Request By:
Mr. Michael H. Diehl, Director
Division of Purchases
Finance and Administration Cabinet
Capitol Annex, Room 348
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mark Hebert has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He describes the materials in question as follows:
"All documents associated with the State's request for private prison contractor to build and maintain state pen. including names of companies submitting bids, bid specifications sent out by Finance Cabinet, dollar amount of bids, services included, proposed prison sites, size of prison, etc. Also stated reasons for re-submitting re-submitting project to potential bidders."
In your letter to Mr. Hebert dated March 14, 1985 you mentioned that he had been furnished with a copy of the Request for Proposal (RFP) containing the specifications for this procurement and a copy of your "Determination and Finding" concluding that no responsive offer had been received and that the solicitation was being continued under revised Request for Proposal Number SR-903-85 CON.
You further stated in your letter of March 14, 1985 that due to the continuing nature of this procurement and vour intention to seek additional proposals, based on revised specifications and criteria, from both the original offerors and such others as may desire to respond, you determined that the RFP file should be confidentially maintained until negotiations with all offerors have been concluded and a contract awarded. In your opinion public disclosure of the remaining information requested will have an adverse impact on further competitive negotiations for this procurement and you denied the request to inspect public records. In support of your decision you cited KRS 61.878(1)(b), (c), (g) and (h).
OPINION OF THE ATTORNEY GENERAL
Mr. Hebert's letter to the Attorney General states in part that the Finance and Administration Cabinet has considered and rejected the proposals. He maintains that since a final decision has been made to reject the proposals, they are subject to public inspection like all other bid documents where a final decision has been made.
The undersigned Assistant Attorney General talked with you and Charles Wickliffe, Esq., in your office on March 29, 1985. You stated that a revised RFP is in the process of being prepared and should be available in approximately ten working days. This document will be made available to the press. While the same basic project is involved there will be some changes and refinements in the RFP document. In your opinion the negotiation process has not been finalized and your current activities represent the continuation of an ongoing negotiation process which will, hopefully, culminate in the acceptance of a proposal and the awarding of a contract. You hope to receive proposals from those who originally responded and from other interested parties when the revised RFP is made available.
The RFP process with which you are concerned is being conducted pursuant to KRS 45A.085 dealing with competitive negotiation. Subsection (6) of that statute provides:
"Written or oral discussions shall be conducted with all responsible offerors who with all responsible offerors who submit proposals determined in writing to be reasonably susceptible of being selected for award. Discussions shall not disclose any information derived from proposals submitted by competing offerors. Discussions need not be conducted."
The statutory section quoted above specifically states that discussions shall not disclose any information derived from proposals submitted by competing offerors. It is reasonable to presume that the statute not only prevents the disclosure of such information to other offerors but to any person until the negotiations have been concluded by the final rejection of all proposals or the acceptance of a proposal and the awarding of a contract. Disclosure during the negotiation period is prohibited. It would not make much sense to permit disclosure to the media at such a time and have offerors learn from the media that which they cannot learn or obtain through the negotiating process.
An Administrative Regulation dealing with competitively negotiated contracts (200 section 4 as follows:
". . . Proposals for competitive negotiations shall not be subject to public inspection until negotiations between the purchasing agency and all offerors have been concluded and a contract awarded to the responsible offeror submitting the proposal determined in writing to be the most advantageous to the Commonwealth, price and the evaluation factors set forth in the advertisement and solicitations for proposals considered."
KRS 61.878 which sets forth those public records excluded from the application of the Open Records Law and subject to inspection only upon an order of a court of competent jurisdiction includes in subsection (1)(j), "Public records or information the disclosure of which is prohibited or restricted or otherwise made confindential by enactment of the General Assembly." KRS 45A.085(6) restricts the release of information during the process of competitive negotiations.
We construe the situation involved here as part of a continuing or ongoing process of competitive negotiations shall not be suject to public inspection until negotiations between the purchasing agency and all offerors have been concluded and a contract awarded to the responsible offeror submitting the proposal determined in writing to be the most advantageous to the Commonswealth, price and the evaluation fractors set forth in the advertisement and solictiations for proposals considered."
KRS 61.878 which sets forth those public records excluded from the application of the Open Records Law and subject to inspection only upon an order of a court of competent jurisdiction includes in subsection (1)(j), "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 45A.085(6) restricts the erlease of information during the process of competitive negotiations.
We construe the situation involved here as part of a continuing or ongoing process of competitive negotiations between the Finance and Administration Cabinet and offerors. The Open Records Act authorizes a public agency to deny access to public records where an enactment of the General Assembly prohibits or restricts the disclosure of such information. KRS 45A.085(6) prevents, during the competitive negotiation process, the release by the public agency of information derived from proposals submitted by offerors.
It is, therefore, the opinion of the Attorney General that your denial of the request to inspect records involved with an ongoing competitive negotiation process was correct and at this point in the process is supported by KRS 45A.085(6) and KRS 61.878(1)(j). However, the public agency is required to make available for public inspection those records associated with the competitive negotiation process, which are not otherwise precluded from inspection, at the final conclusion of the process (the final rejection of all proposals or the acceptance of a proposal and the awarding of a contract).
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).