William J. Desmond, General Counse! 602 Main Street, Suite 1100 Cincinnati, OH 45202-2548 Phone: (613) 632-7604 bdesmond@go-metro.com METRO April 13, 2015 VIA EMAIL [jwilliams@enquirer.com] Mr. Jason Williams The Cincinnati Enquirer 312 Elm Street Cincinnati, OH 45202 Re: — March 30 Public Records Request Dear Jason, | write in response to your March 30 public records request secking “copies of all responses received for the streetcar operations/maintenance contract request for proposals (REP) [to include] the costs each company/entity has proposed for performing the work.” SORTA must respectfully deny your request at this time as it is prohibited from making these sealed proposals publicly available until after the contract has been awarded. SORTA’s explanation and legal basis for this denial is set forth below. Ohio Law On January 6, 2015, SORTA invited competitive sealed proposals via a request for proposals (*RFP”), Contracting authorities use the competitive bidding process “to provide a fair and honest process for the awarding of public contracts.” Rein Consir. Co. v. Trumbull County Bd. of Comm'rs, 138 Ohio App.3d 622, 630 (2000). ‘To prevent abuse and maintain the honesty of the competitive process, both Ohio statutes and case law recognize that sealed proposals do not become public records until after a contract has been awarded. Where the Ohio Revised Code specifically addresses sealed proposals, it provides that the proposals are to be opened “in a manner that prevents the disclosure of contents of competing offers to competing offerors.” R.C. 307.862(A)(5). It further provides that: In order to ensure fair and impartial evaluation, proposals and any documents or other records related to a subsequent negotiation for a final contract that would otherwise be available for public inspection and copying under section 149.43 of the Revised Code [the Public Records Act] shall not be available until after the award of the contract. Page 1 of 4R.C. 307.862(C) (emphasis added). Ohio Attomey General Opinion 2012-036 (confirming that competitive sealed proposals do not become “a public record that must be made available for public inspection and copying under R.C. 149.43 [until] after the contraet is awarded."). This same information is set forth in the Ohio Attomey General’s 2015 Ohio Sunshine Laws, An Open Government Resource Manual, at p. 21 (Ch. 11.B.2.(0)).! Analogously, Ohio Revised Code 125.07 provides that, when soliciting requests for competitive sealed proposals, the state director of administrative services is only to open the proposals in a manner “so as to avoid disclosure of contents to competing offerors.” R.C. 125.071(C). This is “to ensure fair and impartial evaluation, proposals and related documents submitted in response to a request for proposals are not available for public inspection and copying under Section 149.43 of the Revised Code until after the award of the contract.” Id. Finally, SORTA has committed itself to the sealed proposal process. It is, therefore, bound under Ohio law to follow that process—and thus confidentially maintain the proposals— until the contract is awarded. See Danis Clarko Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 603 (1995) (holding that a “public authority... may by its actions commit itself to follow rules it has itself established, including rules governing the evaluation of proposals”) ‘As you can no doubt imagine, disclosing the sealed proposals before a contract has been awarded would disclose the terms of each proposal to all potential contractors, would create the potential for interference in the evaluation process, and would utterly defeat SORTA’s ability to negotiate with potential contractors to obtain the best possible price for the project. Federal Requirements and Federal Transit Administration Guidance As you are aware, the streetcar project is being funded by a combination of local municipal capital funds and Federal funds, for which SORTA is the Federal Transit Administration FTA”) grantee. Thus, SORTA must comply with the FTA’s federal procurement policies. The United States Code prohibits “knowingly obtain[ing] contractor bid or proposal information before the award of a Federal agency procurement contract to which the information relates. 41 USC § 2102(b) (cmphasis added). And, one with access to contractor bid or proposal information, such as SORTA in the instant situation, is “not [to] knowingly disclose contractor bid or proposal information . . . before the award of a Federal agency procurement contract to which the information relates.” 41 USC § 2102(a)(1). Likewise, 48 CFR § 3.104-4, the Federal Acquisition Regulation (Disclosure, protection, and marking of contractor bid or proposal information and source selection information), provides that no person or entity “may disclose contractor bid or proposal information . . . to any person other than a person authorized . .. by the contracting officer to receive such information. FAR 3.104-4(a). See also 48 CFR § 15.207(b) (Handling proposals and information) (“Proposals shall be safeguarded from unauthorized disclosure through the source selection process”). ' See also R.C. 149.43(A)(1){0), which provides that “public record” does not mean records “the release of which is prohibited by state or federal law. Page 2 of 4If individuals are unsure about whether information is covered by regulation, they are to consult with Federal agency officials. 48 CFR § 3.104-4(c). That is exactly what SORTA did in response to the City’s request for information related to the sealed proposals, The FTA responded to SORTA’s request for guidance related to the City's request on March 23, 2015. Notably, its response included the following © Per SORTA’s policies, the RFP evaluation procedure provides the process for SORTA to receive, evaluate, and ultimately select, the contractor; © The City is seeking to require SORTA to disclose additional information which may violate the confidentiality protection provided to negotiated procurements and possibly tainting the contract award; ¢ SORTA, as the grantee, is ultimately responsible for ensuring the RFP and the award of the contract meets all the federal statutory requirements; © All Federal procurements must provide for full and open competition; © SORTA is required to adhere to its Procurement Policies and Procedures on all third party contracts and protect the integrity of the bidding|/ proposal] process; © [CJhange in the procurement and evaluation process, while a solicitation is in Progress, [is] inconsistent with SORTA’s established Procurement Policies and Procedures; © FTA maintains the importance of maintaining the integrity of the procurement process; © Ifconfidentiality is not maintained during the process . .. that presents risks to the process and increase[s] potential exposure to protests and legal action; and © The Council’s proposed changes to the procurement process could be perceived as giving preferential treatment to one contractor over another, and © If [SORTA] enter[s} into a contract that was not obtained through a fair and open process, [SORTA] may risk losing the Federal funds awarded to pay for that portion of the contract. While the PTAs response was in regard to a request from the City, it is equally applicable to a public records request seeking the same information. Conclusion In summary, SORTA is prohibited by law from disclosing the contents of the sealed proposals until after the contract is awarded, And, itis only after the contract is awarded that the proposals become public records under Ohio Revised Code 149.43. Federal requirements likewise prohibit release of the requested records at this time. If you wish to renew your request once the contract is awarded, SORTA will make the records available after the proposers are given the opportunity to redact any proprietary information, Page 3 0f 4Thank you for your cooperation and consideration while your request was reviewed with legal counsel, Very truly yours, William J, Desmond Ce: Sallie Hilvers Page 4 of 4