prodigalko Posted October 2, 2015 Report Share Posted October 2, 2015 Has anyone else received a request for a FAR part 15 construction contract abstract of all bids from a contractor citing FOIA as a justification? I recently received several similar requests and was curious where this approach is coming from. I communicated FAR part 15.505/15.506 and FOIA exemption 3, 41 U.S.C. 4702/FAR 24.202, but am puzzled how contractors think that they would be entitled under FOIA or other law to all contractor bids or an abstract. It appears that this is the result of confusing sealed bidding (FAR 14.407-3(g)(3)) with Negotiated, but it seems like a big oversight to fundamentally confuse the FAR part when the solicitation clearly identifies FAR part 15 and then to cite FOIA as the justification (because it is not mentioned in FAR 14). Please let me know your experience and if I am missing anything. Thank you. Link to comment Share on other sites More sharing options...
joel hoffman Posted October 2, 2015 Report Share Posted October 2, 2015 When do they want to see it? Actually, I wasn't aware that an abstract of offers is used for source selections under Part 15. When would you prepare it? Link to comment Share on other sites More sharing options...
joel hoffman Posted October 2, 2015 Report Share Posted October 2, 2015 Aha, FAR 36.701d says that you MAY use the Abstract Form for source selections. It isn't mandatory then. At any rate, Prodigal KO, are you preparing an Abstract of Offers on the SF and at what point? If it is after receipt of proposals and there are subsequently competitive range determination, discussions and revised offers, I think that the information would be part of the SS deliberations and should remain with the govt. In addition, it is of questionable value because it doesn't necessarily represent the end state of pricing. EDIT: If prepared in a format that would reveal the competitive range, I would definitely advise against releasing that format. If it is prepared after final proposal revisions, it won't necessarily include all initial proposers. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted October 2, 2015 Report Share Posted October 2, 2015 Some agencies prepare them for negotiated construction acquisitions. See FAR 36.701[c] (not (d)). When I was with the Department of Energy, I prepared them and received and granted requests for them without forcing the requester to resort to FOIA. No big deal. Link to comment Share on other sites More sharing options...
joel hoffman Posted October 2, 2015 Report Share Posted October 2, 2015 Ah yes, 36.701( c ), not ( d ). The prescription that I read for the form mistakenly referred to ( d ) and I didn't catch that in 36.701. At any rate, I would agree that releasing the info is not a big deal but what does it represent (of what value is it) depending upon when it is prepared? If there aren't any discussions, then it would seem more applicable/useful to me. Link to comment Share on other sites More sharing options...
prodigalko Posted October 2, 2015 Author Report Share Posted October 2, 2015 I prepared informal abstracts in excel and word when determining the competitive range and for use in the source selection documentation. This was not a sealed bid so I did not record them on the optional form or think that disclosure would be proper. I wanted to make sure that I was not missing any requirement to disclose other unsuccessful vendor's total price if required. Link to comment Share on other sites More sharing options...
joel hoffman Posted October 2, 2015 Report Share Posted October 2, 2015 So it appears that one or more firms requested a list of proposers and their prices after construction contract award or as part of or after the debriefing? Unless there is a prohibition by your organization, I don't see a problem with that. If you rank ordered firms, that much information must be shared in the debriefing anyway. FAR 15.506 describes the minimum info to be included in a debriefing but doesn't limit it to that listed. Construction contractors are used to seeing the information included in abstracts of public bid openings, whether it be federal, state or local cities and counties (at least the several communities that I worked with as a consulting engineer). Dodge Reports and others published that information to their subscribers. I don't really see a distinction between the information available concerning the names of firms and their line item prices or total prices at a public bid opening and after the fact award - at least after the protest period - for an unclassified construction RFP. Link to comment Share on other sites More sharing options...
prodigalko Posted October 2, 2015 Author Report Share Posted October 2, 2015 I had different firms demand the abstract of proposals and every other proposal citing FOIA. That is an interesting take. I have not done construction using sealed bidding procedures before (my understanding is that it is more commonly used by state and municipal entities). I had thought that the proposals would be protected under the prohibition above. I was understanding this in line with the post-award debriefing that states that point by point comparisons are prohibited according to FA 15.506(e). I had not thought to distinguish the line item or overall pricing with the proposal. Link to comment Share on other sites More sharing options...
joel hoffman Posted October 3, 2015 Report Share Posted October 3, 2015 prodigal, I won't claim to be a lawyer or I would have scoured the legal decisions. However, I know that technical proposals, except those incorporated into a public contract (see FAR 24.202 ( a )) generally can't be released. Nor can "cost" aspects of proposals be released per 24.202 and the referenced Federal law (e.g., 10 USC 2305( g )). But "cost" (details) can be distinguished from "prices". FAR 36.701( c ) refers to the procedures for recording proposals received in response to sealed bid solicitations in 14.403 and states that the form may also be used for recording offers received in response to negotiated solicitations. FAR 14.403 specifically discusses procedures for recording line items and total prices. Abstracts of offers for unclassified solicitations under 14.403 shall be available for public inspection. Of course, abstracts for unclassified negotiated solicitations can't be made available for public inspection during the source selection. But my point is that recording and making prices available are distinguished from the specifically prohibited release of cost information. Line item prices are available for public inspection in an IFB so why not for a request by an offeror on an RFP (after the source selection)? EDIT: my opinion is from the perspective of construction contracting where there are often multiple line items. There may be some value to review abstracts for design-build contracts. However, depending upon the levels of government furnished preliminary design development and design flexibility allowed the design-builders, the prices might be less useful. The design proposals of the unsuccessful of offerors aren't generally releasable. It may not be possible to correlate the prices to the specific proposed design solutions without access to those design proposals. Link to comment Share on other sites More sharing options...
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