ACCESS UNDER PROTECTIVE ORDER GRANTED: September 3, 1993 GSBCA 12545-P, 12556-P VIGYAN, INC., and MODERN TECHNOLOGIES CORPORATION, Protesters/Intervenors and UNITED INTERNATIONAL ENGINEERING, INC., and I-NET, INC., Intervenors, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Respondent, and NYMA, INC., Intervenor. John R. Tolle, William B. Barton, Jr., and William T. Welch of Barton, Mountain & Tolle, McLean, VA, counsel for Protester/Intervenor ViGYAN, Inc. James J. McCullough, Joel R. Feidelman, and Deneen J. Melander of Fried, Frank, Harris, Shriver & Jacobson, Washington, DC, counsel for Protester/Intervenor Modern Technologies Corporation. Don A. Howard of Uhrig, Munger & Howard, Huntsville, AL, counsel for Intervenor United International Engineering, Inc. Richard J. Webber and John J. O'Brien of Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC; and David W. Wells, Vice President and General Counsel of I-NET, Inc., Bethesda, MD, counsel for Intervenor I-NET, Inc. Sumara M. Thompson-King, Office of the General Counsel, National Aeronautics and Space Administration, Washington, DC; and Jerald J. Kennemuth, Office of the Chief Counsel, Lewis Research Center, Cleveland, OH, counsel for Respondent. James H. Roberts III, Suzanne M. Dohrer, and Martin Shulman of Manatt, Phelps & Phillips, Washington, DC, counsel for Intervenor NYMA, Inc. GOODMAN, Board Judge. On August 20, 1993, ViGYAN, Inc. (ViGYAN) filed the instant protest challenging the award of a contract by the National Aeronautics and Space Administration (NASA or respondent) to NYMA Corporation (NYMA) pursuant to solicitation no. 3-349555. On August 25, 1993, Modern Technologies Corporation (MTC) filed its protest of the same contract award. NYMA, United International Engineering, Inc. (UIE), and I-NET Corporation (I-NET) have intervened in both protests, and ViGYAN and MTC have also intervened in each other's protests. The protests have been consolidated by the Board. This matter comes before the Board on the request for access to protected material made by I-NET's general counsel and vice president, Mr. David W. Wells. ViGYAN, NYMA, and respondent oppose the Board's granting Mr. Wells access to protected material. Mr. Wells' application for access to protected material reads in relevant part: 1. I serve as Vice President and General Counsel for I-NET. In that position, 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. 2. My role in reviewing solicitations is very limited. Specifically, I will review requests for proposals or invitations for bids 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. 3. I do not participate or advise I-NET in determining whether to submit a proposal in response to the RFP. 4. 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 occur concerning any Federal procurements. 5. 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's entering into any given agreement. 6. My position does not involve participation in "competitive decision-making" for I-NET. For purposes of the foregoing statement, the term "competitive decision-making" is used in the sense as discussed in U.S. Steel Corporation v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984). 7. 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 them work in the same building in Bethesda, Maryland, I do not participate or provide advice to those individuals concerning their job functions. 8. I have previously been granted access to protected material in connection with prior protests before the Board. See International Data Products Corp. v. Dept. of Health and Human Services, GSBCA 12269-P, 1993 BPD 44; Challenger Engineering, Inc. v. Defense Information Systems Agency, GSBCA No. 12207-P (access granted under protective order dated December 11, 1992). 9. I agree that my access to protected materials will be limited to information received orally or viewed in the offices of Arent Fox Kintner Plotkin & Kahn, or during a hearing, deposition, or other related proceedings. At no time will I maintain physical possession of protected materials in I-NET's offices. Request for Access to Protected Material of David W. Wells at 1- 4. ViGYAN opposes Mr. Wells' application because I-NET is a small business and "therefore is likely to make greater use of in-house counsel on competitive legal issues." ViGYAN Objection to Request for Access to Protected Material Filed by David W. Wells at 3. ViGYAN also expresses concern that in Mr. Wells' role of advising the president of I-NET with respect to ensuring that I-NET's proposal team complies with the Service Contract Act when responding to solicitations, his actions may directly impact I-NET's competitive decisionmaking. NYMA bases its opposition to Mr. Wells' request for access to protected material on the assertion that because Mr. Wells is the sole in-house attorney and is also a vice president of I-NET, and because his interaction with other I-NET personnel is extensive, this ". . . by any reasonable definition, makes him a decisionmaker." NYMA Inc. Objection to Request for Access to Protected Material Filed by I-NET, Inc. at 2. NASA's opposition to Mr. Wells' request for access to protected material is based on its contention that Mr. Wells' position as vice president and general counsel ". . . must inevitably involve advice and participation in motions pertinent to the corporation's pricing, product design, marketing or other decisions." Respondent's Objection to Intervenor I-NET's Request for Access to Protected Material at 1-2. I-NET argues that Mr. Wells, in his current capacity as general counsel and as vice president, was granted access to protected material in prior protests, including International Data Products Corp. v. Department of Health and Human Services, GSBCA 12269-P, 93-2 BCA 25,807, 1993 BPD 44, and that the objecting parties have not raised sufficient grounds for excluding Mr. Wells from having access to protected material in this protest. Discussion Whether in-house counsel is precluded from having access to protected material is determined by whether counsel is engaged in competitive decisionmaking, i.e., advising or participating in any or all of the client's decisions such as pricing or product design, made in light of similar or corresponding information about a competitor. Such a determination cannot be made to exclude an individual from having access to protected material solely based upon the individual's status as in-house counsel. Rather, a determination must be made as to whether an unacceptable opportunity for inadvertent disclosure exists, based upon a review of the facts in each case. U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984). The standard to be applied in making such a determination is not whether in-house counsel has regular contact with individuals involved in competitive decisions, but instead whether counsel renders advice and participates in competitive decisionmaking. Matsushita Electric Industrial Co. v. United States, 929 F.2d 1577 (Fed. Cir. 1991) We recently granted Mr. Wells access to protected material in International Data Products Corp. based upon substantially identical representations as have been made by Mr. Wells in this protest. The Board has reviewed Mr. Wells' request for access to protected material in the instant protest, and concludes that Mr. Wells has demonstrated that he neither engages in nor gives advice regarding the competitive decision making of his corporation. The arguments put forth by ViGYAN, NYMA and respondent contain assumptions based solely upon Mr. Wells' status as in-house counsel which do not provide a factual basis for their assertions that Mr. Wells is engaged in competitive decisionmaking. There has been no showing that I-NET's size makes it more likely that I-NET will make use of Mr. Wells on competitive legal issues, as alleged by ViGYAN. Mr. Wells' position as sole in-house attorney and a vice president and interaction with other I-NET personnel does not necessarily impose upon him the role of competitive decisionmaker, as alleged by NYMA. Similarly, NASA's allegation that Mr. Wells' status "must inevitably involve advice and participation in motions pertinent to the corporation's pricing, product design, marketing or other decisions" is speculative assumption based solely upon Mr. Wells' status and contradicted by the factual statements contained in Mr. Wells' request for access to protected materials. Mr. Wells has established the requisite factual basis for being granted access to protected material in the instant protest. The nature of the advice he provides as general counsel as detailed in his request for access does not constitute advice on competitive decisionmaking. His role in reviewing solicitations is limited. He neither participates nor advises the company in determining whether to submit a response to a solicitation. He does not provide advice or participate in proposal preparation. Mr. Wells does not suggest the products or determine pricing to be included in a proposal. Rather, he advises I-NET on how to comply generally with statutory and regulatory requirements. [foot #] 1 The fact that Mr. Wells has regular contact with those who are engaged in competitive decisionmaking is not of itself a basis for denying one access to protected material. Mr. Wells has proposed that he would review protected material at the offices of outside counsel, and would not review such protected material at I-NET's offices. Under such circumstances, the Board finds that allowing Mr. Wells access to protected materials would not create an unacceptable risk of inadvertent disclosure. Matsushita Electric Industrial Co.; Grumman Data Systems Corp. v. Department of the Air Force, GSBCA 11635-P, 92-2 BCA 24,999, 1992 BPD 1. Accordingly, we grant Mr. Wells access to protected material under the terms he has proposed. ORDER The Board overrules the objections of ViGYAN, NYMA, and respondent and GRANTS the application of David W. Wells, Esquire, for access to protected material. As he has proposed, Mr. Wells' access to protected material "will be limited to information received orally or viewed in the offices of Arent Fox Kintner Plotkin & Kahn, or during a hearing, deposition, or other related proceedings." Request For Access to Protected Material at 3. Physical possession of protected material will not be maintained in I-NET's offices. ________________________________ ALLAN H. GOODMAN Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 ViGYAN expresses concern as to Mr. Wells' statement that if the Service Contract Act applies to a solicitation, he advises the " . . . President of the Company to ensure that the proposal team complies with the Service Contract Act." Such general, cautionary advice as described by Mr. Wells does not equal the level of activity discussed in Advanced ________ Management Inc., GSBCA 11851-P, 1992 BPD 150, 92-3 BCA 25,108, _______________ cited by ViGYAN. In that case, a senior administrator was denied access to protected material because he took specific action which affected the contents of the firm's proposals, that included calculation of burden rates and advice as to the extent to which corporate benefits were "benefits" for purposes of the Service Contract Act, both of which had a bearing on the company's cost proposals.