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Counsel Sanctioned for Violation of Protective Order

The Court of Federal Claims sanctioned the counsel of a protest intervenor because he violated a protective order by using protected information to advise the intervenor to file a separate protest and by including protected information in the complaint. The government filed a motion to enforce a protective order in a protest challenging the award of a Federal Supply Schedule contract to provide real estate management services in a designated geographical area. The order limited use of protected information "solely for the purposes of this litigation." The intervenor was the awardee, but based on protected information in the administrative record, its attorney advised the intervenor to pursue its own protest to challenge awards in other geographical areas. The intervenor then filed a complaint under seal that disclosed information covered by the protective order. In response to the government's motion to enforce the order, the intervenor argued it was not clear the order prohibited use of protected information "to file a protest in the same forum, of the same procurement, and on behalf of the same client."

Separate Litigation

However, "[e]ven in the context of large, multi-award procurements, parties may not use protected information from one bid protest as the basis for another bid protest without seeking permission," and the two protests were clearly separate litigation. In addition, a protective order "limits not only the parties who can have access to the information, but also how they can use it." Therefore, even if the attorney did not directly discuss or convey protected information, he violated the order by using protected information to form litigation strategy outside of the current litigation. Under the circumstances, the appropriate sanction for the willful violation was for the intervenor's counsel, not the intervenor, to pay reasonable expenses and attorney's fees incurred by the government and another intervenor to file and brief the motion. (Pyramid Real Estate Services, LLC v. U.S., et al., FedCl, 55 CCF 79,490)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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