1 September 1997
interest, the information will be withheld.
2-12. Release of Government Estimates
under the Freedom of Information Act
(1) Before contract award.
(a) When sealed bidding is used, neither the
a. The Government estimate and Government
Government estimate nor the Government estimate
estimate backup data, prepared for construction
backup data should be released prior to bid opening.
contracts and modifications, are sensitive
FAR 36-203(c), 36.204. It is well established that
procurement information and should in many cases
release of Government estimates and backup data
be withheld under the FOIA.
before contract award would harm the interests of the
Government. FAR 36.203, Federal Open Market
Committee v. Merrill, 443 U.S. 340 (1979),
Morrison-Knudson v. Department of the Army, 595
(1) Government estimate. The Government
F. Supp. 352 (D.D.C. 1984), aff' 762 F.2d 138 (D.C.
estimate consists of a title page, signature page, and
(b) The Government estimate will normally be
(2) Governments estimate backup data. The
released when bids are opened. In some instances,
Government estimate backup data is the detailed cost
however, the Government estimate will not be
data, which includes production and crew develop-
released at that time, such as when all bids received
ment methodology, labor, equipment and crew
are nonresponsive and a re-procurement is
backup files, subcontractor quotes, and all other data
identified on MCACES software as detail sheets.
(c) In negotiated procurement for construc-
(3) Fair market price determinations, under
tion under FAR Parts 15 and 36, the Government
the Small Business Program, Federal Acquisition
estimate should not be released prior to contract
Regulations (FAR) 19.202.6, will be treated as
award, except that Government negotiators may
Government estimates for purposes of this guidance.
disclose portions of the Government estimate in
negotiating a fair and reasonable price, see FAR 36-
(4) Supporting documents that are publicly
available as part of the solicitation, such as plans,
specifications and project description, or that contain
(d) Government estimate backup data should
no cost information, such as sketches, soil boring and
not be released.
material classifications, are not part of the
Government estimate or backup.
(2) After contract award through contract
c. Government estimates and Government
estimate backup data are intra-agency memoranda
(a) The Government estimate may be
which may be withheld under FOIA Exemption 5,
"confidential commercial information" and
"deliberative process" privileges. Proper use of
(b) The Government estimate backup data
Exemption 5, however, requires a showing that
should not be released. Release of Government
release of information will harm the Government'
estimate backup data after contract award and before
interests. Therefore, requests for Government
completion of a construction contract, may also result
estimates and backup data will be reviewed on a case-
in harm to the Government. The Government
by-case basis, based on the following guidance, to
estimate backup data is used to develop cost estimates
determine whether release will harm the Corps'
for modifications and claims. Release of the backup
interests. In reviewing requests the FOIA Officer will
data prior to contract completion provides the
seek the assistance of the cost engineer. If the FOIA
contractor with the details of the Government'
Officer determines that release will harm the Corps'