January 31, 2000
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, unless· otherwise indicated.
I have received your undated letter, which reached this office on December 20, as well as the materials attached to it. You have raised issues concerning a denial of access to records by the Empire State Development Corporation (ESDC).
Attached to your letter is a copy of a news release indicating that the Governor had signed a lease agreement with a particular company to operate Stewart Airport. Notwithstanding the foregoing, ESDC denied access to the lea s e on the basis of§87(2)(c) of the Freedom of lnformation Law. That provision, as you know, permits an agency to withhold records to the extent that disclosure "would impair present or imminent contract awards or collective bargaining negotiations." You stated in your letter that you found it " remark able" that the agency did not rely upon §163(9)(c) of the State Finance Law, which, in your words, "has long been that agency' s justification for withholding the requested information." That provision pertains to " Purchasing services and commodities" by state agencies and typically is applicable in a request for proposal (RFP) process. It states in relevant part that: "Disclosure of the content of competing offers other than statistical tabulations of bids received in response to an invitation for bids, or of any clarifications of or any revisions there to shall be prohibited prior to award."
When § 163(9)(c) applies, it removes records from rights of access otherwise conferred by the Freedom of Information Law. That latter statute 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 (i) of the Law. The first ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." Therefore, prior to an award, §163(9)(c) serves to exempt the kind of record at issue from disclosure.
As you may be aware, the execution of an agreement may involve several steps, one of which involves choosing the winning submitter in response to an RFP; another, as in this instance, may involve the signing of a lease. However, after the lease is signed, there may be negotiations on the part of the signatories, as well as approvals required by the State Comptroller and the Attorney General.
Since I am not an expert in the area of procurement or purchasing by state agencies, I have discussed with an expert the issue of what constitutes an "award" as that term is used in the State Finance Law, and a " contract award" as that phrase appears in the Freedom of Information Law. It was advised that an "award" involves the situation in which an agency selects a vendor, or as in this instance, a lessee, in the bid or RFP process, and the parties sign an initial agreement. Once there is an award, the prohibition against disclosure imposed by the State Finance Law no longer applies. That may be reason for the absence of reliance on §163(9)(c) by ESD C. A "contract award", according to the expert, may not be made until the requisite approvals have been obtained and the contract is executed. As such, an " award" pertains to an initial agreement, i.e., the of the signing of the leas e, and a "contract award" would occur later in the process when the agreement is final in all respects.
The distinction between the two appears to be especially relevant in the RFP process and the application of §87(2)(c). It is my understanding the process of awarding contracts following the submission of bids is different from that involving RFP's. With respect to bids, in general, 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, to obtain the best value, 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 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 bidder s 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.
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 the submitters resulting in alterations in proposals or costs. Even after a submitter has been named and an " award" is made, the parties may and often will engage in a series of negotiations. As such, despite having made an award, the process may not be final, and the initial agreement may be altered or even rejected by the Comptroller or the Attorney General. Consequently, insofar as disclosure prior to the execution or consummation of the contract would impair the contracting process or the ability of an agency to reach an optimal agreement on behalf of the public, I believe that an agency may deny access.
I hope that I have been of assistance.
Robert J. Freeman
Anita W. Laremont