Public comments halt changes to vendor transparency rules

By John Buckner
Federal News Radio

The Department of Defense, General Services Administration and NASA decided against amending the Federal Acquisitions Regulations to increase transparency in government contracting – for now.

The councils withdrew their notice of proposed rulemaking Thursday after determining information can be viewed on acquisition websites or through a Freedom of Information Act request.

The councils received 44 comments on the advanced notice of proposed rulemaking from agencies, industry associations, advocacy groups and private individuals.

  • Comment: The majority of respondents expressed concern about addressing transparency initiatives outside the context of the FOIA. Concerns focused around whether there is a need to conduct a FOIA analysis prior to making a determination on the disclosure of protected information in an effort to meet transparency initiatives.
    Councils’ response: DoD, GSA and NASA understand that the FOIA regulations and procedures and the Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, must be closely examined by the FOIA experts and adequately addressed as consideration is being given to what contract documents to make available to the public.
  • Comment: Some respondents maintained that requiring public posting of all contract actions would result in significant cost and administrative burdens, both for contractors and for government, and in addition, would involve unnecessary duplication of efforts.
    Councils’ response: DoD, GSA and NASA take note of this concern. The cost increases mentioned will be considered in any determination concerning contract posting requirements.

Other comments the councils received stated increased transparency would decrease competition which the councils did not support.

Also, some respondents supported public access of contracts, which include information about prices and costs after they have been awarded. The respondents in these areas did acknowledge that information that could potentially harm a contractor should remain classified if those harms outweigh the public benefit.

The councils took these comments into consideration and say they understand the importance of protecting unclassified information. Along with feedback on the issue, respondents also offered alternatives.

Some of the alternatives included:

  • Every page of a successful offeror’s proposal not marked as proprietary would be posted on the Web.
  • Submitting of a redacted copy of a contract for public posting.
  • Establishing a threshold for example below $10 million, for which contracts need not be posted.
  • Require posting of only the statement of work/performance work statement and deliverable schedule with exemptions to documents containing propriety information.

The councils took all of these comments into consideration and assessed that when posting requirements are determined, these suggestions should be included. DoD, GSA and NASA say no posting requirement can be successful without protections for both contractor and government employees.

John Buckner is an intern with Federal News Radio.

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