A&A: Withholding “Requests for Proposals” from the public

Q: A law enforcement commission released an RFP (Request for Proposals) some months ago. Two vendors responded but omitted required DVBE (Disabled Veteran Business Enterprise) participation so their proposals were not reviewed. The commission canceled the solicitation and has now put up a new one. Their response as to why they cannot show the old RFP’s: “Because the solicitation was canceled and an award was not made, the contractor proposals do not become public record and therefore are not available for viewing.” I find no justification for this action in sec. 6254 of the California Public Records act. Any opinions?

A: The California Supreme Court has ruled that RFPs are not required to be disclosed to the public during the negotiation process.  The Court stated that while the “public may have a legitimate and substantial interest in scrutinizing the process leading to the selection of the winning proposal,” such scrutinization can just as effectively take place after the negotiations are completed, but before the government agency approves the contract. Michaelis, Montanari & Johnson v. Sup. Ct., 38 Cal. 4th 1065, 1073 (2006).

From the facts you stated, it is likely that the commission is still in this “negotiation” period with the vendors that submitted RFPs, and therefore, the RFPs are likely exempt from disclosure under the PRA.