_______________________________________________ MOTION FOR SANCTIONS GRANTED: February 25, 1994 _______________________________________________ GSBCA 12402-P EXECUTONE INFORMATION SYSTEMS, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and GOVERNMENT TELECOMMUNICATIONS, INC., Intervenor. Dennis J. Riley, Jared H. Silberman, and Kenneth A. Martin of Elliott, Vanaskie & Riley, Washington, DC, counsel for Protester. Lloyd M. Weinerman and Rodney L. Benson, Office of the General Counsel, Social Security Administration, Baltimore, MD, counsel for Respondent. Kenneth S. Kramer, P.C., and James M. Weitzel, Jr., of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC; and Glenn J. Ballenger, Vice President and General Counsel, Government Telecommunications, Inc., Chantilly, VA, counsel for Intervenor. Before Board Judges HENDLEY, NEILL, and VERGILIO. HENDLEY, Board Judge. In May 1993, prior to the hearing on the merits of the protest filed by Executone Information Systems, Inc. (Executone), intervenor, Government Telecommunications, Inc. (GTI), filed a motion (later supplemented) for sanctions to be imposed on the protester and Messrs. Riley, Silberman and Martin, retained counsel of the protester, for violation of our protective order of April 29, 1993. The motion contends that protester's counsel used protected material for other than the subject protest (in providing the contracting officer with protected information in pursuit of an agency protest). Further, the motion maintains the protester's counsel improperly took it upon themselves to redact protected information (the proposal of GTI and related sensitive information) and to release incompletely redacted information to the protester, such that protected material was released to an individual(s) without access under the protective order. The protester has responded to the motion. Findings of Fact On the same day it filed its protest with this Board, the protester, through the same retained counsel here representing the protester, filed with the contracting officer a protest of GTI's "eligibility as a manufacturer or regular dealer under the Walsh Healey Act." GTI's Motion, Exhibit A. Although the protest at this Board initially alleged violations relating to the Walsh Healey Act, the protester dropped those issues and proceeded on other grounds. Prior to the start of the discovery process the presiding judge issued his usual protective order. Executone's attorneys agreed to abide by the protective order's terms, as evinced by the exchange of letters dated May 6, 1993, between Executone and the respondent. The protective order contains the following pertinent provisions (underscoring added): A party wishing to limit the disclosure of any information or material involved in this protest may invoke the terms of this protective order. This protective order applies to all information and material the Board has ordered disclosed under protective order. Other material and information may also be protected by marking it as "PROTECTED MATERIAL," following the procedures below, either by: (1) the party generating or providing the information, before it is passed to another party of record, or the Board; or (2) the party obtaining the information, within one working day of receipt, by informing all parties which received the material that it is to be protected. Should a party oppose any requested protection, it must notify, in writing, both the Board, the party seeking the protection, and other parties, stating the objection and bases for objection, within one working day of receiving the material marked for protection or subsequent notification of intent to protect. The party seeking the protection must respond, in writing, to the Board and opposing party, stating its position within one working day of receipt of opposition. The Board will then rule on the motion in due course, and in the interim, the material shall be deemed protected subject to this protective order. . . . Counsel of record which receives protected material are responsible for abiding by the terms of this protective order. Protected material received by a party, or information contained therein, is to be used only for the subject protest . . . . Any allegations of abuse or violation of this order will be considered by the Board either for purposes of determining whether we should enter sanctions, under Rule 10(d) or other rules, or for purposes of determining whether or not the matter should be referred for appropriate possible disciplinary proceedings, or both. During the discovery process, Executone's attorneys received from respondent, pursuant to the protective order, copies of GTI's proposal and other information relating to how GTI intended to perform any resultant contract. Executone's attorneys compiled the protected information relating to alleged violations of the Walsh-Healey Act. By letter dated May 10, 1993, Executone's attorneys provided the contracting officer with material relating to its agency protest. That letter set forth protected information gleaned from GTI's proposal. Executone's attorneys placed the following annotation at the very beginning of the May 10th letter: PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH BOARD ORDER Hence, it is clear that Executone's attorneys were aware of the protected nature of the information in the letter. After Executone's attorneys mailed the May 10th letter to the contracting officer, they redacted what they believed to be all protected information contained therein, and provided a copy of the redacted letter to one individual--the Vice President and General Counsel of Executone. Unfortunately the redaction was not complete and some protected material remained. Executone's corporate counsel is clearly not a person entitled to access to the protected material. The protester's attorney contends that the information released in the redacted letter of May 10th was information that was essentially available from sources other than protected material, and hence its disclosure did not violate the terms of the protective order. We disagree. Without delving into the precise particulars of the disclosures, the redacted letter of May 10th disclosed several items of information about GTI's proposal that would not otherwise be known to Executone's corporate counsel, e.g., the extent to which GTI intended to rely upon subcontractors in the performance of the contract. Although one might conclude that certain facets of that information could be surmised, any such conclusions would entail a large element of conjecture. Discussion Release to the contracting officer The protective order dictates: "Protected material received by a party, or information contained therein, is to be used only for the subject protest . . . ." Inasmuch as the letter of May 10 was addressed and sent to the contracting officer for the agency protest--a purpose other than the subject protest--the attorneys violated the terms of the protective order. Authorization from the Board is required prior to such use of information. Systems Management American Corp., GSBCA 9773-P, 89-3 BCA 21,945, at 110,373, 1989 BPD 161, at 6 ("By referencing protected material in letters to [the contracting officer and an official of the General Services Administration], without seeking prior approval, counsel usurped the Board's authority to control the use of protected material. This action is not permissible under the protective order."). Release to corporate counsel The protester's retained counsel unleashed the mischief by failing to confer with counsel for the intervenor and respondent prior to furnishing the incompletely redacted May 10th letter to the protester's in-house counsel. This release of information violates the terms of the protective order which require material marked as protected to be treated as protected and which provide for the party claiming protection of portions of material to identify unprotected information. Had those with access to the protected information first conferred, as envisioned and required by the protective order, the problem would have been obviated. Instead, counsel took it upon themselves to judge whether the redactions of the May 10th letter were sufficient to expunge all the protected material. Regardless of counsel's belief that they had redacted all protected material, that belief was erroneous. Contrary to the language of the protective order, the protester's retained counsel assumed a risk of improperly disclosing protected information which did not initially belong with them. At the time of the unauthorized release of the information, GTI could have been prejudiced had the protester prevailed and the procurement continued on its course. However, this Board has affirmed the award to GTI and the time for appeal to the Court of Appeals for the Federal Circuit has expired. Executone Information Systems, Inc. v. Department of Health & Human Services, GSBCA 12402-P, 94-1 BCA 26,274, 1993 BPD 203. Although GTI has alleged damage and harm from the release, it has provided no specifics as to the extent of such damage or harm. In light of the nature of the disclosures and GTI's retention of the contract, no actual damage or harm to GTI is apparent. But the protected information was compromised and could have subsequently been used to the detriment of GTI. As the Board has noted: The protective orders issued by this Board are designed to insure to the maximum extent possible that sensitive, confidential or proprietary materials will not be disclosed beyond our proceedings. Parties have a right to expect that we will enforce our protective orders and remedy any violation of such orders by entering sanctions or taking such other remedial action as appropriate. Meredith Relocation Corp., GSBCA 8956, et al. (Apr. 11, 1990). Failure to abide by the terms and conditions of the protective order is sanctionable. Decision The motion for sanctions is GRANTED. The Board hereby admonishes Executone's retained counsel for violating the terms of the protective order. _________________________ JAMES W. HENDLEY Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL JOSEPH A. VERGILIO Board Judge Board Judge