Your business was looking to earn a government contract and responded to a bid or RFP. An important one. Your team worked super-hard to get your bid submission exactly right. Sweated the details. Rewrote and rechecked your response a number of times, before you lost count of all the versions you cranked out.
Which explains why it stung when your business wasn’t awarded the contract. You want to know specific details on why a competitor won the contract and you didn’t.
So, you pick up the phone and call the government agency that let the contract. Alas, most often, your questions won’t be answered through a simple phone call.
What are you going to do to get at the truth of the matter and be able to understand why you didn’t win this contract opportunity?
If you’re a BidPrime customer, you’ll go to your dashboard and access our tool expressly designed for easy, quick construction of a formal, non-ignorable request for the awarding agency to provide answers.
You’re entitled under federal law, and under the separate laws of every state, to receive truthful information from government entities about the fine details of their public activities—for example, data related to the activities and decision-making surrounding the award of a particular contract.
As such, one of these formal requests for truthful information usually—emphasis on the word usually—yields a satisfactory explanation of why your bid didn’t win (or, at the very least, it will give you enough of a window into the agency’s decision-trail that you can forensically reconstruct how the winning bid was determined).
The rules that require such disclosure to you are articulated in a law known by its acronym—FOIA (pronounced “foy-yuh”). FOIA is short for Freedom of Information Act. As mentioned, every state has a FOIA, as does the federal government.
BidPrime’s FOIA Builder makes the request process easy. Requests for the release of government info under a FOIA must be done correctly or else you run the risk of having it rejected, having to start over, and wasting time. Our FOIA Builder helps ensure you get it right the first time.
How a FOIA can—and can’t—help you
Before we talk more about the BidPrime FOIA builder, let’s take a look at the law itself in order to get a sense of what FOIA can and can’t do for you. For purposes of this discussion we’ll consider just the federal FOIA, as articulated under 5 U.S.C. § 552.
The national FOIA compels the executive branch of the United States government and its agencies to, at a very minimum, partially disclose information they control but have not previously made public.
In essence, the federal Freedom of Information Act seeks to thrust the workings of government more out in the open where they can be analyzed, criticized, and corrected as necessary to make life better for all.
However, federal agencies can still hold their cards close to the vest if they have a good reason for maintaining secrecy. There are nine such good reasons spelled out in the law. By and large, these nine exceptions pertain to stuff like protecting national security, hiding the identities of our spies, or maintaining a wall of silence around ongoing criminal investigations.
If an agency decides it must remain mum about a matter, the law requires the agency cite which of the nine exceptions applies. So, what usually happens is an agency receives a FOIA request and produces the documentation sought, but lines out in thick black marker ink the facts and figures it wants to keep secret.
It would, of course, be easy for an agency to abuse this privilege and give you a document with everything blacked out except for the words “the” and “of” by simply declaring that the contents touch on matters of national security. Fortunately, the law anticipates this kind of mischief, so it includes provisions that permit censoring only if a reasonable person could reasonably expect actual harm to federal interests following release of the requested information.
It is important to note that federal FOIA rules do not apply to Congress or the courts. They also do not apply to any of the states.
What’s more, executive branch agencies that receive FOIA requests are obligated only to produce the relevant documents. They can say no to requests for research. They can also reject requests that are but disguised interrogatories posing the sorts of questions asked by lawyers during a discovery procedure.
When agencies fail to respond to FOIA requests in a lawful manner, the federal courts are supposed to step in and ensure compliance.
Agencies generally have 20 business days to respond to each FOIA request, although they can extend that by 10 business days if they need to obtain clarification of the request.
If the agency takes 10 or more of the allotted 20 days to answer the request, the agency is obligated to assign the request a tracking number which the requesting party can use to electronically monitor the agency’s progress toward producing a response.
Many agencies don’t assign enough employees to handle FOIA requests. As a result, responses sometimes take months, even years, to see the light of day—and, at that, usually not without a nudge or two from a judge. Current federal FOIA rules have created a mediation service to help keep complaints about the speediness or completeness of FOIA responses from having to be dealt with by the courts.
Meet the people behind the first FOIA
The federal Freedom of Information Act began life as a simple two-page bill back in the mid-1960s.
It became law on—symbolically—the Fourth of July. The year was 1966, but the law contained language that prevented it from taking effect for 12 months after that.
Since then, the law has been amended, revoked, reinstituted, and amended some more. Modifications have been made legislatively and by executive order. Some changes have made the law stronger while others have done the opposite. Even so, the law as it exists today pretty much reflects what existed at the very beginning.
One of the more important changes to the FOIA came in 1996. It was the addition of a provision requiring that federal agencies begin making requested documentation available in electronic form (it is because of this requirement that BidPrime is able to offer a tool as effective as the FOIA Builder).
John Moss, a member of the California delegation to the House of Representatives and chairman of the Government Information Subcommittee, was the law’s champion. He had been pushing for a federal FOIA for over a decade.
Moss wanted this in order to put a stop to the leak-mania that was rife in the Defense Department during the 1950s. He believed that the Pentagon’s system of classifying documents was way too stringent. Documents marked “confidential” meant the public could not see them—but the overwhelming bulk of documents so stamped were undeserving of that designation, which is why they were leaking all over the place.
Moss felt opening these records would pose no risk to national security and would make it less likely documents that did pose such a risk would be sucked into the vortex of leaks.
The bill that would eventually become the enacted law was written by a private-practice attorney named Mark Schlefer (who passed away in November at his family home in Putney, Vermont).
Schlefer joined Team FOIA as a result of some difficulty one of his clients experienced. The story goes like this:
The client was a transpacific shipper attempting to move vessels carrying coconuts, raw sugar, and rubber from southeast Asia. The shipper asked Schlefer to file paperwork on its behalf with the Federal Maritime Commission so that the vessels could lay over in the Mariana Islands.
Schlefer handled the matter. It was all very routine. A few days later, the commission contacted Schlefer and informed him that it would be against the law for the shipper to drop anchor in the Mariana Islands.
Apparently, the commission’s general counsel had concluded that what the shipper wanted to do—which up until that moment had been perfectly legal—could not be allowed. Schlefer asked to see a copy of the counsel’s memo in which would be spelled out the legal reasoning behind this very adverse opinion.
The commission said it could not disclose that document. Why not? he responded. Because the general counsel felt his opinion was a confidential matter, the commission replied.
Outraged, Schlefer informed the commission that he was advising his client to go ahead and stop at the Marianas. The response to the commission: Schlefer warned that an attempt to blockade the shipper would result in a lawsuit, during the course of which the commission’s general counsel would be called as a witness and compelled on the stand to reveal the details of his “confidential” opinion.
The commission backed down, but Schlefer remained focused. He drafted proposed legislation to prevent the maritime commission and all other federal agencies from hiding basic information about which the public should have a right to know. Schlefer shared his draft with the American Bar Association which wholeheartedly endorsed it. He then learned of Congressman Moss and his lengthy quest to get a FOIA on the books.
Schlefer met with Moss and showed him the draft legislation. Moss thought it was excellent and offered to introduce it on the floor of the House.
The rest is history.
How to use BidPrime’s FOIA Builder
BidPrime’s FOIA Builder tool is designed to leverage all the hard work of Schlefer and Moss and the countless others who have followed in their footsteps to ensure that things the government does are bathed in transparency.
BidPrime's FOIA Builder is part of our Vendor Resource Center, which is (like the FOIA Builder) available exclusively to BidPrime customers.
The FOIA Builder guides you through the steps and available options of generating a FOIA request for submission, in accordance with the applicable laws.
You can use this letter generator to request access to records held by a state or local government agency or body (including public school districts, city or county procurement departments, state boards of health, public utility districts, and so forth).
(If you want to obtain records held by the federal government, we recommend using the letter generator offered by the Reporters Committee for Freedom of the Press.)
FOIA requests are easy to construct with BidPrime’s FOIA Builder.
First, you include information related to the solicitation for which you are seeking information. The more specific you are about the information you want, the less likely it is that you’ll encounter delays in obtaining a response.
Next, you key in your name and email address, if so prompted (many agencies require this basic info for their own records). You’ll also possibly be asked to supply relevant information about your company.
Finally, review the completed request prepared in the FOIA Builder.
If you’re satisfied with it, click the "Copy" button and paste it in your email. BidPrime posts key Agency Contact Data within bid itself. You can email directly to the individual listed as the agency point of contact. In some cases, the individual may direct you to another individual -- a clerk or records specialist -- or web-based system to submit your request.
A small number of agencies may charge you a small fee to obtain the desired information. These, however, are more the exception than the rule with State and Local entities.
And that’s all there is to it. What could be easier?
You’ll find that BidPrime’s FOIA Builder tool is an outstanding way to gain the insights you need in order to put your best foot forward as you go forward.
Learn more about our FOIA Builder tool—and more about everything BidPrime. Give us a call at 888.808.5356 or visit us at BidPrime.