Questions and Responses FMC Fort Worth.pdf

Questions and Responses FMC Fort Worth – Comprehensive Medical Services

15BFA026R00000003

1. Attachment 2 – Performance Work Statement - Output #2, Page 4 – Paragraph 3

Question: There are several Institution-Based Services that are included in the current solicitation or provided at FMC Fort Worth that are not included in the new solicitation.

These include Endocrinology, Optometry and Low Vision Optometry, Sleep Study Services, Speech Pathology, Laboratory Director Services, and Day Shift Physician Services.

Response: These services will not be added to the current solicitation.

2. Attachment 1: Contract Pricing & Subcontract Certification - Page 7

“All oƯerors are hereby advised the successful oƯeror’s unit pricing (to include discount percentage from or premium percentage to the benchmark Medicare rate) for the base year and all option years is public information in accordance with FAR Deviation 15.207-2.

Accordingly, all successful unit pricing will be released to unsuccessful oƯerors with the notification of award as well as to the public when requested. Any party who objects to the release of their own unit pricing information, should they be awarded a contract in response to this solicitation, should not submit a proposal in response to the solicitation.”

We understand the requirements of FAR Deviation 15.207-2, Award notice, specifically paragraph (b)(4), which states that the Award notice must include -

“(4) The items, quantities, and any stated unit prices of each award.

(i) If the number of items or other factors makes listing any stated unit prices impracticable at that time, only the total contract price need be furnished in the notice.

(ii) The items, quantities, and any stated unit prices of each award must be made publicly available, upon request; and…”

However, we are of the strong opinion that the Federal Bureau of Prisons’ release of unit pricing information to the general public is prohibited, as stated in the second sentence of this paragraph, as stated in paragraph in paragraph (5) as follows:

“(5)…An oƯeror's cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information must not be disclosed to any other oƯeror.”

We would like to clarify the importance of restrictions on the release and disclosure of our trade secrets and commercial or financial information that are deemed privileged or confidential, specifically under Exemption 4 of the Freedom of Information Act (5 U.S.C.

552). This Exemption supersedes this FAR Part 15.207-2 Deviation since this qualified Exemption is authorized by federal statute.

While FAR Deviations may change how a proposal is evaluated or what clauses are included in a contract, it cannot legally authorize the withholding of information that is subject to mandatory release under FOIA, nor can it force the release of information protected by FOIA exemptions.

FOIA Exemption 4 protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

Records “that actually reveal basic commercial operations, such as sales statistics, profits and losses, and inventories, or relate to the income-producing aspects of a business,” fall within the scope of “commercial” information. See Public Citizen Health Research Group v.

FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). Line-item pricing has consistently been considered to be a government contractor’s commercial or financial information. See Canadian Commer. Corp. v. Dept of Air Force, 514 F.3d 37, 41 (D.C. Cir. 2008); McDonnell Douglas Corp. v. Air Force, 375 F.3d 1182 (D.C. Cir. 2004); McDonnell Douglas Corp. v.

NASA, 180 F.3d 303 (D.C. Cir. 1999).

In addition, we have also submitted medical claims to the BOP for services performed under its contracts with BOP, and other data billing data included on our invoices. It should be undisputed that information regarding our invoices submitted to BOP constitutes commercial or financial information.

The unit prices charged to the BOP included on these medical claims and invoices were based on our proposed fixed rates, which were either a (1) percentage above the benchmark Medicare cost for the service, or (2) fixed rate per session, depending on the type of service provided. Thus, the amounts we billed BOP under claims for services reveal our line-item pricing, and that data constitutes commercial or financial information.

Consequently, the commercial or financial information contained in our contracts with the BOP is confidential and, therefore, covered by FOIA Exemption 4. The U.S. Supreme Court has held that “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of Exemption 4.” Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019). The information provided to the BOP is both customarily and actually treated as private by us, as it does not share that information with parties other than the BOP.

In addition, the unit pricing proposed by oƯerors includes confidential, privileged and proprietary trade secrets supported by the manner in which percentage premiums are assigned for the various line items required in this solicitation. These percentage premiums, above the Medicare benchmark pricing, are used by oƯerors to cover overhead, administration and profit for performing services not covered by Medicare reimbursement methodologies.

The strategy for assigning these varying percentage premiums and their percentage premium amounts is unique to each oƯeror. These percentage premiums are not considered public information or normal commercial unit prices that are charged to the general public or under the Medicare program. As a result, oƯerors should be allowed to protect their proposed percentage premiums and resulting unit pricing since they qualify as proprietary, trade secret, or confidential under FOIA Exemption 4.

Moreover, our commercial or financial information submitted to the BOP was under the assurance of privacy, because contractor bid or proposal information, which leads to contract pricing information, is protected from disclosure by the Federal Acquisition Regulation. 48 C.F.R. § 3.104-4. Additionally, under a previous body of FOIA case law, courts have prohibited the disclosure of contract line-item pricing information where it is likely to cause substantial harm to the competitive position of the contractor. See Canadian Commer. Corp., 514 F.3d at 43; McDonnell Douglas Corp. v. Air Force, 375 F.3d at 1193; McDonnell Douglas Corp. v. NASA, 180 F.3d at 307.

Therefore, the information we provide the BOP in our contract proposals, resulting contract awards, medical claims and invoices, is confidential commercial or financial information exempt from disclosure under FOIA Exemption 4.

We would appreciate your reviewing our concerns, including our application of FOIA Exemption 4 and the above-related case law, and making appropriate changes to this solicitation.

Response: No changes will be made to solicitation or Attachment 1: Contract Pricing & Subcontract Certification.