The Freedom of Information Act
You just lost a bid and would like to know what your arch-rival
did to win the job. Or you would like to bid a contract, and would
love to know what the incumbent’s price was for last year’s
award. If these are commercial jobs, chances are you’ll never
get the details of what you want, except perhaps as idle conversation
at a trade show. If these procurements are government contracts,
however, it’s a whole other story; under the Freedom of Information
Act (FOIA), you may well be able to discover the details of the
agency’s contracts with your competitors.
FOIA was instituted to make our government open to us, its constituents,
to allow taxpayers to find out to whom and for what our taxpayer
dollars are being spent. The law is relatively simple: to file
a FOIA request, you send a letter to the agency asking for a copy
of the documents you want, such as a contract, list of qualified
bidders, correspondence, or the like. You can send your request
either to the agency employee having something to do with the
request, such as a contracting officer, or to the agency’s
FOIA officer, who will see to it that your request is answered.
The agency is required to respond to your request within 20 days,
although it is rare for an agency to respond on time.
You do not need to state the reason why you are asking for the
documents requested. In fact, if an agency calls and asks why,
just ignore the inquiry. FOIA does not require a justification
for a request for information.
As with any government program, there are exceptions. First, the
agency may refuse to provide you with “pre-decisional”
information that does not reflect its final actions, instead reflecting
the agency’s ongoing deliberations. The reason for this exemption
is to encourage the agency to discuss and analyze issues fully
and completely from all perspectives without the fear that its
deliberations will be leaked to the public. Only after a final
decision is made is an agency’s documentation releasable.
Thus, if you were to ask for an agency’s advanced planning
documents or contract estimate in a procurement that was still
being conducted, the agency could refuse your request on the basis
that these items reflect the agency’s pre-decisional, ongoing
proceedings.
Second, an agency may refuse to disclose information that is confidential
and proprietary to a business and not part of a final contract
award. Under this exemption, the agency can refuse to provide
you the proposals of losing bidders, or even the details of the
winning bidder’s technical proposal. When such a request
for information is made, the agency will generally contact the
competitor whose information has been requested and give it the
opportunity to state what information it believes is releasable
and what it believes is protected. This is known in the trade
as a “reverse FOIA.” While the government is not bound
to accept the contractor’s recommendations, the contractor’s
requests are often honored.
Other exemptions can foil your request, such as national security
and privacy concerns. Even with exempt documents, however, the
agency is supposed to itemize those documents exempt from disclosure
and to withhold only those exempt passages from privileged documents.
FOIA requests should be part of your marketing practice. Consider
it legal industrial espionage. Your ability to obtain information
about your competitors from the government is unique. If you don’t
take advantage of FOIA, your competitors will. Don’t pass
it up.
