My Contract`s Been FOIA`d - NCMA

My Contract’s Been FOIA’d! Now What? NCMA Luncheon March 20, 2014

Cody Corley, Attorney Johnson Space Center 1

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FOIA Overview •

The FOIA establishes a statutory right of public access to information in the federal government.

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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.

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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

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*5 U.S.C. § 552(b)(1)-(9)

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Information Generally Withheld •

Information withheld generally include:        

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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:      

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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

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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.

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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?

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Government: The Contracting Officer may be requested to review the requested information and make recommendations on the release.

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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

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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.

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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.

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Confidential – information is confidential if disclosure is likely to: 1) 2)

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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 

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Values listed are usually totals

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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.

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Why should the information above be redacted?  

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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%!

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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.

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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)!

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What about the minimum and maximum IDIQ values? Release! 

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Why? These are not values provided by the contractor and release could not cause the submitter any competitive harm in the marketplace.

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Sections C, D, and E •

Section C - SOW •

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Section D – Packaging and Marking •

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Usually no information needs to be withheld

Section E – Inspection and Acceptance •

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Usually no information needs to be withheld

Usually no information needs to be withheld

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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:

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Section G – Contract Admin Data •

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Usually no information needs to be withheld

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Section H – Special Contract Requirements •

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Pay Attention Here! 

Section H is where any special clauses are included that may have been agreed to during the course of negotiations.

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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

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Section J – List of Attachments •

Pay Attention Here!

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Section J can include numerous attachments, such as:          

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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.   

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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. 

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Property Lists

What about Award Fee Evaluation Plans?  

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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.

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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? 

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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.

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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].

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Respond immediately to the Submitter’s Notice   

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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