HomeMy WebLinkAbout2007-01-31_Response_to_RFP_that_can_be_disclosed Harry Kim °'!'+ Lincoln S.T.Ashida
Mayor Corporation Counsel
Gerald Takase
�, M�:•:�; Assistant Corporation
�'+'�'o:'N•�'� Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street,Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622
Privileged and Confidential Communication
Attorney-Client Communication
Not a Public Record
January 31, 2007
Mr. Milton D. Pavao, Manager
Department of Water Supply
345 Kekuanao`a Street, Suite 20
Hilo, Hawaii 96720
Re: Information Regarding Offeror's Response to RFPs that
Can Be Disclosed to the Board for Award Purposes
Our File No. Wrk 07-14077
Dear Milton:
This letter is in response to a request for a legal opinion regarding what information
regarding the responses to a Request for Proposals can be disclosed to the Water Board at a
Water Board meeting.
The Water Board is the body that"awards" contracts upon the Department of Water
Supply's ("DWS")recommendation. This has been a long-standing practice which arises out of
the requirement in Chapter 54 of the Hawaii Revised Statutes ("H.R.S.") and the County
Charter that all contracts are executed in the name of the Board, that the Board determines the
character and type of all construction, additions, extensions, increases, and betterments to the
waterworks and water system, and that the Water Board manages, controls and operates the
waterworks of the County of Hawaii.
At the Water Board meeting on January 23, 2007, a Request for Proposals was brought to
the Water Board for award. Because of the restrictions in the Hawaii Administrative Rules
("H.A.R."), the monetary amount of the contract was not included in the information that was
given to the Water Board. However, the Water Board was uncomfortable awarding a contract
without knowing what the dollar amount of the contract would be. Fortunately, federal grant
monies were going to be used for this project and because the offeror's proposal was within the
amount of grant money available, the Water Board was able to approve the award based on the
Hawaii County is an Equal Opportunity Provider and Employer
Mr. Milton D. Pavao, Manager
January 31, 2007
Page 2 of 3
DWS's representation that the offeror's proposal was not going to exceed the available federal
grant money.
However,because there will be other Requests for Proposals that will be submitted to the
Water Board for award in the future, the DWS requested some guidance on how to balance the
request by the Water Board for more information and the H.A.R. and H.R.S. restraints on
divulging information prior to award. This letter is intended to outline the procedure that should
be used in these circumstances.
Pursuant to H.R.S. §103D-303(d),proposals submitted in response to a Request for
Proposals shall be opened so as to avoid disclosure of contents to competing offerors during the
process of negotiation. Pursuant to H.R.S. §103D-303(f), revisions to a proposal may be
permitted after submissions and prior to award for purposes of obtaining best and final offers. In
conducting these discussions, there shall be no disclosure of any information derived from
proposals submitted by competing offerors.
Pursuant to H.A.R. §3-122-57, after the award is made, the award shall be posted for five
working days. Pursuant to H.A.R. §3-122-58, the contract file, which includes a copy of all of
the proposals, shall be available for public inspection upon posting of the award.
Based on the practice of the DWS/Water Board and the H.R.S. and H.A.R., it is possible
that the Water Board could choose not to award the contract to the offeror that was selected by
the selection committee, demand that the Chief Procurement Officer(i.e., the manager)conduct
additional discussions or change the requirements by an addendum which would be distributed to
priority listed offerors, and require another submission of best and final offers pursuant to H.A.R.
§3-122-54. The Water Board may also cancel the solicitation pursuant to H.R.S. §103D-308
when it is in the best interest of the DWS/Water Board to do so and for other reasons detailed in
H.A.R. §3-122, subchapter 11.
Because it is possible that the negotiations on a best and final offer take place after the
DWS initially requests the Water Board award to a particular offeror, it is essential that the
information in the offers be kept confidential until after the award is made by the Water Board,
as required by H.R.S. §103D-303(d) and (f).
For this reason, when requesting that the Water Board award a contract which was
negotiated pursuant to the Request for Proposal process, the DWS should, as a matter of course,
agendize an executive session pursuant to H.R.S. §92-5(a)(8) (to deliberate or make a decision
upon a matter that requires the consideration of information that must be kept confidential
pursuant to a state law) in conjunction with the agendized request for the award. All confidential
information can then be discussed during the executive session, and the Water Board can then
vote on whether or not to award the contract based on the information provided to it in executive
session once moving out of executive session.
I did call the State Procurement Office, and they also recommended that discussions of
the proposals prior to award take place in a closed session of a meeting of the Water Board.
Mr. Milton D. Pavao, Manager
January 31, 2007
Page 3 of 3
I hope this provides you with some guidance of how to deal with these matters in the
future. If you have any further questions, please do not hesitate to contact me.
Sincerely,
Katherine A. Garson
Deputy Corporation Counsel
KAG:mc
sAwork 2007\jan\wrk 07-14077 to to dws re offeror's response to rfps 1-31-07 KAGmc