This post was written by Steven D. Tibbets and Lorraine M. Campos.
There is a long history of federal court cases distinguishing which items of information that contractors disclose to the Government may be obtained by the public and which items may not. Currently, there is much debate regarding how well the relatively new Federal Awardee Performance and Integrity Information System accomplishes the goal of providing public access to contractor responsibility information.
On a related front, on May 26, 2011, the Office of Governmentwide Policy in the U.S. General Services Administration (“GSA Office”) issued a notice explaining exactly which elements of the Government Central Contractor Registration (“CCR”) are subject to Freedom of Information Act (“FOIA”) requests and which are not. Virtually any person or company that sells any goods or services to, or receives financial assistance in the form of grants, from the federal Government provides information to the Government that is subject to FOIA. There are 260 distinct data fields that contractors may be required to complete – most data fields apply to all contractors, but a few fields apply only to contractors that perform contracts over certain dollar thresholds. Information submitted in completing these fields is presumptively subject to FOIA – as is all information submitted to the federal Government – but GSA has determined some fields are exempt.
Specifically, data fields 156 and 165 through 260 are exempt from FOIA. These fields cover information regarding contractors’ corporate parents, “Austin Tetra” and “Dun & Bradstreet Monitoring” information regarding contractors’ creditworthiness, information regarding security clearances, information regarding executive compensation, and information regarding proceedings involving poor contract performance, fraud, and similar matters. Examples of non-exempt data fields include: (1) average number of employees (field 144); (2) the identity of the owner(s) of the company (field 137); and (3) the company’s annual revenue (field 145).
It is currently not clear whether industry watchdogs, journalists, or contractors seeking information about a competition or an interesting contract award will challenge GSA’s determinations regarding which items of information are exempt from FOIA. In addition, it is not clear how GSA’s findings will apply to or influence determinations regarding the scope of information that is publicly-available via the FAPIIS database. What is clear is that, for now, a great deal of information contractors furnish to the Government via the CCR system will be kept from public view.