24.202 Prohibitions
Source: FAR 24.202 on acquisition.gov
FAR 24.202 strictly prohibits the release of proposals, certain pricing data, and ADR communications under FOIA, protecting contractor confidentiality unless the information is incorporated into a contract.
Overview
FAR 24.202 outlines specific prohibitions on the disclosure of certain types of information under the Freedom of Information Act (FOIA) in the context of government contracting. It protects the confidentiality of proposals submitted in response to competitive solicitations, certain pricing information, and communications related to alternative dispute resolution (ADR) proceedings. The regulation ensures that sensitive contractor and procurement information is not improperly released to the public, except under narrowly defined circumstances.
Key Rules
- Proposal Confidentiality
- Proposals submitted for competitive solicitations cannot be disclosed under FOIA unless incorporated into a contract.
- Exempt Pricing Information
- Information obtained under FAR 15.403-3(b) that is exempt from FOIA cannot be disclosed by any agency.
- ADR Communication Protection
- Dispute resolution communications between a neutral and a party in ADR proceedings are exempt from FOIA disclosure if protected under 5 U.S.C. 574.
Responsibilities
- Contracting Officers: Must ensure proposals and protected information are not released under FOIA unless specifically allowed.
- Contractors: Should mark and identify proprietary or sensitive information in proposals and be aware of what may be disclosed if incorporated into a contract.
- Agencies: Must implement procedures to safeguard exempt information and train staff on FOIA prohibitions.
Practical Implications
- This section exists to protect sensitive business information and maintain the integrity of the procurement process.
- Contractors can be assured that their proposals and certain communications will remain confidential unless incorporated into a contract.
- Common pitfalls include accidental disclosure of protected information or misunderstanding what becomes public record after contract award.
(a) A proposal in the possession or control of the Government, submitted in response to a competitive solicitation, shall not be made available to any person under the Freedom of Information Act. This prohibition does not apply to a proposal, or any part of a proposal, that is set forth or incorporated by reference in a contract between the Government and the contractor that submitted the proposal. (See https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3309&num=0&edition=prelim" target="_blank">10 U.S.C. 3309 and http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section4702&num=0&edition=prelim" target="_blank">41 U.S.C. 4702.)
(b) No agency shall disclose any information obtained pursuant to 15.403-3(b) that is exempt from disclosure under the Freedom of Information Act. (See https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section3705&num=0&edition=prelim" target="_blank">10 U.S.C. 3705(c)(3) and http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title41-section3505(b)(3)&num=0&edition=prelim" target="_blank">41 U.S.C. 3505(b)(3).)
(c) A dispute resolution communication that is between a neutral person and a party to alternative dispute resolution proceedings, and that may not be disclosed under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section574&num=0&edition=prelim" target="_blank">5 U.S.C.574, is exempt from disclosure under the Freedom of Information Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section552(b)(3)&num=0&edition=prelim" target="_blank">5 U.S.C. 552(b)(3)).