24AO:0015: When are RFP documents no longer confidential under Iowa Code?

Advisory Opinion 24AO:0015

DATE: February 20, 2025

SUBJECT: When are RFP documents no longer confidential under Iowa Code?

Charles Isenhart
P.O. Box 3353
Dubuque, IA 52004-3353
and
Crenna Brumwell
City of Dubuque
50 W. 13th St.
Dubuque, IA, 52001

Mr. Isenhart and Ms. Brumwell,

This opinion concerns the time-limited confidentiality of sealed bid proposals. Advisory opinions may be adopted by the board pursuant to Iowa Code section 23.6(3) and Rule 497–1.2(2): “[t]he board may on its own motion issue opinions without receiving a formal request.”  IPIB’s jurisdiction is limited to the application of Iowa Code chapters 21, 22, and 23, and rules in Iowa Administrative Code chapter 497.  Advice in a Board opinion, if followed, constitutes a defense to a subsequent complaint based on the same facts and circumstances.

FACTS:

Both the records requestor and the City requested an advisory opinion regarding the confidentiality of sealed bid responses after receipt, but prior to the completion of review, scoring, and a recommendation report regarding the responses.

The City solicited sealed bids to award farmland leases. The bids are not publicly opened like a construction bid.  They are reviewed and evaluated by a committee. The City stated that in other RFPs they have issued there may sometimes be interviews before the committee recommends selection of a consultant. 

The City stated it has concerns about the integrity of the review process if it is required to disclose the information before the evaluation committee completes its work and makes its recommendation. 

The questions raised by the records requestor include: 

1. May a governmental body withhold a public record in its custody until a “proposal award process is completed” after the proposals being requested have been opened following an application deadline and are being reviewed by staff?
2. May § 72.3 be relied upon by a government body to withhold a record after sealed bids are properly opened?
3. If so, does § 72.3 REQUIRE a government body to withhold the contents of a sealed bid “until an award process is completed” after the bids have been properly opened according to the published bid process?

OPINION:

There is no question that once sealed bids have been reviewed, scored, and action taken, the responses received are no longer confidential records. The issue is at what point does confidentiality cease.

Iowa Code § 22.7(60) allows information that could be kept confidential in a closed session to be confidential until final action is taken.[1] Iowa Code 21.5(1)(a) allows a government body to go into closed session “To review or discuss records which are required or authorized by state or federal law to be kept confidential or to be kept confidential as a condition for that governmental body’s possession or continued receipt of federal funds.”

Iowa Code § 72.3 explicitly requires sealed bids to be kept confidential[2] and provides penalties against any individual who violates the requirements.[3] Iowa Code § 21.5(1)(a) would, thus, allow a government body to go into closed session to consider the bids required under state law to be kept confidential.  Iowa Code § 22.7(60) would also allow for confidentiality of the documents for so long as the confidentiality requirement under Iowa Code § 72.3 applies.

The City’s municipal policies also support the concept that confidentiality exists during the review process. The review of the sealed bids from a request for proposal are delegated to a committee that scores the request for proposal and makes a recommendation to the city manager and the city council. The specific policy states the following, “The committee members review and evaluate the proposals based on the established selection criteria.  Proposals may be initially evaluated individually by each selection committee member on a qualitative basis with members not provided fee information. The Chairperson may mark or eliminate proposals from consideration that are not within a feasible total cost range based on budgeted costs. A meeting will be scheduled by the Chairperson at which fees will be made known and the committee will discuss the results of individual evaluations. If necessary, the committee will request an interview with one or more of the firms to clarify and/or expand on the proposal(s). The committee must meet and reach a consensus on the selection of the firm which, based on ability to perform services and fees, appears to be the best able to serve the City. The Committee Chairperson will then make a recommendation to the City Manager of the firm which best meets the City’s needs. The committee should comment on the pluses and minuses of all qualified proposals to provide the City Manager with adequate information to make a final decision who will forward with recommendation to the City Council, if deemed appropriate. Proposers should not be notified of the results of the committee until a response to the committee’s recommendation is received from the City Manager.” Policy 3.09 Contractual Services Proposal (Request for Proposals) §§ 4-5.

There is no question this delegation of review is allowed under Iowa Code §§ 26.11 and 26.14.[4]

This leads to the crux of the issues raised: Does the review and scoring by a committee, pursuant to delegated authority, erode confidentiality? 

The answer to this question requires an analysis of Iowa Code § 72.3 and the § 22.7(60) (and Iowa Code § 21.5(1)(a)) . The interplay between these provisions and the question of whether absolute confidentiality still applies when a delegated committee is reviewing requests for proposal have not been addressed. For this reason, it is important to review the policy goals of requiring confidentiality in public bids versus the goal of transparency in a government body’s decision-making authority under Iowa Code chapters 21 and 22.

The purpose of Iowa’s competitive bidding requirements is “employed for the protection of the public to secure by competition among bidders, the best results at the lowest price, and to forestall fraud, favoritism and corruption in the making of contracts.” C. Rhyne, The Law of Local Government Operations § 27.6, at 942 (1980); Istari Const., Inc. v. City of Muscatine, 330 N.W.2d 798, 800 (Iowa 1983)  1982 Iowa Op. Att'y Gen. 484 (1982). “Whether stated as part of the purpose of competitive bidding or as a secondary objective, it is clear that fairness to bidders is a requirement in the competitive process. Fairness to bidders is assured by various means including the requiring specifications that include sufficient detail to permit bidders to prepare their bids on a particular proposal. Opening all bids at the same time and the use of ‘sealed bids,’ are other means for assuring fairness to bidders. 1982 Iowa Op. Att'y Gen. 484 (1982). It is important that public bidding is done on a level playing field unencumbered with favoritism or conflicts of interest in the process. See Medco Behavioral Care Corp. v. Dept. of Human Services, 553 N.W.2d 556, 569 (1996).

Iowa Code § 72.3 makes explicit that confidentiality in the public bidding process is necessary to further these policy goals. The legislature has provided that government bodies may delegate the opening of bids as well as review and analysis of the bids to provide a recommendation to the government body at its “next regular meeting” or “at a special meeting for that purpose.” Iowa Code § 26.11. Iowa Code § 26.14 states the “unconditional acceptance and approval of the lowest responsive, responsible quotation shall constitute the award of a contract. The governmental entity shall record the approved quotation in its meeting minutes ….[or] for quotation approved outside a meeting of the governing body of a governmental entity shall be included in the minutes of the next regular or special meeting of the governing body.”

Allowing for a government body to award a contract based not solely on the amount bid, but also on qualitative measures to determine the “lowest responsive, responsible bidder” favors a recognition that additional analysis of the sealed bids is necessary beyond simply comparing the amounts provided. This additional review, potentially “at a special meeting for that purpose” would also need to be protected to ensure the forestalling of “fraud, favoritism, and corruption in the making of contracts.” If the confidential bids were required to be released prior to the qualitative review of the bids, then the process to review the bids could be compromised through outside pressures or favoritism to unfairly impact the results.

The policy goals of Iowa’s Sunshine laws are to ensure “the basis and rationale of governmental decisions, as well as those decisions themselves, are easily accessible to the people.” Iowa Code § 21.1. This is not absolute, however, as Iowa Code § 21.5 allows for closed sessions for specific purposes and Iowa Code § 22.7 allows certain public records to be withheld as confidential.

Treating documents as confidential until a qualitative analysis can be completed and the confidential bidding documents analyzed, scored, and a recommendation made is the only way to meet the policy objectives of the public bidding process. Ensuring the documents retain their confidentiality during this limited time frame does not prevent the public from obtaining records showing the “basis and rationale of governmental decisions.” Following the review, the records and accompanying recommendation are no longer confidential and the governing body of a government body can deliberate and take action on the recommendation at its next meeting in open session.

QUESTIONS POSED:

1. May a governmental body withhold a public record in its custody until a “proposal award process is completed” after the proposals being requested have been opened following an application deadline and are being reviewed by staff? 

Yes, the government body may keep confidential the bid responses until a qualitative analysis is completed and a recommendation is provided. This period of confidentiality allows the designated reviewers the opportunity to review, analyze and score the bids without outside interference ensuring fairness to all bidders and avoiding favoritism or other improper influence.

2. May § 72.3 be relied upon by a government body to withhold a record after sealed bids are properly opened?

Iowa Code § 72.3 requires sealed bids as well as “any part of the contents of a sealed bid, on any proposed contract concerning which a sealed bid is required or permitted by law” to be kept confidential. Iowa law does not require the awarding of a bid solely on the lowest bid received, but instead on the “lowest responsive, responsible bidder” and other measures depending on the contract or service. This contemplates additional measures will need to be considered in addition to the opening of the sealed bid. As all components of the bid are to be considered and all parts of the contents are to retain confidentiality, Iowa Code § 72.3 would require the confidentiality of the information until the bids are properly analyzed. 

3. If so, does § 72.3 REQUIRE a government body to withhold the contents of a sealed bid “until an award process is completed” after the bids have been properly opened according to the published bid process?

The purpose for maintaining confidentiality of sealed bids is to ensure fairness to bidders in the process. Iowa Code § 72.3 makes a clear directive about the importance of confidentiality in the process. Any disclosure of “any part of the contents of a sealed bid, on any proposed contract concerning which a sealed bid is required or permitted by law” may result in a penalty. 

BY DIRECTION AND VOTE OF THE BOARD: 
Joan Corbin 
E.J. Giovannetti 
Barry Lindahl
Catherine Lucas
Luke Martz
Joel McCrea 
Monica McHugh 
Jackie Schmillen 

SUBMITTED BY: 
Erika Eckley, J.D.
Executive Director

ISSUED ON: 
February 20, 2025

Pursuant to Iowa Administrative Rule 497-1.3(3), a person who has received a board opinion may, within 30 days after the issuance of the opinion, request modification or reconsideration of the opinion. A request for modification or reconsideration shall be deemed denied unless the board acts upon the request within 60 days of receipt of the request. The IPIB may take up modification or reconsideration of an advisory opinion on its own motion within 30 days after the issuance of an opinion. 

Pursuant to Iowa Administrative Rule 497-1.3(5), a person who has received a board opinion or advice may petition for a declaratory order pursuant to Iowa Code section 17A.9. The IPIB may refuse to issue a declaratory order to a person who has previously received a board opinion on the same question, unless the requestor demonstrates a significant change in circumstances from those in the board opinion.

[1] “Information in a record that would permit a governmental body subject to chapter 21 to hold a closed session pursuant to section 21.5 in order to avoid public disclosure of that information, until such time as final action is taken on the subject matter of that information. Any portion of such a record not subject to this subsection, or not otherwise confidential, shall be made available to the public. After the governmental body has taken final action on the subject matter pertaining to the information in that record, this subsection shall no longer apply. This subsection shall not apply more than ninety days after a record is known to exist by the governmental body, unless it is not possible for the governmental body to take final action within ninety days. The burden shall be on the governmental body to prove that final action was not possible within the ninety-day period.” Iowa Code § 22.7(60).

[2] “No public officer or deputy thereof, if any, shall directly or indirectly or in any manner whatsoever, at any other time or in any other manner than as provided by law, open any sealed bid or convey or divulge to any person any part of the contents of a sealed bid, on any proposed contract concerning which a sealed bid is required or permitted by law.” Iowa Code § 72.3.

[3] “A violation of the provisions of section 72.3 shall, in addition to criminal liability, render the violator liable, personally and on the violator's bond, if any, to liquidated damages in the sum of one thousand dollars for each violation, to inure to and be collected by the state, county, city, school corporation, or other municipal corporation of which the violator is an officer or deputy.” Iowa Code § 72.4.

[4] “When bids are required for any public improvement, the governmental entity may delegate, by motion, resolution, or policy to the city manager, clerk, engineer, or other public officer, as applicable, the duty of receiving and opening bids and announcing the results. The officer shall report the results of the bidding with the officer's recommendations to the next regular meeting of the governmental entity's governing body or at a special meeting called for that purpose.” “A governmental entity may delegate the authority to award a contract, to execute a contract, to authorize work to proceed under a contract, or to approve the contractor’s performance and payment bond to an officer or employee of the governmental entity. A quotation approved outside a meeting of the governing body of a governmental entity shall be included in the minutes of the next regular or special meeting of the governing body.”