November 21, 2017
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.
This is in response to your request for an advisory opinion regarding the manner in which the New York Power Authority (NYPA) and the New York State Office of General Services (OGS) have responded to your Freedom of Information Law (FOIL) request for a copy of a Request for Proposal (RFP), bidder specifications, and/or invitation to bid, issued by one or both of the agencies.
Although it appears that neither agency has yet responded to your October 25, 2017 request, you indicate in your letter that:
“An earlier NYPA fact sheet for external release stated, ‘The RFP is currently in a temporary “Restricted Period” phase and so a copy is not available at this time. Bids are due at the end of September 2017. The RFP will be available when a winning bidder has been selected and the restricted period has ended.’”
According to the OGS website:
“Procurement lobbying laws in New York say that the period of time between when a contract solicitation begins and the contract is awarded or the decision to not pursue an award is made, the Office of General Services (OGS) and the New York State Procurement Services staff, other than the designated contact, cannot discuss the contract with you.”
State Finance Law §139-j establishes restrictions on “contacts” during the procurement process. The term “contacts” is defined as:
“any oral, written or electronic communication with a governmental entity under circumstances where a reasonable person would infer that the communication was intended to influence the governmental entity's conduct or decision regarding the governmental procurement.” (§139-j(1)(c))
In this instance, you have made a request for records setting forth the bidding requirements for a particular project. Based on information you provided, it does not appear that you or your organization are attempting to discuss the procurement with OGS or NYPA staff. In our view, a request for records pursuant to FOIL could not be considered by a reasonable person to constitute a “communication…intended to influence the governmental entity’s conduct or decision regarding the governmental procurement.” In our view, the type of record requested would have been made publicly available to any vendor interested in submitting a proposal to the agency. In fact, a number of state agencies make their RFPs publicly available on their websites. In my opinion, a copy of the RFP or similar document should be disclosed in response to a FOIL request.
I hope I have been of some assistance.
cc: OGS Records Access Officer
NYPA Records Access Officer