ACCESS UNDER PROTECTIVE ORDER DENIED: February 8, 1993 GSBCA 12269-P INTERNATIONAL DATA PRODUCTS, CORP., Protester, and I-NET, INC. Intervenor, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and WIN LABORATORIES, LTD, Intervenor. C. Michael Tarone, Washington, DC, counsel for Protester. James C. Hughes, C. Patteson Cardwell IV, and Ferhan K. Doyle of Dickstein, Shapiro & Morin, Vienna, VA, and David W. Wells of I-Net, Inc., Bethesda, MD, counsel for Intervenor I-Net, Inc. Lloyd M. Weinerman and Jonathan A. Baker, Office of the General Counsel, Social Security Administration, Department of Health and Human Services, Baltimore, MD, counsel for Respondent. Michael A. Hordell, Joseph J. Petrillo, and Laurel A. Heneghan of Petrillo & Hordell, Washington, DC, counsel for Intervenor Win Laboratories, Ltd. WILLIAMS, Board Judge. On January 21, 1993, International Data Products, Corp. (IDP) filed the instant protest challenging the Department of Health and Human Services' Social Security Administration's (SSA's) award of a contract to Win Laboratories, Ltd. (Win). IDP alleged that Win's VGA monitor did not meet a mandatory requirement of the solicitation, failed to comply with the Buy American Act and the Trade Agreements Act of 1979, and that Win's systems do not possess the requisite Class B FCC (Federal Communications Commission) certification. The protest was signed by IDP's vice president, who is not an attorney. This matter comes before the Board on the application of two law students for access to protected material. One law student is the sister of IDP's vice president and president, who are also directors and majority stockholders of IDP, and the other student is the sister's husband. They seek access to protected material in the capacity of "legal/technical consultants" to IDP. In their application for access, each of these law students states: My relationship with IDP and its personnel is familial as well as consultorial. My business relationship with IDP is strictly one of conducting legal research, drafting legal documents and cite checking of legal documents, for the signature of and submission by an IDP official. My relationship with IDP does not involve advice or participation in any of their decisions regarding pricing, product design, or any other matters involving the competitive structuring of bids or proposals. I do not play any role in IDP competitive decision making. During and prior to 1992, I did however, work temporarily in IDP's Field Engineering Division, which equipped me with the requisite technical knowledge to be able to effectively review technical documents in support of IDP's protest. My business relationship with IDP has been strictly as described above. Statements of Matthew Rice Glinsmann and Maria Fuster Glinsmann, January 28, 1993. The IDP principals' sister worked in various positions at IDP prior to 1990, the year she entered law school. Most recently, she was a customer service representative in the Field Engineering Division of IDP during the summer of 1989. This position involved suggesting courses of action to correct end- user problems, consulting with laboratory technicians to recommend solutions, and ultimately either arranging the exchange of a defective device or sending of a technician on-site. Protester's Response to Intervenor's and Respondent's Objections to Request for Access to Protected Material (Protester's Response) at 6. As recently as December of 1992, the brother-in-law of the IDP principals worked in a temporary capacity as a Lab Technician in the Field Engineering Division of IDP. This position involved suggesting courses of action to correct end-user problems, consulting with other laboratory technicians to recommend a best course of action, and ultimately repairing the device when it arrived at IDP or on-site. Protester's Response at 7. The students' application for access was filed on January 28, 1993, by the vice president of IDP, approximately four hours before outside counsel entered an appearance for IDP and sought access to protected material. In his statement requesting access, counsel made no reference to supervising law students or consultants, and represented that he was a "sole practitioner." Statement of C. Michael Tarone, Esq., January 28, 1993. In their statements, both students represented that IDP sought their assistance in this protest; no mention was made of assisting any attorney. Statements of Matthew Rice Glinsmann and Maria Fuster Glinsmann, January 28, 1993. Both respondent SSA and intervenor Win vigorously opposed granting access to the law students because of their familial relationship to IDP's principals, and because they are neither licensed attorneys nor consultants under contract with licensed attorneys. Protester's retained counsel, in response to these oppositions stated that "[u]ndersigned counsel has engaged [the law clerks] . . . to work under his supervision in the subject protest." Protester's Response at 4. Counsel argued that the District of Columbia Rules of Professional Conduct and the ABA Model Rules of Professional Conduct permit him to hire law clerks so long as he supervises their work. Id. Finally, counsel contends that since the students do not engage in competitive decisionmaking and do not have a financial interest in IDP, they should be granted access. Id. at 8-13. On February 2, 1993, in a supplement to protester's request for access, protester's counsel provided additional information on the students' relationship to IDP: 1. . . . Based on information and belief, the Glinsmanns do not have a direct or indirect financial interest in IDP and they do not hold positions with IDP although they have worked for IDP in the past in minor staff positions and at no time engaged in competitive decision making roles at IDP. Ms. Glinsmann, and Mr. Glinsmann, will be subject to a strict confidentiality agreement which will be submitted to the Board for approval. . . . . 3. From June 1991 through October 1991 Ms. Maria Glinsmann served a[s] my law clerk. I have been and continue to be a mentor to Ms. Glinsmann. I have a very strong interest in the advancement of her legal career because she is extraordinarily talented and impeccably honest and unusually capable. I have met Mr. Glinsmann on only one occasion. Ms. Glinsmann served as law clerk in connection with matters in litigation before the courts and principally on behalf of subsidiaries of National Medical Enterprises, Inc., a publicly traded (NYSE) health care company. We did not represent IDP in any matters at that time. The subject protest is my first representation of IDP. 4. The Glinsmanns are law students in good standing. Ms. Glinsmann is in her third year at Georgetown University Law Center. Mr. Glinsmann is in his second year at the University of Maryland Law School. Only Ms. Glinsmann has been hired by me in connection with the subject protest. I expect to hire Mr. Glinsmann. Supplement Pursuant to Order Regarding Protester's Request for Access to Protected Material, February 2, 1993. On February 4, 1993, in response to respondent's comments regarding the law students' application, protester provided further information: Ms. Glinsmann sees her brothers twice a week at family dinners at her mother's home. The number of guests varies from between 10 and 26. The 26-member family gets together for all holidays and other special occasions, such as birthdays. Ms. Glinsmann never discusses business with her brothers at the family dinners or other special occasions. Between herself and her brothers Oscar and Jorge Fuster there is from time-to-time passing reference to IDP's business, but there is no involved give and take on the subject of IDP's business; and certainly she does not engage in discussions involving competitive decision making. Protester's Response at 5, February 4, 1993. In addition, the principals' sister has agreed to enter into a confidentiality agreement whereby she would permit the Board to notify her law school and the Bar Examiners of any breach by her, inadvertent or otherwise, of the protective order.[foot #] 1 No agreement has yet been filed with the Board. Respondent SSA and intervenor Win continue to object to granting access to the law students. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Protester raised several other arguments in support of access which are totally inapposite and require no further comment. ----------- FOOTNOTE ENDS ----------- Discussion The continued efficacy of the Board's protective order is critical to the processing of protests. Parties rely on the fact that their highly sensitive procurement information will remain secure throughout the litigation process. See, e.g., Sterling Federal Systems, Inc., GSBCA 10381-P, 90-2 BCA 22,802, 1990 BPD 122, at 4, quoting Meredith Relocation Corp., GSBCA 8956, et. al. (Apr. 11, 1990) ("The protective orders issued by this Board are designed to insure to the maximum extent possible that sensitive, confidential or proprietary material will not be disclosed beyond our proceedings.") To that end, the Board must scrutinize requests for access to protected material and examine the applicant's activities, associations, and relationships with the client to ensure that no unacceptable risk of inadvertent disclosure of protected material exists. Here, there is an obvious, close, familial relationship between the proposed consultants and protester's principals -- they are the sister and brother-in-law of individuals who are not only the president and vice president of IDP, but also directors and majority stockholders. The relationship is not exclusively familial; both proposed consultants have worked in the family business in the past. There is no indication that these individuals will not again work in the family business in the future. The close familial and prior business relationships of these nonattorney consultants with IDP's principals give rise to an unacceptable risk of disclosure of protected material. Cf. A. Hirsch v. United States, 657 F.Supp. 1297, 1304 (Ct. Int'l Trade 1987) (general counsel who represented a company owned by his father, and managed it jointly with his brother, and who was an officer of the company, was denied access to protected material due to unacceptable opportunity for inadvertent disclosure). The assertions of retained counsel that he will supervise the students does not change this result. The fact that the students were originally employed directly by IDP and not by outside counsel has not gone unnoticed. But even if we accept counsel's statement that he is now employing the students to work on this protest, this does not eradicate the concern caused by the students' ongoing and far closer relationship with protester's principals. The United States Court of Appeals for the Federal Circuit in Akzo N.V. v. U.S. International Trade Commission, 808 F.2d 1471, 1484 (Fed. Cir. 1986) recognized a three-part balancing test which considers the requesting party's need for the information, the harm that disclosure would cause to the opposing party, and the tribunal's interest in maintaining the confidentiality of information submitted to it. Here, the needs of the party proposing these consultants are outweighed by the risk of potential competitive harm to intervenor and the other unrepresented vendors whose proposals are also at issue here. Protester can secure competent law students or technical consultants to assist counsel who can readily perform the types of tasks identified and who do not have such close personal ties with protester. Any disclosure of a competitor's source selection information, however inadvertent, would cause the competitor substantial competitive harm. Finally, this Board has a compelling interest in maintaining the confidentiality of information submitted in protests. We thus deny the legal/technical consultants' request for access to protected material. In so ruling, we emphasize that we do not question the integrity or intentions of the law students. Rather, the driving force behind this decision is that we perceive there to be an unacceptable risk that protected material could be inadvertently disclosed, given the students' close familial and prior employment relationship with IDP's principals. ORDER The requests of legal/technical consultants Matthew Rice Glinsmann and Maria Fuster Glinsmann for access to protected material are DENIED. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge