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April 30, 1996

 

 

Ms. Marla G. Simpson
Counsel to the Borough President
NYC Office of the President of the
    Borough of Manhattan
Municipal Building
New York, NY 10007

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.

Dear Ms. Simpson:

I have received your letter of April 17, as well as the correspondence relating to it. In your capacity as Counsel to the Manhattan Borough President, you have sought an advisory opinion concerning a denial of a request made by the Borough President for records of the New York City Community Development Agency.

According to the materials, the request involved the "recent Immigration Initiatives RFP", and the Borough President sought the names of organizations that applied, those with which contractual agreements have been reached, and the "Tier One and Tier Two scores." The request was denied because the contracts are not "final and binding" and "have not yet been registered with the Comptroller."

If, as you suggested, the contracts "have been awarded and executed", and they are "merely pending registration by the Comptroller", I would agree that there would be no basis for a denial of access.

In this regard, I offer the following comments.

First, 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.

Second, potentially relevant is §87(2)(c), which enables agencies to 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 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, an agency might solicit 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, 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 number of 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 bids would, in my opinion, be available.

In the case of RFP's, even though the deadline for submission of proposals might have passed, an agency may engage in negotiations or evaluations with the submitters resulting in alterations in proposals or costs. Whether disclosure at that juncture would "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.

In this case, if I correctly understand the situation, negotiations relating to the RFP's have been completed, and the parties to which contracts will be or have been awarded have been selected. If that is so, I do not believe that there would be a basis for withholding, for disclosure would not in any way "impair" the contracting process. I point out, too, that it has been held that bids are available after a contract has been awarded, and that, in view of the requirements of the Freedom of Information Law, "the successful bidder had no reasonable expectation of not having its bid open to the public" [Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc. 2D 951, 430 NYS 2D 196, 198 (1980)]. While the cited decision involved bids and related documents, I believe that it is implicit that the agreement itself had been made public or would be an accessible record.

In short, if indeed an agreement has been reached and only registration with or approval by the Comptroller is needed to complete the process, it is difficult to envision how disclosure at this juncture would constitute any "impairment."

Lastly, with respect to the Tier One and Tier Two scores, it is assumed that records containing those scores consist of evaluations and rankings of the proposals. If that is so, §87(2)(g) of the Freedom of Information Law would be relevant in ascertaining rights of access. That provision enables an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In a judicial decision dealing with ratings relating to RFP's, it was held that:

"The contract award was based on an evaluation of criteria and ratings made by the committee members. Backup factual and statistical data to a final determination of an agency is not exempt from disclosure (see also, Church of Scientology v State of New York, 54 AD2d 446, 448-449, affd 43 NY2d 754). The individual members of the DOH committee were required to rate the response to the criteria of the RFP and accord it a numerical value. The rating given each category reflects the voting which determined the contract award (see, supra). Although the rating sheets are subject to disclosure, however, the subjective comments, opinions and recommendations written in by committee members are not required to be disclosed and may be redacted" [Professional Standard Review Council of America, Inc. v. NYS Department of Health, 193 AD 2d 937, 939-940 (1993)].

Copies of this opinion will be forwarded to Diane McGrath-McKechnie, Commissioner of the Community Development Agency, and Matthew W. Daus, General Counsel.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director

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