9.105-3 Disclosure of preaward information
Source: FAR 9.105-3 on acquisition.gov
Preaward responsibility information must be protected and not disclosed outside the Government, except as allowed under FOIA, and must be properly marked if it contains sensitive data.
Overview
FAR 9.105-3 governs the handling and disclosure of preaward information, particularly data collected to determine a prospective contractor's responsibility. The regulation prohibits releasing such information outside the Government, except as allowed under the Freedom of Information Act (FOIA) and related FAR subpart 24.2. Contracting officers may discuss preaward survey information with the prospective contractor before making a responsibility determination, and after award, findings may be shared with the surveyed company. The section also emphasizes that preaward survey information may include proprietary or source selection information, which must be properly marked and protected in accordance with FAR 3.104-4. This ensures sensitive business information is safeguarded throughout the acquisition process.
Key Rules
- Non-Disclosure of Preaward Information
- Preaward responsibility information must not be released outside the Government, except as permitted by FOIA and FAR subpart 24.2.
- Discussion with Contractors
- Contracting officers may discuss preaward survey information with the prospective contractor before award, and with the surveyed company after award.
- Protection of Sensitive Information
- Preaward survey information containing proprietary or source selection data must be properly marked and protected per FAR 3.104-4.
Responsibilities
- Contracting Officers: Must safeguard preaward information, ensure proper marking of sensitive data, and control discussions with contractors as specified.
- Contractors: Should expect limited disclosure of preaward survey findings and may be consulted before and after award.
- Agencies: Must enforce information protection protocols and comply with FOIA and marking requirements.
Practical Implications
- This section exists to protect sensitive business and source selection information during the acquisition process.
- It impacts daily contracting by restricting information flow and requiring careful handling of proprietary data.
- Common pitfalls include improper disclosure or failure to mark sensitive information, which can lead to legal or competitive issues.
(a) Except as provided in subpart 24.2, Freedom of Information Act, information (including the preaward survey report) accumulated for purposes of determining the responsibility of a prospective contractor shall not be released or disclosed outside the Government.
(b) The contracting officer may discuss preaward survey information with the prospective contractor before determining responsibility. After award, the contracting officer or, if it is appropriate, the head of the surveying activity or a designee may discuss the findings of the preaward survey with the company surveyed.
(c) Preaward survey information may contain proprietary or source selection information and should be marked with the appropriate legend and protected accordingly (see 3.104-4).