How Do I Know What to Show? November 17, 2010 Frank Denny Maureen Daniels

2 How do you react when you get a request to inspect your procurement files? Worried Nervous Annoyed or CONFIDENT

3 OBJECTIVE Eliminate fears by learning who can see what, when, how and why This session will provide: – Sources for Guidance – Scenarios – Interaction – Tips

4 Sources The Virginia Freedom of Information Act(FOIA) et seq The Virginia Freedom of Information Act (FOIA) et seq of the Code of Virginia is largely a procedural act which guides a user as to how to make or respond to a FOIA request for public records The Virginia Public Procurement Act (VPPA) The Virginia Public Procurement Act (VPPA) of the Code of Virginia governs the inspection of public records relating to procurement transactions The Agency Purchasing and Surplus Property Manual (APSPM) 3.17 The Agency Purchasing and Surplus Property Manual (APSPM) 3.17 establishes policies and procedures pertaining to public access to procurement records and

5 Sources Procurement Account Executives LEGAL COUNSEL

6 Scenario # 1 There are six bidders in attendance at your bid opening for heavy equipment that has an estimated value of $95, During the bid opening a vendor requests to see the bid package of another bidder. Do you show or not show?

7 DO NOT SHOW APSPM 3.17(b): Public Access to Procurement Records and Code of Virginia (C): Public inspection of certain records Any bidder, upon request shall be given an opportunity to inspect bid records within a reasonable time after opening and evaluation of bids, but prior to award except in the event that the agency decides to reject all bids or offers and rebid. Information read out loud at public bid opening will be furnished upon request

8 Scenario # 2 You have awarded a high dollar, high profile competitive negotiation for services that involved correspondence with your Legal Council. A vendor whom did not submit a proposal has requested to review the procurement file. What should you not show?

9 Code of Virginia (2): Attorney - Client Privilege Any written advice of legal counsel to state, regional or local public bodies, and any other records protected by the attorney – client privilege (Make sure the attorney marks as such) **confidential attorney-client communication**

10 Scenario # 3 A proposal is submitted with all pages marked “PROPRIETARY per the Virginia Freedom of Information Act” What do you do? and What do you show?

11 REJECT APSPM 3:17 (f): Public Access to Procurement Records Code of Virginia (F): Public inspection of certain records The classification of entire bid or proposal document, line item prices and or total bid or proposal prices as proprietary or trade secrets is not acceptable. If, after being given reasonable time, the bidder, or offeror refuses to withdraw an entire classification designation, the bid will be considered nonresponsive or the proposal will be rejected The bidder, offeror or contractor shall (iii) state the reasons why protection is necessary

12 and DO NOT SHOW APSPM 3:17 (g): Public Access to Procurement Records To protect the Commonwealth and its employees from possible claims for damages because of the improper release of information, agencies and institutions shall not release any information that a bidder, offeror, or contractor has claimed to be a trade secret or proprietary information unless ordered to do so by a court of competent jurisdiction

13 Scenario # 4 A non DMBE-certified small business calls you and asks for a copy of the current bid prices for an upcoming solicitation you have posted on Future Procurements. Do you show or not show?

14 SHOW Virginia Freedom Of Information Advisory Council, July, 2010 The request need not make reference to FOIA in order to invoke its provisions, and a written request is not required

15 Scenario # 5 How much time do you have to show or not show?

16 5 (five) working days Code of Virginia B. Public records to be open to inspection: procedure for request records and responding to requests: charges; transfers of records for storage,etc. Any public body that is subject to this chapter and that is custodian of the requested records shall promptly, but in all cases within five working days of receiving a request provide the requested records

17 Continued *Remember: Failure to respond to a request for records shall be deemed a denial of the request and constitutes a violation of FOIA However If it is not practically possible to provide the requested records OR to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible, and the public body shall have an additional seven work days to provide a response

18 Scenario # 6 You are conducting a Competitive Negotiation. Two weeks after the close, and while the evaluation committee is having offerors make presentations, an offeror who has submitted a proposal calls and asks you if vendor ABC submitted a proposal on both parts of the RFP and if they proposed a German company as their supplier. Your response is what?

19 APSPM 3.1 (e): Sealed Proposals Questions on the proposals of other offerors should not be answered until after evaluation and negotiations are complete and an award decision has been made

20 Scenario # 7 You have conducted an IFB – it has closed, and several weeks have passed, and you have not made an award. Vendor (A), Jones Supply, had submitted a bid and requests to inspect the bid records. Vendor (B), Smith-Jackson, Inc., did not submit a bid and requests to inspect the bid records. What do you show? and When do you show it?

21 APSPM 3.17: Public Access to Procurement Records. Records are open to the public in accordance with the Virginia Freedom of Information Act, subject to the following: (A)SHOW (b): Any bidder upon request, shall be given an opportunity to inspect bid records within a reasonable time after opening and evaluation of bids, but prior to award (B)DO NOT SHOW – 3.17 (d): Bids and proposal records shall be open to the public only after award

22 Scenario # 8 You have issued a RFP – it has closed, you have completed the evaluations and are a few days away from completing negotiations. Vendor, Berkley Services, had submitted a proposal, and now requests to inspect the proposal records. Do you show or not show?

23 DO NOT SHOW APSPM 3.17 (c): Any offeror who responds to an RFP, upon request shall be afforded the opportunity to inspect proposal records within a reasonable time after the evaluation and negotiation of proposals are complete but prior to award

24 Scenario # 9 You have issued an IFB to provide services for a project which is very sensitive to the community. Feelings are very hot and agency management wants to do everything it can to demonstrate to the community that the selection process is open and transparent. You are just about to make an award and you receive a request from a very angry citizen to review the bid records – to confirm that the selection process indeed has been open and fair. Do you show or not show?

25 DO NOT SHOW APSPM 3.17 (d): Bids and proposal records shall be open to the public only after award

26 Scenario # 10 You have completed a RFP and post a “Notice of Intent to Award”, and you intend to follow up with an “Award Notice”. An offeror requests to review the procurement record – but, since you have not made an “Award” you inform the offeror that she must wait until the Award is made. Is this the correct response?

27 INCORRECT RESPONSE APSPM 3.18 (d): …. NOTE: The procurement records must be available for review by any bidder or offeror at the time a Notice of Intent to Award or an Award Notice is posted

28 TIPS Remember the Procurement Process is OPEN to the public and what we do is susceptible to scrutiny

29 TIPS Do not create a new record if the requested record does not already exist Find out if your agency has a FOIA coordinator and internal procedures related to FOIA requests

30 TIPS A “public record” is any writing or recording, in any format including hand written notes and electronic files If in DOUBT contact your agency’s Legal Counsel

31 THANK-YOU