5.401 General
Source: FAR 5.401 on acquisition.gov
Protecting sensitive acquisition information is essential to maintain fairness and integrity in government contracting.
Overview
FAR 5.401 emphasizes the importance of maintaining business security and confidentiality throughout the acquisition process. It outlines the responsibilities of contracting officers and all government personnel involved in acquisitions to protect sensitive information, especially when interacting with potential contractors or the public. The section specifies what information may be released and what must be withheld to prevent unfair advantages, protect confidential submissions, and comply with legal requirements such as the Freedom of Information Act (FOIA) and the Privacy Act.
Key Rules
- Business Security and Confidentiality
- Contracting officers must safeguard the integrity of the acquisition process by not publicizing or discussing sensitive information obtained from potential contractors.
- Release of Information
- Maximum information may be released to the public, except for information that could provide unfair advantage, is received in confidence, is protected by law, or pertains to internal agency communications.
- Applicability to All Personnel
- The policy applies to all government personnel involved in any stage of the acquisition cycle, directly or indirectly.
Responsibilities
- Contracting Officers: Ensure sensitive information is not disclosed inappropriately and only permissible information is released to the public.
- Contractors: Should provide information with the understanding that confidential submissions will be protected.
- Agencies: Must train and oversee personnel to ensure compliance with information protection policies.
Practical Implications
- This section exists to prevent leaks of sensitive acquisition information that could compromise competition or violate legal protections.
- It impacts daily contracting by requiring vigilance in handling information, especially during market research and communications with industry.
- Common pitfalls include accidental disclosure of confidential or protected information, which can lead to protests, legal violations, or loss of public trust.
(a) A high level of business security must be maintained in order to preserve the integrity of the acquisition process. When it is necessary to obtain information from potential contractors and others outside the Government for use in preparing Government estimates, contracting officers shall ensure that the information is not publicized or discussed with potential contractors.
(b) Contracting officers may make available maximum information to the public, except information-
(1) On plans that would provide undue or discriminatory advantage to private or personal interests;
(2) Received in confidence from an offeror;
(3) Otherwise requiring protection under Freedom of Information Act (see subpart 24.2) or Privacy Act (see subpart 24.1); or
(4) Pertaining to internal agency communications (e.g., technical reviews, contracting authority or other reasons, or recommendations referring thereto).
(c) This policy applies to all Government personnel who participate directly or indirectly in any stage of the acquisition cycle.