Request By:
State Representative Robert R. Damron
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Assistant Attorney General
Opinion of the Attorney General
When the Commonwealth engages in procurement through competitive sealed bidding, the bid documents become public records at the time the bids are opened. KRS 45A.080(4). When the Commonwealth engages in procurement through competitive negotiation, proposals and related documents do not become public records until a contract is awarded. KRS 45A.085(6); OAG 85-68; 200 KAR 5:307 Section 4.
If all sealed bids are rejected, it is possible for a second procurement process to ensue using the competitive negotiation method. KRS 45A.090. This change in procurement methods prompts the following questions:
(1) Can public disclosure of bid documents associated with a competitive sealed bid be delayed until a determination is made as to whether the contracting agency will invoke KRS 45A.090 and move to competitive negotiation?
(2) If a decision is made to move to a competitive negotiation, can the original documents be considered part of the negotiation process and remain closed until a contract is awarded or negotiations are canceled?
The answer to both questions is no.
We begin our analysis by describing the procedures involved in a procurement that uses competitive sealed bids followed by competitive negotiation. Competitive sealed bidding begins with public notice of an invitation for bids. The invitation designates the time and place the bids will be opened. Once opened, the bids are subject to public inspection. If all the bids exceed the funds available, there are no additional funds available, time will not allow another round of sealed bidding, and there is more than one bidder, the procuring agency may award a contract through competitive negotiation. KRS 45A.090(1). The procuring agency then promptly issues a request for proposals based on revised specifications or quantities. KRS 45A.095(2)(b).
An agency may, of course, utilize competitive negotiation from the beginning; it is not necessary to start every procurement process with sealed bids. KRS 45A.085. Competitive sealed bidding and competitive negotiation are two separate procurement processes, each with its rules and procedures. The competitive sealed bidding process may not be transformed midstream into a competitive negotiation process. On the contrary, the competitive sealed bidding process ends when the bids are opened. The procuring agency may then, if it chooses, invoke a new process of competitive negotiation, but that does not constitute a continuation of the competitive sealed bidding process. The processes do not overlap; they are successive, not simultaneous.
We perceive no interpretation of the Kentucky Model Procurement Code that would permit an agency to avoid the public disclosure requirements associated with sealed bidding on the basis that it might later choose to begin a competitive negotiation process. Documents generated during the competitive negotiation process may be held in confidence as the statutes and regulation provide, and documents generated during the competitive sealed bidding process must be disclosed as the statute provides.