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.
We're posting below a comment we recently received for this article. The reason we're tagging it onto the end of the article is that we've set up posts so the ability to comment is turned off after several weeks to prevent spammers from posting on old articles. So the commenter was unable to post it in the normal manner. Because we definitely wanted readers to see valuable comments in the context of the original post, we thought we'd just add it to the end.
Comment from Cassie Dandridge Selleck
I just wanted to respond to the blog post titled "To Share or Not to Share". I am a vendor, specifically for rentals of under bridge access equipment. While I completely understand how time-consuming it would be to field phone calls requesting bidders or plan holders lists, I wanted to just throw our perspective in there. First of all, I have never CALLED for a list. I agree with your blogger that this is asking someone else to do my job. I also get it that some vendors are not this considerate. But as for posting the list of bidders on your web page, I just can't see where this is a negative, despite the concern for price-fixing. Our rates are our rates. They don't change for anyone unless there are extenuating circumstances. Being able to get our rental rates to the estimators bidding the jobs is crucial to getting the best rate possible for all. Anyone who is going to cheat or inflate prices is going to figure out a way to do that, and it is just never a good business plan. We are a small company trying to make it in a big market. If we are going to keep our RATES low, we have to keep our COSTS low. Advertising is expensive, so we use plan holders lists to update our database and contact contractors directly to let them know we exist. If they need us, they contact us and we provide a quote. This is the cheapest, most effective way to do this and it has worked well. None of the issues posted by the blogger have ever been a part of our business strategy. We just want to get the word out to the companies bidding jobs that we are here to provide additional services they need. When estimators are trying to get these bids in, they are scrambling to get all the information, too. It just makes sense that the public works departments would be trying to help get the best information and best quotes possible by posting who is bidding what jobs. Just a thought.