Commercial Item - Simplified Procedures - Postaward Notice

Before protesting, you may want to read Canadian Commercial Corp. v. Department of the Air Force, No. 06-5310, 2008 WL 220638 (D.C.Cir. Jan. 29, 2008). Here's the holding:

Background: Contractors filed ?reverse? Freedom of Information Act (FOIA) action, seeking to enjoin Department of Air Force from releasing trade secrets to competitor, consisting of line-item pricing and hourly labor rates information in contract to provide turbojet engine repair, overhaul, and maintenance services. The United States District Court for the District of Columbia, Bates, J., 442 F.Supp.2d 15, granted in part and denied in part cross-motions for summary judgment. Air Force appealed.

Holdings: The Court of Appeals, Ginsburg, Chief Judge, held that:

(1) constituent or line-item pricing falls within FOIA exemption, and

(2) contractors' pricing information was within FOIA exemption.

I'd fax her the 21 January 2009 Memorandum For The Heads of Executive Departments and Agencies regarding Freedom of Information Act signed by the President. Para three,

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.

The court may have held that opinon in 2008 but in 2009 that attitude is not going to fly in my opinion. I cannot see the justification.

And if Commercial Item Acquisition Procedures were used the FAR 52.212-1 regarding Debriefing should be considered -

"l) Debriefing. If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable:

(1) The agency?s evaluation of the significant weak or deficient factors in the debriefed offeror?s offer.

(2) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror.

(3) The overall ranking of all offerors, when any ranking was developed by the agency during source selection.

(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror.

(6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency. "

Acquisition guy,

You need to read the decision Don referenced first.

There's a link to the decision here: http://pacer.cadc.uscourts.gov/common/opinions/200801.htm.

Click on "06-5310a"

Brian's situation, unless he misstated it, is that the CO won't release the award price on a Part 13 acquisition. How did this discussion evolve into line item pricing? The award price (maybe not line item pricing, but we can't decide that by the information provided) must be disclosed and I think Brian should certainly pursue this obvious misunderstanding.

I read the initial post as though the overall price is a secret. The questioner didn't mention unit prices. Brian are you clear about what you want and are you sure that both you and the KO are talking about the same information? What info do you want to know?

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I used the "fast reply" function, and nothing showed up. Guess its time for me to read the instructions.

Thanks everyone for commenting. It's a little humbling to go from contracts to provide foreign policy advice to purchase orders for grounds maintenance, but I was too proud to begin with.

There is only one CLIN per year, base + 2 options.

I am asking for the award price for the entire contract (in the Base Year,) but that's effectively the same as line item pricing. I don't see how there could be any misunderstanding about what I want, but I may be too close to see the bigger picture. I am also asking to know who won. I'd like to know if its someone with the same last name as the CO, for example.

I didn't ever inspect the job site, and suspect my price was either way high or way low, compared to the government estimate and/ or other bids. I would expect the CO to be anxious to tell me if I was way high, so I assume the agency thought I was too low and unreasonably so. I assume they expect me to make a fuss if the award price was significantly higher than mine, or even just barely higher than mine, and thus the secrecy.

But that's just a guess.

In my opinion, the first defense against contracting irregularities is for interested parties to be able to see if they were treated fairly in competitions. Without openness, how can there be accountability ?

.

Brian's situation, unless he misstated it, is that the CO won't release the award price on a Part 13 acquisition. How did this discussion evolve into line item pricing? The award price (maybe not line item pricing, but we can't decide that by the information provided) must be disclosed and I think Brian should certainly pursue this obvious misunderstanding.

Because Brian was talking about protesting, and before doing so he should know that line-item pricing falls under a FOIA exemption, in case that is what he was seeking. Turns out that is what he was seeking. I'll bet he's glad he knows that now.

Well, it still look like he just wants to know who won and what the overall price is (one CLIN). He has the right to know that, as would we (unless this is a classified contract).

Well, it still look like he just wants to know who won and what the overall price is (one CLIN). He has the right to know that, as would we (unless this is a classified contract).

Don is right, Joel. The DC Circuit's decision precludes the release of "constituent" or "line item" prices. It views those prices as trade secrets. A line item price includes a unit, quantity, unit price, and total amount. Generally, all offerors will know the unit and the quantity, thus by releasing the total amount the government is giving competitors the info they need to calculate the unit price, which is the trade secret to be protected. Thus, if a PO has only one line item, release of the PO total price will disclose the protected trade secret.

I don't like this, but that's the way it is. The DC Circuit has affirmed its position three times, and the court's most recent decision showed some impatience with the Air Force's insistence.

All of you should remember that improper disclosure of a trade secret is a federal crime.

Could the CO refer the requestor to FPDS?

I do find this to be an interesting discussion. FAR 5.301 requires synopsis of awards in excess of $25K. There is no exception related to trade secrets/FOIA.

Clearly this is an area in which the regulations need to be updated and clarified, particularly if a KO is commiting a federal crime because he/she complied with a statutory requirement to publicize a contract award.

I question applying the referenced case in such a broad brushed way to Brian?s scenario. First, the referenced case is with regard to FAR Part 15 matters in conjunction with FOIA. I would offer that the conclusion might be different depending on the changed circumstances provided for in the scenario. For example if, as I raised before, FAR 52.212-1 was in the solicitation it provides a different standard and rules for release than the FAR Part 15. More importantly it appears from the facts presented in Brian?s matter that the Government has applied exemption 4 without following due process. Specifically it appears that the CO has been arbitrary in determining that the allowed exemption applies without first entertaining the request for the information as a specific FOIA request, then inquiring of the contractor whose information is being requested to see if he/she/they wants to exercise their right under allowed exemption 4.

Rather than a protest I would suggest a little different approach. I would submit a formal request for the contract pricing under FAR Part 12 and FOIA and see where it goes. If denied, and if Brian has really deep pockets, then appeal the non-release and let the courts decide on a different set of facts and circumstances.

f, as I raised before, FAR 52.212-1 was in the solicitation it provides a different standard and rules for release than the FAR Part 15.

Carl,

How so? What's the difference? FAR 52.215-1(f)(11) requires release of the same information. What am I missing?

Vern - My comments regarding FAR Part 15 were with regard to this part of the decision found on page 9 -

"See Bartholdi Cable, 114 F.3d at 281. As the district court pointed out, however, ? 15.506(e)(1) of the FAR states ?the debriefing shall not reveal any information ...

exempt from release under the Freedom of Information Act including ... [t]rade secrets?; therefore, the provisions cited by the Air Force do not independently remove any information from coverage under Exemption 4. The Air Force attempts to explain away this limitation on the ground that it ?logically applies only to information other than the information specifically delineated as required to be disclosed.? This statement is just illogical; the very purpose of ? 15.506(e)(1) is to protect from disclosure information that the FAR would otherwise require the Air Force to disclose."

Noting this part of the decision I believe one could make the argument pursuant to FAR Part 12.102© that procurements under FAR Part 12 are viewed in a different light. While exemption 4 might still be applicable the standard regarding trade secrets may be much higher as the commercial item acquisition in the general view is to be performed following commercial market place practices. If market research shows that the market place does release info on past procurements then I would argue that the data could (and should?) be released.

Expanding on my general comments in my first post, every outcome on a conflict heard by a court or Board related to a contract is based on the specific facts of the matter and I believe that Brian's facts are enough different that trying to apply the decision noted specifically and directly is too much of a generalization.

Vern - My comments regarding FAR Part 15 were with regard to this part of the decision found on page 9 -

"See Bartholdi Cable, 114 F.3d at 281. As the district court pointed out, however, ? 15.506(e)(1) of the FAR states "the debriefing shall not reveal any information ...

exempt from release under the Freedom of Information Act including ... [t]rade secrets"; therefore, the provisions cited by the Air Force do not independently remove any information from coverage under Exemption 4. The Air Force attempts to explain away this limitation on the ground that it "logically applies only to information other than the information specifically delineated as required to be disclosed." This statement is just illogical; the very purpose of ? 15.506(e)(1) is to protect from disclosure information that the FAR would otherwise require the Air Force to disclose."

Noting this part of the decision I believe one could make the argument pursuant to FAR Part 12.102? that procurements under FAR Part 12 are viewed in a different light. While exemption 4 might still be applicable the standard regarding trade secrets may be much higher as the commercial item acquisition in the general view is to be performed following commercial market place practices. If market research shows that the market place does release info on past procurements then I would argue that the data could (and should?) be released.

Carl,

Sorry, but that dog won't hunt. FAR Part 12 and FAR Part 15 are not in conflict with respect to debriefings. In fact, the word "debriefing" does not appear in Part 12. Thus, FAR 12.102( applies, and FAR 15.506(e) is applicable to commercial item procurements. FAR 52.212-1 and 52.215-1 are the same on the topic of debriefings. So far, you have not established any ground for the assertion that procurements of commercial items should be "viewed in a different light" when it comes to reverse-FOIA objections to the release of purchase order price. Arguably, there are more grounds to object to the release of commercial prices than for noncommercial prices, especially if the commercial prices are discounted. I do not read the FOIA decisions of the DC Circuit as applicable only to procurements of noncommercial items.

But I agree with you that brian should file a FOIA request if he wants to see the prices and the CO refuses. I presume that the agency will deny the request as a matter of course, unless the contractor voices no objections.

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Earlier, in my post #9 above, on 13 March, I suggested that the first defense against contracting irregularities is for interested parties to be able to see if they were treated fairly in competitions. Do you agree ?

While it is fitting for GAO to weigh each case before them with a presumption that government officials are acting in good faith, unless there is a showing otherwise,

we recognize that government officials sometimes do not act that way.

There are several GAO decisions where bad faith on the part of a CO affected the outcome; one particular case [Tecom, Inc.] involved serial bad faith by a former supervisor of mine.

If the Government can conceal the award price in an acquisition where evaluation is based on price alone, and can conceal the name of the awardee, that violates one of the four foundations of Government contracting: openness (which is essential for accountability.)

That in turn can conceal violations of the three remaining foundations: competition, socio-economic programs, and fair and reasonable pricing.

Clearly, most CO's act in good faith all of the time, and of those who don't, they only abuse their authority selectively. Assume for the sake of discussion that only one tenth of 1% of all Government acquisitions involve abuse and bad faith. Should we just let those slide, since they are so few in number ?

.

I am familiar with a GAO decision that denied an unsuccessful offeror's request to know who won, and at what price. The acquisition was for services to be provided in Iraq and Afghanistan, but it was not classified.

"We dismiss the protest because an agency's failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award.

The Ideal Solution, LLC

. B-298300, July 10, 2006 CPD [para] 101 at 3 n.2; Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD [para] 73 at 5."

But this action didn't protest a failure to offer or schedule a debriefing; it protested the concealment of who won, and at what price. Even though the award would have exceeded $5.5 Million, it was not even posted on the DoD contract awards page.

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I have some auditing in my background.

A basic principle for internal controls is to require several people to sign off on each requirement: a requiring official who signs the Purchase Request/ funding document; a CO who signs the contract; and a receiving official who certifies the goods and services were acceptable. Underlying this principle is the understanding that one person, acting alone, may be tempted to use their official position for personal gain, because they are not likely to be found out. But if they have to coordinate that misconduct with another person, the chances of being found out go way up; and if a 3rd person is required, it is more likely than not that one of the three is going to feel slighted by the other two, which greatly expands the possibility that the conspiracy will come to light.

Now, the for-profit business community should not be allowed to know all of the Government's business, but when I take the time to prepare an offer, and put my name and resources on the line, I think that I am entitled to know that I lost fair and square.

Secrecy in contracting is needed to an extent, but it becomes a cancer when left unchecked.

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Vern - Noting Brian's most recent bone ("evaluation is based on price alone") my dog is not only going to hunt but I am thinking I would limit. You and Don have brought a Lab, but while it might be quacking like a duck it isn't walkin like one! I mean come on we are talking about "grounds maintenance" where the exception 4 on any basis is a long shot. This is more like shooting gallery at the carnival!

I say sic 'em Brian with both barrels, protest as well as a formal FOIA, with the latter delivered to the agency's FOIA office rather than the CO.

Vern - Noting Brian's most recent bone ("evaluation is based on price alone") my dog is not only going to hunt but I am thinking I would limit. You and Don have brought a Lab, but while it might be quacking like a duck it isn't walkin like one! I mean come on we are talking about "grounds maintenance" where the exception 4 on any basis is a long shot. This is more like shooting gallery at the carnival!

I say sic 'em Brian with both barrels, protest as well as a formal FOIA, with the latter delivered to the agency's FOIA office rather than the CO.

Carl,

Up to now your argument has been that FAR Part 12 and FAR Part 15 are different in terms of disclosure rules. You've been wrong about that since Day One. Now you are reduced to mixing your metaphors and pleading "come on," which plea I take to be an appeal to common sense. I suppose that the common sense implication is that prices for something as commonplace as grounds maintenance cannot be trade secrets. I see no reason to rely on your opinion in that regard.

Vern - Noting Brian's most recent bone ("evaluation is based on price alone") my dog is not only going to hunt but I am thinking I would limit. You and Don have brought a Lab, but while it might be quacking like a duck it isn't walkin like one! I mean come on we are talking about "grounds maintenance" where the exception 4 on any basis is a long shot. This is more like shooting gallery at the carnival!

I say sic 'em Brian with both barrels, protest as well as a formal FOIA, with the latter delivered to the agency's FOIA office rather than the CO.

I have to take some exception to Don's assertions regarding line item pricing. The court has never held that such pricing is automatically exempt from disclosure. Instead, its position is summarized in this extract from the CCC decision

We reaffirm today what we have held twice before:

Constituent or line-item pricing information in a Government

contract falls within Exemption 4 of the FOIA if its disclosure

would ?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.?

Thus, before line item pricing can be withheld, the government must determine that one of these two results will occur. Similarly, in a reverse FOIA action, the party seeking to enjoin release has the burden of proof in regard to making one of these showings.

As for Carl's idea about a protest, what is to be protested? Look at the GAO protest regs to determine what can be protested. I don't see where a contracting officer's failure to disclose this information is protestable to the GAO.

As for Carl's idea about a protest, what is to be protested? Look at the GAO protest regs to determine what can be protested. I don't see where a contracting officer's failure to disclose this information is protestable to the GAO.

Brain did not receive the order and does not know the basis of why he lost. As he said earlier, his price could be higher or lower than the source selected.

Vern -Whether anyone wants to rely on my opinion is clearly up to them. This said, my opinion does differ from yours in that I believe debriefing disclosure rules are different for FAR Part 12 procurement actions. As you have noted there is no discussion in FAR Part 12 regarding debriefing, rather FAR Part 12 requires a specific provision to be placed in a solicitation that addresses the debriefing process. I contend that in doing so the post award debriefing requirement becomes a stipulated condition of the solicitation, the rules of playing the game, where the Government is required to do something when and if requested by an offeror who is in the game. This is clearly different from the requirements of a FAR Part 15 where pre award and post award debriefing is not stipulated condition of participating in the solicitation but dictated by the specific regulation of FAR Part 15 and as referenced by FAR Part 15, FAR Part 24. As I implied in a previous post it is clear that the bar in a commercial item acquisition regarding a reverse FOIA under Exemption 4 would therefore be higher than it is for a FAR Part 15 acquisition.

Retread ? Basis for protest is the failure of the Government to adhere to the exact requirements of the solicitation with regard to post award debriefing. While not an perfect comparison it is like the Government failing to follow the evaluation process dictated in the solicitation.

Carl,

You said:

Vern - I believe debriefing disclosure rules are different for FAR Part 12 procurement actions. As you have noted there is no discussion in FAR Part 12 regarding debriefing, rather FAR Part 12 requires a specific provision to be placed in a solicitation that addresses the debriefing process. I contend that in doing so the post award debriefing requirement becomes a stipulated condition of the solicitation, the rules of playing the game, where the Government is required to do something when and if requested by an offeror who is in the game. This is clearly different from the requirements of a FAR Part 15 where pre award and post award debriefing is not stipulated condition of participating in the solicitation but dictated by the specific regulation of FAR Part 15 and as referenced by FAR Part 15, FAR Part 24. As I implied in a previous post it is clear that the bar in a commercial item acquisition regarding a reverse FOIA under Exemption 4 would therefore be higher than it is for a FAR Part 15 acquisition.

I believe that you are wrong. Here is FAR 52.212-1, Instructions to Offerors -- Commercial Items, with respect to debriefing:

(l) Debriefing. If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable:

(1) The agency's evaluation of the significant weak or deficient factors in the debriefed offeror's offer.

(2) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror.

(3) The overall ranking of all offerors, when any ranking was developed by the agency during source selection.

(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror.

(6) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

Here is FAR 52.215-1, Instructions to Offerors--Competitive Acquisitions, with respect to debriefing:

(f)(11) If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable: (i) The agency's evaluation of the significant weak or deficient factors in the debriefed offeror's offer.

(ii) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror.

(iii) The overall ranking of all offerors, when any ranking was developed by the agency during source selection.

(iv) A summary of the rationale for award.

(v) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror.

(vi) Reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

How, exactly, are those different? Both quote FAR 15.506(d). What did you mean when you said:

FAR Part 12 requires a specific provision to be placed in a solicitation that addresses the debriefing process. I contend that in doing so the post award debriefing requirement becomes a stipulated condition of the solicitation, the rules of playing the game, where the Government is required to do something when and if requested by an offeror who is in the game. This is clearly different from the requirements of a FAR Part 15 where pre award and post award debriefing is not stipulated condition of participating in the solicitation[.]

Not stipulated? What do you think FAR 52.215(f)(11) is saying?

In any case, you don't seem to understand that FAR Subpart 15.5 applies to commercial item acquisitions, per FAR 12.102( and ?, which read as follows:

( Contracting officers shall use the policies in this part in conjunction with the policies and procedures for solicitation, evaluation and award prescribed in Part 13, Simplified Acquisition Procedures; Part 14, Sealed Bidding; or Part 15, Contracting by Negotiation, as appropriate for the particular acquisition. ? Contracts for the acquisition of commercial items are subject to the policies in other parts of this chapter. When a policy in another part of this chapter is inconsistent with a policy in this part, this Part 12 shall take precedence for the acquisition of commercial items.

Where, exactly, are the inconsistencies between FAR Part 12 and FAR Part 15 when it comes to debriefings? Now here is FAR 15.506(e):

(e) The debriefing shall not include point-by-point comparisons of the debriefed offeror's proposal with those of other offerors. Moreover, the debriefing shall not reveal any information prohibited from disclosure by 24.202 or exempt from release under the Freedom of Information Act (5 U.S.C. 552) including— (1) Trade secrets;

(2) Privileged or confidential manufacturing processes and techniques;

(3) Commercial and financial information that is privileged or confidential, including cost breakdowns, profit, indirect cost rates, and similar information; and

(4) The names of individuals providing reference information about an offeror's past performance.

Do you say that 15.506(e) does not apply to acquisitions of commercial items? If so, on the basis of what FAR text? Do you think that contracting officers must release trade secrets or confidential manufacturing processes and techniques when giving debriefings in commercial item acquisitions? Do you think that they must release the names of individuals providing reference information about an offeror's past performance during a debriefing in a commercial items acquisition?

See FAR 24.202(a). Do you think that 10 U.S.C. 2305(g) and 41 U.S.C. 254b(d)(2)? do not apply to commercial item acquisitions? So far, all you have done is assert, assert, assert. You have not once proven any of your assertions by reference to specific regulations. You have, in fact, been consistently wrong on the text. Now, I am prepared to acknowledge an error if you can show me the textual basis for your assertions.

P.S. The GAO will not consider protests about an agency's failure to give a debriefing or to give an adequate debriefing. That is a long-standing (circa 1986) position of the GAO. See The Ideal Solution, LLC, Comp. Gen. Dec. B-298300, 2006 CPD ? 101, footnote 2:

Whether or not an agency provides a debriefing and the adequacy of a debriefing are not issues that our Office will consider, because the scheduling and conduct of a debriefing is a procedural matter that does not involve the validity of an award. See Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 4 n.4; Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD para. 73 at 5.

I have been out of town the past few days, but - for Cripes sake, already - this is a grounds maintenance service contract! What kind of trade secret is involved in finding the overall contract price (I'm guessing that it is X months at $y/month = contract price)?

"Here is FAR 52.215-1, Instructions to Offerors--Competitive Acquisitions, with respect to debriefing:

(f)(11) If a post-award debriefing is given to requesting offerors, the Government shall disclose the following information, if applicable:

...(ii) The overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror."

Seems like the overall price is one thing that must normally be revealed in the debriefing and the questioner never said that there are trade secrets involved - in a grounds maintenance contract?????????? mowing grass, trimming plants, fertilizing, etc. ??????

- for Cripes sake, already - this is a grounds maintenance service contract! What kind of trade secret is involved in finding the overall contract price (I'm guessing that it is X months at $y/month = contract price)?

That's no kind of argument. If aircraft maintenance prices can be trade secrets, why can't grounds maintenance prices be trade secrets? Do you know some rule that we don't know about what can and can't be trade secrets?

Seems to me that the only trade secrets in a lawn maintenance contract might be if they were going to use Edward Scissorhands or Sweeney Todd to trim the grass or bushes. Besides nobody said there are trade secrets involved, here.

Are you are telling me that anytime there are unit prices involved in a government contract, the government can't reveal them to the public? What about the same work but in an IFB format? This is getting ridiculous. Civil works construction contracts might contain up to 100 CLINS and public works contracts often use unit prices and estimated quantities to be measured and paid at actual installed quantities.

Joel,

The court decisions are saying line item or unit pricing information is subject to exception 4 of FOIA. For the exception to apply, you must determine whether disclosure causes competitive harm to the submitter. Obviously not all unit or line prices fall into that situation but some do. Before disclosing unit pricing, many agencies follow their internal FOIA practices and ask the submitter if disclosure of the information will cause them competitive harm. They also ask the submitter to justify why.

A very simple example actually relates to what started all this several years ago. Hourly contract rates that are "fully loaded" rountinely used to be released. However some firms said that caused them competitive harm because going labor rates were commonly known in the industry. That occurs through employees transferring to competitors, application of the Service Contract Act, unions and collective bargain agreements, etc. So if the fully loaded "wrap" rates are divulged, competitors know how the winning vendor structures their pricing.

The court in Canadian Commercial Corp. and Orenda Aerospace Corp., stated the rule quite succinctly"

Exemption 4 of the Freedom of Information Act protects “matters that are ... trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. ? 552((4). Commercial or financial information obtained from a person involuntarily “is ‘confidential’ for purposes of the exemption if disclosure [would either] ... 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.” Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974); see also Critical Mass Energy Project v. NRC, 975 F.2d 871, 880 (D.C. Cir. 1992) (enbanc) (adhering to National Parks with regard to commercial or financial information involuntarily submitted to the Government). We have long held the Trade Secrets Act, 18 U.S.C. ? 1905, a criminal statute that prohibits Government personnel from disclosing several types of confidential information unless “authorized by law,” is “at least co-extensive with ... Exemption 4 of FOIA.” CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1151 (D.C. Cir. 1987). The upshot is that, unless another statute or a regulation authorizes disclosure of the information, the Trade Secrets Act requires each agency to withhold any information it may withhold under Exemption 4 of the FOIA. Bartholdi Cable Co., Inc. v. FCC, 114 F.3d 274, 281 (D.C. Cir. 1997). A person whose information is about to be disclosed pursuant to a FOIA request may file a “reverse-FOIA action” and seek to enjoin the Government from disclosing it. See Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 1979).

Among other reasons, there should be no disclosure of "constituent" or "line item" prices if it would cause substantial harm to the competitive position of the firm from which the information was obtained. Before releasing any such info the CO should contact the firm whose information has been requested. You can pooh-pooh this all you want, but as a businessman I understand why some firms in some markets do not want to disclose their prices. A firm that competed for a specially-tailored government grounds maintenance job may have given the government prices that it does not want disclosed to its competitors because it would harm its competitive position in the future. Instead of being sarcastic, you could try reading the case law. Saying that a position is ridiculous is not an argument.

The government can reveal unit prices if the contractor does not object. If the contractor does object, then someone in the government (not the contracting officer) must decide whether to release the info despite the objection. If that is the decision, the contractor can file a reverse-FOIA suit. This nondisclosure rule does not apply in sealed bidding, in which public bid opening is mandated by statute.

The court in Canadian Commercial Corp. and Orenda Aerospace Corp., stated the rule quite succinctly"

Among other reasons, there should be no disclosure of "constituent" or "line item" prices if it would cause substantial harm to the competitive position of the firm from which the information was obtained. Before releasing any such info the CO should contact the firm whose information has been requested. You can pooh-pooh this all you want, but as a businessman I understand why some firms in some markets do not want to disclose their prices. A firm that competed for a specially-tailored government grounds maintenance job may have given the government prices that it does not want disclosed to its competitors because it would harm its competitive position in the future. Instead of being sarcastic, you could try reading the case law. Saying that a position is ridiculous is not an argument.

The government can reveal unit prices if the contractor does not object. If the contractor does object, then someone in the government (not the contracting officer) must decide whether to release the info despite the objection. If that is the decision, the contractor can file a reverse-FOIA suit. This nondisclosure rule does not apply in sealed bidding, in which public bid opening is mandated by statute.

Vern, I understand the background and reasons for the exclusion. However, this is now being interpreted to the extreme to the point where it is just a croc. This is a grounds maintenance contract.

I may have missed it, but did anyone look at the reason the KO gave not to reveal the price? Brian said only that the KO referred to "FAR 24.202", with no apparent further explanation other than the price is part of a proposal, thus cannot be revealed. He later said that she also refuses to name the winner. Both of those practices are contrary to the requirement where there is a debriefing, to provide the overall price and name of the winner, unless there is some other reason provided. She apparently didn't (from the info presented) explain why the contract price would reveal any proprietary information other than it is part of a proposal, so is not releasable. I don't think that one can use 24.202 (a) as justification not to name the contractor or reveal the price because those items are obviously prime features incorporated into the contract. She didn't explain why 24.203 ( would apply, either. That refers to a price breakdown or some other info used to evaluate the reasonableness of the price, not the overall contract price itself.

Everyone seems to have jumped into this specific case as though the unit prices are to be held tight, perhaps because they will automatically reveal proprietary information. I've dealt with construction and other public works repair and maintenance contracts for 30 years that contain unit prices and it would be extremely rare where the unit prices would reveal such info. I've also evaluated a couple of service contracts for grounds maintenance on civil works sites and nobody ever objected to releasing the contract prices.

You may say, yes but many of those (not all) were IFB where the information is public by law. Well, IFB, RFP, Part 13 doesn't seem to make a difference here as price alone was evaluated and it appears to be a routine contract, not unlike those that are publicly bid all over the US.

Hell, there are reporting services that have been publishing unit prices on public works projects for at least 38 years (I didn't read any before 1971). I used to subscribe to a few of them. That is how we used to budget for our new projects and we used the data in developing our owner and government cost/price estimates.

Brian said that they wont even name the awardee. This whole thing looks fishy to me. Maybe it is a secret contract at Camp David or something and Edward or Sweeny will do the work.

Joel,

We had a publishing company that received the whole contract, unit prices and everything else, just by asking at FT. Benning until shortly before I reported there in 2005. They stopped releasing that information after the Army lost a lawsuit from a contractor who was "harmed" by the release of his unit prices and several other management concepts which were used by a competing contractor in the generation of his competing proposal for a follow-on contract.

It was for an equally common type of service as ground maintenance, so I can see that in some cases even a grounds maintenance contractor might want to protect his unit prices, as it might suggest to a competitor how to beat him or her in the future.

I agree that a failure to release the name of the contractor appears to be overly restrictive, but I don't know the specifics well enough to say its a violation of the FAR.

.

I find this discussion interesting - its more like the old WIFCON, before the switch over to the new format. Maybe it's just me, but I think that the debates aren't as lively as they used to be.

I really appreciate all of the feedback, particularly the exploration of aspects that I'd never considered.

So, this discussion is on two levels -

my individual whining about how life is unfair is on one level, and the bigger picture about what the FAR and the courts actually say about releasing or withholding pricing information is on the other level. This second level of discussion does not depend on the particulars of my case.

........

I am selfishly more interested in finding out if I lost out to someone with an improper competitive advantage, such as a business run by the CO's husband, for example. And if so, was his price higher than mine ?

I know that the protocols here say we don't get too deep into the particulars of a specific situation. This is a forum for intellectual exchange, not for pointing fingers or embarrassing individuals.

If it would help, I could provide specifics of the solicitation. But I think that could effectively identify the post and CO involved, even if I deleted their names and address, due to the unique aspects of the required grounds maintenance services. I think I can safely say that the requirement is for picking up and disposing of an unusual form of debris/ trash under conditions that require special safety precautions, protective equipment and security clearances. It was not SECRET; it was posted at the Army's asfi website.

I could also provide the text of the Government's email to me saying that they would not release either the award price or the winner's name. That would not identify the Government people involved.

Please let me know if that would help.

.

Jeez, now we have a trickle of "the rest of the story". I withdraw, since you are now feeding us bits and pieces of "the unique" nature of the contract.

Sorry, I should have given the KO the benefit of the doubt here. She may be wrong but it now looks like there is much more to this than initially presented.

Had this been a routine grounds maintenance contract, I would find it hard to believe that pricing, which consists of one line item and no technical proposal, would reveal proprietary secrets, given the original scenario presented. The purported reason given for not releasing the contract price did not fit the seemingly simple scenario. No wonder this looked (and smelled) fishy.

Vern - My responses.

How, exactly, are those different? Both quote FAR 15.506(d). You may read them as quoting FAR 15.506(d) but I do not. They may read close to each other but there are subtle differences. More importantly they are in fact separate FAR provisions and statements of the FAR. I do not believe you could read FAR 52.215-1 or for that matter FAR 15.506(d) into the solicitation they must be there. I say this noting the further information now provided by Brian where I have assumed that 52.212-1 was or should have been in the solicitation.

Where, exactly, are the inconsistencies between FAR Part 12 and FAR Part 15 when it comes to debriefings? I find no reference in FAR Part 12 to FAR Part 24. I see this as an inconsistency therefore FAR Part 12 takes precedence.

Not stipulated? What do you think FAR 52.215(f)(11) is saying? I do not care what FAR 52.215(f)(11) says nor do I think I would need to. Based on my position and my assumption that as a commercial item 52.212-1 is in the solicitation I only care about the Part 12 provision and it application or lack therefore as provided for in FAR Part 12. If the Part 15 provision was in the solicitation then I would care about it and its application as provided for in FAR Part 15.

Do you say that 15.506(e) does not apply to acquisitions of commercial items? If so, on the basis of what FAR text? Yes. FAR Part 12.

Do you think that contracting officers must release trade secrets or confidential manufacturing processes and techniques when giving debriefings in commercial item acquisitions? Yes, unless a contractor claims Exemption 4 and it is then determined that Exemption 4 applies. I question whether Exemption 4 would when applying the full context of the process of FOIA. Until proven otherwise in a court I will stand on that opinion noting specifically that I do not believe the courts have addressed the matter of Exemption 4 when it comes to commerical item acquisiton contract line items.

Do you think that they must release the names of individuals providing reference information about an offeror's past performance during a debriefing in a commercial items acquisition? Who cares? This not applicable to my comments/opinions on release of the contract pricing info.

Do you think that 10 U.S.C. 2305(g) and 41 U.S.C. 254b(d)(2)? do not apply to commercial item acquisitions? I do not. What I have said is that I believe there is a higher standard for claiming Exemption 4 for a FAR Part 12 procurement.

Thank you for the reference on the debriefing.

Carl,

I am frankly astonished by your last post. You are so wrong, and so obviously wrong, that I see no point in continuing a dialogue with you about this matter. When FAR 12.102? says that procurements of commercial items are subject to the policies in other parts of the FAR unless those policies are inconsistent with Part 12, it is nutty for you to say that failure of FAR Part 12 to mention another part gives creates an inconsistency with that part. If we were to follow FAR 12.102? and your logic, we would have to believe that Part 12 must restate every policy in every other part.

I will let the readers look at what we have said and at FAR and make up their own minds.

Sorry.

Vern

Vern ? In spite of our protracted discussion of FAR Part 12, which like you I will leave to others to judge, I do believe it is important return to the primary implied question of the initial post and that being whether it is appropriate for a CO to apply FAR Part 24.2, independently, without due process and benefit of legal counsel? I do not, do you?

Exemption 4 does apply to contract line item unit prices. However, the determination to release or not depends on a detailed application of case law and legal principle based on the submitter's ability to support that requested information is trade secrets; and information that is commercial or financial, and obtained from a person, and privileged or confidential. Having a CO make this determination on a request for contract pricing debriefing on the specific matters of "trade secret" and "privileged or confidential" outside the appropriate processes of FOIA is something I would not recommend. I note this especially when it comes to a commercial item acquisition, as the very nature of such an acquisition raises the many legal questions related to Exemption 4 most specifically whether information provided by the submitter in response to the Government solicitation is, or is not, equal to information that the submitter would customarily provide to the public. Rather than a CO making such an independent decision I would highly recommend that the CO refer any such matter to appropriate legal counsel, and also equally suggest that any requester seeking such information submit as a specific FOIA request.

In my view failure to release information that can be, is an injustice equal to releasing information that should not be.

Carl

Carl,

What basis do you have for the response below?:

Questions:Do you think that contracting officers must release trade secrets or confidential manufacturing processes and techniques when giving debriefings in commercial item acquisitions?

Your answer: Yes, unless a contractor claims Exemption 4 and it is then determined that Exemption 4 applies.

Are you really saying that the debrief MUST divulge trade secrets (and) or confidential manufacturing processes and techniques UNLESS the contractor specifically says no in this specific instance?

I read the law as it is impermissible for the U.S. Government to release trade secrets and confidential information obtained from contractors without specific authority. I do not see that a debriefing of a competitor's proposal equates to that specific authority. Your position that it IS that specific authority is puzzling to me, as it means that a contractor who has provided trade secrets or confidential information to the Government must repeatedly state its right every time we do a debrief in order to protect its information.

Do you really mean to say that?

Carl,

I do not believe that FAR 24.202 protects contract prices from disclosure, whether overall prices or unit prices. FAR 24.202 is not the issue with respect to disclosure of prices. The issue is the case law of the DC Circuit.

The DC Circuit has held that "constituent" or "line item" prices (not just line item "unit" prices) are protected under certain circumstances.

We reaffirm today what we have held twice before: Constituent or line-item pricing information in a Government contract falls within Exemption 4 of the FOIA if its disclosure would "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." Nat'l Parks, 498 F.2d at 770.

Canadian Commercial Corp. and Orenda Aerospace Corp. v. U.S., 514 F.3d 37, at 40.

Now, you say:

Having a CO make this determination on a request for contract pricing debriefing on the specific matters of "trade secret" and "privileged or confidential" outside the appropriate processes of FOIA is something I would not recommend.

I say that if a CO is asked for consitutent or line item prices during a debriefing she faces a dilemma. If she releases it, and it turns out to have been protected, then there will be a problem. In my opinion, she would be a fool to release the information on her own initiative. In my opinion, the proper thing for her to do would be to explain to the loser that such information has been found to be protected under some circumstances, that she is not sure whether those circumstance exist in the case in question, but that prudence dictates that she not disclose the information until there has been a formal determination in accordance with the agency's FOIA procedures. She should then tell the loser that if it wants the prices it must submit a FOIA request in accordance with the agency's FOIA procedures. She should provide the loser with a copy of those procedures, and assure the loser of prompt handling of any request received.

You think that there is less ground for protection in a procurement of commercial items. I say that there are greater grounds. Joel thinks that grounds maintenance is too prosaic a service to justify trade secret protection of prices in a private transaction. I say that he has stated no rational basis for that position.

I say again that your interpretation of FAR Part 12, as stated in your earlier post of today, is fundamentally unsound, and an excellent example of how not to read a regulation. I'm astonished to get such a reading from someone as knowledgeable as you.

dwgerard - Good point and as clarification no I would not without the specific authority that you refer to.

I have to take some exception to Don's assertions regarding line item pricing. The court has never held that such pricing is automatically exempt from disclosure. Instead, its position is summarized in this extract from the CCC decision

We reaffirm today what we have held twice before:

Constituent or line-item pricing information in a Government

contract falls within Exemption 4 of the FOIA if its disclosure

would ?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.?

Thus, before line item pricing can be withheld, the government must determine that one of these two results will occur. Similarly, in a reverse FOIA action, the party seeking to enjoin release has the burden of proof in regard to making one of these showings.

As for Carl's idea about a protest, what is to be protested? Look at the GAO protest regs to determine what can be protested. I don't see where a contracting officer's failure to disclose this information is protestable to the GAO.

I agree. I didn't mean to imply that line-item pricing falls within Exemption 4 per se.

Vern Edwards: "You think that there is less ground for protection in a procurement of commercial items. I say that there are greater grounds. Joel thinks that grounds maintenance is too prosaic a service to justify trade secret protection of prices in a private transaction. I say that he has stated no rational basis for that position."

I said that I understand the legal basis for withholding price details. I did say that I doubt that there are any trade secrets. I also said that the government never said that there were any trade secrets. If there are, then the government should determine whether or not there are and ought to provide a reasonable explanation why it wont even identify the contract price. That is not an unreasonable public request. The FAR says to provide the evaluated award price (and to identify the winner) in a debriefing, if given. Its an awfully big stretch to go from protecting trade secrets to keeping the award price secret.

What is funny to me at this point is how nobody here seems to have examined the reasons the KO provided for withholding the contract price. To say that the price is part of the proposal, thus protected, is goofy, when the FAR says to disclose it when debriefing unsuccessful offerors.. The FAR citation she provided (24.202) doesn't make sense to me. Paragraph (a) isn't applicable. If she means that the price is part of the proposal, so cant be disclosed, that contradicts the debriefing requirements to identify the contract award price. Paragraph (bee) doesnt apply because the contract price wasn't obtained pursuant to 15.403-3(bee). Paragraph (cee) doesnt apply either. No reason was given for not identifying the winner.

The goofy excuses that the KO provided don't make any sense at all, based upon the scenario outlined. As it turns out, there is more to the story that the questioner started trickling out yesterday. So, who knows what the real reason is? Ok, experts, please tell me what she meant and why she refused to disclose the price and winner's name, base on the information Brian provided. Please explain where she indicated that the price is a trade secret or otherwise would harm either the government or the contractor.

.

apologies to all, especially to Joel, for dribbling out bits of information. My intention was to not give out so much information that the CO involved, who I felt had made an incorrect decision, would be readily identifiable.

I asked the CO I disagreed with for contact info for her Small Biz liaison, and she gave me email addresses for her boss and the SB person.

Today, her boss emailed me. She didn't understand why I was so put out - all I had to do was to ask her for the information.

She told me how many offers, who won, and at what price. Turns out my estimate of the level of effort was way, way high. I figured almost 4 FTE's, and the PO was awarded for under $25K. With my cost structure, which I think is lean, that wouldn't have covered even 1 FTE, with the costs for labor overhead, equipment and materials factored in.

The separate discussion on releasing prices has made me think.

.

What is funny to me at this point is how nobody here seems to have examined the reasons the KO provided for withholding the contract price. To say that the price is part of the proposal, thus protected, is goofy, when the FAR says to disclose it when debriefing unsuccessful offerors.. The FAR citation she provided (24.202) doesn't make sense to me. Paragraph (a) isn't applicable. If she means that the price is part of the proposal, so cant be disclosed, that contradicts the debriefing requirements to identify the contract award price. Paragraph (bee) doesnt apply because the contract price wasn't obtained pursuant to 15.403-3(bee). Paragraph (cee) doesnt apply either. No reason was given for not identifying the winner.

The goofy excuses that the KO provided don't make any sense at all, based upon the scenario outlined. As it turns out, there is more to the story that the questioner started trickling out yesterday. So, who knows what the real reason is? Ok, experts, please tell me what she meant and why she refused to disclose the price and winner's name, base on the information Brian provided. Please explain where she indicated that the price is a trade secret or otherwise would harm either the government or the contractor.

I don't know what that contracting officer meant, and I don't care why she refused to disclose the price. My point is that a circuit court of appeals has ruled on several occasions that prices can be protected information that should not be released. In light of those decisions, no contracting officer should release such information until he or she has checked with their FOIA advisor. Those of you who have claimed that commercial items are in some kind of special category in this regard, or that grounds maintenance prices cannot be trade secrets, and that it is ridiculous to refuse to release prices, do not know what you're talking about and should be ignored. The Department of Justice has issued extensive guidance about what should be done prior to the release of possibly protected information, and that guidance is consistent with what I have been saying. See http://www.usdoj.gov/oip/foiapost/2005foiapost17.htm. That guidance spells out extensive steps to be taken prior to releasing such information:

[A]gencies are best advised to take the following steps whenever they receive a FOIA request that encompasses unit prices. First, they should continue the sound administrative practice of providing notice to the submitter in accordance with the requirements of Executive Order 12,600, 3 C.F.R. 235 (1988), reprinted in 5 U.S.C. ? 552 note (2000), and in FOIA Update, Vol. VIII, No. 2, at 2-3; see also FOIA Update, Vol. VIII, No. 2, at 1, in order to obtain, in a timely fashion, any objection to disclosure. See FOIA Post, "Treatment of Unit Prices Under Exemption 4" (posted 5/29/02) (describing submitter-notice process).

Second, they should conduct a thorough competitive harm analysis, see id., always keeping in mind that it is the opponent of disclosure that bears the burden of proof, accord Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 342 (D.C. Cir. 1989) (explaining that "the statutory policy favoring disclosure requires that the opponent of disclosure" bear the burden of persuasion). For example, in ruling in the agency's favor on the "over and above" prices in McDonnell Douglas v. Air Force, the D.C. Circuit held that "the agency reasonably concluded [that] McDonnell Douglas failed to carry its burden of showing [that] release of the ['over and above' prices] was likely to cause it substantial competitive harm." 375 F.3d at 1192. This allocation of burden thus is a significant aspect of the process.

Third, after performing a thorough analysis of the specific arguments presented by the submitter, and upon a determination that release is required, an agency then should clearly set forth its analysis and the rationale for its decision in the administrative record. As is clear from both McDonnell Douglas decisions, the single most important thing that an agency can do to prepare its disclosure decision for possible judicial review is to create an adequate administrative record. Of necessity, that means precisely tailoring its decision letter to the facts of the case and to the specific objections that are made by the submitter within the time period allowed. In creating such a record there are several key elements that an agency should be sure to include.

Any advice to a CO to simply release constituent and line item pricing information during a debriefing for the reasons that you and Carl have given is reckless and should be ignored.

I don't know what that contracting officer meant, and I don't care why she refused to disclose the price. My point is that a circuit court of appeals has ruled on several occasions that prices can be protected information that should not be released. In light of those decisions, no contracting officer should release such information until he or she has checked with their FOIA advisor. Those of you who have claimed that commercial items are in some kind of special category in this regard, or that grounds maintenance prices cannot be trade secrets, and that it is ridiculous to refuse to release prices, do not know what you're talking about and should be ignored. The Department of Justice has issued extensive guidance about what should be done prior to the release of possibly protected information, and that guidance is consistent with what I have been saying. See http://www.usdoj.gov/oip/foiapost/2005foiapost17.htm. That guidance spells out extensive steps to be taken prior to releasing such information:

Any advice to a CO to simply release constituent and line item pricing information during a debriefing for the reasons that you and Carl have given is reckless and should be ignored.

If I follow you, Vern, I think you are suggesting that, in any debriefing for an acquisition where there is only one line item, the CO should not give the award price until a FOIA request is fully processed.

But I didn't see anybody present an argument why a CO might not tell who won the contract.

.

brian:

That would be my advice, unless the award was made through sealed bidding, in which case I think that there is no question that the prices can and will be revealed upon request. Of course, a CO might say in the solicitation that the government intends to release the price(s) of the winner during postaward debriefings and upon request and that competitors must submit their quotes or offers based on that understanding.

I see no reason for refusing to disclose the name of the winner.

Vern - So you would not release the contract price if the one line item price is based on catalog price? Also what if it was based on market prices?

brian:

That would be my advice, unless the award was made through sealed bidding, in which case I think that there is no question that the prices can and will be revealed upon request. Of course, a CO might say in the solicitation that the government intends to release the price(s) of the winner during postaward debriefings and upon request and that competitors must submit their quotes or offers based on that understanding.

I see no reason for refusing to disclose the name of the winner.

Why would the CO have to make a statement that they intend to release the total contract price of the winning offer when that statement is contained in 52.212-1(l) or 52.215-1(f)(11)?

I understand not releasing line item pricing. In a purchase order with only one line item wouldn?t it be the responsibility of the offeror to identify this information as proprietary or a trade secret during the solicitation process since they are told that if they are successful this information will be given during a debriefing?

Bremen,

The difference is the solicitation anticipates only one line item. The suggestion is to notify offerors in the solicitation that unit prices may be released and that is understood as a condition of responding.

CORRECTED POST

Vern - So you would not release the contract price if the solicitation method was conducted under FAR Part 12 (RFQ, IFB or RFP) and the one line item price is based on catalog price? Also what if it was based on market prices?

bremen:

FAR 52.212-1 and 52.215-1 say that the government will release "the overall evaluated cost or price." The problem is that the courts have raised a red flag to the effect that "constituent" or "line item" prices may be protected. If there is only one line item, and if the unit and quantity are known, then the overall price will reveal constituent or line item prices. In my opinion, if the CO plans to release constituent or line item price information he must put the offerors on notice of his intention and give them an opportunity to object.

carl:

I would not release a constituent or line item price that is "based on" a catalog or market price, because it might include an unpublished discount that the seller does not want disclosed to its competitors. I'm telling you again: commercial prices are not necessarily public prices. They may be confidential between seller and buyer. Really, Carl, that should be obvious to an experienced buyer or seller.

As for prices obtained through sealed bidding, I think the prices are public by statute and there is no issue.

Vern - Your most recent post regarding adding wording to a solicitation is sound business to me.

Clearly I am having a very hard time in making the connection you want to by applying FAR Part 15 to FAR Part 12 Commercial Item Acquisition when a FAR Part 12 solicitation has absolutely no reference, inclusive of provisions and clauses to FAR Part 15. The same applies to applying FAR Part 24 but I can get to the Exemption 4 matter through FOIA.

My problem I realize but I belieive I have presented what I believe to be good arguement even though you may characterize my offerings ( and I guess me) as being wacko and reckless. One of my cherished mentors from years ago that was active in the matter of creating FAR 12 might disagree with you as my intent is to support the Part's original intent. Someday maybe I will get motivated enough to post either anyother thread on the matter or even a blog but at this point I will simply leave the discussion for what it is worth.

Carl

"Those of you who have claimed that commercial items are in some kind of special category in this regard, or that grounds maintenance prices cannot be trade secrets, and that it is ridiculous to refuse to release prices, do not know what you're talking about and should be ignored.

The Department of Justice has issued extensive guidance about what should be done prior to the release of possibly protected information, and that guidance is consistent with what I have been saying. See http://www.usdoj.gov/oip/foiapost/2005foiapost17.htm. That guidance spells out extensive steps to be taken prior to releasing such information:"

Vern, please quit stating that I have claimed that grounds maintenance prices cannot be trade secrets. I never said that and in fact told you that. I said that I doubt if they would be and further that nobody said that they were.

By the way, the guidance that you refer to is for steps to take in the event of a FOIA request for release of "such information". I dont think that Brian ever mentioned a FOIA request. Being that the Solicitation provision states that, in the event of a debriefing, the overall price will be disclosed, I would think that an offeror would have to put the government on notice that the contract price cannot be disclosed in a debriefing.

Carl:

You have not presented a good argument. FAR Part 15 and FAR Part 24 apply to procurements under FAR Part 12 pursuant to the express terms of FAR Part 12. I have pointed that out to you several times now. I'm sorry if you can't get it. As for your cherished mentor, I don't care what he or she might think about this. I care only about what FAR says and what the courts say.

Joel:

Vern, please quit stating that I have claimed that grounds maintenance prices cannot be trade secrets.

You took such a strong position against the idea that grounds maintenance prices might be trade secrets, with no explanation whatsover, that it amounted to an absolute denial. So I won't stop saying it until you admit that you have stated no grounds for your position.

My read of the DC Circuit's decisions is that the overall price must not be disclosed if such disclosure would reveal constituent or line item prices that warrant protection. The contracting officer cannot know whether they warrant protection without consulting the winner. That's my stand. A CO should not release such a price without first contacting the winner.

Vern, the title of the thread refers to a FOIA request, which I obviously overlooked. Since the request for the info is a FOIA request, I agree that the KO should follow the outlined procedure you refer to. It is unbelievable that someone who expended the time and cost to participate in a competition had to resort to a FOIA request to find out who won a $25,000 lawn maintenance contract and what the price was.

Apparently the KO's boss eventually agreed with Brian, provided the answer and said "all you had to do was ask"...

Apparently the KO's boss eventually agreed with Brian, provided the answer and said "all you had to do was ask"...

Joel:

Brian's story about what happened to him is irrelevant, as is what is unbelievable to you. You don't know why the CO refused to release the information, and you don't know why the CO's boss eventually released it. I draw no conclusions from that story.

What is relevant is that, FAR notwithstanding, federal courts have found that some pricing information is protected in some circumstances and that release of the information in those circumstances is improper. FAR 15.506(d)(2) says to release the "overall" price, including "unit prices." FAR 15.506(e) says not to release trade secrets or commercial and financial information that is "privileged." FAR 52.212-1 and 52.215-1 say that the government will release "overall" prices, but make no mention of unit prices. Those provisions are as clear as mud. FAR says many things that the courts have declared to be wrong, and part of being a professional is being sufficiently up to speed to know when the courts have done so. Informed persons know that releasing "constituent" and "line item" prices is wrong in some cases and would violate the Trade Secrets Act.

I don't like the idea that the prices in government contracts may have to be withheld from the public. Years ago, at this website, I urged that Congress enact a law to the effect that all government contract prices are public information, except in the case of classified contracts. In the absence of such a law, you, Carl, and everybody else must accept the reality that the courts will protect some prices. (Your notion that prices might be protected from a FOIA request, but must be released during a debriefing, is absurd.)

Every contracting officer must understand that in some circumstances it is necessary to check with the winner before releasing its prices during a debriefing, notwithstanding the instructions in FAR Subpart 15.5 and personal opinions about what the public is entitled to know. COs who do not understand that, and who do not act accordingly, might be in for an unpleasant surprise. It shouldn't be that way, but it is. Your outrage at this situation, while perhaps understandable, is beside the point. Fools walk in...

COs should seek legal advice before releasing constituent or line item prices during a debriefing. If a contract contains two or more line items, then I see no problem with releasing the "overall" sum of line item prices. But if a contract contains only one line item, and if releasing the total line item price would enable others to ascertain the line item unit price, then the contracting officer should, in my opinion, refuse to release the price without the winner's concurrence, unless instructed to do so by higher authority. He or she should, instead, advise the firm being debriefed to submit a FOIA request, and explain why that must be the case despite the FAR debriefing provisions. FOIA requests should be processed in accordance with agency regulations.

Vern, ok, I agree that case law will go beyond the wording in the FAR. I'm trying to make that point elsewhere but some are hung up on literal reading of FAR.

I think that the courts may have gone too far, tipping the balance against the interest of the public in favor of firms that simply want a competitive advantage for the next or follow-on contract, but so be it. It would seem pretty easy to claim "competitive harm" to keep anyone else from knowing the contract price, simply because there is a unit price. It would seem that the firm should have to show that someone can deduce the elements of internal company finances to demonstrate competitive harm.

About 5 years ago, a contracting officer in my office awarded a contract for commercial services. Subsequent to award, an unsuccessful offeror, the incumbent, requested under FOIA release of the contract unit prices. As was the case in my agency, we notified the contractor whose pricing information was identified in the request. The contractor objected to its release asserting that it would reveal their confidential ?business strategy?.

Notwithstanding the assertion I was prepared to release the information based upon my knowledge of, and my experience with, FAR and FOIA. My attorney, and his boss, objected stating that their readings of court decisions supported the contractor?s assertion. The contractor hired a K street attorney to argue against release.

One thing led to another; the issue wound up at the Justice Department. The Justice Department attorney ruled that the unit prices could not be released based upon his interpretation of the court cases. I huffed and puffed. I employed some of the same ?logical? arguments I have seen in this thread. I even stated that I would use sealed bidding in the future to eliminate ?secrecy? in contracting.

All to no avail. He told me to read the court cases and get over it.

Until the court changes its mind or the Congress passes some legislation, I believe you cannot assume that contract pricing information, even commercial contract pricing, is releasable

I used to be completely against withholding unit pricing information but I learned a lot since then. It's pretty easy for a company to find a lot about their competitors from unit pricing, especially with services. Companies share essentially the same labor pool. Everyone knows the going rate for a given labor category. Employees come and go and employers find out from exiting employees that it's often for "X more dollars that what I make now?. Similarly employers know what a potential hire makes when they offer more.

Given that competitors share a common knowledge on what everyone gets paid, unit pricing information shows the "wrap rate" or the "weighted rates." That's the compound effect of taking fringe benefits, overhead, G&A, and profit. While the identity of the individual components is not known, the bottom line effect is. Once a competitor?s wrap rate is known, it's easy to compute what they will propose the next time (assuming the competitor doesn't want to take a loss on a job or make a greater profit). As a submitter of data, I don?t what this disclosed and expect the government to protest my sensitive pricing from my competitors.

One argument for non disclosure is protecting the integrity and openness of the procurement process. But most procurements now, at least for the more significant ones, are done with price/cost being a small piece of the selection decision. So finding out pricing is just a small part of the source selection decision process. Besides, it usually is possible to provide the total contract amount without disclosing unit pricing.

So I changed my mind. If disclose of unit pricing also divulges trade secrets, it needs protection. Of course that places a greater burden on COs and adds time when a competitor wants to find out why they lost. If factors other than price are not important, the CO can use sealed bidding. That alerts sources than unit prices will be public information and offerors can decide to propose or not.

What is more commercial, grounds maintenance or vehicle leasing? See this article I found on one of Bob's blogs:

http://www.law.com/jsp/ihc/PubArticleIHC.j...d=1202429255150.

From the cited article's description of the Army FOIA court ruling that line item pricing should be released:

"....[C]ontrary to its actions regarding his client's FOIA request, the Army had previously made Southern Coach's leasing contract, including its rates, available in response to a similar FOIA request by another competitor. Hecht said his client "had no problem" with that. But, the lawyer added, Southern Coach expects equal treatment regarding its own request for what should be a public record."