         In the United States Court of Federal Claims
                                    No. 16-376C
                          (Filed under seal April 21, 2016)
                              (Reissued April 29, 2016)
                             NOT FOR PUBLICATION

* * * * * * * * * * * * * * * * * *
                                  *
                                  *
BOARD OF REGENTS OF               *
THE NEVADA SYSTEM OF              *
HIGHER EDUCATION,                 *
on behalf of THE DESERT           *
RESEARCH INSTITUTE,               *
                                  *
            Plaintiff,            *
                                  *
      v.                          *
                                  *
THE UNITED STATES,                *
                                  *
            Defendant,            *
      and,                        *
                                  *
OAK RIDGE ASSOCIATED              *
UNIVERSITIES,                     *
                                  *
            Defendant-Intervenor. *
                                  *
* * * * * * * * * * * * * * * * * *


                                      ORDER

      As discussed at today’s hearing, Frank T. Haseltine, Jr.’s application for
access to protected information is GRANTED over defendant-intervenor’s objection.
In support of his application Mr. Haseltine has represented to the Court, inter alia:

      (1) that he currently has no formal relationship, as an employee or in any
      other capacity, with either plaintiff or its proposed subcontractor Gate 6
      Solutions;

      (2) that, aside from his involvement in this protest, he will never do any
      work in connection with the solicitation which is the subject of this
      procurement or any other procurement which may result from this protest,
      should it be successful, or any follow-on procurement;

      (3) that he will not work for either plaintiff or Gate 6 Solutions on any project
      for the next two years; and

      (4) that, for the next two years, he will not engage or assist in the
      preparation of a proposal or submission responding to any solicitation which
      contains any of the subject areas from the statement of work for this
      procurement.

In light of these representations, the Court has concluded that, given the one-off
nature of Mr. Haseltine’s involvement as an outside consultant regarding the
solicitation, there exists very little risk of an inadvertent disclosure of protected
information to a competitor of intervenor. See U.S. Steel Corp. v. United States, 730
F.2d 1465, 1468 (Fed. Cir. 1984).

       Additionally, as the Final Source Evaluation Board (SEB) Report indicates
that “in many cases, it was necessary for [SEB] advisors to personally review the
proposals and make recommendations to the SEB,” AR at 2214, the Court has
concluded that these recommendations constitute information considered or relied
upon by the agency in making its evaluations. See Orion Int’l Techs. v. United
States, 60 Fed. Cl. 338, 343–44 (2004) (explaining that “the record may be
supplemented with . . . information relied upon but omitted from the paper record”);
cf. Gulf Grp. Inc. v. United States, 61 Fed. Cl. 338, 347 (2004) (denying a request
that “would likely not have contained additional facts or information considered by”
an agency).‡ Thus, it is “necessary in order not ‘to frustrate effective judicial
review,’” Axiom Resource Management, Inc. v. United States, 564 F.3d 1374, 1381
(Fed. Cir. 2009) (quoting Camp v. Pitts, 411 U.S. 138, 142–43 (1973)), that this
information considered by the SEB be added to the administrative record.
Accordingly, any documents or records which reflect the recommendations or advice
given to the SEB by its advisors, including any requests for such input when
necessary to understand the advisors’ responses, shall be added to the
administrative record.

       Concerning the other requests for supplementation, the only close question
was the request for the award fee letters (and accompanying performance
evaluations) sent to intervenor, the incumbent performing the work solicited, for the
past five years. The Final SEB Report states that, in evaluating past performance,

‡ The Court also notes that the Source Selection Plan allowed for each “[a]dvisor’s
evaluation as input to the SEB voting member discussions”; described the advisors’
“provision of additional information as requested by the SEB voting members”; and
specified that the SEB would evaluate proposals “considering the input from the
various advisors.” AR at 52, 56.
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the SEB considered “close-at-hand information.” AR at 2216. Government counsel
has determined that neither the SEB members nor the Source Selection Official
(SSO) considered the award fee letters in evaluating the intervenor. Def.’s Opp’n to
Pl.’s Request for Add’l Docs. at 10. Because these officials may have had access to
these letters and reports, defendant will submit a declaration or declarations
confirming that neither the award fee letters and reports nor the information
contained in them were considered by the SEB or SSO in evaluating intervenor’s
past performance. All of plaintiff’s other requests to supplement the administrative
record are DENIED for the reasons stated on the record.

      The Court also GRANTED plaintiff’s motion for leave to file its reply in
support of its discovery motion out-of-time, and defendant’s request to amend the
administrative record with additional past performance information that was
considered by the agency. Defendant shall, on or by Friday, April 22, 2016, file a
status report indicating the number of days it anticipates needing to locate and
assemble the additional materials to be added to the administrative record.


IT IS SO ORDERED.

                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




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