FAR 9.105-3—Disclosure of preaward information.
Plain-English Summary
FAR 9.105-3 governs the handling of preaward information collected to determine whether a prospective contractor is responsible, including preaward survey reports and related materials. It addresses when that information may or may not be disclosed outside the Government, how contracting officers may communicate with prospective contractors before award, who may discuss survey findings after award, and how to protect information that may be proprietary or source selection sensitive. The section exists to preserve the integrity of the responsibility determination process, protect sensitive business information, and avoid improper disclosure that could prejudice competition or reveal protected procurement information. In practice, it means agencies must tightly control preaward survey records, use FOIA and other disclosure rules carefully, and limit discussions with contractors to the appropriate stage and official. Contractors should understand that they may be asked to respond to survey findings, but they generally do not have a right to broad access to the Government’s internal responsibility file. The section also reinforces the need to mark and safeguard any proprietary or source selection information contained in preaward survey materials.
Key Rules
No outside disclosure
Information gathered to decide a prospective contractor’s responsibility, including the preaward survey report, must not be released or disclosed outside the Government except as allowed by the Freedom of Information Act rules in subpart 24.2. This creates a strong default of confidentiality for responsibility-related records.
Limited preaward discussion
Before making a responsibility determination, the contracting officer may discuss preaward survey information with the prospective contractor. This allows the contractor to clarify facts, correct misunderstandings, or provide additional information, but it does not require full disclosure of the Government’s file.
Postaward discussion allowed
After award, the contracting officer may discuss the preaward survey findings with the company surveyed, and the head of the surveying activity or a designee may do so when appropriate. This gives the contractor feedback after the procurement decision has been made, while preserving the integrity of the preaward process.
Protect sensitive markings
Preaward survey information may include proprietary information or source selection information and should be marked with the proper legend and protected accordingly. The protection requirements in FAR 3.104-4 apply when the material contains source selection sensitive content.
FOIA is the exception path
Disclosure outside the Government is not categorically forbidden if FOIA and subpart 24.2 require release. Agencies must therefore evaluate requests under the FOIA framework rather than assuming all preaward information is automatically releasable.
Responsibilities
Contracting Officer
Protect preaward responsibility information from outside disclosure, apply FOIA and subpart 24.2 before releasing any records, and decide whether to discuss survey information with the prospective contractor before award. After award, the contracting officer may discuss survey findings with the surveyed company when appropriate.
Head of the Surveying Activity
When appropriate after award, discuss the findings of the preaward survey with the company surveyed or delegate that discussion to a designee. Ensure the discussion remains within authorized limits and does not improperly disclose protected information.
Designee of the Surveying Activity
If designated, communicate postaward survey findings to the surveyed company in accordance with the authority and limits provided by the head of the surveying activity.
Agency Personnel Handling Survey Records
Safeguard preaward survey materials, recognize when records contain proprietary or source selection information, and apply the correct legends and handling restrictions.
Prospective Contractor / Company Surveyed
Provide information during the preaward survey process and, when contacted, respond to the contracting officer’s preaward questions or postaward feedback discussions as appropriate.
Practical Implications
Preaward survey files are sensitive and should be treated as restricted procurement records, not routine correspondence. A common mistake is sharing them too broadly within or outside the agency without checking disclosure authority.
Contractors may be asked to explain or supplement information before award, but they should not expect access to the full responsibility file or internal evaluative comments. The Government can discuss information, but it is not required to reveal everything it has collected.
After award, feedback discussions can help a contractor understand concerns identified in the survey, but those discussions must still avoid releasing proprietary data or source selection information from other sources.
If a preaward survey contains source selection information, mishandling it can create procurement integrity problems under FAR 3.104-4. Proper marking and controlled distribution are essential.
When responding to FOIA requests, agencies must analyze whether the requested material is releasable under subpart 24.2 rather than assuming confidentiality alone controls. The disclosure decision must be documented and coordinated with FOIA procedures.
Official Regulatory Text
(a) Except as provided in subpart 24.2 , Freedom of Information Act, information (including the preaward survey report) accumulated for purposes of determining the responsibility of a prospective contractor shall not be released or disclosed outside the Government. (b) The contracting officer may discuss preaward survey information with the prospective contractor before determining responsibility. After award, the contracting officer or, if it is appropriate, the head of the surveying activity or a designee may discuss the findings of the preaward survey with the company surveyed. (c) Preaward survey information may contain proprietary or source selection information and should be marked with the appropriate legend and protected accordingly (see 3.104-4 ).