January 30, 2008
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
I have received your letter and hope that you will accept my apologies for the delay in response.
You expressed an “understanding that Bid Results summation numbers are listed on web site for each of the particular government agencies that solicit them, but only for a limited time.” You also referred to certain bids being “itemized” and contended that “itemized results should be available to the public after the contract has been awarded.”
In this regard, first, while it has become common practice for government agencies to post information on websites, there is nothing in the Freedom of Information Law requiring that they do so. Similarly, when information is posted, that law does not specify the duration of the posting.
Second, however, the Freedom of Information Law applies to all government records and confers rights of access as long as records exist. As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law.
The provision of greatest significance relative to your remarks is §87(2)(c), which authorizes an agency to withhold records to the extent that disclosure “would impair present or imminent contract awards...” When an agency solicits bids, but the deadline for their submission has not been reached, premature disclosure to another possible submitter might provide that person or firm with an unfair advantage vis a vis those who already submitted bids. Further, disclosure of the identities of bidders or the number of bidders might enable another potential bidder to tailor his bid in a manner that provides him with an unfair advantage in the bidding process. In such a situation, harm or "impairment" would likely be the result, and the records could justifiably be denied. However, when the deadline for submission of bids has been reached, all of the submitters are on an equal footing and an agency is generally obliged to accept the lowest appropriate bid. In that situation, the bids would, in my opinion, be available.
If records relating to bids have been prepared, such as “summation numbers”, itemized results or other documentation, those records would, in my opinion, be accessible following the opening of the bids and an award. That they may not be posted or are removed from a website would not alter rights of access. So long as the exist, I believe that an agency would be required to disclose them in response to a request made pursuant to the Freedom of Information Law.
I hope that I have been of assistance.
Robert J. Freeman