DEPARTMENT OF VETERANS AFFAIRS,

April 10, 2009

CBCA 1509

HOUCK LIMITED,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Chad A. Readler and Grant W. Garber of Jones Day, Columbus, OH, counsel for

Appellant.

Brian Reed and Larry Stunkel, Chicago Office of Regional Counsel, Department of

Veterans Affairs, Hines, IL; and Phil Kauffman and Phillipa L. Anderson, Office of General

Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent.

DANIELS, Board Judge (Chairman).

ORDER

The appellant, Houck Limited (Houck), holds an indefinite quantity contract with the

respondent, the Department of Veterans Affairs (VA), for the provision of vocational

rehabilitation and employment services to service-connected disabled veterans. The contract

contains numerous contract line items (CLINs) and sub-contract line items (sub-CLINs),

each for a specific kind of service. Each CLIN and sub-CLIN contains a unit price; under

the contract, whenever VA orders one of those units, it pays Houck the specified price.

CLINs and sub-CLINs are included for a base year and each of four option years.

CBCA 1509

2

On March 24, 2009, Houck filed a Motion for Confidential Treatment of Case

Management Task Orders and Price Schedules. On March 26, Houck supplemented this

motion with a List of Appeal File Documents to be Marked in Accordance with the

Protective Order. Houck has since withdrawn from its appeal file all documents addressed

in the portion of the motion involving case management task orders. Thus, the remaining

question before the Board is whether to grant confidential treatment to price schedules by

permitting them to remain where Houck has placed them, under the protective order issued

by us in this case. The documents at issue include the CLIN and sub-CLIN prices in Houck’s

contract; the CLIN and sub-CLIN prices in the contract of a company with a parallel contract

to Houck’s, but for a different region, C. J. Turner; and the “Base Cost per Case

Assumptions” pertaining to Houck’s contract.

VA opposes Houck’s motion. The agency maintains that the Federal Acquisition

Regulation (FAR) requires the disclosure of unit prices in awarded contracts. It cites in

support of its position numerous decisions of district courts and courts of appeals in which

agency determinations to disclose contract pricing information under the Freedom of

Information Act, 5 U.S.C. § 552 (FOIA), were permitted. Houck contends that because VA

has acknowledged its intention to re-solicit in the near future for offers to perform the same

services, and will likely terminate Houck’s contract and all parallel contracts, disclosure of

the price schedules in Houck’s contract would be highly prejudicial to Houck. It would,

according to the appellant, alert other potential offerors to the prices they would have to offer

in order to underbid Houck. The appellant cites in support of its position decisions of the

General Services Board of Contract Appeals (GSBCA) regarding disclosure of unit prices

in the context of protests of contract awards. Houck considers most of the FOIA decisions

cited by VA to be irrelevant, but urges us to follow two of them, Chemical Waste

Management, Inc. v. O’Leary, Civ. A. No. 94-2230, 1995 WL 115894 (D.D.C. Feb. 28,

1995), and McDonnell Douglas Corp. v. United States Department of the Air Force, 375

F.3d 1182 (D.C. Cir. 2004).

Each side’s position has some merit. The FAR provides that soon after contract

award, a contracting officer shall provide to unsuccessful offerors notification which “shall

include . . . [t]he items, quantities, and any stated unit prices of each award.” Even where

“the number of items or other factors makes listing any stated unit prices impracticable at that

time,” “the items, quantities, and any stated unit prices of each award shall be made publicly

available, upon request.” 48 CFR 15.503(b)(1)(iv) (2007). In light of this directive, it is

clear that the unit prices contained in Houck’s contract for the base year -- the only year for

which a contract has been awarded -- are public information. R & W Flammann GmbH v.

United States, 339 F.3d 1320 (Fed. Cir. 2003). They must therefore be removed from the

protective order.

CBCA 1509

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On the other hand, as the GSBCA decisions make clear, in the context of protests,

while contract awards are in dispute and the potential exists for continued competition in the

contested procurements, unit prices should remain confidential because their disclosure could

be prejudicial to an offeror’s opportunities to succeed in the competition. TRI-COR

Industries, Inc., GSBCA 10886-P, 91-1 BCA ¶ 23,462 (1990); Federal Sources, Inc.,

GSBCA 9082-P, 87-3 BCA ¶ 20,200. Similarly, in the case of options, the Government has

not yet decided whether to continue the contract, see International Telephone & Telegraph,

ITT Defense Communications Division v. United States, 453 F.2d 1283, 1291 (Ct. Cl. 1972),

so the potential exists for competition for the requirements covered by the option periods.

Disclosure of unit prices could be prejudicial to the contractor’s opportunities to succeed in

the competition. For this reason, disclosure of those prices has been precluded in the context

of FOIA litigation. Canadian Commercial Corp. v. Department of the Air Force, 514 F.3d

37, 42 (D.C. Cir. 2008) (in applying the test set out in National Parks & Conservation Ass’n

v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), court determined that disclosure would have

been “likely . . . to cause substantial harm to the competitive position of the person from

whom the information was obtained”); McDonnell Douglas, 375 F.3d 1182, 1189 (same);

Chemical Waste (same).1 The Board does not have jurisdiction to hear FOIA cases, see 5

U.S.C. § 552(a)(4)(B)-(G) (2006), and those cases involve somewhat different issues from

this one -- disclosure of requested information, not shielding of information in case files from

public access -- but we find the cited FOIA decisions to be instructive. Additionally, we note

that the case before us involves base year pricing only; the option year pricing does not

appear to have any impact on this dispute, so restricting it from public view will not affect

access to our proceedings. Accordingly, we allow the option year CLIN and sub-CLIN

prices in Houck’s contract, and in C. J. Turner’s parallel contract, to remain under our

protective order.

We permit the “Base Cost per Case Assumptions” pertaining to Houck’s contract to

remain under the protective order as well. Houck appears to be correct in asserting that this

document shows how the contractor derived its unit prices, so disclosing the document would

1

In Flammann, the Court held proper the agency’s determination to disclose the

contractor’s option year prices even though the options were not exercised and a competition

was to be conducted to fill the agency’s requirements in the option years. That case had a

significant difference from ours and the cited FOIA cases, however. Flammann involved a

sealed bid procurement, and the prices were already in the public domain because they had

been disclosed during bid opening. Here and elsewhere, the contracts were awarded through

negotiated procurements, and the FAR does not require disclosure of prices for unawarded

option years in those procurements.

CBCA 1509

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be likely to cause substantial harm to Houck’s competitive position, especially in the

competition to provide in the future services which are included in the current contract.

Houck placed under the protective order its Statement in Support of Confidential

Protection of Price Schedules and “Base Cost per Case Assumptions” Page. The reason

given for this placement is that the Statement contains certain information provided by

counsel for VA which may be confidential. Agency counsel has informed us that the

information in question has been made public. Consequently, the Statement is not

appropriately placed under the protective order and must be removed from it.

_________________________

STEPHEN M. DANIELS

Board Judge