Overview
FAR Subpart 5.4 establishes the policies and procedures for the release of acquisition-related information to the public, Congress, and other government agencies. It balances the need for transparency and industry planning with the necessity of maintaining "business security" to preserve the integrity of the competitive process and protect sensitive proprietary or internal data.
Key Rules
- Integrity of Estimates: Government estimates must be kept confidential and never discussed with potential contractors to prevent unfair advantages.
- Disclosure Prohibitions: Information cannot be released if it provides a discriminatory advantage, contains an offeror’s confidential data, is protected by FOIA/Privacy Acts, or consists of internal agency communications (e.g., technical reviews).
- Congressional Access: Members of Congress are entitled to detailed contract information; however, if the request involves classified or proprietary data, the matter must be referred to the Agency Head and the legislative liaison.
- Long-Range Estimates: Agencies are encouraged to release unclassified long-range acquisition estimates to help industry planning, provided they include a mandatory disclaimer stating the information is non-binding and subject to change.
- Inter-agency Coordination: Agencies acquiring similar items must share cost and pricing data to ensure uniform treatment of major issues and resolve controversies.
- Mandatory Posting of Justifications: Public disclosure is required for Justifications and Approvals (J&As) for non-competitive actions, limited-source justifications for FSS orders, and "fair opportunity" exceptions for task orders above the simplified acquisition threshold.
Responsibilities
- Contracting Officers (COs):
- Primary responsibility for processing information requests from the public and suppliers.
- Ensuring Government estimates are not publicized or discussed.
- Requesting previous contract information from contractors to assist in negotiations.
- Coordinating long-range estimates with small business and public relations personnel.
- Agency Heads (or Designees):
- Authorized to approve the release of long-range acquisition estimates.
- Review and handle replies to Congressional requests involving sensitive or prejudicial information.
- All Government Personnel:
- Obligated to maintain a high level of business security throughout all stages of the acquisition cycle, whether participating directly or indirectly.
- Legislative Liaison Office:
- Must be informed when sensitive Congressional requests are referred to the Agency Head.
Practical Implications
- For Contractors (Planning): Subpart 5.4 is a vital resource for strategic planning. By monitoring "long-range acquisition estimates," contractors can align their R&D and staffing levels with anticipated government needs years in advance, though they must remember these estimates are not guarantees.
- For Contractors (Protection): This subpart provides a regulatory shield for a company’s proprietary data. It ensures that information submitted "in confidence" during a bid cannot be legally released to competitors by the Contracting Officer.
- For Transparency (The "Fishbowl" Effect): The requirement to post J&As (Justifications and Approvals) means that when a contract is awarded without full competition, the government's reasoning is subject to public and competitor scrutiny. This discourages "sole-source" favoritism.
- Inter-Agency Benchmarking: Because agencies are required to share pricing data for similar items, contractors should expect "price realism" or "price reasonableness" evaluations to be informed by what other agencies have paid for the same product or service.