Procurement
May 26, 2012

Stopping the post-award freedom of information dance

We all know the music and the steps that go with it. A large dollar, high profile contract is awarded. The losing vendors line up with their requests for information. Sometimes, the public sector executives want to comply but have to consult with the winning vendor. This vendor declares that the entire proposal and contract are confidential and contain information which, if released, will harm its ability to compete. Sometimes, the agencies themselves do not want to release information. Whatever the reason, the agency or the winning vendor bobs, weaves and plays coy by hiding the requested information through the shell game known as redaction.

This is a waste of taxpayer’s money, public employee time and does not serve the vendor community or the public. It’s time for executives to step up and take a more forceful lead in streamlining the process.

The dance steps
On Jan. 20 of last year, a vendor requested five documents from the City of Quesnel, British Columbia related to an RFP and the subsequent award of a contract to MHPM Project Managers. By Feb. 26, about a month later, it received all of the information requested that was under the direct control of the city.

However, because the city did not have clear language about the release of vendor information post award, it got caught up in the B.C. Freedom of Information Act dance when the winning vendor chose to oppose the release of all information in its proposal and in the related contract. The vendor, through its lawyers, claimed that every page of the proposal contained either trade secrets, information that was supplied in confidence, or information that if released could harm its competitive position. Incredibly, this claim applied not only to their costing section, but also to all pages including the cover page and table of contents.

After 12 more months and several iterations involving their lawyers and the Office of the B.C. Information and Privacy Commissioner, most of the proposal was released. It is likely that a formal hearing, which would have taken another four months, would have released almost all of the unreleased information.

Allowing your department to participate in this type of dance around releasing of information costs money and time to taxpayers as well as to the vendor community that is trying to learn how to improve their processes.  

Take charge
As a manager, you are in charge of the organization. You should establish a specific universal access to information policy for RFPs which:

  • Automatically releases pre-specified categories of information and documents at the end of the process.
  • Requires vendors to identify in their proposals the proprietary, trade secret and competitive information that they want to protect under access to information laws. All of the unprotected information is released immediately upon award of the contract.
  • Provides a copy of the information release form so the vendors can see what will be made available. Make sure it includes all of the evaluation information.

While the mantra of public procurement is “fair, open and transparent,” there are limitations on transparency imposed by process, policy and law. The release of information should be part of the policy and practices of the agency and the vendors’ understanding of the information under their control.

The information and reports generated during an RFP competition are fairly standard. Many of these documents are always made available under access to information laws, often following lengthy processes, including formal hearings, to establish that they are not exempt from release. Examples include the request for proposal itself and the evaluation criteria, to name two.

One obvious reform that will improve the process, reduce the costs and improve the climate is to have the Commissioners’ offices (federal, provincial and territorial) establish a list of documents and data which can always be released upon award of a contract, for example, the list of firms submitting proposals and the summary of evaluation scores.

It’s About Time: Report Card On The Timeliness Of Government’s Access To Information Responses, April 1, 2009 – March 31, 2010, Office of the Information & Privacy Commission for British Columbia, 55 pages.

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