New limitations on access to public records and meetings in government contracting.

• Author: Cea, William J.
• Position: Administrative Law

Florida's Constitution guarantees an open and transparent form of government. Laws such as the Public Records Act and the Sunshine Law provide for the public's right to obtain government records and attend government meetings. "Chapter 119 Public Records Act, was enacted to promote public awareness and knowledge of government actions in order of the Florida Statutes, The Florida to ensure that governmental officials and agencies remain accountable to the people." (1) The purpose of the Sunshine Law is "to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance." (2)

Those laws, however, also have exemptions that make certain meetings and records confidential and off-limits to the public. On June 2, 2011, Florida amended the Public Records Act and the Sunshine Law to expand some of those exemptions and create others (hereinafter, the amendments). (3) There are new limitations on the public's ability to access information related to government contracting which will directly affect protests filed by bidders and proposers dissatisfied with the procurement process. (4)

These laws come at a time when public corruption across the United States, including Florida, has received significant attention. (5) In recent years, numerous public officials have been arrested or cited for improperly exercising their power. Given this political climate, transparency is becoming more important to the public and to political subdivisions across the state. Although the amendments may reduce access to information in the procurement arena, the Florida Legislature determined that they will "reduce public and private harm" and increase the "effective and efficient administration of the competitive solicitation process." (6) This article will examine the new amendments, their effect on the public contracting process, and potential unresolved issues going forward.

Government Contracting and Public Records/Sunshine Laws

Generally, government agencies, such as the state of Florida, counties, and municipalities, must administer a public solicitation process before awarding contracts for goods and services. Projects are usually publicly advertised, and offers are procured through vehicles such as invitations for bid, requests for proposals, requests for quotations, and invitations to negotiate. Under the amendments discussed in this article, these are now known as "competitive solicitations." (7) The competitive solicitations are then reviewed by vendors who may respond by providing the information requested. The government agency, often through a selection or evaluation committee, then compares the responses against the evaluation criteria and ranks the bidders or proposers. Thereafter, the agency will generally issue a notice of intended award.

Once the intended award is posted, bidders or proposers who were not top-ranked may seek to protest the agency's intended decision. The protest may be based on a number of grounds. For example, there may be mistakes or inconsistencies by the awarding agency, missing information, or other issues relating to responsiveness and responsibility in the winning bid or proposal. (8) Generally, the protestor must show that the proposed agency action in selecting the top-ranked vendor was "clearly erroneous, contrary to competition, arbitrary, or capricious." (9)

During the solicitation process (before the ranking), an agency may conduct a formal "opening" of the responses received. This means that the agency will physically open the sealed bids after the submittal deadline. It is typical for agencies to provide notice of the "opening," so that other bidders and the public may attend. The agency may announce what bids or proposals have been received, and perhaps discuss the characteristics of each, such as price. In addition to evaluating the written submissions, agencies may require bidders or proposers to make oral presentations to a selection committee. During the presentations, bidders or proposers may provide materials to the committee and may respond to questions posed by the committee members. These committees may also meet to discuss contract negotiation and strategy.

Before passage of the amendments, meetings of an agency's committee or team charged with conducting oral presentations and negotiating contract terms were required to be open to the public, including to competing bidders or proposers. (10) If these meetings were closed to the public, and an award was made, that award could be void. (11)

Further, before the amendments, F.S. Ch. 119, the Public Records Act, mandated that bids and proposals were open to public inspection and copying at the time of a notice of a decision or intended decision, or within 10 days after the bid or proposal was opened by the procuring agency, whichever was earlier.

The 2011 Amendments

First, Florida's constitution guarantees the public's right to have access to government records and meetings. Article I, [section]24 states:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this [c]onstitution. (12)

All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public ... (13)

The constitution also allows the legislature to exempt certain records and meetings, or expand those exemptions. (14)...