1. This Appendix describes standard practices in protest cases filed pursuant to 28 U.S.C. § 1491 (b) and supplements the RCFC, which are otherwise fully applicable to these cases.

2. In order to expedite proceedings, prior to the filing of a protest case pursuant to 28 U.S.C. § 1491 (b), plaintiff’s counsel shall (except in exceptional circumstances to be described in moving papers) provide at least 24 hours’ notice of filing the case to the

(a) Department of Justice, Commercial Litigation Branch, Civil Division, (202) 514–7300;

(b) Clerk, United States Court of Federal Claims, (202) 357–6406;

(c) the ^[1] procuring agency’s contracting officer by facsimile transmission, only; and

(d) the ^[1] apparently successful bidder/offeror (in cases where there has been an award and the plaintiff has received notice of the identity of the awardee).

3. The pre-filing notice shall include the following information:

(a) the name of the procuring agency and the number of the solicitation in the contested procurement;

(b) the name and telephone number of the contracting officer responsible for the procurement;

(c) whether plaintiff contemplates requesting temporary or preliminary injunctive relief pursuant to RCFC 65;

(d) whether plaintiff has discussed the need for temporary or preliminary injunctive relief with Department of Justice counsel and the response, if any;

(e) whether the action was preceded by the filing of a protest before the General Accounting Office (GAO) and if so, the “B-” number of the protest and whether a decision was issued; and

(f) whether plaintiff contemplates the need for the court to enter a protective order.

4. In the event plaintiff believes its complaint, or any pleadings filed at the same time, contain confidential or proprietary information and plaintiff seeks to protect that information from public scrutiny, plaintiff must file a motion for leave to file the complaint under seal, which shall be filed at the same time the complaint is filed. When a complaint or related papers are filed with an accompanying motion for leave to file under seal, the pleadings will be treated as though filed under seal while the motion is pending.

5. In filing documents under seal, a party shall follow the procedures described in RCFC 5.3(d).

6. The complaint and any other pleadings filed at the same time that are to be filed under seal shall be marked or highlighted in such a way that confidential or proprietary information is indicated and shall be accompanied by a redacted version of the pleading (a version that omits confidential or proprietary information), which will be available for public scrutiny. Failure to file the redacted copy may result in denial of the motion for leave to file under seal.

7. To the extent the complaint and any pleadings filed at the same time contain classified information, the filings must conform to the requirements of the classifying agency.

8. The court will schedule an initial status conference with the parties to address relevant issues including, but not limited to, the following:

(a) identification of interested parties;

(b) in post-award cases, admission of the successful offeror as an intervenor;

(c) any request for temporary or preliminary injunctive relief (see paragraph 15, below);

(d) the content of a protective order, if requested by one or more of the parties, and the requirement for redacted copies;

(e) the content and time for filing of the administrative record;

(f) whether it may be appropriate to supplement the administrative record; and

(g) the nature of and schedule for further proceedings.

9. The court’s practice is to expedite protest cases to the extent practicable and to conduct hearings on motions for preliminary injunctions at the earliest practicable time. Accordingly, when a plaintiff seeks a preliminary injunction, it may not need to request a temporary restraining order.

10. An application for a temporary restraining order and/or preliminary injunction shall be filed with the clerk along with the complaint, unless the complaint has been previously filed. The application shall be accompanied by affidavits, supporting memoranda, and any other documents upon which plaintiff intends to rely. The application also shall be accompanied by a statement that plaintiff’s counsel has hand delivered, provided for hand delivery, or transmitted by facsimile copies of the foregoing documents to the Department of Justice, Commercial Litigation Branch, 8th Floor, 1100 L St. NW, Washington, DC 20530.

11. If the name of the apparently successful bidder/offeror is known (in cases where there has been an award and plaintiff has received notice of the identity of the awardee), a copy of the foregoing documents shall be provided by hand, facsimile, or overnight delivery to the apparently successful bidder/offeror. Plaintiff shall state in its application whether the documents have been so provided. If the name of the awardee is unknown, plaintiff shall so state.

12. The apparently successful bidder/offeror may enter a notice of appearance at any hearing on the application for a temporary restraining order/preliminary injunction if it advises the court of its intention to move to intervene pursuant to RCFC 24(a)(2) or has moved to intervene before the hearing.

13. The clerk will promptly inform the parties of the judge to whom the case has been assigned and the time and place of any hearing.

14. Except in an emergency, the court will not consider ex parte applications for a temporary restraining order.

15. In cases in which plaintiff seeks temporary or preliminary injunctive relief, counsel shall be prepared to discuss the following matters at the initial status conference:

(a) whether and to what extent, absent temporary or preliminary injunctive relief, the court’s ability to afford effective final relief is likely to be prejudiced;

(b) if a temporary restraining order has been requested, whether plaintiff has discussed this request in advance with Department of Justice counsel and, if so, defendant’s response;

(c) if a temporary restraining order has been requested, whether the government will agree to withhold award or suspend performance pending a hearing on the motion for preliminary injunction;

(d) if a preliminary injunction has been requested, whether the government will agree to withhold award or suspend performance pending a final decision on the merits;

(e) an appropriate schedule for completion of the briefing on any motion for a preliminary injunction;

(f) the security requirements of RCFC 65(c) (See Appendix of Forms, Forms 11–13); and

(g) whether the hearing on the preliminary injunction should be consolidated with a final hearing on the merits.

16. Preliminary Matters.

(a) The principal vehicle relied upon by the court to ensure protection of sensitive information is the protective order. The protective order defines the procedures to be followed to identify protected information, to prepare redacted versions of such information, and to dispose of protected information at the conclusion of the case.

(b) Information a party identifies as protected may be disclosed only to parties who have been “admitted” to the protective order.

(c) Once a protective order is issued by the court, individuals who seek access to protected information must file an appropriate application. If admitted to the protective order, an individual becomes subject to the terms of the order. It is the responsibility of those admitted to the protective order to take the necessary steps to ensure that the information is protected, consistent with the terms of the protective order, while it is under their control (this includes oversight of support personnel who may have access to protected information).

(d) The court, procuring agency, and Department of Justice personnel are automatically admitted to protective orders when issued and are subject to their terms.

17. Issuance of a Protective Order.

(a) Motions for protective orders must meet the requirements of RCFC 10. The court may issue a protective order at its discretion.

(b) A sample protective order is found at Appendix of Forms, Form 8. The parties are cautioned that individual judges and the parties themselves may want to amend the sample protective order to meet the needs of a specific case or their individual preferences. It is the specific protective order issued in a case that governs the treatment of protected information in that case.

18. Application for Admission to the Protective Order.

(a) Each party seeking access to protected information upon behalf of an individual must file with the court an appropriate “Application for Admission to the Protective Order.” Separate applications for individual outside and in-house counsel, and for consultants or experts retained by counsel for a party, are found at Appendix of Forms, Forms 9 and 10. These forms may also be amended by the court in response to individual case needs.

(b) Admission to the protective order shall be based upon the contents of the application form submitted by an individual representing a party.

(c) Objections to an Application for Admission to the Protective Order must be filed with the court within 2 days after a party’s receipt of an application.

(d) In considering objections to Applications for Admission to the Protective Order, the court will consider such factors as the nature and sensitivity of the information at issue, the party’s need for access to the data in order to effectively represent its position, the overall number of applications received, and any other concerns that may affect the risk of inadvertent disclosure.

(e) Admission to a protective order will be made by the court in the form of an order.

19. Designation of Protected Information and Preparation of Redacted Pleadings.

After a protective order is entered, the designation of protected information and the preparation and filing of redacted documents shall be governed by the terms of the protective order.

20. Disposition of Material Containing Protected Information.

The specific procedures to be followed in disposing of protected information at the conclusion of the case shall be as described in the protective order.

21. The United States will be required to identify and provide (or make available for inspection) the administrative record in a protest case by the date(s) established at the initial status conference. The filing of all or a part of the administrative record shall be accompanied by a Notice of Filing.

22. Early production of relevant core documents may expedite final resolution of the case. The core documents relevant to a protest case may include, as appropriate,

(a) the agency’s procurement request, purchase request, or statement of requirements;

(b) the agency’s source selection plan;

(c) the bid abstract or prospectus of bid;

(d) the Commerce Business Daily or other public announcement of the procurement;

(e) the solicitation, including any instructions to offerors, evaluation factors, solicitation amendments, and requests for best and final offers;

(f) documents and information provided to bidders during any pre-bid or pre-proposal conference;

(g) the agency’s responses to any questions about or requests for clarification of the solicitation;

(h) the agency’s estimates of the cost of performance;

(i) correspondence between the agency and the protester, awardee, or other interested parties relating to the procurement;

(j) records of any discussions, meetings, or telephone conferences between the agency and the protester, awardee, or other interested parties relating to the procurement;

(k) records of the results of any bid opening or oral motion auction in which the protester, awardee, or other interested parties participated;

(l ) the protester’s, awardee’s, or other interested parties’ offers, proposals, or other responses to the solicitation;

(m) the agency’s competitive range determination, including supporting documentation;

(n) the agency’s evaluations of the protester’s, awardee’s, or other interested parties’ offers, proposals, or other responses to the solicitation, including supporting documentation;

(o ) the agency’s source selection decision, including supporting documentation;

(p) pre-award audits, if any, or surveys of the offerors;

(q) notification of contract award and the executed contract;

(r) documents relating to any pre- or post-award debriefing;

(s) documents relating to any stay, suspension, or termination of award or performance pending resolution of the bid protest;

(t) justifications, approvals, determinations, and findings, if any, prepared for the procurement by the agency pursuant to statute or regulation; and

(u) the record of any previous administrative or judicial proceedings relating to the procurement, including the record of any other protest of the procurement.

23. Because a protest case cannot be efficiently processed until production of the administrative record, the court expects the United States to produce the core documents and the remainder of the administrative record as promptly as circumstances will permit. (See RCFC 5.3(d) which is applicable to administrative records, unless waived by the court.) Materials that otherwise qualify as part of the administrative record are not excluded from the record merely because they are available only in electronic form.

24. Any additional documents within the administrative record shall be produced at such time as may be agreed to by the parties or ordered by the court.

25. In those procurement protest cases in which plaintiff’s counsel is not a member of the bar of the court and does not have sufficient time to gain admission prior to the filing of the action, the clerk shall accept for filing any proper complaint and accompanying pleadings under 28 U.S.C. § 1491 (b) from such counsel, conditioned upon counsel’s prompt pursuit of admission to practice before the United States Court of Federal Claims pursuant to RCFC 83.1. Failure to pursue such admission within 30 days after the initiation of the action may result in dismissal of the action and possible referral for disciplinary action.

This appendix sets forth the procedures applicable to the court’s procurement protest jurisdiction. In the main, these procedures reflect those that formerly appeared as General Order No. 38, issued on May 7, 1998. In addition, however, Appendix C now also incorporates—in paragraphs 10 through 14—those provisions of former RCFC 65(f) (titled “Procedures”) which enumerated requirements particular to applications for temporary restraining orders and/or motions for preliminary injunction.

Papers and exhibits are often filed under seal in procurement protests. Procedures for unsealing are addressed at RCFC 77.3(d). The standards for granting access to protected information are addressed in decisions such as U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), and Matsushita Elec. Indus. Co. v. United States, 929 F.2d 1577 (Fed. Cir. 1991).

Paragraphs 16(a) and 20 of this appendix address the disposition of material containing protected information after a case has been concluded. Both paragraphs contemplate that a protective order entered in a case involving protected information will set out the obligations of the parties in this regard. Form 8 in the Appendix of Forms, the sample protective order suggested for use in procurement protest cases, has been modified to include a new paragraph 8 which concerns the court’s retention and disposition of protected materials filed by the parties. The new paragraph provides that the original version of the administrative record and any other ancillary materials filed under seal in such a case will be retained by the court pursuant to RCFC 77.3(d). Copies of such materials filed with the court in addition to the original version may be returned by the court to the parties for appropriate disposition. In a particular case, the parties may propose to the court that other provisions be substituted for this portion of the model protective order.

The General Accounting Office, referred to in par. 3(e), was redesignated the Government Accountability Office by section 8 of Pub. L. 108–271, set out as a note under section 702 of Title 31, Money and Finance.