Here’s a little information on something we started looking into last February:
When a federal agency needs a contractor, it publishes a presolicitation notice on a site called FedBizOpps to alert businesses that a formal solicitation is coming. These presolicitation notices — here’s one — describe what the contract would call for, often adding that additional information can be gotten through the Freedom of Information Act:
Any requests for business information not posted should be requested under Freedom of Information Act (FOIA) guidance.
There are several variations on the theme — this one tells bidders, “All FOIA requests for the previous procurement information and pricing should be sent to the FOIA Control Officer, Jennifer Mitchell…” and helpfully provides her email address.
Now, here’s some rather different language from a Feb. 28, 2007, presolicitation notice from the Federal Highway Administration, which is opening a small portion of its Transportation Technology Innovation and Demonstration Program to competition (and a tip of the hat to the indefatigable Jerry Werner, a citizen investigator who came across it and pointed it out to me). The Hill recently noted that Sen. Orrin Hatch characterized the $50 million-plus program as being a monopoly awarded to the incumbent contractor, Mobility Technologies, Inc. Here’s what FHWA advises would-be bidders:
Freedom of Information Act (FOIA) requests for copies of Mobility Technologies, Inc.’s INCUMBENT contract document are unlikely to be fruitful for organizations wishing to compete for this FOLLOW-ON project, for the following reasons: (a) the Federal Highway Administration (FHWA) routinely REDACTS, from contract documents furnished to FOIA requesters, all pricing data and all staffing data; (b) the Statement of Work that will be published hereafter in the Solicitation (RFP) for this FOLLOW-ON project will be self-contained and will stand alone and will DIFFER in many crucial respects from the Statement of Work set forth in Mobility Technologies Inc.’s INCUMBENT contract document; (c) any attempt, by an offeror submitting a proposal for this follow-on project, to respond to the INCUMBENT contract’s Statement of Work would almost certainly call into serious question the offeror’s grasp of, and commitment to attaining, the technical objectives of this follow-on project; and (d) given the time-consuming procedure governing the FHWA’s processing of FOIA requests, it is unlikely that even an extensively redacted and probably useless copy of Mobility Technologies Inc.’s INCUMBENT contract document could be made available to any FOIA requester before the due date for submitting PROPOSALS under this follow-on procurement.
I’d FOIAed that very contract last February, and received a copy of it in June, without any of the redactions described above (a copy is attached). It seemed odd that the presolicitation notice would go out of its way to discourage FOIAing the previous task order, particularly when it was relatively easy for me to get hold of it.
Curious, I called Bob Robel, a contracting officer at the Department of Transportation and the point of contact for this particular presolicitation notice, and asked whether this was standard language from the FHWA. He told me it wasn’t, and explained that the passage means that companies seeking the follow-on contract shouldn’t wait around for their FOIA response to be filled if they want to win this business. “The technical office wrote that, the program office wrote that just to tell people that the new effort is similar to the one undertaken by Mobility Technologies,” he said, adding that the contract is “available if you want it, but I’m not sure it would be helpful. If you wanted to obtain that you certainly could, but it takes time. [The notice is] trying to tell you that you shouldn’t wait around.”
I suggested that some of the language seemed to be a little tougher, particularly the bit saying, “any attempt, by an offeror submitting a proposal for this follow-on project, to respond to the INCUMBENT contract’s Statement of Work would almost certainly call into serious question the offeror’s grasp of, and commitment to attaining, the technical objectives of this follow-on project.”
Robel said that the passage on FOIA had been written by the FHWA Office of Operations; I asked him who specifically, and he told me he couldn’t tell me.