Information About Protective Orders OHA has regulatory authority to issue protective orders. 13 C.F.R. § 134.205(e). A protective order allows counsel for an opposing private party (generally a protestor) to have access to the entire appeal file, except for income tax returns and privileged information, while protecting the subject firm’s confidential and proprietary information.
OHA judges issue protective orders when both the protested concern (whose size or status is at issue) and a non-government protestor are parties to the appeal. A protective order is not needed when the only non-governmental party in an appeal is the concern whose status (or eligibility) is at issue, such as in 8(a) Business Development cases.
When an appellant is the protested concern, if it wishes to protect its confidential and proprietary information, it should file both redacted and unredacted versions of the appeal petition with OHA, serve the government parties both versions, and serve the protestor(s) only the redacted version. The protested concern may also request a protective order at that time. If the protestor’s counsel wishes to have access to the unredacted appeal petition and appeal file, protestor’s counsel should file and serve an appearance along with a request for a protective order. After OHA issues the protective order, each attorney representing a protestor should file and serve his or her application for admission under the protective order. After reviewing and approving the application(s), the OHA judge will order counsel admitted. Once admitted, the protestor’s counsel may then arrange to view, copy, or request delivery of the protected material.
When an appellant is the protestor, counsel should request the protective order at the same time the appeal petition is filed if counsel wishes to have access to the unredacted appeal petition and appeal file. After the OHA judge issues the protective order, the appellant’s counsel should apply for admission. Once OHA admits counsel under the protective order, counsel may then arrange to receive the protected material.
Parties must take appropriate safeguards to ensure protected information is not inadvertently released during delivery or transmission. For instance, marking the envelope or transmission page with the legend “PROTECTED INFORMATION ENCLOSED” is encouraged. Additionally, the first page of each document containing protected information must be clearly marked as follows:
CONTAINS PROTECTED INFORMATION NOT TO BE DISCLOSED EXCEPT IN ACCORDANCE WITH OFFICE OF HEARINGS AND APPEALS PROTECTIVE ORDER
Here is a sample application for admission under a protective order. If you have any questions regarding protective orders, please call OHA at (202) 401-8200 and ask to speak with one of the staff attorneys.