Case No. VFA-0743

June 4, 2002

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Motion for Reconsideration

Name of Petitioner: Martin Becker

Date of Filing: May 6, 2002

Case Number: VFA-0743

On May 6, 2002, Martin Becker (Becker) filed a Motion for Reconsideration of a Decision and Order that the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) issued on May 2, 2002. Martin Becker, Case No. VFA-0710 (May 2, 2002). The Decision and Order considered Becker’s Appeal of a determination issued by the Savannah River Operations Office (SR) of the DOE on December 10, 2001.

I. Background

Becker filed a FOIA request with SR seeking a copy of a lease between Westinghouse Safety Management Solutions (WSMS) and the lessor Centennial, L.L.C. for office space in Building 3 of the Centennial Corporate Center in Aiken, South Carolina. Becker’s request was the subject of three previous FOIA appeals. On December 10, 2001, SR issued a determination letter in which it released a copy of the Centennial lease to Becker. However, SR redacted portions of the Lease under FOIA Exemption 4. Specifically, SR redacted those portions of the lease which would reveal the following types of information: rate per square foot, rentable square feet (space actually rented by WSMS), lease term, expiration date, lease renewal option period, monthly rent, security deposit, phone service reimbursement, annual minimum rent, total rentable area in building, and utility reimbursement. SR claimed that the withheld information was confidential commercial information that would substantially harm the competitive position of both parties to the contract if released. Becker appealed SR’s withholdings under Exemption 4 to this office. On May 2, 2002, OHA issued a decision and order upholding SR’s withholdings under Exemption 4 and denying Becker’s Appeal. Martin Becker, Case No. VFA-0710 (May 2, 2002). On May 6, 2002, Becker filed the present motion for reconsideration contending that “OHA ignored specific law requiring the release of the information [he] requested.” Motion for Reconsideration at 1.

The DOE FOIA regulations do not explicitly provide for reconsideration of a final Decision and Order. See 10 C.F.R. ' 1004.8. However, in prior cases, we have used our discretion to consider Motions for Reconsideration where circumstances warrant. See, e.g., Nathaniel Hendricks, 25 DOE ¶ 80,173 (1996). We will exercise that discretion here to consider the issue raised by Becker’s present motion.

II. Analysis

Becker’s Motion for Reconsideration is based solely upon his contention that the Federal Acquisition Regulations (FAR) mandate that DOE must release the information SR has withheld under Exemption 4. Specifically, Becker argues that 48 C.F.R. § 15.503(b)(iv) of the FAR requires that “the items, quantities and any stated unit prices”of the lease be made publically available. Motion for Reconsideration at 1. Becker’s reliance on the FAR is misplaced, however. The lease between Centennial and WSMS was not entered into or awarded under a FAR-based competitive procurement. May 22, 2002 Letter from Tim Fischer, Attorney-Advisor, Office of Chief Counsel, Savannah River Operations Office to George B. Breznay, Director, Office of Hearings and Appeals, at 2. Accordingly, the provisions of the FAR cited by Becker are inapplicable to the circumstances of the present case.

For the above stated reason, Becker’s Motion for Reconsideration will be denied.

It Is Therefore Ordered That:

(1) The Motion for Reconsideration filed by Martin Becker on May 6, 2002, Case No. VFA- 0743, is hereby denied.

(2) This is a final Order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provision of 5 U.S. C. §552 (a)(4)(B). Judicial review may be sought in the district where the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 4, 2002