Overview
FAR Subpart 24.2 implements the Freedom of Information Act (FOIA) within the context of federal procurement. It outlines how the public can access government records while establishing strict prohibitions against disclosing sensitive acquisition-related information, such as unsuccessful proposals and confidential commercial data.
Key Rules
- Methods of Disclosure: Government information must be made available via the Federal Register, public reading rooms, or through specific requests for reasonably described records.
- Prohibition on Proposal Disclosure: Records submitted in response to a competitive solicitation (proposals) cannot be released under FOIA. This protection expires only if the proposal, or a specific part of it, is formally incorporated by reference into the final contract.
- Exemption for Pricing Data: Information obtained to support "data other than certified cost or pricing data" (per FAR 15.403-3) is protected from disclosure if it meets FOIA exemption criteria.
- ADR Confidentiality: Communications between a neutral party and a participant during Alternative Dispute Resolution (ADR) proceedings are exempt from FOIA disclosure.
- Common Exemptions: The FAR highlights specific categories often relevant to contracting that are exempt from release, including:
- Classified national security information.
- Trade secrets and confidential commercial/financial information (Exemption 4).
- Interagency or intra-agency memoranda (deliberative process).
- Personal or medical files (privacy concerns).
Responsibilities
- Contracting Officers (COs): Responsible for receiving FOIA requests regarding contract actions. They must identify potentially exempt information and are cautioned not to release records without consulting agency experts.
- Agency FOIA Officers/Legal Counsel: Responsible for providing specialized guidance to COs on complex requests and ensuring compliance with agency-specific regulations and court rulings.
- Federal Agencies: Must implement FOIA requirements within their specific titles of the Code of Federal Regulations (CFR) and adhere to strict statutory response timelines.
- Department of Justice (DOJ): Acts as the high-level authority providing policy guidance, manuals, and legal assistance to agencies regarding FOIA interpretation.
Practical Implications
In real-world contracting, Subpart 24.2 serves as a shield for a contractor's proprietary "secret sauce." Because competitive proposals are strictly protected, losing bidders cannot use FOIA to "scavenge" a competitor's technical approach or pricing strategy. However, contractors must be aware that once a proposal is incorporated into a signed contract, it may become subject to disclosure.
AI Insight for Contractors: To ensure maximum protection, contractors should clearly mark proprietary data as "Confidential/Proprietary" at the time of submission. While the FAR provides statutory protection for proposals, the "Trade Secrets" exemption (Exemption 4) is often litigated; therefore, proactive coordination with the Contracting Officer during the "pre-award" and "award" phases is essential to define what specific elements of a technical volume are considered trade secrets versus public contract language.