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USING FOIA TO IMPROVE YOUR PROPOSALS

USING FOIA TO IMPROVE YOUR PROPOSALS

BackGround

Today, we will be discussing the Freedom of Information Act. If you want to improve your proposals, consider using this technique.  The Freedom of Information Act, otherwise known as FOIA, allows individuals to request federal agency records or information.  However,  there are exceptions, nine in fact, and three special law enforcement record exclusions.  We will go through the list of exemptions and exclusions for your benefit.  Remember, the more educated you are,  the better your FOIA requests will be.

Exemptions

Below are the list of the nine exemption categories that allow the government to withhold information:

  1. Classified information for national defense or foreign policy is the first item.
  2. Internal personnel rules and practices is the second item.
  3. Information that is exempt under other laws is the third item.
  4. Trade secrets and confidential business information is the fourth item.
  5. Inter-agency or intra-agency memoranda or letters that are protected by legal privileges is the fifth item.
  6. Personnel and medical files is the six item.
  7. Law enforcement records or information is the seventh item.
  8. Information concerning bank supervision is the eighth item.
  9. Geological and geophysical information is the ninth item.

Exclusions

Congress has granted special protection for three narrow categories of law enforcement and national security records.  They are:

  1. Protects an ongoing criminal law enforcement investigation when the subject of the investigation is unaware and if subject could reasonably be expected to interfere with proceedings.
  2. Criminal law enforcement agencies can protect the existence of informant records when the informant’s status has not been officially confirmed.
  3. The FBI exclusion protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of these records are classified.

Note:

In addition, FOIA applies only to federal agencies and does not create a right of access to records held by Congress, the courts, or by state or local government agencies.

Also, FOIA does not require agencies to do research for you.  Neither does it require the agency to answer written questions, or in any other way create records such as lists or statistics in order to respond to a request.

What information can you request on a specific government contract or contract related documents?

Let’s first start by discussing why you would want to request contract information.   Individuals requesting contract information usually want to receive  material that will help them understand the process that led to the contract award or to improve their own methods of drafting proposals. Hopefully, by understanding how the government reviews proposals you will be able to improve your proposals.

However, if you request information contained a proposal the federal agency will ask the proposal owner for advice concerning any commercial information that may be contained in the proposal.  If the agency agrees with the proposal owner they will redact that information prior to it being released to you.

Technical Proposals

For your information, the Agency cannot release an unsuccessful Technical Proposal or a Successful Technical Proposal that has not been incorporated into a final award document.  Federal Law prohibits agencies from releasing Technical Proposals that have not been incorporated into a final contract.  For more information 41 U.S.C. §253b(m).

Requests for contracts

If you request a copy of an awarded contract into which a proposal has not been incorporated, the Agency will redact any pricing information or other information that could cause commercial harm to the contractor.

Please note, the agency will explain any redacted information to you.

In particular, a contractor who wants to request another contractor’s information to use in an upcoming bid/proposal, be aware that some pieces of contract records cannot be released.   However, it is best to ask for everything and let the agency make the determination.

How to Make A FOIA Request?

Before making your FOIA request review the agencies website to see if the information is already publicly available.  There is a ton of information already available on each agency’s websites.

If the information you are seeking is not publicly available to you, you can submit a FOIA request through the agency’s FOIA Office.  Most agencies will allow you to submit a FOIA request electronically, including by web form, email or fax.  There is not a specific form that is required!  That is great news.

What Can I ask For?

You can request any agency record.  You must specify the format in which you wish to receive the records (ex, printed or electronic). FOIA does not require agencies to create new records or to conduct research, analyze data or answer questions when responding to requests.

Response Time

Agencies process requests for information in the order of receipt.  The time it takes to respond to a request will vary depending on the complexity of the request and any backlog of requests already pending with the agency.  The agency can process simply requests faster.  Complex requests may take longer.  Generally, the agency has 20 working days to respond to your FOIA unless they ask for an extension.

Fees

Unfortunately, FOIA request does cost money. The agency will calculate the search and review costs upon the pay scale of the person conducting the search or review.  The agency will charge for documents released in full or denied in part.

When making your FOIA request you will have to agree to pay all applicable fees up to $25.00 unless a fee waiver has been granted. Consequently, if the agency estimates the costs to be in excess of $25.00 they will notify you.

Conclusion

Above all, we want you to become a successful contractor and have worked hard to provide you with quality information.  Many companies use a FOIA request to enhance their proposal process or gather insight on how the government determines winning bids.  Either way it is an option  available to you.

As always, we hope you enjoyed today’s article. For more articles.

 

 

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