I’ve received a number of questions lately from proposal professionals who want to know more about the Freedom of Information Act (FOIA) and, specifically, whether they have to respond to an RFP before they’re able to submit a FOIA request.
The short answer is no, submitting an RFP is not required in order to submit a FOIA request. Anyone can submit a FOIA request to receive, for example, a copy of the proposals that were submitted for a particular bid.
Background
The Freedom of Information Act (FOIA) is a federal law that governs federal agencies (not judicial or legislative branches). Basically, FOIA allows people to request a copy of records from a federal agency. To submit a FOIA request, all you have to do is follow the federal submission guidelines and sometimes pay a small fee. The fees are generally limited to things like the cost of making copies.
There are nine exemptions to FOIA rules. For example, an agency doesn’t have to produce records that relate to national security, involves someone’s personal information, etc. For proposal professionals, the one exemption that impacts us the most involves commercial or financial information that is deemed confidential. In other words, if I submit a proposal in response to an RFP, I generally have the right to declare certain sections as being confidential. If anyone requests a copy of my proposal, the agency can redact the sections that I’ve deemed confidential.
Neither state governments nor businesses are subject to FOIA
State governments are not covered under FOIA rules, but states do have open records laws that serve the same purpose. The problem here is that each state has its own rules. This means you will have to look at each state’s website for instructions about how to request records.
Commercial organizations are not governed by FOIA, either. In fact, commercial organizations are under no obligation to provide any information they don’t want to share.
Proposal professionals should ask for copies of proposals
The more we learn about our competitors, the better we’re able to position our services against them. There’s no better way to gain competitive information about other vendors than to read one of their sales proposals. This is why, at The Seibert Group, we regularly encourage our clients to request copies of proposals that were submitted for a particular bid–regardless of whether they submitted a bid.
When you receive a copy of a competitive bid, take time to analyze your competitor’s content to identify any unique or innovative capabilities they’re promoting. Also, pay special attention to sections where they’re asked to articulate their advantages over the competition. It can be enlightening to read what your competitors are saying their unique strengths are over you.
While we’re on the subject, recognize that your competitors are also getting copies of your proposals. They’re analyzing your message, and they’re also reading what you say about them. Depending on the state, you may be able to identify certain sections or passages as confidential information. Take advantage of this right. If you can protect your pricing, or any sections of your proposal that you consider confidential or proprietary, it will at least make it more difficult for your competitors to learn about and duplicate your efforts. The less information you can share with your competitors, the better off you’ll be.
Note: I am not an attorney, and I am not an expert on FOIA or open records laws. I advise anyone who is interested in this topic to either hire an attorney who is versed in this, or research the topic yourself. You can read more about the Freedom of Information Act at FOIA.gov. You can read more about each state’s open record laws at their respective state websites.