      In the United States Court of Federal Claims
                                    No. 15-663C
                              (Filed October 26, 2016)
                             NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
OXFORD DEVELOPMENT CO.,           *
                                  *
                 Plaintiff,       *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
                 Defendant,       *
                                  *
      and                         *
                                  *
CAMBRIDGE HEALTHCARE              *
SOLUTIONS PA LP,                  *
                                  *
           Defendant-intervenor.  *
                                  *
* * * * * * * * * * * * * * * * * *


                                      ORDER

       The above-captioned case was a bid protest brought by Oxford Development
Co. (Oxford). Judgment was entered in favor of the government and defendant-
intervenor Cambridge Healthcare Solutions PA LP (Cambridge or intervenor), on
the basis of an oral ruling. See Order (Aug. 26, 2015). After a transcript including
the oral ruling was filed under seal due to the protective order in this case, Oxford
and Cambridge each filed a notice of intent to request redaction --- mistakenly
believing that the court’s transcript redaction policy, designed for the protection of
the personal information identified in Rule 5.2(a) of the Rules of the United States
Court of Federal Claims, applied to proprietary and other competition-sensitive
information. See Order (Sept. 10, 2015). The Court pointed out this error, and
ordered that any redaction requests be made to the Court, in a document containing
any necessary justifications. Id. at 1–2. The government and the intervenor have
each submitted such requests.1 See Def.-Intervenor’s Request for Redactions (Int.’s
Request), ECF No. 54; Def.’s Request for Redactions (Def.’s Request), ECF No. 55.

       The parties have requested redactions in the following five categories:
(1) information about the identities of investors in, and key employees of, an offeror;
(2) information regarding the business model of intervenor; (3) information
concerning the financial condition of the offerors and the agency’s evaluations
thereof; (4) the technical scores of the offerors and information regarding the scoring
system used by the agency in this procurement; and (5) the identities of agency
evaluators involved in the procurement. Pl.’s Requests at 2–3; Int.’s Request at 1–2;
Def.’s Request at 1–2. These requests must be viewed in light of the “presumption
of public access to judicial records,” Baystate Techs., Inc. v. Bowers, 283 F. App’x
808, 810 (Fed. Cir. 2008), which may extend to “materials on which a court relies in
determining the litigants’ substantive rights,” Anderson v. Cryovac, Inc., 805 F.2d 1,
13 (1st Cir. 1986). This common law presumption rests on the notion “that public
monitoring of the judicial system fosters the important values of quality, honesty
and respect for our legal system.” Siedle v. Putnam Invs., Inc., 147 F.3d 7, 9–10 (1st
Cir. 1998) (citation and internal quotation marks omitted); see also Baystate Techs.,
283 F. App’x at 810 (same); Madison Servs., Inc. v. United States, 92 Fed. Cl. 120,
131 (2010) (same).

        The Supreme Court, however, has recognized that this right “is not absolute,”
and may not allow access to “business information that might harm a litigant’s
competitive standing,” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)
(citations omitted); see also In re Reporters Comm. for Freedom of the Press, 773
F.2d 1325, 1332–33 (D.C. Cir. 1985) (citing Nixon, 435 U.S. at 597–98); Linc Gov't
Servs., LLC v. United States, 96 Fed. Cl. 672, 723-25 (2010) (noting that the private
interest in preventing a competitor from obtaining an unfair competitive advantage
can overcome the public interest in having judicial records be available to the
public). Accordingly in this case, as in most bid protests, a protective order was
entered covering “information that must be protected to safeguard the competitive
process, including source selection information, proprietary information, and
confidential information.” Am. Prot. Order ¶ 1 (Aug. 3, 2015). Such an order does
not indiscriminately preclude disclosure of all information contained in proposals
and evaluation documents, as only information that is “competition-sensitive or
otherwise protectable” may be protected. Id. at 1.


1 Plaintiff ’s notice of its intent to request redaction was accompanied by a list of
requested redactions that lacked any reasoned justification other than the
prefatory, conclusory statement that the list consisted of “source selection
information, proprietary information, and confidential information.” Pl.’s Notice of
Intent to Request Redaction (Pl.’s Requests), ECF No. 50, at 2–3. All but one of
these requests were repeated, with some explanation, by one of the other parties.

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      In the first category of proposed redactions are the identities of the financial
backers and key personnel of the intervenor. This sort of proprietary information is
routinely protected, in the absence of any reasoned opposition.

       The second category of proposed redactions relate, broadly speaking, to the
intervenor’s business model. While it is commonplace for the details of an offeror’s
particular proposed approach or solution to be found competition-sensitive and thus
eligible for redaction, many factors should be considered by a court in making this
determination. These include whether the information is general or specific;
whether the approach is common or innovative; whether the procurement is on-
going; whether the approach has been revealed through performance; and whether
the opinion is rendered unintelligible absent the information. See, e.g., InSpace 21
LLC v. United States, No. 15-364C, 2016 WL 4611057, at *1 (Fed. Cl. Sept. 6, 2016).

       In this build-to-suit lease procurement, neither of the redactions requested by
the intervenor, relating to its business model, concern competition-sensitive
information. One is the particular role in the construction of the facility that was to
be performed by one of Cambridge’s affiliates. This information could hardly
advantage any of the intervenor’s competitors --- as, unlike the case of key
personnel, there is no risk that its affiliated entities may be recruited by other
offerors. The other request concerns the intervenor’s affiliates’ use of single-purpose
entities in real estate development. Far from proprietary, this is a common practice
that is discussed in even heavily-redacted bid protest opinions, see, e.g., CESC Plaza
Ltd. P’ship v. United States, 52 Fed. Cl. 91, 92 (2002), and was the approach used by
the original awardee in this procurement, see Ameriserv Trust v. United States, 125
Fed. Cl. 733, 738 (2016). Moreover, the issues relating to past performance and
small business status would be incomprehensible without the knowledge that the
intervenor was a one-off entity.

       The third category of requested redactions involves the financial resources at
the offerors’ disposal and the agency’s evaluation of their adequacy. With respect to
specific financial information --- such as the dollar amounts of equity or loan
contributions, or the identity of a third party offering a loan --- this is confidential
information which could unfairly advantage competitors, and is not necessary to
understand the Court’s decision. The agency’s evaluations, however, are an entirely
different matter. See, e.g., CBY Design Builders v. United States, 105 Fed. Cl. 303,
308 n.1 (2012) (denying request to redact adjectival ratings). The assessments of
the relative strengths and weaknesses of proposals are typically at the heart of a
bid protest, and are the product of the agency, not the offerors. No reason has been
given to justify the removal of references to the evaluators’ findings concerning the
financial conditions of Oxford and Cambridge.

      The fourth category relates to the scores awarded to the offerors and the
scoring scale used by the agency. The scores given offerors’ proposals are rarely, if

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ever, protected. See Tech Systems, Inc. v. United States, No. 10-877C, 2011 WL
4374008, at *1 (Fed. Cl. Sept. 19, 2011) (rejecting request that evaluation scores be
redacted). The Court supposes it is possible that in an on-going procurement,
knowledge of the value attached to a particular feature could be akin to finding the
answer key for an examination. But nothing of the sort is involved here. The mere
mention of the government’s use of a fifty-point scale in evaluating technical factors
reveals nothing to the advantage of future offerors. The agency’s peculiar decision
to convert prices to points using the same scale could have been problematic had the
rankings been different and had the points been dispositive rather than used for
guidance. Knowledge that such an approach might be followed cannot possibly
advantage an offeror. And the fact that three points were awarded for small
business status could not affect the bidding strategy of any offeror --- you are either
small or you’re not. The requests of the plaintiff and the government to redact such
information are unfounded.

      Similarly, the requested redaction, by both Oxford and Cambridge, of the
technical point scores that each received is unwarranted. These numbers reveal
nothing about the proposals themselves, but are instead artifacts of the evaluation
process. Even were the procurement on-going, knowledge of these overall scores
could not advantage a competitor.2

       Falling in the final category of requested redactions are the names of the
agency evaluators. The identities of procurement personnel may sometimes be
protected when the source selection process is on-going, see CBY Design Builders,
105 Fed. Cl. at 308 n.1 (allowing redaction of names of “agency personnel with
continuing roles in the source selection”), but not otherwise, see L-3 Commc’ns Corp.
v. United States, 99 Fed. Cl. 283, 285 n.1 (2011) (finding redaction of “the name of
an individual involved in the procurement” to be unjustified); Tech Systems, Inc. v.
United States, 98 Fed. Cl. 228, 228–29 n.1 (2011) (not redacting “the names of
certain individuals involved in the procurement”). The procurement at issue has
been concluded, and thus there is no risk of improper contact with the evaluators.
The parties have not provided any reason why these identities must be kept secret,
and the requests are accordingly denied.

       For the reasons stated above, the names of key employees, investors and
other third party sources of funds shall be redacted from the transcript of the
Court’s oral ruling, as well as the dollar amounts of various loan or equity


2 Even less understandable is the request, made solely by plaintiff, to remove from
the Court’s oral decision the recognition that plaintiff’s technical score would have
been “better” than the intervenor’s had a certain adjustment been made. Showing
such prejudice is the very point of a bid protest. See Bannum, Inc. v. United States,
404 F.3d 1346, 1358 (Fed. Cir. 2005).

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contributions. All other redaction requests are denied. A separate order shall be
issued under seal, specifically directing the court reporter to make the above-
described redactions.

IT IS SO ORDERED.


                                      s/ Victor J. Wolski
                                      VICTOR J. WOLSKI
                                      Judge




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