Q: There is a case (which was cited by one of my City’s Attorneys) wherein negotiation of a public proposal (in my case a city-owned building to be sold and developed by a private developer–AND it is an official state historic resource) does not have to be revealed until the negotiations are complete, and if I read correctly there is time before the actual AWARD of the contract and the negotiation. Do you know what that time period is? I am trying to ascertain the affects of the development on the historic resource and my city is saying that they don’t have to reveal anything until the time of the sale.
A: As I understand your question, you are wondering what is the reasonable time period that a city must allow for public comment on the winning bid for a public contract before the city makes the actual award of the contract. Unfortunately, the California Supreme Court case cited by the city, Michaelis, Montanari & Joshnson v. Superior Court, 38 Cal. 4th 1065 (Cal. 2006), does not give guidance on this issue. That case stands for the proposition that bids for public contracts are exempt from disclosure under § 6255 of the Public Records Act during the negotiation process. While the court also stated that the agency must allow a reasonable time period between disclosure of the bids (once the negotiation process is complete) and the final award, it specifically declined to analyze whether the 5-day period given by the state agency in the case was reasonable: “We need not decide in this case the precise point in time appropriate for such disclosure, as long as a reasonable time remains for public input before the Board’s final award is made.” Thus, the court provided no guidance on what would be considered reasonable under those, or any other, circumstances and I am not aware of any other cases that might shed light on that matter. However, if the City is affording the public no opportunity at all to comment on the winning bid before the actual contract is awarded, it is probably safe to say that this would not be considered reasonable.
Although the bidding process and sale of the city-owned building that you reference might have already taken place.
A&A: Public Comment on Public Contracts
Q: There is a case (which was cited by one of my City’s Attorneys) wherein negotiation of a public proposal (in my case a city-owned building to be sold and developed by a private developer–AND it is an official state historic resource) does not have to be revealed until the negotiations are complete, and if I read correctly there is time before the actual AWARD of the contract and the negotiation. Do you know what that time period is? I am trying to ascertain the affects of the development on the historic resource and my city is saying that they don’t have to reveal anything until the time of the sale.
A: As I understand your question, you are wondering what is the reasonable time period that a city must allow for public comment on the winning bid for a public contract before the city makes the actual award of the contract. Unfortunately, the California Supreme Court case cited by the city, Michaelis, Montanari & Joshnson v. Superior Court, 38 Cal. 4th 1065 (Cal. 2006), does not give guidance on this issue. That case stands for the proposition that bids for public contracts are exempt from disclosure under § 6255 of the Public Records Act during the negotiation process. While the court also stated that the agency must allow a reasonable time period between disclosure of the bids (once the negotiation process is complete) and the final award, it specifically declined to analyze whether the 5-day period given by the state agency in the case was reasonable: “We need not decide in this case the precise point in time appropriate for such disclosure, as long as a reasonable time remains for public input before the Board’s final award is made.” Thus, the court provided no guidance on what would be considered reasonable under those, or any other, circumstances and I am not aware of any other cases that might shed light on that matter. However, if the City is affording the public no opportunity at all to comment on the winning bid before the actual contract is awarded, it is probably safe to say that this would not be considered reasonable.
Although the bidding process and sale of the city-owned building that you reference might have already taken place.