Moreover, as is the case with source selection information, information that previously has been made available to the public or disclosed publicly would lose its character as non-disclosable bid or proposal information. Since the Reform Act specifically protects a contractor's indirect costs and direct labor rates, it should preclude disclosure of the indirect costs and labor rates applicable to an incumbent's contract. However, contractors should be aware that their unit prices which do not break out direct labor rates, indirect rates or profit rates may be considered releasable under the Freedom of Information Act. Under the Reform Act, violations would be punishable by criminal penalties of one year in prison or a fine, or both. If the violation was done with the purpose of exchanging information for anything of value or to obtain or give a competitive advantage to a contractor, the maximum prison term would be increased to five years.
Current provisions provide for imprisonment for five years for knowing and willful violations.
The Reform Act would substantially reduce the civil sanctions applicable under the current statute. The Reform Act allows agencies to take appropriate administrative actions similar to those now available when they possess information suggesting a violation. As under the current law, if the violation occurs before award, the agency can cancel the procurement. If the contractor is convicted of a violation or the agency head determines, based on clear and convincing evidence, that there was an offense, the agency can rescind the contract and recover any amounts already expended under the contract. The current law does not allow the government to recover all amounts paid under the contract, but it does allow the government to default terminate the contract and deny the contractor any profit.