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. A sample request is on page 39.
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's rare for an agency to respond on time.
You don't 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 isn't 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.
