Privacy · Legal

Can you prevent your public contracts from being disclosed online?

Anonymous

December 29th, 2014

I recently became aware that a web site, www.publiccontractors.com, openly publishes broad sets of contract data retrieved from government agencies across the US. [PublicContractors.com is owned by www.SmartProcure.us , which apparently sells that data to companies who want to get some leverage when negotiating their contracts.]

While investigating the issue,I have come to understand that this data is available under the Freedom of Information Act (FOIA), through a process called "Public Records Requests".

From what I've seen, it looks like PublicContractors.com and/or SmartProcure made very broad requests (such as "give us all your contracts data for X number of years") and then resells that data. My questions are legal in nature and I understand that I am not going to get legal advice here. However, I was wondering if anyone had run into that situation already and had managed to prevent that data from being leaked out to commercial outfits and most importantly from being available in the open through a simple Google search.

I also have a few additional questions:

1. Even if a EULA prohibits disclosing financial information (such as prices) to third parties through a confidentiality clause, does the FOIA always supersede that clause when dealing with government agencies?
2. Assuming you can't prevent a government agency from disclosing that information (either because they are mandated by law or don't have the resources to investigate who is making those public records requests and for which purpose), are there any legal provisions that grant a businessprivacy rightsthat could be used to force companies such as SmartProcure to delete the information they hold about a business? I am asking the question, because it seems to me that most privacy laws concern individuals, not businesses.

Thanks in advance for any insight.

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Clynton Caines SharePoint Developer at Discover Technologies

December 29th, 2014

That's a lot to answer, but here are a few things to consider. (I am not an attorney or advisor, and the following does not constitute any advice of any kind).

The federal government is required by law to make bid requests and subsequent contracts openly available to the public. This is a huge job - and they take it very seriously. Companies like the one you mentioned get information from various outlets and resell it, but it's openly available directly (example, visit websites: sam.gov, fbo.gov, defense.gov, etc - or even just google!).

Bid requests generally have instructions that deal with proprietary information/trade secrets - with information about how to keep it private, but the rest of the bid response (95% maybe) can/is made public - especially after an actual win. Non-winning price information may not be subject to disclosure, but the total amount of the final winning bids are disclosed.

Another website with information on this topic is sba.gov.

As far as the FOIA goes, that's basically used when someone really, really wants to get info that the government is being tight-lipped about - and it generally works... eventually.

If you need more specific info in regards to your situation, you probably need to consult an attorney/CPA firm that operates in the space. Actually, SBA and SCORE have people that can help answer these types of questions too, but it could take a while to arrive at your answer.

Good luck.

Anonymous

December 29th, 2014

Hi Clynton,

Thank you for your response, I definitely appreciate it. I should have clarified that, in my situation, I am dealing with local government agencies (or assimilated) such as local transportation agencies or state-funded universities and that those purchases are not done through an open bid, because the amounts are below the threshold where an open bid is required. Therefore, the information is not public by default and must indeed be requested by third parties in order to be disclosed to those third parties.

I will take a look at how SBA and SCORE can help here, and I appreciate the pointers!

Scott Elrod mHealth technologist☁ex-COO/CIO@Cloud 9-tech for behavioral health■ex-CIO@AmeriDoc(now Teladoc) healing 1.5M patients

December 29th, 2014

For a shortcut, go 1 step above the specific university you are targeting. If it is a system school, as in Univ of Texas at X, or Univ of California at X, the state-wide UT or UC system has operating budget, and RFP / RFQ info available at the central library.

To fast track that process, do a google search or rfp database search on a best guess contract of your competitor for an existing winning bid; reference that known public info and get the local college controller's office to send you the specific FOIA-esque new details you really want.  No need to get the attorney's involved.

Starting sites:
http://www.rfpdb.com/
https://www.findrfp.com

Next step, I'd go with finding an RFP consultant specializing in your industry. You can grab 1 hour of their time for cheap:
https://clarity.fm/search/RFP