On March 15, 2017, the Senate Homeland Security and Governmental Affairs Committee Proposed Bill S. 651 to require the posting online of certain government contracts.
The purpose of the new bill is to increase transparency and require the posting of specific contracts online.
Subsection (f) describes “covered contract” as any contract, subcontract, purchase order, task order, or delivery order for the procurement of property or services with a value greater than the simplified acquisition threshold (currently $150K). It further states that “the website established under this section shall include a machine readable, searchable copy of each covered contract entered into by a Federal agency after the date of the enactment of this subsection. The copy shall be posted not later than 30 days after the agency enters into the contract.”
It will allow the contractor to request to redact from such contract any national security sensitive or classified information or trade secrets or other proprietary information.
The contracting official of the Federal agency awarding the covered contract shall determine the extent to which redaction of material is appropriate and permissible in accordance with guidance issued by the Director of the Office of Management and Budget.
As for Freedom of Information Act (FOIA) requests, an agency may not redact from a contract posted pursuant to this subsection any information that would be required to be made available to the public under section 552 of title 5, United States Code.
So how does this affect you?
For the past several years, federal contracting has tried to increase transparency and have succeeded in being more transparent, but not totally so.
This bill, if enacted would require the online posting of exact details for contracts worth $150,00 or more.
This will require disclosure of more information about contracts that what is current posted. The data available www.USASpending.gov shows the awardee and place of performance, but shows summaries of the contracts themselves. The new bill will require that any contractual instrument that meets the definition will be posted in its entirety no later than 30 days after award.
Most government contractors want to keep much of the information contained in their federal contracts private and secure. Any information not generally known to the public, like bid prices, labor rates, product or technology information, or trade secrets, are considered “confidential”.
While the bill does allow some latitude for contractors to designate what information they would like to have redacted, the final decision rests with the Contracting Officer. It’s important to note that information required to be made public under the Freedom of Information Act would not be redacted.
The bill, if signed into law as currently drafted, will present government contractors with a number of challenges and its important you understand what you can do to protect yourself.
You should ensure that any proprietary information is appropriated marked. It should be clearly marked in capabilities packages submitted in response to Sources Sought Synopses/Requests for Information and in any bids/proposals. Note that marking something proprietary does not guarantee that it will not be released/posted. The contracting officer makes all final determinations and there is no requirement that they request approval to release the information or notify the contractor as to what information is being released.
The bill as written does not address whether the contracting officer has to get input from the contractor prior to release, how long the contracting officer has to determination requested redactions, or if there is an appeal process.
Bottom line is that you need to be aware of this proposed bill and its possible impact on how much contract information will be released to the public. Each contractor needs to get ahead of the process and mark proprietary information as such when communicating with the government. Finally, ensure you have a good federal procurement attorney available to provide you with advice. It doesn’t take much for posted information to become someone else’s competitive advantage.