Access to RFO Bids
Q: Under the CA Public Records Act, do we as responders to a RFO for Information Technology Consulting Services for State of California contracts, have any rights to be able to review the bids received (after notice of contract award) to find out how we scored in comparison and how we could write better responses? Also, once the contract is awarded, do we have the right to review a copy of the actual contract? We have received different replies to our requests at different state agencies, some yes and some no. Each time we have asked, the bids have not had any financial information about the contractors company, other than the hourly rate or total amount of the fixed price contract. These are not real estate transactions nor are they for health care. There is a lot of language in the California Performance Review site about Acquisition Reform and achieving transparency in the process, but we have yet to see any consistency.
A: Under Public Records Act (“PRA”), public records (which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. With respect to contracts entered into with a public agency, a California Court of Appeals found that such contracts are subject to disclosure under the PRA. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983). In the San Gabriel Tribune case, the court rejected any claim by the city that financial information submitted to the city by a waste disposal company was exempt from disclosure as confidential proprietary information. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983).
With respect to copies of bids once a contract has been awarded, such records may contain information that may be considered trade secrets, in which case they would be exempt from disclosure under section 6254(k) of the PRA. Section 6254(k) exempts from disclosure “[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law.” Trade secrets are generally protected from disclosure to the public under both state and federal law.
If you have not already done so, I suggest you submit a PRA written request to the agencies for a copy of the bids and the contract you reference. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). You might want to remind the agencies of their obligation to provide you with the records, or to cite the authority that allows them to withhold it. Only then will you be in a better position to determine whether the records have been improperly withheld. A sample PRA request letter is found on CFAC’s website at the following link: http://www.cfac.org/templates/cpraletter.html.