Better Proposal Preparation with Freedom of Information

Published: June 11, 2019

ASSOCIATE ATTORNEY GENERAL (JUSTICE)Business DevelopmentContract AwardsGovernment PerformanceDOJOpportunities

Access valuable market intelligence and gain a competitive edge with Deltek's FOIA services, available with a GovWin IQ subscription.

Overview of FOIA

The Freedom of Information Act, more commonly known by the acronym FOIA, provides the American public the right to request access to records from any agency in the Federal Government.  Signed by President Lyndon Johnson in 1967, it is known as the law that keeps citizens in the know about their government.  Agencies are required to disclose any information requested under the FOIA.  However, there are nine exemptions which were established for certain categories of information in order to protect interests such as national security, personal privacy, company confidential information, and harm to ongoing law enforcement investigations.

FOIA requests are processed by each of the federal agencies, although the Office of Information Policy (OIP) at the Department of Justice (DOJ) is responsible for issuing government-wide guidance.

FOIA Requests on the Rise in FY 2017 & FY 2018 

In FY 2017, the government received a record 800,000 FOIA requests.  Altogether, agencies processed approximately 823,000 requests.  This represents an 8.3% increase from the previous year.  Additionally, the backlog of unfulfilled requests was reduced by 3.2%.  Despite the government-wide hiring freeze, agencies have made great progress in working to improve their responsiveness.

The following chart highlights the top ten agencies which received requests in FY 2017.  The bars for each agency illustrate the total number pending at the start of the fiscal year, the total number received during the fiscal year, and the total number pending at the end of the fiscal year.  The grey line illustrates the total number of processed requests.  It should be noted that data for the branches of the military are reported with the Department of Defense (DoD).  

Data Source: www.foia.gov

In FY 2018, the government once again set a record high for FOIA requests, receiving a total of 863,729.  This is an increase of 5.6% from FY 2017.  The DOJ OIP reported that five agencies received over 70% of all requires, including the Department of Homeland Security (DHS) (46%), DOJ (11%), DoD (7%), National Archives and Records Administration (NARA) (6%), and the Department of Agriculture (USDA) (4%).  

This chart illustrates the top agencies for FY 2018.  Comparing the data from FY 2017, it’s clear that the same agencies consistently receive the largest share of FOIA requests.  There are some variations in the number of new requests, which impact the rankings of some agencies on the chart.  For example, DoD received a total of 57,032 – an increase from the 55,198 received in FY 2017.  NARA received 52,850 requests – a decrease from the 60,337 received in FY 2017.

Data Source: www.foia.gov

Deltek’s FOIA Services

As part of a GovWin IQ subscription, clients have access to FOIA Services.  Deltek uses a team of experts who have extensive experience with FOIA and handling requests.  Documents in high demand include:

  • Contracts
  • Contract Modifications
  • Task Orders
  • Statements of Work
  • Bid Abstracts
  • Pricing Documents

Some documents that clients request include information which is potentially proprietary in nature.  As a result, they are redacted using Exemption 4.  This covers trade secrets, commercial or financial information obtained from a person that is privileged or confidential.   In some instances, Deltek will receive the documents.  However, they are commonly denied.  The government has the final authority on the information they deem appropriate to release.

The following is a list of documents which contain potentially proprietary information:

  • Source Selection Documents – these are often released publicly by NASA
  • Bid Abstracts – these are often released publicly for construction projects
  • Performance Reports
  • Proposal Documents – a law was passed in September 1996 which prohibits the release of proposal documents unless they are incorporated or referenced in the contract
  • Subcontracting Information
  • List of Proposal Submissions – exempt from release under Exemption 5, which covers inter-agency or intra-agency memoranda or letters that are protected by legal privileges
  • Section B (Unit Pricing) – exempt from release under Exemption 4.  Rates are considered to be “trade secrets” and could cause competitive harm to the company in question

Each FOIA request is charged a non-refundable fee of $100.  Agency fees of up to $100 are covered by Deltek.  Any fees exceeding $100 are not covered.  Clients will be notified of the extra fees and approval will be required before proceeding.  If agency fees exceed $500, prepayment will be required from clients before Deltek moves forward. 

The US Department of State (DoS) charges an additional $300 processing fee, which is used towards associated document costs.  Because of this, Deltek requires a $400 fee to submit a request with DoS. 

Agencies of Interest for Deltek Clients

While the data provided from the Federal Government demonstrates that submitting FOIA requests to DHS are popular with the American public at-large, Deltek clients have their own agencies of interest.  The following charts highlight the top ten agencies from which clients have sought documents dating back to FY 2017.  The bars represent the number of requests filed and closed during the fiscal year.  The grey line illustrates the average number of days for each agency to complete them.  The data indicates the most popular agencies for clients include the military branches, the DoD and the Department of Health and Human Services (HHS).  

Data Source: GovWin IQ

 

Data Source: GovWin IQ

 

Data Source: GovWin IQ

*Note: FY 2019 data is through June 5, 2019 and includes all agencies which received FOIA requests from clients

Tips for Clients on Filing a FOIA Request

  • First, check the Deltek contract Research Library to see if the information you are interested in is already available.  Over 37,000 documents are immediately accessible from previous requests
  • When filing a FOIA request, the following information must be included:
    • Identifiable information regarding the Agency the request is being sent to
    • An identification number if requesting contract or solicitation documents
    • A description of the documents being sought
  • The following information should be included, if possible:
    • A title for the requested documents
    • Vendor name, if requesting contract documents
    • A government point of contact, such as a contracting officer or contracting officer’s representative (COR)
  • When specifying the requested documents, provide as much detail as possible.  Make sure to specify all the “additional” documents
    • For example, if a client is interested in contract documents and the modifications to the contract, they need to specify they are interested in the latter as well as the former
  • There can only be one contract number or vender per petition for FOIA documentation
    • For example, if a client is interested in a contract and all of the associated task orders under it, this can be asked for under a single request, provided they are for the same Contracting Office.  However, if there are multiple agencies involved, a separate ticket will need to be submitted for each agency
  • In lieu of a request for specific documents, the government will make a self-determination on what they will release
  • Upon delivery of the documents, the government will consider the case closed and any additional information will require a new request
  • Any entity which falls under the Judicial or Legislative branches of government are exempt from FOIA
  • Once you’ve identified what documents you are looking to obtain, you can start the process by visiting Deltek’s FOIA Request page
  • If something is missing, clients can reply to the e-mail received with the documents to send a follow-up inquiry to the Deltek FOIA Services team
  • Plan ahead!  If you anticipate that you will need to file, look to do it as soon as possible
    • If there is a specific requirement that you’re tracking as a Forecast Opportunity Report, submit a FOIA in advance of a sources sought notice or request for information release
    • FOIA requests submitted in the run-up to a solicitation release may not be completed before the procurement process moves forward 
  • When filing, Deltek keeps the identification of clients anonymous at all times
  • Clients may submit an unlimited number of FOIA requests
  • General inquiries about FOIA may be directed to FOIA@deltek.com  
  • Specific inquiries may be directed to FOIARequest@deltek.com with the case number in the subject header

How long do FOIA Requests take?

The following table provides a listing of the top agencies from FY 2017 to the present which received at least 20 requests from Deltek clients and the average time for resolution.  The purpose of this chart is to provide insight on the promptness of agencies in resolving submitted cases.

Agency Average Time for Resolution
Department of Homeland Security 7 months, 6 days
Department of Commerce 6 months
Department of the Treasury 5 months, 27 days
National Aeronautics and Space Administration 5 months, 12 days
General Services Administration 5 months, 12 days
Department of Defense 5 months, 9 days
Navy 5 months, 2 days
Air Force 5 months, 2 days
Department of Health and Human Services 4 months, 4 days
Army 4 months
Department of Transportation 3 months, 24 days
Department of Veterans Affairs 2 months, 27 days

Data Source: GovWin IQ

It is important to remember that the average time to complete a request is going to vary based on its complexity.  If a client is seeking a large number of documents, it is reasonable to assume that it will take longer for the government to complete.

Some of the noteworthy outliers concerning the average timeframe include:

  • The Department of Housing and Urban Development (HUD) took over 1.5 years on average to respond to FOIA requests.  However, this is not a realistic average, as only 4 cases were filed by clients
  • The Corporation for National and Community Service (CNCS) was the fastest to respond – completing the single case filed by a client in 39 days
  • DOJ and the Office of Personnel Management (OPM) each took approximately 10 months to respond to FOIA requests.  Less than 10 cases were filed by Deltek clients for both of these agencies

Conclusion

The Freedom of Information Act (FOIA) provides the American public the opportunity to gain greater access to the workings of the Federal Government.  FOIA requests continue to increase and, despite the high volume, the government is diligently working to respond to them in a timely manner.  Clients should always consider taking full advantage of Deltek’s FOIA services, as it provides the chance to receive a variety of procurement documents and better prepare for follow-on opportunities.  However, they must prepare and submit their requests well in advance of the expected procurement, as a late request may not deliver the desired documents in advance of a follow-on Solicitation.  Despite the potential risks, as well as the investment in time and resources, the opportunity to obtain additional information and prepare a better proposal is a worthwhile reward.