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50:0544(75)AR - - HHS, SSA, Baltimore, MD and AFGE, National Council of SSA Field Operations Locals, Council 220 - - 1995 FLRAdec AR - - v50 p544

[ v50 p544 ]
The decision of the Authority follows:

50 FLRA No. 75
















June 23, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority on an exception to an award of Arbitrator Ira F. Jaffe filed by the Agency under section 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.

The Arbitrator sustained a grievance involving the design and installation of ergonomic furniture in the Agency's field offices.

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

II. Arbitrator's Award

The Arbitrator issued a "stipulated" award resulting from his mediation of a dispute between the parties over the design and implementation of ergonomic work stations at the Agency's field offices. Award at 1. This award directed, among other things, the creation of a Joint Committee on Implementation and Design (JCID), comprised of three Agency representatives, three Union representatives, and one or two professional ergonomists, to monitor and review the installation of the work stations.

Disagreements over implementation of this initial award led the parties to return to the Arbitrator for further clarification. Consequently, a second stipulated award was issued. According to this award, the parties agreed that a function of the JCID was "to conduct site visits . . . to ensure that the design and installation of the ergonomic systems furniture [was] proceeding as agreed." Id. at 4. The Arbitrator stated that the site visits were appropriate "to review prototypes built by potential vendors of systems furniture; the purpose of these visits [was] to provide the Union with current information about these vendors['] proposals and to allow the Union the opportunity to provide input and advice which [could] be considered by the Agency in making the procurement decisions." Id. at 5.

III. Exception

A. Agency's Contentions

The Agency contends that the award violates 41 U.S.C. § 423(b)(3), which governs the conduct of a Federal procurement.(1) Specifically, the Agency maintains that the furniture prototypes referred to in the award constitute "proprietary" or "source selection" information, within the meaning of 41 U.S.C. § 423(p)(6) and (7) respectively.(2) The Agency further claims that because such procurement information can only be disclosed to persons "authorized" by agencies to receive it, the joint site visits are precluded by law.

B. Union's Opposition

The Union contends that 41 U.S.C. § 423(b)(3) does not explicitly restrict its access to procurement information. The Union argues, in this regard, that the Agency has failed to establish that it is unable to authorize the disclosure of such information to the Union.

IV. Analysis and Conclusions

Apart from its conclusory assertions, the Agency offers no explanation for its contention that the award conflicts with 41 U.S.C. § 423(b)(3). However, based on our reading of the record as a whole, we construe the exception as contending that the award conflicts with that statutory provision because compliance with the award would result in the disclosure of proprietary or source selection information to the Union representatives and/or professional ergonomists on the JCID.

The provision relied on by the Agency prohibits the disclosure of proprietary or source selection information to any person who has not been authorized by the Agency head to receive it. In the absence of an assertion to the contrary, we will assume, for the purposes of this decision, that the JCID site visits could result in disclosure of proprietary or source selection information, as those terms are defined in 41 U.S.C. § 423(p)(6) and (7).

However, nothing in the plain wording of 41 U.S.C. § 423(b)(3), or its legislative history, suggests that the Agency head is precluded from authorizing the disclosure of proprietary or source selection information to the Union representatives and ergonomists who are involved in this case. Specifically, section 423(b)(3) contains no express limitations and imposes no conditions on the Agency head's discretion to authorize individuals to receive procurement information. Likewise, this section does not define or otherwise restrict the universe of persons who may be authorized to receive such information.(3)

The award effectively requires the Agency head to authorize JCID members to receive the proprietary or source selection information that could be disclosed pursuant to the site visits. As such authorization is within the Agency head's discretion under 41 U.S.C. § 423(b)(3), we have no basis on which to find that the award is deficient. See U.S. Department of the Army, Aviation Systems Command, St. Louis, Missouri and National Federation of Federal Employees, Local 405, 36 FLRA 418, 425 (1990) ("[A]rbitrators may properly direct an agency to take an action which is within the agency's authority and which would not violate law, rule or regulation."). Accordingly, we deny this exception.

V. Decision

The Agency's exception is denied.

(If blank, the decision does not have footnotes.)

1. 41 U.S.C. § 423(b)(3) provides, in relevant part:

During the conduct of any Federal agency procurement of property or services, no procurement official of such agency shall knowingly--

(3) disclose any proprietary or source selection information regarding such procurement directly or indirectly to any person other than a person authorized by the head of such agency or the contracting officer to receive such information.

2. 41 U.S.C. § 423(p)(6) defines "proprietary information" as follows:

(A) information contained in a bid or proposal;

(B) cost or pricing data; or

(C) any other information submitted to the Government by a contractor and designated as proprietary . . . .

41 U.S.C. § 423(p)(7) defines "source selection information" in relevant part, as:

[I]nformation determined by the head of the agency or the contracting officer to be information--

(A) the disclosure of which to a competing contractor would jeopardize the integrity or successful completion of the procurement concerned; and

(B) which is required by statute, regulation, or order to be secured in a source selection file or other restricted facility to prevent such disclosure[.]

3. We note that 41 U.S.C. § 423(d) prohibits persons who are authorized to receive such information from making unauthorized disclosures of the information to others. The statute also provides specific sanctions for procurement violations, including criminal and civil penalties. See 41 U.S.C. § 423(i) and (j).