In this article, the authors suggest 10 factors to consider when contemplating a classified protest.
Litigating a bid protest, whether as a protester or as a challenged awardee, is a time-sensitive and often complicated undertaking, further complicated by numerous procedural traps for the unwary. Those complications and time sensitivities increase significantly when all or some portion of the protest involves classified information. Here are 10 considerations for those contemplating a classified protest.
FACTORS TO KEEP IN MIND
- Find a law firm with a sufficient number of experienced bid
protest lawyers with the requisite clearances. Even in a large
firm, few attorneys typically have protest experience, and far
fewer still have security clearances. The pool of available talent
shrinks even further when high-level clearances are required. For a
large, complex classified procurement, a party to a protest will
typically need an entire team of cleared attorneys, and they will
follow protocols that are different from those governing
unclassified protests.
- Engage counsel early – long before contract
award. Bid protests are very fast-paced, with timelines that
are measured in days, not weeks. If a company is pursuing an
important classified opportunity that it may want to protest, or
may need help defending against a protest, pre-award engagement is
ideal, and often necessary. For Special Access Programs (SAP) or
programs requiring access to Secure Compartmented Information
(SCI), it may take months for a customer to approve counsel to be
read into the program.
- Your attorneys may also need to find cleared technical or
cost consultants. Complex protests often require a protester
or intervenor to retain technical or cost experts. This can be
challenging even in a typical protest, as it is often difficult to
find competent technical experts who are admissible to a protective
order – a prerequisite to their being permitted to review
proprietary information of other parties. Finding admissible
experts who also have requisite, active security clearances is even
more challenging. This is another reason to prepare for a
classified protest long before contract award.
- Will the entire protest be classified, only some of it, or
none of it? Just because portions of a solicitation or
proposal are classified does not necessarily mean a protest of that
procurement will be classified. Even when a protester files an
initial protest containing no classified information, other parties
may later introduce classified materials, or the procuring agency
may insist on some or all of the protest proceeding using
classified procedures. The agency is the ultimate arbiter of
security decisions. Parties that do not have cleared counsel may
find themselves at a considerable disadvantage and scrambling for
new counsel if a typical protest suddenly becomes classified.
- Think about secured space. Cleared counsel typically
will draft an initial classified protest within the client's
own SCIF or other appropriate secured facility. This will generally
require the attorneys to have access to cleared computers, a quiet
place to work, and all necessary source documents. Once a
protective order is issued, however, counsel may find themselves
required to access and maintain protected information (and write
their briefs) only in a designated government site, subject to
government schedules. Sometimes, agencies will come to agreements
with the parties on safeguards to allow each party to continue
working from its client's own secured facilities. That,
however, requires a client to set aside a segregated space for the
duration of the protest that will be accessible only by protest
counsel and a few client employees (such as security and IT
personnel), who typically must sign non-disclosure agreements. This
poses unique challenges in terms of available space, computers, and
segregability.
- Be prepared to negotiate modifications to the standard
protest protective order. Going into a protest, one is never
quite sure where the attorneys will work once protected information
is exchanged. As detailed above, a party may request permission for
its attorneys to work from its own facilities and store protected
materials there, which is unheard-of in an unclassified
procurement. Parties may object to such requests if the requester
does not agree to implement suitable measures to prevent spillage
of protected information.
- The company's security officer is key. For
classified protests, your security officer will be one of the most
important resources for your protest attorneys. Counsel and the
security officer will cooperate closely in determining space
arrangements and access to facilities and documents, and
guaranteeing compliance with security protocols and the
protest's protective order.
- Build in plenty of extra time. Because of the strict
and short timelines that apply to bid protests, time is usually in
short supply even in typical litigation. That supply shrinks even
further in classified litigation. Attorneys must account for the
additional time needed for security reviews, portion marking, and
transferring filings to the appropriate physical or electronic
destination. If there are more attorneys than there are available
computers, drafting will be less efficient. If the attorneys must
work from a government facility, they also must account for the
government facility's opening and closing times.
- Have realistic expectations. The strictures of
protective orders mean that protest attorneys are extraordinarily
limited in the information they may communicate to clients during
any protest. Classified protests – particularly those
involving information at the SAP/SCI levels – add a further
layer of restrictions to these communications. Companies may find
these unavoidable limitations frustrating. Companies will also find
the cost to pursue a classified protest typically is materially
higher than the cost to pursue an unclassified protest of similar
legal complexity. If the attorneys are working from the
client's facility, the client's cost is further increased
by its need to set aside space and computers for the segregated
protest area, to have employees available to provide the attorneys
physical access, and to make the security officer and couriers
available as needed.
- Some work may be possible outside the secured facility. Depending on the nature of the protest, it may be possible to leverage legal resources from outside the SCIF. This is easiest when a protest is largely unclassified, with classified documents playing only a small role in the litigation. But, even in protests that are wholly classified, it often is possible to perform needed legal research, draft arguments that do not implicate classified information, and engage in other typical tasks from the more efficient environs of the law firm.
Originally published by Government Contracting Law Report.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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