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DOE Office of Hearings and Appeals decision re contractor performance evalutions

DOE Office of Hearings and Appeals decision re contractor performance evalutions

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Published by John R. Fleck

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Published by: John R. Fleck on Jan 31, 2012
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Name of Petitioner:FOIA Group, Inc.Date of Filing:December 9, 2010Case Number:TFA-0454On December 14, 2010, the FOIA Group, Inc. (Appellant) perfected an Appeal from adetermination issued to it on December 7, 2010, by the Office of Procurement andAssistance Management (Procurement) of the Department of Energy (DOE). In thatdetermination, Procurement responded to a request for information that the Appellant hadfiled under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by theDOE in 10 C.F.R. Part 1004. In its determination, Procurement withheld the requestedinformation. In its Appeal, the Appellant challenges Procurement’s withholding. TheAppeal, if granted, would require Procurement to release the requested information.
I. Background
On June 13, 2010, the Appellant requested “[a]ll Final Contractor Performance RatingReports . . . for the most recently available 3 year period.” Request E-mail dated June 13,2010, from Appellant to DOE. On December 7, 2010, Procurement responded to thisrequest, withholding all responsive information pursuant to Exemption 3 of the FOIA.Determination Letter dated December 7, 2010, from Patrick M. Ferraro, Acting Director,Procurement, DOE, to Appellant.On December 14, 2010, the Appeal was finalized with our receipt of the DeterminationLetter. E-Mail from Alexander C. Morris, FOIA Officer, Office of Information Resources,DOE, to Janet Fishman, Office of Hearings and Appeals (OHA). In the Appeal, theAppellant claimed that first, Procurement erred by not segregating the specific ratingscores. Appeal E-Mail dated December 9, 2010, from Appellant to (OHA). Second, theAppellant claimed that President Obama’s new FOIA doctrine requires a presumption ofopenness when administering the FOIA.
at 2.
II. Analysis
- 2 -Exemption 3 of the FOIA allows agencies to withhold information if specifically authorizedby another federal statute. However, the authorizing statute must satisfy one of twocriteria. It must either (i) require that the information be withheld from the public in sucha manner as to leave no discretion on the issue, or (ii) establish particular criteria forwithholding or refer to particular types of information to be withheld. 5 U.S.C. § 552(b)(3).The Supreme Court has established a two-prong standard of review for Exemption 3 cases.
See CIA v. Sims
, 471 U.S. 159, 167 (1985). First, the agency must determine whether thestatute in question is a statute of exemption as contemplated by Exemption 3.
at 167.Second, the agency must determine whether the withheld material satisfies the criteria ofthe exemption statute.
We have previously found that the Procurement Integrity Act (PIA), 41 U.S.C. § 423, is astatute of exemption as contemplated by Exemption 3.
See U.S. Ecology, Inc.
, 25 DOE¶ 80,153 at 80,632 (1995);
Energy Research Corp.,
21 DOE ¶ 80, 130 at 80,600 (1991). The PIAis a federal statute that contains language specifically prohibiting the authorizing officialfrom releasing protected information. In the PIA, Congress referred to the type ofinformation that must be withheld as “source selection information.” 41 U.S.C. § 423(a)(1).However, Congress carefully identified documents that make up source selectioninformation. 41 U.S.C. § 423 (f)(2)(A)-(J).Our next question is whether the information requested in this case falls under thedefinition of the PIA of “source selection information.” In pertinent part, the Act statesThe term “source selection information” means any of the followinginformation prepared for use by a Federal agency for the purpose ofevaluating a bid or proposal to enter into a Federal agency procurementcontract, if that information has not been previously made available to thepublic or disclosed publicly.41 U.S.C. § 423(f)(2). According to Procurement, the information requested is completed
the performance of a contract,
for the purpose of evaluating a bid or proposalto
enter into
a contract with the DOE. E-Mail dated January 12, 2011, from Edward Marceauto Janet Fishman, OHA, DOE. Therefore, we do not believe that this requested informationfalls under the definition of “source selection information,” as defined in the PIA.We note that Procurement also cites a provision in the Federal Acquisition Regulations(FAR) to withhold the requested information under Exemption 3. The FAR is not a statuteand we cannot find any judicial support that it can be used under Exemption 3 to withholdinformation. Therefore, we will remand the matter to Procurement for a newdetermination either releasing the requested information or issuing a new justification thatcites a statutory basis for withholding the information.

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