Could Kentucky keep opened bid documents secret after rejecting the bids and switching to negotiations?

Plain-English summary

Kentucky's sealed-bid process made bid documents public when the bids were opened. In 1998, a legislator asked whether an agency could delay that disclosure if it rejected every bid and then used competitive negotiation to award the contract. The Attorney General answered no.

The opinion treated sealed bidding and competitive negotiation as successive, separate procurement processes. Opening the sealed bids triggered public inspection of those documents. A later decision to negotiate could not turn the opened bids into confidential negotiation records. Documents first generated in the negotiation process followed that process's separate disclosure timing.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: When did sealed bids become public records under the law discussed in this opinion? A: The opinion said they became public when opened under KRS 45A.080(4).

Q: Could the state withhold those bids while deciding whether to start negotiations? A: No. The Attorney General said a possible later negotiation did not postpone the sealed-bid disclosure rule.

Q: Were proposals submitted during the later negotiation public immediately too? A: The opinion distinguished those proposals from the earlier bids. It said negotiation documents followed their own disclosure rule and did not become public until a contract was awarded.

Background and statutory framework

KRS 45A.090 allowed an agency, in specified circumstances, to reject all sealed bids and start competitive negotiation. The opinion said that step began a new process. KRS 45A.080(4)'s public-inspection rule had already attached to opened sealed bids, while KRS 45A.085(6) governed the later negotiation documents.

Citations and references

Statutes: KRS 45A.080(4); KRS 45A.085(6); KRS 45A.090.

Source

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_cd2e79d3-c039-45bb-8ce0-62f8aa326c68/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_cd2e79d3-c039-45bb-8ce0-62f8aa326c68

Original opinion text

OAG 98-11
July 27, 1998
Subject:

Public disclosure of bid documents

Requested by:

State Representative Robert R. Damron

Written by:

Ross T. Carter

Syllabus:

Documents tendered as part of competitive sealed
bidding are public records even if the bids are rejected and the competitive negotiation procurement process is subsequently employed

Statutes construed:
OAGs cited:

KRS 45A.080; KRS 45A.085; KRS 45A.090

OAG 85-68

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:

OAG 98-11
Page 2

(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.

OAG 98-11
Page 3

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. Albert B. Chandler III Attorney General

Ross T. Carter
Assistant Attorney General