMAC procurement was the subject of two rounds of protests filed by Lockheed Missiles and Space Company, Inc. (Lockheed) and IBM. AT&T was the awardee of TMAC. In TMAC I, retained as one of its consultants and testified on behalf. These proposed experts were granted access to protected material under the Board's protective order in TMAC I, which provided: No protected material may be disclosed to a consultant or expert witness unless the individual has signed a non-disclosure agreement with the retaining attorney. This non-disclosure agreement shall, at a minimum, require the individual to abide by the terms of this protective order and prohibit both the use, except in connection with this protest, and the disclosure, of any information or knowledge received subject to this protective order. TMAC I order dated July 30, 1991 (emphasis added). In TMAC, proposed which it also proposed in this procurement. According to testified in TMAC that solutions for productivity, integration, and user friendliness were better than but in this case and will be supporting solution. See Letter from Counsel for to the Board dated August 18, 1992. further states: Importantly, both TMAC and JSAN [Joint Staff Automation for the Nineties] are systems integration procurements in which office automation and communications software play preeminent roles. Messrs. et al. have been called upon in both the TMAC and JSAN protests [this ----------- FOOTNOTE BEGINS --------- [foot #] 3 TMAC I preceded Grumman I and was decided on _______ _________ September 25, 1991. Grumman I was filed on January 2, 1992. _________ [foot #] 4 There is no evidence to suggest that Contel in Grumman I had knowledge of any potential conflict due to these _________ experts' participation in TMAC. ----------- FOOTNOTE ENDS ----------- case] to do an analysis of competing solutions for . . . . . . . as primary witness on had access not only to technical and bidding strategy proprietary data, but to the tactics and strategy of lawyers in presenting TMAC case before the Board. Ignoring any temptation that Messrs. et al. may have consciously to use what they have learned in their current retention, the risk of inadvertent disclosure of proprietary data and lawyer- client confidential information is great in the pressure of this protest proceeding. Letter from Counsel for to the Board dated August 18, 1992. In TMAC I the Board granted the protests, finding that the agency's cost/technical tradeoff analysis failed to indicate that the Government would receive benefits commensurate with the price premium it proposed to pay. To remedy this violation, the Board returned the procurement to respondent for further analysis. This decision was not appealed. The agency subsequently confirmed its award to AT&T, prompting another round of protests by Lockheed and IBM, GSBCA 11776-P and 11777-P (TMAC II). did not retain or any of its employees as expert consultants in TMAC II. In a decision of the Board dated June 2, 1992, the TMAC II protests were denied. The redacted version of the Board's June 2, 1992, decision was issued on June 17, 1992, making the deadline for appeal to the U.S. Court of Appeals for the Federal Circuit, September 30, 1992. Discussion Is the Motion to Disqualify Timely? Protester argues that Contel's motion to disqualify comes too late after their participation in TMAC I, without any suggestion of a conflict and because Contel did not object to granting them access. Protester contends that disqualification now would have little practical effect, counters by arguing that because it did not know of the experts' engagement it could not have raised the matter earlier, and that laches does not bar motions to disqualify, citing Emle Industries, Inc. v. Patenex, Inc., 478 F.2d 562, 574 (2d Cir. 1973). While we are troubled by intervenor's apparent failure to advise its major subcontractor of the identity of protester's proposed experts in the context of permitting those experts access to protected material, we do not under the circumstances of this case bar the motion to disqualify the experts as untimely. As our appellate tribunal has recognized: "Mere delay or laches is not normally a defense to disqualification." EZ Paintr Corp. v. Padco, Inc., 746 F.2d 1459, 1463 (Fed. Cir. 1984). Here, the delay in seeking disqualification has not unduly prejudiced protester or any other party. Protester retained an additional expert, Dr. Sibert, early in Grumman II. Dr. Sibert appears to be well qualified in the same subject area as the disqualified experts. Dr. Sibert, not the disqualified consultants, has been identified as a testifying expert. In addition, the Board had without objection extended the hearing date two weeks to enable respondent, whose only accounting expert had previously been disqualified, to retain and prepare a new expert. Nor is there any evidence to suggest that the delay in seeking disqualification stems from an improper motive to disrupt or delay further these proceedings. In sum, the unique posture of this case permits the Board to entertain the motion to disqualify.[foot #] 5 Should the Experts be Disqualified? Contel and contend there is an inherent conflict of interest due to the experts' prior engagement on behalf and their current engagement on Grumman and behalf. Contel and rely upon our recent disqualification of respondent's experts in this protest due to their participation on ----------- FOOTNOTE BEGINS --------- [foot #] 5 There may well be instances where a party, by its undue delay or failure to object to an expert's request for access to protected material, would be deemed to have waived its right to seek disqualification. Especially in expedited proceedings such as protests where an agency's procurement authority is suspended pending resolution of the case, and the Board is obligated to resolve the case in forty-five working days, it is critical that any objections to potential experts be raised as early as possible. Cf. Trust Corp. of Montana v. Piper ___ _______________________________ Aircraft Corp., 702 F.2d 85, 87 (9th Cir. 1983) where the court ______________ recognized: It is well settled that a former client who is entitled to object to an attorney representing an opposing party on the ground of conflict of interest but who knowingly refrains from asserting it promptly is deemed to have waived that right. See Central Milk Producers Co-op v. ___ _______________________________ Sentry Food Stores, 573 F.2d 988, 992 (8th Cir. 1978); __________________ Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. _______________________ 1975). ----------- FOOTNOTE ENDS ----------- behalf in TMAC I and TMAC II. See, Opinion Granting Motion to Disqualify Respondent's Expert, August 13, 1992 (protected decision). In disqualifying respondent's expert in this protest, we applied a three-part test set forth in LHL Realty, GSBCA 10651, slip op. at 5 (Apr. 16, 1991), recognizing that disqualification is appropriate when: 1) the expert had been hired previously by the opposing party in a matter 'substantially related' to the matter in issue and 2) the expert was privy to confidential information which the expert is obligated not to disclose and 3) the interest of the parties and counsel as well as the public interest weigh in favor of disqualification. Opinion Granting Motion to Disqualify Respondent's Expert, August 13, 1992 (protected decision) (quoting LHL, citing Marvin Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588 (D. Minn. 1986) and Conforti & Eisle, Inc. v. Division of Building and Construction, 405 A.2d 487 (N.J. Super. 1979)). We found that a substantial relationship would exist if the factual contexts of the two matters were "similar" or "related." Specifically, we recognized: [T]he standard for determining whether the current matter is substantially related to the former representation is 'whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject matter of his subsequent representation.' Grumman, supra, at 9, quoting Jack Eckerd Corp. v. Dart Group Corp., 621 F.Supp. 725, 731 (D. Del. 1985) (citations omitted). In disqualifying respondent's expert from this protest, we found TMAC I and TMAC II and the instant protest to be "similar," considering that both cases involved the evaluation by experts of in the context of reviewing a best value decision, and noting that TMAC II, which had recently been decided, could still be appealed. We further found respondent's experts to have had access to proprietary information and highly sensitive attorney work product and strategy, which they were under a continuing obligation not to disclose. We again conclude that TMAC I and Grumman II are "similar" in considering protester's proposed experts: both cases involve their evaluation of in the context of reviewing a best value decision; they had access to equally sensitive and confidential information, which they have a continuing obligation not to disclose. For purposes of determining the similarity of the two cases, it matters not that the Board's decision in TMAC I is final and no longer subject to appeal. Instead, we focus on the fact that that the prior engagement was recent and involved current technology, and that the experts' evaluations were and would be done in the context of reviewing a cost benefit tradeoff analysis. Nor does the noninvolvement of these experts in TMAC II alter the fact that in TMAC I they were privy to highly sensitive, confidential, and strategic information which could be used against here. As to the third factor -- the interest of the parties and the public interest -- we recognize that Grumman has a substantial interest in retaining the same expert consultants here as in Grumman I. These experts are intimately familiar with both offerors' technical proposals; they already have reviewed the voluminous technical evaluations at every level -- some of which are again relevant here -- and Grumman has paid the consultants approximately $100,000 for their services in Grumman I. Disqualification of these experts will clearly cause Grumman inconvenience. This inconvenience is, however, mitigated by the fact that Grumman's testifying expert, Dr. Sibert, is capable of providing necessary technical consulting services. Turning to other parties' interests, we recognize that has no potential need for the experts' testimony or assistance in connection with TMAC. Thus, will not be at risk that these experts could, after having taken an adverse position, again be its witnesses in further proceedings. There is, however, considerable prejudice to and Contel which would result from permitting these experts to essentially "switch sides" after having been privy to sensitive, confidential information and work product in a recent procurement involving overlapping products. We emphasize that there is no suggestion here that these experts have intentionally used, or would intentionally use, strategic information to disadvantage. As explained in Conforti, would suffer prejudice simply by virtue of the consultants' participation on its behalf in TMAC and on protester's here: As mentioned earlier, Hill [an expert witness] was privy to confidential documents regarding the legal aspects of the State's claims, as well as the mental impressions, opinions and legal theories of the State's counsel. Even if this information was not disclosed to Conforti [plaintiff] per se Conforti would still obtain the benefit of this confidential information because it would shape or effect, either consciously or unconsciously, the report Hill will render to Conforti. The very nature of the services which Hill provides makes it impossible to conceive of a situation in which Hill could conscientiously discharge its duty to Conforti as an expert while simultaneously discharging its duty to the State of New Jersey not to divulge confidences and secrets which the State has conveyed to Hill. Thus, to permit Conforti to hire Hill as an expert would enable plaintiffs to obtain indirectly that which they clearly are not permitted to achieve through discovery. No form of protection order could be truly effective in expunging this knowledge from Hill's mind. The only conceivable means of protecting the State's interest in this instance is to simply preclude Conforti from employing Hill as an expert with respect to this litigation. Conforti, 405 A.2d at 492. The public interest weighs in favor of disqualification. As we recognized in our earlier decision disqualifying respondent's expert: "the public interest in preserving the integrity of this proceeding is best served by eliminating any potential conflict and disqualifying the expert." Opinion Granting Motion to Disqualify Respondent's Expert, August 13, 1992, at 12 (protected decision). In addition, the protective order is designed to ensure that experts and consultants not be placed in positions where they can inadvertently disclose or utilize the proprietary, strategic information of a former client to that client's detriment in a subsequent proceeding. In sum, while there are strong practical reasons for permitting these experts to continue their engagement for Grumman, even stronger policy reasons mandate that they be disqualified. Decision Intervenor's motion to disqualify protester's expert consultants is GRANTED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge