June 29, 1995
Mr. Jeffrey D. Friedlander
Records Appeals Officer
New York City Department of Law
100 Church Street
New York, NY 10007
Dear Mr. Friedlander:
Thank you for forwarding a copy of your determination of an appeal of June 23 by Leslie Gevirtz of REUTERS.
The request involved firms that have responded to New York City's request for proposals for bond counsel services. In sustaining the initial denial of the request, you wrote that:
"It has been the consistent practice of the City not to disclose names and other information relating to those who respond to requests for bids or proposals prior to the award of the contract. This policy is in accord with the provision of FOIL, which in §87(2)(c) permits the withholding of records whose disclosure would 'impair present or imminent contract awards.' Mr. Sarner's determination is therefore affirmed with respect to the names and other identifying information relating to firms which have responded to the request for proposals for bond counsel services."
I respectfully disagree with the determination and offer the following remarks for your consideration.
As you are aware, 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 (i) of the Law. The provision upon which the you relied states that an agency may withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." From my perspective, the key word in the quoted provision is "impair", and the question involves how disclosure would impair the process of awarding contracts.
Section 87(2)(c) often applies in situations in which agencies seek bids or requests for proposals ("RFP's"). While I am not an expert on the subject, I believe that bids and the processes relating to bids and RFP's are different. As I understand the matter, prior to the purchase of goods or services, when an agency solicits bids, so long as the bids meet the requisite specifications, an agency must accept the low bid and enter into a contract with the submitter of the low bid. When an agency seeks proposals by means of RFP's, there is no obligation to accept the proposal reflective of the lowest cost; rather, after the receipt of the proposals, the agency may engage in negotiations with the submitters regarding cost as well as the nature or design of goods or services, or the nature of the project in accordance with the goal sought to be accomplished. As such, the process of evaluating RFP's is generally more flexible and discretionary than the process of awarding a contract following the submission of bids.
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, as suggested earlier, an agency is generally obliged to accept the lowest appropriate bid. In that situation, the identities of the bidders and in most instances bids themselves would, in my opinion, be available, for any impairment that might have occurred due to premature disclosure would essentially have disappeared. Moreover, bids are often opened publicly, before a contract is awarded.
In the case of RFP's, even though the deadline for submission of proposals might have passed, an agency may engage in negotiations with or evaluations of the submitters resulting in alterations in proposals or costs. Whether disclosure of the proposals or ancillary materials would at that juncture "impair" the process of awarding a contract is, in my view, a question of fact. In some instances, disclosure might impair the process; in others, disclosure may have no harmful effect or might encourage firms to be more competitive, thereby resulting in benefit to the agency and the public generally. Nevertheless, as in the case of bids, when the deadline for the submission of proposals has been reached, I cannot envision how disclosure of the identities of the submitters and, in accordance with the facts and circumstances, perhaps nothing more, could impair or adversely affect an agency's ability to engage in an optimal contractual agreement.
In short, while there may be a valid basis for withholding various information contained in or related to proposals, I do not believe that the policy of withholding the names of submitters of proposals, or bids, until a contract is awarded is consistent with the Freedom of Information Law.
If you would like to discuss the matter, please feel free to contact me. I hope that I have been of some assistance.
Robert J. Freeman
cc: Leslie Gevirtz