I recently read an article in the Construction Lawyer Journal about the use of the Freedom of Information Act (FOIA) by some contractors to obtain confidential and proprietary information about the successful bidder’s bid. Quite the concept. While a contractor can protect its confidential information, it must challenge the threatened disclosure of information early on in the process or it will be disclosed.
The article discussed a case brought by Honeywell to prevent the Air Force from turning over confidential information. In that case, Honeywell responded to an RFP which contained a performance-based statement of work in which Honeywell provided recommendations for what needed to be done and what did not need to be done on the project, and offered solutions to achieve the outcomes described in the statement of work. After the bid was awarded to Honeywell, one of its competitors requested information about Honeywell’s statement of work and other details relating to its bid.
The Air Force contacted Honeywell and they discussed which information was confidential and which could be turned over. Ultimately, Honeywell disagreed with the Air Force’s determinations and filed suit against the Air Force asking a court to prevent the Air Force from making the disclosure. The case kicked around in the courthouse for the next six years. During that time, the Court remanded the matter back to the Air Force on two occasions to clarify why the Air Force felt that various documents were not confidential.
Honeywell ultimately prevailed and the Air Force was ordered not to disclose certain portions of Honeywell’s bid. But, the court remanded the matter back to the Air Force for further clarification of its position.
Who knew that a FOIA claim could cause so much of a problem? But, if you are submitting highly confidential information when bidding on a government project, you would be well served to consider what would happen if one of your competitors decided to ask for it.