Next, the record shows that Waterfront’s outside counsel violated the protective order during the proceedings of protest B-401948.13. For this reason, DOL and 21st Century request that we dismiss the current protest (B-401948.18). As discussed below, we agree that Waterfront’s counsel violated the protective order, and that the violation was a serious one, but we do not agree that the violation of the order by outside counsel in the earlier protest warrants dismissal of the current protest.

The protective order process is essential to the proper functioning of GAO’s bid protest process. The terms of our protective order limit “disclosure of certain material and information submitted in the . . . protest, so that no party obtaining access to protected material under this order will gain a competitive advantage as a result of the disclosure.” Protective Order, Oct. 17, 2010, ¶ 1. The order “applies to all material that is identified by any party as protected, unless [GAO] specifically provides otherwise,” and strictly limits access to protected material only to those persons admitted under the order. Id. ¶¶ 1-3.

In addition to documents marked as protected, a party admitted to the protective order may not release “documents in connection with this protest that are not designated as protected, including proposed redacted versions of protected documents” without first providing the document to the other parties. Id. ¶ 5. Furthermore, such documents may not be released “until the end of the second working day following receipt of the documents by all parties . . . to permit[] parties to identify documents that should have been marked protected before the documents are disclosed to individuals not admitted under this protective order.” Id. As our Office has held, parties may not make unilateral judgments as to whether material subject to our protective order may be released to parties not admitted to that order.8 See Network Sec. Techs., Inc., B-290741.2, Nov. 13, 2002, 2002 CPD ¶ 193 at 8.

The protective order also provides that “[e]ach individual covered under this protective order shall take all precautions necessary to prevent disclosure of protected material,” including, but not limited to, “physically and electronically securing, safeguarding, and restricting access to the protected material in one’s possession.” Protective Order, Oct. 17, 2010 ¶ 6. The protective order and our Bid Protest Regulations provide that any violation of the protective order may result in the imposition of such sanctions as GAO deems appropriate, including dismissal of the protest. Id. ¶ 9; Bid Protest Regulations, 4 C.F.R. § 21.4(d) (2011).

As discussed above, we issued a protective order in connection with protest B-401948.13 and admitted protester’s outside counsel to the order. Protester’s outside counsel received documents subject to the protective order, and filed comments on the agency report on November 3, 2010. Protester’s outside counsel subsequently prepared a version of the comments for his client, which redacted certain information. The redacted version, however, did not redact information concerning 21st Century’s indirect labor rates and portions of the awardee’s explanation as to how it prepared its overtime labor rates. Protester’s Comments (B-401948.13) at 8-9. Protester’s outside counsel has acknowledged that he did not provide a draft of the redacted version to agency counsel or GAO, as required by paragraph 5 of the protective order. See Email from Protester’s Outside Counsel to GAO, April 27, 2011; Protester’s Outside Counsel Response to GAO Questions, June 8, 2011, at 3. Waterfront acknowledges that it received the redacted version of the comments on a compact disc (CD) from its outside counsel. Protester’s Response to GAO Questions, Apr. 25, 2011, at 1-2; Protester’s Comments (B-401948.18) at 22. In addition, Waterfront used the information concerning the awardee’s labor rates in its two subsequent protests, which it pursued pro se. See Protest (B-401948.17), Feb. 9, 2011, at 10; Protest (B-401948.18), Mar. 21, 2011, at 13-14.

We think that the facts above demonstrate that the protester’s outside counsel clearly violated the protective order. In this regard, the attorney acknowledges that he prepared a redacted version of his comments, and provided it to his client without first providing agency counsel the required 2-day period for review.9 See Email from Protester’s Outside Counsel to GAO, April 27, 2011; Protester’s Outside Counsel Response to GAO Questions, June 8, 2011, at 2-3.

DOL and 21st Century argue that the actions of Waterfront and its outside counsel are similar to the facts in PWC Logistics Servs. Co. KSC(c), B-310559, Jan. 11, 2008, 2008 CPD ¶ 25, where we found that a violation of the protective order warranted dismissal of the protest. We disagree.

In PWC Logistics, the record showed that outside counsel, who was admitted to a protective order, improperly forwarded two documents to the protester. These documents were identified as proposed redacted versions, but were also marked with the following legend: “PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER.” Id. at 3-4. We concluded that the disclosure of the documents by protester’s outside counsel was a violation of the protective order. Id. at 8. We also found that the actions of the protester were improper because, upon receipt of the documents marked as protected, the protester should have known that the documents had been improperly disclosed, and could not properly be retained. Id. at 8-9. Although the documents were marked as protected, the protester in PWC Logistics did not contact its counsel, did not destroy or return the documents, and in fact forwarded the documents to numerous personnel within the company. Id. at 8-9. We concluded that the protester’s actions were fundamentallywith the integrity of our bid protest process, and that dismissal of the protest was warranted. Id. at 14.

Here, unlike PWC Logistics, there is no indication that the protester knew that the document provided by its outside counsel had been improperly released. Instead, the redacted comments were provided to Waterfront by its outside counsel without a legend indicating that the material was protected. The protester states that, aside from the redacted comments, it did not receive any other documents from its outside counsel, and that to its knowledge none of the information provided by its counsel “was of a strictly apparent proprietary nature, or was considered to be of a highly competitive value.” Protester’s Second Response to Agency Request for Dismissal, May 11, 2011, at 22-23; see also Protester’s First Response to Agency Request for Dismissal, Apr. 25, 2011, at 3. The protester further states that, upon being advised that the information it received in the redacted comments was protected and should not have been disclosed, it identified and deleted all of the materials, and destroyed the CD it received from its counsel. Protester’s Second Response to Agency Request for Dismissal, May 11, 2011, at 22. Thus, Waterfront’s actions are clearly distinguishable from those of the protester in PWC Logistics.

While we acknowledge that the protester was able to raise arguments in protests B-401948.13 and B-401948.18 concerning 21st Century’s proposed price that it would not otherwise have been able to raise, absent the violation of the protective order, we do not think that the protester obtained this information through its own improper actions. There is no evidence that the disclosure of the protected information was done with the connivance of Waterfront and its attorney in knowing violation of the protective order. We therefore do not think that it would be fair to punish the protester for the improper actions of its outside counsel by dismissing either the specific allegations that arose from the improperly disclosed information, or the protest as a whole.  (Waterfront Technologies, Inc.--Protest and Costs, B-401948.16; B-401948.18, June 24, 2011)  (pdf)

Clearly, there has been a violation of the protective order here. Although the partner and the associate explain that certain circumstances regarding the process of creating redacted party-unique versions of documents led to the violation, there is no question, and it is not disputed by any of the attorneys involved, that protected versions of the protected comments and the protected response, containing information proprietary to Anham, were improperly disclosed to PWC personnel. As noted above, our Regulations provide for the imposition of appropriate sanctions in the case of a violation. Consistent with our Office's practice, any sanctions concerning the individuals admitted to the protective order here will be separately considered by our Office subsequent to, and separate from, the resolution of the protest.

This case, however, involves more than a protective order violation. Although the protective order itself applies only to the individuals admitted under it, our bid protest forum cannot function effectively if the parties before us--both counsel admitted to a protective order and their clients who have not been admitted to it--do not treat protected information appropriately. For that reason, our Office's concern, when nonpublic information obtained through our protective order has been improperly released, goes beyond the individuals admitted to that order. We view it as self-evident that a participant in our protest process who was not admitted to a GAO protective order cannot retain a document, however obtained, if the document bears a legend clearly identifying it as protected. In our view, that individual's responsibility, once he or she sees the protective legend, is to immediately close the document, advise his or her counsel admitted to the protective order of the disclosure, and turn the protected document over to counsel (or destroy it); retaining the document is improper.

Based on our review of the record, we agree with intervenor's counsel and the Army that the actions of the PWC employees to whom the protected material was disclosed were inconsistent with, and undermined, the integrity of our Office's bid protest process. Although a number of facts remain unclear or are disputed, all parties acknowledge that PWC's Chief of Contract Administration and PWC's Vice President/General Counsel each improperly received from the associate on November 29 the protected comments and protected response. It is also clear that these documents bore on each page the notation –PROTECTED MATERIAL TO BE DISCLOSED ONLY IN ACCORDANCE WITH GOVERNMENT ACCOUNTABILITY OFFICE PROTECTIVE ORDER,— and that even a cursory review of the protected comments would reveal that they contained technical, cost and price information proprietary to Anham. It is also undisputed that these documents remained in PWC's Chief of Contract Administration's e-mail (and thus his possession and control) until at least December 6, and in PWC's Vice President/General Counsel's e-mail (and thus his possession and control) until at least December 8 (the protected response) and December 13 (the protected comments), and that at least the protected response was provided to at least 10 other PWC employees.[9]

Moreover, PWC concedes that its Vice President/General Counsel forwarded, at a minimum, the protected response to three other PWC personnel (including PWC's Chief of Contract Administration), and that at least one of these individuals (other than PWC's Chief of Contract Administration) read, to some extent, the protected response. PWC Submission (Dec. 17, 2007), Tab 5, Declaration of PWC Vice President/General Counsel, at 3; Tab 7, Declaration of PWC Executive Regional Director Middle East, at 4-5. Additionally, it is clear from the record that PWC's Chief of Contract Administration forwarded the protected response, at a minimum, to 10 other PWC personnel (including PWC's Vice President/General Counsel), and that at least 5 of these individuals read, to some extent, the protected response. PWC Submission (Dec. 17, 2007), Tab 4, Declaration of PWC's Chief of Contract Administration, at 5; Tab 12, Declaration of PWC's Senior Contracts Manager-Iraq, at 3; Tab 15, Declaration of PWC's Contract Manager, at 3; Tab 18, PWC's Deputy Program Manager, at 3; Tab 19, Declaration of PWC's Chief Executive Officer and President International, at 3; Tab 20, Declaration of PWC's Program Manager, at 3. Additionally, with the exception of the declaration of PWC's Vice President/General Counsel, there is no explanation in any of the declarations submitted by the PWC personnel of why the declarant(s) believed it permissible to read or even possess (and, in some instances, forward to other PWC personnel) documents labeled as protected and subject to the protective order issued by our Office.

Furthermore, as argued by Anham's counsel and the Army, other facts as set forth by the partner, the associate, and certain PWC personnel are internally inconsistent. For example, as noted previously, the associate represented in his December 11 explanation (prior to the intervenor's request for summary dismissal and our Office's request for a more complete explanation) that PWC's Vice President/General Counsel and PWC's Chief of Contract Administration –[r]ead— both the protected comments and the protected response. However, in his December 17 submission to our Office, the partner asserts that –it appears that neither— PWC's Vice President/General Counsel nor PWC's Chief of Contract Administration had –read— the protected comments. Protester's Submission (Dec. 17, 2007) at 2, 7. This assertion is apparently based on the December 17 declaration of PWC's Vice President/General Counsel, where, in direct contradiction of the previous representation, he states that he had –deleted— without reading the e'mail containing the protected comments based upon his –belief— that the e-mail was a duplicate of the associate's e'mail that included the protected response as an attachment. Protester's Submission (Dec. 17, 2007) at 6-7; see Tab 5, Declaration of PWC's Vice President/General Counsel, at 3. The partner also notes that, according to PWC's Chief of Contract Administration's December 17 declaration, that individual did not open the attachments to the e-mails from the associate (contradicting the associate's December 11 submission), but reviewed the attachments to the e'mail that he received from PWC's Vice President/General Counsel, which assertedly only contained the protected response, and then forwarded this attachment to the 10 PWC employees. Protester's Submission (Dec. 17, 2007) at 7; see Tab 4, Declaration of PWC's Chief of Contract Administration, at 3-4.

The partner explains the discrepancy between the associate's December 11 explanation to our Office that unequivocally stated that both PWC's Vice President/General Counsel and PWC's Chief of Contract Administration had –[r]ead— the protected comments, and the later assertions that neither PWC's Vice President/General Counsel nor PWC's Chief of Contract Administration had read or reviewed the protected comments, by stating that at the time the December 11 explanation was submitted, counsel for PWC, –having had little ability to interview the two gentlemen, . . . perhaps too hastily, chose to be conservative and stated that both recipients had read 'both of the documents.'— Protester's Submission (Dec. 20, 2007) at 7. The partner asserts here that after –talking with [PWC's Vice President/General Counsel and PWC's Chief of Contract Administration] at length, it became apparent that neither of them had read the [protected] [c]omments and they so declared.— Id.

In our view, the partner's explanations do little to clarify the issue. For example, they do not adequately explain why the recollections of PWC's Vice President/General Counsel and PWC's Chief of Contract Administration, as to what occurred between November 29 and December 5, were less accurate on December 11 than they were in their declarations of December 17. Nor do we find the partner's explanation of December 17 persuasive, given, among other things, the statement in PWC's Chief of Contract Administration's declaration that he –remember[ed] the attachments seeming to do an effective job of responding to the assertions it stated were made by Anham— (which suggests through the use of the plural –attachments— that he also read the more detailed protected comments).  PWC Submission (Dec. 17, 2007), Tab 4, Declaration of PWC's Chief of Contract Administration, at 4.

Leaving aside the inconsistencies, we can return to the undisputed facts. Employees at PWC who inappropriately received the two protected documents retained them for approximately one week, until counsel directed them to destroy them. Some of those PWC employees read, to some extent, at least one of the documents; some of them then disseminated at least one of the documents to other PWC employees. While the protester (both the client and counsel) would have us focus on whether the individuals admit –reading— or only –scanning— the protected documents, on how long this action lasted, on whether anyone remembers the contents of the protected documents, and on whether only one, rather than both, of the protected documents were looked at, these are all irrelevant to the fundamental question of whether the individuals acted improperly by retaining the documents, since even a short glance at any page of either document would ensure that the protected legend was seen.

We turn then to consideration of the request that the protest be dismissed because of this improper action. We have recognized that where a protester's actions undermine the protective order's effectiveness, and thereby the integrity of our Office's bid protest process, it is appropriate to consider dismissing the protest to protect the integrity of that process. We view our authority to impose dismissal or other sanctions as inherent, as do courts. Network Sec. Techs., Inc., B'290741.2, Nov. 13, 2002, 2002 CPD para. 193 at 8; see Roadway Express Inc. v. Piper, 447 U.S. 752, 754 (1980); Reid v. Prentice'Hall, 261 F.2d 700, 701 (6th Cir. 1958) (–[e]very litigant has the duty to comply with reasonable orders of the court, and if such compliance is not forthcoming, the court has the power to apply the penalty of dismissal—).

We recognize that dismissal is a severe sanction, and that it should be employed only in the rarest of cases. Indeed, we are acutely aware, and it weighs against the dismissal, of the general public policy favoring a decision on the merits. Balanced against these factors are a number of other factors that lead us to conclude that dismissal is appropriate here. As discussed below, those factors are the inadequacy of lesser available sanctions, the protester's (as opposed to its counsel's) responsibility for what occurred, the gravity of what occurred and the prejudice to the intervenor and the agency resulting from it, and the salutary deterrent effect of dismissal on others who might be tempted to such conduct in the future. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976); Alaska Pulp Corp. v. United States, 41 Fed. Cl. 611, 614'15 (1998); Griffin & Dickson v. United States, 16 Cl.Ct. 347, 351 (1989).

A number of –lesser sanctions— considered by the courts, such as the imposition of fines or costs, are unavailable to our Office, and other lesser sanctions are, in our view, inadequate. In particular, the possible –lesser sanction— of admonishment or other measures aimed at PWC's outside counsel who are admitted to the protective order do not address the conduct of the protester itself, which, as set forth above, we find troubling. Those employees of the client, not their outside counsel, are responsible for their conduct, and a sanction directed at counsel does not reach that conduct. Moreover, the PWC employees had at least constructive notice, from both our Bid Protest Regulations and our decision in Network Sec. Techs., Inc., supra, that a protester's actions in the context of a violation of the protective order could result in dismissal of the protest. Hence, PWC cannot view our consideration of dismissal for the mishandling of protected information as unfair or unexpected.

Regarding prejudice, protester's counsel, in arguing that dismissal is not appropriate, points out that the PWC employees that submitted declarations that recall receiving the protected comments and/or the protected response, state that they have little or no recollection of the contents of the protected documents, and that a number of the PWC personnel state in their declarations that they do not even recall reading to any extent the protected comments or the protected response. Counsel for the protester argues that because the PWC personnel cannot recall the contents of the protected comments and the protected response, there was little or no harm caused by the disclosure of the protected documents. Protester's counsel explains that the PWC personnel did not read the protected documents because they were either too busy, or because PWC does not view Anham (the awardee of the subject procurement, for which PWC was the incumbent contractor) as a major competitor. PWC Submission (Dec. 20, 2007) at 9. Protester's counsel concludes that, because in his view Anham has suffered no competitive harm from the disclosure of the protected comments and protected response to PWC personnel, it would be inappropriate to dismiss the protest.

Given the self-serving nature of the declarations relied on in this argument by counsel, and our agreement with the Army and intervenor that the declarations and explanations submitted are both incomplete and inconsistent, we find them to be of little probative value. Moreover, unlike the protester's focus on whether the various PWC employees who received the protected information read it, merely skimmed it, or forgot what they did read, our analysis of prejudice should focus more on the nature of the information provided to those employees and the length of time that they retained it. As discussed above, the information included in the protected comments, and to a lesser extent, the protected response is sensitive and proprietary to Anham, so that, faced with its undisputed transmission to PWC employees and their retention of it, we find that the potential for prejudice to Anham was significant.

Finally, we return to our concern for protecting the effectiveness of the protective order process and the integrity of our bid protest system. Private parties and agencies whose information, whether proprietary or source-selection-sensitive, is provided under the aegis of our protective orders need to have the assurance that our Office will be vigilant in protecting that information, to the extent that we are able to do so. Any individual who might be inclined to show little respect for the protective order process must know that a lack of due care in the handling of protected information will not be tolerated and may lead, in the appropriate circumstances, to dismissal of a protest. Having considered the entire record, we conclude that that is the appropriate course here.

The protest is dismissed.  (PWC Logistics Services Company KSC(c) B-310559: Jan 11, 2008)

The Air Force and Jacobs objected to the admission of a consultant--a university professor--who was retained by BAH’s counsel to assist in the representation of that protester under the direction and control of that attorney. Specifically, they objected that the consultant had substantial involvement in the business affairs of BAH during the course of his career as a BAH officer and stockholder for nearly twenty years (concluding in May 2004) and that his daughter was currently employed at BAH. The parties, however, did not challenge the veracity of the consultant’s representations or BAH’s need for his assistance or assert that the consultant was involved in competitive decision‑making.  In response, BAH stated that the consultant was a retired BAH partner, who no longer held any position with and had no financial interest in BAH, given that he had divested himself of all BAH stock in 2005. In addition, the consultant’s daughter, who had only recently graduated with a bachelor’s degree, held a relatively low-level position (well below the management level) with BAH and worked in a division that would have no involvement with the ETASS contract work.

In considering the propriety of granting or denying an applicant admission to a protective order, we review each application in order to determine whether the applicant is involved in competitive decision-making and whether there is otherwise an unacceptable risk of inadvertent disclosure of protected information should the applicant be granted access to protected material. See Robbins-Gioia, Inc., B-274318 et al., Dec. 4, 1996, 96-2 CPD para. 222 at 9-10, citing U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed.Cir. 1984); see also McDonnell Douglas Corp., B‑295694.2, B-295694.3, June 16, 1995, 95-2 CPD para. 51 at 7-8. With respect to the applications of consultants to a protective order, we consider and balance a variety of factors, including our Office’s desire for assistance in resolving the specific issues of the protest, the protester’s need for consultants to pursue its protest adequately, the nature and sensitivity of the material sought to be protected, and whether there is opposition to an applicant expressing legitimate concerns that the admission of the applicant would pose an unacceptable risk of inadvertent disclosure. See EER Sys. Corp., B-256383 et al., June 7, 1994, 94-1 CPD para. 354 at 9, citing Mastushita Elec. Indus. Co., Ltd. v. United States, 929 F.2d 1577 (Fed. Cir. 1991).  We admitted the consultant to the protective order based upon our finding that his admission did not pose more than a minimal risk of inadvertent disclosure. Specifically, we concluded that, although it is true that the consultant held, at one time, a position with BAH that would appear to have precluded his admission under a GAO protective order, the consultant left that position several years ago and had no continuing financial interest in the protester, having divested himself of all BAH stock. There was no indication from the consultant’s application or from anything presented by the parties that his future activities, given his full-time position as a university professor, would pose more than a minimal risk of inadvertent disclosure. With respect to the consultant’s daughter, we recognized that she was an employee of the protester, but found that this did not automatically require the denial of his application for admission. Given his daughter’s relatively low-level position with the protester in a division unrelated to the work to be performed under the ETASS contract, we found that this also did not demonstrate an unacceptable risk of inadvertent disclosure of protected information.  (Systems Research and Applications Corporation; Booz Allen Hamilton, Inc., B-299818; B-299818.2; B-299818.3; B-299818.4, September 6, 2007) (pdf)

In considering the propriety of granting or denying an applicant admission to a protective order, we review each application in order to determine whether the applicant is involved in competitive decision-making and whether there is otherwise an unacceptable risk of inadvertent disclosure of protected information should the applicant be granted access to protected material. See McDonnell Douglas Corp. , B-295694.2, B-295694.3, June 16, 1995, 95-2 CPD 51 at 7-8 (denial of admission of in-house counsel), citing U.S. Steel Corp. v. United States , 730 F.2d 1465 (Fed.Cir. 1984). With respect to the applications of consultants to a protective order , we consider and balance a variety of factors, including our Office's desire for assistance in resolving the specific issues of the protest, the protester's need for consultants to pursue its protest adequately, the nature and sensitivity of the material sought to be protected, and whether there is opposition to an applicant expressing legitimate concerns that the admission of the applicant would pose an unacceptable risk of inadvertent disclosure. See EER Sys. Corp. , B-256383 et al. , June 7, 1994, 94-1CPD 354 at 9. The applications of the consultants here disclosed that the consultants are well-qualified in their respective fields, with one consultant being qualified in the analysis of groundwater systems, and the other consultant being qualified in the investigation of the origin, fate and transport of organic and inorganic chemicals in natural and man-made environments. The applications also disclosed that the consultants performed consulting services for a variety of industry and government groups. However, the consultants agreed in their respective applications only that they would not engage or assist in the preparation of a proposal to be submitted to any agency of the United States for the "Portsmouth Gaseous Diffusion Plant where I know or have reason to know that any party to the protester, or any successor entity, will be a competitor, subcontractor, or teaming member" for 2 years from the date of the application. By failing to agree to not engage or assist in the preparation of a proposal to be submitted to any agency of the United States government for environmental remediation services for a period of 2 years, the consultants left open the possibility that they would engage or assist in the preparation of proposals for this work where a party to the protest will be a competitor. In fact, by its arguments, RCS recognized that the consultants may well perform proposal preparation assistance for this very type of work, even where a party to the protest may be a competitor, subcontractor or teaming member. Although we have no reason to question the consultants' promises not to disclose protected material if the consultants were to subsequently provide services in support of proposal preparation for environmental remediation work for an agency of the United States government, this would require the consultants to continually compartmentalize information to protect information obtained under our protective order. We found that this created more than a minimal risk of inadvertent disclosure, and therefore in the absence of any agreement between the parties, we denied the consultants' applications for admission to the protective order. See McDonnell Douglas Corp. , supra , at 8. (Restoration and Closure Services, LLC, B-295663.6; B-295663.12, April 18, 2005) (pdf)

In determining whether counsel may be permitted access to information covered by a protective order, we look to whether the attorney is involved in competitive decisionmaking for the client (or another relevant firm)--i.e., whether the attorney's activities, associations, and relationship with the client (or another relevant firm) are such as to involve advice and participation in client's decisions (such as pricing and product design) made in light of similar corresponding information about a competitor. See U.S. Steel Corp. v. United States, 730 F.2d 1465, 1468 (Fed. Cir. 1984). Where an attorney is involved in competitive decisionmaking, the attorney will not be admitted to the protective order because there is an unacceptable risk of inadvertent disclosure of non-public information or the proprietary data of another company. Although it is often easier for outside counsel to establish that they are not involved in competitive decisionmaking, we approach the admission of counsel on a case-by-case basis, and we do not assume that any attorney's status as outside or in-house counsel is dispositive of whether that attorney is involved in competitive decisionmaking. See Allied-Signal Aerospace Co., B-250822, B-250822.2, Feb. 19, 1993, 93-1 CPD ¶ 201 at 9. Given the lack of evidence establishing that Ms. Ursini is involved in any competitive decisionmaking and Mr. Anderson's decision to refrain from activities on behalf of Carlson that may be construed as being involved in competitive decisionmaking (such as representing that client at pre-proposal conferences), we found no basis to deny them admission under the protective order.  (AirTrak Travel etal., B-292101; B-292101.2; B-292101.3; B-292101.4; B-292101.5, June 30, 2003)  (pdf)

This case involves more than a protective order violation; our Regulations provide for the imposition of sanctions in the case of a violation, and we will consider appropriate sanctions against NETSEC's former counsel as a separate matter. Beyond the violation, we find that the record shows Mr. Kitchings actively sought, and obtained from the company's retained counsel, protected information, which he then used in pursuing NETSEC's protest. Again, the evidence in this regard is largely circumstantial. However, as discussed above, the circumstances strongly support our conclusion. Mr. Kitchings, who is himself an attorney, was aware that he was not permitted to view or possess the VAST proposal information released to retained counsel under the terms of our protective order. Mr. Kitchings nevertheless was able to obtain the VAST proposal information through retained counsel, as a result of either retained counsel's disclosure of the information, or his failure adequately to safeguard it. The protective order process is essential to the proper functioning of the bid protest process as a whole. While the protective order applies primarily to those admitted under it (usually counsel to the private parties), where, as here, a protester's purposeful actions subvert that process, we believe it is appropriate to consider dismissing the protest to protect the integrity of our bid protest process. Fortunately, our experience is that the individuals concerned, both attorneys and non-attorneys, respect the process, and that we believe that the abuse apparent in this case is unprecedented. Nonetheless, we view our authority to impose dismissal or other sanctions as inherent, as do other fora. See Roadway Express Inc. v. Piper, 447 U.S. 752, 764 (1980); Reid v. Prentice-Hall, 261 F.2d 700, 701 (6th Cir.1958) ("[e]very litigant has the duty to comply with reasonable orders of the court, and if such compliance is not forthcoming, the court has the power to apply the penalty of dismissal"); see also General Services Administration Board of Contract Appeals Rules of Procedure, Rule 1.18(b)(6) (48 C.F.R. S: 6101.18(b)(6) (2002)) ("When a party or its representative or attorney . . . engages in misconduct affecting the Board, its process, or its proceedings, the Board may . . . impos[e] . . . appropriate sanctions . . . includ [ing] . . . [d]ismissing the case or any part thereof"). Notwithstanding the seriousness of this matter, however, we are refraining from dismissing the protest, and instead hereby provide notice that we may avail ourselves of this sanction in a future case where a protester abuses our process. We thus proceed to the merits of NETSEC's protest.  (Network Security Technologies, Inc., B-290741.2, November 13, 2002)  (pdf)