Freedom of Information Act

While the settlement of the False Claims Act case against Lance Armstrong has generated a press release, a quick online search didn’t produce a copy of the actual agreement. So I filed a Freedom of Information Act request and the next day the Department of Justice provided me a copy of the Lance Armstrong settlement agreement.  Thank you, Team DOJ!  Below is my take on that agreement and what it tells us about the case.

The settlement amount

The settlement agreement provides that Lance Armstrong will pay $5 million to the Government and $1.65 million to the relator Floyd Landis. To put this in context, the Postal Service had paid about $40 million to sponsor Team Postal. Trebling that amount, and throwing in civil penalties and investigative costs, bumps up potential damages to well over $100 million. The settlement amount was thus less than 7 cents on the dollar.

Damages was always the Government’s weakness – because there weren’t any. This should have been apparent at the outset from the contemporaneous USPS reports on how much publicity and new revenue the Team Postal sponsorship had generated. These reports were poppycock, of course, but they still posed insurmountable problems for the Government’s case.

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.

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.

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.”

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.

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.

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.

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.

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.