CACI Field Services, Inc. v. United States

34 Cont. Cas. Fed. 75,339, 12 Cl. Ct. 680, 56 U.S.L.W. 2148, 1987 U.S. Claims LEXIS 137
United States Court of Claims·Decided July 17, 1987·No. No. 302-87C·Published·Cited by 27 cases

Opinion

OPINION

BRUGGINK, Judge.

This bid-protest case is presently before the court upon CACI’s motion pursuant to RUSCC 37(a) to compel production of certain documents concerning defendant’s evaluation of its proposal. For reasons set forth herein, plaintiff’s motion is granted in part and denied in part.

FACTUAL BACKGROUND1

On December 5, 1986, CACI submitted a proposal to the General Services Administration (“GSA”) pursuant to a Request For Proposals (“RFP”) for a negotiated requirements contract for the operation of the GSA Wholesale Distribution Center and Customer Supply Center located in Stockton, California. The contract would run for a 12-month period, beginning 90 days after notification of award of the contract, with two optional 12-month extension periods, exercisable at the option of the Government. On March 19, April 2 and April 23, 1987, GSA requested further information from CACI. On May 7,1987, the Contracting Officer, Jeanne Deck (the “CO”), notified CACI that its proposal had been rejected. Soon thereafter, the CO notified CACI that the RFP was cancelled.

On May 27, 1987, plaintiff filed a complaint in this court alleging that GSA had failed to conduct meaningful discussion with CACI, failed to request a best and final offer, and failed to evaluate CACI’s proposal based on factors stated in the RFP, all in violation of applicable procurement statutes and regulations.

Plaintiff filed a motion for expedited discovery along with its complaint. Among the discovery requests attached to Plain[682]*682tiffs Motion for Expedited Discovery were the following:

Request for Documents
1. Any GSA internal written documents, correspondence, or notes in any form concerning the decision to reject CACI’s proposal; and the decision to cancel the solicitation.
2. All written documents, memoranda, notes, interoffice correspondence in any form, concerning CACI’s technical proposal including any deficiencies, evaluations, or other comments thereon.
3. All written documents, memoranda, notes, score sheets, or other records in any form concerning the evaluation of CACI’s technical proposal under RFP FCGA-S7-XV333-N.
Depositions
1. Jeanne E. Deck, Contracting Officer.
6. All individual(s) who reviewed, discussed or commented upon CACI’s technical proposal.
7. All individual(s) who performed the evaluation of CACI’s technical proposal.

In a telephone conference on June 8, 1987, Government counsel advised the court that documents responsive to plaintiffs request for documents would be provided pursuant to a protective order, the details of which would be agreed upon by the parties. The parties reached agreement upon the terms of the protective order, and it was entered by the court on June 16, 1987. Basically, it provides that information supplied during discovery would be used solely for the purpose of this litigation and cannot be communicated to anyone other than current counsel of record for CACI.

On June 15, 1987, defendant produced copies of all written comments and summaries prepared by members of the technical review panel (“TRP”) and other evaluators regarding the sufficiency of CACI’s technical proposal. Certain information was circled to indicate that it was being released subject to the protective order. On June 18, 1987, in response to the court’s order of June 9, 1987,2 defendant provided plaintiff with a copy of the Source Selection Plan (“SSP”) used by the TRP to evaluate all proposals which were submitted in response to the solicitation.3 Also on June 18, 1987 and continuing on June 23, 1987, the deposition of the CO was taken. The documents provided by defendant which were made exhibits to the deposition contained redacted portions. Government counsel advised CACI that it had deleted from these documents, as privileged, the following information: (1) the names of the evaluators, (2) the range of scores which could be applied by the TRP to the various evaluation factors as set forth in the source selection plan, (3) the scores as applied to CACI’s technical proposal by the TRP, and (4) information concerning other offerors.

During her deposition, the CO explained the circumstances surrounding the evaluation of CACI’s technical proposal. After GSA issued the RFP, an SSP was prepared which set forth the factors and subfactors to be used in evaluating the technical proposals. Each factor and subfactor was assigned a certain number of possible points. Although not entirely clear from the deposition, apparently based upon the total points received, the proposal was assigned a rating. CACI’s proposal was evaluated five times and CACI’s score was revised on at least two occasions, specifically in February of 1987 and on April 21, 1987. Each time CACI’s score was revised, those members of the TRP revising his or her score set forth reasons for that action in the narrative comments. In addition to the [683]*683TRP,4 the contracting officer requested three other persons to review all the offer-ors’ proposals and give summary comments to the TRP for consideration during its February meeting. During the February meeting of the panel, CACI’s technical proposal was rescored and the initial “Superi- or” rating was apparently changed to a “Satisfactory” rating. On March 2, 1987, based on the February 1987 reevaluation, all offers with the exception of CACI were excluded from consideration.5 After a series of information exchanges, CACI’s proposal was reviewed on April 2, April 21, and April 30, 1987. During the April 21, 1987 review, CACI’s score was revised but apparently the technical proposal again qualified for a “Satisfactory” rating. On May 7, 1987 the CO determined CACI’s technical proposal to be unacceptable.

On July 1, 1987, plaintiff filed a motion to compel production of the following information which had been omitted from documents previously produced (exhibit references are to documents attached to the Deck deposition):

a. Points, scores and rankings (Exhibits 1, 3, 4, 7, 8, 15 and 18);
b. Names of non-Technical Review Panel evaluators (Exhibit 5);
c. Reasons for rejection of all proposals (Exhibit 24).

Defendant opposed plaintiff’s motion on July 8, 1987, claiming the material sought was not only irrelevant but protected from disclosure by the executive privilege.6

[684]*684DISCUSSION

1. Relevancy

Rule 26(b)(1) of the RUSCC makes discoverable “any matter not privileged, which is relevant to the subject matter involved in the pending action.” Thus before examining the executive privilege claim, the court must inquire whether the information sought is relevant since “matters of privilege can appropriately be deferred for definitive ruling until after the production demand has been adequately bolstered by a general showing of relevancy.” Freeman v. Seligson, 405 F.2d 1326, 1338 (D.C.Cir.1968); see also Shipkovitz v. United States, 1 Cl.Ct. 400, 401 (1983).

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CACI Field Services, Inc. v. United States, 34 Cont. Cas. Fed. 75,339, 12 Cl. Ct. 680, 56 U.S.L.W. 2148, 1987 U.S. Claims LEXIS 137 (cc 1987).

34 Cont. Cas. Fed. 75,339 (CACI Field Services, Inc. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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