Facts and Procedural History:

On January 14, 2013, the Information Policy Analysis Division (IPAD) received a letter, dated same, from Patrick P. Born, Regional Administrator and responsible authority for the Metropolitan Council. In his letter, Mr. Born asked the Commissioner of Administration to issue an advisory opinion regarding the classification of certain data the Council maintains. Jay R. Lindgren and Leita Walker, attorneys, submitted comments on behalf of URS and Star Tribune Media Company, LLC, respectively.

Note: Data at issue here were also the subject of Advisory Opinion 13-001.

A summary of the facts as Mr. Born provided them follows. In his opinion request, Mr. Born wrote:

On October 21, 2011, the Council issued a Request for Proposals ( RFP ) for engineering services for the [Southwest Light Rail Transit] SWLRT line. Under that solicitation the Council would have awarded a consultant contract ( Contract No. 11P173 ) encompassing five phases of engineering and support services....

URS was one of two firms that submitted proposals. Mr. Born described ensuing events, and stated that the Council voted in July, 2012, to cancel the procurement for Contract 11P173, and inter alia, "[d]evelop and issue new Requests for Proposals for Engineering Services Consultant(s) for developing engineering documents to 30% completion of project engineering." He wrote:

On August 17, 2012, the Council issued two new RFPs for preliminary engineering consultant services for the SWLRT Project. .... The Council has not yet issued a "new RFP for engineering services to complete final design work and provide design support services during construction," and therefore has not resolicited new proposals for those phases of the engineering work.

The last three phases of engineering services that are not covered by Contract Nos. 12P176 and 12P177 will be the subject of one or more RFPs which will be issued as initial design work nears completion.

.... The two contracts cover only the first two phases (30% preliminary engineering) of the five phases that were the subject of the RFP for Contract No. 11 P173. Both preliminary engineering services contracts were signed on or about December 17, 2012. [URS submitted a proposal in response to the resolicitations but was not awarded a contract for those services.]

Mr. Born stated that the evaluation process for Contract No. 11 P173 was not completed, because the Council cancelled that procurement and has not yet re-solicited proposals for the last three phases of that RFP. Furthermore, because the Council did not re-solicit those proposals within one year, "the Council believes the proposals (except for any trade [secret] information) and the "remaining data" associated with that solicitation (including data created or maintained by the Council as part of its proposal evaluation processes) now are public."

Issue:

Based on Mr. Born's opinion request, the Commissioner agreed to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)

Minnesota Statutes, section 13.591, subdivision 3(b), provides:

Data submitted by a business to a government entity in response to a request for proposal are private or nonpublic until the responses are opened. Once the responses are opened, the name of the responder is read and becomes public. All other data in a responder's response to a request for proposal are private or nonpublic data until completion of the evaluation process. For purposes of this section, "completion of the evaluation process" means that the government entity has completed negotiating the contract with the selected vendor. After a government entity has completed the evaluation process, all remaining data submitted by all responders are public with the exception of trade secret data as defined and classified in section 13.37. ....

If all responses to a request for proposal are rejected prior to completion of the evaluation process, all data, other than that made public at the response opening, remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process or a determination is made to abandon the purchase. If the rejection occurs after the completion of the evaluation process, the data remain public. If a resolicitation of proposals does not occur within one year of the proposal opening date, the remaining data become public.

According to section 13.591, subdivision 4(a), "[d]ata created or maintained by a government entity as part of the selection or evaluation process referred to in this section are protected nonpublic data until completion of the selection process or completion of the evaluation process at which time the data are public with the exception of trade secret data as defined and classified in section 13.37."

In his comments to the Commissioner, Mr. Lindgren wrote:

The Met Council decided to break the procurement for the five phases of engineering for the Southwest Light Rail into multiple contracts. However, it did not abandon the purchase and, as the Commissioner noted in Advisory Opinion 13-001, "the project that is the subject of the RFPs is unchanged." ....

URS's proposal submitted a single proposal for all five phases of the work. It will not be public data until the Met Council has completed the evaluation process and awarded contracts for all five phases of the work that was originally to be included in Contract 11P173.....

.... The classification of the evaluation data is governed by [section 13.591], [s]ubdivision 4(a), which requires that the data be kept as protected nonpublic data until the evaluation process is complete. It can only be released, therefore, once the Met Council has completed the procurement process for the entire purchase by entering into contracts for all five phases of the engineering work.

In her comments to the Commissioner, Ms. Walker wrote in opposition to URS's position:

It simply is not consistent with legislative intent, the policy of government transparency underlying [Chapter 13], or the plain language of Minn. Stat. 13.591, subd. 3(b), to hold that a government entity could request proposals on a large, multi-million dollar contract, receive proposals, cancel the contract, and then, over the course of months or even years, carve out smaller RFPs that cover bits and pieces of the canceled contract, all the while keeping the original, rejected bids away from public scrutiny.

URS's argument that the data at issue are nonpublic because the Council has not abandoned the SLRT [sic] project is overly simplistic. Proposals for the last three phases of work were not resolicited within the one-year time frame, and thus URS's original proposal on this work is public.

It should not matter that the Council may intend to eventually resolicit proposals for these three phases: The statute does not contain an "intent" exception [Emphasis provided.]

To summarize, in 2011 the Council issued an RFP for contract No. 11P173 and received two responses, one of them from URS. Subsequently, the Council canceled procurement of that contract, and within one year, re-solicited the RFP, as Contract Nos. 12P176 and 12P177. According to Mr. Born, the Council has completed the evaluation process (i.e., it has signed the contracts) for those two RFPs.

Mr. Born, Mr. Lindgren and Ms. Walker all discussed the fact that the subsequent two RFPs do not cover the entire scope of the original RFP, and expressed differing views on whether that is significant in terms of the classification of the data at issue. Mr. Born believes the data are public because although the Council did not complete the evaluation process for three of five phases of the SWLRT, it did not re-solicit proposals within one year of the proposal opening date. Mr. Lindgren argues that the data are classified as not public because the Council has not completed the evaluation process for the entire SWLRT project. Ms. Walker argued that the Commissioner erred in his conclusions in Advisory Opinion 13-001, but also asserted the data are public because the Council failed to re-solicit within the one-year time frame.

The Commissioner acknowledges each analysis, but respectfully disagrees with all of them. Under section 13.591, subdivision 3(b), any differences between an original RFP and re-solicited RFPs do not affect the classification of the data. As the Commissioner stated in 13-001, "[g]iven the process set forth in section 13.591, it is clear that the Legislature contemplated that aspects of public projects could change and necessitate re-solicitation of RFPs, and that is the case here."

Under the plain language of the statute, in the case of a re-solicitation, "all data [with exceptions] remain private or nonpublic until a resolicitation of the requests for proposal results in completion of the evaluation process " When the evaluation process is complete, "all remaining data [except trade secret] submitted by all responders are public." (See section 13.591, subdivision 3(b); emphasis added.)

Here, the RFP for Contract No. 11P173 was re-solicited as two RFPs. Accordingly, the evaluation process for the two re-solicited RFPs is complete, and therefore, all data (except trade secret) submitted to the Council in response to the RFP for Contract No. 11P173 are now public under section 13.591, subdivision 3(b), even though the Council intends to issue more RFPs in connection with the SWLRT.

For the same reasons, "evaluative data," i.e., data the Council created or maintains as part of the evaluation process for Contract No. 11P173, are also public, pursuant to section 13.591, subdivision 4(a), except trade secret data.

Opinion:

Based on the facts and information provided, the Commissioner's opinion on the issue Mr. Born raised is as follows:

Signed:

Spencer Cronk
Commissioner

Dated: March 5, 2013.