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FOIL Appeal Determination for 05-04-0A (Joseph F. Castiglione)

August 11, 2005

New York State Department of Environmental Conservation
Assistant Commissioner
Office of Hearings and Mediation Services, 14th Floor
625 Broadway, Albany, New York 12233-1550
Phone: (518) 402-8537 FAX: (518) 402-9037
Website: www.dec.state.ny.us

August 11, 2005

BY TELECOPY & FIRST CLASS MAIL

Joseph F. Castiglione, Esq.
Young, Sommer . . . LLC
Executive Woods
5 Palisades Drive
Albany, NY 12205

Re: Freedom of Information Law ("FOIL")
Appeal No. 05-04-0A, FOIL request No. 05-581

Dear Mr. Castiglione:

This letter addresses your May 18, 2005 appeal pursuant to the Freedom of Information Law ("FOIL", codified in the Public Officers Law ("POL") at §§ 86-90) of the denial by the Department of Environmental Conservation ("Department" or "DEC") of your firm's request for certain information related to two Requests for Proposals ("RFPs"). The appeal was submitted on behalf of Shaw Environmental & Infrastructure Engineering of New York, PC ("Shaw Environmental").

By letter dated March 31, 2005, your firm had requested "[a]ll scoring summary sheets employed by DEC's evaluation panel(s) in their technical review of the proposals submitted in response to the RFPs" and "[a]ll proposals submitted in response to these RFPs, by any party." Your FOIL request was denied, by letter dated April 7, 2005, on the ground that disclosure would impair present or imminent contract awards (see POL § 87(2)(c)).

Because of a delay in the postal service's handling of the denial letter, your firm requested an extension of time to appeal. The Office of Hearings and Mediation Services ("OHMS") granted you an extension until May 26, 2005. Your appeal was received by OHMS on May 18, 2005.

The two RFPs at issue involve Standby Consulting Engineering Services for Investigation and Design (contract # D004433-D004439)(the "I/D Contract") and Standby Consulting Engineering Services for Design and Construction (contract # D004440-D004446)(the "D/C Contract"). The deadline for submission of the proposals to the RFP was December 14, 2004. Seven (7) contracts are to be awarded pursuant to each RFP, for a total of fourteen (14) contracts. Thirty-nine (39) proposals were received, twenty-two (22) for the I/D Contract and seventeen (17) for the D/C Contract.

All responses to the RFPs were scored and ranked. Shaw Environmental was informed of its ranking in two letters, both dated February 16, 2005. Shaw was ranked #19 on the I/D contract ranking, and #9 on the D/C contract ranking. By letter dated April 5, 2005, you were advised that the procurement process would be completed in the fall of 2005.

In your appeal letter you raise two grounds in support of reversing the denial of access to the specified records. First, you claim that no supporting facts were offered in support of the denial and, therefore, your appeal must be granted. We disagree. As noted, the April 5, 2005 letter advised that the procurement process would not be completed until fall 2005, and this clearly provided a basis for the determination to deny access to the requested records. Accordingly, we find that an adequate explanation of the rationale for the denial of your FOIL request had been presented immediately prior to the April 7, 2005 letter denying your FOIL request.

Your second ground for appeal states that the records requested should be released because the scoring and ranking of the proposals competing for the fourteen (14) contracts to be awarded are complete, and that this represents a final action of the Department because no additional proposals or modifications to existing proposals are allowed. Notwithstanding the foregoing, not all the contracts have been negotiated or awarded and material terms have not been finalized with respect to those contracts.

We have reviewed the authorities you cite for disclosure during the contract awarding process. In both decisions that you reference, Matter of CAT*ASI, Inc. v. New York State Insurance Dept., 195 Misc.2d 456 (NY County Sup Ct 2002) and Contracting Plumbers Cooperative Restoration Corp. v. Ameruso, 105 Misc.2d 951 (NY County Sup Ct 1980), the successful bidder had been identified and the contract had been awarded. Although the rankings have been established, Department staff is still in the process of negotiating the contracts to be awarded1 pursuant to the two RFPs. Moreover, it is the Department's position that these contracts are not awarded until all approvals, including those required from the New York State Department of Law and the Office of the Comptroller, are issued.

However, in considering your appeal, we have reviewed the current status of the RFP process and whether release of the information would "impair" present or imminent contract awards such that the FOIL exception in POL § 87(2)(c) would continue to apply. With respect to the RFP process, whether disclosure would "impair" the contracting process is a question of fact that must be evaluated based on the specific circumstances of each case (see, e.g., Advisory Opinion, Committee on Open Government, Department of State, October 29, 1996 (Michael Caputo)).

In the RFP process before me, the scoring and ranking of the companies (based on their proposals) is final, and the Department has used that list to identify the firms with whom to negotiate standby contracts. If, for whatever reason, one of the top-ranked companies withdraws from consideration, the Department would use the existing ranking to identify the company that would be added to the list of those with which negotiations would be conducted.

I also note that the proposals that were submitted by December 14, 2004 did not include cost-related information, so that the release of the proposals would not jeopardize the Department's ability to negotiate cost or payment structures for the benefit of the public fisc2 (see Advisory Opinion, Committee on Open Government, Department of State, January 5, 1999 (Marty Glennon)(reading the word "impair" in POL § 87(2)(c) as "diminishing the ability of the government to reach an optimal agreement on behalf of the taxpayers")).

Accordingly, based upon my review, I determine that the FOIL exception in POL § 87(2)(c) would not apply to the requested information at this stage, although its application was appropriate at earlier stages in the RFP process.

Notwithstanding the foregoing, two other FOIL exceptions (POL § 87(2)(d) and POL § 87(2)(g)) continue to apply to the records requested and, as discussed in the following paragraphs, justify withholding certain records in whole or in part.

Your first request was for the scoring sheets, and these will be released with the numeric scores.3 However, the individual comments and notations of the Department reviewers that were entered on the summary sheets shall be redacted. POL § 87(2)(g), which provides for the withholding of intra-agency materials which are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy or determinations or external audits, warrants the withholding of such comments and notations. See Matter of Professional Standards Review Council of America Inc. v. New York State Department of Health, 193 AD2d 937, 940 (3rd Dept 1993) (subjective comments, opinions and recommendations written on rating sheets by members of rating committee may be withheld); Matter of Town of Pleasant Valley v. New York State Board of Real Property Services, 253 AD2d 8, 17 (2d Dept 1999)(handwritten notes or recommendations by assessors jotted down on documents may be withheld). The names of the reviewers have also been redacted from the scoring sheets (see id.).

With respect to your second request for the responses to the RFPs, the responses shall be released except for those submitted by Malcolm Pirnie, Inc., MACTEC (formerly Harding Lawson Associates), and FPM Engineering Group, PC.4 These three (3) companies have asserted that their responses are to be considered trade secrets and/or confidential business information (see POL § 87(2)(d), which provides that records which are trade secrets "or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise" may be withheld).

We are still awaiting clarification from LFR and Metcalf & Eddy as to whether claims of trade secret or confidential business information are being raised with respect to their responses. Until such clarification is received, the responses from those two companies shall also be withheld.5

In accordance with the regulations governing FOIL, each company that has asserted a trade secret or confidential business information claim has been contacted to provide further support for their position. Upon receipt of that information, the Department will determine whether the trade secret/confidential business information exception shall be continued or modified with respect to those responses.

As to the records that the Department has determined to release at this time, please contact Meta R. Murray, Esq. at (518) 402-9188 to schedule an appointment to review those materials. If you would like copies made of any of these materials, the cost will be $0.25 per photocopied page.

This letter constitutes the final determination of the Department of Environmental Conservation on your FOIL appeal, with the exception of the proposals for which trade secret/confidential business information status has been asserted or for which clarification has not yet been received. You have the right to seek judicial review of this determination pursuant to Article 78 of the New York Civil Practice Law and Rules and POL § 89(4)(b).

In any future contact with the Office of Hearings on this matter, please reference FOIL appeal no. 05-04-0A.

Sincerely yours,


/s/
Louis A. Alexander
Assistant Commissioner

cc: Robert Freeman, Executive Director, Committee on Open Government
Ruth Earl, Records Access Officer
Meta R. Murray, Esq., Associate Attorney

1In Matter of CAT*ASI, Inc., the contract had been conditionally awarded subject to the approval of the Office of the Comptroller.

2Cost information was not submitted as part of the proposals (see page 7 of the I/D Contract RFP and page 7 of the D/C Contract RFP which state "[c]ost information should not be submitted with the [p]roposal"). If cost information were subject to this appeal, it would be withheld pursuant to POL § 87(2)(c)(impairing present or imminent contract awards) and POL § 87(2)(d)(trade secrets or confidential business information).

3The scorings sheets are entitled "Evaluation Score Sheet for 2004 RFP (Investigation/Design)" and "Evaluation Score Sheet for Design/Construction."

4Malcolm Pirnie, Inc. and MACTEC submitted a response to each RFP, while FPM Engineering Group, PC submitted a response only to the I/D Contract RFP.

5MACTEC submitted a response to both RFPs, while LFR submitted a response only to the I/D Contract RFP.

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