Crowley Gov't Servs. v. United States

Decision Date10 March 2022
Docket Number21-1387
CourtCourt of Federal Claims
PartiesCROWLEY GOVERNMENT SERVICES, INC., Plaintiff, v. THE UNITED STATES, Defendant, and PATRIOT CONTRACT SERVICES, LLC, Defendant-Intervenor.

NOT FOR PUBLICATION

MEMORANDUM OPINION AND ORDER

THOMPSON M. DIETZ, Judge.

Crowley Government Services, Inc. ("Crowley") filed a bid protest on May 21, 2021, challenging a decision by the Military Sealift Command ("MSC") to award a contract for operation and maintenance of several WATSON Class ships to the incumbent contractor, Patriot Contract Services, LLC ("Patriot"). See Compl., ECF No. 1. In connection with its bid protest, Crowley filed a motion requesting that the Court issue the standard protective order used in bid protest cases. See Mot for Protective Order, ECF No. 3. The Court granted Crowley's motion and entered the protective order on May 26, 2021. See Protective Order, ECF No. 13 [hereinafter Prot. Order].

The protective order established that "certain information likely to be disclosed orally or in writing during this litigation may be competition-sensitive or otherwise protectable." Prot. Order at 1. The protective order defined "Protected Information" as "information that must be protected to safeguard the competitive process, including source selection information proprietary information, and confidential information." Id. ¶ 1. The parties were allowed under the protective order to propose redactions designating certain information as protected. Id. ¶ 12(b). To the extent there was a disagreement on the designation of information as protected, any party could object to another party's proposed redactions by submitting the matter to the Court for resolution. Id. \ 12(d).

The Court issued an opinion in the protest on January 18, 2022. See Opinion and Order, ECF No. 26. In accordance with the protective order, the Court filed its opinion under seal. Id. at 1 n. 1. In its opinion, the Court instructed the parties to confer and file a notice with their proposed redactions to the opinion. Id. at 23. The parties filed such notice on February 1, 2022. See Notice of Proposed Redactions, ECF No. 28 [hereinafter Not.]. In the notice, the parties identified certain information that the parties agree should be redacted.[1] Id. at 2. However, Crowley and Patriot jointly proposed redactions of certain information concerning their respective Contractor Performance Assessment Reporting System ("CPARS") ratings, to which the government objects. Id. at 2-6.

With respect to the challenged redactions, Crowley and Patriot argue that the Federal Acquisition Regulation ("FAR") designates CPARS information as "source selection information because its disclosure could cause competitive harm to contractors to which it pertains." Not. at 2 (citing FAR 42.1503(d)). Specifically, they assert that disclosure of their CPARS information will allow their competitors "to present this information to procuring agencies in future competitions to encourage agencies to assign Crowley and Patriot lower ratings when evaluating their past performance records during the source selection process" and "to use this information to predict which past performance references Crowley and Patriot are more and less likely to present during competitive acquisitions and then draw inferences when developing their own proposals." Id. at 2-3. They further assert that disclosure of the CPARS information "would provide Crowley's and Patriot's competitors a basis to file a bid protest challenging the award based on their interpretation of Crowley's and Patriot's past performance records." Id. at 3. Patriot separately argues that, since it is only an intervenor in this protest, "it would be unfair to release certain negative CPARS information of Patriot that Crowley cherry-picked out of context as part of this protest." Id. at 3-4.

The government counters that the "proposed redactions will not safeguard the competitive process, but rather will remove Crowley and Patriot information from the opinion that the companies may consider to be unflattering[, ]" which is not the purpose of permitting redactions. Not. at 4-5. The government argues that the release of Crowley's and Patriot's CPARS information contained in the opinion will not result in competitive harm because it will not provide any meaningful advantage to their respective competitors. Id. at 5-6. In sum, the government argues that "transparency trumps any speculative harm the parties may face from release of the information." Id. at 6.

There is a well-established right of access by the public to judicial records and documents. Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-98 (1978). The ability of the public to monitor our judicial system promotes the integrity and transparency of the judicial process. See DePuy Synthes Prods., Inc. v. Veterinary Orthopedic Implants, Inc., 990 F.3d 1364, 1369 (Fed. Cir. 2021). These values underpin the strong presumption of public access to judicial records. See Baystate Techs., Inc. v. Bowers, 283 Fed.Appx. 808, 810 (Fed. Cir. 2008).

However, the presumption of public access is not absolute. Nixon, 435 U.S. at 589; see Siedle v. Putnam Invs., Inc., 147 F.3d 7, 10 (Fed. Cir. 1998) ("Important countervailing interests can, in given instances, overwhelm the usual presumption and defeat access."). Access to judicial records has been denied where disclosure of such records might harm a party's competitive standing by revealing trade secrets or other confidential business information. Nixon, 435 U.S. at 598. The decision regarding access to judicial records is "one best left to the sound discretion of the trial court... in light of the relevant facts and circumstances of the particular case." Id. at 599. The court "enjoys considerable leeway in making decisions of this sort." Siedle, 147 F.3d at 10. In exercising this discretion, the court must weigh the private interests advanced by the parties against the public's interest in access to judicial proceedings. In re Violation of Rule 28(d), 635 F.3d 1352, 1356-57 (Fed. Cir. 2011) (quoting Nixon, 435 U.S. at 602); Baystate Techs., 283 Fed.Appx. at 810. The party seeking to restrict public access to judicial records carries the burden of providing a compelling justification to overcome the presumption. Torres Advanced Enter. Sols., LLC v. United States, 135 Fed. CI. 1, 4 (2017).

In this instance, the Court finds that Crowley and Patriot have sufficiently overcome the presumption...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT