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AT&T INFORMATION SYS. v. GSA

February 6, 1986

AT&T INFORMATION SYSTEMS, INC., Plaintiff,
v.
GENERAL SERVICES ADMINISTRATION, Defendant



The opinion of the court was delivered by: OBERDORFER

 Louis F. Oberdorfer, D.J.

 This matter first came before the Court when plaintiff AT&T Information Systems ("AT&T-IS") filed its complaint for a declaratory judgment and preliminary and permanent injunctions. Plaintiff sought to prevent defendant General Services Administration ("GSA") from releasing certain information that GSA had determined to release in response to Freedom of Information Act ("FOIA") requests. The FOIA requests were made by a number of other entities not parties to this litigation *fn1" and sought information relating to AT&T-IS's successful bid for a GSA procurement contract. AT&T-IS claims that GSA's decision to release the information over AT&T-IS' protests was an abuse of discretion and not in accordance with law. AT&T-IS further claims that GSA should be permanently enjoined from releasing the contested information. Subsequent to the filing of the complaint, AT&T-IS and GSA filed cross motions for summary judgment and entered into a stipulation by which GSA agreed not to release the contested documents "until the Court decides the matter on motions for summary judgment." *fn2" Those cross motions are presently before the Court; all issues have been thoroughly briefed and argued. Both parties agree that the facts are not in dispute so that no special master or expert witness is needed and the motions are ripe for decision. See Defendant's Supplemental Memorandum (filed September 9, 1985); Plaintiff's Memorandum on the Question of Whether this Court May Resolve this Action on Motions for Summary Judgment (filed September 9, 1985).

 I.

 GSA recently commenced a nationwide purchase of a new federal telecommunications system. In all, twelve multi-city telecommunications systems will be procured in the "Aggregated Switch Procurement" ("ASP") program, developed by GSA to competitively procure telecommunications systems for civilian federal government offices in different regions.

 AT&T-IS bid for and, on March 1, 1985, was awarded the New England area contract, the first in GSA's ASP series. *fn3" GSA had received four proposals in response to its April 27, 1983 Request for Proposals ("RFP"); as of January 30, 1985, AT&T-IS and GTE Communications Systems, Inc. ("GTE") alone remained in the competitive range. Following the award of the contract to AT&T-IS on March 1, 1985, GTE on March 4, 1985 submitted a FOIA request to GSA, seeking the complete technical and price proposals submitted by AT&T-IS as well as certain internal documents generated by the agency during the procurement bid process.

 On March 6, 1985, GSA notified AT&T-IS of GTE's FOIA request. GSA sent AT&T-IS a copy of the request. GSA sent AT&T-IS a copy of the request, and asked AT&T-IS to identify documents that it considered to be confidential and to provide explanation for the claim of confidentiality.

 AT&T-IS responded on March 20 and March 28, 1985 to the GSA request and indicated, inter alia, that disclosure of AT&T-IS' prices would reveal the company's prices and discount strategy for this and future ASP contracts and that, consequently, release would cause AT&T-IS substantial competitive harm. From March 6 through early April, 1985, AT&T-IS personnel and counsel met with GSA personnel in an attempt to resolve the dispute over the information that GSA had been requested to release.

 On April 9, 1985, GSA informed AT&T-IS by letter of the final disclosure determination made by Harry H. Fuchigami, Director of the Office of Information Resources Procurement, Office of Information Resources Management, General Services Administration. The April 9, 1985 letter from Mr. Fuchigami *fn4" advised Mr. Harry Carr of AT&T-IS "that [GSA would] release a complete copy of [AT&T-IS'] proposal except those portions identified in the enclosed response to the requestor." The letter further stated that "in reaching [its] decision to release this information, [GSA had] carefully considered the comments in [AT&T-IS'] letters."

 GSA's (per Fuchigami) rationale for withholding certain documents from the requestors was reflected in the April 9, 1985 letter to GTE, a copy of which was attached to the letter of the same date to AT&T-IS. In part, Mr. Fuchigami stated:

 
The information withheld under exemption (4) relates to the configuration of the switching system and the Switch Management Center (SMC), cost and financial data, company personnel, their qualifications, unique skills, educational background, and company past experience. Release of this data would reveal the contractor's internal operations and business practices, thereby diminishing its competitive abilities. In addition, release could render future negotiations difficult if offerors became reluctant to furnish such information for fear of disclosure by the Government.

 Letter from Harry H. Fuchigami to Stanford Miller, GTE Business Communications Systems, Inc. at 1 (April 9, 1985) (attached as Exhibit 3 to Defendant's Memorandum) (emphasis added).

 In all, GSA (per Fuchigami) determined to release 2707 pages of material responsive to the FOIA requests. Of the 2707 pages, AT&T-IS identifies approximately 32 pages, collected in six documents, that AT&T-IS maintains do contain confidential commercial or financial information. These six documents are the only documents at issue in this case and have been filed under seal with the Court. The six documents are as follows (detailed descriptions of these documents and their contents are found at pp. 9-13 of the Fuchigami Declaration).

 
(a) Schedule A -- station equipment;
 
(b) Aggregate totals for the Switch Management Center ("SMC") and for each system at each location;
 
(c) Life cycle raw cost summaries;
 
(e) AT&T-IS' January 30, 1985 letter containing its lease financing proposal; and
 
(f) Schedule D -- service charges.

 Three of these documents, [(a) Schedule A, station equipment; (e) AT&T-IS' January 30, 1985 letter containing its lease financing proposal; and (f) Schedule D, service charges] were contained in AT&T-IS' proposal for the New England ASP contract. Two of the remaining three documents, [(c) life cycle raw cost summaries; and (d) BARS system input and output], were generated by GSA during its evaluation of AT&T-IS' proposal. The remaining document, [(b), containing aggregate totals for the SMC and for each system at each location], was generated by GSA after it had received the GTE FOIA request. *fn5"

 Mr. Fuchigami's determination, reflected in his April 9 letters, that these six documents were subject to mandatory release under the FOIA was again expressed, with somewhat greater detail, in his June 19, 1985 Declaration. Providing specific explanations for his determination with respect to each of the individual documents, id. at 13-15, Mr. Fuchigami also stated:

 
I understand AT&T-IS to be arguing that disclosure of these unit prices would allow a competitor to calculate the discount from the commercial price which AT&T-IS offered the government for this contract and thus will enable a competitor to discern AT&T-IS pricing/discount strategy to its commercial detriment. However, it is also my understanding that a Government contract is a matter of public record and unit prices on a Government contract are generally releasable. I believe the ...

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