Board of Regents of the Nevada System of Higher Education v. United States

In the United States Court of Federal Claims
No. 16-376C
(Filed July 5, 2017)
NOT FOR PUBLICATION
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BOARD OF REGENTS OF *
THE NEVADA SYSTEM OF *
HIGHER EDUCATION, *
on behalf of THE DESERT *
RESEARCH INSTITUTE, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant, *
and, *
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OAK RIDGE ASSOCIATED *
UNIVERSITIES, *
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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 May 31, 2017. 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). As a
result, protective orders are routinely used in bid protest cases, for which the record
often includes confidential proposals containing proprietary information such as
non-public prices, business methods, and perhaps even the manner in which
information is presented.
It does not follow, 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 may become public through performance of
a contract the award of which was unsuccessfully protested.
In this case, the Court finds the majority of the requested redactions to be
unjustified. Intervenor contends that the information it seeks to protect is
“proprietary and confidential trade secret information” and cites the exemption
from Freedom of Information Act disclosures for such information, 5 U.S.C.
§ 552(b)(4), in support of its requests. Int.’s Request for Redactions of Protected
Information Contained in Sealed Opinion and Order (Int.’s Request) at 1–2 . But
very few of the requested redactions concern information that could be meaningfully
described as proprietary or as embodying trade secrets.
Intervenor wants removed from the opinion all references to the fact that it
proposed use of part-time labor in the performance of the contract. As this court
has previously found, the proposed use of part-time labor under a contract is not
usually the sort of information that should be redacted from a bid protest opinion.
Inspace 21 LLC v. United States, No. 15-364C, 2016 WL 4611057, at *2 (Fed. Cl.
Sept. 6, 2016). The proposed use of part-time employees 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).
Accordingly, the references to the proposed or past use of part-time employees will
not be redacted from the opinion, although references to the extent and manner of
their use have been redacted.
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While the mere use of part-time employees is not protectable, the Court
agrees that the number of Full Time Equivalents (FTEs) recommended by
intervenor should be redacted. The specific number does not meaningfully
contribute to, and its absence would not detract from, the comprehensibility of the
opinion and could conceivably aid intervenor’s competitors. Accordingly, the
number of proposed FTEs will be redacted.
Intervenor also oddly requests redaction of a reference to its having proposed
to bill certain of its labor costs as Other Direct Costs (ODCs) and the comparison in
the opinion between the amount of labor costs billed as direct labor compared to
those billed as ODCs. Int.’s Request at 4–5. But how a contractor bills the
government, under government-provided line items, does not reveal anything about
how the contractor performs the required work. Accordingly, this information will
not be redacted. 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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