New state law opens potential for bid rigging
With about a month and a half left in his abbreviated term as governor, Mark Schweiker has signed legislation that represents a step backward in the ongoing and uphill effort to ensure open government. The new law, formerly know as House Bill 2674, amends Pennsylvania’s procurement code, under which companies bid for state contracts. Buried in the legislative verbiage is a provision that blocks public access to information about unsuccessful bid proposals. Lawmakers inserted this exemption ostensibly to protect companies’ proprietary business data.
But what the law does by shutting out the public is to open the bidding process to potential bid-rigging and other political abuses, both real and perceived.
The chairman of the Government Affairs Committee for the Pennsylvania Newspaper Association noted in a letter to Philadelphia state Sen. Vincent Fumo: “During a procurement process, the Department (of General Services) reviews all the proposed bids and awards a contract to a successful bidder. Thus, all unsuccessful proposals are essential components of the department’s decision. Without the proposal, no result would be made, and no public funds would be disbursed. Therefore, all proposals are public records under the Right to Know Act.”
The chairman, Dennis Hetzel, said sensitive information within a bid could be withheld while the remainder is released. There is no reason, he argued, to keep entire proposals secret just because they may contain limited confidential material.
The PNA was also unhappy about the decision to include the exemption in the procurement legislation itself rather than in the Right to Know Act. This maneuver, Hetzel argued, forces the average citizen to be familiar with every law that might block the release of a public record. The practical effect here is to give the government one more way to deny access to what it does, as if it doesn’t already make the process frustrating and time-consuming enough.
The PNA was unsuccessful in getting the Senate to modify the exemption language to exclude only proprietary business information. Schweiker sealed the deal with his signature.
We believe he and the Legislature made a mistake. A law giving the government the power to ensure secrecy in bidding procedures that involve great amounts of public money is, in Hetzel’s words, awful public policy.