Using Sunshine Laws in Contracting & Bidding Opportunities for the Week of Aug. 17

Doing business with a city, county, or state agency can be challenging. Open meetings and public records laws designed to ensure government transparency can also inadvertently reveal the vendor’s trade secrets and confidential business information. 

An experienced company is at least aware of the freedom of information laws of the jurisdiction where the bid occurs. A successful company, in contrast, creates a plan that both accounts for and takes advantage of such laws.

Public Records, Generally

Iowa’s public records statute, Iowa Code Chapter 22, applies to any “government body”. Counties, cities, townships, school districts, and state agencies are just a few examples of entities which must comply with the state public records law. Any person, anywhere, can make a public records request in Iowa.

All “records…of or belonging to” the government body are open records, unless a specific law or exception requires the record to remain confidential. Generally speaking, contracts with governmental bodies are considered public in Iowa. 

Once a request is made, the government body must decide whether the record must be disclosed or shielded, in whole or in part, due to an applicable law. If the government body decides to release the record, the only option for a party seeking to prevent disclosure is to show both that release of the record “would clearly not be in the public interest” and that the release would cause “substantial” and “irreparable” injury. 

Before the Bid

As the world’s greatest retail salesperson once wrote, it is always important to “do your homework”.  Before a bid process starts, a successful company will take advantage of state transparency laws to understand the nature and needs of the governmental body. Whether it involves insights obtained at an open meeting of a governing board, or a review of materials obtained through a records request, vendors that exercise diligence are in a better position to submit a competitive bid.

During the Procurement Process

By the time that a bid is released, however, any “homework” should have ended. A public officer may not release information about a sealed bid during an ongoing procurement process. Having communications that appear to circumvent RFP rules on permitted communications can lead to vendor disqualification. 

Rather, during the bid, a successful vendor will focus on taking the steps necessary to protect proprietary information and trade secrets. Vendors should do the following:

• Clearly identify and explain all instances where the vendor’s bid response contains trade secret or confidential information, and cite the exception in Iowa Code Chapter 22.7,  Iowa Code Chapter 550, or other law which allows the information to remain confidential.
• Where possible, provide the agency with a “public copy” of the bid with all confidential information removed. This gives the agency a complete bid packet which it can use to consider the proposal, as well as a redacted “public copy” which can be released upon request without creating a risk of disclosure of confidential information.
• Seek to ensure that the bidder is notified of any request to receive bidder information. Iowa appellate courts have allowed parts or all of public agreements to remain confidential when the trade secrets exceptions have been properly supported.

After the Contract Award

Companies that won the public bid must remain mindful of open records laws when entering into an agreement with a government body or corresponding with public officials on an agreement. 

Companies who did not prevail on the bid may want to make a public records request to ascertain the reason for the adverse decision. If the government body’s records relating to the bid award suggest the procedure was flawed, the award was illegal, or the decision in general was otherwise made in an arbitrary or unreasonable manner, the unsuccessful vendor may have grounds to file an appeal seeking to overturn the contract award.

The attorneys at Dickinson Law have trained both vendors and public officials on the sometimes difficult administrative law issues relating to the public contracting process. If you have questions about crafting a competitive bid process, submitting a proposal, challenging a contract awarded to a competing company, negotiating a public contract, or other related matters, contact Dickinson Law today!

Public Bidding Opportunities

The following is a summary of selected public contract bidding opportunities for the week of August 17, 2020. As each procurement authority has the ability to set guidelines relating to its own processes, interested businesses are encouraged to monitor the official procurement website for any modifications or updates. 

If you have an interest in getting legal help relating to any of these opportunities, or if you have other questions about the process of bidding, negotiating, awarding, or challenging the award of a public contract in Iowa, contact Dickinson Law today!
 

• The Iowa Department of Natural Resources is seeking service providers to conduct proscribed burns in Winnebago County and Hancock County. 

• The Correctional Facility in Newton, Iowa seeks to buy Commercial Heavy Duty Stacked Washer Dryer Units.

• The Glenwood Resource Center seeks to buy hundreds of thousands of disposable drinking cups.

• The Department of Administrative Services seeks bids for waste management services on the Capitol Complex in Des Moines, with the option to also serve other governmental entities in the Des Moines metro area.

• Following the derecho, the Department of Transportation seeks contractors to perform roof repairs on state-owned property in Davenport, Cedar Rapids, and Donnellson.

• The University of Iowa Hospitals and Clinics seeks vendors to provide transportation services.

• The City of Iowa City seeks a vendor who can provide consulting services for the Climate Action Community-Based Social Marketing Plan. 

• The City of Dubuque seeks to buy an Enterprise Resource Planning system to help consolidate financials, budgeting, purchasing, human resources, payroll, and utility billing.