If bidding on public contracts in Kentucky, the Kentucky Open Records Act can serve a number of valuable purposes.
Public procurements are subject to the Kentucky Open Records Act because of their public nature. But, when the records become “open” is a matter of timing.
It would defeat the competitive purpose of public bidding if bids were subject to being produced prior to the agency making a decision. Once the agency makes its decision, though, then that competitive information becomes subject to the open records act. And, filing an open records request can serve a number of purposes:
- Tolling the time for filing a bid protest
In Kentucky, bid protests with the state are presumed untimely if filed after the 14th day the award was posted to the state’s e-procurement website. Often, bidders will not know whether they have a reason to file a bid protest in that short two-week window. Filing an open records request, though, can extend the time for filing a bid protest.
But, the disappointed bidder shouldn’t sit on filing the request.
The party considering a protest must diligently pursue the basis for that protest. Therefore, the open records request should be filed within the 14-days following an award, and the sooner, the better. If the request is timely filed, the 14-days for filing a protest can be extended to when the records ultimately are produced, provided the bidder’s reason for protest is based on the information produced in response to the open records request.
- Understanding the agency’s evaluation process
When those records are produced, bidders get an inside look into the agency’s evaluation process.
Receiving the score sheets and seeing the agency’s comments can help bidders understand what the agency placed value on, was impressed by, and what the agency did not like. All of this can aid bidders in submitting a better bid for the next procurement.
- Gaining competitive information
Another valuable source of information is the bids of the other companies.
As much as each bidder would like to think they submit the best bids, there’s always room for improvement. Seeing how competitors format their bids, highlight certain areas, and what attachments are included can help companies improve their own bids. Plus, the bidder can learn about its competitors. How others structure their bid pricing, what experience they have, and what strengths they choose to highlight.
Lesson
An open records request can be very helpful in a public procurement. For bidders who were unsuccessful, it can provide additional time for filing a bid protest, provided the request is timely filed. And, for all bidders, the records produced can give insight into the agency’s evaluation process and information on the competition.
When bidding on a state contract in Kentucky, consider filing an open records request. A company may discover grounds for a protest and ultimately be awarded the contract, and all bidders will gain information to improve their future bids.
The Kentucky Finance Cabinet’s Office of Legal Counsel has a webpage on open records requests for procurements with a form for bidders to use. The webpage can be accessed at this link.