Ruling on what it characterized as a “novel” issue, the GRC recently concluded that OPRA requires the disclosure of the bid documents submitted by the unsuccessful bidders for a public contract. Barth v. Rutgers (2017-121).

The request sought all proposals submitted to Rutgers in response to the RFP for Commencement Photography Services. Rutgers disclosed the winning proposal, but withheld the losing bids, arguing that disclosure would put vendors at a competitive disadvantage and also could lead to collusion among prospective vendors.

In its decision, the GRC noted that while it has upheld the confidentiality of bids during the vendor selection process, neither it nor a court has addressed whether OPRA mandates the disclosure of the losing bids after the contract has been awarded. Despite the novelty of the issue, the GRC engaged in little analysis; it simply stated that it saw no danger of competitive disadvantage or bidder collusion in this situation.

It’s unfortunate that the GRC did not explain the basis for this determination. I think there are strong arguments in favor of maintaining the confidentiality under OPRA of unsuccessful bidders’ documents. Making them automatically public creates a real risk of potential collusion and bid-rigging. And notably, losing bid records are exempt under FOIA. Hopefully, a future court or GRC case will address these concerns.