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Disclosure of Prices -- McDonnell Douglas Corp. v. U.S. Air Force
By Vern Edwards on Friday, September 13, 2002 - 01:45 pm:

See: McDonnell Douglas Corp. v. U.S. Air Force, U.S. District Court for the District of Columbia, Civil Action No. 00-1693, August 27, 2002. You should be able to reach it through this link:

http://www.dcd.uscourts.gov/00-1693.pdf

 


By Linda Koone on Monday, September 16, 2002 - 11:50 am:

Vern:

I read that decision and stupidly thought that maybe our OC would also see it as a sign that not all unit pricing will be considered as exemption 4 material under EO 12600. Sometimes I don't know where I get such crazy ideas.

They're convinced that the DOJ guidance on release of unit prices is gospel and the prevailing authority on the issue, so we should not release unit prices under our fixed price, definite quantity/definite delivery supply contracts. (As though we aren't 'disclosing unit pricing' when we release the award amount when the solicitation was publicly available!)


By Eric Ottinger on Monday, September 16, 2002 - 12:29 pm:

Linda,

Here is the DOJ guidance.

If your OC is saying that the contractor must be notified prior to the release of unit price information IN RESPONSE TO A FOIA REQUEST, OC is following the direction given by the court in the MCI case, and the DOJ guidance.

http://www.usdoj.gov/oip/foiapost/2002foiapost13.htm

If your OC is saying that unit prices are always under exemption 4, your OC is taking its guidance from certain private side legal commentators, not from DOJ or recent case law.

Eric


By Linda Koone on Monday, September 16, 2002 - 01:03 pm:

Eric:

They are, in essence, saying both.


By formerfed on Monday, September 16, 2002 - 03:56 pm:

I hear preliminary feedback from DOJ that the latest (8/27/02) decision isn't inconsistent with their guidance. Rather the decision is based on rather a very instance that isn't completely apprent even from reading the decision.


By Eric Ottinger on Monday, September 16, 2002 - 04:06 pm:

Formerfed,

You've got me confused.

Could you elaborate.

Eric


By Larry Edwards on Monday, September 16, 2002 - 05:44 pm:

The revised DOJ guidance focuses on adequately documenting the decision to release or not release based on an objective review. It looks to me like the Air Force documented their decision and reasonably determined there would be no competitive harm. They backed away from their original decision to release the material handing factor which, in my opinion, would have been cost and pricing information.

Therefore, I think the decision is consistent with the DOJ guidance even though the case began well before the guidance was issued. You can no longer automatically release or not release unit prices. You have to get the contractor’s opinion and do a comparative harm analysis, then document the reasons for your decision. That is difficult and time consuming, but you are likely to be upheld in court if it is done well.


By Linda Koone on Tuesday, September 17, 2002 - 07:37 am:

I don't believe the decision is inconsistent with DOJ guidance. In fact, it appears that the Air Force followed the submitter notification process that DOJ is advocating.

Unfortunately, some people take the DOJ guidance too far and make the interpretation that all unit prices are protected from disclosure under exemption 4. I say that in some cases, you can make the decision that the notice requirments do not apply because the information has been made publicly available.

In our particular circumstance, where we --
- typically buy a single item of supply under a firm fixed price contract, and
- we make the solicitation publicly available, so quantities are publicly known (and synopsized when the buy meets the synopsis requirements), and
- we are required by statute to provide the contract award amount,

the idea of protecting the unit price is laughable. It's public knowledge.

Sorry for ranting, but I had some very frustrating exchanges with our OC on this issue last week.


By Larry Edwards on Tuesday, September 17, 2002 - 10:54 am:

Linda, I share your frustration and I am sure many other contract specialists do also. One of the unintended consequences of the new DOJ policy of asking contractors if they object to having their unit prices disclosed is an increase in controversy. Given the opportunity to object, many contractors do. This increases our workload over the former policy of routinely releasing bid schedules as public information and will probably result in many more court cases down the road. One awkward issue that you allude to is that we have already released the unit prices publicly as part of the debriefing procedure for most existing contracts. FOIA should not then apply. However the MCI WorldCom decision stated this was only a FAR provision rather than statute. There is a conflict here that will need to be worked out by a FAR committee and will probably be part of future court decisions. Should we argue that FOIA does not apply if we have released the information in a debriefing? Here is what the Executive Order on FOIA says about it:
Sec. 8. The notice requirements of this Order need not be followed if:
(a) The agency determines that the information should not be disclosed;
(b) The information has been published or has been officially made available to the public;
(c) Disclosure of the information is required by law (other than 5 U.S.C. 552);


By Linda Koone on Tuesday, September 17, 2002 - 11:29 am:

Larry:

Disclosing the contract award price is statutory [41USC253b(e)(2)(B); 10 USC 2305(b)(5)(B)(ii)]. Disclosing unit pricing is not. . . that is a FAR requirement.

I can distinguish that difference and I can even accept that the FAR coverage speaks in circles when it states in one paragraph that, at a minimum, unit prices should be disclosed and then in another paragraph says that you shouldn’t disclose information that is protected under FOIA.

My point is that if I had a copy of the solicitations that resulted in the MCI and McDonnell Douglas contracts that were litigated, and I was provided the contract award values for each, I’m quite certain that I wouldn’t be able to deduce unit pricing. But if I gave that same information on most of our contract awards (i.e., the solicitation and award value) to an average 10-year old, I’m pretty confident that the 10-year old child could calculate the unit price.

I believe there are times when unit pricing can be considered public knowledge, other times it’s not. Where it clearly is public knowledge (passes the test of an individual being able to deduce unit pricing by knowing the quantity solicited and contract award value), we shouldn’t have to go through the whole submitter notification process. Our OC doesn’t agree, however.


By joel hoffman on Tuesday, September 17, 2002 - 02:29 pm:

Gosh, I wonder how the commercial construction industry stays "solvent", since unit prices are routinely released on most projects, including muti-million to billion dollar public works and state transportation contracts. For some reason, competition and the industry are thriving, despite the public and competitors being aware of the winners' unit prices.

Can it be that the first real problem is that the DOD extortionists - uh, excuse me - I meant to say the "DOD Supercontractors" want to keep everything secret and they have the political clout to get their way? I could POSSIBLY see where those unit prices, which one could derive the contractor's pure markups from the price, ought to be protected, although those are also publicized in the construction/transportation industry, without major problems that I'm aware of. The second real problem is that some Government lawyers overextend that rationale to protect disclosure of any unit price. That is crazy and inconsistent with local and state government contracting. happy sails! joel hoffman


By bob antonio on Tuesday, September 24, 2002 - 04:13 pm:

Here is another case in this area.

R& W FLAMMAN Gmb H., v. THE UNITED STATES

The link is below.

http://www.uscfc.uscourts.gov/2002.htm


By Larry Edwards on Tuesday, September 24, 2002 - 08:42 pm:

Thanks for the link, Bob. This is a very strange case. Just when you think FOIA court decisions involving release of unit prices can’t get any sillier, they do. Here unit prices on the incumbent contract were a matter of public record because it was a sealed bid with a public opening. The Army elected not to exercise any options and issued a new solicitation. Under FOIA, a competitor asked for a copy of the existing contract including the bid schedule and the Army gave it to him. The court said this created an “appearance of impropriety” and granted the plaintiff injunctive relief! So you can’t release public information during a solicitation?


By Anon2U on Tuesday, September 24, 2002 - 10:19 pm:

At one point in the decision, the court said that the public opening made the unit prices public information so it did not meet the two step criteria another case set as a precident but apparently they felt that giving the prices to one offeror and not all gave them an unfair advantage. I think this may not be a good case to use as a precident. They seemed to affirm the right to give sealed bid units prices out in a FOIA but not in this case.


By Linda Koone on Wednesday, September 25, 2002 - 08:17 am:

I believe the court's decision revolves solely on the issue of providing unit prices to only one bidder and not all bidders. The decision doesn't protect unit prices from disclosure, it protects the 'level playing field' concept. The court is requiring contracting officers to give unit pricing to all potential bidders, not just one.
Which is also an interesting concept. I can remember when we proposed to include price history in our solicitations to reduce the number of phone call inquiries that we got for price history. Our Office of Counsel told us that including this information could be misleading if a company relied on it in formulating its price and was either not awarded a contract because its price was too high, or awarded a contract but couldn't perform at the offered price. We suggested including a disclaimer with the price history information, but the OC didn't buy off on that either. We certainly didn't provide price history to everyone, only to those companies that requested it. According to this decision, that was an unfair practice.

I wonder if the Army argued that the same information would have been provided to any bidder seeking it. . .


By Larry Edwards on Wednesday, September 25, 2002 - 02:59 pm:

Anon2U: I agree this may not be good precedence. This occurred overseas where bidders were used to negotiated acquisitions which are more restrictive in information disclosure and where local country rules are less open on public information. These may have contributed to misunderstandings on why the bid schedule was released.

Linda: Here is an interesting footnote on page 15 of the decision:
22 Flammann stated that it submitted a FOIA request to the Army on April 22, 2002 to obtain the unit prices of its predecessor and, as of July 18, 2002, had not received them. Pl. Mot. for Prelim. Inj. at 3.
The information won’t automatically be released to each bidder. Each FOIA case will stand on its own and will take time to resolve, especially if an information provider such as an unsuccessful bidder from the last solicitation objects. Even if he has lost before, he can object again, delaying the process and the solicitation. In the past, I have sped up the process by asking requestors to withdraw their FOIA requests and let me give them public information. I’m not sure I can continue to do that in the face of this decision on publicly available information. At least the court decision to release the same information to everyone at the same time will preempt this piecemeal FOIA procedure. I can see why bidders from another country would perceive this to be unfair.


By Vern Edwards on Saturday, September 28, 2002 - 03:37 pm:

All:

I think that the unit price disclosure cases show that the federal courts cannot deal consistently and effectively with the issue of disclosure of contract unit prices under the FOIA and trade secret statutes.

I think it's fundamental that in a democracy the public's business ought to be knowable to the public, unless disclosure would be detrimental to the public interest. Any member of the public ought to be able to learn what kinds of deals the public's representatives are making.

Congress should enact legislation that takes contracting information out from under FOIA and the trade secrets act. Instead, the law should be: (1) that the contents of a government contract--including unit and total prices and excepting only classified information and indirect cost rates--must be disclosed to any member of the public upon request, and (2) that the contents of proposals (as defined in FAR § 2.101) submitted to the government may not be disclosed.

The law should provide that an agency head may refuse to disclose the contents of a government contract only upon a reasonable finding that such disclosure would harm the public interest. Harm to the public interest would include concerns about national security and the ability to obtain competitive proposals. The law should require that any such finding must be made and documented prior to the issuance of the solicitation for the contract. It should also permit class findings in that regard. The law should require that such findings be announced in the public announcement (in FedBizOpps) preceding issuance of the solicitation, unless the procurement is exempt from the requirement for such an announcement.

The law should prohibit protests against an agency head's refusal to make such a finding and should also provide that any court challenge to such a decision must be made within 10 days of the first date of publication of the announcement. The law should require that in the event of such a challenge, the contracing officer must notify prospective offerors that a court might decide that their prices must be disclosed and they should submit proposals or not with that possibility in mind.

This approach would put prospective offerors on notice, so that they could decide whether or not to submit a proposal. Then, only decisions not to disclose the contents of contracts would be subject to challenge. Such a law would not end all litigation about disclosure, but it would end much of the uncertainty about the status of contract unit prices by extracting from the current legal chaos. And it would free contractors of the burdent of fighting disclosure of their prices.

What do you think?


By formerfed on Monday, September 30, 2002 - 09:26 am:

If you run for President, you have my vote.

Good thoughts and I'm in complete agreement.


By Larry Edwards on Tuesday, October 01, 2002 - 11:54 am:

Vern: I whole-heartedly concur with the intent of your message. I would make three points.
1. This is strong, clearly worded language, which we rarely see in our laws anymore because of the need to make political compromises. The same large firms who have successfully sent high-priced lawyers to win their case in court will send high-priced lobbyists and well-funded PAC’s to get compromised language. Are contract specialists enough of a strong constituency to counter that?
2. After Burnside-Ott, is there such a thing as an action that cannot be appealed anymore? “Arbitrary and capricious” structuring on line items which have the effect of revealing markups may be appealed. It is tempting to set line items up like that because it makes for easier modifications, but contract specialists will need to resist that.
3. In the real world, Agency Head approval means it will be done only for the biggest and most important actions because of the delay. If we are talking about national security issues, there already is an exemption for classified contracts, which would need to be continued. There are far too many classified contracts for going individually to the Agency Head to be feasible.


By ASK on Tuesday, October 01, 2002 - 01:12 pm:

To pick a nit, I believe that Vern's reference for the FAR definition of "proposal" should be to 3.104-1, not 2.101.


By Vern Edwards on Tuesday, October 01, 2002 - 05:32 pm:

Larry:

In the Burnside-Ott decision, the court held that an agency cannot write a contract clause to eliminate a procedure that is provided for by statute. In the case that I propose, the statute would say that a contractor cannot protest a certain kind of decision. Different problem.

ASK:

FAR § 2.101 defines "offer," and says that in a negotiated procurement an offer is called a "proposal." That's the definition to which I was referring, not the definition of "bid and proposal information" in FAR § 3.104-1. The reason that I would prefer to use the definition in § 2.101 is that I think it is more all-encompassing than the one in § 3.104-1. I don't want to leave the lawyers any wiggle room.


By Larry Edwards on Tuesday, October 08, 2002 - 08:34 am:

Here is a link to the DOJ interpretation of the unit price case with which Vern Edwards started this thread:
http://www.usdoj.gov/oip/foiapost/2002foiapost25.htm


By formerfed on Tuesday, October 08, 2002 - 09:28 am:

If you think by chance the FOIA rules are becoming clearer, here's a real curve. The Army decided to not exercise an option under an existing contract and chose to do a recompetition instead. A competitor of the incumbent then sought the option prices of the existing contract under FOIA. Since the contract was awarded as a sealed bid, the Army released them. The Judge next ruled the Army was wrong in doing so.

Here's the link:

http://www.uscfc.uscourts.gov/Opinions/Gibson/02/GIBSON.R&WFlammann.pdf


By Anon on Wednesday, October 09, 2002 - 08:00 am:

I read that case, thank the heavens I'm not a FOIA officer. I always considered fixed prices (not the cost breakdowns) releasable...hey, doesn't the taxpayer have a right to know what we're paying with their money? If my better half wants to know what I spent on an appliance doesn't she or he have a right to know the bottom line, I may not give all the finiancing details, but...why all the secrecy?

Bottom line in my opinion, the company's getting taxpayer monies, the taxpayer has a right to know what their bucks are going for.


By Larry Edwards on Tuesday, February 04, 2003 - 05:29 pm:

Note the proposed FAR change on debriefings of commercial items in the “Today’s News” on this site. This seems to take out the requirement to disclose unit prices on commercial items, citing the recent legal decisions, but does not yet change FAR Part 15 to be consistent. Thus you would have a difference between disclosure of unit prices on commercial and non-commercial items. I would think commercial items would be the more logical choice to have unit prices revealed. Logic probably has little to do with it when the courts are involved.

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