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Bid protest protective order - covers relative scores?


MDJohn

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Agency report contains a table showing the protester's and awardees' relative scores on subfactors. It is very instructive and its disclosure to protester will certainly educate the protester, give it a clearer understanding of the strengths and weaknesses of its protest, and make the response to the agency report more efficient and intelligent. Agency has indicated that the information in the table - even that awardee's score on subfactor 5 was higher than protester's - is covered by the protective order because the information could reveal competitive information, and thus cannot be disclosed to client. My experience is that scores on subfactors vary from solicitation to solicitation and a high score on a subfactor (e.g., organizational capability) for one solicitation does not necessarily carry over to the next solicitation.

Is the content of the table showing the comparative scores on subfactors nondisclosable under the protective order?

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It's generally up to the parties to the protest to decide what is to be covered under a protective order, with GAO deciding if the parties cannot agree. Given the timing of things, it's rare though that GAO gets involved in such disputes in time to provide a redacted copy of the agency report to the protester to prepare its comments on the report.

In my experience, though, comparative scores generally are covered under a protective order.

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See FAR 33.104( a )( 5 ) -- it will answer your question -- an agency can requst a protective order from the GAO (33.104( a )( 5 )( i )), and the protestor can object (33.104( a )( 5 )( ii ) -- the GAO decides based on the merits of the agency's request ( i ) and the protestor's rebuttal ( ii ).

An agency making a weak case (or a protestor making a strong rebuttal) might result in a certain document being excluded from the protective order. In identical circumstances, where all the facts are identical except that the agency makes a strong case (or the protestor makes a weak rebuttal), the document might be protected.

In other words, there is no absolute answer based on the facts -- it depends on the attorneys.

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If you're inquiring about a FAR Part 15 acquisition, I would suppose that the post-award debriefing would have told the protestor its technical rating as well as that of the successful offeror.

One last thought -- the time for a protestor to object to the reach of a propsed protective order is within two days after the agency makes the protective order request with the GAO. If the document you seek is already covered by an already-issued protective order, well, you might be too late. Your attorneys already know this.

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