_______________________________________________ ACCESS UNDER PROTECTIVE ORDER GRANTED: January 4, 1999 _______________________________________________ GSBCA 12870-P BOOZ-ALLEN & HAMILTON, INC., Protester, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent, and R.O.W. SCIENCES, INC., Intervenor. George D. Ruttinger, John E. McCarthy, Jr., Robert P. Davis, and Peter J. Lipperman of Crowell & Moring, Washington, DC, counsel for Protester. Barbara Robbins, Office of General Counsel, Department of Health and Human Services, Washington, DC; and Alice A. Kelley, Office of General Counsel, Department of Health and Human Services, Rockville, MD, counsel for Respondent. Joseph J. Brigati and Matthew D. Anhut of Kirkpatrick & Lockhart, Washington, DC, counsel for Intervenor. BORWICK, Board Judge. Background Booz-Allen & Hamilton, Inc. (Booz-Allen) has filed this protest contesting the National Institutes of Health's (NIH) award of a database development and management contract to R.O.W. Sciences Inc. (R.O.W. Sciences).[foot #] 1 On June 14, ----------- FOOTNOTE BEGINS --------- [foot #] 1 Protester claims that respondent failed to conduct a proper cost/technical tradeoff in light of the cost differential between the offers of protester and intervenor; that (continued...) ----------- FOOTNOTE ENDS ----------- 1994, the Board issued a protective order. Booz-Allen seeks access under our protective order for its in-house counsel, Ms. Ivy Martin, and a consultant, Mr. Jimmy Jackson. R.O.W. Sciences objects to access for the in-house counsel.[foot #] 2 For the reasons below, we overrule the objection and grant access under the protective order to Ms. Martin. Booz-Allen's in-house counsel, Ms. Martin, filed a statement supporting her request for access which reads in pertinent part: 2. I am an Associate General Counsel for Booz- Allen & Hamilton Inc. ("Booz-Allen"), the protester herein. I have been in-house counsel with Booz-Allen since January 7, 1991. I am not an officer or director of Booz-Allen or any of its affiliated companies. 3. My relationship to the managers of Booz-Allen is one of legal counsel. Within Booz-Allen, the Law Department is a separate organization and the lawyers do not report to clients. I report to the Senior Vice President and Deputy General Counsel, Mr. C. G. Appleby, who in turn reports to the Senior Vice President and General Counsel, Mr. Daniel R. Idzik. 4. In my position, my primary role has been and is to counsel my client, Booz-Allen, on its legal rights and obligations in the conduct of its business. My counseling functions are focused primarily in the areas of technology licensing and transfer, employment law, corporate matters, commercial contract negotiation, litigation management and, to a lesser extent, the legal aspects of government contract- related issues, including federal procurement statutes and regulations, protests and other litigation, Procurement Integrity and ethics matters, contract claims, contract administration issues, and subcontracts. ----------- FOOTNOTE BEGINS --------- [foot #] 1 (...continued) respondent used an outdated cost estimating model and failed to conduct a proper cost-realism analysis; that respondent improperly applied technical evaluation factors downgrading the evaluation of the technical merit of protester's proposal, particularly in the areas of staffing and system architecture; and that respondent failed to conduct fair and adequate discussions with protester. [foot #] 2 R.O.W. Sciences has withdrawn its objection to access by the consultant. ----------- FOOTNOTE ENDS ----------- 5. My responsibilities do not involve providing advice or participating in any bids or proposals with respect to pricing selection of products, product design, or any other design involving the competitive structuring of proposals. I am not involved in writing or reviewing proposals, determining teaming or subcontracting partners, making bid/no-bid decisions, or reviewing marketing strategies or decisions. I am not involved in decisions regarding what procurements to pursue, the strategy for pursuing procurements, the structure or composition of an offer, or the prices offered. In summary, I do not provide advice or participate in the competitive decision making of Booz- Allen or any affiliated company. 6. The entity within Booz-Allen which submitted a proposal in response to the subject solicitation is the Complex Systems Practice within the Information and Strategic Systems Group (ISSG). I have provided legal counsel to that entity, as well as numerous others, since joining Booz-Allen in 1991. I have had no responsibilities with respect to the subject solicitation on behalf of Booz-Allen or ISSG, other than as legal counsel with respect to this protest. Nor do I anticipate provision of any further support to Booz-Allen or ISSG that would be considered competitive decision making. . . . . 8. I am appearing as Of Counsel in this protest. I am a member of the Bar of the Commonwealth of Virginia. I am fully aware that I am bound by all pertinent official standards, including the Code of Professional Responsibility. 9. I represent to the Board that I have read the Protective Order dated June 14, 1994, which was entered by the Board, and I will abide by its terms and conditions in handling any protected material which is produced in connections with this matter. Statement of Ms. Ivy R. Martin, Associate General Counsel, Booz- Allen & Hamilton Inc. (June 17, 1994) (Martin Statement). Discussion R.O.W. Sciences objects to access, arguing that Ms. Martin "provides counsel to Booz-Allen regarding commercial contract negotiations and technology licensing and transfer matters." Because the confidential information contained in the proposals is used in both commercial and government contract areas, R.O.W. Sciences argues that the risk of inadvertent disclosure is enhanced significantly. Intervenor's Objection at 3. R.O.W. Sciences equates "providing counsel" with "competitive decisionmaking" and maintains that providing counsel is sufficient for denial of access. If that were the law, then the only in-house counsel eligible for access would be those lawyers who were exclusively in-house litigators. That, however, is not the law. The United States Court of Appeals for the Federal Circuit has held that an in-house lawyer is involved in competitive decisionmaking when that lawyer advises and participates in the client's decisions (pricing, product design, etc.) made in light of similar or corresponding information about a competitor. Matsushita Electric Industrial Co. v. Unites States, 929 F.2d 1577, 1579 (Fed. Cir. 1991). The Court there approved access for a General Counsel of the Tandy Corporation (Tandy) who did not participate in competitive decisionmaking, but who gave general legal advice. Here, Ms. Martin states in paragraph five of her statement that she is not a competitive decision-maker, i.e. that she does not review proposals, make bid decisions, review marketing strategies, or write or review proposals. Her role is one of "legal counsel." Martin Statement 5-6. This statement is similar to the statement of Tandy's general counsel in Matsushita and similar to statements of other in-house counsel to whom we have granted access. See Unisys, GSBCA 11069-P, 91-2 BCA 23,762, 1991 BPD 31. In a supplemental statement, Ms. Martin states that she plays the same role with respect to commercial activities as she does in government procurements. Supplemental Statement of Ms. Ivy R. Martin (June 21, 1994) 2. Furthermore, as in Unisys, Ms. Martin is isolated from competitive decisionmakers because she reports to a deputy general counsel, who in turn, reports to the general counsel. Thus, she is effectively walled off from management's competitive decisionmaking. Although we see no risk of inadvertent disclosure by Ms. Martin, to allay any fears, Ms. Martin will be allowed access to protected material only at the offices of Crowell & Moring (Booz-Allen's retained counsel) or associate counsel (in the case of out-of-town depositions), or at the hearing in this case. Decision Access to Ms. Martin under the protective order is GRANTED. ________________________________ ANTHONY S. BORWICK Board Judge