Indiana's Public Access Counselor agrees with me that the City of Indianapolis' claim that it can deny public disclosure of the Request for Proposals ("RFP") that it issued to three groups of bidder vying for the right to construct a more than half billion dollar criminal justice center for the City through a public-private partnership agreement until the bidding process is completed and a winning proposal selected is specious. The IBJ's Kathleen McLaughlin made a public request for the RFP on July 22, 2014 to the City's Office of Corporation Counsel. Although the OCC acknowledged receipt of her request, it failed to respond to it. McLaughlin filed a complaint with the Public Access Counselor on August 19, 2014, to which she received an informal response on September 24.
Writing on behalf of the OCC, the City's public access counselor, Samantha DeWester, told Luke Britt, the state's Public Access Counselor, that it had not denied McLaughlin's request. "[H]owever, they will be doing so with a formal denial including a citation to why they feel it can be withheld," Britt added. "Based on their response, they will be asserting a discretionary privilege due to the RFP still being in negotiation, and a confidentiality provision as the RFP contains trade secrets."
Britt agreed that response-related documents produced by the competing vendors in response to the RFP could be withheld pursuant to state law until the negotiations are concluded. "RFPs are generally non-negotiated instruments," he added. "I am not necessarily compelled by the argument an RFP itself is under negotiation . . . After the bidding process is over, terms and conditions may change, but the public request for proposal would not be changed by negotiation of a final contract."
Britt also could not understand OCC's argument that the RFP could be shielded from disclosure because it contained "trade secrets" that are protected from disclosure under the state's access to public records law. This argument is premised on the OCC's contention that it contains architect's blueprints, plans and drawings. "If an RFP sent out into the marketplace does indeed contain trade secrets, it stands to reason the secret is out once it goes out to potential contractors." Britt adds that "secrecy is inherently compromised in an RFP." If this RFP truly contains trade secrets, it would be a first in the United States. How an attorney could even make that argument with a straight face is beyond me.
DeWester's response letter to Britt repeated what was told to a City-County Council committee earlier this month that no final RFP document existed as it was still being negotiated even as the City has been in negotiations with the three bidding groups since last April. "[T]he RFP is still under negotiation," DeWester wrote. "Currently, the RFP has been amended and will continue to be amended while negotiations are still in progress." That of course is nothing but a sham argument intended to completely circumvent state law requirement that an RFP be made available publicly once it is issued by a governmental body. Sure, an RFP can be amended after initial discussions with potential offerors, which can easily be accomplished by making available to the public questions posed by offerors, the City's response thereto and any revisions to the initial RFP document made as result of those discussions, while still allowing the actual proposals of the offerors to be withheld from public disclosure until the negotiation process in concluded. Only by following those steps can the public and the competing vendors know that all were accorded fair and equal treatment during the bidding process.
Britt's letter at this point is not a formal opinion since the City of Indianapolis has not yet supplied a formal legal response to McLaughlin's request. By the time he gets around to it, the City will have already concluded its discussions and selected the winning bidder, which it plans to have done in November. Here's a word to two of the bidding groups. I don't know how much time and money you have committed to this proposal, but you should know that the City already knew in advance to whom this project was going to be awarded. This is a sham process being conducted in the dark to give the other two bidding groups and the public the impression a competitive bidding process is being conducted when nothing could be further from the truth. You are dealing with one of the most corrupt cities in all of America. This project is being undertaken to line the pockets of a handful of political insiders regardless of how much damage is inflicted on the public or how great the costs are to the taxpayers of this city.
As I previously pointed out, the Hoosier State Press Association with the strong backing of the Indianapolis Star was responsible for the law that is currently on the books requiring public disclosure of RFPs undertaken for a build, operate and maintain project through a public-private partnership to prevent important public projects from being undertaken in secrecy. The Indianapolis Star under the ownership of Gannett could care less about transparency in this process. It has already bought into the idea that a public-private partnership is the preferred route despite the fact that it will cost taxpayers much more in the long run than a project built, operated and maintained by the City-County government. If the Ballard administration decides it can thumb its nose at provisions of the law intended to provide transparency to the process, the Star could care less, along with most of the other media in this town.
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