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When conducting negotiations is it appropriate to furnish the contractor with the Government's Objective Spreadsheets (they are marked FOUO)? I've been in Pricing for a long time and we've never given the contractor the government's spreadsheets and we are now being asked where the regulatory guidance exists for not sharing the government position. Can you help?

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When conducting negotiations is it appropriate to furnish the contractor with the Government's Objective Spreadsheets (they are marked FOUO)? I've been in Pricing for a long time and we've never given the contractor the government's spreadsheets and we are now being asked where the regulatory guidance exists for not sharing the government position. Can you help?

As a contractor, I've been involved in negotiations with certain DOD Agencies that shared their spreadsheets with us.

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When conducting negotiations is it appropriate to furnish the contractor with the Government's Objective Spreadsheets (they are marked FOUO)? I've been in Pricing for a long time and we've never given the contractor the government's spreadsheets and we are now being asked where the regulatory guidance exists for not sharing the government position. Can you help?

I assume that the contracting officer (C0) stamped the spreadsheet FOUO. Regardless of the identity of the person wielding the FOUO stamp, ultimately, the decision to release the spreadsheet info containing the CO's objectives is the CO.

I am unable to find FOUO in the FAR. I believe FOUO is a term relevant to the Freedom of Information Act. I do not think that FOIA applies to your circumstance since the contractor is not requesting that you release your price position.

There are other relevant terms to consider - "source selection information" and "contractor bid or proposal information". FAR 2.101 defines source selection information. FAR 3.104-4 is entitled "Disclosure, Protection, and Marking of Contractor Bid or Proposal Information and Source Selection Information." I see nothing in there that would prevent the CO from sharing the spreadsheet if the CO feels it is prudent to do so and if the spreadsheet contains only information about the firm with whom you are negotiating.

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I agree with Napolik. If the CO feels sharing the spreadsheet is an effective means of megotiating and obtaining agreement with the contractor, that's good.

Napolik - FOUO means "For Offical Use Only." It's just an internal agency designation.

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When conducting negotiations is it appropriate to furnish the contractor with the Government's Objective Spreadsheets (they are marked FOUO)? I've been in Pricing for a long time and we've never given the contractor the government's spreadsheets and we are now being asked where the regulatory guidance exists for not sharing the government position. Can you help?

Roy, the acquisition regulations provide scant coverage of the actual negotiation procedures, which doesn't surprise me. We went to various other classes on how to effectively negotiate. The agency would generally have some definition or other guidance concerning restrictions on FOUO.

If this were a construction contract FAR 36.203 (c )does contain prohibitions on release of an overall government estimate. If the IGE is identified in the spreadsheets, which is normally one of the considerations in establishing a negotiation objective, even if not the basis of each objective, I believe that at one is not supposed to reveal it.

"(c )Access to information concerning the Government estimate shall be limited to Government personnel whose official duties require knowledge of the estimate. An exception to this rule may be made during contract negotiations to allow the contracting officer to identify a specialized task and disclose the associated cost breakdown figures in the Government estimate, but only to the extent deemed necessary to arrive at a fair and reasonable price. The overall amount of the Government’s estimate shall not be disclosed except as permitted by agency regulations." Various DoD and component supplements and regulations contain other prohibitions and require an FOUO designation for the IGE.

Not trying to overstate the importance of the IGE or even to say that it necessarily forms the basis of the PNO.

However, I'm curious as to when your organization would send or show the spreadsheet for the objectives and what role the person has who would necessarily lay down all their cards in the middle of a poker hand. I've certainly identified specific details of my objectives at times during negotiations, but generally after talking through the various reasons for differences during negotiations. I don't think I ever layed down all my cards for the other party to peruse. Why would I do that? More important things to explore during a negotiation are the bases or sources for pricing or the technical approaches assumed. I'm not going to cover all negotiation techniques here, but furnishing the contractor with the Government's Objective Spreadsheets just sounds like a dumb idea. You are then negotiating the government's position rather than the proposal, which is what you are supposed to be negotiating.

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Joel,

I knowing sharing spreadsheets is a rather common practice at one major agency. Maybe the orginal poster is from there. They are sharing the negotiation objective and not the IGCE.

That agency has a lot of fairly significant high dollar value cost reimbursement contracts. They usually obtain an audit and a technical evaluation of the proposal and summarize it on spreadsheets. Then they show it to the contractor in a "here's my position -tell me where I'm wrong."

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Joel,

I knowing sharing spreadsheets is a rather common practice at one major agency. Maybe the orginal poster is from there. They are sharing the negotiation objective and not the IGCE.

That agency has a lot of fairly significant high dollar value cost reimbursement contracts. They usually obtain an audit and a technical evaluation of the proposal and summarize it on spreadsheets. Then they show it to the contractor in a "here's my position -tell me where I'm wrong."

I'd love to be their contractor or a contractor negotiating with those type government negotiators. They've just turned the table around on themselves...

The original poster mentioned "the spreadsheets". Unless one removes various columns to only show 'objective" and "proposed", any PNO of any significant size I ever developed, reviewed for oversight or used included columns for the IGE, audit input, if any, technical input, if any, etc. to help the negotiator and/or KO, summarize differences, visualize and develop the negotiation objectives.

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Guest Vern Edwards

See DOD 5200.1-R, Appendix 3 (1997), for an explanation of FOUO as used by DOD. As used by DOD, FOUO information is simply information that might not have to be disclosed under FOIA. FOUO information is not "classified" information.

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I would guess that the only reason that the spreadsheet was marked FOUO is because the spreadsheet most likely contained some of the contractor's proprietary data.

As long as the spreadsheet does not identify any subcontractor proprietary data that the subcontractor does not agree to release to the prime nor does the spreadsheet identify any kind of privacy act data, I don't see an issue with sending the contractor a spreadsheet containing that contractor's own proprietary data back to them.

I am not recommending sending the objective to the contractor or any type of IGE. I am only referring to spreadsheets used to develop the Government's most recent pricing position during a sole source negotiation in which the Government developed their position based on a cost analysis of Cost or Pricing Data provided by the contractor. Any spreadsheet that I have provided to the PCO to provide to the contractor clearly delineates the Government's position regarding labor hours, material costs, other direct costs, rates applied, and profit. This allows both parties the opportuntity to review areas of agreement and disagreements. I believe that sending the contractor a copy of my spreadsheet helps to foster a climate of mutual cooperation.

Personally, I find the USD(AT&L)/DPAP Contract Pricing Reference Guide that is currently located on the DAU ACC Community of Practice website to be a great reference for negotiation techniques and strategies that help create a win/win environment.

Good luck!

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Agree on the Contract Pricing Reference Guide, the successor to the old ASPM Pricing Manual, all clearly written and eminently sensible.

We have printed FAR Part 15.4 and the Contract Pricing Reference Guide, and put it all in a binder, for everybody in our contracts, subcontracts, and procurement group on the team of a major project.

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I assume that the contracting officer (C0) stamped the spreadsheet FOUO. Regardless of the identity of the person wielding the FOUO stamp, ultimately, the decision to release the spreadsheet info containing the CO's objectives is the CO.

I am unable to find FOUO in the FAR. I believe FOUO is a term relevant to the Freedom of Information Act. I do not think that FOIA applies to your circumstance since the contractor is not requesting that you release your price position.

There are other relevant terms to consider - "source selection information" and "contractor bid or proposal information". FAR 2.101 defines source selection information. FAR 3.104-4 is entitled "Disclosure, Protection, and Marking of Contractor Bid or Proposal Information and Source Selection Information." I see nothing in there that would prevent the CO from sharing the spreadsheet if the CO feels it is prudent to do so and if the spreadsheet contains only information about the firm with whom you are negotiating.

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