FOIA | The Contracting Education Academy

November 30, 2011 By AMK

White House inaction stalls FOIA recommendations

Recommendations for improving how agencies handle governmentwide Freedom of Information Act requests have been awaiting approval at the Office of Management and Budget for more than nine months, the director of the office that wrote the recommendations told Nextgov.

The Office of Government Information Services is tasked with mediating disputes between FOIA requesters and the agencies processing those requests and with recommending policy changes to Congress and the president for how FOIA processing can operate more efficiently and transparently.

Congress created the office in 2007, when it passed the Open Government Act, which updated the four-decade-old old Freedom of Information Act.

The office, which opened its doors in September 2009, was intended to operate like a FOIA ombudsman that could mediate disputes and make recommendations from its perch inside the National Archives and Records Administration — relatively removed from the hurly-burly of government operations.

More than two years into its existence, however, the office hasn’t been able to make any recommendations.

OGIS Director Miriam Nisbet said she doesn’t know the cause of the delay. She declined to speculate except to say that OMB has been very busy since February, when OGIS submitted the recommendations, and processing them may have lost out to higher priority issues, such as overseeing the government’s numerous budget crises.

“I’m really hoping they’ll come out soon,” she said.

Nisbet also declined to say what’s included in the recommendations, except to note that they don’t go too far afield from issues the office has highlighted in reports and testimony before Congress.

In those, Nisbet and OGIS have advocated mostly for more FOIA training inside agencies, especially at higher levels, and for better communication between agencies and requesters.

President Obama has pushed several government transparency initiatives since taking office. Many of those are aimed at proactive disclosure of government information through tailored websites such as the government data set trove Data.gov and the Federal IT Dashboard, which tracks performance and spending on major government information technology projects.

His administration also has committed to improving FOIA processing by creating a professional track for administrators and employing new technology to speed notoriously slow processing times.

The average processing time for a simple FOIA request is nearly four months, with some complex requests taking a year or longer and turning up only a fraction of the requested information.

A March survey by the Knight Foundation found that only 13 of 90 agencies had made concrete changes to their FOIA procedures and the number of requests the government responded to had actually dropped despite an increase in FOIAs being filed.

On the ombudsman side, OGIS’ seven-person office has processed more than 750 cases in its first two years and fielded about 500 more inquires on minor issues, Nisbet said.

One of the major themes of disputes coming to OGIS is the time lag in getting responses out, which often stretches long beyond the statutory response period of 20 days, Nisbet said. That statutory period is far too short for most agencies to do a thorough search, she said, but agencies often don’t give requesters a good explanation for what’s causing the delay or when their responses might come through.

“We spend a fair amount of our time working with requesters and agencies on where their request [is] in the process and what needs to be done,” she said.

Another large share of OGIS disputes have to do with setting FOIA processing fees, which vary from agency to agency, and helping requesters refine broadly phrased requests for a faster response, Nisbet said.

— by Joseph Marks – Nextgov – 11/21/2011 – at http://www.nextgov.com/nextgov/ng_20111121_1823.php?oref=topnews.

February 15, 2011 By AMK

Publishing contracts online? Not so fast

Transparency, apparently, has its limits.

The Obama administration announced on Thursday it was withdrawing a proposal that would have required federal agencies to post copies of contracts and task-and-delivery orders on a public website.

Last May, the civilian and defense acquisition councils, which craft changes to the Federal Acquisition Regulation, published an advance notice of proposed rule-making. The councils said at the time they were seeking public comment on how best to amend the FAR “to enable public posting of contract actions, should such posting become a requirement in the future, without compromising contractors’ proprietary and confidential commercial or financial information.”

The councils heard from 15 respondents, including agencies, industry associations, advocacy groups and private individuals. Most of the responses criticized the plan as difficult to implement, unnecessarily burdensome to industry and a deterrent to competing for government work.

One respondent noted, “With more than 30 million transactions issued by the government annually, the redaction process alone would be overwhelming.”

Faced with stiff opposition and scarce resources to implement their proposal, the councils announced they were abandoning the effort. The notice said some of the information that would be disclosed already is available on federal websites and many nonclassified contracts can be obtained through a Freedom of Information Act request.

The councils also acknowledged the government does not have the capability or the resources at this point to guarantee that proprietary information would be protected if the proposal was implemented. The civilian and defense acquisition councils, which represent the Defense Department, General Services Administration and NASA, acknowledged the government runs the risk of lawsuits if they inadvertently release private information.

“The ongoing efforts to identify protections essential for safeguarding unclassified information are not yet sufficiently mature that such efforts can be bypassed to establish a contract-posting requirement prior to guidance on unclassified information,” the notice said. “To avoid inadvertent disclosures, the government would be required to review contractor-redacted documents before such items are posted to a public website.”

The proposal, which had drawn the ire of many industry groups, was pulled back on the same day House lawmakers debated whether agency regulations were stifling job growth.

The councils cited the costs associated with the plan, including technology, software and the time of contractor and government employees. “DoD, GSA and NASA advocate a judicious approach to establishing contract-posting requirements, one that will appropriately conserve resources and identify information that should be protected from general release to the public,” they wrote.

Ironically, the administration’s decision runs directly counter to a proposal then-Sen. Barack Obama had supported. While on the presidential campaign trail in 2008, Obama, along with Sens. John McCain, R-Ariz., and Tom Coburn, R-Okla., unsuccessfully proposed a bill that would have required agencies to post all contract documents online.

Obama’s Office of Management and Budget reaffirmed the administration’s commitment to posting contracts online in August 2009.

“I know there was opposition to the transparency proposal, but I thought that the public was in good hands since Obama supported spending transparency while in the Senate and on the campaign trail,” said Scott Amey, general counsel for the Project on Government Oversight, a watchdog group that backed the proposal. “I guess it’s harder to promote change from inside the White House.”

Amey argued federal websites that track contract spending provide only summary data while the FOIA process is often so slow that a long-term contract can be completed before the document is provided to a requestor.

The councils said they could revise the proposal at a later date, but such a plan would have to include a high-dollar threshold for contracts, a requirement for the successful offeror to redact portions of the contract and an incentive for the company to allow the contract to be published.

– By Robert Brodsky – GovExec.com – February 10, 2011

November 8, 2010 By AMK

Agencies slow to respond to requests for contractor data

Some federal procurement officers are refusing to publicly release contractor ratings data that may show agencies are not properly evaluating the performance of vendors who receive billion-dollar contracts, according to a consulting practice that regularly files Freedom of Information Act requests for the data.

In June, Jeff Stachewicz, founder of the FOIA Group, tried to obtain contractor evaluations from several agencies, including the departments of Defense, Energy and Interior, the Environmental Protection Agency and NASA. Interior and NASA released their contractor performance ratings, a move that Stachewicz applauds and attributes to President Obama’s push for greater transparency.

But it took months for FOIA officers to respond to the requests. Stachewicz believes that’s because some contracting officials did not want the public to see incomplete ratings contained in the Past Performance Information Retrieval System, and the application used to capture the information, the Contractor Performance Assessment Reporting System. Some agencies, such as the Defense, Homeland Security and Justice departments, denied his requests. Several of his other inquiries are still pending.

To better understand what was holding up his inquiries, Stachewicz filed a FOIA request to obtain e-mail correspondence between various agencies and Defense, which controls the databases. Two weeks ago, Energy provided him nearly 30-pages of redacted e-mails to and from Defense officials, including one exchange of messages indicating Energy had trouble obtaining its information from Defense.

In that exchange, an Energy official asked, “Is there someone within DOD that can or will release DOE performance data?” In reply, a Defense official in the database’s program office stated that a senior procurement analyst at the Pentagon had advised that the office “will not provide any ratings information in electronic or other format. DOD has not released this information in the past.”

Stachewicz says the e-mail indicates Defense was trying to block the information from consideration for release under FOIA at other agencies.

“That was the smoking gun. That one response was, ‘We don’t want to give that data out.’ In my opinion, that’s not proper. They were deliberately trying to avoid the FOIA by not giving it to the agencies to make a decision,” he said. “This flies in the face of the Obama transparency doctrine. It’s a report card . . . Let them kind of man up to their score.”

Stachewicz said while contractors are accountable for their scores, procurement officials who manage the scoring systems also are responsible for maintaining up-to-date, accurate and complete assessments. The procurement officials “are not trying to hide what’s there. They are trying to hide what’s not there,” he said.

In the past, federal auditors have sharply criticized agencies for filing insufficient evaluations of contractors that failed to provide project managers with information necessary to pick the best suppliers. Part of the difficulty is that the Office of Federal Procurement Policy has not established a way to standardize ratings scales across agencies nor made thorough documentation a priority, according to a 2009 Government Accountability Office report. Until such problems are resolved, the report said, the Past Performance Information Retrieval System “will likely remain an inadequate information source for contracting officers. More importantly, the government cannot be assured that it has adequate performance information needed to make sound contract award decisions and investments.”

Energy officials did not respond to several requests for comment.

Defense officials said it is not true that anyone stopped the department’s employees from releasing ratings information to the agencies. “If an agency has come to the CPARS or PPIRS program offices and requested a copy of the data they have submitted for their own review for potential FOIA release, we have provided it,” Defense spokesperson Cheryl Irwin said.

But “there are additional factors,” she said, listing several issues that have caused delays in distributing the ratings. Historically, for example, Defense has not released certain evaluations because of concerns about disclosing vendors’ competitive and confidential information. In addition, Stachewicz’s group submitted requests to many agencies, all of which landed in the Defense program’s office simultaneously.

“DoD coordinated with the Office of Federal Procurement Policy to understand if they wanted to make a governmentwide decision about releasability of the data,” Irwin said. The office, which is part of the Office of Management and Budget, has not done so, but has held conference calls with several agencies to gain an understanding of how each is handling the requests, she said.

Because there is no governmentwide policy on publicly releasing data from the contractor ratings systems, Defense is sending the information to the agencies for them to make decisions about disclosure, Irwin added.

“It has taken a couple of weeks to clear up some of the confusion from [such issues] and accomplish the necessary coordination with OFPP,” she said.

OMB officials confirmed that OFPP is convening conference calls with certain agencies about providing contractor ratings in response to FOIA requests. But each agency has discretion in choosing whether to publicly release its own data. Officials added they are unaware of any cases in which Defense has not provided agencies with their own ratings data or pressured agencies not to disclose their data.

The Office of Government Information Services, a new organization within the National Archives and Records Administration responsible for resolving FOIA disputes, said it is working with OMB and several federal agencies to examine procedures for consistently responding to FOIA requests for access to contractor performance ratings.

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