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.