Crowley Government Services, Inc. v. United States

CORRECTED

In the United States Court of Federal Claims
No. 21-1387
(Filed: March 10, 2022)

NOT FOR PUBLICATION

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CROWLEY GOVERNMENT SERVICES, *
INC., *
*
Plaintiff, *
* Proposed Redactions; Protected
v. * Information; Bid Protest;
* Competitive Harm, CPARS.
THE UNITED STATES, *
*
Defendant, *
*
and *
*
PATRIOT CONTRACT SERVICES, LLC, *
*
Defendant-Intervenor. *
*
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MEMORANDUM OPINION AND ORDER

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

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The parties agreed that certain portions of the opinion located on pages 6, 8, 9, 10, and 11 should be redacted. Not.
at 2. Such portions contain information relating to the quantity of key personnel proposed by Crowley and Patriot,
respectively, in the instant procurement, the quantity of strengths assigned by MSC in its proposal evaluation, and
portions of Patriot’s proposed manning approach. The Court considered these agreed redactions and determined that
they are appropriate.

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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 F. App’x 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 F. App’x 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. Cl. 1, 4 (2017).

In this instance, the Court finds that Crowley and Patriot have sufficiently overcome the
presumption favoring public access in support of the proposed redaction of their respective
CPARS ratings and narratives. FAR 42.1503(d) prohibits disclosure of completed contractor
performance evaluations to anyone “other than Government personnel and the contractor whose
performance is being evaluated during the period the information may be used to provide source
selection information.” It further provides that “[d]isclosure of such information could cause
harm . . . to the competitive position of the contractor being evaluated[.]” Id. Thus, the FAR
recognizes that disclosure of CPARS information may harm the competitive positions of
government contractors like Crowley and Patriot and, therefore, requires that such information
be treated as confidential. Similarly, the protective order in this case defines “protected
information” as “information that must be protected to safeguard the competitive process” and
prohibits disclosure of “protected information” to anyone other than the Court or individuals
admitted under the protective order. Prot. Order at 1-2.

While the FAR restrictions on disclosure of CPARS information apply to procuring
agencies and do not apply to the Court, such restrictions support the conclusion that Crowley’s
and Patriot’s CPARS information should be treated as protected information under the protective
order. Disclosure of Crowley’s and Patriot’s CPARS information risks harm to their respective
competitive positions, and protection of such information from public disclosure will therefore
safeguard the competitive process. Additionally, when Crowley’s and Patriot’s interests in
shielding their CPARS information from public disclosure are weighed against the public's
interest in having access to such information, the Court finds that the competitive interests of
Crowley and Patriot outweigh the public’s interest in full access because redacting their CPARS
information will not impede the public’s understanding of the opinion.

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 For these reasons, the Court accepts the parties’ proposed redactions except for certain
non-substantive words which will remain unredacted to not unnecessarily impede the reader’s
understanding of the opinion. Subject to this exception, the following information will be
redacted from the Opinion and Order issued on January 18, 2022:

 The information indicated and agreed by the parties on pages 6, 8, 9, 10, and 11; and
 The CPARS information indicated on pages 16, 17, 18, and 19.

In the Notice of Proposed Redactions to the Court’s Opinion filed by the parties, the
government requested that the Court add Johanna Crawford, Associate Counsel, to the public
version of the opinion. The notice stated that Crowley and Patriot do not oppose this request. The
Court grants this request and will add Ms. Crawford to the public version of the opinion
accordingly.

The Court has incorporated the above identified redactions into the contemporaneously
filed public version of the Opinion and Order.

IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge

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