One of the ongoing issues lawyers face when litigating bid protests at GAO is the lack of precedent related to protective order (PO) admissions. The rules are relatively clear with respect to outside counsel and most in-house attorneys applying for admission under a PO. However, although GAO generally applies its rules consistently with respect to consultants, many consultant applications draw unnecessary objections that have been answered repeatedly by GAO case attorneys in other protests, though not in published opinions or guidance. Although GAO’s protective order process generally works well, it could be improved (and save time and cost) by more written guidance regarding admissibility of consultants. In this post, we’ll briefly summarize the rules applicable to attorneys then provide our take on some of the unwritten rules of consultant admissions. (To the extent readers disagree or want to point to consultant-related precedent, please feel free to continue the conversation in the comments section.)
Outside Lawyers. With respect to PO admission, GAO asks whether the applicant is involved in competitive decision-making on Government procurements or if her/his admission otherwise poses an unacceptable risk of inadvertent disclosure of protected information. (The same standard applies at the Court of Federal Claims.) Outside counsel with a protest practice steer clear of competitive decision-making, so their applications rarely present concerns meriting objection.
In-House Counsel. Applications for in-house counsel receive more scrutiny from the parties and the GAO (or the CFC), and much of the precedent—including the case cited in GAO’s form order, US Steel Corp. v. US—relates to these lawyers. In practice, the concern is that in-house counsel may be closer to competitive decision-makers and thus pose a risk of inadvertent disclosure.
However, an in-house lawyer whose practice does not involve competitive activities, e.g., a litigation or compliance counsel, and who is separated from company employees involved in competitive procurements is the best candidate for a PO application. Although the fact that an in-house lawyer reports to the General Counsel may draw an objection, GAO precedent makes clear that such reporting responsibility alone should not preclude admission, provided the applicant does not provide advice regarding (or otherwise work on) competitive procurement issues.
Consultants. As we recently noted, consultants can play an important role in GAO (and CFC) protests—and in some cases, can be indispensible parts of the litigation team analyzing the record, and developing and presenting the client’s arguments. Locating suitable consultants and gaining their admission under the PO can thus be an extremely important part of a protest lawyer’s challenge to (or defense of) an award decision.
The ideal consultant has the applicable knowledge to help protest counsel understand the technical, cost/price, or other issues found in the administrative record for which she/he is being retained to provide assistance; also important are the communications skills necessary to educate counsel and to facilitate provision of technical knowledge and arguments to GAO (or the CFC) under the tight deadlines applicable to protest cases. The people most likely to have the required skill set are current employees of the client (protester or intervenor), and they’re precluded from admission. So protest lawyers frequently turn to former employees or recent retirees of the client, other competitors, or Government agencies; academics; and consultants in independent firms. In high stakes bid protests, potential applicants will often draw objections no matter how clearly admissible they are. That said, below are a few rules of thumb concerning the types of consultants that should be able to gain admission under a bid protest protective order.
Retirees. Former employees of the client, another company, or the Government who worked in the technical area at issue in the challenged procurement are often good bets for admissibility.
One concern that frequently arises with former employees or retirees is post-employment consulting involving proposals or business development. Former employees with the most valuable skills from a protest perspective are often the type of workers that companies may call on for consulting work on upcoming procurements. Such work within the two years preceding a protest, particularly if it involves competitive procurement(s), can preclude admission under the PO.
There are several relatively weak objections that are frequently made about former employees and retirees—and are almost always rejected by GAO. For instance, objections are often based on a retiree’s routine financial ties with his former employer (e.g., pension, 401k plan, stock ownership, stock options), but such connections—particularly with respect to publicly-traded companies—do not create an unusual risk of inadvertent disclosure or otherwise preclude admission under a PO. Nor do minimal social contacts with personnel at the former employer, such as the occasional golf game, dinners, or get-togethers with former colleagues, which often are used as the basis for an objection. Consultants agree to comply with the restrictions imposed by the PO, and there is no reason to believe that such obligations will not be maintained simply because the retiree has occasional social contacts with former co-workers.
Academics. Counsel sometimes attempt to use academics with expertise in the relevant area as bid protest consultants. To the extent such potential applicants have relevant skills and do not provide competition-related consulting services to companies, they should be able to gain admission under a PO. However, some academics also maintain a consulting practice or participate in research that is funded in whole or part by industry; such work or funding can provide the basis for an objection to the academic’s PO application.
Consulting Firms. Consultants from different types of advisory firms (construction, accounting, etc.) also may provide assistance in protests. The most clearly admissible of these individuals are those who work in one-or two-person firms specializing in Government contracts protest and dispute work. There are several, well-known “frequent fliers” in this category who appear in GAO (and CFC) protests, and there is almost never a good faith objection to one of their applications.
Potential consultants who work for large consulting firms frequently draw objections not because of anything problematic in their backgrounds, but because someone else in their firm (or someone in a different business line in the firm) advises or is otherwise involved with competition-sensitive issues. As consultants perform their work on protests in counsel’s offices, there is no serious risk of inadvertent disclosure from the potentially admitted consultant to someone in her/his firm when the work is occurring. Instead, the objection is likely to address the potential, during the period after the protest, for protected information to be used inadvertently in advising clients of the accounting/consulting firm.These concerns are frequently overblown by objectors but have, in some circumstances, been sufficient to derail a consultant application.