Inspace 21 LLC v. United States ( 2016 )

In the United States Court of Federal Claims
No. 15-364C
(Filed September 6, 2016)
NOT FOR PUBLICATION
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INSPACE 21 LLC , *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant, *
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and *
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RANGE GENERATION NEXT *
LLC, *
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Defendant-intervenor. *
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ORDER
The Court has reviewed intervenor’s request that certain information be
redacted from the opinion filed under seal August 4, 2016. The documents filed by
the parties in this case are subject to a protective order precluding disclosure of
“information that must be protected to safeguard the competitive process, including
source selection information, proprietary information, and confidential
information.” Protective Order ¶ 1. Although there is “a presumption of public
access to judicial records,” Baystate Techs., Inc. v. Bowers, 283 F. App’x 808, 810
(Fed. Cir. 2008), which may extend to “materials on which a court relies in
determining the litigants’ substantive rights,” Anderson v. Cryovac, Inc., 805 F.2d 1,
13 (1st Cir. 1986), the Supreme Court has recognized that this right “is not
absolute,” and may not allow access to “business information that might harm a
litigant’s competitive standing,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
(1978) (citations omitted); see also In re Reporters Comm. for Freedom of the Press,
775 F.2d 1325, 1332–33 (D.C. Cir. 1985) (citing Nixon, 435 U.S. at 597–98). Hence,
protective orders are routinely used in bid protest cases, for which the record
commonly includes confidential proposals containing proprietary information such
as non-public prices, business methods, and perhaps even the manner in which
information is presented.
This does not mean, however, that all information conveyed in a proposal
must be redacted from a judicial opinion. A description may be so general, or a
method so common, that it would be unreasonable to remove it from an opinion,
particularly if this might render the ruling unintelligible. The common law
presumption of public access rests, after all, on the notion “that public monitoring of
the judicial system fosters the important values of quality, honesty and respect for
our legal system.” Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9–10 (1st Cir. 1998)
(citation and internal quotation marks omitted); see also Baystate Techs., 283 F.
App’x at 810 (same); Madison Servs., Inc. v. United States, 92 Fed. Cl. 120, 131
(2010) (same). Moreover, the posture of the procurement at issue must be
considered, as matters that may have been confidential within a proposal, such as
staffing levels, may become public through performance of a contract the award of
which was unsuccessfully protested.
In this case, the Court finds that the vast majority of the redactions
requested by intervenor are unwarranted. Intervenor contends that the
information it seeks to protect concerns its “technical and pricing approaches” and
cites the ban on agency disclosure of proposals, 10 U.S.C. § 2305(g), in support of its
requests. Notice Re Proposed Redactions at 2. But none of the requested redactions
concern pricing, and few pertain to the non-public particulars of intervenor’s
technical approach.
Intervenor wants removed from the opinion all references to cross-utilization
of employees and the use of part-time labor. One problem with this request is that
intervenor had previously contended that its use of part-time and cross-utilized
labor has been revealed through its performance of the contract during the
transition and the start of the first contract period. Def.-Int.’s Cross-Motion for J.
at 12; id., Ex. A ¶¶ 10–11. This was given as a ground for dismissal under the
doctrine of laches, as plaintiff delayed filing its bid protest until after the transition
period was completed --- allegedly placing intervenor at a competitive disadvantage
because its “competitive, proprietary processes and approaches . . . have been
revealed.” Def.-Int.’s Cross-Motion for J. at 12. Moreover, the Court does not see
how general references to the cross-utilization of employees can reveal any
proprietary information, given that all four offerors proposed some form of this
approach. Nor is the Court persuaded that the mere concept of using part-time
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employees is proprietary. This is a common practice that is frequently discussed in
even heavily-redacted bid protest opinions, see FirstLine Transp. Sec., Inc. v. United
States, 119 Fed. Cl. 116, 123–24 (2014); Survival Sys. USA, Inc. v. United States,
102 Fed. Cl. 255, 265 (2011); Tech Sys., Inc. v. United States, 98 Fed. Cl. 228, 256
(2011); Advanced Data Concepts, Inc. v. United States, 43 Fed. Cl. 410, 420 (1999).
While the mere use of the terms “part-time” and “cross-utilized” employees
does not reveal proprietary information in this circumstance, the Court recognizes
that some specific details about how intervenor employs such personnel might be
protectable. Two instances of such detail, which might not necessarily be revealed
through performance of the contract, have been identified and redacted. This
treatment does not, however, extend to references to the assistance rendered in the
performance of unspecified critical tasks.
References to the percentage size of the reduction in labor hours proposed by
intervenor will remain in the opinion, because the contract award was upheld, the
contract has been performed for an extended period, and the total labor hours
performed under the predecessor contracts was revealed to offerors (and would
presumably be revealed in any follow-on procurements). The percentages of the
work force that are part-time, and estimates of labor hours saved due to
intervenor’s implemented efficiencies, remain in the opinion. The Court does not
see how these can represent particular approaches or solutions, as opposed to the
expected result of them. The mimicking of such results would be meaningless
unless accompanied by the specific means of accomplishing them, and their removal
from the opinion would make it difficult to understand.
Intervenor also puzzlingly requests redaction of a reference to its having
proposed to perform several unidentified tasks using one employee for each, and to
the fact that more than 1000 staff were needed to perform the contract ---
information which cannot possibly disadvantage intervenor. Its request to redact
the number of task areas for which intervenor proposed fewer staff than did
plaintiff is without warrant, as this is a mere artifact of the procurement process
and not information actually contained in a proposal. On the other hand, the Court
agrees that the number of employees intervenor identified as “critical” may be
protected, as well as the number that were not (since the latter could be used to
calculate the former). An offeror’s appreciation of the volume of tasks that should
be considered critical could itself be crucial in the evaluation of future proposals to
perform the contracted work. The opinion will be reissued, reflecting the above-
discussed redactions.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge
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