DOJ Guidance: Confidential Information Under FOIA
In light of the Supreme Court’s ruling in Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), DOJ recently issued an overview of the impact of the case and a guidance document for agencies that will be helpful to contractors as well. In Argus Leader, the Court changed the definition of “confidential” in FOIA Exemption 4 which protects privileged and confidential trade secret, commercial, or financial information. Argus Leader replaced the long-standing “substantial competitive harm test” for determining confidentiality with direction that agencies now apply the ordinary meaning of the term.
Disclosure Requirements Regarding Products From Huawei, etc.
The FAR Council has issued an interim rule to amend the disclosure requirements around products made by Huawei and several other entities identified as threats to national security. The rule eliminates the requirement to represent on an offer-by-offer basis whether the offeror will provide covered telecom equipment or services if the offeror indicates in an annual certification that it does not intend to offer the covered equipment or services.
Counterfeit Parts Reporting
Effective December 23, 2019, solicitations and contracts for the acquisition of goods and services for 1) critical items subject to higher-level quality standards and 2) DoD purchases of electronic items above the simplified acquisition threshold must include new FAR Clause 52.246-26. This new clause requires covered contractors to check the GIDEP (Government-Industry Data Exchange Program) database and report to the contracting officer and GIDEP any concerns that an item is a counterfeit part.
Our government contracts briefs, reports, and articles are published by Attorney Kristi Morgan Aronica. She serves as counsel to government contractors and subcontractors throughout Texas and nationally.