My Contract’s Been FOIA’d!
Now What?
NCMA Luncheon
March 20, 2014
Cody Corley, Attorney
Johnson Space Center
1
3/20/2014
FOIA Overview
•
The FOIA establishes a statutory right of public access
to information in the federal government.
•
The FOIA provides that any person has a right to
obtain access to federal agency records, except to the
extent that such records are protected from public
disclosure by one of nine exemptions.
2
3/20/2014
Nine Exemptions*
(b)(1)
As authorized by Executive Order or classified national security information
(b)(2)
Internal personnel rules and practices of an agency
(b)(3)
Information exempt from release by other federal statutes
(b)(4)
Confidential business information and trade secret information
(b)(5)
Inter- and Intra-agency privileged material, including:
(a) Pre-decisional advice, opinions, recommendations,
(b) Attorney-client communications, and
(c) Attorney-work products
(b)(6)
Personnel, medical, and similar files where release could result in a clearly unwarranted
invasion of privacy
(b)(7)
Certain law enforcement records
(b)(8)
Information concerning the supervision of financial institutions
(b)(9)
Geological information concerning wells
3
*5 U.S.C. § 552(b)(1)-(9)
3/20/2014
Information Generally Withheld
•
Information withheld generally include:










4
Proposals - (b)(3)
Proprietary Information that would cause a company harm in the
marketplace - (b)(4)
General & Administrative (G&A) rates - (b)(4)
Burden Rates - (b)(4)
Trade Secrets - (b)(4)
Unsuccessful Bids - (b)(4)
Company Tax ID Number - (b)(3)
Resumes of company employees - (b)(6)
Labor Rates - (b)(4)
Evidence of Pricing Strategy - (b)(4)
3/20/2014
Information Generally Not Withheld
•
The types of information generally released include:






5
Federal employee names
Company employee names
Company key personnel resumes
Contract signatories
Option year pricing
Cost Plus Award Fee and Cost Plus Fixed Fee Amounts
3/20/2014
Initial Processing of a Contract FOIA
•
Generally, when a copy of a contract is requested, the request is from one
company seeking the NASA contract of another company.
•
What exactly is the requester seeking?




Awarded contract only?
Awarded contract and all subsequent changes?
Awarded contract and all task orders?
The contractor’s proposal?
•
Government: The Contracting Officer may be requested to review the
requested information and make recommendations on the release.
•
Contractors: Will be made aware of the request via a “Submitter’s Notice.”
This is the contractor’s opportunity to object to the disclosure of any
specified portion of the information and to state all grounds upon which
disclosure is opposed.
3/20/2014
6
The Major Concern? – (b)(4), of course!
•
In order to withhold contract information, the information must be either:
1)
2)
A trade secret; or
Information that is
a)
Commercial or financial, and
b)
Obtained from a person, and
c)
Privileged or confidential.
•
Trade Secret - any formula, pattern, device, or compilation of information
used in a business to obtain an advantage over competitors who do not know
or use it.
•
Confidential – information is confidential if disclosure is likely to:
1)
2)
7
Impair the Government’s ability to obtain necessary information in the
future; or
Cause substantial harm to the competitive position of the person from
whom the information was obtained.
3/20/2014
Section A – SF30 & Table of Contents
•
Usually no information needs to be withheld

8
Values listed are usually totals
3/20/2014
Section B – Supplies or Services
•
Pay Attention Here!
ESTIMATED COST AND AWARD FEE (NFS 1852.216-85) (SEPT 1993)
The estimated cost of this contract is $(b)(4) . The maximum available award
fee, excluding base fee, if any, is $(b)(4). The base fee is $(b)(4). Total estimated
cost, base fee, and maximum award fee are $RELEASE.
•
Why should the information above be redacted?


9
Let’s assume cost is $1,000,000, award fee is $100,000, base fee is $0,
and the total is $1,100,000.
We now know the company’s fee is 10%!
3/20/2014
Section B – Supplies or Services
CONTRACT VALUE
Phase-In
(b)(4)
Cost
(b)(4)
Fee
(b)(4)
Total Value
RELEASE
CONTRACT FUNDING (NFS 1852.232-81)(JUNE 1990)
(a) For purposes of payment of cost, exclusive of fee, in accordance with the Limitation
of Funds clause, the total amount allotted by the Government to this contract is
$ (b)(4) . This allotment covers the following estimated period of performance: TBD .
(b) An additional amount of $ (b)(4) is obligated under this contract for payment of fee.

10
The Government often times funds the contract to mirror what the
contractor proposed on a contract (split between cost and fee). Since the
release of this information could lead to competitive harm, it is withheld.
3/20/2014
Section B – Supplies or Services
•
What about fully-burdened labor rates? (b)(4)!
•
What about the minimum and maximum IDIQ values?
Release!

11
Why? These are not values provided by the contractor and
release could not cause the submitter any competitive harm
in the marketplace.
3/20/2014
Sections C, D, and E
•
Section C - SOW
•
•
Section D – Packaging and Marking
•
•
Usually no information needs to be withheld
Section E – Inspection and Acceptance
•
12
Usually no information needs to be withheld
Usually no information needs to be withheld
3/20/2014
Section F – Deliveries or Performance
•
What about option years?
OPTION(S) TO EXTEND COMPLETION DATE (JSC 52.217-90) (OCT 1996)
The Government may require the Contractor to continue performing services under this
contract. The Contracting Officer may exercise options by issuance of a unilateral contract
modification 30 days or more before the completion date set forth in Section F. Should the
option(s) be exercised, the resultant contract will include all terms and conditions of the basic
contract as it exists at the time the option is exercised, except for increases in estimated cost
and fee and other changes indicated below.
OPTION 1
OPTION 2
OPTION 3
Estimated Cost
$ (b)(4)
$ (b)(4)
$ (b)(4)
Award Fee
$ (b)(4)
$ (b)(4)
$ (b)(4)
Total Contract
Value
$ RELEASE
$ RELEASE
$ RELEASE
March 31, 2017
March 31, 2018
March 31, 2019
Clause B.1--Cost and Fee
increased as follows:
13
3/20/2014
Section G – Contract Admin Data
•
14
Usually no information needs to be withheld
3/20/2014
Section H – Special Contract Requirements
•
15
Pay Attention Here!

Section H is where any special clauses are included that may
have been agreed to during the course of negotiations.

For example, if a contract proposes unique terms or
conditions (or a specialized software tool), the Government
may agree to accept those terms or conditions by writing
them into the signed agreement and placing them in
Section H. As such, you could have a competitive harm or
trade secrets issues that requires withholding of certain
information.
3/20/2014
Section I – Contract Clauses
• This section is extensive and contains a lot of information
pertinent to the contract, however, it usually does not
contain information that needs to be withheld
16
3/20/2014
Section J – List of Attachments
•
Pay Attention Here!
•
Section J can include numerous attachments, such as:










17
Data Requirements List and Descriptions
Small Business Plans
Safety and Health Plans
Award Fee Evaluation Plans
Management Plans
Phase-In Plans
Quality Plans
Property Lists
Wage Determinations
Organizational Conflict of Interest Avoidance Plans
3/20/2014
Section J – List of Attachments
•
Tip in Reviewing Section J Attachments

Ask, “Was this attachment created by the submitter and incorporated into the
contract?” If yes, (b)(4) likely applies and information may need to be withheld.




Ask, “Did the financial data included in any attachments come directly from the
submitter?” If yes, (b)(4) likely applies. If the financial data is provided by the
government, (b)(4) will likely not apply.

•
Property Lists
What about Award Fee Evaluation Plans?


18
Small Business Subcontracting Plan
Organizational Conflict of Interest Avoidance Plan
Safety & Health Plan
The plan is a government document, which means it generally can be released.
What about the award fee scores and associated fee dollars?

Scores and Adjectival Rating – RELEASE

Fee Dollars – (b)(4)
3/20/2014
Submitter’s Objections to Disclosure
•
Prior to release, NASA will respond to a submitter’s objections. NASA will either
accept the submitter’s recommendations to withhold certain information or
explain why it does not agree with the submitter’s position.
•
A submitter may not object to the release of information that would otherwise be
withheld. In this case, the question becomes, does NASA withhold in compliance
with the regulations or does NASA release the information since the submitter
didn’t state it would suffer competitive harm if the information was provided to the
requester?


19
Answer: It depends on the data at issue and on the contract. Remember, information
may be withheld if releasing it would impair the Government’s ability to obtain
necessary information in the future.
Agencies have authority to make discretionary releases. However, agencies will
review the requested information to ensure information protected by FOIA
exemptions are redacted. Requests for contracts will also include standard
submitter notices.
3/20/2014
How to Protect Information
•
Mark Proposal Data

Clearly mark proposal data with an appropriate legend (See FAR 52.215-1(e)).
This proposal includes data that shall not be disclosed outside the Government
and shall not be duplicated, used, or disclosed—in whole or in part—for any
purpose other than to evaluate this proposal. If, however, a contract is awarded to
this offeror as a result of—or in connection with—the submission of this data, the
Government shall have the right to duplicate, use, or disclose the data to the
extent provided in the resulting contract. This restriction does not limit the
Government's right to use information contained in this data if it is obtained from
another source without restriction. The data subject to this restriction are
contained in sheets [insert numbers or other identification of sheets].
•
Respond immediately to the Submitter’s Notice



20
Failure to respond to the notice may be deemed as consent to release information and
lead to disclosure of proprietary information
Identify information that is proprietary or would cause competitive harm if released
Describe the harm that would result from release of that information
3/20/2014