Indiana Public Access Counselor Luke Britt has rejected the city of Indianapolis’ argument that a request for proposals could be withheld from public review, siding with IBJ.
The city on Oct. 17 released the final version of its RFP for its potentially $600 million criminal justice facility. But officials declined to release drafts created during an unusual public procurement process in which the city allowed vendors to review and comment on the RFP behind closed doors.
Britt concluded in a formal opinion issued Nov. 6 that the city should also release drafts of the document.
The city had denied IBJ's request, claiming the drafts fall under an exemption in the state's Access to Public Records act for "deliberative" documents.
Britt said he sought advice on public procurement law from several sources, “all of whom consider the City’s bidding practices in this situation to be irregular,” he wrote. “Irregularities notwithstanding, I am not compelled by the City’s assertion of the negotiation exception to disclosure in this instance.”
“By definition, discussions with a short list of pre-qualified vendors are not negotiations of a contract and would not fall under the [Access to Public Records Act],” Britt wrote. “Neither are they deliberative communication as the contractor is not yet under contract.”
Britt’s opinion said the city may withhold technical specifications that, if released, could compromise security at the courthouse and jail facility.
The city will release drafts of the RFP and key financial information the week of Nov. 24, Director of Enterprise Development David Rosenberg wrote in a Nov. 5 letter to IBJ. Bids on the facility are due Nov. 21.
The city posted to its website the final version of its RFP after releasing it to the vendors and the Indianapolis Star on Oct. 15.
In his letter, Rosenberg noted the city posted 847 pages of unredacted records. But the city did not release the maximum dollar amount that the city is willing to pay each year, the so-called “availability payment," for the facility.
Rosenberg said that was to “ensure the integrity of the city’s ongoing negotiations with multiple industrial and commercial prospects.” He said the availabilty payment information will be released the week of Nov. 24.
In his letter, Rosenberg also complained that IBJ’s request for a copy of the RFP lacked the “reasonable particularity” required by the open-records law but said the city “remains committed to conducting a successful and transparent procurement and negotiation process and anticipates that the thousands of pages of records that have been (and will be) released are adequate to satisfy your request.”
It was the first time the city claimed IBJ's request was not specific enough.
IBJ filed its formal complaint with the state's public access counselor on July 22 after the city refused to make public any version of the RFP, which was first released to bidders in April.
The city argued that the RFP was the subject of negotiation and that it contained trade secrets. In a later conversation between Britt and outside legal counsel, the city dropped the trade secrets argument, Britt wrote in background discussion of his opinion.
The city hopes to enter an all-inclusive deal for the financing, design, construction and maintenance of the courthouse and jail complex. Under a public-private agreement, the city would make annual payments for 35 years before taking possession of the facility.
“Much has been made of the city’s criminal justice facility being a public-private agreement,” Britt wrote in his opinion. “It is true the governmental body may refuse to disclose the contents of proposals during discussion with eligible offerers, but nothing allows the withholding of a request for proposals developed by a public agency during these discussions.”
In most public procurements, the government makes public its RFP as well as questions from vendors, answers to those questions and amendments to the RFP. The city has been following a different process, which is similar to one that the Indiana Finance Authority and Indiana Department of Transportation follow when entering public-private partnerships.
The city issued a request for qualifications late last year. Five teams responded, and the city chose three that would be allowed to bid. Then the city drafted a request for proposals for that short-listed group but didn’t make it public. Instead, the document was shared with the potential vendors, which offered their feedback behind closed doors.
“The interim process during which the short list gave input into the RFP was simply feedback and not actual negotiations,” Britt said. “Again, the city was not inviting acceptance of an offer to enter into a contract and should not be considered to be negotiating an agreement.”