Freedom of Information Act

Contractors interested in the application of FOIA Exemption 4 should take note of the Ninth Circuit’s decision in American Small Business League v. Dep’t of Defense, No. 15-15120 (9th Cir. Jan. 6, 2017). The issue in the case was whether a declaration submitted by a Sikorsky Aircraft Corporation employee was sufficient to show the competitive harm necessary to withhold small business subcontracting data obtained from Sikorsky. The Sikorsky declaration was short, but it identified Sikorsky’s competitors and asserted that its small business subcontracting data could be used to gain a competitive advantage.

Soldiers conduct air assault operations on the deck of the 8th Theater Sustainment Command's Logistical Support Vessel-2, the Harold C. Clinger off the coast of Honolulu, Jan. 11, 2016. The soldiers are assigned to the 25th Infantry Division.
Army photo by Sgt. Jon Heinrich

In a November 2014 order, the District Court found the declaration too vague. It lacked “reasonably specific detail” as to the likelihood of competitive injury. It did not show how information found in the subcontracting plan would be “likely to cause substantial competitive injury.” Proof of competitive harm was based only on the fact that a Sikorsky competitor “could” use Sikorsky’s data to cause harm. In the words of District Judge William Alsup, “[t]hat is not enough to grant summary judgment for the agency.” The District Court ordered the government to produce Sikorsky’s master subcontracting plan, subject only to appeal.

Continue Reading The Ninth Circuit sides with DOD on Sikorsky small business subcontract data

Since the Federal Awardee Performance and Integrity Information System opened to the public on April 15, 2011, contractors have been concerned that their trade secrets and other proprietary information might also become accessible. With good reason—the interim version of FAR 52.209-9 provided for the public availability of all newly submitted information other than “past performance reviews.”

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The final rule on public access to FAPIIS specifically addresses the problem. Rather than simply ignoring Freedom of Information Act exemptions entirely as the interim rule did, the final form of FAR 52.209-9 (Jan. 3, 2012) [pdf] includes a mechanism that allows the contractor to identify information covered by a FOIA exemption.

Continue Reading Applying FOIA exemptions to contractor information in FAPIIS

Corrections to the proposed rewrite of FAR 42.1503 reinstate the contractor’s role in past performance evaluations. As published on June 28, 2011, the rewritten FAR provision omitted language from the existing clause that protects the contractor’s interests in the process. As corrected on August 9, the contractor protections have been restored.

Continue Reading Reinstating the contractor’s role in past performance evaluations

Should the federal government require prospective government contractors to disclose their political contributions? The Obama administration weighed in on this issue in April with a draft executive order entitled “Disclosure of Political Spending by Government Contractors.” As the title suggests, the draft order would require a contractor submitting an offer to perform a federal contract to disclose political contributions exceeding $5,000 made within two years preceding the offer. The order has generated significant controversy. Many have expressed fear that the information would be used inappropriately as a new factor in awarding federal contracts. The controversy intensified last month when Senator Susan Collins (R-ME) and Representative Darrell Issa (R-CA) proposed the Keeping Politics Out of Federal Contracting Act of 2011, which would prohibit the disclosures called for in the draft executive order.

Continue Reading Contractor political contributions as a factor in contract award decisions

Contractors seeking to comply with the new requirement to report the compensation of their five highest paid executives under FAR 52.204-10 (July 2010) still have a lot of unresolved questions. We heard some of the questions during our June 8, 2011 webinar on the topic, which was sponsored by L2 Federal Resources, LLC, publisher of The Contracting Post. Thanks for hosting!

Here are some of the questions posed, along with our answers.

Continue Reading Executive compensation FAQ

Efforts to increase transparency in federal contracting are well underway. But it’s still not clear exactly how much contractor information will be made public under the new rules, or how they will be interpreted in light of existing laws. We know that FAPIIS is now online and accessible to the public, for example, but that only the government will have access to contractor past performance reports. GSA published a notice saying that executive compensation reported under FAR 52.204-10 [pdf] and proceedings information reported under under FAR 52.209-9 [pdf] may be exempt under FOIA Exemption 4 even though it will presumably be in FAPIIS. It’s not just these types of conflicts that are creating uncertainty. Proposals are in the works to require contractors and trade associations to disclose their campaign spending. There is even a pending proposal that would involve posting all federal contract documents on the internet.

I’ll be discussing the practical aspects of these issues in a June 8, 2011 webinar. The discussion will include the ins and outs of the new transparency requirements that are already in effect, including the executive compensation reporting rules, the requirement to report findings of liability in criminal, administrative, and civil proceedings, as well as some of the new transparency rules that have been proposed. I will also discuss the protections available for contractors in the Freedom of Information Act and the Trade Secrets Act.

Registration information is available here.

The ongoing federal contracting transparency initiatives will not yet include the publication of actual contract documents on the internet. According to a Federal Register notice published on February 10, 2011 [pdf], that proposal has been withdrawn, at least for now.

Continue Reading Contract Documents Won’t Be Posted on the Internet . . . Yet

It’s a common assumption in litigation under the Freedom of Information Act that trade secrets lose value with the passage of time. The January 19, 2011 decision in Taylor v. Babbitt, No 03-0173-RMU (D.D.C. Jan. 19, 2011), shows there’s much more to the story. The case involved a 2002 FOIA request seeking “plans, blueprints, specifications, engineering drawings and data” submitted to the government in 1935 in support of a type certificate application for the Fairchild F-45.  After a harrowing ride through the court system, including a trip to the Supreme Court, United States District Judge Ricardo M. Urbina ordered the government to produce the 75-year-old documents.

Continue Reading FOIA trade secrets exemption unavailable for 75-year-old aircraft design

Executive compensation disclosures.  Opening FAPIIS to the public.  While there are good arguments for both sides about the wisdom of these new contractor transparency initiatives, it is interesting to note that they seem to conflict with recent court decisions supporting contractor efforts to limit the public availability of their data.

Continue Reading Do federal contractor transparency initiatives conflict with FOIA caselaw?