OBJECTION TO DISCOVERY REQUESTS OVERRULED: October 1, 1992 GSBCA 12011-P, 12012-P CENTEL FEDERAL SYSTEMS, INC., and FEDERAL COMPUTER CORPORATION, Protesters/Intervenors, v. DEPARTMENT OF THE NAVY, Respondent, and INTERGRAPH CORPORATION, Intervenor. William A. Roberts, III, J. Eric Andr , Kathleen C. Little, Lucy Gies, Patricia G. Butler, M. Lee Doane, and Peder A. Garske of Howrey & Simon, Washington, DC, and Stephannie A. Wood, corporate counsel, Centel Federal Systems, Inc., Reston, VA, counsel for Protester/Intervenor Centel Federal Systems, Inc. Gerard F. Doyle and Scott A. Ford of Doyle & Bachman, Washington, DC, counsel for Protester/Intervenor Federal Computer Corporation. Ellen D. Washington, David P. Andross, and Thomas L. Frankfurt, Information Technology Acquisition Center, Department of the Navy, Washington, DC, counsel for Respondent. Rand L. Allen and Philip J. Davis of Wiley, Rein & Fielding, Washington, DC, counsel for Intervenor Intergraph Corporation. DANIELS, Board Judge. ORDER Respondent, the Department of the Navy (Navy), objects to certain interrogatories and requests for the production of documents submitted by protesters/intervenors, Centel Federal Systems, Inc., and Federal Computer Corporation. These written discovery requests relate to handwritten notes made by technical evaluators during the "Productivity Enhancement Features Evaluation" portion of the live test demonstrations of the various offerors' proposals. The Navy does not contest the relevance of these notes to the grounds of protest. It maintains, however, that the notes are covered by the deliberative process privilege. "Deliberative process" is one of several names given to what the Supreme Court has described as a privilege which is based "on the policy of protecting the 'decision making processes of government agencies.'" National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). The purpose of the privilege, the Court has explained, is generally "to prevent injury to the quality of agency decisions." Id. at 152. The Court of Appeals for the District of Columbia Circuit has stated more specifically that among the reasons for the privilege is "to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism." Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The Navy's claim of privilege fails here for three reasons, two procedural and one substantive. The first procedural hurdle that the agency has tripped over is a simple one of timeliness. The Board is under a strict statutory time constraint in processing protests. 40 U.S.C. 759(f)(4)(B) (1988) (each case to be decided within forty-five working days after the date of filing). Consequently, we regularly provide in our orders authorizing discovery that objections to specific written requests be filed and resolved with sufficient promptness that responses to the requests will not be delayed. In these consolidated protests, for example, written discovery requests were to be sent by Monday, September 21, and answered a week later, on the 28th. So as not to delay responses, objections were required to be filed by Thursday, September 24. The Navy's objection was not filed until Friday the 25th. The second procedural difficulty is that the claim was not made by an appropriate agency official. We have adopted this requirement which is generally employed by federal courts: [T]he claim of the privilege must be lodged by the head of the agency which has control over the matter, after personal consideration of the allegedly privileged nature of the information. This power to claim the privilege may be delegated by the head of the agency, but only to a subordinate with high authority. Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 5 (N.D.N.Y. 1983) (cited in US West Information Systems, Inc., GSBCA 9103-P, 87-3 BCA 20,204, 1987 BPD 156 (1987)). The Navy's claim here is based on an affidavit by a research structural engineer who served as the project technical leader for the development of the protested procurement's requirements. The agency has not demonstrated that the head of the agency has authorized the engineer to assert a privilege, and it is highly unlikely that this individual is of "high authority" within the Navy. Cf. Texas Instruments, Inc., ASBCA 23678, 84-2 BCA 17,396, at 86,650 (1984) (delegation to trial counsel impermissible). Far more troubling is the attempt to apply a privilege to a category of documents which clearly does not fall under it. Because the privilege is designed to promote candor in advice to public officials, it does not pertain to "compiled factual material or purely factual material contained in deliberative memoranda and severable from its context." Environmental Protection Agency v. Mink, 410 U.S. 73, 87-88 (1973). Rather, to come within the privilege . . . , the document must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters. Put another way, pre-decisional materials are not exempt merely because they are pre-decisional; they must also be a part of the agency give-and- take -- of the deliberative process -- by which the decision itself is made. Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). According to the affidavit of the Navy's engineer, the notes in question here pertain to the evaluators' ratings of how the offerors' proposed systems performed on various tests. The notes were written "to assist [the evaluators] in providing a numerical rating for each of . . . three categories." Respondent's Motion in Opposition to Discovery Requests, Exhibit B, 4, 6. The notes thus were an aid in making factual determinations which would be part of the technical scores given proposals in a procurement; they had nothing to do with any sort of legal or policy advice. Even under the expansive interpretation of pre- decisional recommendations applied in Wolfe v. Department of Health & Human Services, 839 F.2d 768 (D.C. Cir. 1988) (en banc), we could not find that the notes are a part of policy deliberations. We caution that even if the evaluators' notes might somehow be construed to fall within the scope of the privilege, they would not necessarily be shielded from discovery. The privilege "is not absolute . . . ; when the public's interest in effective government would be furthered by disclosure, the justification for the privilege is attenuated." In re Franklin National Bank Securities Litigation, 478 F.Supp. 577, 582 (E.D.N.Y. 1979). Thus -- [T]he privilege may be overridden where necessary to promote "the paramount interest of the Government in having justice done between litigants," or to "shed light on alleged government malfeasance," or in other circumstances "when the public's interest in effective government would be furthered by disclosure." In re Subpoena Served upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992) (citations omitted). When application of the privilege is contested, the tribunal must balance numerous competing factors, including -- (i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the "seriousness" of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. In re Franklin National Bank Securities Litigation, 478 F.Supp. at 583 (citations omitted); see also In re Subpoena, 967 F.2d at 634; Federal Trade Commission v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); Mobil Oil Corp., 102 F.R.D. at 5; Federal Data Corp., DOT BCA 2389, 91-3 BCA 24,063, at 120,473 (1991). In balancing these factors, we take as an important consideration Congress' intention that the protest process be "a strong enforcement mechanism . . . to insure that the mandate for competition is enforced and that vendors wrongly excluded from competing for government contracts receive equitable relief." H.R. Conf. Rep. No. 98-861, 98th Cong., 2d Sess. 1435 (1984). For our de novo review of agency procurement determinations to be meaningful, we need all relevant evidence that bears on those determinations. This does not mean that the evidence must necessarily become public; we routinely issue protective orders in protests (as we have in these cases), under which disclosure of proprietary and procurement-sensitive material may be scrutinized by approved counsel and consultants, as well as the Board, without creating competitive harm or compromising agency processes. The use of these orders decreases the likelihood that the deliberative process privilege will be applied in a protest to withhold information from counsel and the Board. In re Subpoena, 967 F.2d at 634. In response to protesters' discovery requests, the evaluators' notes and interrogatory answers regarding them shall be provided subject to protective order. The Navy's objection to protesters' discovery requests is OVERRULED. _________________________ STEPHEN M. DANIELS Board Judge