Thursday, May 13, 2010

Public Access to Contracts

The FAR Councils are asking for public comment on how best to provide public access to contracts, amendments, task orders, etc, without compromising contractors' proprietary and confidential commercial or financial information. The FAR Councils are anticipating that there will soon be a requirement to do just that, based on the Administration's "Transparency and Open Government" memorandum from January 21, 2009, which calls for increased transparency in order to promote efficiency in Government contracting. The Administration wants to open up the acquisition process and improve Federal spending accountability.

The Councils anticipate that, in the future, a requirement to post on-line the text of contracts and task and delivery orders will be instituted. In support of this anticipated requirement, the Councils are considering how best to revise the FAR to facilitate such posting without violating statutory and regulatory prohibitions against
disclosing protected information belonging to the Government or contractors.

The Councils are particularly interested in suggestions that will facilitate uniform, consistent processing methods that are fair and equitable as well as cost effective and efficient, while at the same time simplifying access to acquisitions once posted. While restrictions on disclosing proprietary contractor information is covered by the Freedom of Information Act (FOIA), it may not be practical to apply FOIA procedures before posting in every case. The Councils are looking into methods for identifying the types of information that should not be posted or released to the public, as well as means for electronic processing and posting, and development of provision or clause requirements for successful offerors to provide a redacted copy of the contract. The Councils are also requesting suggestions for how best to protect the types of information through redacting, locating all such information in a standard place in the contract, or other possible methods to be considered.

As you think about your own Government contracts, consider whether they contain information that you consider confidential and proprietary. Is there any financial or technical information that you would not want your competitors to have access to? How about your employees (service contractors, take note)? Does your line item pricing past a "sanity test"? Remember the coffee pot and toilet seat scandals a few years ago?

If you are interested in responding, the instructions for doing so are located in this Advanced Notice of Proposed Rule Making. Public comments are due by July 12, 2010.

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