Question
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?
Answer
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.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.