THIS ORDER WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC IN ITS REDACTED FORM ON APRIL 19, 1994 ________________________ ISSUED: March 14, 1994 _________________________ GSBCA 12754-P FEDERAL COMPUTER CORPORATION, Protester, v. DEPARTMENT OF THE TREASURY, Respondent, and ViON CORPORATION, Intervenor. Gerard F. Doyle and Alexander T. Bakos of Doyle & Bachman, Washington, DC; and David Kovach of Federal Computer Corporation, Falls Church, VA, counsel for Protester. Donald M. Suica, Duane L. Zezula, James W. Corbitt, Jr., Greg M. Weinman, and Corlyss M. Drinkard, Office of Chief Counsel, Internal Revenue Service, Washington, DC, counsel for Respondent. David R. Hazelton, Roger S. Goldman, Philip L. Gordon, and C. Chad Johnson of Latham & Watkins, Washington, DC, counsel for Intervenor. NEILL, Board Judge. ORDER On February 23, the Board issued an order denying the request of protester's house counsel, David S. Kovach, for access to confidential information subject to a protective order issued in this case. On February 28, protester moved for reconsideration. We have granted this request and permitted protester to supplement its initial submission. We have likewise permitted counsel for the opposing parties to submit comments regarding each of protester's submissions. For the reasons set out below, however, we confirm our original ruling. The Factual Basis For The Board's Ruling A good deal of the information relied upon by the Board in declining to grant Mr. Kovach's request for access was and remains based upon information provided by counsel for the Internal Revenue Service (IRS). Counsel has supplied us with information contained in the offer tendered by Federal Computer Corporation (FCC) on this procurement and has also provided us with a written memorandum summarizing telephonic conversations with Mr. Kovach on February 17 and 18. During these two conferences, Mr. Kovach responded to specific questions prepared by IRS counsel and provided to him prior to the conferences. The summary memorandum was prepared and signed by four IRS attorneys who assisted at the teleconferences. It was drafted only after Mr. Kovach declined to provide IRS with a written summary of his own regarding the answers provided during the two teleconferences. Based on the information provided to date by IRS counsel, we now know that Mr. Kovach is married to Lauren Kovach, an employee of FCC. This was not a fact spontaneously offered by Mr. Kovach in making his initial request for access to protected material in this case. An organizational chart of FCC, also provided by IRS counsel, shows that Lauren Kovach is definitely part of FCC's management structure. She is designated as FCC's Contracts Manager and is on a level with the Company's Program Manager, Technical Support Manager, and Proposal Manager. . A resume, also provided by IRS counsel, confirms that Lauren Kovach is heavily involved in FCC's contract administration and that she assists in both GSA/ADP schedule and government contract negotiations.[foot #] 1 ----------- FOOTNOTE BEGINS --------- [foot #] 1 Protester complains that this information recently brought forward by IRS has been available for a considerable amount of time. This may be correct. We believe IRS, however, when it says that the information was discovered only recently in conjunction with the current controversy regarding Mr. Kovach's request for access. We do not consider IRS was under any obligation to search through FCC's offer for this information at an earlier time. ----------- FOOTNOTE ENDS ----------- The memorandum provided by IRS counsel which summarizes the teleconferences with Mr. Kovach states that FCC has a total of approximately employees nationwide with approximately at headquarters in Falls Church, Virginia. The issue of Lauren Kovach's role within the FCC organizational structure continues to be one of particular concern to the Board in this protest. Mr. Kovach suggests that one reason why he did not treat it in the first supplement to his initial request for access is that he assumed that, in the absence of any additional questions from IRS counsel, it was of no consequence. Statement of David S. Kovach In Support of Motion for Reconsideration at 1. The information subsequently provided to us regarding the role of Mrs. Kovach in the operations of FCC has done nothing to persuade us that she is not involved in competitive decision making. In his statement in support of reconsideration, Mr. Kovach states that his wife "had no involvement in the preaward state of this procurement nor in this competitive decision making process." Id. This broad statement by FCC house counsel is of little use to us in view of representations contained in Mrs. Kovach's resume. As already noted, the resume states that she assists in both GSA/ADP schedule and government contract negotiations. Furthermore, even if we were to assume that today Mrs. Kovach is primarily involved in contract administration rather than negotiation, we are not prepared to conclude that this means she does not participate to some degree in FCC's competitive decision making. Her involvement in company operations appears to be at a relatively high level within the Company's organizational structure. In the absence of any showing to the contrary, we consider it reasonable to assume that information regarding FCC's contract management may well have a bearing on the Company's competitive decision making process. As to the fact of FCC's approximate size, although FCC counsel has had ample opportunity to refute statements attributed to him on this subject by IRS counsel, he has not done so. We conclude, therefore, that these statements are correct. Board Precedent In our initial ruling, we noted a similarity of this case to that discussed in a prior ruling by the Board on a request for access, International Data Products, Corp., GSBCA 12269-P, 93-2 BCA 25,806, 1993 BPD 41. In its request for reconsideration of our ruling, protester explains that the legal basis for the request is the "substantial and significant difference between the instant circumstances and those in the precedent cited in the Board's February 23, 1994 ruling." Protester's Motion For Reconsideration at 4. Protester thereupon expends a considerable amount of time distinguishing the facts of this case from those in the IDP ruling. The Board certainly recognizes that the facts of the IDP ruling are at best analogous to those in this case. It was cited simply to demonstrate the Board's concern with existing familial relationships when making access rulings. What is similar to both cases is that there is a familial relationship between the person seeking access and individuals closely associated with the protesting vendor. There the parallel stops. This case clearly goes further and establishes a new precedent. Namely, where the individual seeking access to protected material is married to someone within the organizational structure of a relatively small company and that individual is involved in company competitive decision making, then, in the absence of any showing that there are unique or extenuating circumstances, the Board will conclude that this constitutes an unacceptable risk of inadvertent disclosure of protected material. We note in passing that in our initial ruling, we mentioned that one factor influencing our decision was that FCC was represented by outside counsel to whom access had been granted. For the record, the Board wishes to clarify that, while this was a factor in the original ruling, it carried little weight and, given protester's failure to convince us, on reconsideration, that there are special circumstances justifying a change in our ruling, this factor carries no weight in our decision to reaffirm the earlier ruling. Given the facts before us, our determination in this case would be the same regardless of whether FCC was or was not represented by outside counsel. Alleged Prejudice to FCC In support of its request that the Board reconsider the ruling denying access to FCC house counsel, protester argues that the continued denial of access works an unmistakable prejudice on FCC. FCC's argument is based on recent developments in this case. Opposing counsel have filed a joint motion to dismiss certain counts of the first amended protest as untimely. This motion is subject to the Board's protective order. It is based in part on the fact that in a separate protest by Amdahl Corporation (Amdahl Corp. v. Department of Treasury, GSBCA 12658- P),[foot #] 2 which involved the same procurement as is the subject of the instant protest, counsel for FCC was given access to protected material. The argument is now made that certain counts in the instant protest are untimely because, based on what FCC counsel knew or should have known from a review of the confidential information made available in the Amdahl ----------- FOOTNOTE BEGINS --------- [foot #] 2 This case was dismissed by the Board on November 15, 1993, Amdahl Corp. v. Department of Treasury, GSBCA ______________________________________ 12658-P, 1993 BPD 340. ----------- FOOTNOTE ENDS ----------- protest, certain counts in the instant protest should have been filed at that time. FCC counsel describes his current, allegedly prejudicial predicament as follows: Because the latest Motion has been filed under the protective order in this case, I have no access to that material. Because [outside counsel] was not admitted under the protective order in the last case, he has no access to protected materials from that case. Therefore, he cannot discuss materials in the current motion with me, and I cannot discuss the previous case with him. FCC attorneys can have no meaningful discussion about the very materials and issues which Respondent and ViON utilize as the basis for their dispositive motion. Supplement to Statement of David S. Kovach in Support of Motion for Reconsideration at 3. The Board finds this argument of FCC house counsel unpersuasive. There is no reason why the documentation in question cannot be specifically identified. The fact that a particular document is subject to a protective order is not itself protected information. Furthermore, it should be possible for the parties to stipulate on whether the documentation in question in the Amdahl protest is in fact identical to that in the instant protest. We note that counsel for respondent has already represented that the documentation upon which respondent and ViON rely in their motion is the same for the Amdahl protest as it is for the instant protest. Respondent's Supplement To Its Motion In Opposition To Protester's Motion For Reconsideration at 5. Once these facts have been confirmed among counsel, we see no reason why FCC house counsel and outside counsel cannot confer regarding an appropriate response to the joint motion. Alleged Unauthorized Disclosure of Protected Material In opposing protester's request for reconsideration of our ruling denying access to FCC's house counsel, respondent has presented the Board with yet another issue. Counsel for IRS now alleges that there appears to have been an unauthorized disclosure to FCC of protected material during the Amdahl protest. In view of this allegation, IRS urges the Board to "steer the prudent course and deny Mr. Kovach access to the protected material." Respondent's Motion in Opposition to Protester's Motion for Reconsideration at 7. Counsel for FCC has offered to brief this new issue introduced by IRS counsel. At this point, we have nothing more than an unproven allegation which, if it is to be acted upon, is more properly addressed by the Board panel of judges to which the Amdahl protest was assigned. We, therefore, will not consider it in conjunction with protester's request for reconsideration of the ruling denying Mr. Kovach's request for access. Decision Upon review of all arguments and evidence submitted by the parties in conjunction with protester's request that the Board reconsider its original ruling denying Mr. Kovach's request for access, the Board confirms its original ruling. ____________________ EDWIN B. NEILL Board Judge