US District Court for the District of Columbia

Case no.: 1:24-3291
Date filed: September 30, 2026

The federal district court for the District of Columbia has ruled that confidential commercial information in sealed bids on a public contract was exempt from disclosure under the Freedom of Information Act (FOIA). This included information relating to subcontractor relations and performance strategy.

The Army Corps of Engineers solicited sealed bids for repairs to a jetty in Tillamook County, Oregon. Three companies submitted bids: J. E. McAmis, SEA Construction, and Trade West Construction. The Corps prepared an abstract listing the names, addresses, bid security amounts, and unit prices of each of the three bidders. The abstract was publicly posted. Trade West was the low bidder.

Due to the size and complexity of the project, the Corps had required bidders to include information showing compliance with certain “definitive responsibility criteria.” This information relates to corporate technical and managerial capabilities, as well as the approach to this project, including material procurement and subcontracting arrangements. This responsibility information had not been released to the public.

More than a year after bid opening, Trade West filed a FOIA request with the Corps. The request sought the bids and supporting documentation, expressly including responsibility information, for the two competing bidders. Trade West contended that when the Corps publicly opened bids and published the abstract, the entire bid packages—including all supporting information—entered the public domain.

The Corps released heavily redacted copies of the definitive responsibility information and said that the redacted information was protected by Exemption 3 of FOIA, which applies to information “specifically exempted from disclosure by statute.” The Corps also relied on FOIA Exemption 4, which protects trade secrets and commercial information received from an individual who expected the information would remain confidential. Trade West challenged the Corps’s refusal to release the information, suing in US District Court for the District of Columbia.

The court first addressed Trade West’s contention that all information in a sealed bid enters the public domain when the bids are publicly opened and the bid abstracts are published. This is not the law. The publicly posted abstracts included no information regarding the definitive responsibility criteria. There is no precedent supporting the argument that all information accompanying a sealed bid, regardless of its nature, goes into the public domain upon publication of a bid abstract.

The court then addressed the Corps’ reliance on FOIA exemptions from disclosure. Exemption 3 applies to statutorily protected information. Federal procurement statutes prohibit the release of “a proposal in the possession or control of an executive agency.” But the submissions to the Corps were not proposals. They were sealed bids and were always labeled and treated as such. The Corps could not rely on Exemption 3 to justify its nondisclosure of the definitive responsibility information.

FOIA Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” The Corps said the responsibility information relating to corporate planning, operating approach, subcontractor relations, and the procurement of materials was confidential. Sworn declarations submitted by representatives of J. E. McAmis and SEA Construction stated they treated this information as commercial trade secrets and believed they were submitting it to the Corps in confidence. The Corps correctly refused to disclose this information pursuant to Exemption 4.

The court noted that not all the redacted information was internal corporate, technical, cost, or pricing information. Non-confidential information could be reasonably segregated and released. The Corps was instructed to do so.

If organizations wish to treat this information as confidential trade secrets, they should do so consistently. Careless sharing or disclosure of the information can cause it to lose its confidential nature.

Participants:
For Trade West Construction: Caroline M. Brooks; Tysons, Virginia
For the Army Corps of Engineers: Brian C. Tracy; Washington, D.C.

Before: Judge Randolph D. Moss

Opinion by: Judge Moss

Outcome: Trade West’s motion for summary judgment granted in part and denied in part

Source: Please click here to read the complete opinion.