CONSULTANT ACCESS TO PROTECTED MATERIAL DENIED: October 9, 1992 GSBCA 12060-P LIFE CYCLE TECHNOLOGY CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and A&T SYSTEMS, INC., Intervenor. Thomas E. Chilcott of Odin, Feldman & Pittleman, P.C., Fairfax, VA, counsel for Protester. Barbara H. Vail and Marc Weinberger, Office of the Chief Counsel, U.S. Customs Service, Washington, DC, counsel for Respondent. Douglas L. Patin and Stuart C. Nash of Kilcullen, Wilson and Kilcullen, Washington, DC, counsel for Intervenor. BORWICK, Board Judge.[foot #] 1 Protester, Life Cycle Technology Corporation (LCT) seeks access to protected material by its consultant. The consultant has submitted a statement in support of access. The consultant says in the statement: As an independent accountant, I compile, review, or audit financial statements and prepare other cost and financial analyses for my clients. In the case of large and important price proposals, I have prepared ----------- FOOTNOTE BEGINS --------- [foot #] 1 As a panel member, Judge Borwick is issuing this ruling in the absence of Judge Neill. ----------- FOOTNOTE ENDS ----------- specific spreadsheets and analyses which would be used by my clients in preparing their proposals. . . . . The work I do for [LCT] and my other clients is typical of the services provided by other CPA firms. Consultant's Statement Attached to Request for Access. Intervenor, A&T Systems Incorporated, objects to access by this consultant. Intervenor maintains that the consultant is a competitive decision-maker, and under contract with LCT. For both those reasons, intervenor suggests that access to protected material should be denied. LCT's counsel states that the consultant is not a competitive decision-maker, but it appears that he is. He prepares materials to be used by clients in preparing cost proposals. He is thus a "competitive decision-maker" as his work involves "advice and participation in any or all of the client's decisions (pricing etc . . . .") U.S. Steel Corp. v. United States, 730 F.2d 1465, at 1468 (Fed. Cir. 1974) (Emphasis added). It is little wonder that intervenor is concerned about its pricing documents being revealed to this consultant, with attendant risk of inadvertent disclosure. This consultant has an existing contractual relationship with LCT which is inconsistent with the "not under contract with" provision of our protective order.[foot #] 2 As we explained in B3H Corp., GSBCA 11416-P, 92-1 BCA 24,384, at 121,773, 1991 BPD 216, at 3, that provision seeks to reduce the opportunity for inadvertent disclosure by separating the financial interests of consultant and client and place the contractual responsibility for the consultant with counsel. LCT's counsel sees little difference between its contractual relationship with its client and the consultant, who is an accountant. There is a significant difference. Counsel are officers of the court, and are bound by codes of professional responsibility and subject to bar discipline. Cf. U.S. Steel Corp. (in-house counsel treated the same as retained counsel because both are officers of court). Accountants, while having the their own code of conduct, are not officers of the court, and are not bound by the attorneys' code of professional responsibility in practicing before courts. Decision LCT's request for access by this particular consultant is ----------- FOOTNOTE BEGINS --------- [foot #] 2 LCT's counsel argues that the consultant is "no more under contract than is this law firm." LCT's Reply to Intervenor's Objection at 2. This is an admission that the consultant has an existing contractual relationship with LCT. ----------- FOOTNOTE ENDS ----------- DENIED. __________________ ANTHONY S. BORWICK Board Judge