In the ordinary course of public project procurement, bids of the competing companies become subject to public review after the bid opening. The Pennsylvania Commonwealth Court (an intermediate appellate court; see more below) recently held that the proposals of unsuccessful competitors on P3 projects are not subject to the public records laws. Thus, other parties – public agencies, news media or competitors – cannot compel the public authority to make those records available.
Part of this outcome turns on the language of the Pennsylvania Public-Private Transportation Partnership Law (P3 Law), codified at 74 Pa.C.S. § 9111. The P3 Law treats the successful proposal for a P3 project as a public record subject to disclosure. That law is silent, however, on the proposals from the unsuccessful teams, which provided the opening for a request.
After the Walsh/Granite JV won the PA Rapid Bridge Replacement Project, covering 558 structurally deficient bridges, it sought to obtain the proposals from its competitors. PennDOT refused to disclose those items. The JV argued that the P3 Law, by making the successful proposal subject to disclosure and by being silent on the remaining proposals, put the latter into the realm of public records not otherwise exempt from disclosure, citing the definitions and the exemptions under the PA public records law, known as the Right to Know Law.
The appellate court disagreed. It noted first that portions of successful proposals, such as financial records and proprietary information or trade secrets, remained exempt from disclosure. So even the successful proposal was not entirely public. The court also agreed with the position of PennDOT, as to the intent of the P3 Law relative to public disclosure:
Just as the procurement processes under the P3 Law are separate from those used under the Procurement Code, the public access to records contained in Section 9111 of the P3 Law are separate and distinct from the RTKL [Right to Know Law]. Unlike the RTKL, which is open ended — i.e., unless falling within one of the exemptions the information is presumed to be a public record — Section 9111 of the P3 Law is closed-ended in that it specifies what information must be released, and if the record is not specified as public, it is not a public record.
Finding that the exceptions to disclosure under the P3 Law were more expansive that under the Right to Know Law, the appellate court held that the Walsh/Granite JV was not entitled to review the proposals from the others who had competed for the project. So Walsh/Granite JV won the project, but they won’t get the benefit of their competitors’ analysis and assessment.
The case is Commonwealth v. Walsh/Granite JV, 2016 Pa. Commw. LEXIS 462 (Oct. 31, 2016) (LEXIS subscription required). (The Commonwealth Court is described as follows on website dedicated to the state judiciary: “The Commonwealth Court was established in 1968 and is unique to Pennsylvania. It is one of Pennsylvania's two statewide intermediate appellate courts. The Commonwealth Court is primarily responsible for matters involving state and local governments and regulatory agencies. It also acts as a trial court when lawsuits are filed by or against the Commonwealth.”)