April 12, 2010
FROM: Robert J. Freeman, Executive Director
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 referred to a situation in which Fulton County solicited “persons or agencies” that might be interested in purchasing the County’s nursing home and nursing service. You requested records identifying the names of persons or agencies that responded, but the County’s records access officer indicated that the information would not be disclosed until “the submission deadline is over.” You have questioned the propriety of the delay in disclosure.
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 (k) of the Law.
Second, most 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." In my view, the key word in the quoted provision is "impair", and the question involves how disclosure would impair the process of awarding a contract.
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. In the traditional competitive bidding process, 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 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, even before a contract has been signed.
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 several of 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.
Claims have been made in some situations that proposals and other records pertaining to the RFP process may always be withheld prior to the final award of a contract. In general, I have disagreed with those kinds of blanket assertions. Unlike the bid process in which an agency essentially has no choice but to accept the low appropriate bid, in the RFP process, the figures offered by submitters are subject to negotiation and change; they do not reflect the "bottom line." In view of the flexibility of the process, it is difficult to envision how disclosure of those figures would adversely affect an agency's ability to engage in the best contractual arrangement on behalf of the taxpayers.
It has also been contended that the kinds of records at issue should be withheld because the negotiations with the apparently successful submitter may not culminate in an agreement or may be rejected by the ultimate decision maker, such as a county legislature. It is my understanding that the RFP process is intended to encourage creativity on the part of submitters so that they can offer the best possible solutions in terms of an agency's needs or goals. That being so, and because proposals are subject to negotiation and alteration, even if the apparently successful proposal is rejected or set aside for some reason, the agency is not bound but rather is free to continue to attempt to engage in an optimal agreement. Disclosure might encourage submitters to better accommodate the needs of the agency or propose what might be characterized as a better deal. Rather than impairing the process, disclosure might enhance it.
In sum, without additional information concerning the factual circumstances, I cannot offer an unequivocal response. However, it is clear that rights of access, or conversely, the County’s authority to deny access, would be dependent on the effects of disclosure and the possibility that disclosure would “impair” the County’s ability to reach an optimal outcome on behalf of taxpayers.
I hope that I have been of assistance.
cc: Jon Stead