UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TRADE WEST CONSTRUCTION, INC.,
Plaintiff,
Case No. 1:24-3291 (RDM)
v.
UNITED STATES ARMY CORPS OF
ENGINEEERS,
Defendants.
MEMORANDUM OPINION AND ORDER
In the summer of 2022, the Portland District of the U.S. Army Corps of Engineers
(“Corps”) solicited sealed bids from prospective contractors to complete the Tillamook South
Jetty Repairs Project in Tillamook County, Oregon. Three contractors submitted sealed bids:
J.E. McAmis, SEA Construction, and Trade West Construction. Trade West, the plaintiff in this
case, submitted the winning bid. More than a year after bidding concluded, Trade West
submitted a Freedom of Information Act (“FOIA”) request to the Corps seeking disclosure of the
sealed bids of its two competitors, including all supporting documentation. The Corps denied the
request, invoking FOIA Exemption 3, and Trade West filed an administrative appeal.
While its administrative appeal was still pending, Trade West filed this case seeking to
compel disclosure of the bids. Trade West subsequently prevailed in part in its administrative
appeal, and the Corps released heavily redacted versions of the requested bids, invoking FOIA
Exemptions 3, 4, and 6. Trade West now moves for summary judgment, arguing that the Corps improperly invoked Exemptions 3 and 4, and the Corps cross-moves for summary judgment
defending its application of those exemptions.1
For the reasons that follow, the Court will GRANT in part and DENY in part Trade
West’s motion for summary judgment and will GRANT in part and DENY in part the Corps’
cross-motion. The Court concludes that Exemption 3 is inapplicable to the bids at issue, but that
Exemption 4 applies to significant portions of the redacted material. Specifically, the Court
concludes that the confidential commercial information submitted by SEA Construction and J.E.
McAmis in their sealed bids falls within the scope of Exemption 4. Because the Court further
concludes that the Corps has made a sufficient showing of foreseeable harm, the Court holds that
those portions of the sealed bids are exempt from disclosure under FOIA. The Court also
concludes, however, that the Corps failed to release at least some segregable material and will,
therefore, require the Corps to release all non-exempt, reasonably segregable material.
I. BACKGROUND
A. Factual Background
On July 31, 2022, the Portland District of the Corps issued Solicitation No.
W9127N22B0007 (“Solicitation”), seeking bids for the Tillamook South Jetty Repairs project in
Tillamook County, Oregon. Dkt. 18-2; Dkt. 23-7. The solicitation estimated the magnitude of
the project at somewhere between $25 and $100 million dollars. Dkt. 18-2 at 3. Given the scale
and complexity of the project, the Solicitation explained that “the Government is using special
standards of responsibility for this procurement,” and it required interested bidders to submit
documentation demonstrating their ability to meet certain “DEFINITIVE RESPONSIBILITY
1
Trade West does not challenge the handful of redactions that the Corps made pursuant to Exemption 6, which simply omits the names and titles of signatories.
2
CRITERIA.” Id. at 17. Bidders were required to submit (1) proof of completion of “one jetty
repair project on the Pacific coast . . . with a total contract value greater than $15M performed
within the last 15 years” involving “individual stones weighing at least 22 tons;” (2)
“documentation, such as a signed agreement with or letter of commitment from a quarry or
quarries, demonstrating that the bidder will be able to obtain a sufficient quantity of jetty stone
meeting the contract requirements;” and (3) documentation of equipment capabilities needed to
place and manipulate 25-ton stones, including “make, model and load charts for planned
equipment.” Id. at 17–18. The Solicitation required submission of this information “prior to
award” and cautioned that any bidder failing to do so would be “determined non-responsible and
ineligible for award.” Id. at 17.
The Corps contends, and Trade West does not dispute, that these definitive responsibility
criteria required bidders to submit more information than in a typical sealed bid. That is, the
Solicitation did not merely require “price bid and standard bid forms” but also required
submission of “substantial, proposal-style technical and management content.” Dkt. 23-1 at 20.
The Corps explains that this additional material (hereinafter, the “definitive responsibility
material”) is “normally associated with and frequently encountered in negotiated procurements,”
and is “not typical or usual” in sealed bid procurements. Dkt. 23-3 at 3.
The Solicitation made clear that the procurement would be conducted by sealed biding.
The third page of the Solicitation includes a checkbox indicating that the “TYPE OF
SOLICITATION” is a “SEALED BID,” rather than a “NEGOTIATED (RFP) [request for
proposal].” Dkt. 18-2 at 3. The sealed bidding process is governed by Federal Acquisition
Regulation (“FAR”) Part 14, codified at 48 C.F.R. Part 14. See Dkt. 18 at 6; Dkt. 23-1 at 6. As
relevant here, FAR Part 14 provides that sealed bids shall be “opened at the time and place stated
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in the solicitation for the public opening of bids.” 48 C.F.R. § 14.101(c); see also §§ 14.402-1(a)
(providing that the bid opening officer shall “personally and publicly open all bids,” “if practical,
read the bids aloud to the persons present,” and “have the bids recorded”), 14.402-1(c)
(permitting “[e]xamination of bids by interested persons” provided it “does not interfere unduly
with the conduct of Government business”). The FAR also requires that bid entries be recorded
on one of two abstract forms—a Standard Form 1409 (Abstract of Offers), or an Optional Form
1419 (Abstract of Offers-Construction). See 48 C.F.R. § 14.403(a). “Where bid items are too
numerous to warrant complete recording of all bids, abstract entries for individual bids may be
limited to item numbers and bid prices.” Id. The abstracts are “available for public inspection,”
subject to certain restrictions: for instance, the “abstracts shall not contain information regarding
failure to meet minimum standards of responsibility.” 48 C.F.R. § 14.403(b).
In keeping with these requirements, the Solicitation indicated that all sealed bids would
be opened during a telephonic conference on the due date of August 31, 2022. Dkt. 18-2 at 3,
17. At that conference, the Corps opened the three timely bids that it had received. Dkt. 23-3 at
6 (Johnson Decl. ¶ 7). Only the name and total bid price of each bidder were read aloud. Id.
The Corps then compiled the name and price specified by each bidder “into a bid abstract that
was posted publicly on SAM.gov.” Id. A copy of this bid abstract appears in each of the
parties’ summary judgment submissions. Dkt. 18-8; Dkt. 23-7. The abstract consists of a singlepage spreadsheet listing the names, addresses, bid security amounts, and unit price information
of each of the three bidders. Dkt. 18-8; Dkt. 23-7. The record includes no evidence of any other
publication or release of material contained in the competing bids.
B. Procedural History
On November 9, 2023, more than a year after the bids were unsealed, Trade West
submitted a FOIA request to the Corps’ Portland District, requesting complete copies of the bids
4
submitted by its two competitors. Dkt. 1-1. In a follow-up email on January 18, 2024, Trade
West clarified that it sought:
every piece of paper (or information submitted electronically) submitted by a
bidder in response to the solicitation (the entire bid) on or before the bid opening
date. This includes not only the pricing sheets but also any other documents
showing compliance with solicitation requirements (definitive responsibility
criteria may have been submitted with some of the bids). This is public
information as the bids were published in their entirety (or were required to be
published) pursuant to FAR 14.402-1. We expect to have released the entire bid
package submitted by each bidder.
Dkt. 1-2 at 2.
On February 22, 2024, the Corps’ District Counsel, Rymn Parsons, denied Trade West’s
FOIA request, stating that the requested materials included “those of types the release of which
would customarily be prohibited by 10 U.S.C. § 3309 and 41 U.S.C. § 4702.” Dkt. 1-3 at 2.
Because “FOIA Exemption 3 exempts from release records that are barred from disclosure by
statute,” Parsons denied the request in full. Id.
Trade West timely appealed Parsons’ denial to the Corps’ District FOIA Officer, Keith
Offel. Dkt. 1-4. After several months had passed without a response, Trade West filed the
pending FOIA suit. Dkt. 1. Then, on March 27, 2025, the Corps sent Trade West a letter
indicating that, “[u]pon further review,” the Corps had decided to release “two additional
records” that are responsive to Trade West’s request. Dkt. 18-3 at 1. As the letter further
explained, and as evident from the Corps’ production, the Corps redacted large portions of these
records pursuant to FOIA Exemptions 3 and 4, and also redacted certain names and titles
pursuant to FOIA Exemption 6. See Dkt. 18-3, 18-4, 18-5. Indeed, with the exception of lineitem pricing, all of the information provided by the bidders on the bid forms—including their
definitive responsibility materials—was redacted. Dkt. 18-4, 18-5. The Corps offered the
following explanation for the redactions:
5
You will note that these records have been partially redacted based on FOIA
Exemption 3, which authorizes withholding information protected by another
statute, in this case, 10 U.S.C. § 3309 and 41 U.S.C. § 4702. These records are
also partially redacted based on FOIA Exemptions 4 and 6, which authorize
withholding confidential business information and privacy related information.
Dkt. 18-3 at 1.
On May 23, 2025, the Corps produced a Vaughn Index identifying each redaction by
page number and providing a brief justification for each. See Dkt. 18-6; Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973) (requiring government to submit an index itemizing specific FOIA
exemptions claimed for requested materials). The Vaughn index invokes FOIA Exemption 3 as
to every redaction, FOIA Exemption 4 as to most of the redactions, and FOIA Exemption 6 as to
a handful of minor redactions. See Dkt. 18-6.
Unsatisfied with this response, Trade West has now moved for summary judgment, Dkt.
18, and the Corps has opposed that motion and has cross-moved for summary judgment, Dkt. 23.
In support of its opposition and cross-motion, the Corps also submitted declarations from SEA
Construction and J.E. McAmis opposing disclosure of their respective bids and representing that
the bids include “commercial/financial and competitively sensitive” information, which they
shared with the Corps “with the understanding that it would be kept private.” Dkt. 25-1 at 2, 4
(Vandegrift Decl. ¶¶ 5, 11); see also generally Dkt. 25-2 (Buckman Decl.). Both firms maintain
that disclosure of confidential commercial information contained in the bids would cause them
significant competitive harm. Dkt. 25-1; Dkt. 25-2.
The parties’ cross-motions are now ripe for resolution. See Dkts. 26, 28.
II. LEGAL STANDARD
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Nat’l Sec. Counselors v. CIA, 960 F. Supp. 2d 101, 133 (D.D.C. 2013) (citation modified). A
6
court may grant summary judgment if there is no “genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
FOIA requires federal agencies to make certain records “promptly available to any
person” upon request, 5 U.S.C. § 552(a)(3)(A), unless one of nine exemptions applies, § 552(b).
These exemptions “are explicitly made exclusive” and “must be narrowly construed.” Elec.
Priv. Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting
Milner v. Dept. of Navy, 562 U.S. 562, 565 (2011)). Thus, when an agency withholds requested
documents, it bears the burden of justifying its decision by establishing that an exemption
applies. Id.; see Nat’l Sec. Couns., 960 F. Supp. 2d at 132 (“When an agency’s response to a
FOIA request is to withhold responsive records, either in whole or in part, the agency ‘bears the
burden of proving the applicability of claimed exemptions.’” (quoting ACLU v. U.S. Dep’t of
Def., 628 F.3d 612, 619 (D.C. Cir. 2011))). “If an agency’s affidavit describes the justifications
for withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption,” and “is not contradicted by contrary evidence in
the record or by evidence of the agency's bad faith, then summary judgment is warranted on the
basis of the affidavit alone.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011).
“The government may satisfy its burden of establishing its right to withhold information from the
public by submitting appropriate declarations and, where necessary, an index of the information
withheld.” Nat’l Sec. Couns., 960 F. Supp. 2d at 132 (citation modified).
In reviewing an agency’s decision to withhold records, the court must determine de novo
whether the withholding was proper and may, when appropriate, “enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).
7
III. ANALYSIS
A. Trade West’s Public Disclosure Argument
Before addressing the specific FOIA Exemptions invoked by the government, the Court
first addresses Trade West’s threshold argument that nothing in the bids may qualify for any
FOIA exemption because the bids have already been “publicly opened” and therefore belong to
the public domain. Dkt. 18 at 26. Trade West points to the requirement in both statute and
regulation that sealed bids “shall be opened publicly at the time and place stated in the
solicitation.” 10 U.S.C. § 3302(a); see also 48 C.F.R. § 14.101; Dkt. 26 at 21; Dkt. 18 at 21, 22,
24. As noted above, the Corps structured the procurement as a sealed bidding under FAR Part
14, and opened the bids via telephonic conference on August 22, 2023.
As a general matter, Trade West is correct that “the government cannot rely on an
otherwise valid exemption claim to justify withholding information that has been officially
acknowledged or is in the ‘public domain.’” Davis v. U.S. Dep’t of Just., 968 F.2d 1276, 1279
(D.C. Cir. 1992) (quoting Afshar v. Department of State, 702 F.2d 1125, 1130–34
(D.C.Cir.1983)); see also id. at 1280 (“[A] showing of public availability renders the FOIA
exemptions inapplicable....”); Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990) (“[W]hen
information has been officially acknowledged, its disclosure may be compelled even over an
agency’s otherwise valid exemption claim.”) (citation modified). The problem for Trade West,
however, is that most of the material it now seeks was never placed in the public domain under
well-established circuit precedent. In order to obtain records “alleged to be in the public domain,
[the requestor] has the burden of showing that there is a permanent public record of the exact
portions [the requestor] wishes.” Davis, 968 F.2d at 1280 (emphasis added). “Prior disclosure
of similar information does not suffice; instead, the specific information sought by the plaintiff
must already be in the public domain by official disclosure.” Wolf v. C.I.A., 473 F.3d 370, 378
8
(D.C. Cir. 2007) (citation omitted). Accordingly, “publication of part of a document does not put
the rest into the public domain.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d
504, 510 (D.C. Cir. 2011).
Here, Trade West has not met that exacting standard with respect to most of the
information submitted in the sealed bids. At the telephonic bid opening on August 31, 2022,
only the name and total bid price of each bidder were read aloud. Dkt. 23-3 at 6 (Johnson Decl.
¶ 7). The Corps then compiled that information into a bid abstract that was posted publicly on
SAM.gov. Dkt. 23-7; Dkt. 23-4 at 3 (DiNucci Decl. ¶ 6). The abstract included the names,
addresses, bid security amounts, and unit price information of each bidder. Dkt. 23-7. It did not
include any of the more detailed documentation needed to satisfy the definitive responsibility
criteria. Dkt. 23-7. Trade West neither alleges nor provides any evidence of any other
publication disclosing any other information contained in the bids.
At most, then, the Court assumes without deciding that Trade West has shown that the
limited information released in the bid abstract and published on SAM.gov entered the public
domain. But as to the rest of the contents of the bids, Trade West has failed to carry its burden of
showing that the “specific information sought by the plaintiff [is] already . . . in the public
domain by official disclosure” because it has failed to identify “a permanent public record of the
exact portions [the requestor] wishes.” Davis, 968 F.2d at 1280 (emphasis added).
Trade West suggests that the D.C. Circuit’s stringent requirements for invoking the
public doctrine apply only in the national security context. See Dkt. 26 at 14–17. This argument
misreads the controlling precedent. It is true that some of the D.C. Circuit’s public domain
caselaw emerged in the intelligence context, where courts have stressed the need for precision
and discretion. See, e.g., Fitzgibbon, 911 F.2d at 765 (noting that “in the arena of intelligence
9
and foreign relations there can be a critical difference between official and unofficial
disclosures”). But nothing in the governing precedent limits the strict requirements of the
doctrine to the national security context; to the contrary, the D.C. Circuit has consistently applied
the same criteria in a variety of contexts.
Notably, the public domain doctrine constitutes a “narrow exception” that flows from
“the logic of FOIA” itself. Cottone v. Reno, 193 F.3d 550, 553–54 (D.C. Cir. 1999). It rests on
the commonsense recognition that “where information requested ‘is truly public, then
enforcement of an exemption cannot fulfill its purposes.’” Id. at 554 (citation modified). The
D.C. Circuit, accordingly, has “applied the public-domain doctrine across a range of FOIA
exemptions,” Citizens for Resp. & Ethics in Wash. (CREW) v. Dep’t of Just., 58 F.4th 1255, 1271
(D.C. Cir. 2023), and in a range of substantive contexts. In CREW v. Department of Justice, for
example, the D.C. Circuit applied the doctrine to requests for “drug-concentration and
expiration-date information,” and insisted that the claimant “point[ ] to specific information in
the public domain that appears to duplicate that being withheld. Id. (emphasis added) (quoting
Afshar, 702 F.2d at 1130). Similarly, in Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy,
the D.C. Circuit applied the doctrine to a request for the commercial information of a utility
company and required the claimant to show that “identical information” was already in the
public domain. 169 F.3d 16, 19–20 (D.C. Cir. 1999). In short, the Court finds no support in
caselaw for the notion that the doctrine is any less demanding in some contexts than others, and
Trade West fails to identify any caselaw suggesting that the doctrine should apply differently
here.
Finding no support in D.C. Circuit precedent, Trade West invokes a single out-of-circuit
decision. See Dkt. 18 at 25–26, Dkt. 26 at 14–16, 19–20 (same). In that decision, R & W
10
Flammann GMbH v. United States, the Federal Circuit held that a contractor’s “unit price
information, which was included in its bid for the incumbent contract, entered the public domain
upon bid opening.” 339 F.3d 1320, 1323 (Fed. Cir. 2003). The Federal Circuit reasoned as
follows:
In this case, the incumbent contract’s bids were publicly opened and became
immediately available to the public as required by FAR. 48 C.F.R. § 14.402–
1(a) (2000) (requiring the bid opening officer to “personally and publicly open
all bids”); id. § 14.402–1(c) (2000) (“Examination of bids by interested persons
shall be permitted....”). When a sealed bid is available to the public, whether or
not it is consulted, it enters the public domain and is therefore not confidential
under Exemption 4 of FOIA. Flammann’s unit price information, which was
included in its bid for the incumbent contract, entered the public domain upon
bid opening and, therefore, we agree with the trial court that the information did
not fall within Exemption 4 of FOIA.
Id. (citations omitted). Seizing on that language, Trade West asserts that “all information in a
sealed bid becomes public upon opening.” Dkt. 26 at 15 (citing Flammann, 339 F.3d at 1323).
The Court is unpersuaded for three reasons:
First, and dispositively, the argument is foreclosed by binding D.C. Circuit precedent.
This Court is bound to apply D.C. precedent, and for the reasons explained above, D.C. Circuit
precedent disposes of Trade West’s argument.
Second, Flammann’s holding does not sweep as broadly as Trade West suggests. The
only information as to which disclosure was contested before the Federal Circuit was
Flammann’s “unit price information.” Flammann, 339 F.3d at 1322–23. The Federal Circuit
concluded that because “Flammann’s unit price information, which was included in its bid for
the incumbent contract, entered the public domain upon bid opening, . . . the information did not
fall within Exemption 4 of FOIA.” Id. at 1323. Although Flammann does not specify whether
the unit price information had already been published in a permanent record at the time of the
dispute, it is undisputed in this case that the unit price information of all three bidders was
11
published in the bid abstract posted on SAM.gov. See Dkt. 23-7. As noted above, the Court
therefore assumes without deciding that the unit price information belongs to the public domain.
At issue is whether everything else in the bids—including the definitive responsibility material
as to which Trade West’s competitors assert a claim of confidentiality—also entered the public
domain. There is no evidence that the court in Flammann had occasion to consider a similar
question. See Olivier v. City of Brandon, Mississippi, 607 U.S. 552, 565 (2026) (“[G]eneral
language in judicial opinions should be read as referring . . . to circumstances similar to the
circumstances then before the Court and not referring to quite different circumstances that the
Court was not then considering.”) (citation omitted).
Third, even the regulatory provisions cited in Flammann and upon which Trade West
relies undercut its theory that everything in a sealed bid necessarily enters the public domain
upon opening. FAR § 14.402-1 provides that “[e]xamination of bids by interested persons shall
be permitted if it does not interfere unduly with the conduct of Government business.” 48 C.F.R.
§ 14.402-1(c). And while FAR § 14.403 provides that “[a]bstracts of offers for unclassified
acquisitions shall be available for public inspection,” it specifies that “[s]uch abstracts shall not
contain,” inter alia, “information regarding failure to meet minimum standards of
responsibility.” 48 C.F.R. § 14.403(b). Rather than treating all submitted material as within the
public domain, the FAR assumes that some information might not be fit for disclosure.
Finally, it is possible to understand Trade West’s argument to posit that, even if the
disputed information was never released and never actually entered the public domain, it should
have been released and, accordingly, the Corps cannot now complain about a FOIA request that
merely demands that the Corps do what it should have done when it opened the bids. That
argument fails, however, for the reason just explained. Trade West fails to identify any provision
12
of the FAR or the governing statute that defines the “opening” of bids in those sweeping terms,
and, indeed, the FAR suggests just the opposite. Nor, in any event, is a FOIA suit the proper
way to challenge an agency’s administration of the procurement process. It is undisputed that
the information at issue has not, in fact, been disclosed in a “permanent public record.” Davis,
968 F.2d at 1280.
The Court, accordingly, rejects Trade West’s threshold public domain argument, and
proceeds to consider the specific FOIA Exemptions invoked by the government.
B. Exemption 3
FOIA Exemption 3 applies to information “specifically exempted from disclosure by
statute,” provided that the statute in question exempts the material “in such a manner as to leave
no discretion on the issue” or “establishes particular criteria for withholding or refers to
particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). Here, the Corps argues that
the redacted material is exempted from disclosure by two statutory provisions: 10 U.S.C.
§ 3309(b) and 41 U.S.C. § 4702. Dkt. 18 at 21–23. Both provisions provide, in nearly identical
terms, that “[a] proposal in the possession or control of an executive agency may not be made
available to any person under section 552 of title 5.” 41 U.S.C. § 4702. Trade West responds
that those provisions are inapposite because they refer to “proposal[s],” and the redacted
materials at issue here are not proposals but “bids.” Dkt. 26 at 21. On this issue, Trade West has
the better of the arguments.
The Corps concedes, as it must, that “the Solicitation was structured as an invitation for
bids under FAR . . . Part 14 sealed-bidding procedures.” Dkt. 23-1 at 6; Dkt. 23-3 at 1 (Johnson
Decl. ¶ 2). It maintains that 10 U.S.C. § 3309(b) and 41 U.S.C. § 4702 nonetheless apply
because the bidders were required to submit, as part of their bids, “proposal-style technical and
management content to satisfy [the] definitive responsibility criteria.” Dkt. 23-1 at 20.
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The Corps’ argument fails in view of both (a) the plain text of the statutory provisions
invoked and (b) the plain text of FOIA Exemption 3. Both 10 U.S.C. § 3309(b) and 41 U.S.C.
§ 4702 expressly exempt “proposal[s]”—and only proposals—from disclosure. They do not
exempt “proposal-style . . . content” or sealed bids. Accordingly, neither provision is applicable
on its face. FOIA Exemption 3, however, requires a precise fit between the material the agency
seeks to shield from disclosure and the statutory provisions invoked. Exemption 3 applies only
to material that is “specifically exempted from disclosure” by statute, and only where the statute
invoked “leave[s] no discretion on the issue” or “establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A) (emphasis added).
Particularly where Congress has taken pains to require a precise match and left no room for
discretion, the Court will treat “bids” as “bids,” and “proposals” as “proposals.”
Nor is the Court persuaded that the “bids” at issue here are, in fact, “proposals” within the
meaning of 10 U.S.C. § 3309(b) and 41 U.S.C. § 4702. To the contrary, the FAR painstakingly
distinguishes between “bids” and “proposals,” and it set different rules for each in separate Parts.
FAR Part 14 is entitled “Sealed Bidding,” and it addresses “Use of Sealed Bidding,” (FAR 14.1)
“Solicitation of Bids” (FAR 14.2), “Submission of Bids” (FAR 14.3), and “Opening of Bids and
Award of Contract” (FAR 14.4). 48 C.R.F. § 14.000 et seq. FAR Part 15, in contrast, is entitled
“Contracting by Negotiation,” and it governs contracts not secured by sealed bidding. See 48
C.F.R. § 15.000 (“A contract awarded using other than sealed bidding procedures is a negotiated
contract (see [FAR] 14.101).”). FAR 15 addresses—and ubiquitously refers to—proposals. It
addresses, inter alia, the “Solicitation and Receipt of Proposals and Information” (FAR 15.2),
“Requests for proposals” (FAR 15.203), “Handling proposals and information” (FAR 15.207),
“Proposal evaluation” (FAR 15.305), and “Proposal analysis” (FAR 15.404).
14
Here, both the Solicitation and the responsive bids repeatedly characterize the documents
at issue as bids. The Solicitation, for example, provides detailed instructions on “BID
SUBMISSION,” Dkt. 18-2 at 16, directs that “[b]idders shall submit their bids via email,” id. at
17, and sets a “Bid Due Date and Time” of August 31, 2022, 2:00 PM PDT,” id. Most tellingly,
the Solicitation includes a checkbox indicating that the “TYPE OF SOLICITATION” is either a
“SEALED BID” or a “NEGOTIATED (RFP).” Id. at 3. The box for “SEALED BID” is
checked. Id. The common acronym “RFP” is used throughout FAR Part 15 to refer to “requests
for proposals.” See, e.g., 48 C.F.R. § 15.203 (addressing “[r]equests for proposals (RFPs)”).
Unredacted portions of the bids released by the Corps likewise indicate that they are submitted in
response to a “SEALED BID” solicitation, and not a “NEGOTIATED (RFP).” Dkt. 18-4 at 5;
Dkt. 18-5 at 3. The Corps expressly elected to structure the Solicitation as a request for sealed
bids, and it cannot now argue that it was, in fact, a request for proposals.
The Court therefore concludes that the statutory provisions invoked by the Corps do not
“specifically exempt[]” the sealed bids at issue and that Exemption 3 is, accordingly,
inapplicable. Ultimately, however, this conclusion makes little difference, since Exemption 4
covers much of the same ground.2
C. Exemption 4
FOIA Exemption 4 protects “trade secrets and commercial or financial information
obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The parties do
2
As explained in Hodes v. U.S. Dep’t of Treasury, 967 F. Supp. 2d 369, 375 (D.D.C. 2013), Congress was aware of the overlap between 41 U.S.C. § 4702 and FOIA Exemption 4 and simply enacted § 4702 to save agencies from the burden of redacting documents that were, in any event, likely exempt. By electing to proceed by way of a bid solicitation, rather than an RFP, the Corps gave up that modest benefit but was able to structure the procurement in the manner that suited it.
15
not dispute that the requested materials contain “commercial . . . information obtained from a
person.” They do, however, disagree as to whether the bids contain information that is
“confidential.”
1. Confidentiality After Food Marketing Institute
In Food Marketing Institute v. Argus Leader Media, 588 U.S. 427 (2019), the Supreme
Court explained that the word “confidential” can bear at least two distinct meanings in the
context of FOIA Exemption 4. Under the first meaning, information can be deemed
confidential “whenever it is customarily kept private, or at least closely held, by the person
imparting it.” Id. at 434 (citations omitted). Under the second, “confidentiality” requires both
that the information is “closely held” and that “the party receiving it provides some assurance
that it will remain secret.” Id. Because both conditions were satisfied in Food Marketing
Institute, the Supreme Court declined to decide whether the first requirement, standing alone,
suffices to invoke Exemption 4 or whether the exemption applies only when both conditions are
satisfied. Id. at 434–35. In CREW v. Department of Justice, the D.C. Circuit considered how
Exemption 4 applies in the wake of Food Marketing Institute. 58 F.4th 1255, 1269–70 (D.C.
Cir. 2023). Like the Supreme Court in Food Marketing Institute, the court concluded that it did
not need to “decide whether the second condition must be met.” Id. at 1269.
This Court is not left without important guidance, however. Prior to the Supreme Court’s
decision in Food Marketing Institute, the D.C. Circuit applied different tests to involuntary and
voluntary disclosures of confidential information to the federal government. Under National
Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), in cases involving
involuntary disclosures, the D.C. Circuit limited Exemption 4 to cases in which the information
was confidential and its disclosure would cause “substantial harm to his competitive position.”
But in Critical Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1991) (en banc), the
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court applied a different rule to voluntary disclosures, applying Exemption 4 to information “if
it is of a kind that would customarily not be released to the public by the person from whom it
was obtained.”
Food Marketing Institute not only overruled the D.C. Circuit’s decision in National
Parks, but the Court also observed that it could discern no “persuasive reason to afford the same
statutory term two such radically different constructions.” 588 U.S. at 438 (emphasis in
original). Those two steps dictate the answer here: the National Parks test is no longer good law,
the Critical Mass rule is good law, and there is “no persuasive reason” to apply a different rule
depending on whether a disclosure to the government is voluntary or involuntary. It follows that
“Critical Mass and its progeny now supply the framework in this Circuit for determining
whether voluntarily submitted and involuntarily submitted commercial or financial information
are ‘confidential’ under Exemption 4.” Ctr. For Investigative Reporting v. U.S. Customs and
Border Protection, 436 F. Supp. 3d 90, 109 (D.D.C. 2019); accord Renewable Fuels Ass’n v.
U.S. EPA, 519 F.Supp. 3d 1, 12 (D.D.C. 2021) (concluding that Critical Mass remains “remains
binding authority” after Food Marketing).
2. The Corps Has Satisfied the Critical Mass Standard
The question, then, is whether the Corps has satisfied the Critical Mass standard. It has.
As noted above, at summary judgment an agency may meet its burden of showing that a
claimed exemption applies through affidavits or declarations. Nat’l Sec. Counselors, 960 F.
Supp. 2d at 133. The Corps has submitted declarations from representatives of both of Trade
West’s competitors: J.E. McAmis and SEA Construction. Both competitors were given the
opportunity to review the responsive records sought by Trade West and to identify information
they customarily and actually treat as private. Dkt. 23-4 at 4 (DiNucci Decl. ¶ 8). Both
contractors have averred, under the penalty of perjury, that they customarily and actually treat
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the relevant portions of their bid submissions as private and closely held and, therefore, object
to the release of that information. Dkt. 25-1 at 2–3 (Vandegrift Decl. ¶ 5–8); Dkt. 25-2 at 1–3
(Buckman Decl. ¶ 4–10).
The Vice President of J.E. McAmis, Scott Vandegrift, explains in his declaration that
release of the redacted portions of McAmis’s bid would disclose “competitively sensitive”
information concerning, inter alia, McAmis’s “corporate structure, internal planning processes
and operational approach to meeting the solicitation requirements.” Dkt. 25-1 at 2 (Vandegrift
Decl. ¶ 5). The subcontracting materials would reveal “the identity of subcontractors and
prospective subcontractors,” along with “McAmis’s approach to allocating work, identifying
sources, and leveraging existing relationships and outreach channels,” and would disclose the
firm’s “relationships and capabilities relevant to quarry access and marine placement/transport.”
Id. (Vandegrift Decl. ¶ 6). All of this is information that McAmis “customarily and actually
treats … as private and nonpublic” and “is not publicly disseminated.” Id. (Vandegrift Decl. ¶¶
2, 5–6, 8). And even though Circuit precedent does not require the government to provide
evidence of an express or implied promise of confidentiality, the Court notes that Vandegrift
attests that “[i]n the over 50 years since McAmis has bid work to the government, McAmis has
understood that the government kept any documents relating to McAmis’ strategy for
performing the work (including, its subcontracting plans) confidential because of the
competitive nature of the work.” Id. at 2–3 (Vandegrift Decl. ¶ 6).
Similarly, SEA Construction objects to disclosure of the relevant portions of its bid
package. Joelle Buckman, owner of SEA Construction, attests that the portions SEA seeks to
have withheld “include[e] terms that, if disclosed, would reveal SEA’s procurement posture and
constraints (including exclusivity and reliance on the identified supplier for estimated
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quantities).” Dkt. 25-2 at 2 (Buckman Decl. ¶ 6). Buckman further attests that the material in
question includes “performance/logistics details (e.g., loading/off loading approach, staging
assumptions, and other operational particulars) that SEA used to plan how it would execute the
work consistent with the Solicitation.” Id. (Buckman Decl. ¶ 8). All of this information,
Buckman avers, is of the sort that “SEA customarily and actually treats . . . as private and
closely held,” and shares “only on a need-to-know basis for bidding, estimating, contract
administration, or performance.” Id. at 3 (Buckman Decl. ¶ 9).
These declarations suffice to show that the contested information is “customarily and
actually treated as private by its owner,” Citizens for Resp. & Ethics, 58 F.4th at 1269, and that
it is, therefore, “confidential” within the meaning of FOIA Exemption 4, 5 U.S.C. § 552(b)(4).
The declarations “describ[e] the justifications for withholding the information with specific
detail, demonstrate[e] that the information withheld logically falls within the claimed
exemption,” and are “not contradicted by contrary evidence in the record or by evidence of the
agency's bad faith.” ACLU, 628 F.3d at 619. Nothing more is required.
Trade West mounts only limited resistance as to Exemption 4 and, indeed, did not
advance any argument as to Exemption 4 in its motion for summary judgment. See Dkt. 18. In
its cross-reply and opposition, Trade West does not dispute that SEA and McAmis customarily
treat the contested information as confidential, nor does it provide any evidence showing that
the third-party contractors have represented their practices in bad faith. See Dkt. 26 at 28–31
(discussing Exemption 4). Instead, Trade West retreats to the same public domain argument
addressed above, invoking Flammann for the proposition that sealed bids enter the public
domain upon opening and are therefore categorically ineligible for Exemption 4. Id. at 28–30.
This argument fails for the same reasons discussed above. See supra at 8–12.
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The Court therefore concludes that all of the commercial information described by the
declarants for SEA and McAmis constitutes confidential information within the meaning of
FOIA Exemption 4.
D. The Corps Satisfies the Foreseeable Harm Requirement
Even where a FOIA Exemption applies, an agency may only withhold exempt
information if “the agency reasonably foresees that disclosure would harm an interest protected
by an exemption described in subsection (b)” or “disclosure is prohibited by law.” 5 U.S.C.
§ 552(a)(8). The Court finds that the sworn declarations submitted by the Corps from McAmis
and SEA suffice to establish foreseeable harm to a protected interest.
Vandegrift explains that “[i]f the Government releases the withheld information, J.E.
McAmis would suffer competitive harm because competitors (and other market participants)
could use the pricing and technical details to undercut McAmis, target its supplier/subcontractor
relationships, and calibrate bids using McAmis’s non-public approach.” Dkt. 25-1 at 4
(Vandegrift Decl. ¶ 12). Competitors could use the information about McAmis’s subcontracting
plan and its related subcontractor and vendor relationships to “target McAmis’s counterparties,
replicate McAmis’s approach, and reduce McAmis’s competitive advantage.” Id. at 4–5
(Vandegrift Decl. ¶ 14). These harms would be particularly salient in the context of “a market
with limited qualified performers for certain specialized requirements.” Id. at 4 (Vandegrift
Decl. ¶ 14). Similarly, Buckmann explains that SEA would suffer a range of foreseeable
competitive harms, including undercutting and price targeting, reverse engineering of SEA’s bid
strategy, disruption of its vendor relationships, and weakened negotiating leverage. Dkt. 25-2 at
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3–4 (Buckmann Decl. ¶ 13). Trade West does not provide any argument or evidence to show
that SEA and McAmis would not suffer these alleged competitive harms.3
The Court, accordingly, concludes that the Corps has shown that release of McAmis and
SEA’s confidential commercial information would foreseeably cause both contractors the sort of
“substantial competitive harm” which Exemption 4 seeks to avert. McDonnell Douglas Corp. v.
U.S. Dep’t of the Air Force, 375 F.3d 1182, 1190 (D.C. Cir. 2004). It follows that all
commercial information “customarily and actually treated as private” by SEA and McAmis is
properly exempt from disclosure under FOIA Exemption 4. Citizens for Resp. & Ethics, 58
F.4th at 1269.
E. The Corps Failed to Release All Segregable Material
Finally, the Court also concludes that the Corps has failed to release all segregable, nonexempt information. FOIA requires that “[a]ny reasonably segregable portion of a record shall
be provided to any person requesting such record after deletion of the portions which are
exempt . . . .” 5 U.S.C. § 552(b). In reference to the redacted copies already released, the
Acting FOIA Officer for the Portland District of the Corps declared that “information
duplicative of what was already publicly available (including in the Abstract) was not withheld,
and that Exemption 4 redactions were limited to non-public technical, cost, pricing, and internal
business information that is customarily and actually treated as private and that would
3
Trade West asserts that “[t]he competitive harm asserted by McAmis is illusory.” Dkt. 26 at 30. But Trade West only disputes the factual accuracy of one particular assertion—namely, McAmis’s assertion that Trade West “was attempting to interfere with several of McAmis’s contractual relationships with McAmis’ vendors and subcontractors in Oregon.” Dkt. 25-1 at 5 (Vandegrift Decl. ¶ 16); see Dkt. 26 at 30–31 (Trade West’s response, disputing Vandegrift’s account of the alleged interference). Trade West does not dispute McAmis or SEA’s assertion that the firms would suffer future foreseeable competitive resulting from release of their commercial information.
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foreseeably cause competitive harm if disclosed.” Dkt. 23-4 at 7 (DiNucci Decl. ¶ 14). But as
Trade West points out, had the Corps successfully taken those steps, then “at the very least the
names and addresses of the bidders would not have been redacted because that information was
released in the bid abstract.” Dkt. 26 at 11. The Court will therefore direct the Corps to
conduct a more careful redaction of the requested documents, and to release any non-exempt
and reasonably segregable material contained in the records.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Trade West’s
motion for summary judgment, Dkt. 18, and GRANTS in part and DENIES in part the Corps’
motion for summary judgment, Dkt. 23. The Corps’ motion is granted with respect to the
confidential commercial information of McAmis and SEA Construction, which the Court
concludes is exempt from disclosure under FOIA Exemption 4. The Corps’ motion is denied
with respect to FOIA Exemption 3. Trade West’s motion is granted insofar as the government is
directed to release any non-exempt, reasonably segregable material that was previously redacted.
Trade West’s motion is otherwise denied.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 30, 2026
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