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Right to Know Law Tips for Government Contractors

Right to Know Law Tips for Government Contractors

January 13, 2022

Companies that contract with state and local agencies in Pennsylvania can access a lot of information about an agency’s bidding process through strategic Right to Know Law (RTKL) requests.

Under the RTKL, all agency records are presumed to be public and disclosable unless an exemption or privilege applies. There are three key exemptions to be aware of when requesting records relating to the contracting process:

  • 708(b)(26) – A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. Sec. 513 (relating to competitive sealed proposals).
  • 708(b)(10)(i)(A) – records reflecting “the internal, pre-decisional deliberations of an agency, its members, employees or officials or pre-decisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including pre-decisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the pre-decisional deliberations.”
  • 708(b)(11) – a record that constitutes or reveals a trade secret or confidential, proprietary information.

Section 708(b)(26) is specific to the procurement process. You cannot use the RTKL to get a copy of your competitor’s bid during the bidding process. Furthermore, if your company submits financial information to show its economic capability, your competitors cannot access that information via the RTKL.

Section 708(b)(10)(i)(A), the exemption for the agency’s internal pre-decisional deliberations, prevents access to documents reflecting the agency’s deliberative process. This makes it difficult, if not impossible, to access the agency’s internal emails or notes discussing the merits of the bids it has received for a project, even after the bid has been awarded.

Finally, Section 708(b)(11) protects a bidder’s trade secrets and confidential, proprietary information. To the extent their bid included confidential, proprietary information (e.g., technical information about their product or service, component pricing, or other sensitive data), that information should be redacted before a copy of their bid is released.

Notwithstanding the above exceptions, government contractors can still access useful information. You can request copies of all proposals for a prior version of a contract you intend to bid on to see what other companies have put forth, who the repeat players are, and what good and bad bids have been put forth. If you’re interested in learning more about a particular competitor, you can request all bids that the company has submitted for any project with the agency (excluding currently open bids).

Government contractors are not restricted to requesting bidding information only. You can request communications between the agency and its contractors, which may help you analyze the nature and strength of that relationship. Contractors should think creatively about the types of documents that would help them strategize and gain a competitive advantage. Consulting with counsel when drafting and submitting your request can also streamline the process and ensure you are requesting the information you are entitled to receive.

Author: mshannon@offitkurman.com | 267.338.1328

Big Announcements from Maryland Tech Council

Big Announcements from Maryland Tech Council

Please see important information below regarding our office move, guest blogs and member videos! Let me know if you have questions.  I’m looking forward to seeing you soon!

  • Big Move

    Maryland Tech Council is saying goodbye to our old digs on September 20, 2017.  Please make note, our communications will be down that day and we will resume full activity on September 21, 2017.  MTC’s new headquarters will be located at Launch Workplaces in Gaithersburg MD, 9841 Washingtonian Boulevard, Suite 200, Gaithersburg MD 20878.

  • Be a Guest Blogger

    Maryland Tech Council is launching the Member Point of View (POV) guest blogs.  We are inviting members to submit content for our blog page.  The content will be focused on your niche/industry where you can add a new POV for the MTC audience. Our goal is to position you as an authority and well-known name in the industry. And for us, we will have fresh new content for the page and get new readers to our blogger community.  It’s simple and a win-win.  We will have numerous categories that you can write articles for; those will be available in the next few weeks.  We are kicking off the Member POV blogs during Cyber Security Awareness month in October.  If you are interested in submitting a blog on that topic, please let me know and we will get you started.

  • Become a Familiar Face in the Community

    Maryland Tech Council is revitalizing the “member spotlight” that is featured in the VIBE E-newsletter. We now offer the opportunity to feature you, the member, through our new and exciting video blog or vlog.  The video will be 30-45 seconds, prerecorded at our offices, about your company. We will then feature the vlog in our monthly VIBE E-newsletter.  The vlogs allow us to distribute the member spotlight through other formats such as twitter, Facebook, etc. to get you more exposure.  I mean, we are the Tech Council, right?  

 

Remember, everyone in your company is a member of MTC. Please share this important information with your team.

Warm Wishes,
Michelle

Michelle Ferrone
EVP, Operations
Maryland Tech Council
240-243-4047