After many years of contentious disputes between agencies and federal contractors over the FOIA disclosability of unit prices in awarded government contracts, the recent rewrite of Part 15 of the Federal Acquisition Regulation (FAR) -- the governmentwide regulation that governs agency contracting -- should soon put this issue to rest.
On September 30, after public notice and comment, the Civilian Agency Acquisition
Council and the Defense Acquisition Regulations
Council issued a final rule revising Part 15 of the FAR. Critical revisions
of two sections now make clear that the unit prices of each
award are to be disclosed to unsuccessful offerors during the postaward notice
and debriefing process and, most significantly, are also to
be made publicly available upon request. 62 Fed. Reg. 51,224, 51,254, 51,255
(1997) (to be codified at 48 C.F.R.
Part 15 of the FAR has always contained a provision
requiring agencies to disclose (with some exceptions) the unit prices of successful
offerors to unsuccessful offerors during the postaward notification process for negotiated
contracts. See 48 C.F.R.
Nevertheless, over the years, numerous "reverse" FOIA cases have been brought by submitters who have challenged agency decisions to disclose unit prices, and agencies have been forced to litigate this issue time and again. The FAR rewrite should remedy that problem.
The newly issued FAR provisions expressly require disclosure of unit prices in both the postaward notice to and debriefing of unsuccessful offerors. Although there is an exception to that requirement for the postaward notice if "the number of items or other factors makes listing any stated unit prices impracticable," the FAR now expressly limits that exception to what is required to be included in the contents of the postaward notice itself. 62 Fed. Reg. at 51,254. Further, an entirely new provision has been added to the FAR to specifically provide that "the items, quantities, and any stated unit prices of each award shall be made publicly available, upon request." Id. Thus, even if it is impracticable to include voluminous unit prices in a postaward notice itself, once such information is requested, the agency now must make it publicly available.
In addition to these changes made to the postaward notice section, the FAR rewrite also changes the section specifying the information that is required to be disclosed during postaward debriefings of offerors. Id. at 51,255. The debriefing provision now explicitly provides that during a debriefing the "overall evaluated cost or price (including unit prices)" shall be furnished the debriefed offeror.
Thus, unsuccessful offerors (who frequently request pricing information concerning successful contractors) now will have two distinct avenues open to them to obtain unit price information as part of the contracting process itself -- i.e., through the postaward notice or a postaward debriefing. Most significantly, the unsuccessful offeror (or, for that matter, any member of the public) can request such information, and the FAR directs that it shall be made "publicly available." As the D.C. Circuit Court of Appeals has recognized, "[t]o the extent that any data requested under [the] FOIA are in the public domain, the submitter is unable to make any claim to confidentiality -- a sine qua non of Exemption 4." CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987).
As a result of the FAR's new express authorization to publicly release "items,
quantities, and any stated unit prices of each award" upon
request, agencies will no longer have to go through the oftentimes-cumbersome process
of giving submitter notice prior to disclosing unit
prices in response to a FOIA request. Exec. Order No. 12,600,
These new FAR provisions (which were developed by OIP Senior Counsel Melanie Ann Pustay) become mandatory for contracts solicited after January 1, 1998, regarding which submitter notice will no longer be required.
This issue of FOIA Update contains a cumulative index covering Volumes I through XVIII of its publication, from 1979 through 1997.
Go to: FOIA Update Home Page