Bid protests present lawyers and their clients with a dilemma. On the one hand, ethical rules require attorneys to consult with the client about the means by which the client’s objectives are to be accomplished and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. On the other hand, the typical bid protest, whether at the Government Accountability Office or the U.S. Court of Federal Claims, results in issuance of a “protective order” which severely restricts the information an attorney may share with his client. The purpose of the protective order is to protect the agency’s and competitors’ competition-sensitive information from getting into bidders’ hands. The result, though, is that attorneys often have to tell their clients, “Trust me. I am protecting your interests.” In a bid protest scenario, clients often authorize their attorneys to file supplemental protests on behalf of the client without the client having an inkling of what those filings are about.
What if the attorney learns protected information in a bid protest involving one procurement that would give a client the right to file a separate bid protest against a different procurement? In many situations, an attorney’s knowledge can be imputed to his or her client. That would mean that once ten days pass after the attorney learned the information in question, a bid protest based on that information would be untimely. But, that result would be unfair because, if the lawyer learned something under a protective order, he cannot tell his client, and his client cannot make an informed decision to protest. Moreover, even if the client consented to having a bid protest filed in its name without knowing the issue, the attorney himself may not use the information obtained under the protective order for a different purpose than the one for which it was disclosed to him.
This is the dilemma that the GAO addressed in a recently-issued decision. And, GAO held: A protester can’t be penalized because its attorney followed GAO’s rules. Therefore, the new protest will be considered timely if it is filed in a timely manner after the client learns the information or could have learned the information outside of the protective order’s restrictions, even if the client’s attorney possessed the information earlier but was not allowed to reveal it.
Would-be protesters can take heart from knowing that GAO will apply its procedures in a logical and fair way. At the same time, clients and their attorneys are reminded by this decision that GAO expects its protective order to be obeyed without exceptions.
The decision is B&B Medical Services, Inc.; Ed Medical, Inc., B-409705.4 (December 5, 2016), available at http://www.gao.gov/assets/690/681412.pdf.