varies from base to base. Moreover, since it is the pendency of an A-76 Program bid which creates the reason for temporarily withholding these documents, the fact that they have been released at bases where no such program is in immediate contemplation is neither surprising nor relevant.
Even with regard to only those bases where such a program might be in the offing, plaintiff has offered no explanation for why the Army must reach the same determination concerning disclosure in every instance. Indeed, consideration of the concerns enunciated in Merrill might lead to differing conclusions in different situations. In one instance the information might already be generally known through other means, or its disclosure might do little or nothing to compromise the government's bid given the specific circumstances of the particular A-76 bid at issue.
In other instances, however, release of the documents sought might place previously unavailable information in the hands of bidders who could use it to the competitive disadvantage of the government's in-house bid, in which case the government would have a legitimate reason for withholding those documents. Release of similar documents at bases other than Fort Benning thus cannot serve to constitute "release" of documents relating to Fort Benning, and since the particular documents at Fort Benning have not themselves been made "otherwise available," the withholding of those documents is proper if release would place the government at a competitive disadvantage or endanger the procurement process in some other manner.
While the papers being withheld will not reveal the precise bid to be made by the Army against M-K's prospective bid, the evidence shows that they will enable an informed bidder such as M-K
to make a closer approximation than would be possible on the basis of the information to be released with the bid invitation and other available data. See Timken Co. v. United States Customs Service, 491 F. Supp. 557, 559 (D.D.C. 1980). The Court therefore accepts the Army's view that in this instance release may not only chill competition and place the Army at a "competitive disadvantage" in "bidding" to continue doing the work in-house, but might also discourage commercial firms from taking the initiative to come forward with more innovative techniques for cutting costs in the hope of underbidding a more uncertain Army "bid." The Army has thus met its burden in this particular instance of demonstrating sound reasons to protect the commercial information being sought by M-K.
Under the Rule 26(c)(7) standard approved by the Supreme Court a trial court has discretion to develop procedures that will protect confidential information as far as feasible consistent with the need to ensure fairness to all parties. Absolute protection of commercial data that will lead to relevant evidence is rare; usually the Court will control the manner or timing of the disclosure. If, on the eve of a competitive bidding, a party sought access to internal commercial papers of a competing bidder which would enable it to determine more closely how the competitor might be expected to bid, surely a Court in the exercise of its discretion would at the very least seek to delay discovery until potential harm to the competitive bidding process had passed.
The same considerations lead the Court to conclude that in this case a temporary delay in release of the documents is appropriate. Here the records sought by M-K will soon be made public once bids are filed under seal and an award made. Thus the ultimate purpose of public disclosure envisioned by FOIA can be achieved while the agency's need to protect its commercial information for a short period is recognized. Temporary delay of disclosure is therefore the proper course.
The Court has heeded the Supreme Court's admonition in Merrill that a claim of commercial privilege based on anything other than executive privilege or the attorney-client privilege must be viewed "with caution" when arising in the context of Exemption 5. Merrill, 443 U.S. at 355. However, given the long tradition of carefully maintained fairness in competitive government procurement programs, the use of FOIA to unsettle well-established procedures governed by a comprehensive regulatory scheme must also be viewed not only "with caution" but with concern. Premature disclosure could, in the long run, discourage documentation of internal cost-related data and thus impede "frank and open discussion and hence efficient governmental operations." Weber Aircraft, 52 U.S.L.W. at 4354. More immediately, it will place the Army at a competitive disadvantage with respect to the current A-76 if the information is released before bids are opened and an award made. If the Army does not proceed expeditiously with the competitive bid invitation, M-K may seek to reopen.
Nothing in the foregoing shall, of course, prevent the contracting officer from releasing any data in these papers to all prospective bidders should he determine such to be appropriate.
The Clerk of Court shall enter judgment for defendant.