ACCESS UNDER PROTECTIVE ORDER GRANTED: February 10, 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 Social Security Administration's award of a contract to Win Laboratories, Ltd. (Win). IDP claimed that Win's proposal did not meet the mandatory requirements of the solicitation in several respects. This matter comes before the Board on the request of intervenor I-Net, Inc.'s (I-Net's) general counsel for access to protected material. Protester, respondent, and intervenor Win oppose granting access. In his initial application for access, I-Net's general counsel stated: 1. I serve as Vice President and General Counsel for I-Net . . . . In that position, I provide general legal counsel to I-Net, but am not otherwise involved in the business operations of the Company. I am I- Net's only in-house counsel; the Company utilizes the services of four (4) outside law firms. I report directly to . . . [the] President of I-Net. 2. In my capacity as General Counsel, I provide general legal services to the Company. The majority of my time, however, is spent negotiating with the Government after I-Net has been selected for award of a government contract. 3. I do not participate in formulating technical proposals or in determining the structure of a proposal or its pricing. Nor have I participated on any procurement teams. Finally, while I do provide general legal advice to the Company, I do not participate in the business decisions which utilize my legal advice. 4. I do not participate in any determination by a business unit concerning its decision whether to participate in a procurement. 5. I have not been involved with decisions regarding the selection of subcontractors and vendors to I-Net. 6. I will not be involved in any aspect of the competitive decision-making process in any actions taken by I-Net during or subsequent to the resolution of this protest. 7. . . . I can conceive of no situation in which I might risk disclosing or otherwise using proprietary information I obtain in the course of this proceeding. 8. I have previously been granted access to protected material in connection with prior protests before the Board. See I-Net, Inc., GSBCA No. 10745-P (access granted under Protective Order dated August 6, 1990) and Challenger Engineering, Inc. v. Defense Information Systems Agency, GSBCA No. 12207-P (access granted under Protective Order dated December 11, 1992). 9. My access to material covered by the Protective Order will be limited to information received orally, or viewed in the offices of Dickstein, Shapiro & Morin, or during a hearing, deposition, or other related proceedings. At no time will I maintain physical possession of protected material in I-Net's offices. Declaration of David W. Wells, dated February 1, 1993, 1-9. Protester filed an objection stating that if access was denied to its technical/legal consultants, access should be denied to I-Net's counsel because he could never erect a chinese wall to prevent disclosure, inadvertent or otherwise. Respondent argued that I-Net's general counsel as its only in-house counsel necessarily provided advice relating to I-Net's competitive decisionmaking. Respondent's Opposition to David W. Wells' Access to Protected Materials. In response to respondent's objection, I-Net's general counsel provided a supplemental declaration, further amplifying his duties and stating: 2. I do not provide advice or participate in the proposal preparation process for I-NET. I have no role in the pricing, product design or product selection for I-NET. Further, I am not otherwise involved in the preparation or structure of proposals or bids submitted by I-NET. Additionally, I do not participate in meetings or discussions where assessments of potential competitors or their products occurs concerning any federal procurements. 3. I do not have, nor do I expect to have any problems upholding the terms of the Board's Protective Order. While I know I-NET's employees who work in marketing, pricing, and contract functions, and while many of us work in the same building in Bethesda, Maryland, I do not participate or provide advice to those individuals concerning their job functions. Supplemental Declaration of David W. Wells, dated February 4, 1993, 1-3. Respondent continued to object to access, arguing that counsel had still not stated with sufficient particularity what his general legal advice entailed. Respondent's Supplement to its Opposition to David W. Wells' Access to Protected Materials. By order dated February 8, 1993, the Board directed I-Net's general counsel to: "state his role in the review of proposals or bids in government procurements and amplify the description of his position as vice president and further explain the 'general legal advice' which he provides." In a filing that same day, counsel submitted a second supplemental declaration responding to the Board's directive in pertinent part as follows: 2. As Vice President and General Counsel for I-Net, my responsibilities include providing general legal advice to I-Net. Specifically, if I-Net is in a position where legal advice is needed, I render that advice. Typically these situations involve areas of contract performance, Federal and state tax questions, human resource matters, or interpretation of Federal regulatory issues. When a situation arises, I will advise the President of the Company and the company then makes a reasoned decision as to how to proceed. Where appropriate, I will engage and manage outside counsel. 3. My role in reviewing solicitations is very limited. Specifically, I will review request for proposals ("RFP") or invitation for bids ("IFB") to determine what level of legal compliance is required. For example, if the Service Contract Act applies to a specific RFP, I will then advise the President of the Company to ensure that the proposal team complies with the Service Contract Act in its proposal. As another example, if the Solicitation discusses security clearances, I would inform the President or the Security Officer to ensure that the proposal team makes arrangements for the proper security clearances. 4. In the early phase of this procurement, I was asked by a member of the proposal team what is meant by the Buy American Act. I advised this member of the proposal team what I-Net must do to comply with the Buy American Act. I did not recommend nor require that a certain product be bid in order to comply with the Buy American Act. I am not a technical representative of I-Net, nor do I have any knowledge or information concerning what products should be offered in response to any RFP or IFB. 5. I do not participate or advise I-Net in determining whether to submit a proposal in response to a RFP. 6. I do not participate in determining nor am I aware of the technical solutions proposed by I-Net in response to RFPs or IFBs. 7. I do not participate or advise in I-Net's pricing decision, nor am I aware of the prices I-Net actually proposes. 8. I am never involved in deciding whether I-Net should enter into teaming, OEM, subcontract, or other agreements. I review the respective agreements from a legal perspective to determine whether there are any problems legally with I-Net entering into any given agreement. Second Supplemental Declaration of David W. Wells, dated February 8, 1993, 2-8. Discussion As noted previously in this protest, the Board carefully scrutinizes applications for access to protected material to ensure that there exists no unacceptable risk that protected material could be inadvertently disclosed. See Order Denying Request for Access (Feb. 8, 1993). The Board has reviewed the three declarations filed by I-Net's general counsel in this protest and concludes that counsel has demonstrated that he neither engages in nor gives advice regarding the competitive decisionmaking of his corporation. Despite his role as I-Net's only in-house counsel and his status as an officer, counsel has established the requisite factual predicate to convince the Board that he meets the requirements set forth by our appellate tribunal for receiving access to protected material. Matsushita Electric Industrial Co., Ltd. v. United States, 929 F.2d 1577 (Fed. Cir. 1991). In particular, the nature of the advice the general counsel provides as detailed in his second supplemental declaration does not constitute advice on competitive decisionmaking; counsel does not suggest the products or determine pricing to be included in a proposal. Rather, counsel advises his client on how to comply generally with statutory, regulatory, and solicitation-specific requirements -- without suggesting technical or pricing solutions. Nor are we troubled by the fact that in these roles, counsel has "regular contact with those who are engaged in competitive decisionmaking." Matsushita; Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11635-P, 1992 BPD 1, at 4 (Jan. 2, 1992). As such, we grant him access to protected material under the terms he has proposed. ORDER The Board GRANTS the application of David W. Wells, Esq., for access to protected material. As he has agreed, I-Net's general counsel's access to protected material "will be limited to information received orally, or viewed in the offices of Dickstein, Shapiro & Morin, or during a hearing, deposition, or other related proceedings." Declaration of David W. Wells, 9. Counsel will not maintain physical possession of protected material in I-Net's offices. _____________________________ MARY ELLEN COSTER WILLIAMS Board Judge