How Businesses can Unlock Government Information through the FOIA

Dealing with both federal and state governments can be a complicated—and sometimes bewildering—process for businesses. Whether navigating the arcane procedures of government contracting or contending with perceived favoritism toward certain vendors, many businesses find themselves in the dark about how contracts are awarded.

In today’s highly competitive marketplace, this lack of transparency can leave businesses at a disadvantage, particularly when some organizations appear to be favored over others. However, the Freedom of Information Act (FOIA) serves as a powerful tool, allowing businesses to access crucial information about government operations, contract awards, and competitors. Understanding how to leverage FOIA effectively can give small and mid-sized businesses a significant edge in navigating the complex world of government contracting.

Rights to Records has an expert team with over 45 years of federal and local government experience dedicated to helping businesses gain access to key records and use that information to compete and succeed.

Unique Considerations for Commercial Requesters Under FOIA

For business requesters, FOIA presents two unique considerations:

1. Accessing Competitor Submissions: The records businesses often seek are not traditional “government records” but rather submissions made by competitors to government agencies. These are held to a different disclosure standard. Rights to Records specializes in navigating these nuances—challenging submitter notices, shifting burdens of proof, and leveraging the lowered standards for disclosure under recent case law.

2. Fee Assessments and Timelines: FOIA allows agencies to impose fees on commercial requesters, unlike academic or public-interest requesters. However, the law also places strict timelines and procedural burdens on agencies. Rights to Records understands how to use these provisions to minimize or prevent unnecessary fee assessments while ensuring timely processing of your requests.

What Is FOIA for Businesses?

The Freedom of Information Act (FOIA) is a federal law granting the public the right to request access to records from any federal agency. It promotes transparency and accountability in government, enabling citizens—including business owners—to obtain valuable information that can inform strategy and decision-making.

For businesses, FOIA can open access to data about contracting processes, bids, competitor submissions, and agency notices. Rights to Records has successfully helped organizations obtain the following types of information through FOIA:

1. Access to Contract Award Information

   • FOIA requests can reveal details about government contracts, including award criteria, contract amounts, and winning entities. This insight helps small businesses identify new opportunities and understand the competitive landscape.

2. Understanding Competitors

   • By requesting information on competitors’ contracts, businesses can gain insights into the types of products or services being procured and the associated pricing structures. This knowledge helps refine proposals and align offerings with government needs.

3. Insight into Agency Needs and Priorities

   • FOIA can uncover the strategic goals and priorities of government agencies, helping businesses tailor their services to meet current and future needs—ultimately improving bid relevance and effectiveness.

4. Challenging Unfair Practices

   • If a business suspects unfair practices in contract awards, FOIA can be used to gather evidence supporting administrative appeals or litigation. Accessing evaluation documents can expose irregularities and promote fair competition.

5. Identifying Conflicts of Interest

   • Unfortunately, conflicts of interest sometimes arise in government contracting. Under the diminished privacy expectations established in Reporters Committee for Freedom of the Press, FOIA can help identify key decision-makers and uncover potential biases or conflicts influencing contract awards.

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The Argus Holding and the Diminished Standard: How Rights to Records Can Go Further Than a Standard Request

A pivotal case in the FOIA landscape is Argus Leader Media v. U.S. Department of Agriculture. In this decision, the Supreme Court redefined the standards for withholding information under FOIA—specifically revising what had long been a more conservative approach under Exemption (b)(4).

The Court ruled that the government must demonstrate not only that the information is “confidential,” but also that its release would cause substantial competitive harm to the business providing it. This diminished standard of protection means that more information may now be accessible to businesses than previously thought—offering clearer visibility into the contracting landscape and promoting greater fairness in the process.

How Rights to Records Can Help

For businesses seeking to compete for government contracts, leveraging FOIA can be a game changer. Access to vital information about contracts, competitors, and agency priorities can enhance strategy, improve competitiveness, and level the playing field.

The reduced standards established in Argus Leader further empower businesses to request and obtain critical data that was once difficult to access. Don’t hesitate to use FOIA—it’s a pathway to greater transparency and opportunity in government contracting.And don’t hesitate to contact Rights to Records for expert guidance and support.

What Rights to Records Can Help Businesses Access Under FOIA

The FOIA exists to ensure public understanding of government operations, and transparency in contracting is a vital part of that mission. Rights to Records has successfully obtained vital records that have helped businesses compete more effectively, including:

1. Understanding Contract Award Processes

• Obtain Award Criteria: Request documentation explaining how contracts are awarded, including scoring matrices and evaluation criteria. This allows businesses to tailor proposals to agency needs.

• Access Bid Tabulations: Review previous bid tabulations and award decisions to understand competitor pricing and the factors driving their success.

2. Analyzing Competitor Strategies

• Review Competitor Proposals: FOIA requests can yield information about competitors’ pricing structures, methodologies, and service offerings—valuable insights for refining your own bids.

• Identify Successful Practices: Study successful bids to identify best practices and strategies to strengthen future proposals.

3. Gathering Market Intelligence

• Identify Contracting Trends: Request historical contract data within specific industries to uncover trends such as frequently awarded contract types and common award values.

• Understand Agency Priorities: Learn about agency goals and initiatives to help focus business development efforts and resources.

4. Challenging Unfair Practices

• Gather Evidence for Appeals: FOIA can help gather documentation to support an appeal or legal challenge if a business believes a contract was awarded improperly.

• Document Regulatory Violations: Request records revealing potential violations of procurement laws or regulations for advocacy or legal purposes.

5. Enhancing Proposal Development

• Request Clarification Documents: Use FOIA to obtain communications between agencies and bidders for clarity on confusing RFP requirements.

• Access Past Performance Evaluations: Review past evaluations to understand what factors led to successful or unsuccessful bids.

6. Networking and Relationship Building

• Identify Key Contacts: Obtain organizational charts or personnel listings to identify agency procurement officials and decision-makers.

• Follow Up on Agency Needs: After identifying agency priorities, reach out proactively to offer tailored solutions.

7. Strategic Planning and Positioning

• Assess the Competition: Analyze prior contract awards and competitor performance to target niches and underserved markets.

• Set Competitive Pricing: Understand competitors’ pricing to ensure your bids are competitive yet profitable.

Partner with Rights to Records

Rights to Records can help your organization gain access to these records and processes—empowering your business with critical insights and enabling you to compete on a level playing field in the government contracting marketplace.