Freedom of Information Act (FOIA) in Procurement

The Freedom of Information Act (FOIA), codified at 5 U.S.C. 552, establishes the public's right to request access to records held by federal executive branch agencies. In the procurement context, FOIA applies to a wide range of documents: solicitations, award notices, contract modifications, agency evaluation reports, audit results, and correspondence related to contract administration. Any person - including competing contractors, journalists, advocacy organizations, and foreign nationals - may submit a FOIA request for procurement records. Contractors must understand both what the government may disclose and how to protect genuinely proprietary information from disclosure when they submit proposals and perform contracts.

What is FOIA in the procurement context?

FOIA establishes a default rule of disclosure: agencies must release requested records unless a specific statutory exemption applies. The nine FOIA exemptions most relevant to procurement are Exemption 3 (records protected by other statutes, such as source selection information protected under 41 U.S.C. 2102), Exemption 4 (trade secrets and commercial or financial information obtained from a person that is privileged or confidential), and Exemption 5 (intra-agency or inter-agency deliberative process communications, attorney-client privileged materials, and attorney work product).

Exemption 4 is the primary shield for contractor proprietary information. Under the Supreme Court's decision in Food Marketing Institute v. Argus Leader Media (2019), information is "confidential" under Exemption 4 if it is customarily and actually treated as private by the person who provided it. Contractors seeking Exemption 4 protection for proposal pricing, cost breakdowns, proprietary technical data, or trade secrets should mark such information clearly as "Proprietary" or "Confidential" when submitted to the government and should notify the agency in writing if a FOIA request for that information is received.

FAR 24.202 and the Trade Secrets Act (18 U.S.C. 1905) impose obligations on agency personnel not to disclose contractor trade secrets and confidential commercial information received in the course of federal employment. The agency's FOIA officer is required by Executive Order 12600 to notify submitters of confidential business information when a FOIA request is received for that information, giving the submitter an opportunity to object before disclosure.

Source selection information - defined in 41 U.S.C. 2101 and FAR 2.101 to include bid prices, source selection plans, technical evaluation rankings, and competitive range determinations - is protected both by FOIA Exemption 3 (through the procurement integrity statute) and by criminal penalties under 41 U.S.C. 2102 for unauthorized disclosure.

Why it matters for contractors

Contractors interact with FOIA in two distinct ways. As submitters, they risk disclosure of proposal information, cost data, and technical approaches if they have not clearly marked and documented the proprietary nature of that information at submission. As requesters, they may use FOIA strategically to obtain competitor contract awards, agency audit reports, debrief documents from prior competitions, and evaluation criteria that agencies have applied in past source selections - all legally obtained information that can inform competitive strategy.

After an award decision, FOIA requests by unsuccessful offerors for evaluation records or competitor pricing are common. Contractors who win awards should be aware that redacted versions of their proposals and price information are potentially releasable.

Example

A company loses a competitive proposal evaluation and submits a FOIA request to the agency for the source selection decision document and the winning contractor's technical proposal. The agency releases a redacted version of the source selection decision, withholding evaluation scores under Exemption 5 (deliberative process) and withholding the winning contractor's proprietary technical approach under Exemption 4. The losing firm uses the released portions - the evaluation criteria weighting and the narrative rationale for the award - to refine its technical approach for the next competition.