We currently have a project out to bid for the installation of about a quarter mile of 10-inch water main. As usual, after we release the notification to bidders, we begin receiving requests from companies asking for a list of bidders or plan holders. Our city’s policy is to not release this list until after the bid opening because of the potential of affecting bid prices. For example, a potential bidder could submit a different bid based on who the competition is and how many other companies have picked up plans.
With the relatively new FOIA laws in Illinois, we’ve had companies trying to claim the information as a FOIA request. However, we have been denying the request under the following exemption stated in this law:
(h) Proposals and bids for any contract, grant, or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person proposing to enter into a contractor agreement with the body, until an award or final selection is made. Information prepared by or for the body in preparation of a bid solicitation shall be exempt until an award or final selection is made.
We received a request the other day from a company outside of Illinois and sent them our standard denial letter based on this exemption. They ended up sending a letter to the State of Illinois arguing that we should release the information because they want to submit bids as a subcontractor and the information would encourage a more competitive bid. There are several issues with this.
- First and most importantly, we believe we are exempt from releasing it, although the final decision will now rest with the State.
- Next, if the State determines we must release the information, this would become a FOIA request for a commercial purpose which the company failed to mention and by failing to do so violated the law. However if the State determines we must release the information and if the company ends up properly requesting the information, we would have 21 days to respond since it is a request for a commercial purpose which means they would receive the information after the bid opening rendering it useless for their purpose.
- Finally, the project involves no work that would require the type of services they appear to offer. It would be like bidding out a road resurfacing project and a supplier of excavators wanting to get a list of bidders to give them prices on new equipment. There’s just no specific pay item for that work. So I am not even sure how giving a heavy equipment sales company a list of bidders for a specific project that has no specialty items helps lower our cost.
The end result is a waste of time for everyone. Where I worked before, I ended up not being able to even send out lists because we offered proposal materials online so we would not have known who downloaded them. And if we continue to have issues with this, we would probably end up choosing to do the same or just not keep a list. But I was wondering how other agencies are handling these requests, if others believe releasing the lists can affect the bids, and if other states require agencies to release the information prior to opening of the bid.
My thought in this case is to share the bidders list. Here’s why… It seems the fear for sharing the information is that if someone sees that only 1-2 people are on the list they will be able to submit a bid that is higher than what they might otherwise bid. Thus the city will be paying more for something than it should. If you only get 1 or 2 bids for the project, and they both seem high, I don’t see any reason why you’d have to give either of them the contract. I’m assuming you have sound estimates for what the work should cost so you’ll be able to reasonably tell whether or not a bid is reasonable or not.
If you have a procurement with a lot of interest, sharing the list only increases the competitiveness and should end up with the city getting very competitive pricing.
Share, share, share that bidders list.
P.S.- do you actually maintain the bidders list (i.e. you only send solicitations to a few folks to begin with?) or can folks just advertise their interest on the city’s website?
The State’s FOIA language is very similar to the Federal language and the usual interpretation in the Federal acquisition environment is closely aligned with Pam’s thinking. However, there is a way to support the interests of potential sub-contractors (many of whom would be small and/or small dis-advantaged firms). The agency can encourage potential sub-contractors to register their interest in working as a sub under a specific project and they (the agency) can provide that information to the firms on the bidders list. If this can be done in an automated fashion where the subs can post their information and the bidders can be given access to the postings, so much the better.
We have been maintaining a list because it is helpful for us to keep track of how many have picked up the plans. Also, we need the list in case there are addendums. But I have to admit that if in the end we are forced to share the list, we are probably better off just posting the plans and addendums on our website and not keep a list and hope we will have bidders rather than deal with all the requests we get for lists.
I like John’s idea to have a register although I am not sure if there would be a concern that by listing a contractor on our site that would seem to be a type of endorsement. The local contractor’s associations provide this service so are probably better placed to encourage those connections.
For my last job, one of the requesters sent a complaint to the State Attorney General about our refusal. And what is strange is they are trying to argue they needed the list to bid as a sub, but the work they perform was not part of the contract nor was it specified as a requirement. So I cannot understand how their argument that giving them the list would have helped our bidding process. It would be like me bidding our water main job and the local hot dog vendor getting upset he could not find out who he could sell hot dogs to for lunch. Although I wish we could specify hot dogs for everyone at lunch on the jobsites! 🙂
Pam – Adding a disclaimer to the site that the agency is providing opportunities for potential subcontracting and in no way endorses the firms choosing to be added to the list should be enough to assure that potential prime contractors do their due dilligence reviews prior to signing on a subcontractor for your acquisitons.