Posted on Jun 29, 2017 in Formal Opinions

Opinion Ltr. No. F17-05
June 29, 2017
Statement of Capabilities and
Correspondence Related to Bids

Requester, an unsuccessful bidder, asked whether the Department of Transportation (DOT), prior to the execution of a contract, properly denied Requester’s request for copies of any Statements of Capabilities (SOC) submitted by persons submitting bids (Bidders) on a project for the Furnishing Operation and Maintenance Service for the H-1 Contra-Flow Zipper Lane, (Project) and any correspondence between DOT and Lindsay Transportation Solutions, the company who manufactured the Zipper Machine and certified operators, regarding the Project (Project Correspondence).

DOT was required to disclose the SOC and Project Correspondence once DOT determined that it would be unnecessary for DOT to seek re-bids.  While the specific confidentiality or disclosure requirements of chapter 103-D, HRS, the Hawaii Public Procurement Code (Procurement Code), should be followed where applicable, the confidentiality provision in section 103D‑310, HRS, is applicable only to information submitted under oath on a form of questionnaire prepared by the Procurement Policy Board, which the SOC and Project Correspondence were not.  In the absence of a specific directive in the Procurement Code, OIP looked to the UIPA’s frustration exception, section 92F-13(3), HRS, to determine whether procurement information may be withheld.

As the information in the records here would not raise the cost of government procurements or give a manifestly unfair advantage to Requester, and it was not detailed financial or commercial information that would likely cause substantial competitive harm, OIP found that it did not qualify to be withheld under the UIPA’s frustration exception.  See HRS § 92F-13(3).  DOT’s promise of confidentiality for the information, by itself, did not override the UIPA’s requirements and provide a basis for denial of access.  Thus, both the SOC and the Project Correspondence should have been disclosed, except for the personal contact information listed in the SOC, which could have been redacted based on the UIPA’s privacy exception.  HRS § 92F-13(1).

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